author: HAMILTON, Justice. CALVERT, Chief Justice

text:
    CHEMICAL BANK & TRUST COMPANY, Relator, v. Honorable J. M. FALKNER, Banking Commissioner of Texas, Respondent.
    No. A-9448.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied July 24, 1963.

      Dyche, Wheat, Thornton & Wright, Houston, Jake Jacobsen, Austin, for relator.
    Waggoner Carr, Atty. Gen. of Texas, Dudley D. McCalla, Asst. Atty. Gen., for respondent J. M. Falkner, Banking Com’r of Texas.
    Graves, Dougherty, Gee & Hearon, Austin, Baker, Heard & Elledge, Willis E. Gresham, Houston, for intervenors.
   HAMILTON, Justice.

The Chemical Bank & Trust Company as relator seeks a writ of mandamus to compel J. M. Falkner, State Banking Commissioner, to issue to it a certificate of authority to operate a bank in Harris County, Texas.

The facts are: The First Board of Directors of Chemical Bank & Trust Company, relator, applied for a state bank charter in the City of Houston, the application was approved by the State Banking Board, and the State Banking Commissioner delivered to relator a certified copy of the articles of association of the new bank. Two Houston banks, River Oaks Bank & Trust Company and the University State Bank, who protested the granting of the charter, filed suit in the 53rd District Court of Travis County appealing from the order of the State Banking Board. Service was had on the State Banking Board by serving J. M. Falkner, a member. Relator, after receiving the certified copy of the articles of association, proceeded with all required steps necessary to entitle it to a certificate of authority to start in business. The Commissioner, although he admitted that all necessary requirements had been met by relator, refused to issue the certificate of authority because of the pendency of the suit appealing from the Board’s order. Relator then filed a motion for leave to file a petition for writ of mandamus in this court to require the Commissioner to issue the certificate of authority.

Subsequent to the action of the court in granting the motion for leave to file, the River Oaks Bank & Trust Company and the University State Bank filed a first amended original petition in the suit which they had filed against the Board in the 53rd District' Court of Travis County.

In this amended petition, J. M. FalkneR as Banking Commissioner, was made a party. In addition, the Chemical Bank & Trust Company and its First Board of Directors were made parties. Although in said amended petition there was request for a restraining order and injunction against the State Banking Board and the Banking Commissioner enjoining the issuance of the certificate of authority, no such order has been issued.

The two banks, plaintiffs in the district court case, filed a motion for leave to intervene in the cause before this court, which was granted.

The principal question before us for decision is whether the Banking Commissioner has the authority and the duty to issue the certificate of authority to relator even though an appeal has been taken from the State Banking Board’s order granting the charter to relator. We answer this question in the affirmative.

The question is clearly posed in a statement in a letter from J. M. Falkner, Commissioner, to the correspondent for the Chemical Bank & Trust Company under date of February 7, 1963, as follows:

“It is clear from the wording of Art. 342-305, V.C.S. that I, as a member of the State Banking Board, in my ex officio capacity as Banking Commissioner of Texas, have fully performed my duties as a member of the State Banking Board after the application for the bank charter has been acted upon by the Board. When such application is granted, it then becomes my duty as Banking Commissioner of Texas, and not as a member of the Board, to approve, issue and deliver to the in-corporators a certified copy of the Articles of Association upon the presentation to me of satisfactory evidence that all capital funds have been fully paid in in cash, which has been done in this case.
“I am uncertain at this time as to whether filing of an appeal from the order of the State Banking Board and the institution of suit in Cause No. 130,008, in the 53rd District Court of Travis County, Texas, by River Oaks Bank & Trust Company, et al. vs. State Banking Board, et al., in which I am named as a defendant member as Banking Commissioner of Texas, constitutes a suspension of my authority to perform duties required of me for the issuance of the Certificate of Authority during the pendency of such suit. As Banking Commissioner of Texas I am ready, able and willing to issue the Certificate of Authority since all of the legal requirements precedent to such issue have been fully performed as required by law, provided that I am authorized or directed to do so by an order of a court of competent jurisdiction. The sole reason for my refusal to issue the Certificate of Authority, as above stated, is that there is a question as to whether my authority as Banking Commissioner of Texas is limited by the fact that an appeal has been taken to a court of competent jurisdiction from an order of the State Banking Board of which I am an ex officio member.”

Intervenors contend that this court has no jurisdiction to issue the writ of mandamus against the Banking Commissioner because he is not an officer within Article 1733 of the Revised Civil Statutes. That article reads:

“The Supreme Court or any Justice thereof, shall have power to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof, or any officer of the State Government, except the Governor. Id.; Acts 1913, p. 107; Acts 1917, p. 140.”

It is our opinion that the Banking Commissioner is an officer of the state government and is subject to writ of mandamus by this court by authority of the above statute. In determining whether the Commissioner is an officer of the state government, it is necessary to refer to the statute creating the office of Banking Commissioner. In 1943 the Texas Banking Code was passed by the Legislature. (All reference to articles in this opinion are to Vernon’s Annotated Civil Statutes.) Article 342-103 established the Finance Commission of Texas, consisting of nine members divided into two sections, one of which was the banking section, consisting of six members. It is provided that the banking section shall serve as an advisory board to the Commissioner as to general policies and shall have such other duties and powers and authority as may be conferred upon them by law. The banking section shall make thorough and intensive study of the Texas banking and building and loan statutes to maintain the maximum degree of protection to depositors and stockholders, and shall report every two years to the Legislature by filing with the clerks of the Senate and House of Representatives the results of its study, together with its recommendations. The banking section may promulgate certain rules and regulations for the conduct of state banks. Article 342-113. The Banking Commissioner presides over the meetings of the Finance Commission and each section thereof, but shall not vote except in the case of a tie, and does not preside when the meeting involves the selection of a Banking Commissioner. Article 342-111.

The Finance Commission shall, with the advice and consent of the Senate, elect a Commissioner who shall serve at the pleasure of the Finance Commission. The Commissioner shall be an employee of the Finance Commission and subject to its orders and directions. Article 342-207 provides as follows: “The Commissioner shall supervise and shall regulate, as provided in this Code, all state banks and shall enforce the provisions of this Code in person or through the Deputy Commissioner, the Departmental Examiner or any examiner. * *

The powers given the Commissioner by the Code to carry out his duties of supervising and regulating state banks are numerous — so many it would burden this opinion to enumerate them. Suffice it to say that the Commissioner’s control over state banks is extensive. While the statute does say the Banking Commissioner is an “employee of the Finance Commission and subject to its orders and directions”, he is far more than an employee of the Finance Commission because of the many powers and duties given him directly by the Legislature which are not subject to the control of the Finance Commission. The fact that the statute denominates the Commissioner as an employee does not necessarily mean that he is not an officer of the state government.

The Supreme Court of Texas in Kim-brough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900), quotes with approval from Mechem on Public Officers, § 1:

“Public office is the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.”

Hence, calling the Commissioner an employee and giving him tenure at the pleasure of the Finance Commission does not prevent the Banking Commissioner from being an officer of the state government. As pointed out, the general administration of banking affairs is carried out by the Banking Commissioner. In exercising his duties he is carrying out the sovereign functions of the government for the protection and benefit of the public and as such he is a state officer as stated in Article 1733. See Betts v. Johnson, 96 Tex. 360, 73 S.W. 4; Middlekauff v. State Banking Board, 111 Tex. 561, 242 S.W. 442.

This holding does not mean that any “officer” of the State may be subject to mandamus under Article 1733. There are many persons in the state government who meet the general requirements of public officers. See Knox v. Johnson, 141 S.W.2d 698 (Tex.Civ.App.1940), writ refused. However, Article 1733 extends only to a certain limited class of officers. In Betts v. Johnson, supra, Judge Gaines concluded that the predecessor to Article 1733 only extended to heads of departments of the state • government. He pointed out the rationale of the statute as follows:

“ * * * These officers must reside, and their offices must be kept, at the seat of the state government, and their official functions are to be performed there. A mandamus proceeding against the head of a department, as a rule, involves questions which are of general public interest and call for a speedy determination. That they are of far more importance than those ordinarily arising in mandamus suits against other officers, whether of the state, or of a district, or a county, is, as we think, obvious.”

The authority and duty of the Banking Commissioner to issue a certificate of authority is controlled by the statute. Article 342-307 provides:

“No state bank may do business until it receives a certificate of authority from the Commissioner, which shall not be delivered until it has elected the officers and directors named in the application for charter or other officers and directors approved by the Commissioner; shall have adopted bylaws approved by the Commissioner; and shall have complied with all the other requirements of this Code relative to the incorporation of state Banks. * * * ”

This is one of the powers given the Commissioner which is not under the control of the Finance Commission.

Since the Banking Commissioner has admitted that all prerequisites entitling the Chemical Bank & Trust Company to a certificate of authority have been complied with, all that remains to be done for the bank to begin operation is the ministerial act of the Commissioner of issuing the certificate of authority. Without question the writ of mandamus would lie to compel him to issue such certificate unless the filing of the appeal from the Board’s order granting the charter will prevent. The fact that the statute is worded in the negative does not change the duty from ministerial to discretionary. The negative requirement that the Commissioner may not act until certain steps are taken implies that the Commissioner must act when those steps have been satisfactorily completed.

