text:
    M. Russ LIGHT, d/b/a American Insurance Agency, Appellant, v. TRANSPORT INSURANCE COMPANY et al., Appellees.
    No. 16934.
    Court of Civil Appeals of Texas. Dallas.
    July 14, 1967.
    Rehearing Denied Sept. 29, 1967.

      James H. Holmes, III, of Burford, Ry-burn & Ford, L. W. Anderson, of Harris, Anderson, Henley, Shields & Rhodes, Dallas, for appellant.
    Chilton Bryan, Houston, for appellees.
   BATEMAN, Justice.

This appeal involves only the question of venue as to certain defendants. The appellant M. Russ Light, a local recording insurance agent doing business in Dallas, Texas, brought this suit in the district court of Dallas County against Transport Insurance Company, a Texas corporation residing in Dallas County, herein called “Transport,” and Excess House, a partnership, and its partners, all of whom reside in Harris County, claiming damages for wrongful interference with the insurance business relations existing between appellant and H. S. Anderson Trucking Company. Liability is asserted on two grounds: (1) that the defendants conspired to entice appellant’s said customer away from him by offering it insurance protection for a much smaller premium, which they could do only by violating certain orders of the State Board of Insurance and the Insurance Code of Texas, and (2) that such acts of the defendants constituted unfair competition and a combination in restraint of trade in violation of Vernon’s Ann.Civ.St., Art. 7426.

The defendants, Excess House and its individual partners, filed a plea of privilege to be sued in Harris County, which was controverted on the grounds that the district court of Dallas County had venue of the entire case under subdivisions 4 and 9 of Art. 1995, V.A.C.S. The court, sitting without a jury, sustained the plea of privilege and in the order found specifically that appellant had failed to prove a cause of action against any of the defendants. We affirm.

Subdivision 4 of Art. 1995, V.A. C.S., provides that if two or more defendants reside in different counties the suit may be brought in any county where one of the defendants resides. Under this exception to the general rule that a defendant is entitled to be sued in the county of his residence, it was incumbent on appellant Light to allege and prove that he had a cause of action against Transport and to allege a joint cause of action against both defendants or causes of action against them so intimately connected that the two should be joined “under the rule intended to avoid a multiplicity of suits”. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477 (1952).

Appellant contends, not only that his proof brought the case within subdivision 4, but that it also showed that both defendants jointly conspired to violate the Insurance Code as well as the anti-trust laws of Texas, which illegal acts constituted a “crime, offense or trespass” committed in Dallas County within the purview of subdivision 9, of Art. 1995, V.A.C.S., thus authorizing venue in Dallas County. To bring the case within this exception, it was necessary for appellant to plead and prove that appellees committed a crime, offense or trespass in Dallas County proximately causing, or contributing to cause, the loss to appellant of the business in question. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935).

Appellant had for several years written the comprehensive general liability and automobile liability insurance of H. S. Anderson Trucking Company, a resident of Jefferson County, Texas, in Bituminous Casualty Company. The limits of liability under the Bituminous policy were $100,000 for each person and $300,000 each accident, as respects bodily injuries, and $25,-000 each accident as respects property damage; such limits being hereafter shown for convenience as “$100,000/$300,000/$25,000.”

There was much evidence of numerous conferences and correspondence resulting in a new program of insurance for H. S. Anderson Trucking Company. The new plan embodied primary coverage in a policy issued by Transport which had a “combined single limit” of $10,000, supplemented by “excess” insurance of $990,000 written by Lloyd’s Underwriters of London, England. The general idea of such a plan apparently originated in conferences between Anderson and certain local insurance agents in Beaumont, Texas. It was first proposed to and rejected by Pan American Insurance Company before Excess House was approached. Mr. Miller, the representative of Excess House who acted for it, then discussed the plan with an official of Transport, who discussed it with Light and endeavored to interest Light in participating in it. Light declined to do so and informed the Transport official that regulations of the State Board of Insurance of Texas prohibited an admitted or licensed company from writing such a policy, involving excess coverage written by foreign, nonadmitted companies, unless the limits of the primary policy were at least $100,-000/$300,000/$25,000, provided there was an admitted company willing to write the primary insurance on that basis.

The insurance was nevertheless written on the new plan, and Light filed a complaint with the Board of Insurance. After a hearing the Board ordered Transport to increase its limits to $100,000/$300,-000/$25,000, which it did, and the limits of the “excess” policies were correspondingly reduced.’ Appellant Light says that these facts clearly show a violation by Transport of Sec. 2(c) of Art. 21.38, Insurance Code, V.A.C.S., and Art. 7426, V.A.C.S., as it pertains to insurance.

We shall refrain from discussing or passing on whether the facts proved at the venue hearing established a violation of either of the said statutes by either of the defendants, for to do so might improperly prejudice the rights of the parties on the trial of the merits of the cause. There was testimony, which the trial court had every right to believe, to the effect that H. S. Anderson, president and owner of H. S. Anderson Trucking Company, had become dissatisfied with the service Light was providing and felt that he would be better served if he had an insurance agent in the Beaumont-Port Arthur area, with whom he could consult at more frequent intervals concerning his coverage and the handling of his losses. He even asked the Bituminous Company’s branch manager if the company could write his business through an agent other than Light and was informed that this could not be done. He also complained that the Bituminous Company had not given him full, proper or sufficient safety engineering service. Moreover, he did not like the fact that it had changed the original plan of handling claims. Also, Anderson wanted certain additional insurance protection which Bituminous could not or would not provide.

This evidence was sufficient to support the order sustaining the plea of privilege. The rule governing our disposition of this appeal is thus stated in Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953):

“If * * * there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal.”

In testing the probative force of the evidence, we are constrained to discard all adverse evidence and give credit to all evidence supporting the order, indulging every legitimate inference and conclusion in support thereof. Banks v. Collins, supra; Winiger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150 (1912). The trial court may have concluded that Light lost Anderson’s business, not because of any acts of the defendants, legal or illegal, but because of Anderson’s dissatisfaction with the service he had been receiving from Light and Bituminous, and the inconvenience of dealing with an agent several hundred miles away, or because Light and Bituminous failed to afford him all the insurance protection he felt his trucking company should have. The evidence was amply sufficient to support such a conclusion, wholly without regard to the question of whether the defendants acted illegally; in fact, without regard to anything done by the defendants. Therefore, the order appealed from is

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James E. WILKINSON, Appellant, v. Lulse B. WILKINSON, Appellee.
    No. 17040.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1967.

      James E. Wilkinson, pro se.
    Wm. Andress, Jr., of Andress, Woodgate & Condos, Dallas, for appellee.
   OPINION ON APPELLEE’S MOTION TO DISMISS

PER CURIAM.

Appellee has filed her motion to dismiss this appeal because the record was not timely filed in this court.

The facts are undisputed. The cause came on for trial before the court and a jury on September 19, 1966. Thereafter on September 23, 1966 the jury returned its verdict which was in all things favorable to Luise B. Wilkinson. Judgment based upon this jury verdict was signed and entered by the court on April 11, 1967. Within ten days thereafter, on April 19, 1967, James E. Wilkinson filed his motion for new trial. This motion was never amended. From the record it is apparent that the trial court heard the motion for new trial on June 1, 1967 but no order was signed and entered overruling same until June 13, 1967. The record was filed in this court on August 11, 1967.

Rule 329b, Texas Rules of Civil Procedure, provides that the motion for new trial must have been determined within not exceeding 45 days after the filing date thereof, unless such time was extended by written agreement of the parties. There was no such written agreement of the parties postponing the decision of the court in this case. The 45-day period expired on June 3, 1967 but since that date fell on a Saturday the time was extended by operation of law until Monday, June 5, 1967. The 60 days allowed by Rule 386, T.R.C.P., for filing the record in this court expired August 4, 1967. No extension of time for filing the record was requested pursuant to Rule 386, T.R.C.P.

Appellant, in his reply to the motion to dismiss, first argues that the motion for new trial was not overruled by operation of law but was really overruled by the trial court on June 13, 1967. This contention cannot be sustained for the simple reason that the action on the part of the trial court in signing the order on June 13, 1967 was of no force and effect. When the court permitted the 45-day period to expire without entering an order any effort made thereafter was of no legal effect. The identical question was decided by the San Antonio Court of Civil Appeals in the recent case of Alamo Federal Credit Union v. Celedon, 415 S.W.2d 717 (Tex.Civ.App., San Antonio 1967). There the court said:

“It is settled that where no order overruling a motion for new trial is signed by the trial court prior thereto, the motion is overruled by operation of law forty-five days after it is filed, and any order entered thereafter purporting to overrule said motion is a nullity. Washington v. Golden State Mutual. Life Ins. Co., Tex.Civ.App., 405 S.W.2d 856, writ ref’d, 408 S.W.2d 227 (Tex.Sup.1966); Nickel v. Anderson, Tex.Civ.App., 399 S.W.2d 220, no writ; Rainey v. Isenberg, Tex.Civ.App., 349 S.W.2d 733, no writ; Luc-chese v. Specia, Tex.Civ.App., 281 S.W. 2d 725, writ ref’d.”

Appellant next asserts that if the filing date in this court was August 4, 1967 that he was unable to file his record prior to that time due to circumstances beyond his control. However, no motion was filed in this court within the time prescribed by Rule 386, T.R.C.P., requesting an extension of time so obviously this plea may not now be considered.

