author: COLEMAN, Justice.

text:
    CENTURY RENTAL EQUIPMENT, INC., Appellant, v. NEO-FLASHER MANUFACTURING CO., Appellee.
    No. 14324.
    Court of Civil Appeals of Texas. Houston.
    April 23, 1964.
    Rehearing Denied May 28, 1964.

      Ellis F. Morris, Houston, for appellant.
    Eastham, Meyer S¿ Moore, Gene S. Morris, Houston, for appellee.
   COLEMAN, Justice.

This is a suit on a sworn account. Judgment was rendered for the plaintiff on the pleadings. This appeal is based on the contention that the trial court abused his discretion in refusing to grant leave for defendant to file as a trial amendment a sworn answer.

The plaintiff’s original petition was filed on December 31, 1962. On January 26, 1963, the defendant filed an unsworn answer consisting of a general denial and prayer that plaintiff take nothing. Plaintiff filed a motion for summary judgment February 8, 1963, pointing out that the defendant had filed only a general denial in answer to his petition. The case was set down for trial as a non-jury case, and was called on July 10, 1963, at which time the plaintiff orally moved for judgment on the pleadings. The defendant then orally moved for “leave of the Court to file a trial amendment denying under oath.”

The plaintiff objected and the trial court ascertained that no amendment was prepared in written form. It was developed that the defendant desired to swear to his general denial. The court stated that such a procedure would not be effective. The plaintiff stated to the court that his client had come from California and was ready for trial. The court asked what the suit was about and defendant’s counsel stated: “It is a breach of contract. We deny it is an account, or we owe him anything.” The court thereupon announced that it would be unjust and an abuse of discretion to permit the sworn denial to be filed “at this late date” and granted the motion for judgment.

Rule 66, Vernon’s Ann.Tex.Rules, provides that if during a trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. See Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605.

It is clear here that the defendant has shown no diligence or excuse for his failure to have his pleadings in proper form, especially since the particular defect had been pointed out by the motion for summary judgment.

It is also true that the plaintiff, who was the objecting party, produced no facts from which the trial court could draw the conclusion that he would be prejudiced in maintaining his action if a proper sworn denial of the justness of the account were permitted to be filed. However, it appears that the pleading which the defendant desired to file was one denying that there was an account and possibly setting up as a defense a breach of contract on the part of the plaintiff. Merely attempting to state the position of the defendant in the trial court points up the difficulty of his position on appeal. The record does not show the trial amendment he desired to file. The plaintiff was not in a position to show prejudice until he was acquainted with the contents of the amendment. If we assume that the trial amendment which the defendant desired to file was the sworn plea required by Rule 93, Texas Rules of Civil Procedure, should we also assume that the plaintiff would have available in this State the necessary books, records and witnesses available in this State to proceed to trial ? The rule contemplates that unless the objecting party shows that he will be prejudiced by the trial amendment, it shall be granted. It would have been the better practice for the trial court to have required that the proposed trial amendment be presented in the exact form desired before ruling on the matter in order that the plaintiff might clearly develop the prejudice, if any, which would result from the filing of the trial amendment.

In Galaviz v. Langdeau, Tex.Civ.App., 352 S.W.2d 352, the court states that the trial court does not abuse his discretion by refusing a trial amendment when it is obvious that the party has failed to prepare his case with diligence or has failed to amend his pleadings in order to deprive the opposing party of an opportunity to meet and defend the new matter as presented.

There is authority holding that where the record does not contain a proposed trial amendment and the evidence produced by the objecting party claiming surprise, and where there is nothing in the record to show that the proposed trial amendment was presented to the court, a point of error complaining of the refusal of a trial amendment cannot be reviewed on appeal. Alcazar v. Southwestern Bell Telephone Company, Tex.Civ.App., 353 S.W.2d 933.

Numerous cases may be cited in which the statement is made that while trial amendments should be freely granted, the court is vested with a sound judicial discretion with regard thereto and something more than a request and refusal must appear before it can be said that the trial judge abused his discretion. Lone Star Steel Company v. Owens, Tex.Civ.App., 302 S.W.2d 213, ref., n. r. e. The burden of showing abuse of discretion rests on the complaining party. Emmons v. Travelers Insurance Company, Tex.Civ.App., 349 S.W.2d 282; Shaw v. Tyler Bank and Trust Co., Tex.Civ.App., 285 S.W.2d 782, ref., n. r. e.

In Westinghouse Electric Corporation v. Pierce, 153 Tex. 527, 271 S.W.2d 422, the Supreme Court of Texas held that the trial court did not abuse its discretion in refusing to permit a trial amendment where the record disclosed probable resulting prejudice to the opposite party “in maintaining his action or defense.” There the court based its decision largely on the fact that the proffered amendment would alter the factual basis of the suit and require an entire reshaping of the defense on the new facts.

In Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208, ref., n. r. e., the court points out:

“It is to be noted that a suit on sworn account presupposes a contract or series of contracts which is performed by the one party who sues the other thereto for performance in turn of his obligations thereunder Under T.R.C.P. 185 a verified denial other than as provided therein, even including a verified denial that there had been any performance as alleged by a plaintiff, does not overcome a prima facie case made by a plaintiff’s petition properly filed thereunder. Glasco v. Frazer, Tex.Civ.App. Dallas, 1949, 225 S.W.2d 633, error dismissed. The same thing would be true under the applicable section of T.R. C.P. 93. Yet, even with the contractual relationship and correctness of the account admitted, sworn allegation to the effect that the defendant would be relieved of obligation for any payment on the contract under certain conditions or contingencies, alleged also to have occurred, also would be a complete answer. 1 Tex.Jur., p. 357, sec. 61.”

It appears, therefore, from the record that the trial court might reasonably have considered that appellant had wholly failed to show diligence and, in addition, desired to offer an amendment changing the basis of the suit. From the statement made by appellant’s attorney he might have concluded that he desired to plead a defense, independent of the account sued on, of which appel-lee had no notice. Under the record before us appellant has not demonstrated that the trial court has abused his discretion by refusing to permit a trial amendment.

Rule 185, T.R.C.P., provides that the plaintiff’s sworn account shall be prima facie evidence that the account is just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed unless the defendant shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that such claim is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. The rule provides that if such affidavit is filed on the day of the trial, the plaintiff shall have the right to a postponement for a reasonable time and that when the defendant fails to file such affidavit, he shall not he permitted to deny the claim, or any item therein.

When in this case appellant announced ready for trial, he could no longer effectively deny the account and necessarily any defense which he desired to present would have been in the nature of confession and avoidance. It has been held that the trial court should consider a motion to allow a trial amendment and should exercise his judicial discretion in granting or refusing same where the pleadings on file “construably actually deny the justness of the entire claim but not by the use of the language of the Rule.” Parham v. Grace, Tex.Civ.App., 341 S.W.2d 503, no writ history; Moore v. McKinney, Tex.Civ.App., 151 S.W.2d 255, no writ history.

The rule specifically provides that unless the sworn denial is filed before announcement of ready for trial, the defendant shall not be permitted to deny the claim, or any item therein. From the specific language used it is evident that a trial amendment, even if permitted, would be ineffective. The cases cited above are not controlling since in this case the pleading on file does not deny the justness of the entire claim. While the trial court might permit a party to withdraw his announcement of ready for trial in order to permit him, in the interest of justice, to file a sworn denial, no such motion was presented in this case.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    E. L. McDonald, Appellant, v. GOODWIN BROTHERS, INC., et al., Appellees.
    Court of Appeals of Kentucky.

      Feb. 14, 1964.
    As Modified on Denial of Rehearing May 15, 1964.
    Charles M. Tackett, R. J. Turley, Lexington, for appellant.
    I. Jay Miller, Lexington, for appellees.
   DAVIS, Commissioner.

Appellant McDonald seeks reversal of a Fayette Circuit Court judgment which affirmed action of the Workmen’s Compensation Board. The Board awarded McDonald payments for total temporary disability for the period June 14, 1961, to and including March 17, 1962, but denied his claim for total permanent disability award.

Appellant bases his appeal on the claim that he is totally permanently disabled, even though physically fit for many occupational pursuits, since his sensitivity to a product used in his usual occupation will preclude his working in that particular line of endeavor.

Appellant had been employed at Lexington by Goodwin Brothers as an automobile repairman for several years. He repaired damaged automobiles and worked in the body shop. Incident to the process of repairing damaged automobiles, some of the fellow employees of appellant used a plastic filler, although appellant continued to use lead as a filler. The work with the plastic, as well as with the lead, includes the necessity for some smoothing with a grinder. Thereby a fine dust of the grindings is cast into the air in the work shop.

Appellant began to experience a rash on the exposed surfaces of his skin; the condition so worsened that he was required to obtain medical care. Indeed, his ailment progressed to the point that hospitalization was prescribed for him. It was for the time period during which he was unable to work that the allowance for total temporary disability was awarded. No question is raised as to the propriety of that portion of the award.

The ailment of appellant is diagnosed as contact dermatitis. Medical testimony shows without contradiction that appellant is sensitized to the materials in the plastic filler. The sensitivity is permanent; renewed exposure to the offending substance will cause recurrence of appellant’s condition, according to the physician’s prognosis. It was said by a qualified medical expert that death could result from continued exposure. However, the doctor observed that fatal result in such a case is not to he expected unless the patient exhibits a condition of bronchial asthma. Bronchial asthma is said to be a precursor of possible fatal results in such cases. The appellant was found to be entirely free of any symptom of bronchial asthma.

Appellant completely recovered from the objective symptoms of the dermatitis after his hospitalization and treatment. Of •course, during' the time of his convalescence, he was not exposed to the dust from the plastic filler. Appellant was fully capable to do normal work on March 17, 1962, the terminal date of the temporary disability award. But he argues that if he returns to his former occupation, he will be exposed again to the dust from the plastic filler— and as surely will suffer inevitable recurrence of the malady of contact dermatitis.