Intervenors contend that the Banking Code provides an appeal from the Board’s order for a trial de novo by the preponderance of the evidence rule, the appeal thereby nullifying and vacating the order of the Board. On the other hand, relator argues that Article 342-115 only provides appeal to determine if the findings and determinations of the Banking Board are supported by substantial evidence, the order being valid until set aside by the court.

Article 342-115 of the Banking Code of 1943 provides:

“ * * * The orders of the State Banking Board may be appealed to a court of competent jurisdiction and the trial in the court of competent jurisdiction shall be de novo the same as if said matter had been originally filed in such court. * * * ”

We agree with intervenors that the above provision contemplated a trial de novo, the issues that were before the Banking Board to be tried by the courts under the preponderance of the evidence rule. By providing that the trial shall be before the court “the same as if said matter had been originally filed in such court”, the Legislature intended that the court should be placed in the same position as the State Banking Board.

To obtain a charter, an applicant must get affirmative findings on the following elements :

“1. A public necessity exists for the proposed bank.
“2. The proposed capital structure is adequate.
“3. The volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank.
“4. The proposed officers and directors have sufficient banking experience, ability and standing to render success of the proposed bank probable.
“5. The applicants are acting in good faith.”

The appeal provision places the duty on the courts to make these determinations. The placing of this duty on the courts makes the proceedings adversary with each party — applicant and contestant- — advocating its own special interests. Each party would introduce evidence sustaining its own point of view. That would leave no protection for the general public since the courts are not equipped to make an independent investigation into the facts and circumstances. Banking has always been a field of great public interest. There is more involved than the rights of the individuals who wish to engage in the business of banking. The general populace has an economic interest in the financial welfare of banking institutions. They place their savings there for safekeeping, for example, and if they are not given protection by the law, the chances are great that the public will be hurt. The collapse of banking institutions in the 1930’s is illustrative of this point.

Hence, the Legislature originally considered each applicant for a bank charter and passed special laws to create individual banks. However, the business of the Legislature became too great, so the duty of granting charters was delegated to administrative agencies and personnel. As exemplified in Article 342-305, the Legislature has .set some particular elements necessary to get a charter (Nos. 2, 4 and 5), but it has also provided flexibility by establishing the more general requirement of “public necessity”. The determination of “public necessity” by the State Banking Board involves a determination of public policy which is a matter of legislative discretion which can not constitutionally be given to the judiciary. That would be a violation of Article II, Section 1 of the Constitution of Texas, Vernon’s Ann.St., which provides:

“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of 'which shall be confided to a .separate body of magistracy, to wit: Those which are Legislative to one;., those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

It is argued that this case is controlled by Key Western Life Ins. Co. v. State Board of Insurance, Tex., 350 S.W.2d 839 (1961), and State Board of Insurance v. Professional and Business Men’s Ins. Co., 359 S.W.2d 312 (Tex.Civ.App.1962), writ refused, n.r.e., which upheld trial de novo in the insurance field. State Board of Insurance v. Professional and Business Men’s Ins. Co. held the requirements to get an insurance charter were judicial and could be determined by the courts. However, it is the determination of “public necessity” in the banking area which is legislative, and that is not a requirement in the insurance field.

It is contended that the Key Western case laid down a broad rule for determining whether a function of an administrative agency is judicial or legislative. The court said that judicial action is “particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect.” We point out, however, that the court did not intend to lay down a broad pronouncement of administrative law. The language was used only as an aid in reaching the answer to the specific question facing the court. Key Western, supra, 350 S.W.2d at page 847. The heart of the decision in the Key Western case was that the statute did not give the Insurance Board legislative discretion in approving insurance policies. The court distinguished Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959) on the ground that there was a grant of legislative discretion to the City Council in that case. There is a grant of legislative discretion to the State Banking Board under Article 342-305, hence this case is distinguishable from Key Western and falls within the logic of Davis v. City of Lubbock.. We hold the appeal provision providing for trial de novo by a preponderance of the evidence to be unconstitutional and of no force and effect.

Holding the above provision of the statute unconstitutional does not mean that intervenors do not have a right of appeal. When a vested property right, as each intervenor has in its charter, has been affected by the action of an administrative agency, thereby invoking the protection of due process of law, there is an inherent right of appeal. Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747 (1961); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788. To afford due process of law, only questions of law need be considered. Hence, the appeal from the order of the Banking Board only involves determining if there is substantial evidence to support the Board order so that it is not illegal, arbitrary, or unreasonable. Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, supra.

An appeal under the substantial evidence rule negatives any idea that the Board’s order approving the application is vacated or nullified by the filing of the appeal. Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619. Since the order granting the application is not nullified or suspended by the appeal, but is still in full force and effect, there is no valid ground for the Commissioner to refuse to issue the certificate of authority, and relator is entitled to have writ of mandamus issue.

We assume that in the light of this opinion the Commissioner will issue the certificate of authority as requested by the relator. Otherwise, writ of mandamus, as prayed for, will issue.

CALVERT, Chief Justice

(dissenting).

I respectfully dissent.

I agree with the holding that the Banking Commissioner is a state officer within the meaning of Art. 1733, and that, in a proper case, this Court has jurisdiction to issue a writ of mandamus to him.

I agree also with the holding that Art. 342-115 provides for a true de novo, preponderance of the evidence, trial.

I disagree with the holding that the provision for de novo trial is unconstitutional.

The five findings which must be made by the State Banking Board incident to the granting of a bank charter are set out in the Court’s opinion and need not be repeated here. The only one of the issues which is said to render the granting of charters a matter of pure public policy is that which requires a finding that “A public necessity exists for the proposed bank.”

We have held that the legislative function of determining matters of pure public policy may not be conferred on the judiciary, Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 711, and I adhere to that opinion; but I do not regard a determination that there is a public necessity for a bank in a particular area to be a determination of public policy. To me, the question of whether there is a public need for a bank in a given area is a pure fact question — one which a trial judge or jury could decide on evidence available for introduction in court.

The Court’s fear for the interests of the public if full judicial review is allowed is, I suggest, without warrant, as is its concern that the adversary system of trial would leave undeveloped that evidence most favorable to the public interest. The fixing of utility and freight rates is much more complicated and intricate and calls for much greater expertise, and yet full judicial review is allowed in both fields. See cases cited in Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 624. We have no evidence that the public interest has suffered from full judicial review of rate orders of administrative bodies, and no reason to believe that the courts would be less concerned than the State Banking Board with the public interest. There is no better guaranty of full development of evidence than trial in an adversary proceeding. And while it is true that trial courts are not equipped to make independent investigations of facts, all admissible evidence of facts developed by the administrative agency would be available at the trial.

In Key Western Life Ins. Co. v. State Board of Insurance, Tex.Sup., 350 S.W.2d 839, we quoted with approval from State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N.W. 709, 711, for the proposition that “when duties of an ambiguous character are imposed upon a judicial officer any doubt will be resolved in favor of the validity of the statute, and the powers held to be judicial.” It seems to me that the de novo trial provision of Art. 342-115 is doubtful at worst.

There is nothing to be accomplished by pursuing this matter at length. It is well to remember, however, that the problem with which we are concerned is not the wisdom of the act of the Legislature in requiring de novo review by the judiciary of the State Banking Board’s decision, but the constitutional power of the Legislature to require it. While each case is decided on its own facts, this decision foreshadows a similar fate for all legislative acts which require true de novo review of administrative orders based on findings of public convenience and necessity.

It is my opinion that the suit filed in the district court effectively nullified the order of the State Banking Board granting a charter to relator, and the Banking Commissioner is, therefore, under no legal duty to issue the certificate of authority.

I would deny the petition for writ of mandamus.

CULVER and STEAKLEY, JJ., join in this dissent.

      . Articles 342-101 through 342-911.

      . Article 342-305, Y.A.O.S.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Albert B. WELCH, Appellant, v. Virginia Morrow WELCH, Appellee.
    No. 16188.
    Court of Civil Appeals of Texas. Dallas.
    June 14, 1963.

      Wm. Andress, Jr., Dallas, for appellant.
    Carter, Gallagher, Jones & Magee, Dallas, for appellee.
   WILLIAMS, Justice.

This appeal relates solely to the custody of a minor child. Albert B. Welch brought this suit seeking a divorce from his wife Virginia Morrow Welch and asking that he be awarded custody of their ten year old daughter, Margaret Welch. The mother, by cross-action, sought a divorce and custody of the child. The father demanded a jury and at the conclusion of the trial the court submitted the issue of custody to the jury which answered same in favor of the mother.

Based upon this jury finding the trial court awarded custody of the minor child to the mother, appellee here, but granted a divorce to Albert B. Welch. The divorce phase of the judgment is not appealed by either party.

Appellant seeks reversal of the custody award in ten points of error all of which, having been carefully examined by us, are found to be lacking in merit and we therefore affirm the trial court’s judgment.

By his first point appellant assails the constitutionality of Art. 4639a, Vernon’s Ann.Civ.St, contending that same is invalid in that it contravenes Art. 5, Sec. 8 of the Constitution of Texas, Vernon’s Ann.St.