Finally, appellant argues that ap-pellee’s attorney had entered into an agreement with him to extend the time for filing the record in this case. Even if such an agreement had been made the same would be of no force and effect for the simple reason that the filing of the record within 60 days, or the timely filing of a motion for an enlargement of such time, as required by Rule 386, T.R.C.P., is mandatory and jurisdictional. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Angelina County v. McFarland, 374 S.W.2d 417 (Tex.Sup.1964). Parties cannot by agreement confer jurisdiction upon an appellate court. 15 Tex.Jur.2d, § 55, p. 483. Where jurisdiction in a particular case does not exist, it may not be conferred on the court by stipulation or agreement of the parties nor may it be waived by the court or the parties. Armstrong v. West Texas Rig Co., 339 S.W.2d 69 (Tex.Civ.App., El Paso 1960); Gibbs v. Melton, 354 S.W.2d 426 (Tex.Civ.App., Dallas 1962).

Inasmuch as appellant is a layman and representing himself we have reviewed this record with great care but having done so we find no legal basis for jurisdiction. Since the case is not properly here, we sustain appellee’s motion to dismiss.

The cause is dismissed.


author: CLAYTON, Justice.

text:
    Maxwell BURKET et al., Appellants, v. DELAWARE DRILLING CORPORATION et al., Appellees.
    No. 5852.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 6, 1967.
    Rehearing Denied Oct. 11, 1967.
    Wm. Robert Smith, San Antonio, for appellants.
    Pat Maloney, J. C. Grossenbacher, Jr., San Antonio, Marion J. Borchers, New Braunfels, Murray J. Howze, Monahans, for appellees.
    Carl Raymond Crites, San Antonio, for amicus curiae.
   OPINION

CLAYTON, Justice.

This suit was originally brought as a Trespass to Try Title action by the Delaware Drilling Corporation against Maxwell Burket; Maxwell Burket, Trustee; Insitu Oil, Inc.; James Wheat; Eloise Wheat Moorhead and R. O. Moorhead. Trial was actually had on Plaintiffs’ Third Amended Original Petition in which plaintiffs (appellees here) were Delaware Drilling Corporation; Fred Bell, Jr., Assignee and Trustee and as Independent Executor of the Estate of Frederick F. Bell, Sr., Deceased, father of Fred Bell, Jr.; and in behalf of Trina Jonas and Trina Jonas joined by her husband, Romeo Jonas, and Fred Bell, III. Defendants were Maxwell Burket, Maxwell Burket, Trustee, and Insitu Oil, Inc., who are the appellants here.

Further trial pleadings were: Defendants’ Fourth Amended Original Answer and Third Amended Original Cross-Action; Plaintiffs’ Second Supplemental Petition; and Reply to Defendants’ Fourth Amended Original Answer and Third Amended Original Cross-Action.

The property involved is the ownership of a 75% or % working interest in an oil and gas lease covering a 20-acre drilling unit with a producing oil well thereon located near Mentone, Loving County, Texas described in a farmout letter of June 10, 1964 from James Wheat, Eloise Wheat Moorhead and R. O. Moorhead to Insitu Oil, Inc., attention of Trina A. Jonas and accepted by Insitu Oil, Inc., through Trina A. Jonas, President, on June 15, 1964, under the terms-of which farmout agreement the working interest was acquired.

Separate pleas of intervention were filed by Russell Wine, Receiver of Delaware Drilling Corporation; Lorene Offer as next friend of her minor son, Russell Bell, Jr., named as an heir in the will of Frederick F. Bell, Sr.; Russell A. Bell, a son and heir of Frederick F. Bell, Sr. and J. C. Grossenbacher, Jr., Temporary Guardian of the Person and Estate of Lillian Bell, non compos mentis and widow of Frederick F. Bell, Sr. All intervenors but Wine filed motions for separate trial of the issues raised by intervention from those involved in the principal suit, and the principal suit was tried to a jury with the plaintiffs, defendants and Wine as the parties thereto.

Judgment adverse to appellants based on jury findings was entered by the court, from which this appeal is taken.

In 36 Texas Law Review 339 under the Comment on Severance and Separate Trial, in Texas, by Robert A. Hall, the statement is made: “(4) The disposition of a severed cause of action may be a final judgment which may be enforced or appealed, but the termination of a separate trial of issues is evidenced by an interlocutory order of the court which is not a final judgment and from which no appeal lies.” This article cites us to Sterett v. Dyer, 230 S.W.2d 461 (Tex.Civ.App., 1950; ref.) which holds:

“ * * * We do not believe that by adoption of this rule [Rule 174b] it was intended an appeal would lie from the separate trial of claims or issues as authorized by it unless same resulted in a final judgment. The rule does not by use of any language mention or refer to appeal from the judgment or order made in such hearings or trials. We must conclude therefore that such rule does not confer the right of appeal from such judgments or orders, unless they are final or unless such right exists under our established laws. To hold otherwise would subject the appellate jurisdiction of our courts to innumerable appeals from trials of issues thus separated for and on the basis of convenience in the trial court, which would be determined alone by the trial courts.”

This rule is as follows:

“Rule 174. Consolidation; Separate Trials
(a) * * *
(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, coúnterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

A more recent expression on the subject is found in North East Independent School District v. Aldridge, Tex., 400 S.W.2d 893, 897 (S.Ct., 1966):

“ * * * Analysis of the decisions we have discussed is sufficient to lead us to the statement of a rule for determining, in most instances, whether judgments in which parties and issues made by the pleadings are not disposed of in express language are, nevertheless, final for appeal purposes. When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order- for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.” (Emphasis supplied).

This language is quoted in State v. Starley, 413 S.W.2d 451 (Tex.Civ.App., 1967; n. w. h.). The judgment in the case before us appears to be “intrinsically interlocutory in character” by use of the following language:

“And came the Plaintiffs, DELAWARE DRILLING CORPORATION, FRED BELL, JR., As Assignee and Trustee; TRINA JONAS and husband, ROMEO JONAS, and FRED BELL, III, in person and by their attorneys of record and announced ready for trial. And came the Defendants-Cross-Plaintiffs, INSITU OIL, INC., MAXWELL BURKET, Individually and MAXWELL BURKET, Trustee, in person and by their attorneys of record and announced ready for trial, subject to Motion for Continuance due to absence of R. O. Moorehead, which Motion was overruled by the Court; And it appearing that the interests of Intervenors herein have heretofore been ordered by the Court to be tried separately and apart from the claims of the Plaintiffs-Cross-Defendants and the claims of the Defendants-Cross-Plaintiffs, the case proceeded to trial.
* * * * * *
“4. * * * the interests of said In-tervenors having heretofore been severed and ordered tried separately by this Court.” (Emphasis supplied).

The judgment of the court is based upon the following expressions in the pleadings and order in the record, i. e.:

By the plaintiffs’ Motion for Separate Trial of Issues Raised by Pleadings in Intervention :

“Come now the Plaintiffs in the above entitled and numbered cause, and file this, their Motion for Separate Trial of the Issues Raised by Pleading in Intervention filed herein by Marion J. Borchers, Guardian of the Estate of Lillian Bell, N.C.M. * * *”;

By Marion J. Borchers on behalf of Russell A. Bell, a son and heir of Frederick Franklin Bell, Sr., Deceased:

“WHEREFORE, your Intervenor prays that this cause of action be tried before a Jury, that upon the conclusion of the said trial, that the rights of all parties herein be determined, and that the money or property adjudged to belong to the said FREDERICK FRANKLIN BELL, JR. and the other parties Plaintiff herein, be held in the registry of the Court until such time that a final judgment be entered herein, and that no final judgment be entered herein, pending a final determination of the rights of the parties by the District Court of Bexar County, Texas, and that the Judgment be only rendered upon due proof of such findings being filed with the Clerk of this Court and with the Judgment this is finally entered herein.”;

By J. C. Grossenbacher, Jr., Temporary Guardian of the Person and Estate of Lillian Bell, N.C.M. to succeed Marion J. Borchers:

“WHEREFORE, premises considered, Intervenor prays that upon a trial of this cause, no judgment be entered by the court unless and until the interests of the estate of Lillian Bell, N.C.M. in the subject matter of this suit have been determined either by separate hearing in this court, or by appropriate action of the District Court or Probate Court of Bexar County, Texas.”;

By J. C. Grossenbacher, Jr.: “Motion of Intervenor, J. C.. Grossenbacher, Jr. for Separate Trial of Issues”:

“Now comes J. C. Grossenbacher, Jr., Temporary Guardian of the Person and Estate of Lillian Bell, N.C.M., Inter-venor, and in the above entitled and numbered cause, and files his motion for separate trial (under Rule 174, Rules of Civil Procedure) of issues raised by his Application of Intervention, and the pleadings in intervention filed by other parties in this cause, in connection with the Estate of Lillian Bell, N.C.M., and the Estate of Frederick Bell, Sr., Deceased, * * * ”
“WHEREFORE, premises considered, movant prays that the motion for separate trial of the claims of the Estate of Lillian Bell, N.C.M. and the Estate of Frederick Bell, Sr., Deceased, be granted.”;

Order for Severance by the Court, as agreed by all parties to this cause:

“BE IT REMEMBERED that on this 28th day of May, 1965, came on to be heard the Joint Motion for Severance of all parties hereto as to the Defendants James Wheat, Eloise Wheat Moorhead and R. O. Moorhead * * *
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that there is severed herefrom as a separate cause on this docket this cause of action as to the Defendants James Wheat, Eloise Wheat Moorhead and R. O. Moorhead * * *
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that this separate cause ordered hereby shall be a separate cause and shall have Cause No. 10,667-A in the District Court of Ward County, Texas, and Cause No. 465-A in the District Court of Loving County, Texas, and shall have the same papers and records of the original cause from which same was severed for a separate cause, and costs of this severed cause, for this Order and subsequent matters shall be separate.”