Appellant is a man aged 65 years, having merely a seventh grade education, whose occupational experience has been exclusively in automobile repair work for at least ten years past. At an earlier period of his life he had conducted a boat and fishing enterprise at Herrington Lake, but testified that the long hours required in that pursuit make it an unattractive job opportunity. From these circumstances the appellant reasons that he is totally permanently disabled because, he cannot safely continue his basic work as an automobile repairman. It is further urged that we should equate the probability of recurrence of the dermatitis with that rule which exonerates an employee from submission to surgery under dangerous circumstances. Cf. Melcher v. Drummond Mfg. Co., 312 Ky. 588, 229 S.W.2d 52.

There is evidence that four of the Lexington repair shops use plastic fillers; the record is silent as to the use of plastic fillers in the other shops. However, appellee itself has a shop where no plastic is used. Appellant failed to sustain his burden of persuasion that the use of plastic filler is so widespread as to preclude his employment opportunities. Lee v. International Harvester Co., Ky., 373 S.W.2d 418. Thus, it cannot be said that appellant is presently disabled within the principles recognized in Clark v. Gilley, Ky., 311 S.W.2d 391. He is perfectly able to perform his usual duties —his danger lies in doing that work in the presence of plastic filler dust. He is able to do work which is available for him to do. Under these circumstances we conclude that the Board and circuit court correctly disposed of the matter.

Since there is no dispute as to the propriety of the award for temporary total disability, we do not reach the question as to whether the prospective possible disability is an occupational disease within the purview of KRS 342.316.

The judgment is affirmed.

      . There is some confusion in the record as to whether he had worked for appellee since 1943 or 1953.


text:
    Lester WENK et al., Appellants, v. David RUBY et al., etc., Appellees.
    Court of Appeals of Kentucky.
    April 17, 1964.
    Rehearing Denied June 12, 1964.

      Val A. House, Jr., Scottsville, for appellants.
    Paul Huddleston, Bowling Green, for ap-pellees.
   DAVIS, Commissioner.

Appellants Lester Wenk and L. C. Tabor appeal from an order of the Allen Circuit Court refusing to direct the sale of certain oil and gas leases upon which they have lien claims. The present appeal is an outgrowth of litigation that went to final judgment in Allen Circuit Court; that judgment was brought here in an earlier appeal, and was affirmed when the appealing parties failed to file briefs. When the affirming mandate was filed, the present appellants sought enforcement of what they perceived to be their rights under the affirmed judgment. The main question here is whether the appellants are entitled to demand a judicial sale of the oil and gas leases to satisfy their liens; a related question is their claim for enforcement of their judgments against the corporate surety on the supersedeas bond executed upon the original appeal.

The present appellees, to whom we shall refer as Ruby, held oil and gas leases on about 1,900 acres of Allen County land. Ruby entered upon an agreement with interests, to whom we shall refer as Black Rock, by the terms of which Black Rock was put into possession of the leased premises and authorizéd to undertake exploratory operations. Black Rock is a Texas corporation; it incurred substantial obligations for labor and materials employed in its exploratory operations on the leased premises. When Black Rock began to default in the payment of its debts, some of its creditors filed suits against it in Allen Circuit Court. Meanwhile, the brief term accorded Black Rock under its agreement with Ruby expired, so that the leasehold rights became fully revested in Ruby. Thereupon, Ruby filed an action in Allen Circuit Court in the nature of a quiet title proceeding, in which it was asserted that various known and unknown persons claimed to be creditors of Black Rock and had filed lien claims against the leaseholds.

Appellant Wenk was among those creditors' who had filed a lien claim for labor and materials under KRS Chapter 376. Appellant Tabor came into the suit presenting an unliquidated claim for damages based on negligent pollution of the grazing lands of Tabor; it was asserted that Tabor had been damaged in the sum of $545. Of course, this claim was not presented as a lien claim at the outset of the litigation.

■ The case was referred to a special commissioner -who heard proof and submitted a report. Appellant Wenk specifically moved the court to approve the commissioner’s report. In that report the commissioner set •out certain liens, including a lien in favor •of Wenk in the sum of $5,293.96. The commissioner also recommended that Tabor’s ■claim be allowed to the extent of $425. For reasons not entirely clear on the record, but of no importance now, the judgment that was entered directed that the leaseholds of Ruby, along with certain equipment thereon, be sold by the master commissioner to satisfy four named lien creditors but subject to the liens of certain other creditors, including appellant Wenk. The judgment •did not grant any lien to Tabor, but did authorize that an execution issue on the money judgment of $425. It was from that judgment that an appeal was filed by Ruby; appeal was dismissed May 18, 1962.

When our mandate issued pursuant to the dismissal of the appeal, Ruby proceeded to pay those creditors whose claims were to be satisfied by sale of the leasehold property. Meanwhile, Tabor had caused execution to be levied on the leasehold and equipment for his $425 judgment. Wenk and Tabor have made repeated efforts to have the trial court enter an order directing the master commissioner to sell the leaseholds to satisfy their liens—all of which efforts have been predicated upon enforcement of the judgment in the original action.