The statute under attack, Art. 4639a, V.A. C.S., was enacted by the 57th Legislature on June 14th, 1961 and being Chapter 305, p. 663, of the Laws of the 57th Legislature, Regular Session, 1961, the essential portions being added by this amendment to prior statute being:

“Provided, however, that the judgment of the court in a jury trial of a divorce cause may not contravene the jury’s determination of child custody. In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination.”

The Constitution of Texas, Art. 5, Sec. 8, entitled “Jurisdiction of District Court” provides, among other things, that the district court shall have:

“ * * * original jurisdiction and general control over executors, administrators, guardians and minors under such regulations as may be prescribed by law.” (Emphasis supplied.)

Until the Legislature amended Art. 4639a in 1961 there was no statutory provision allowing the right to a jury trial in a child custody proceeding. This was entirely proper because, as the court said in Hickman v. Smith, Tex.Civ.App., 238 S.W. 2d 838, err. ref.: “[t]he right to trial by jury as guaranteed by Art. 1, Sec. 15, of the Bill of Rights to the Texas Constitution, and Art. 5, Sec. 10, of such Constitution, Vernon’s Ann.St., is limited to the right of trial by jury as it existed at common law or as provided by statutes in effect at the time of the adoption of our Constitution in 1876.” Under the common law the determination of the custody of minor children was a well-recognized branch of equity. 17 Am.Jur. Sec. 275. In equity cases there has never been a right to jury trial unless that right has been expressly provided by constitution or statute. The rule in Texas, prior to the amendment under question, was clearly established that in child custody cases the proceedings were considered to be in equity in which the trial judge sat as a chancellor and that if a jury was allowed, its findings were advisory only, and not binding on the trial judge. 3 Speer, Marital Rights in Texas, 211-212 (4th Ed. 1961); 20 Tex.Jur.2d 644, Sec. 320, and cases therein cited

In applying the test of constitutionality to a statute we must presume that the Legislature, in enacting the law, knew the circumstances and conditions affecting or relating to the amendment, including all prior decisions of the courts pertaining to the subject matter. 39 Tex.Jur. 248, Sec. 142. There is also a presumption in favor of the constitutionality of a statute and the burden rests on the one asserting the invalidity of a statute to show that the act is prohibited by a provision of the Constitution. 12 Tex.Jur .2d Sec. 4T and 42, pp. 384 — 385. Only one case dealing with the constitutionality of the Act has been decided by an appellate court since the enactment of the amendment in question. In that case, Carter v. Carter, Tex.Civ.App., 359 S.W.2d 184, err. dism., the majority of the Waco Court of Civil Appeals held that the statute was constitutional and did not violate Art. 5, Sec. 8 of the Texas Constitution. We agree with that holding and find that the Article under attack is not repugnant to any provision of the Constitution. Appellant has wholly failed to discharge his burden of proof by demonstrating the unconstitutionality of the Act. The burden of his contention is that: “The amendatory act of 1961 seeks to deprive the district judge of his constitutional jurisdiction, and is therefore void.” To the contrary, the amendment does not in anywise take away from the district court its jurisdiction in custody proceedings but merely grants the right of a jury trial when requested by either party and provides further that the jury’s verdict is more than advisory. The Constitution, Art. 5, Sec. 8, grants to the district court jurisdiction over custody matter. The amendment does not take away or limit that jurisdiction in the least. The word “Court” as used in the Constitution does not necessarily confine its meaning to “judge”. When a case is tried before a court and a jury the two combined constitute the court. 14 Am.Jur. Sec. 4, p. 249.

Neither can we agree with appellant that the effect of the amendment to Art. 4639a, V.A.C.S., is to destroy the effect of Rule 301, Texas Rules of Civil Procedure, which grants to the trial court the right to set aside a verdict which is not supported by evidence. It is our belief that Rule 301, T.R.C.P., still prevails and that Art. 4639a, as amended, should be construed in the light of the above Rule. So, in the event that the verdict of the jury in a child custody case is not supported by any evidence, then, under the terms of Rule 301, T.R.C.P., the judge has the right to set aside the verdict. It would seem that the Legislature intended that instead of permitting the jury finding to be advisory only, as it was prior to the amendment, that such jury finding would be binding upon the court but only when supported by the evidence as in any other civil action where the parties have a right of trial by a jury.

Appellant earnestly argues that the amendment is an unwise one, citing numerous opinions of the courts to the effect that a trained judiciary is in much better position to determine the question of custody than a jury of laymen. Such may be the case but it is not a proper judicial function to determine or pass upon the wisdom of legislation. Relief from unwise laws must be sought from the legislative branch of the government. For an interesting discussion in this connection see the Article entitled “Binding Jury Verdict In Child Custody Proceeding, Art. 4639a, amended” by Shirley Levin Vol. 16, SW Law Journal, #3, p. 507-515.

By his second point, appellant contends that the court erred in refusing to admit in evidence the statements, both verbal and written, of the minor child relating to her preference between her parents. We think the trial court was correct in both rulings. The testimony offered was hearsay. The little girl, Margaret, was not in court in person to testify. Appellant’s second point is overruled.

By his third point appellant contends that in child custody cases that technical rules of procedure are of little importance, it being the duty of the court to ascertain all facts which will assist him to determine the best and proper environment for the child, and therefore the trial court in this case erred in refusing to admit the following evidence: The minor’s statements verbal and written as to her wishes; the maternal grandmother’s letter regarding the brainwashing to which the minor was subjected; and the testimony of witnesses regarding the condition and attitude of both parents. This point is claimed to be germane to six paragraphs of the amended motion for new trial. Obviously, the point is multifarious and violates Rule 418, T.R. C.P., relating to briefing. Even so, we have studiously examined the statement of facts relating to each of the matters complained about and find that the court’s action in each regard was proper.

By point four appellant urges error in the refusal of the trial court to admit in evidence a letter written by Mrs. Morrow to the mother of the appellant. During cross-examination of the witness Randall Morrow, the father of the appellee, appellant offered in evidence a letter written by Mrs. Morrow to Mrs. Allen Jamison, the mother of appellant. Objection was made to the admissibility of such letter because it was irrelevant, immaterial and hearsay, and contained conclusions and mental processes of a person not a party to the suit. The court interrogated the witness concerning the letter and its was developed that the letter was not his and did not contain his'views or thoughts. We think the court was correct in sustaining the objection. The letter was hearsay and furthermore, the writer of the letter, Mrs. Morrow, was shown to have been available in court but was not placed upon the witness stand to testify concerning the letter. Point four is overruled.

In his point five appellant contends that the trial court erred in permitting certain cross-examination of appellant relating-to his having received psychiatric treatment in 1948, three years before the marriage. Appellant contends that such testimony was too remote and had no relevancy to the issue of custody. The record reveals such cross-examination but it also reveals that on further re-cross-examination the-same testimony was developed without objection. Accordingly, the error, if any, was. waived. 3 Tex.Jur.2d 396, Sec. 124.

By his sixth point, likewise multifarious, appellant complains of the action-of the trial court in admitting the expert-testimony and recommendation of the witnesses Spratlan and Ackerman, employees, of the Juvenile Department, who had made-investigations in this case. We overrule-this point. Both witnesses were duly qualified as experts in the field of custody of" children and their conclusions and recommendations concerning custody were properly admitted to the jury. The weight and' credibility of the testimony of the two expert investigators were clearly for the jury.

By his seventh point appellant complains that the trial court should have permitted the witness Spratlan, who came beyond subpoena reach, to testify as to who - paid the expenses of the trip to Dallas to. attend court. The record reveals that Mrs. Spratlan testified that her expenses were-paid by the Child Welfare Division at Austin. Upon being asked whether she had: some written authorization from the Child" Welfare Division at Austin to pay her expenses the court sustained the objection thereto on the ground that it was irrelevant.. We see no error in this point.

Appellant’s eighth, ninth and' tenth points are the familiar (1) no evidence;-(2) insufficient evidence; and (3) contrary to the great weight and preponderance of" the evidence, points. These points have required us to examine the entire statement' of facts and evaluate same in accordance-with the rules announced by our Supreme-Court in In re King’s Estate, 1-50 Tex. 662,'.

244 S.W.2d 660, and Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126. The statement of facts, consisting of 309 pages of testimony and exhibits, is replete with evidence both pro and con on the issue of custody of the child involved. No useful purpose will be served by relating or summarizing all of this testimony. It is sufficient to state that when examined in the light of the rule announced by our Supreme ■Court the record here presented contains ample evidence to support the verdict of the jury and the judgment of the court based thereon awarding custody of the child to appellee. Appellant’s eighth, ninth and tenth points are overruled.

Judgment of the trial court is affirmed.

DIXON, C. J., not sitting.


author: RENFRO, Justice.

text:
    Clarence W. TALLEY, Sr., Appellant, v. PAUL ALLISON GRAIN CO., Inc., Appellee.
    No. 16443.
    Court of Civil Appeals of Texas. Port Worth.
    June 28, 1963.
    Rehearing Denied July 19,1963.
    Beard, Kultgen & Beard, and Pat Beard, Waco, for appellant.
    Richard Owens, Fort Worth, for appel-lee.
   RENFRO, Justice.

This is a venue case.