Also worthy of note is Angerstein v. Angerstein, 389 S.W.2d 519, 521 (Tex.Civ.App., 1965; n. w. h.) :

“A separate trial on one or more of the issues in a suit, as contemplated by Rule 174, T.R.C.P., results in an interlocutory, non-appealable order determining the claims or issues so tried, but there can be only one final judgment, to be entered after all [emphasis supplied] claims and issues involved in the suit have been tried. Kansas University Endowment Assn. v. King, supra [162 Tex. 599, 350 S.W.2d 11] ; Hall, Severance and Separate Trial in Texas, supra; Rule 301, T.R.C.P. The order entered by the trial court in the instant cause does not dispose of all issues in the case, and is interlocutory, and not a final judgment. Sterett v. Dyer, Tex.Civ.App., 230 S.W.2d 461, writ ref.; Restelle v. Williford, Tex.Civ.App., 364 S.W.2d 444; Fleming v. Fleming, [Tex.Civ.App.,] Tex.Civ.App., 203 S.W.2d 989.”

We have arrived at the conclusion that the judgment in the case before us is not a final judgment but is interlocutory in nature and that this appeal therefrom must be dismissed for lack of jurisdiction. This we must do, regardless of whether an assignment of error was presented to us on this phase of the case or not.

We accordingly dismiss this appeal until a judgment has been entered by the trial court which disposes of all issues and all parties and is therefore final.


author: TUNKS, Chief Justice.

text:
    CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v. George W. JACKSON, Sr., Appellee.
    No. 2.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Sept. 13, 1967.
    Rehearing Denied Oct. 11, 1967.

      James R. Coffee, Houston, and Baker, Botts, Shepherd, & Coates, Houston, of counsel, for appellant.
    Phelps, Kilgarlin & Snell, and Jim S. Phelps, Houston, for appellee.
   TUNKS, Chief Justice.

This is a Workman’s Compensation case.

The principal question involved is the construction of Article 8306, Section 12c of the Texas Workmen’s Compensation Act.

In the trial court the jury found that an accidental injury sustained by the appellee (hereinafter called plaintiff) on May 22, 1959, was a producing cause of 96 weeks of total incapacity followed by permanent partial incapacity. The jury found that before the May 22, 1959 injury, plaintiff had an average daily wage of $26.00 and that during the period of plaintiff’s partial incapacity, he had an average weekly wage earning capacity of $100.00. The difference between the average weekly wage before the injury (computed under Article 8309, Section 1, at $150.00) and the wage earning capacity during the period of partial incapacity, was thus found to be $50.00 per week.

Special Issue No. 11 submitted to the jury was in the following language: “Do you find from a preponderance of the evidence that the prior injury of June 14, 1952, has not contributed to the incapacity, if any, of George W. Jackson?”

To such issue the jury answered: “It has contributed.”

Special Issue No. 12 was in the following language: “If you have answered Special Issue No. 11 ‘It has contributed’, and only in that event, then answer: SPECIAL ISSUE NO. 12, “What do you find, from a preponderance of the evidence to be the percentage that such prior injury has contributed, if any, to plaintiff’s incapacity, if any?”

To such issue the jury answered: “7%.”

In Special Issues Nos. 13 through 18, the court, in similarly worded issues, made inquiries concerning three other injuries sustained by the plaintiff before May 22, 1959. As to two of those other three prior injuries, the jury found that each had contributed 7% to the plaintiff’s incapacity and that the third had so contributed 4%, thus the total contribution from the four prior injuries “to plaintiff’s incapacity” was found to be 25%.

Not only the May 22, 1959 injury, but also all four of the prior injuries sustained by plaintiff were injuries of a character described in the Texas Workmen’s Compensation Act as general injuries.

The May 22, 1959 injury and each of the four prior injuries inquired about were sustained by plaintiff while within the scope and course of his employment for Sinclair Refining Company and on the occasion of each of the five injuries, the appellee (hereinafter called defendant) was the compensation carrier for such employer.

The trial court entered judgment for the plaintiff, based upon the jury’s verdict and its own finding as to the payment by the defendant of 52 weeks of compensation at $35.00 per week, allowing plaintiff a recovery for 44 weeks of total incapacity at the rate of $35.00 per week and a recovery for 300 weeks for partial incapacity at the rate of $30.00 per week. The judgment of the trial court likewise provided that past due payments should draw interest at the rate of 6% per annum.

The trial court, therefore, disregarded the jury’s findings to special issues 11 through 18 which special issues related to plaintiff’s prior injuries and the contribution of those injuries to the plaintiff’s incapacity.

Neither party here challenges the sufficiency of the evidence to support the jury’s verdict. Rather, each party here attacks the substance of the trial court’s judgment and seeks to have it reformed, and, as so reformed, affirmed.

As to the controversy between the two parties concerning the construction of Section 12c of the Texas Workmen’s Compensation Act, it is the contention of the defendant that the trial court should have given effect to the jury’s verdict concerning the contribution to the plaintiff’s incapacity made by the prior injuries, and that the compensation rate allowed plaintiff during the 300 week period of partial incapacity should have been in the amount of $7.50 per week. The plaintiff contends first that the trial court correctly disregarded the jury’s findings concerning the prior injuries and their contribution to his incapacity, and, alternatively, contends that if those findings be given effect, the compensation rate of the plaintiff during the period of his partial incapacity should be in the amount of $22.50 per week.

We shall first examine the question as to whether or not the jury’s findings concerning the prior injuries and their contribution to plaintiff’s incapacity shall be given any effect.

It is plaintiff’s contention that the “second injury defense” is available to the defendant in a Workman’s Compensation case only when there are successive compen-sable specific injuries as those specific injuries are identified in Article 8306, Section 12, Vernon’s Annotated Texas Statutes. On the other hand, the defendant contends that where the litigation involves compensation for a general injury, such defense is available on the occasion of plaintiff’s having sustained any prior com-pensable injury, general or specific. As to this controversy, the trial court sustained the position of the plaintiff. We sustain the position of the defendant.

Before 1947, Section 12c, the second injury statute, read as follows: “If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association (Texas Employers’ Insurance Association) shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.

Both parties here agree that in those cases discussing the second injury defense before 1947, it was uniformly held that in a claim for compensation based upon a general injury, the defendant was entitled to show, as a defense, the extent to which a prior compensable injury had contributed to the claimant’s incapacity.

In 1947, Section 12c was amended by adding the following language: “ [P] rovided that there shall be created a fund known as the ‘Second-Injury Fund’ hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries.”

At the same time, Section 12c-l was enacted as follows: “If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye becomes permanently and totally incapacitated through the loss or loss of use of another member or organ, the association shall be liable only for the compensation payable for such second injury provided, however, that in addition to such compensation and after the combination of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for the total permanent incapacity out of the special fund known as ‘Second-Injury Fund,’ hereafter defined.”

At the same time, Section 12c-2 and Section 12c-3 were enacted, but since they merely provided for the manner in which the second injury fund was to be established and maintained, they are not relevant to this opinion.

Plaintiff cites the case of Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961) as authority for his position to the effect that, where the claim for incapacity is based on a general injury, no deduction from the incapacity produced should be made because prior compensable injuries contribute to that incapacity. That case was one in which the plaintiff sought to recover from the Second Injury Fund for his permanent partial incapacity produced by a series of injuries, some of which were general and some specific.

The Court simply held that recovery from the Second Injury Fund may be had only in that situation where successive specific injuries produce total incapacity. Certain language of the opinion indicating that Section 12c is limited to specific injuries clearly refers to that portion of Section 12c which creates the cause of action against the Second Injury Fund. It has no reference to that portion of Section 12c which creates the second injury defense.

The following authorities support the proposition that where a claim for compensation under the Texas Workmen’s Compensation Act is based upon an incapacity of which a general injury was a producing cause, a deduction should be made from that incapacity to the extent that other compen-sable injuries have contributed to it. Sowell v. Travelers Insurance Co., 374 S.W.2d 412 (Tex.Sup.Ct., 1964); St. Paul Fire & Marine Insurance Co. v. Murphree, 347 S.W.2d 817 (Tex.Civ.App., Amarillo, 1961, affirmed, 163 Tex. 534, 357 S.W.2d 744); Aetna Casualty & Surety Co. v. Depositer, 393 S.W.2d 822 (Tex.Civ.App., Corpus Christi, 1965), error refused, n. r. e.

The judgment must, therefore, be reformed so as to give effect to the jury’s findings that the prior compensable general injuries suffered by the plaintiff contributed 25% to his incapacity.

There remains the question as to the formula to be used in determining the amount by which plaintiff’s recovery is to be reduced because his prior compensable injuries contribute to his incapacity. The language of that portion of Section 12c creating the defense does not clearly provide an answer to that question. In such a situation, necessitating a judicial construction of the Workmen’s Compensation Act, the Texas Supreme Court has uniformly held that the Act should be liberally construed in favor of the injured workman. Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154 (1960); Texas Employers Insurance Association v. Holmes, 145 Tex. 158, 196 S.W.2d 390; Second Injury Fund v. Keaton (supra).

In the language of Section 12c, the second injury defense is available when the prior injury contributes to “a condition of incapacity.” The extent of any “condition of incapacity” which is less than total is, under Section 11 of Article 8306, represented by the dollar and cent figure arrived at by deducting from the plaintiff’s average weekly wage before the injury and the amount of his average weekly wage earning capacity after the injury.