The difficulty with the position of the appellants is that the oiiginal judgment did not direct a sale of the leaseholds to satisfy the claim of Wenk, but directed that the purchaser should take the property subject to Wenk’s lien. Tabor’s lien claim arose from the levy of an execution pursuant to the judgment; manifestly the judgment did not and could not direct a sale for the enforcement of Tabor’s lien. Therefore, neither of the appellants has a right under the judgment to insist upon a sale of the property to satisfy their claims. Patently, it would be futile to order the property sold subject to Wenk’s lien, as provided in the judgment, since he would be then in the same position as before the sale. The liens may be enforced by further proceedings in this action for that purpose, but not under the judgment as it now stands.

Appellants are not entitled to relief against the principal or surety of the super-sedeas bond that issued in the original appeal. CR 73.04. That bond had the effect of staying the enforcement of the original judgment, but so far as these appellants are concerned, the original judgment was not a money judgment against Ruby, who had appealed in the first appeal. The appellants are in the same position, so far as presently appears, as they were before the first appeal and accompanying supersedeas occurred. A different situation would be presented had Black Rock—the judgment debtor—superseded the judgment. Upon supersedeas of the first judgment by Ruby the sale of the leaseholds was stayed. As we have seen, these appellants were not entitled to sale under the judgment, so as to them nothing was accomplished.

Appellees have not filed brief in this appeal. Appellants say in their brief that appellees claim to be subrogated to the rights of the lienholders, whose claims they have paid, and that the liens of appellants are invalid. Since appellees have not filed brief, we treat this as their confession that there is no merit in their contentions. RCA 1.260(c).

The judgment is affirmed.


author: PALMORE, Judge.

text:
    BETHLEHEM MINES CORPORATION, Appellant, v. Harold HALL and Workmen’s Compensation Board of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    April 24, 1964.
    Rehearing Denied June 12, 1964.
    Harry C. Campbell, Pikeville, for appellant.
    Thurman L. Hibbitts, Pikeville, J. Keller Whitaker, Frankfort, for Workmen’s Compensation Bd.
   PALMORE, Judge.

Appellee, Harold Hall, is totally disabled by reason of a herniated disc. The consensus of opinion among the medical witnesses who examined him and are familiar with the case history is that the disability can be minimized by surgery and that the prospects of a successful result justify the operation. All agree that this type of surgery would be termed a "major operation” but that the danger to life and limb from its proper and competent performance is relatively negligible. Appellee has declined to submit to it, and the only question here is whether his refusal is unreasonable and thus disentitles him to workmen’s compensation by virtue of KRS 342.035(2) ,

“One of the most delicate medico-legal problems in workmen’s compensation law arises when the employer or his insurer attempts to discontinue compensation payments to the employee on the ground that the employee has refused to undergo a disc operation for the purpose of reducing his disability. * * * It can be said with reasonable assurance that courts will refuse to force an employee to submit to a disc operation, usually on the ground that such an operation is uncertain as to ultimate beneficial result; is in some degree dangerous to life and limb; and might involve extraordinary suffering. This is the majority rule in the case of any type of surgical operation where the same risks and uncertainties are involved.” Bear, In-tervertebral Disc Injuries in Workmen’s Compensation, 6 Vand.L.Rev. 883, 889, 890 (June, 1953). See also Larson, Workmen’s Compensation, § 13.22.

In United States Coal & Coke Co. v. Lloyd, 305 Ky. 106, 203 S.W.2d 47 (1947), upholding the hoard’s refusal to require the claimant to submit to the same type of operation, this court said, “We know of no case where an employee has been required to undergo a major operation in an effort to correct an injury.” In a recent case, Robertson & Harper Construction Company v. Isaac, Ky., 344 S.W.2d 614 (1961), in which the employee would not submit to a myelography, it was held that there was enough uncertainty regarding the risk of pain or injury to sustain the board’s finding in the employee’s favor.

The rule is that if there is a difference of expert opinion as to (a) the danger or (b) the result of an operation the employee’s refusal to submit to it cannot be held unreasonable as a matter of law against a decision of the board which in effect has declined to find it so as a matter of fact. See Black Star Coal Co. v. Surgener, 297 Ky. 653, 181 S.W.2d 53 (1944); United Electric Coal Company v. Adams, Ky., 299 S.W.2d 246 (1957).

One of appellee’s medical witnesses, Dr. G. E. Skaggs, said that he would not recommend surgery at present, “I feel like he should have conservative treatment. Let him wear a brace * * *. I think as as far as surgery fatality would be minimal, but the results, as to results not so good, probably range between forty (40) to fifty (50) per cent good results, and others do not get it.”

Granted that Dr. Skaggs was not a specialist, yet the most favorable estimate made by any of the surgeons testifying for the employer placed the chances of complete success at 75%. Conceding further that texts and decisions of yesterday are constantly being outmoded and rendered inapplicable by the swift progress of medical science, still the process by which we must be brought up to date in a case of this kind is through the testimony of witnesses. One of the physicians having said that the operation is not advisable at present, we think there was room for difference of opinion as to whether appellee’s persistence in refusing an operation was unreasonable. Hence it was within the province of the board to say, and we cannot disturb its finding.