Appellee, Paul Allison Grain Company, Inc., sued appellant, Clarence W. Talley, Sr., for damages for failure to deliver 36,-653 bushels of corn.

Appellant filed a plea of privilege to be sued in McLennan County.

Appellee introduced evidence that on July 2, 1962, appellant agreed, in a telephone conversation with one Barker, an independent broker, to sell and deliver to appellee at Fort Worth, Texas, 40,000 bushels of No. 2 yellow corn for $1.19 per bushel. On the same date Barker mailed a written confirmation of the contract to appellant. The written confirmation provided: “If no objection taken to this contract immediately by wire or phone, we shall consider; you have accepted same as final.”

Appellee- -also sent a written confirmation to appellant on July 2nd, the material parts of which read: “We confirm purchase from you today as follows: Ray Barker Commodity 40,000 bushels — #2 yellow corn, 14%' or less moisture at $1.19 per bu basis delivered to Fort Worth by trucks Shipment by September 10, 1962 * * * to be delivered to Burrus Feed Mills, Ft. Worth, Texas * * * Draft thru Bank of Commerce, Ft. Worth, Texas with unloading tickets attached. * * * If no objection taken to this contract immediately by wire or phone, we shall consider you have accepted same as final. * * * Draw all drafts and sell all B/L direct to Paul Allison Grain Company, Inc., Fort Worth, Texas.”

Appellant made shipment and delivery of corn to Burrus Mills in Fort Worth on August 14, 16 and 20, each time drawing a draft on appellee through the Bank of Commerce. The three shipments totaled 3,347 bushels. He refused to make any more shipments.

Appellant testified the oral agreement was for the sale of 4,000 bushels and that when he received the written confirmation he immediately telephoned Barker that the agreement was for 4,000 bushels; that he returned both written agreements to Barker.

Barker denied receiving the telephone call from appellant and denied receiving back the confirmation agreements.

No findings of fact were made by the trial court. We must assume he accepted the testimony of Barker.

Hence, the record before us shows an acceptance of the written confirmation contract by appellant and a partial performance thereunder.

Appellant has presented only one question, namely: “Is buyer’s written confirmation of an oral contract, which seller testified he protested to broker, but which broker denied, a 'contract in writing’ within Subd. 5, Art. 1995, Vernon’s Texas Statutes?”

As applied to the facts in this case our answer is “Yes”.

Appellant contends the written confirmation is not a contract in writing under Sub. 5, citing Vincent v. Global Corporation,. Tex.Civ.App., 217 S.W.2d 66.

Appellant concedes that this court in Daugherty Grain Company v. S. T. Oates. Grain Co., Tex.Civ.App., 191 S.W.2d 804, and Stephenson v. Oates, Tex.Civ.App., 213. S.W.2d 855, has held that such written confirmation is a written contract within Sub. 5. Our conclusion is also supported by Gottlieb v. Dismukes, Tex.Civ.App., 230 S.W. 792; Grainger v. Gottlieb, Tex.Civ. App., 234 S.W. 604; Pittman & Harrison Co. v. B. F. Robey & Co., Tex.Civ.App., 234-S.W. 1114; and Stevens-Smith Grain Co. v. Heid Bros., Tex.Civ.App., 18 S.W.2d 210.

We adhere to our previous holdings.

The order of the trial court overruling appellant’s plea of privilege is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    D. A. TINNEY, Appellant, v. Cora B. CARPENTER et vir, Appellees.
    No. 11107.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1963.
    Rehearing Denied July 17,1963.

      Lee & Lee, Mason, for appellant.
    Beard, Kultgen & Beard, Waco, for ap-pellees.
   HUGHES, Justice.

This is a “lost” will case. The decedent is W. I. Tinney, who died February 19, 1959, while domiciled in Cherokee, San Saba County. Surviving him were his wife, Mrs. Frankie Tinney, their four children, Mrs. Cora B. Carpenter, Clifton Arthur Tinney, D. A. (Dorr) Tinney and Thomas Milton Tinney.

On June 18, 1959, Mrs. Frankie Tinney filed an application in the County Court of San Saba County to probate the will of her husband in which she alleged:

“That said will was lost or destroyed after the same was duely executed by deceased and your petitioner.
“5. That the contents of said will, as far as known are as follows, to wit; that said will was signed by the deceased and your petitioner and all of the property of each of them, real, personal and mixed was left to the survivor, and that under said will, the survivor, was to be executor or executrix as the case might be, and to act in that capacity without bond.
“6. That said will was dated on the 15th day of Dec., 1955, and was executed in the presence of Johnson Kuy-kendall and his wife, Cloma Kuyken-dall, credible witnesses above the age of fourteen years of age who subscribed their names thereto as witnesses in the presence of said testator.”

This will was probated by the County Court on June 29, 1959, in an uncontested proceeding.

The probate of such will was based upon, as the record shows, the testimony of the subscribing witnesses, which is formal and does not pertain to the contents of the will, and affidavits of Mrs. Frankie Tinney and R. E. Gray. We quote first from the affidavit of Mrs. Tinney:

“That after said will was signed by affiant and her husband, W. I. Tinney, and the attesting witnesses as aforesaid the will was placed in a lock box in the City National Bank of San Saba, Texas, and that after the death of the said W. I. Tinney this affiant had the box opened and said will was not included therein and that the same was stolen, misplaced or lost. That affiant has made a diligent search for the same and said will cannot he found. That in said lock box was the empty envelope addressed to affiant from R. E. Gray an attorney at law of San Saba, Texas, and affiant further says that the last time she saw such will it was in said envelope.
“That said will was signed by affiant and the said W. I. Tinney, deceased, and provided that the survivor would be vested and have title to all of the property of the deceased, real, personal and mixed, and that said survivor be appointed testator or testatrix as the case might be, and to serve in such capacity without bond.”

From the affidavit of R. E. Gray, we quote:

“that on or about the 13th day of Dec., 1955, he drew a mutual will for W. I. Tinney, and wife, Frankie Tinney and forwarded the same to them at Cherokee, Texas, and at the time the said will was drawn that both testator and testatrix were over twenty one years of age and were of sound mind. That said will provided for the survivor to have all of the property, real, personal and mixed and that said survivor be appointed executor or executrix as the case might be and to serve in such capacity without bond.”

On June 24, 1961, Cora B. Carpenter filed a contest in the County Court of the will of W. I. Tinney, previously probated by it, alleging that the will as probated was not the will of W. I. Tinney, and in the alternative that such will had been revoked by W. I. Tinney prior to his death. This application is not in the record.

On January 18, 1962, the County Court entered a judgment setting aside and can-celling the order of June 29, 1959, by which the will of W. I. Tinney was admitted to probate, finding that such will had been revoked prior to the death of W. I. Tinney. An appeal from this judgment was taken by Cora B. Carpenter to the District Court of San Saba County.

In the District Court Cora B. Carpenter alleged that the will of W. I. Tinney was, “a joint will signed by W. I. Tinney and Frances or Frankie Tinney; that it provided that at the death of either of them, all of their property should go to the survivor for life, and that at the death of the survivor, the said property should be distributed among Cora Carpenter, Thomas Milton Tinney, D. A. Tinney, and Clifton A. Tinney, share and share alike, * * * ”

She also alleged that such “will cannot be produced for the reason that same has been lost.”

In addition this allegation of estoppel was made:

“Your petitioners would further show the Court that the heirs, devisees and executor of Frances Tinney are estopped to make any claim adverse from or differing from the provisions of the will of December 15, 1955, by virtue of the fact that Frances Tinney in Cause No. 1570, In The Estate of W. I. Tinney, In The County Court of San Saba County, Texas, swore that said will had not been revoked insofar as she knew and that same had been stolen, misplaced or lost.”

In the alternative Mrs. Carpenter alleged that the will of W. I. Tinney “was revoked prior to his death.” She prayed that the will of W. I. Tinney, as she alleged it to be, be probated.

D. A. Tinney and Thomas Milton Tinney answered the petition of Mrs. Carpenter by alleging that W. I. Tinney revoked the will prior to his death, and in the alternative, that the will originally probated by the County Court was the will of W. I. Tinney.

This cause was tried to a jury which found: (a) That W. I. Tinney did not destroy his will with intent to revoke it. (b) That such will provided that upon the death of the survivor of W. I. and Frankie Tinney their properties should go to their four children, share and share alike.

This verdict was received and judgment -consistent with it was rendered.

The primary contention of appellant D. A. Tinney is that there is no evidence to sustain the finding of the jury that W. I. Tinney did not destroy his will with revoca-tory intent. We agree with appellant.

The law to be applied is correctly stated by the Amarillo Court of Civil Appeals in Bailey v. Bailey, 171 S.W.2d 162, as follows :

“The law is well established in this State, as well as in almost every jurisdiction in this country, that in a proceeding to probate a will, where it is •shown that it was executed by the decedent and when last seen or accounted for, it was in his possession or in a place to which he had ready access but .after his death it can not be found, the presumption arises that the testator •destroyed it in his lifetime with the intention of revoking it. The presumption that it was revoked by the testator stands in the place of positive proof to that effect and he who seeks to establish the will assumes the burden of •overcoming the presumption by producing facts and circumstances contrary thereto or that it was fraudulently •destroyed by some other person.”