Plaintiff’s partial incapacity stated in terms of dollars and cents, as required by the Act, is $50.00 per week. His prior compensable injuries contributed 25% of that partial incapacity. Under Section 12c defendant is not required to pay compensation for that part of his incapacity contributed by his prior compensable injuries. To give effect to the second injury defense, that $50.00 per week figure must be reduced by 25%. Thus the partial incapacity for which plaintiff is entitled to compensation from defendant is, stated in dollars and cents, $37.50 per week. Sixty percent of $37.50 is $22.50, the weekly compensation rate to which plaintiff is entitled during the compensable period of his partial incapacity.

In Jones v. Travelers Insurance Co., 374 S.W.2d 779, (Tex.Civ.App.) error ref., n. r. e., the jury found that the plaintiff sustained temporary total incapacity followed by permanent partial incapacity. It was stipulated that plaintiff’s average weekly wage was $91.40. The jury found that his wage earning capacity, during the period of his partial incapacity, was $81.00. The jury also found that other compensable injuries contributed 10% to his incapacity. Thus, the facts presented the exact question we have here. As to the computation of plaintiff’s compensation rate during his partial incapacity, the court said: “The plaintiff will recover 90% of 60% of the difference between $91.40 and $81.00, for a period of 300 weeks, which is $1,686.00, less the usual discount, for partial permanent incapacity.”

During the period of plaintiff’s total incapacity, his incapacity, stated in dollars and cents, was $150.00 per week — the difference between his average weekly wage of $150.00 before the injury and his average weekly wage earning capacity of no dollars per week for 96 weeks after his injury. Since 60% of $150.00 per week exceeds the maximum compensation rate of $35.00 per week, the court’s allowance of the maximum rate during that unpaid portion of the period of his total incapacity is consistent with our computation of his compensation rate during his partial incapacity.

The defendant submits a different proposed formula for computing the compensation rate by which plaintiff is to be paid during the period of his partial incapacity. It is the defendant’s contention that the 25% adjustment for contribution from prior injuries should be applied to the $150.00 figure found by the jury to represent the average weekly wage of plaintiff before his May, 1959 injury. If this formula were followed, $37.50 would be deducted from the $150.00, leaving a balance of $112.50. Then, defendant says, there should be deducted from the $112.50, the sum of $100.00, plaintiff’s average weekly wage earning capacity, as found by the jury, during his period of partial incapacity. That would leave a balance of $12.50. Then, by applying the statutory 60% figure to the $12.50 remaining, a weekly compensation rate in the amount of $7.50 would result. Such, says the defendant, is the amount to which the plaintiff is entitled under the jury’s verdict during the period of his partial incapacity.

Defendant cites in support of its position the case of Aetna Casualty & Surety Co. v. Depoister, 393 S.W.2d 822 (Tex.Civ.App.), error refused, n. r. e. In that case, the jury found that the accidental injury which was the subject matter of the law suit, was a producing cause of total incapacity. • Also, in that case, the jury found that other com-pensable injuries contributed 12% to the incapacity sustained by plaintiff.

There was, in the Depoister case, a question as to the amount of plaintiff’s average weekly wage before his injury. The court said: “* * * Nevertheless, the same ultimate result is reached whether we use, as a basis of judgment, an average weekly wage of $80.00 per week, or $126.92.

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$42.24 being in excess of $35.00 compensation rate, the judgment was properly calculated at $35.00 per week for 401 weeks * * *» «* * * We feel that our conclusion that the 12% contribution to the present incapacity of appellee by the prior injuries should be deducted from the average weekly wages before computing the compensation rate is supported by the following authorities: Associated Indemnity Corp. v. McGrew, Tex.Comm.App., 138 Tex. 583, 160 S.W.2d 912; Texas Employers’ Insurance Ass’n. v. Upshaw, Tex.Civ.App., 329 S.W.2d 144, writ ref., n. r. e; Traders & General Insurance Co. v. Robinson, Tex. Civ.App., 222 S.W.2d 266, writ ref. * * *”

As we have stated above, the use of the figure representing the plaintiff’s average weekly wage before injury, during total incapacity, is the same as the figure representing the extent of his incapacity. Thus, in making the adjustment as to the percentage which his other injuries have contributed to his incapacity, it is proper to use that figure. Such procedure is not inconsistent with that which we here use in computing plaintiff’s compensation rate during his partial incapacity. We have carefully examined the authorities on this point cited in the Depoister case and nothing in them is inconsistent with our holding here.

The defendant’s counsel, in oral argument, suggested as another alternative formula for computation, that the 25% be deducted from the compensation rate, itself. Here that computation would produce the same result as ours during the period of plaintiff’s partial incapacity (or in any other situation where the plaintiffs compensation rate was less than the maximum), because deducting 25% from $30.00 per week still results in $22.50 per week. But it would make a difference in the computation of the rate to which plaintiff was entitled during the period of his total incapacity because it would result in the reduction of his compensation rate during such period from $35.00 to $26.25 per week. The court in Aetna Casualty & Surety Co.' v. Depoister (supra), cited by defendant, rejected such a proposal as defendant here makes.

The use of such suggested formula would be contrary to the rule, noted above, to the effect that the Workmen’s Compensation Act should be construed liberally in favor of the injured workman.

We therefore hold that plaintiff is entitled to compensation at the rate of $22.50 per week during the compensable period of his partial incapacity.

The parties submitted to the judge, on testimony heard out of the presence of the jury, the question as to the payment by the defendant of part of the accrued compensation. A witness identified as a custodian of the records of defendant was asked to read from the company ledger sheets (not offered in evidence) information as to the number of weeks of compensation paid to plaintiff. Plaintiff’s counsel objected on the ground that the ledger sheets themselves were the best evidence. Such objection was overruled and the witness testified that 52 weeks had been paid. The propriety of the trial court’s ruling in that respect need not be decided because the record shows that the witness was later asked a direct question as to the amount of compensation paid and, without objection, answered “$1,830.00.” This figure exceeds, by $10.00, the allowance for payment made by the trial court.

Even if there were error in permitting the witness to read from the ledger sheets, the later testimony as to the amount paid would support the court’s findings. The matter was not tried to the jury and under such circumstances it is presumed that the court did not consider any inadmissible evidence in making its findings. Stevens Brothers v. Mills, 336 S.W.2d 921 (Tex.Civ.App.) error ref., n.r.e., Rule 434 Texas Rules of Civil Procedure. The court therefore properly allowed defendant credit for the 52 weeks of compensation which it found had been paid by the defendant.

The defendant asks that the judgment of the trial court be reformed insofar as it allowed a recovery of 6% interest on past due installments of compensation. The transcript shows.that after the verdict was received, counsel for defendant tendered to the court a proposed form for judgment. That proposed form for judgment bore the signature of counsel for defendant under the words “approved as to form.” That proposed form for judgment had language concerning the allowance of interest in the exact form which appeared in the final judgment signed by the judge.

The transcript likewise shows that counsel for plaintiff tendered to the court three alternative proposed forms for judgment and that in each of those forms is the same language with reference to interest as ultimately appeared in the signed judgment was used.

In a compensation case, the judgment should provide for interest on accrued payments at the rate of 4% per annum, compounded annually. General Accident Fire & Life Assur. Corp. v. Camp., Tex.Civ.App., 348 S.W.2d 782 (no writ history); Texas Employers’ Insurance Association v. Elder, 274 S.W.2d 144 (Tex.Civ.App. affirmed, 155 Tex. 27, 282 S.W.2d 371); General Insurance Corp. v. Handy, 267 S.W.2d 622 (Tex.Civ.App.) error ref., n.r.e., Article 8306a Vernon’s Annotated Texas Statutes.

We do not believe that the plaintiff’s counsel in merely approving the form for judgment “as to form” so invited the error on the part of the trial court as to be estopped from here asserting such error. Particularly is this true where both parties are seeking to have the trial court’s judgment reformed in such a manner as to comply with the law.

The appellant’s point of error in this respect is sustained.

The judgment of the trial court is reformed in such a manner as to provide for the recovery by plaintiff of compensation at the rate of $35.00 per week for 44 weeks, the unpaid portion of his period of total incapacity, to provide for the recovery by plaintiff of $22.50 per week for a period of 300 weeks, the period of his compensable partial incapacity, and for interest at the rate of 4% per annum, compounded annually. As so reformed, the judgment of the trial court is affirmed.

It is further ordered that one-half of the cost of appeal in this case be adjudged against each of the parties.


author: CLAUDE WILLIAMS, Justice.

text:
    PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Kenneth Edward GIBSON, Appellee.
    No. 16931.
    Court of Civil Appeals of Texas. Dallas.
    July 7, 1967.
    Rehearing Denied Sept. 29, 1967.

      Royal H. Brin, Jr., and Patrick F. McGowan, of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
    Herbert L. Hooks, of Gibbs, Hooks & Wyrick, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Alleging that he had sustained the total loss of use of his left leg as a result of an injury which happened on January 26, 1960 while working as a carpenter in Dallas County, Texas, Kenneth Edward Gibson brought this action pursuant to the Workmen’s Compensation Law of Texas (Art. 8306, et seq., Vernon’s Ann.Civ.St.) against his employer’s insurance carrier, Pacific Employers Insurance Company, seeking to recover the statutory benefits for such disability. The case was tried to a jury which returned a verdict favorable in all respects to Gibson. The trial court rendered judgment in favor of appellee for total loss of the use of the leg for a period of 200 weeks. Appellant insurance company appeals.

The primary basis of appellant’s assault on the judgment is the refusal of the trial judge to strike from the record the testimony of Dr. Loiselle, appellee’s only expert medical witness. Appellant contends that since the record reveals without controversy that Dr. Loiselle examined appellee only on one occasion for the purpose of enabling him to render an opinion, and not to treat appellee, his testimony as to appellee’s physical condition and estimate of disability, which were admittedly based upon the history of the case and subjective symptoms given to him by appellee, was not admissible. A careful review of the entire record in the light of the applicable authorities lead us to the inescapable conclusion, and we so hold, that the trial court did commit error in this respect and that the judgment must therefore be reversed.