We do not reach the question of whether the employer has made a sufficient offer to bear the expense of the recommended operation. Cf. Black Star Coal Co. v. Surgener, 297 Ky. 653, 181 S.W.2d 53 (1944).

The judgment is affirmed.

      . Which one of the medical witnesses defined as “anything that would require general or regional anesthesia.”

      . “No compensation shall be payable * * * if and in so far as his disability is * * * continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.”

      . In the instant case Hall did submit to a myelography. Also, he had undergone a completely successful operation for the removal of another herniated disc in 1958, but was fearful of fating similar surgery again.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Betty L. COTTRILL, by her Next Friend, Morris Conway, Plaintiff-Respondent, v. Donald COTTRILL, Defendant-Appellant.
    No. 23934.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.
    Kranitz & Kranitz, St. Joseph, Jay Ma-cey Rosenblum, Kansas City, for appellant.
    Grace S. Day, St. Joseph, for respondent.
   SPERRY, Commissioner.

Betty L. Cottrill, by her next friend, Morris Conway, filed her petition praying to be divorced from the bonds of matrimony theretofore contracted with defendant, Donald Cottrill. From an .order and judgment sustaining plaintiff’s motion for attorney’s fees and for maintenance and support of the children, defendant appeals.

Plaintiff was nineteen years of age when the petition was filed, in May, 1963. She alleged that the parties were married December 8th, 1957; that three children were born of the marriage; that defendant argued with her and struck her; that he had been “in considerable trouble with the law.”' She prayed to be divorced from defendant, for a judgment for alimony, attorney fees,, and for support and maintenance of the children.

Defendant answered. He admitted the marriage and denied all other allegations. He also filed cross bill wherein he prayed for a decree of divorce. He admitted the birth of three children, naming them. He alleged marital misconduct by plaintiff; that he had been charged with commission of a felony, and would thereby be committed to a penal institution for a term of years ; and he alleged that he was then unable to care for the children and that plaintiff was unfit to have custody of the children. He prayed that the children be placed in the custody of persons qualified to properly care for them.

Plaintiff filed motion alleging that she was without means for the prosecution of her suit or for defense on defendant’s cross bill. She prayed for an order granting her temporary maintenance and support for herself and the children and for attorney fees.

A trial was had on the motion and plaintiff testified to the effect that defendant was then confined in jail, in Kansas City; and that she was without money, financial resources, or income for support of herself and children, or for attorney fees.

Defendant testified to the effect that he was twenty one years of age; that he was, at that time, confined within the Jackson County Jail, at Kansas City, Missouri; that he had been so confined for a period of about forty five days; that he was awaiting trial on a felony charge; that he had no income or financial resources; that, prior to his arrest, he had been employed and had earned eighty dollars per week; that a relative had paid his attorney fees in the criminal case. It was agreed that he was charged with assault with malice and intent to kill, and with robbery with a deadly weapon.

The Court awarded plaintiff the sum of $200.00 for temporary attorney fees, and $20.00 per week for maintenance and child support.

In Lampman v. Lampman, Mo.App., 367 S.W.2d 28, 30, the Court held that a refusal to grant alimony in that case could only be justified on the grounds that the husband was unable to work due to ill health and accident, and said: “But to deny alimony altogether would forever foreclose the court from making any allowance thereafter, even though the plaintiff’s financial condition should improve to such an extent that he could and should contribute toward defendant’s support.” It was held to be an abuse of discretion for the trial Court to refuse to make an allowance for alimony and, also, attorney fees.

In the case at bar, defendant has not yet been convicted. If he is convicted, he may be paroled. Eventually, he may be able to earn money with which to pay the attorney fee and maintenance, as ordered.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: GREENHILL, Justice. SMITH, Justice.

text:
    GREAT AMERICAN INSURANCE CO., Petitioner, v. C. H. LANGDEAU, Receiver of Southern Industrial Life Insurance Co., et al., Respondents.
    No. A-9810.
    Supreme Court of Texas.
    May 6, 1964.
    Rehearing Denied June 10, 1964.

      Brown, Sparks & Erwin, Will G. Barber with firm, Attstin, for petitioner.
    John R. Grace, Waggoner Carr, Atty. Gen., Dudley D. McCalla, Joe R. Long and Kerns B. Taylor, Asst. Attys. Gen., Austin, for respondents.
   GREENHILL, Justice.

This is a suit to recover on a fidelity bond. C. H. Langdeau, the Receiver of Southern Industrial Life Insurance Company and also the Liquidator of that company for the State Board of Insurance, filed this suit against Great American Insurance Company of New York, which is the surety on the bond and which is herein referred to as "“the surety company.” The bond was issued in accordance with Art. 14.08 of the Texas Insurance Code, to cover the officer responsible for handling the company’s funds. Trial was before a jury, and the jury findings were in favor of the surety company. On the fact questions submitted to it, the jury found that the conduct of the bonded employee had not been of the type protected against by the fidelity bond. The Court of Civil Appeals reversed, holding that as a matter of law the acts by the bonded employee constituted that type conduct for which the bond provided protection. 369 S.W.2d 944. The surety company’s application for writ of error was granted on the question of whether it was error for the Court of Civil Appeals to hold there was no fact issue for the jury.