Revocation of a will by destruction of it by the testator is expressly authorized by statute. Sec. 63, Texas Probate Code, V.A.C.S.

Mr. Clay Kuykendall testified by deposition that he was an officer of the City National Bank of San Saba; that he knew W. I. Tinney and that at the time of his death he had a safe deposit box in the bank. He testified that Mrs. Frankie Tinney also had access to the deposit box. The bank records show that Mrs. Frankie Tinney signed a card requesting admission to the deposit box on June 21, 1957, October 31, 1958 and on April 18, 1959. These records also show that W. I. Tinney entered the deposit box on July 17, 1957.

This witness testified that he did not know whether the will in question had been deposited in the bank box. He did state that Mrs. Frankie Tinney “came in and told me the will was gone, and asked me what became of it. I was not able to tell her.”

Mrs. Frankie Tinney was deceased at the time of this trial. Her testimony given in the probate court was admitted in evidence, most of which has been set out above. She testified that the will, after its execution, was placed in the bank lock box and that after the death of Mr. Tinney she opened the lock box and the will was not in it. She further testified that after diligent search such will could not be found and that it was “stolen, misplaced or lost.”

The last time Mrs. Tinney saw this will it was in the empty envelope which was addressed to her from R. E. Gray, the empty envelope being found in the bank lock box.

The testimony of Mrs. Tinney precludes any inference that she removed the will from the bank box or that she lost or destroyed it. Since Mrs. Tinney testified that the will left everything to her, it would have been against her interest to destroy it. No presumption that she destroyed it can thus be indulged.

The will, as Mrs. Tinney testified, was last seen in the bank box in the envelope, the bank box being under the control of Mr. Tinney and herself and accessible to them. It is our opinion that the presumption arising from these circumstances, and applicable only to Mr. Tinney, is not overcome by the statement of Mrs. Tinney that the will was “stolen, misplaced, or lost.” This statement is in the alternative and does not constitute a positive declaration that any one of the events was true. It was obviously based upon a lack of knowledge of the witness as to the fate of the will. This is fortified by her inquiry of Banker Kuykendall as to the whereabouts of the will. This inquiry would certainly not have been made had Mrs. Tinney known what happened to the will.

In American Jurisprudence 2d, Vol. 3, p. 401, it is stated that, “ * * * an affidavit which alleges alternatively that one or another ground exists does not definitely allege the existence of either ground * * ”

The statement that a document was misplaced or lost carries the same connotation, but when it is coupled with the statement that it was stolen, it is obvious that the declarant is guessing and is not speaking with knowledge.

It is our opinion also that the doctrine of judicial estoppel is inapplicable to appellants, and is insufficiently supported.

Mrs. Tinney was a mere witness in the probate proceedings. She was interested in the probate of the will, but she had no rights under it until the will was probated. She did not then speak for or represent anyone but herself. Her statements, or testimony, could not judicially estop the children of the decedent. They are not here claiming under their mother. They were, of course, bound by the probate judgment until it was vacated, because they were parties to the proceedings.

The insufficiency of the affidavit has been discussed. In our opinion it is not a sworn positive statement of fact or made with the knowledge sufficient to form the basis of judicial estoppel. See West v. Carpenter, 366 S.W.2d 826, Amarillo Civil Appeals, and authorities therein cited, also see 22 Tex.Jur.2d, Estoppel, Sec. 20, p. 691.

The judgment of the Trial Court is reversed and judgment is here rendered denying probate of the proffered will of W. I.. Tinney, deceased, dated December 15, 1955.

Reversed and rendered.

      . While not requisite to the validity of this presumption, the record here augments its verity by evidence showing that after the will was executed friction and discord of a serious nature-developed between Mr. and Mrs. Tinney.


author: MASSEY, Chief Justice.

text:
    STANDARD BANKERS LIFE INSURANCE COMPANY, Appellant, v. Henry Clay JAMES, Appellee.
    No. 16442.
    Court of Civil Appeals of Texas. Fort Worth.
    June 28, 1963.
    Rehearing Denied July 19,1963.

      Hal Jackson, Denton, and Burt Barr, Dallas, for appellant.
    Coleman & Whitten and Earl L. Coleman, Denton, for appellee.
   MASSEY, Chief Justice.

The true question presented by the appeal is whether, under the particular policy of “hospital and surgical expense” sued upon, the “insured” may recover upon proof of facts contradictory of facts reflected on the “claim forms” presented the Company in “proof of loss”. In this case we hold that the representations of fact in connection with the proof of loss were evi-dentiary only, and did not render improper the judgment awarded the insured. See 22A Tex.Digest, Insurance, Ch. XIV “Notice and Proof of Loss”, '§=‘552, “Misstatements and omissions”; Appleman, Insurance Law And Practice, Sec. 3581, “Effect of Mistakes and Omissions — Generally”; Continental Casualty Co. v. Jennings, 1907, 45 Tex.Civ.App. 14, 99 S.W. 423; Union Mut. Life Ins. Co. of Portland, Me. v. Payne, 1900 (5th Cir.), 105 F. 172,45 C.C.A. 193.

In the claim forms the insured’s signature appeared under the following printed language: “I declare the foregoing answers and statements to be true and correct and I agree that if any are untrue, all rights under my policy shall be void.” Above same was the question: “On what date were symptoms of illness first noticed? ” Written in answer thereto was: “Winter 60”. From the undisputed evidence the meaning of this answer could only have been “January, February, or March of 1960”. The insured testified that this was not fact, that it was written by an employee of the hospital when insured was confined after an operation, that the instrument was not read before it was signed, and that at the time it was signed and mailed to the Company the insured was unaware that it appeared as part of the proof of loss.

The coverage of the policy sued upon, in so far as coverage afforded thereunder pertained to the benefits for which claim was made, did not apply unless the “symptoms of illness” were first noticed after June 20, 1960. Testimony on the trial was to the effect that said symptoms did not appear until after said date, and we hold that such evidence was sufficient to support a fact finding in accord.

On the face of the policy itself, issuance and effectiveness of which was supported by consideration, was provision for “notice” of claim. There is no contention that said provision was not satisfied. Also appearing was provision for presentation of written proof of loss in the event of any claim, timeliness of which is not a question in this case. Nothing appears in the provision relative to requirements as to contents of a proof of loss.

In the policy also appears provision relative to “claim forms”. The provision obligates the Company to furnish an insured its usual claim forms for use in filing proofs of loss, with statement that “If such forms are not furnished within fifteen days after the giving of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting * * * written proof covering the occurrence, the character and the extent of loss for which claim is made.”

Here there is no complication presented by any “consideration” for, or “change of position” in reliance upon, any statement or misrepresentation. Nowhere in the policy does there appear any language which .purports to bind an insured by statements made pursuant to the execution of any instrument or to the contents of any proof of loss or exhibits purporting to support it. It is evident, therefore, that the proof introduced against the insured constituted by the statements in the claim form above her signature was evidentiary only. That this is so is particularly made apparent in view of the insured’s testimony in qualification, justification, explanation or excuse for the presence of the statement that the origin of the illness antedated June 20, 1960.

Nothing appearing herein should warrant an inference that our judgment might be different if there were other and different provisions in the policy of insurance relative to claim representations in connection with proofs of loss thereunder made or filed.

Among the forms mailed to the Company in connection with the filing of the proof of loss was one completed by the physician who performed the operation. The physi-ciain did not testify on the trial. He had not seen the insured prior to July of 1960. In reply to the question: “In your opinion, when did the basic cause of this disability originate ? ”, a blank in the form was completed by the doctor as: “About March 1960”.

The insured, though shown to have mailed the same to the Company as a part of the proof of loss, would not be bound by the doctor’s opinion therein given. Though the burden was cast on the insured to prove that the origin of illness occurred after June 20, 1960, that burden did not include an obligation to prove that the attendant physician was in error in having formed an opinion that the origin sooner occurred. What is important would be the opinion of the jury (or the court in the absence of the jury) as to the date of such origin, not the opinion of an insured’s physician— even though it was furnished to the Company as part of the proof of loss.

Judgment is affirmed.


text:
    Nettie Earline PATRICK et al., Appellants, v. G. M. WEBB, Appellee.
    No. 16436.
    Court of Civil Appeals of Texas. Fort Worth.
    June 14, 1963.
    Rehearing Denied July 12,1963.

      Joe H. Cleveland, Bowie, for appellants.
    Jack Lovette, Bowie, for appellee.
   MASSEY, Chief Justice.

This is an appeal from an order overruling pleas of privilege by two nonresident defendants.

The points of error are that there was no evidence of probative value supporting the judgment of the trial court, that the evidence was insufficient to justify entry of such judgment, and that under the authority of existing law, as set out in Knollhoff v. Norris, 1953, 152 Tex. 231, 256 S.W.2d 79, Webb’s petition for writ of habeas corpus (objective of which was to obtain possession of said petitioner’s child) involved the question of custody as well as possession and hence was and should be considered to be a “civil action” within the purview of the venue statute, and that the language of the opinion makes it clear that the circumstances which gave rise to the suit or “action” required that petitioner relitigate questions of custody and right of possession in the county of the defendants’ residence.