Appellee sustained the injury to his left knee while working as a carpenter in 1960. His employer took him to the Chester Qinic where he was examined by Dr. Sharp who x-rayed his knee and put him on crutches for two weeks with an elastic band around his leg. He was also examined by Dr. Booth at the clinic who drew off some fluid from his knee. He returned to work in about two weeks wearing a leg bandage. His knee condition caused him to work much slower than before. His knee continued to bother him and the insurance company sent him to Dr. Herrick who x-rayed his knee and examined him. He later saw Dr. Knight, another bone specialist. In 1964, about four years after he had been injured, he went to see Dr. Loiselle. When asked why he went to see Dr. Loiselle he said that a friend had recommended him as being a good doctor. He also testified that he went to Dr. Loiselle “to get a view of a doctor that wasn’t associated with an insurance company, one that they didn’t send me to.” He said he did not ask Dr. Loiselle to treat him for his injuries.

Dr. Loiselle testified that he saw appellee on one occasion which was May 8, 1964; that he obtained a complete history from Mr. Gibson which included a statement as to how he had hurt himself and his various complaints. He then gave appellee a physical examination, including x-rays of the knee. He had never seen Mr. Gibson before nor did he see him any time after the May 8th examination. Based upon the history of the case given by Mr. Gibson, together with the subjective symptoms and findings alone, he rendered an opinion that Mr. Gibson was suffering a disability to his left knee related to the accident in 1960. He was allowed to give his opinion to the effect that due to this injury and incapacity Mr. Gibson was unable to perform work as a carpenter over an extended period of time.

On cross-examination Dr. Loiselle admitted that he had not treated Mr. Gibson and had not been asked to give him treatment. He further testified that he based his opinion concerning loss of use of the leg solely upon the history of the case given by Mr. Gibson together with subjective symptoms. He stated that there were no objective symptoms or findings evident from the physical examination or x-rays made of the knee. Thereupon, counsel for appellant moved the court to strike from the record the testimony of Dr. Loiselle and to instruct the jury not to consider same. The basis for such motion was that the doctor’s testimony was obviously based upon hearsay, i. e., the history of the case given by the patient together with subjective symptoms, and that since he was only the examining doctor, and not the treating doctor, such testimony was inadmissible. The trial court overruled such motion.

The record reveals that at the time the examination was made by Dr. Loiselle in May 1964 the suit had not been filed in the district court but claim for compensation had been pending and the insurance company, appellant herein, had made at least one weekly payment of compensation. Mr. Gibson had not disposed of his claim for compensation and was represented by attorney Hooks at the time he went to see Dr, Loiselle.

The rule of law governing this situation is firmly established in our jurisprudence and is set forth in 63 Tex.Jur.2d § 447, p. 483, as follows:

“A doctor who is not a treating physician, and who examined the patient only for the purpose of making a report and testifying if necessary, cannot base his opinion as to the condition of the patient on the history of the case aS related to him by the patient. It must be based on a study of objective symptoms and X rays.”

The rationale of this rule was developed many years ago and was clearly enunciated by the court in Gaines v. Stewart, 57 S.W.2d 207 (Tex.Civ.App., Austin 1933), which involved a case in which the doctor examined the injured party not for treatment but to enable him to testify as a witness. The court in holding the doctor’s opinion testimony inadmissible said:

“The test in such case appears to be whether the motive and opportunity to fabricate without detection the symptoms complained of is presented. Undoubtedly a qualified physician can testify as to symptoms and conditions of injury or disease made known to or discovered by him in his treatment of his patient. Or to such conditions as he finds in the patient from his own independent examination of him. But where an injured party, for the express purpose of qualifying a physician to testify in his behalf about matters on which such party-seeks a recovery, makes statements as to subjective matters of pain, suffering, etc., not disclosed to the physician by other and independent means, there exists both motive and opportunity for the patient to magnify or feign injuries. Under such circumstances his statements become clearly self-serving and hearsay, and should not be admitted.”

Again, Justice Leslie of the Eastland Court of Civil Appeals in Texas Employers’ Ins. Ass’n v. Wallace, 70 S.W.2d 832 (Tex. Civ.App., Eastland 1934), expressed the reasoning behind the rule which prohibited the testimony of the examining physicians, as follows:

“We are of the opinion that the foregoing testimony, admitted over said objections, was inadmissible. The doctor’s opinion was based in some undetermined measure, and in part, at least, upon hearsay statements made to him by the injured employee. It is a sound rule of law which prohibits the introduction of such testimony. The opinion of an expert should not be permitted to go to a jury when the same is predicated in whole or in part, upon the unsworn statement of an interested party who may be tempted to unduly magnify the basis or grounds upon which the validity of the opinion depends. To permit the expert’s opinion, based upon such statements pertaining to history of case and subjective symptoms, to go before the jury, would open the door for the grossest fraud by affording the litigant an opportunity to magnify his injuries or suffering and enhance the damages by incompetent, self-serving statements in effect carried before the jury by the expert and bolstered up by his opinion.”

The same rule of law was applied in Traders & General Ins. Co. v. Chancellor, 105 S.W.2d 720 (Tex.Civ.App., El Paso 1937, writ dism’d), which involved the testimony of a doctor who stated that he examined the injured employee for both diagnosis and treatment, but had not treated the man. The court, in sustaining the objection to the admissibility of such doctor’s opinion evidence, said:

“ * * * Dr. Kiel testified he examined Chancellor for diagnosis and treatment, but had not treated him. His testimony also shows his testimony as to appellee’s condition was based in part upon objective symptoms which he found, and in part upon the history of the case and subjective symptoms as related to him by appellee. Since the evidence shows Dr. Kiel based his opinion as to appellee’s condition in part upon subjective symptoms and the history of the case as related to him by appellee, his said opinion was inadmissible.”

This rule of law has been recognized and followed uniformly by our courts to the present time. Federal Underwriters Exchange v. Arnold, 127 S.W.2d 972 (Tex.Civ.App., Fort Worth 1939, writ dism’d); Republic Underwriters v. Lewis, 106 S.W.2d 1113 (Tex.Civ.App., Beaumont 1937); Traders & General Ins. Co. v. Rhodabarger, 93 S.W.2d 1180 (Tex.Civ.App., El Paso 1936); Texas Employers’ Ins. Ass’n v. Morgan, 187 S.W.2d 603 (Tex.Civ.App., Eastland 1945, writ ref’d w. o. m.); Texas Employers’ Ins. Ass’n v. McMullin, 279 S.W.2d 699 (Tex.Civ.App., San Antonio 1955, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n v. Wells, 207 S.W.2d 693 (Tex.Civ.App., Amarillo 1947, writ ref’d n. r. e.); Liberty Mutual Ins. Co. v. Taylor, 376 S.W.2d 406 (Tex.Civ.App., Dallas 1964); 65 A.L.R. 1219.

This record convinces us that not only was the opinion testimony of Dr. Loiselle erroneously admitted but that it was reasonably calculated to cause, and probably did cause, the rendition of an improper verdict and judgment in this case. Dr. Loiselle was appellee’s only medical witness and it clearly supported appellee’s position concerning disability. Appellant presented the testimony of two doctors who gave their opinions which were contrary to that opinion expressed by Dr. Loiselle. Certainly Dr. Loiselle’s opinion testimony must have carried great weight with the jury under such circumstances.

Moreover, this testimony by Dr. Loiselle was not cumulative of other testimony of the same kind or character. It cannot be said to have been cumulative of the testimony of appellee himself since it came from an expert in the field of medicine. His testimony concerning possible tearing of cartilages in the knee as well as other medical phases of the case was reasonably calculated to capture the attention of the jury. Dr. Loiselle’s opinion and diagnosis of appellee’s condition were potent evidence indeed and the admission thereof cannot logically be claimed to be harmless. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958); Casualty Ins. Co. v. Salinas, 160 Tex. 445, 333 S.W.2d 109, 90 A.L.R.2d 1056 (1960); Rule 434, Texas Rules of Civil Procedure.

Appellant’s first point is sustained.

By its second point appellant complains of the action of the trial court in refusing to permit it to introduce certain testimony to the effect that appellee had a twenty-year history of a bad right knee. As a general rule testimony concerning other injuries to other parts of the body than that presently complained about is not relevant and material. This is especially true where the prior injuries are non-compensable. However, we see no reversible error presented by appellant’s second point for the simple reason that the trial court, after refusing appellant’s counsel permission to cross-examine Dr. Loiselle concerning the prior injuries to the right knee, apparently changed his mind and ruled that appellant’s counsel might interrogate appellee himself concerning the injury to the right knee which had occurred sometime before. Thereupon appellant’s counsel did not take advantage of the opportunity to follow the line of interrogation. Appellant’s second point is overruled.

Appellant’s third and fourth points complain of “no evidence” or “insufficient evidence” to sustain the jury’s findings to the issue relating to total loss of use of the left knee. In view of our action in sustaining appellant’s first point, thereby requiring a reversal and retrial of this case, we see no useful purpose in discussing these points.

The judgment of the trial court is reversed and remanded for a new trial.


author: HUGHES, Justice.

text:
    Kurt VON QUINTUS, Appellant, v. TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT #12, Appellee.
    No. 11530.
    Court of Civil Appeals of Texas. Austin.
    Sept. 20, 1967.
    Rehearing Denied Oct. 11, 1967.