Article 14.08 of the Texas Insurance Code provides that a mutual assessment company organized under Chapter 14 shall designate “some officer who shall be responsible in the handling of the funds of the corporation.” Under the statute, the company must file for the designated officer a surety bond, “which said bond shall obligate the principal and surety to pay such pecuniary loss as the association shall sustain through acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or willful misapplication on the part of such officer, either directly and alone, or in connivance with others, while employed as such officer or exercising powers of such office.”

The bond issued by the surety company to cover Ralph Derrell Huffman is an individual fidelity bond. The bond provided for the surety company to pay “the amount of all direct losses, which Ralph Derrell Huffman * * * may, while in any position and at any location in the service of the Employer, directly or by collusion with others, cause to the Employer, including loss of money and other personal property in the Employer’s custody or possession, whether or not the Employer is liable therefor, not exceeding, however, the amount of Twenty Thousand Dollars ($20,000.00), through larceny, theft, embezzlement, forgery, misappropriation, wrongful abstraction, wilful misapplication, or any other act of fraud or dishonesty. * * * ”

In construing fidelity bonds, courts follow the liberal rules applicable to insurance contracts rather than the strict rules of suretyship. Irvin Jacobs & Co. v. Fidelity & Deposit Co., 202 F.2d 794 (7th Cir.1953). However, the bond cannot be extended by implication, or enlarged by construction, beyond the actual terms of the agreement entered into by the parties. American Surety Co. v. Gracey, Tex.Civ.App., 252 S.W. 263 (1923, no writ).

The fidelity bond here provides protection for acts of fraud and dishonesty as well as the other crimes or wrongs above listed. At one time the Texas Legislature had provided for a bond that was broader in coverage. The original legislation was part of the Act that provided for co-operative life insurance companies. It provided coverage for the “faithful performance of duties.” Acts 31st Leg., 1st C.S., 1909, sec. 2, p. 287. In 1929, legislation was enacted to regulate local mutual aid associations, and it also provided for a “faithful performance of duties” bond. Acts, 41st Leg., R.S.1929, Sec. 5(5), p. 565. Then in 1933, the Legislature changed the bond to the “fraud and dishonesty” type. Acts, 43d Leg., R.S.1933, sec. 1, p. 577. When the Texas Insurance Code was adopted in 1951, a “faithful performance of duties” bond was required for Chapter 11 mutual life companies. Texas Insurance Code, art. 11.05. However, for Chapter 14 mutual assessment companies, a “fraud and dishonesty” bond was all that was required. Texas Insurance Code, art. 14.08 (as quoted previously). Thus, the bond in the present case does not guarantee a faithful performance of duties. Minor v. Mechanics Bank, 26 U.S. (1 Pet.) 46, 7 L.Ed. 47 (1828); First State Bank v. Metropolitan Casualty Ins. Co., 125 Tex. 113, 79 S.W.2d 835, 98 A.L.R. 1256 (1935). It indemnifies only for crimes or wrongs listed, including fraud and dishonesty. It does not purport to protect against acts of negligence, carelessness, incompetency, or failure to follow instructions. American Surety Co. of New York v. Greek Catholic Union, 284 U.S. 563, 569, 52 S.Ct. 235, 76 L.Ed. 490 (1932) ; Jellico Grocery Co. v. Sun Indemnity Co. of New York, 272 Ky. 276, 114 S.W.2d 83 (Ky. 1938). The Receiver does not dispute the scope of the bond’s coverage. He contends that the conduct of Huffman was fraudulent and dishonest.

To constitute fraudulent and dishonest conduct, the employee must have some degree of intent to perform the wrongful action. There must be the physical act plus the mental state for there to be fraud. Cowan v. Clay County Board of Education, Tex.Civ.App., 41 S.W.2d 513, 515 (1931, wr. ref.). See cases collected in 17A Words and Phrases 69, “Fraud.” The intent need not be of the degree required for criminal conduct. Citizens’ Trust & Guaranty Co. v. Globe & Rutgers Fire Ins. Co., 4 Cir., 229 F. 326 (1915); Prior Lake State Bank v. National Surety Corp., 248 Minn. 383, 80 N.W.2d 612, 57 A.L.R.2d 1306 (Minn.1957). On the other hand mere negligence, carelessness or incompetence is insufficient. Irvin Jacobs & Co. v. Fidelity & Deposit Co., 202 F.2d 794 (7th Cir. 1953) ; Village of Plummer v. Anchor Cas. Co., 240 Minn. 355, 61 N.W.2d 225 (Minn.1953); Salley v. Globe Indemnity Co., 133 S.C. 342, 131 S.E. 616, 43 A.L.R. 971 (S.C.1926); Humbird Cheese Co. v. Fristad, 208 Wis. 283, 242 N.W. 158 (Wis.1932) ; 50 Am.Jur., Suretyship, §§ 335-338 (1944). If the employee has knowledge of and aids in concealing another person’s wrongful conduct, it has been held that he, himself, is guilty of that same wrongful conduct. Shaw v. Cone, Tex.Civ.App., 56 S.W.2d 667, 670 (1933, wr. dism.).