Briefly, the circumstances giving rise to the litigation in the instant case are these: G. M. Webb and Nettie Earline Patrick were formerly husband and wife. Fruit of their marriage was Bridget Ann Webb, a child of tender years. Pursuant to a divorce of said husband and wife the custody of Bridget Ann was awarded to the father. The judgment decree became final. Pursuant to arrangements for care of the child she was living with her paternal grandmother in Bowie, Montague County, Texas, during September, 1961, when on a night near the middle of that month, after the grandparents had retired for the evening, Nettie Earline Patrick came to their home. She told the grandmother that she would like to visit with the child in the truck in which she came, that she had brought a “cubby bear” to the child which was in the truck. The grandmother consented. Nettie Earline Patrick carried the child to the truck, climbed in, and whoever was at the wheel immediately drove away. The child was not returned. It was some time before the father found her.

Nettie Earline Patrick’s residence is in Houston, in Harris County. So is the residence of her mother, Lillie Koger. On June 1, 1962, G. M. Webb filed the petition for writ of habeas corpus in Montague County, complaining of the child’s mother and maternal grandmother. His complaint embodied the assertion that the child was with these parties in Houston under restraint. Respondents filed pleas of privilege to be sued in Harris County. Apparently pursuant to agreement the pleas of privilege were tried on October 26, 1962, with the matter of the habeas corpus hearing deferred. The pleas was overruled. From this order appeal was perfected. On the oral presentation we were advised that the child, Bridget Ann Webb, continued to remain with her mother and maternal grandmother in Houston.

We will first consider the applicability of the decision of the Supreme Court in the case of Knollhoff v. Norris, supra. We consider that decision is wholly inapplicable. The only phase of that case having similarity is the fact that the appeal was from an order overruling a plea of privilege in an action originally brought as a petition for writ of habeas corpus. The court said that such procedure in instances where right to possession and custody of a minor child is involved amounted to a “civil action” within the purview of the venue statute and that it was proper for a plea of privilege to be filed and heard in such an instance. The holding of the Supreme Court in the Knollhoff v. Norris case was that there should be a transfer of the cause of action since the person in the position of plaintiff in the case (petitioner for the writ of habeas corpus), by his controverting affidavit to the defendants’ (respondents’) pleas of privilege and by the evidence introduced before the trial court at the time said pleas were heard, failed to establish that plaintiff’s case came within any of the exceptions to the venue statute. That such was the holding of the Supreme Court is further clarified by reference to the opinion of the El Paso Court of Civil Appeals in Knollhoff v. Norris, 250 S.W.2d 434, and particularly in the dissenting opinion of Associate Justice McGill beginning at page 437.

In the instant case was sufficiently alleged — in the father’s petition for writ of habeas corpus and in his controverting affidavit which adopted said petition — a cause of action against Nettie Earline Patrick grounded on her crime or trespass in Montague County, Texas, within Vernon’s Ann.Civ.St. art. 1995, “Venue, general rule”, subdivision 9, “Crime or trespass”. Additionally, the proof established a prima facie case thereunder within the pleadings. True it is that the only exception to general venue mentioned in the pleadings was subdivision 7, “Fraud and defalcation”, but the failure to refer to subdivision 9 was not fatal. If a controverting plea states venue facts which will sustain venue under any exception, it is sufficient even though it omits such a reference or urges an exception which is inapplicable, or, though applicable, is not established. McDonald, Texas Civil Practice, p. 450, “Venue”, § 4.49, “(Controverting Affidavit) —Contents”. Sims v. Trinity Farm Const. Co., 1930 (Tex.Civ.App., Waco), 28 S.W.2d 856; Walter v. Hammonds, 1931 (Tex.Civ. App., Texarkana), 42 S.W.2d 1084; Hunt Oil Co. v. Murchison, 1961 (Tex.Civ.App., Eastland), 352 S.W.2d 365; and cases annotated under Texas Rules of Civil Procedure, rule 86, “Plea of Privilege” at note 5, “Controverting affidavit, generally”.

Although the instant case is considerably weaker than the authority upon which the father relies, to-wit: Cleaver v. Johnson, 1948 (Tex.Civ.App., Texarkana), 212 S.W.2d 197, we furthermore believe that the father’s burden of proof was sustained under the exception specified by subdivision 7, in that there was specific proof of a false statement made by Nettie Earline Patrick which enable her to gain possession of the child and remove it to a public road in front of the premises where she was normally kept, coupled with evidence from which it could justifiably be inferred that it was wilfully made with the intent to deceive the grandmother in whose care the child had been placed as the agent of the father, upon which she relied in allowing the child to be taken to the truck.

Contrarily, however, we are of the opinion that the trial court erred in sustaining venue against the maternal grandmother, Lillie Koger, because there was no evidence which would support the case of the plaintiff against her. The pleadings were sufficient to warrant the introduction of evidence now declared by our Supreme Court to be essential to hold a co-defendant such as Mrs. Koger under the exception to the general venue statute denominated subdivision 29a, “Two or more defendants”,—but, in view of the total absence of evidence which would tend to establish that she was participating with Nettie Earline Patrick in the unlawful restraint of the minor child, she was not shown to be a “necessary party” within the meaning of that subdivision. Ladner v. Reliance Corp., 1956, 156 Tex. 158, 293 S.W.2d 758. The instant action is one in which proof of independent evidence of facts would be necessary in order to show that Mrs. Koger was a “necessary party” to the suit against the other nonresident, for such facts could not be taken as admitted under the pleadings or as established as a matter of law by allegations of the petition.

There was a lack of evidence before the trial court necessary to support its order overruling Mrs. Koger’s plea of privilege. In such a case it is our interpretation of the law, as established by Jackson v. Hall, 1948, 147 Tex. 245, 214 S.W.2d 458, that as applied to appeals in general, and those from orders overruling pleas of privileges in particular, any proper judgment of an appellate court which reverses the judgment of the trial court should be one which incorporates therein an order remanding the cause to the trial court, rather than one of rendition, when the reversal is occasioned by a lack of evidence in support of the judgment of the trial court,— unless it clearly appears that the case was fully developed, i. e., unless it clearly appears that there was no evidence available to be introduced in the trial court which would have supplied such “lack”.

As applied to Nettie Earline Patrick, the points of error contending that there was no evidence, and insufficient evidence to support the judgment (i. e., that the judgment was against the great weight and preponderance of the evidence) are overruled. Judgment overruling her plea of privilege is affirmed. Judgment overruling the plea of privilege of Mrs. Lillie Koger is reversed and remanded to the trial court for further proceedings not inconsistent herewith.

All costs of appeal are taxed against Nettie Earline. Patrick.


author: GRISSOM, Chief Justice.

text:
    Virgil C. MOORE, Appellant, v. Marie E. MATHIS et al., Appellees.
    No. 3816.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1963.
    Rehearing Denied July 19,1963.

      Abney, Howell, Abramson & Burleson, Phil Burleson, Dallas, for appellant.
    Fritz and Vinson, Edward R. Vinson, Dallas, for appellees.
   GRISSOM, Chief Justice.

On October 12, 1962, Virgil C. Moore sued Marie E. Mathis and the Sheriff of Dallas County to enjoin enforcement of a default judgment obtained by Mathis against Moore on June 23, 1961 and for a bill of review. The court refused to try the bill of review on its merits and, after a hearing, denied an injunction. Moore has appealed.

Appellant’s first point is that the default judgment was either an interlocutory order in the main case or a void judgment in the severed case and, therefore, the court erred in refusing to enjoin its enforcement. His second point is that the judgment is void because it violates the guarantees of due process of law accorded appellant by the Fourteenth Amendment to the Constitution of the United States and due course of law by Article 1, Section 19, of the Constitution of Texas,, Vernon’s Ann.St. His third point is that the court erred in denying appellant’s bill of review without hearing evidence thereon.

In Mathis’ trial petition in cause number 41754-A, styled Marie E. Mathis v. Signature Loans, Inc., et al, a copy of which was served on Moore on April 30, 1960, she alleged that Moore and other defendants had collected usurious interest from her and had used unreasonable collection efforts causing mental and physical suffering. Although cited, Moore did not answer. On June 16, 1961, Marie Mathis testified at a hearing on the default as to the financial transactions involved and to harassment. On June 23rd, additional evidence was introduced concerning Moore’s participation in the collection of usurious interest and unreasonable collection efforts. On June 23, 1961, the court severed plaintiff’s cause .of action against Moore from that against all other defendants, tried the severed cause, giving it number 41754-2-A and styling it Marie E. Mathis v. Virgil C. Moore, and rendered judgment for' Mathis against Moore.

On October 31, 1961, Moore filed a motion to set aside the default judgment on the grounds that (1) it failed to dispose of all parties and issues; (2) the pleadings did not state a cause of action against Moore; (3) the judgment did not conform to the pleadings and (4) it purported to grant a severance when only an interlocutory decree was authorized by law. In the alternative, Moore alleged that (5) the severance deprived him of due process and due course of law and that (6) the judgment was void because there were no pleadings “in the severed cause” upon which a judgment could be based. A hearing was had on this motion on August 31, 1961, and it was then overruled. Moore excepted. On December 21, 1961, Moore and the other defendants in the original case filed, in case number 41754-2-A, a “joint and several, combined and separate”, motion to set aside said default judgment against Moore, urging substantially the same grounds as in Moore’s motion which had been overruled on August 31, 1961. This motion was overruled on June 20, 1962. The defendants excepted.