      J. Hubert Lee, Austin, for appellant.
    H. Hates Steen, Austin, for appellee.
   HUGHES, Justice.

This is a tax suit. Kurt Von Quintus, appellant, appeals from a judgment in favor of Travis County Water Control and Improvement District No. 12 for delinquent taxes, penalties and interest in the sum of $1,514.21 against 97.01 acres of land and establishing and foreclosing a lien on such land.

The land involved was not originally within the limits of the District. This land consists of two tracts, one of fifty acres and the other of about the same size. These tracts were brought in, or attempted to be brought into the District by separate petitions.

Appellant concedes that the 50 acre tract, being the easterly or northerly one-half of Lot 11 of the Eggleston, Goldbeck and Seel-ing Survey Subdivision of the Jacob Betts Survey in Travis County was properly annexed to the District. He denies that the remainder of the 97.01 tract was properly annexed to the District for the reason that neither the petition for annexation nor the order of annexation described the property to be annexed as required by statute.

Art. 7880-75, Vol. 21, Vernon’s Ann.Tex. Civ.St. (Relating to Water Control and Improvement Districts) provides, in part:

“Art. 7880-75. Land added to district
Land may be added to a district and become a part thereof upon petition of the owner thereof in the following manner: The owner of the land shall file with the board of directors a petition praying that the lands described be added to and become a part of the established district. Said petition shall describe the land by metes and bounds and be signed and executed in the same manner provided by law for the conveyance of real estate.”

The petition presented by appellant and his wife to the Board of Directors for the District for annexation of the tract in question reads in full:

“THE STATE OF TEXAS)
COUNTY OF TRAVIS f
TO THE BOARD OF DIRECTORS OF Travis COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 12.
I/We, the undersigned, being the owner of land situated in Travis County, Texas, and contiguous to Travis County Water Control and Improvement District No. 12, do hereby pray that the hereinafter described land be added to and become a part of said Travis County Water Control and Improvement District No. 12, SAID land which I/We own and which I/We desire to be added to said District being described by metes and bounds as follows:
Beginning at a point on the South line of Lot. No. 15 of said subdivision being the N. W. Corner of Lot No. 11 of said subdivision of 1¾0 varas from S. E. Corner of said Lot No. 15 and S. W. Corner of Lot No. 10 of said subdivision. Thence S. along the west line of said Lot No. 11 to its S. W. Corner and S. E. Corner of this survey a point in N. line of said lot No. 4, of said subdivision.
Thence W. along the N. line of said Lot No. 4; 368.1 varas to a point for 5. W. Corner of this survey.
Thence at right angles on a line parallel with the E. and W. lines of said Lot No. 10; 766.8 varas to So. line of Lot No. 15.
Thence E. along So. line of Lot No. 15, —386.1 varas to place of beginning.”

The order of annexation based on this petition contained the same description.

It is our opinion that the attempted annexation is void for want of an adequate description of the property to be annexed.

The subdivision referred to is not named, nor is there any reference to any other data from which a description could be derived. A metes and bounds description must have identifiable objects on the ground in order, of itself, to constitute a valid description. There are a maze of subdivisions in Travis County.

Mesquite Independent School District v. Gross, 123 Tex. 49, 67 S.W.2d 242, Tex. Com. of App., was a tax suit in which the Court held that certain territory sought to be annexed to the school district was not sufficiently described “by metes and bounds,” as quired by statute, where only abstract numbers, certificate numbers, number of acres and names of surveys were given. The Court stated:

“When we come to examine the petition for annexation in the present case, we find that it fails to meet the statutory requirement that it fully describe by metes and bounds the territory sought to be annexed. A reading of the certificate thoroughly demonstrates this. Such being the case, the board was without potential jurisdiction to make the order of annexation. This being the case, the board acted without color of authority. Since the board acted without color of authority, and without potential jurisdiction, its order was and is utterly void, and subject to collateral attack. Since the order was and is utterly void and subject to collateral attack, it could not possibly be made valid by any act of the taxpayer.”

See State v. City of La Porte, 386 S. W.2d 782, Texas Supreme Court.

Appellee contends that we should consider another petition for annexation filed by Mr. and Mrs. Von Quintus on the same day as the petition we are considering was filed in aid of the description which we have held inadequate.

There are no cross references in either petition.

We are aware of the rule that all instruments executed at about the same time relating to one transaction may be looked to and considered together. This rule is inapplicable here. We are concerned with a statute, which if not complied with in the respects indicated, renders void the attempted annexation.

Since it appears that appellant has been assessed taxes on the basis of his ownership of 97.01 acres of land in the District rather than 50 acres, it is apparent that the assessment is invalid, and this case must be reversed and remanded as to the 50 acres which are taxable by the District. The trial court may allow a reasonable time for a reassessment by the District or it may dismiss this suit without prejudice as to such 50 acres.

If this case should be retried, we make these suggestions:

Delinquent tax notices introduced in evidence are not sufficient to constitute prima facie evidence of the regularity of proceedings in tax matters under Art. 7336, Vol. 20, V.T.C.S. There must be introduced in evidence either the delinquent tax list or the rolls and books on file in the tax office.

In order that a recorded deed or other recorded instrument be considered as evidence in court the court must be advised of the contents of such instruments in some manner provided by law.

We reverse the judgment of the trial court and render judgment that appellee take nothing by its suit insofar as its suit for taxes against any property other than the 50 acres in Lot 11, supra, is concerned, and that as to such acreage this cause is reversed and remanded.

Reversed and rendered in part, reversed and remanded in part.


author: JOHNSON, Justice.

text:
    T. J. OSTREWICH, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 16.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Sept. 20, 1967.
    Rehearing Denied Oct. 11, 1967.
    Jack Blalock, Jr., Houston, for appellant.
    Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Richard E. Anderson, Asst. City Atty., Houston, for appellees.
   JOHNSON, Justice.

This is a suit by T. J. Ostrewich, complaining of the City of Houston and Brooks Sandwich Shops for personal injuries allegedly suffered by his wife, Mrs. Anne Marie Ostrewich, when she stepped into a hole on a public street in the City of Houston on or about July 1, 1960.

The case came to trial to a jury. The appellants, hereinafter referred to as plaintiffs, introduced their evidence and after having concluded same and rested, the defendant, Brooks System Sandwich Shops, and appellee, City of Houston, filed and presented respective motions to withdraw the case from the jury and to render and enter judgment for the defendants. The trial court sustained each and both of said motions, and rendered and entered judgment that plaintiff take nothing and in favor of each of said defendants. Plaintiff does not appeal the action of the trial court in granting the motion of the defendant, Brooks System Sandwich Shop, but does appeal from such action and judgment of the trial court for the City of Houston.

Though there are counter points of error concerning insufficiency of the evidence and contributory negligence, each of these have been expressly waived in oral argument before this court by the City of Houston. The sole point of error presented in the instant case, therefore, concerns the adequacy of the notice of injury and claim for damages made to the City by the plaintiff as required by Article IX, Section 11, of the Charter of the City of Houston. The applicable section of the City’s Charter provides as follows:

“Before the City of Houston shall be liable for damages for personal injuries of any kind, or for injuries to or destruction of property of any kind, the person injured, or the owner of the property injured or destroyed, or some one in his behalf, shall give the Mayor and City Council notice in writing of such injury or destruction, duly verified, within 90 days after the same has been sustained, stating in such written notice when, where and how the injury or destruction occurred, and the apparent extent thereof, the amount of damage sustained, the amount for which claimant will settle, and actual residence of the claimant by street and number at the date the claim is presented, and the actual residence of such claimant for six months immediately preceding the occurrence of such injuries or destruction, and the names and addresses of the witnesses upon whom he relies to establish his claim, and a failure to so notify the Mayor and City Council within the time and manner specified herein shall exonerate, excuse and exempt the city from any liability whatsoever, provided that nothing herein shall be construed to effect or repeal Section 12 of Article IX of this Charter.

(Act of 1905, as amended, 1913.)”

Pursuant to this provision of the Charter of the City of Houston, the plaintiff made his notice of claim by the following letter addressed to the Mayor and City Council:

“My name is Mrs. Anne Marie Ostre-wich. On Friday, July 1, 1960, at 8:30 p.m., I was injured as a result of stepping into an open hole located on Rosewood Street approximately 50 feet west of the intersection of Rosewood and South Main Streets, in the City of Houston, Harris County, Texas.
“As I was crossing Rosewood Street, which is extremely dark and unlighted in this area, and prepared to step from the street up onto the sidewalk which parallels it, I stepped into an open hole which was filled with oily water. The hole is located in the gutter extending out into the street, and is approximately two feet in diameter and eight inches deep. It seems to have been created by a small stream of water which runs from behind One’s A Meal Restaurant, located on the corner of Rosewood Street and South Main Street; thence under the sidewalk where it is covered by a steel plate, and into the street.
“When I unexpectedly stepped into the hole, I fell down in the street and partly in the hole, severely injuring my foot and hip, and ruining my clothing, all to my damage in the amount of $20,000.00. I would be willing to settle this claim with the City of Houston for $20,000.00.
“My permanent address is Rio Missouri, 329, Ote Colonia Del Valle, Monterrey, N. L., Mexico. My residence at the time of the incident referred to herein was a motel, exact name unknown, located on South Main Street, in Houston, Texas.
“This incident was witnessed by my husband and my son, who where accompanying me to the Delman Theater at the time is transpired. My husband, whose name is T. J. Ostrewich, resides with me at the address in Monterrey, Mexico. My son is a student at the University of Houston, and resides at 418 West Alabama Street, Houston, Texas. Mrs. Anne Smith, who is my son’s landlady, although she was not present at the time of the incident herein referred to, can testify as to my condition before and after the incident.”