There are Texas cases on fidelity bonds with fact situations bearing some similarity to the instant case. In Austin v. Neiman, 14 S.W.2d 794 (Tex.Comm.App., 1929), the receiver of an insolvent bank sued Neiman, the former bookkeeper and assistant cashier, together with the surety company, for aiding and assisting the bank’s president in wrongfully converting the bank’s funds. The fidelity bond protected against misapplication, wrongful abstraction,- and embezzlement.- ' ■

The evidence showed that every few weeks, Neiman balanced the sum total of individual deposits as shown in the active ledger with the sum total of individual deposits actually in the personal accounts. Since money had been removed from various personal accounts, the ledger would not balance with the actual total of the personal accounts. Neiman denied personal knowledge of the abstraction of funds; but he was the one who personally posted.the money when received to the individual ledger, posted the totals to the general ledger, and struck the balance. The Commission of Appeals held it was impossible for Neiman not to have discovered the unlawful abstraction. He kept the books in balance and the only way this could be done was by false entries. Recovery on the bond was allowed.

The Neiman case was followed in Shaw v. Cone, Tex.Civ.App., 56 S.W.2d 667 (1933, wr. dism.). This suit was also brought on a fidelity bond for loss arising from the alleged embezzlement, wrongful abstraction and willful misapplication of the bank’s funds by the employee, Cone. -Cone manipulated certain books of the bank and customers’ passbooks so as to' conceal the wrongful acts of the bank’s officers. Cone’s testimony that he was ignorant that the officers were wrongfully abstracting bank money was disbelieved. Cone’s actions of concealment of the missing funds by false book entries showed that he aided and assisted in the wrongful taking.

Both the Neiman and the Shaw cases recognized that an intent to do a wrongful act, or knowledge that others were acting wrongfully, was necessary. We concur in that legal test.

In the case before us, the evidence of Huffman’s conduct does not conclusively show that he either participated in the wrongdoing or that he had knowledge of the wrongdoing.

The State Insurance Examiners found thát over $270,000 of Southern Industrial funds were missing and could not be accounted for. Consequently, in June, 1960, Southern Industrial Company was adjudged delinquent and insolvent, and placed ’in receivership. The Receiver argues that Huffman, as the:principal bonded officer breached his duty by signing checks in blank and by failing to take greater responsibility in the management of the company’s investments. Because it is necessary for us to decide whether there was or w.as not “some evidence”'to support the jury’s finding that Huffman did not commit any acts of. misconduct insured against, the evidence'as to Huffman’s conduct must be set out in some detail.

Huffman’s Conduct

Huffman first worked in the insurance field during the summer of ’ 1956, when he entered the-employment-of W. L. Bridges, Jr. Since Huffman was then going to college, this job was. only for the summer. In 1958, Huffman graduated, and he approached Bridges about permanent employment. Bridges hired him.

Bridges controlled or operated an extensive network of business enterprises. His holdings included several banks, more than a dozen insurance companies, a land company, a mortgage company, and several other businesses. Most of these companies were operated out- of the same office in Dallas, Texas. When Huffman went to work for Bridges, it was not in connection with any one company; rather it was for the Bridges enterprises in general. Huffman’s function in the office was to do whatever Bridges asked him to do. This meant that at different times he was working on different companies that Bridges was operating. However, most of Huffman’s time was spent with the business of Southern Industrial Life Company.

Huffman’s testimony indicates how he spent his time, and of what his work consisted. On a typical day, he began work by giving the money that had come in. the preceding day as premiums on insurance policies to one of the office girls to process. He would take the money out of the safe in the office, where it was kept overnight. Huffman had the combination to the safe. The processing by the office girl consisted of preparing it for deposit in the bank. A deposit slip would be prepared and presented to Huffman for him to make sure it was accurate. Then it was forwarded to Miss Bishop, actuary and accountant for the company, and Huffman’s contact with it was finished.

After starting the office girl on the processing of the premium money, Huffman spent almost all of his remaining time on the underwriting and issuing of insurance policies. He worked primarily on the company’s group insurance. He would do all of the work to prepare the policy for issuance. For example, if a medical question arose, it was Huffman’s responsibility to deal with it. When all of the preparatory work on a policy was completed, he would give the work sheet to a secretary who would prepare the policy and return it to him to check.

Huffman also did the work to prepare claims for payment. Just as with the premium income, a claim that came into the office was turned over to one of the office girls to process. After it was prepared, it would be returned to Huffman whose task it was to make certain the claim was a proper one and that the forms were in proper order. If they were, Huffman would then give the check for payment to Miss Bishop for mailing.

Approximately 95% of Huffman’s time was spent on the above, the issuing of new policies, the supervising of the depositing of the premium income, and the verification of the insurance claims.