On October 12, 1962, Virgil C. Moore filed this suit alleging substantially the same grounds as those contained in said two motions. He prayed that Mathis and the Sheriff be enjoined from enforcing the default judgment. He did not ask that the default judgment be set aside. Ten days later Moore filed an amended petition, alleging substantially the same grounds and seeking only an injunction.

On November 8, 1962, Moore filed the pleading on which this case was tried. He designated it as his second amended original petition “and bill of review.” He alleged substantially the same grounds as theretofore but added general allegations of a meritorious defense and diligence. He prayed for an injunction preventing enforcement of an execution and, in the alternative, for a bill of review setting aside the default judgment of June 23, 1961, and that this cause be consolidated and tried with the main case. Appellees denied Moore’s allegations and alleged that Moore’s petition failed to state a cause of action; that he had failed to allege fraud, accident or mistake in procuring the default judgment, or diligence on his part in seeking to set it aside. Appellees further alleged that the validity of the default judgment had been adjudicated and that Moore’s asserted cause of action was barred by limitation and laches.

In a trial to the court, it was held that, even if Moore had a meritorious defense to the default judgment,, Moore had not alleged the essentials of a bill of review. Therefore, without hearing evidence upon Moore’s alleged meritorious defense, the court, after hearing evidence, rendered judgment that Moore take nothing.

The default judgment here attacked as void reads as follows:

“NO. 41754-A
“FINAL JUDGMENT
“On the 23rd day of June, 1961, came on to be heard the above entitled and numbered cause wherein Marie E. Mathis is the Plaintiff and Signature Loans, Inc., Signature Indorsement Company, Signature Indorsement Company, Finance Operating Company, Service Management Company, W. Lee Moore, Jr., Virgil C. Moore, Mid-Southern Service Company, Federal Mortgage Credit Company, Houston-American Finance Corporation and Houston-American Life Insurance Company, are Defendants, and came the Plaintiff and his attorney and announced ready for trial but came not Defendant, Virgil C. Moore, and the Court having found that the said Defendant, Virgil C. Moore was duly served with citation herein but failed to enter any appearance in this cause but wholly defaulted, and that Plaintiff’s cause of action as to said defaulting Defendant should be severed for convenience of trial and for other reasons from Plaintiff’s causes of action against the other Defendant; and the Court having found that Plaintiff’s cause of action as to usury double damages is liquidated, but that Plaintiff’s cause of action for actual damages for unreasonable collection contracts and for exemplary damages is unliquidated, and the Court having heard the evidence on the liquidated damages, and having heard the pleadings and arguments of counsel for Plaintiff, and such additional considerations and findings as were authorized by law having been had and made, and the Court being of the opinion that judgment should be rendered against said defaulting Defendant, as follows:
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff’s cause of action against Virgil C. Moore is hereby severed completely from all other causes of action herein, and shall hereafter be a separate cause entitled No. 41754-2-A, styled Marie E. Mathis v. Virgil C. Moore, whereas Plaintiff’s causes of action against all other Defendants shall be a separate cause, number 41754-A, styled Marie E. Mathis v. Signature Loans, Inc., et al;
“IT IS FURTHER ORDERED that the motion of Plaintiff for judgment against Defendant, Virgil C. Moore, in No. 41754-2-A is granted, and that Plaintiff, Marie E. Mathis, do have and recover from Defendant, Virgil C. Moore, the sum of $271.20 usury double damages, the sum of $2500.00, actual damages, and the sum of $2000.00 exemplary damages, with interest on all said sums at the rate of 6% per annum from the date of this judgment, and that the said Defendant, Virgil C. Moore shall pay one fourth of the costs of court in Cause No. 41754-A accrued up to the time of this judgment, and an additional sum, comprising all costs in this Cause No. 41754-2-A accrued or to accrue at any time.
“As indicated by the above severance, this judgment is without prejudice to Plaintiff’s causes of action against all other persons, companies and corporations against whom no recovery is herein awarded.
“All relief not specifically allowed against the Defendant in this severed cause which is not otherwise disposed of herein is hereby denied, and this judgment is final as to this severed cause, No. 41754-2-A.
“Let execution issue on this judgment.
“SIGNED this ^3 day of June, 1961.
“SARAH T. HUGHES “JUDGE.”

Appellant says this judgment is interlocutory, notwithstanding its recitals to the contrary, because Texas R.C.P. 240 only authorizes an interlocutory order, and further, that it fails to dispose of all issues and all parties, as required by Texas R.C.P. 301. He argues that under Rule 301 the judgment cannot be final because it fails to dispose of all parties; that the judgment had to be rendered in case number 41754 — A, because that was the case wherein the default occurred; that there is nothing in the record to justify a default judgment in case number 41754-2-A, and that there was no final judgment in number 41754-A because many parties and issues remain undisposed of in that case.

Appellant further contends that assuming a severance was accomplished, nevertheless, the default judgment in the severed case is void because it does not conform to the nature of the case pleaded, as required by Rule 301. He says that orders severing causes should direct that they be docketed under new numbers and the court should instruct the clerk to transfer to the new case the original, or copies, of the pleadings. Appellant says there was no order of severance in either case; that there was a failure to transfer any pleadings to the new case; that no evidence was heard in the severed case and, therefore, the judgment is void for lack of pleadings and evidence.

Severance of the cause of action against Moore from that against the remaining defendants was within the power and jurisdiction of the court. Even if such action were erroneous, the judgment was final and appealable. After learning of the judgment appellant had ample time to appeal by writ of error. Contrary to appellant’s contention, the judgment disposed of all issues between appellant and appellees, the only parties to the severed cause, and it was a final and, therefore ap-pealable judgment. It was not void. In Pierce v. Reynolds, 160 Tex. 198, 329 S.W. 2d 76, 78, the Supreme Court held that a severance was not void because it divided an entire cause of action into two parts. It held that since the trial court had juris- . diction of the subject matter and parties, regardless of how erroneous the trial court’s action in granting the severance may have been, it was within the judicial power of the court to determine that the cause was severable and to sever the same. It held that a judgment which fully adjudicates one • of the severed causes is appealable, even though the entire controversy as it existed prior to the severance is not determined thereby. The court said that a judgment that possesses the attributes of finality cannot be regarded as interlocutory merely because the court erred in ordering a severance which it had the power to grant. We think the judgment of June 23, 1961, determined the controversy between appellant and Mathis, the only parties to the severed cause number 41754-2-A, and that Moore’s legal remedy was a writ of error. The order was for a severance under R.C.P. 41, not for merely a separate trial. “A severance divides the lawsuit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment.” Kansas University Endowment Ass’n. v. King, (Tex.Sup.Ct.), 350 S.W.2d 11, 19. See Permian Mud Service, Inc. v. Sipes, Tex.Civ.App., 339 S.W.2d 81, 83.

In Danciger v. Smith, Tex.Civ.App., 286 S.W. 633, (Writ Ref.), Smith sued Dan-ciger and Oriental Oil Company. The court severed the case as to the two defendants, docketed them separately and rendered judgment against Danciger. Danciger contended the court was without power to enter a final judgment because the other defendant was not disposed of. This contention was held to be without merit. In Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531, it was held that when a severance is granted there may be more than one final judgment. See also Watson v. Watson, Tex.Civ.App., 270 S.W.2d 298, (Ref. N.R.E.).

It was essential that appellant allege and prove as a basis for a bill of review that he was prevented from timely asserting his defense in the default judgment proceeding by fraud, accident or the wrongful act of the opposing party, unmixed with any fault or negligence of his own. Smith v. Ferrell, (Tex.Com.App.), 44 S.W.2d 962, 963. Appellant’s petition for a bill of review did not contain such allegations. It did not show that Moore was prevented from timely asserting his defense by fraud, accident or the wrongful act of Mathis, without fault or negligence on his part. It did not show that he diligently resorted to the legal remedy available to him. The record shows the contrary. The record shows that after appellant learned of the default judgment on August 21, 1961, he waited until November 8, 1962, before seeking a bill of review. For six months after June 23, 1961, appellant had the legal remedy of appeal by writ of error. If the judgment on its face, or as shown by the judgment roll, was void, as appellant contends, his available legal remedy of appeal by writ of error was adequate and effective. In Reynolds v. Volunteer State Life Insurance Company, Tex.Civ.App., 80 S.W. 2d 1087, (Writ Ref.), the insurance company obtained a default judgment against Reynolds. Reynolds learned thereof within six months but did not seek a writ of error. We held that to entitle a litigant to a bill of review he must allege and prove that he has exhausted all adequate legal remedies available to him. The legal remedy of a writ of error was available to appellant. Therefore, he could not allege or prove that essential of a bill of review. We are forced to the conclusion that appellant did not allege facts essential to a bill of review and that the court did not err in refusing the bill of review without hearing evidence thereon. Southern Surety Company v. Texas Oil Clearing House, (Tex.Com.App.), 281 S.W. 1045, 1047; Ruland v. Ley, 135 Tex. 591, 144 S.W.2d 883, 884; Gehret v. Hetkes, (Tex.Com.App.), 36 S.W. 2d 700, 702; Drake v. First National Bank,, Tex.Civ.App., 254 S.W.2d 230, 232; Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111, 112 (Writ Ref.).