The question is presented as to whether or not this notice, sworn to and timely filed, complies with the requirement of the Charter of the City of Houston as to “when,” “where,” and “how” the claimed injuries and damages occurred. It is initially obvious that the “when” and “where” requirements are sufficiently met by plaintiff’s letter, but the sufficiency of the notice to comply with the “how” requirement of the City’s Charter is the issue in this instance. The effect of the trial court’s judgment is that the requirement of the City Charter in this respect has not been complied with. We disagree, and for this reason, reverse.

This provision of the City of Houston’s Charter has been presented before the appellate courts of this state in a number of instances. See Bates v. City of Houston, Tex.Civ.App., 189 S.W.2d 17, Ref. w. m.; Wones v. City of Houston, Tex.Civ.App., 281 S.W.2d 133 (1955) no writ; Gardner v. City of Houston, Tex.Civ.App., 320 S.W.2d 715 (1959) no writ; City of Houston v. Holden, Tex.Civ.App., 336 S.W.2d 193 (1960) error ref., n. r. e.; City of Houston v. Hagman, Tex.Civ.App., 347 S.W.2d 355 (1961) error ref., n. r. e.; City of Houston v. Glover, Tex.Civ.App., 355 S.W.2d 757 (1962) error ref., n. r. e.; City of Houston v. Watson, Tex.Civ.App., 376 S.W.2d 23 (1964) error ref., n. r. e.; Dancer v. City of Houston, 384 S.W.2d 340 (Tex.S.Ct.1964); and Hutson v. City of Houston, Ct. of Civ. App. of Houston, 418 S.W.2d 911 (September 13, 1967).

The purpose of the notice provision is to give the City an opportunity to investigate while the facts are fresh and conditions remain substantially the same, thereby enabling the City to guard against fraudulent and unfounded claims and to settle the claim or prepare for trial. City of Waco v. Landingham, Tex.Civ.App., 158 S.W.2d 79, error ref. There must be substantial compliance with the statute. The description of the cause or circumstances of the injury must be sufficient to direct attention with reasonable certainty to the substantial defect or act of negligence for which recovery is demanded. City of Houston v. Hagman, supra. Compliance with the Charter provision is mandatory and a condition precedent to filing and prosecuting a suit for damages resulting from personal injuries, Wones v. City of Houston, supra. But “[t]he provisions of the City Charter are not such as to require the injured party to state the acts and omissions of negligence he expects to rely upon in court with the same particularity and meticulosity that may be required in pleadings.” City of Houston v. Watson, supra.

Here there was substantial compliance with the Charter provisions by setting forth the essential facts, clearly stated, from which all of the logical conclusions . could be drawn. The City was given a full opportunity to investigate the facts while the conditions remained substantially the same, to guard against the claim if it were fraudulent or unfounded, and to fully prepare for trial. By the notice the City was fairly apprised in clear and understandable language of the manner in which the claimed injuries occurred. We hold that where there is substantial compliance with the Charter provision, where the essential facts are clearly stated, and where by notification the City is fairly apprised of the manner and means whereby claimed injuries or damages occurred, that this is sufficient notice to the City and is all that is, or should be, required.

While the purpose of notice requirements is deemed for the corporate good, they make for a significant difference in position between the city and an ordinary defendant. They place an immediate burden upon a claimant and, if not fully complied with, leave him without remedy. As the Commission of Appeals has stated in Cawthorn v. City of Houston (Tex.Com.App.1921) 231 S.W. 701, 704:

“In attempting to construe provisions like the one now being considered, we are in complete accord with Section A of the Commission of Appeals in the case of the City of Dallas v. Shows, supra [Tex.Com.App., 212 S.W. 633], when the court says:' ‘The requirement of notice of injury as a condition precedent to an action, while valid and in accord with sound public policy, is in derogation of common right, and should therefore be construed with reasonable strictness, and not extended by implication beyond its own terms, or held to apply to such damages as are not within its clear intent’ 28 Cyc. 1450.”

The court further stated, 231 S.W. at p. 706, “This Charter provision is hard enough at best, on those who are injured by the city. It is in derogation of common right.”

A variation was presented by the San Antonio Court of Civil Appeals in the City of San Antonio v. Ramundo, 411 S.W.2d 428. Here the primary question was the variance of the notice given to the city to the facts that were established at the trial. The Supreme Court affirmed the Court of Civil Appeals in the Ramundo case on other grounds but in its per curiam opinion, pointedly disapproved of the holding of the divided lower appellate court to the effect that the plaintiff was precluded from recovery against the city because of the insufficiency of the notice. Ramundo v. City of San Antonio, 416 S.W.2d 395 (Tex.S.Ct.1967). The Supreme Court’s expression on this subject would seem to strongly indicate that specific grounds of negligence need not be included in the notice to the city. Of particular interest in this respect is the dissent by Chief Justice Murray, of the Court of Civil Appeals, in City of San Antonio v. Ramundo, supra, 411 S.W.2d at p. 435.

In the case at bar the City’s Charter provision relative to the notice makes a requirement in derogation of a common right which should be reasonably construed against the city. Such construction does not encompass the pattern of technical legal pleadings that only attorneys are equipped to prepare and file in the preparation for trial. It does not contemplate the details that so often are available only after discovery procedures have been exhausted. It does not require technical words of art or the subtleties of legal drafting. Facts, and facts only, are required. These were here given.

The judgment of the trial court is reversed and the cause remanded for trial on the merits.


text:
    W. J. FULWILER, Jr., Appellant, v. Betsy FULWILER, Appellee.
    No. 3951.
    Court of Civil Appeals of Texas. Eastland.
    May 28, 1965.
    Brooks & Jones and Jack Bryant, Abilene, for appellant.
    Scarborough, Black, Tarpley & Scarborough, Abilene, for appellee.
   PER CURIAM.

Mrs. Fulwiler obtained a divorce from her husband and a division of property. Mr. Fulwiler has appealed from that part of the judgment dividing the property. A portion of the award to the wife was based upon the fact that community funds were used to improve the husband’s separate real estate and the conclusion that she should be reimbursed therefor. Stated generally, appellant’s main complaint is that such award was based in part upon the cost of such improvement instead of the amount the separate estate was enhanced in value by the use of community funds. There is no question about the correctness of the rule of law asserted by appellant that the amount of reimbursement should be determined by the amount of enhancement in value rather than the amount spent by the community. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777, 781; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620. The real question is whether such rule was observed and, if not strictly observed, whether appellant has shown that he was injured thereby. A large number of properties were involved and the record is large. Out of the' disposition of many properties appellant complains of the action taken with reference only to a few.

There were allegations and evidence of such enhancement. In addition to direct evidence of enhancement there were facts and circumstances from which enhancement might be inferred. In cases such as this the statutory duty of the court is to divide the estate “in such a way as the court shall deem just and right * * * ” Article 4638. The right to reimbursement is an equity and mathematical certainty in its determination is not required. Division of the estate of the parties is not required to be equal. The trial court can make such a division as it deems just and right under the facts and circumstances shown. It is permitted to consider the fact that the wife is not experienced in business and has little earning capacity, the loss she has sustained by termination of the marriage by reason of the fault of the husband and that he is an experienced, successful businessman. It has been held under certain circumstances that the trial court’s conclusion that the division was fair supports the judgment and that it cannot be reversed unless abuse of discretion is established. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682; Duncan v. Duncan, Tex.Civ.App., 374 S.W.2d 800; Professor Huie’s Commentary—Community Property Law, 13 Vernon’s Texas Civil Statutes, page 45; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; 20 Tex. Jur.2d page 557. Ordinarily it is said that such a judgment will not be reversed unless abuse of discretion is shown.

Appellant presents his first, second, fifth, eighth and ninth points together. Appellant’s first point is that the court erred in failing to sustain his exceptions to paragraph five of appellee’s second amended petition because (a) it asserts a claim against appellant’s separate estate for repairs and (b) alleges enhancement of appellant’s separate estate, but does not state how the money was used to enhance said estate, nor the amount of enhancement. The second point contends the court erred in admitting testimony relative to the amount of community funds spent in repairing, rebuilding or refurbishing appellant’s separate property, because the correct test is the amount of enhancement, not the amount spent. The fifth point presents the contention that the court erred in (number 11 of its first findings of fact) finding that community funds were spent for repairing and maintaining defendant’s separate property at 1317 South 1st Street, 881 Pine Street and the Lake House because such finding, if correct, was not sufficient as a finding of enhanced value. The eighth point is that the court erred in concluding (number 3 of its second conclusions of law) that appellee was entitled to reimbursement for community funds spent for repairing said properties because enhancement, not cost, is the controlling factor in dividing the estate. The ninth point is that the court erred in finding (number 3 second set of findings) that appellee was entitled to reimbursement for her share of community funds spent in repairing two of said properties.

Appellant says that when he answered ready, subject to such exceptions, the court announced it intended to carry the exceptions along but thereafter appellant objected to introduction of evidence as to the amount of community money spent to improve appellant’s separate property and such objections were overruled. Appellant contends the court committed reversible error in permitting introduction of such evidence. In an attempt to show injury he points out that the cost of improving Draughon’s Business College, owned by appellant, was $22,000.00. That thereafter the rent was increased from $250.00 to $475.00 per month, and there was testimony that said building at the time of trial was worth $58,500.00. He says that Berry, after hearing Lyon testify that $22,000.00 of community funds were spent to improve said building, testified that its value was enhanced $22,000.00. It is difficult to see how appellant was injured thereby. We cannot know that Lyon testified to such enhancement as a result of hearing another witness testify. It is not shown that the witnesses were placed under the rule and that the rule was violated. But, it does show there was evidence of enhancement of the value of said property by the use of community funds and the amount of the enhancement.

Appellant next says appellee owned a ⅛⅛ interest in the Lake House; that Lyon testified that $2,482.44 of community funds were spent on that house; that the court (in finding number 12) said that, taking into consideration the value of each item, the community claim for reimbursements for improvement of separate property, etc., the court adjusted the equities; that (in amended finding number 3) the court found ap-pellee was entitled to reimbursement for her share of the community funds spent for improving appellant’s separate property located at 1317 South 1st and the Lake House and that the amount was $14,540.31. He says this finding is contrary to law, in that, it is not a finding of enhancement but only of the amount spent by the community to improve the husband’s separate property.

Appellee alleged the parties had accumulated a large community estate and that appellant owned a large separate estate, that, as shown by the inventory and appraisement and the audit on file, there was a considerable amount of community real estate, that a part of the assets of the community consisted of claims against appellant’s separate estate for reimbursement for improvement or enhancement of appellant’s separate property by the use of community funds. Appellee prayed that a receiver be appointed to sell the community estate, pay the community debts, and divide the proceeds. Appellant excepted to said pleading that a considerable amount of the community consisted of claims against appellant’s separate estate for reimbursement because there were community benefits from revenues from the separate estate and that the community should bear its share of the cost of maintaining and repairing the separate property. He further excepted to allegation that appellant’s separate estate was enhanced by the use of community funds because appellee did not point out how it was enhanced, nor the amount thereof. Appellant thereafter admitted in his pleading that community funds had been used to improve appellant’s separate property but alleged they did not enhance its value “to such an extent that it could be ascertained.” Appellant then objected to appointment of a receiver, alleged that most of the property could be easily divided and alleged that “all of the matters complained of by the Plaintiff as determining factors in ascertaining the exact amount, nature and extent of the community property is available now— through the Inventory and Appraisement as well as the audit — on file — .”

Appellee says her case was based primarily on appellant’s inventory and ap-praisement and the audit of appellant’s books; that evidence relative to the cost of improvements at 1317 South 1st, 881 Pine Street and the Lake House was contained in the verified inventory and ap-praisement filed by appellant and the audit, introduced in evidence without objection, and, further, that appellant did not object to direct testimony that $22,000.00 of community funds was spent on appellant’s property at 1317 South 1st or that it was thereby enhanced in value $22,000.00. Appellee says appellant’s complaint about admission of testimony relative to improving the Morris building is not good; that it was offered, not on the theory of reimbursement, but to show that a ½ interest therein belonged to the community and that when that ½ interest was traded for a ½ interest in the Fulwiler building that the Fulwiler building became community property, not appellant’s separate property, as appellant asserted in his original inventory; that such theory was stated to the court at the time and the court found that the Fulwiler building was community property and that finding has not been attacked. Appellee says evidence of the cost of improving appellant’s separate property was admissible, but, regardless thereof, appellant’s argument under his first group of points is answered before questions presented therein are reached because (1) appellant waived such complaint by failing to object to introduction of the audit containing evidence uO such effect, (2) the court is presumed to have disregarded any inadmissible testimony and (3) appellee offered ample evidence of enhancement by the use of community funds.

Mr. Berry, a qualified real estate appraiser, did testify that the improvements made on appellant’s separate property at 1317 South 1st enhanced its value $22,000.00, the amount spent out of community funds. With reference to the Lake House, appellant admitted a 1/3 interest belonged to the community, although it was claimed as appellant’s separate property in the original inventory. It was undisputed that the Lake House was destroyed by fire and rebuilt with insurance money which, to the extent of $2,282.45, was community funds; that Mr. Berry testified that the Lake House, exclusive of the land, was worth $22,400.00; that the Lake House, including the community 1/3 interest therein, was awarded to appellant and the court allowed appellee a charge of only $14,540.31 for enhancement in value of both the Lake House and the $22,000.00 enhancement in value of the appellant’s property at 1317 South 1st. The court allowed community reimbursement only of $2,800.00 for improvement on the Pine Street building, which was claimed as the separate estate of appellant in the original inventory, but which it, was thereafter admitted, was partly community. There is evidence that ½ thereof belonged to the community; that more than $15,000.00 was spent thereon pending trial of the divorce case; that a shop was added and it was enhanced in value $5,600.00. The court limited reimbursement of the community to $2,800.00.

With reference to said group of points, although appellant’s contention that the amount of reimbursement is determined by enhancement is unquestionably correct, we think appellant has not demonstrated, as he is required to do to show reversible error, that he has been injured, or that the court abused its discretion. Said points are overruled.

Reversible error is not shown by the failure of the court to respond to appellant’s third request for findings, among other reasons, because it is not shown that same was timely presented and the requisite facts are not disclosed by a bill of exception. Appellant’s second group of points is to the effect that despite appellant’s verified inventory and the auditors’ reports, the court had no evidence or, at least, insufficient evidence, upon which to base its division of the estate of the parties. As previously stated, appellant pleaded that all the matters complained of by appellee as determining factors in ascertaining the exact amount, nature and extent of the community estate “is available now — through the inventory and appraisement as well as the audit — on file — .” Under said points we think appellant does not present a controlling question. Under established law the court had the statutory duty and authority to partition the community in such manner as it deemed just and right. The court had the right in dividing the estate of the parties to consider all the matters heretofore mentioned and was not required to divide the community estate equally between the parties. In dividing the estate the court is vested with a wide discretion and reversible error is not shown unless abuse of the court’s discretion is shown. Under the circumstances, it is not shown that in making the division the court abused its discretion. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299; Duncan v. Duncan, Tex.Civ.App., 374 S.W.2d 800; 20 Tex.Jur.2d 588; Barrington v. Barrington, Tex.Civ.App., 290 S.W.2d 297; Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682; Farrell v. Farrell, Tex.Civ.App., 370 S.W.2d 241, writ refused, Tex., 374 S.W.2d 870.

All of appellant’s points have been considered and they are overruled.. Reversible error is not shown. The judgment is affirmed.


author: DAVIS, Justice.

text:
    Joe Ray BLALACK, Co-Independent Executor of the Estate of Joe Blalack, Deceased, Appellant, v. Billie BLALACK, Appellee.
    No. 7855.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 19, 1967.
    Rehearing Denied Oct. 10, 1967.
    Gerald H. Fortney, Houston, L. F. Burke, Longview, for appellant.
    Earl Sharp, R. L. Whitehead, Longview, for appellee.
   DAVIS, Justice.

An administration proceeding. Joe Bla-lack is deceased. Petitioner-appellee, Billie Blalack (surviving wife of Joe Blalack) was appointed as Co-Independent Executrix of his estate, and respondent-appellant was appointed Co-Independent Executor of his estate. Appellee filed a motion in the County Court of Gregg County seeking the . removal of appellant as Co-Independent Executor, and in the alternative to require appellant to make a bond in the amount of $200,000.00. Appellant filed a motion to require appellee to give a bond.

A hearing was had in the County Court and appellant was required as “Co-Independent Executor” to give a bond in the penal sum of $50,000.00, and ordered appel-lee, as “Co-Independent Executrix” to give a bond in the penal sum of $10,000.00. Appellant and appellee both excepted to this judgment and gave notice of appeal to the District Court of Gregg County, Texas.

After the proceeding had been transferred to the District Court, appellee filed a plea to the jurisdiction of the court in which she contends that appellant is appealing in his individual capacity. The plea was heard on March 16, 1967. Appellee contended in the District Court that the notice of appeal that was given in the County Court was given in appellant’s individual capacity, and not in a Fiduciary capacity as Co-Independent Executor of the Estate of Joe Blalack, Deceased. The District Court sustained the plea to the jurisdiction and dismissed the appeal on March 28, 1967. Appellant has perfected his appeal and brings forward three points of error.

, By his points 1 and 2, appellant says the trial court erred in dismissing his appeal because he gave notice of appeal from the order entered in the County Court, and that no appeal bond was required.

Appellee admits in her brief:

“Only in that capacity, of Co-Executor, was a judgment rendered against him;” (appellant).
Appellee further admits:

“We have been unable to find any cases in point, * *

The only order entered against appellant by the County Court was entered against him in his Fiduciary capacity as Co-Independent Executor of the Estate of Joe Blalack, Deceased; not against him in any individual capacity. Appellant excepted to the order entered against him in the Fiduciary capacity as Co-Independent Executor of the Estate of Joe Blalack, Deceased, and gave notice of appeal. It was not necessary for the attorney representing appellant to use the words that he was “excepting to the order and giving notice of appeal to the District Court as Co-Independent Executor of the Estate of Joe Blalack, Deceased”.

There was no order or judgment entered against appellant as an individual. The notice of appeal, as given, was sufficient. Therefore, there was no need for appellant to file an appeal bond. Art. 2276, Vernon’s Ann.Civ.St, and the cases cited thereunder. Joe Blalack, deceased, provided in his will that no bond shall be required of the Co-Independent Executrix and/or the Co-Independent Executor. The will had already been probated and they were so appointed. Art. 149 Tex. Probate Code, V.A.T.S., and the cases cited thereunder.

The appellant was not required to file an appeal bond to perfect his appeal to the District Court. The District Court was in error in sustaining the plea to the jurisdiction of the court and dismissing the appeal. 3 Tex.Jur.2d, 560, Sec. 306; 4A C.J.S. Appeal & Error § 513, p. 214. See also, Shannon v. Shannon, Tex.Civ.App., 1966, 406 S.W.2d 786, W.R.,N.R.E. The points are sustained.

Appellants point three is without any merit and is overruled.

The judgment of the trial court is set aside and the case is reinstated for a trial upon its merits, according to the pleading, and not inconsistent with this opinion.