It cannot be said that the record discloses invalidity of the default judgment. Jurisdiction of the person and subject matter appear. If it should be conceded that there was error, nevertheless, the judgment was not void. It was essential that appellant allege and prove facts showing that he was prevented from presenting his defense by the extrinsic fraud of appellee and without negligence on his part. Gar-lington v. Wasson, Tex.Civ.App., 279 S.W. 2d 668, 669 (Ref. N.R.E.) ; Elder v. Byrd-Frost, Inc., Tex.Civ.App., 110 S.W.2d 172 and 34 Tex.Jur.2d 559. Appellant was cited and defaulted. He says the judgment is void on its face. That the fact that it is void is shown by the judgment and pleadings. He had the legal right to appeal by writ of error within six months after June 23, 1961. It was an adequate remedy. He knew of the default judgment before October 31, 1961. On that day his first motion to set it aside was overruled. A second such motion was thereafter overruled. Not until November 8, 1962, did he seek a bill of review. In his second amended petition filed on that date he sought, primarily, an injunction against enforcement of the judgment. In the alternative, he asked that a bill of review be granted setting aside the default judgment and, further, that the case against Moore be consolidated with the main case and that they be tried together. In that pleading Moore alleged the judgment was void because (a) it did not dispose of all parties; (b) the law did not permit a severance of the cause alleged by Mathis; (c) no separate pleadings were filed in the severed cause, etc. Moore did not allege that he was prevented from presenting such defense by fraud, accident or the wrongful act of appellee, unmixed with any fault or negligence on his own. In Garcia v. Ramos, Tex.Civ.App., 208 S.W. 2d 111, 112 (Writ Ref.), Judge Murray said:

“Appellants have alleged a good defense to the cause of action, but they have failed to allege facts which show that they were prevented from making such defense, by fraud, accident or the wrongful act of appellees, unmixed with any fault or negligence of their own, as they are required to do before they can secure relief by means of an action in the nature of a bill of review.”

The Supreme Court so held in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998. See also Chapa v. Wirth, Tex.Civ.App., 343 S.W.2d 936. Therefore, the court did not err in refusing to hear evidence as to the alleged meritorious defense. Appellant alleged that he had not been negligent “as reflected by the record.” The record shows he was negligent. “Only if a court has no jurisdictional power to render the judgment should a negligent defendant * * * be able to relieve himself of the burdens and consequences of a default judgment.” McEwen v. Harrison, (Tex.Sup.Ct), 345 S.W.2d 706, 711. He was negligent in permitting the default and in not appealing. The record conclusively shows that appellant knew of the judgment against him in time to have prosecuted a writ of error; he contends that the fact that the judgment is void is shown by the judgment and pleadings. He had ample opportunity within the six months allowed by Article 2255 to file an appeal by writ of error. He did not avail himself of this legal remedy. McEwen v. Harrison, supra. Under the decision of our Supreme Court in Wear v. McCallum, 119 Tex. 473, 33 S. W.2d 723, 724, the pleading was insufficient as a bill of review. The record certainly did not establish that appellant had a right to enjoin enforcement of the judgment.

Appellant’s points have been ably presented but we are forced to the conclusion that reversible error is not shown. They are overruled. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Velma B. CHEATHAM et vir, Appellants, v. COLUMBIA CASUALTY COMPANY, Appellee.
    No. 14098.
    Court of Civil Appeals of Texas. Houston.
    June 20, 1963.
    Rehearing Denied July 11,1963.
    J. B. Sallas, Crockett, for appellants.
    Ramey, Brelsford, Hull & Flock, Tyler; Donald Carroll, Tyler, of counsel, for ap-pellee.
   COLEMAN, Justice.

This suit arose out of a claim for workmen’s compensation. The principal question involved is whether appellee’s sworn denial was sufficiently definite to require proof of the usual jurisdictional facts, i. e., notice of injury, filing of claim, and final award of the Board.

The petition on which appellant went to trial alleged that she had suffered a com-pensable injury when in the course of her work she unexpectedly inhaled large quantities of formaldehyde mist, nylon dust and other chemical substances. In the alternative she alleged that she was constantly exposed to the inhalation of formaldehyde, nylon dust and other chemical substances emanating from the material used by her in connection with her employment by reason of which she was suffering with a form of dermatitis, an occupational disease.

Appellee filed an answer, only three paragraphs of which were verified. These, paragraphs read as follows:

“2.
“Defendant would further say that neither this Defendant nor its insured 'was given or had notice that Velma B. Cheatham was claiming to have received an accidental personal injury within the course and scope of her employment, within thirty days from the date of the occurrence thereof.
“3.
“Plaintiff did not file a claim for workmen’s compensation benefits before the Industrial Accident Board of the State of Texas within six months of the date of the receipt of such injury, and therefore this Court is without jurisdiction.
“4.
“This Court is without jurisdiction, because the Industrial Accident Board has not rendered a final award upon the personal injury allegedly received by Plaintiff, and that consequently no notice of appeal was filed and suit was not timely instituted.”

Paragraphs 5, 6, 7 and 8 of the Answer read as follows:

“5.
“Defendant would further say that, insofar as Plaintiffs’ claim for an occupational disease is concerned, the same does not exist in an acute stage, and did exist in an acute stage, if at all for only a short period of time.
“6.
“If Plaintiff sustained any disability, Defendant would show that any disability has not been and will not be total, but partial only, and has not been and will not be permanent, but temporary only.
“7.
“If Plaintiff sustained any disability, Defendant would show that any such disability she has had or may have in the future was not and will not be due to said facts as plead by Plaintiffs, but was and will be due,, in whole or in part, to a prior or a subsequent injury or injuries, congenital defects, natural causes, or disease, or any combination of two or more of said things.
“8.
“If Plaintiff sustained any partial incapacity, or if she will sustain any partial incapacity in the future, the same has decreased or will decrease in percentage and Plaintiff will have a corresponding increase in her earning capacity.”

Before introducing testimony appellants’ attorney announced in open court that appellant abandoned her claim that she was suffering from “an accidental type injury” and that she would rely solely on her claim that she was suffering from “an occupational type injury or disease.”

No evidence was introduced to show that appellant had filed a claim for compensation with the Industrial Accident Board or that the Board had rendered a final award, although the petition on which appellant went to trial contained the usual jurisdictional allegations.

It is appellant’s contention that no proof of these facts was required by reason of Article 8307b, Vernon’s Ann.Tex.St., because the sworn denial filed by appellee referred only to the allegations of accidental injury and did not refer to the cause of action based on occupational disease.

Appellant’s failure to prove jurisdiction was called to the attention of appellant and the trial court by appellee’s motion for instructed verdict presented at the conclusion of appellant’s testimony, and again at the conclusion of all testimony. Appellee also objected to the charge of the court because of its failure to include issues on timely filing of a claim for compensation. After the verdict of the jury was received the trial court granted appellee’s motion for a judgment non obstante veredicto.

Paragraph 4 of appellee’s answer constitutes a sworn denial that the Industrial Accident Board had rendered a final award “upon the personal injury allegedly received by Plaintiff.” There is nothing in the wording of that paragraph to indicate that the scope of the denial was confined to the allegations of appellant’s petition relating to the accidental inhalation of unusually large amounts of formaldehyde fumes and nylon dust.

Appellant contends that paragraphs 5,, 6, 7 and 8 of appellee’s answer clearly indicate that appellee intended to and did treat appellant’s claim for occupational disease in a separate and distinct category from the accidental injury. While paragraph 5, and possibly paragraph 8, were probably inserted in the answer with reference only to the cause of action for occupational disease, it seems probable that paragraphs 6 and 7 were inserted with reference to both causes of action asserted by appellant. After a consideration of the entire answer, we cannot say that paragraph 4 merely denied that the Board had made a final award on appellant’s claim for compensation by reason of an injury suffered from the inhalation of excessive quantities of dust and fumes, and did not constitute a denial that the Board had made a final award on her claim for compensation based on occupational disease.

This position is further strengthened by . the fact that Article 8306, Sec. 20, V.A.T. S., provides:

.“Wherever the terms ‘injury’ or ‘personal injury* are used in the Workmen’s Compensation Law of this state, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. Unless from the context the meaning is clearly to the contrary, such terms shall also be construed to mean and include occupational diseases, as hereinafter defined. The following diseases only shall be deemed to be occupational diseases : * *

A laywer, in pleading a case arising under the Workmen’s Compensation Act, may assume that words used in his pleading, which are defined in the Act, will be given the statutory definition unless it can be determined that such meaning was not intended. In paragraph 4 of appellee’s answer it cannot be determined from the context in which the words “personal injury” are used that appellee clearly did not intend that injury caused by occupational disease be excluded.

Rule 93 (n) (3) and (7) Texas Rules Civ.Proc., requires, in a case where a plaintiff’s allegation that the Board has made a final award is denied under oath that such an award be proved. Since in this case appellant introduced no evidence that the Board had rendered a final award, the trial court did not err in entering a judgment for appellee.

The judgment of the trial court is affirmed.