The remainder of his time was spent on bookkeeping. Huffman did not spend time every day on the bookkeeping. He testified that, depending on the amount of insurance work he had to do, he would do the bookkeeping once a week, or sometimes only once a month. It was his job to do the posting to the company’s books. “The balance of my time would be spent doing bookkeeping work, posting checks or check stubs to the disbursement journal, posting income to the income journal, and posting the income and disbursement journals to the general ledger.”

There was no discretion or decision-making involved in this bookkeeping work. It was simply a matter of recording on the company books the transactions the company had engaged in. The information and figures to be placed in the books were taken from check stubs or canceled checks.

Huffman’s work continued without any significant variation until February, 1959. At that time, Huffman was named to the position of Secretary-Treasurer of two of Bridges’ insurance companies, Southern Industrial Life Insurance Company and Rains Service Insurance Company. Huffman continued to perform all of his old tasks; but with his new title, there was one additional job to do. As Secretary-Treasurer, he had the authority to sign company checks and the normal business papers of the company. Just as when he first came to work, the decision that he was to be Secretary-Treasurer was actually Bridges’. Bridges simply stated to Huffman that he was going to be the Secretary-Treasurer:

“Q. Did you occupy a position with them?
“A. I was shown as secretary-treasurer on each of these companies.
«* * *
“Q. Were you also the bonded officer, the principal bonded officer of those two companies?
“A. So I now understand.
«* * *
“Q. How did it come about that you suddenly became Secretary-treasurer of Southern Industrial Life ' Insurance Company? Was that discussed with you beforehand?
“A. No, sir; I can’t recall the specific instance, other than he [Bridges] just told me that he was making me secretary-treasurer of Southern Industrial Life Insurance Company.
“Q. I see. Did you give him your agreement that you would serve as secretary-treasurer of Southern Industrial?
“A. He was my boss, Mr. Taylor; it was a statement.
“Q. Well, you didn’t disagree.
“A. I didn’t protest.”

The additional tasks did not take up a great deal of his time. Once or twice a week, Bridges would walk in and hand him some papers to sign, and would stand there while Huffman signed them. Sometimes Bridges would leave a stack of business papers on Huffman’s desk for him to sign. There would also be checks for him to sign.

Huffman testified that he rarely, if ever, ■read the documents he was signing. Many •of them were legal papers, and he said he had no reason to read them. Also, if Bridges was waiting for his signature, he could not stop and read the documents. When signing checks, as well as the business papers, Huffman rarely knew the purpose for which they were being used. Most of the time he signed the checks in blank. When the disbursement was to pay a bill, on occasion he would have the bill in front of him at the time he signed the check. For other checks, such as those used for investments, he frequently did not have any knowledge of where the check was going. He never made an attempt to see if there were actually papers to support the money being paid out.

Thus the manner of operating these various businesses was to have the checks signed before they went to the desk of the person who filled in the payee and the amount being paid. In the normal course of business, Huffman signed several hundred checks in blank. In this context, Huffman was asked to sign in blank some extra checks and leave them in the checkbook. Huffman testified that the request was made by either Miss Bishop or Bridges who explained that occasionally checks were needed when they worked at night or on weekends when Huffman was not in the office. It was with nine of the checks signed in blank in advance that the missing money was abstracted.

The Legal Duties of Huffman

The Court of Civil Appeals held that, as a matter of law, Huffman was a trustee; and, as a matter of law, his conduct constituted a breach of trust. The Court of Civil Appeals based this conclusion on its analysis of art. 14.08 of the Texas Insurance Code. Under art. 14.08, Huffman was the one “responsible in the handling of the funds of the corporation.” To the Court of Civil Appeals, this meant he was responsible not only for receiving the money as it came into the company and for disbursing the funds by signing checks, but also was responsible for investment decisions and all other decisions as to what to spend company money for. The Court of Civil Appeals further concluded that Huffman had the responsibility to see that the money actually was spent for those things shown by company books.

Chapter 14 of the Texas Insurance Code provides the law which governs a mutual assessment insurance company. A mutual assessment insurance company is expressly excepted from the Texas Business Corporations Act by art. 9.14 of the Corporation Act. Thus whatever duties the law requires of an officer of an insurance company is to be found in the Insurance Code. Chapter 14 of the Insurance Code provides in art. 14.04 that the company is to be governed according to a constitution and the by-laws adopted by the members of the association and approved by the State Insurance Commission. The constitution and hy-laws of Southern Industrial Life Insurance Company specify the duties and de-sponsibilities of its officers:

“Section 1. President. The President shall preside at all meetings, supervise all business of the company, sign checks on the mortuary and general fund, sign all notes and agreements of the company on any loan or advance to the mortuary or general fund (any such loan or advance shall be binding upon the company until repaid in full out of account so designated in agreement made) and may furnish the required bond to the Board of Insurance Commissioners, and sign all policies of membership, keep a record of all records pertaining to the company’s business, have full charge of all files and records, unless he so designates this responsibility to another officer of the company at a regular or special meeting of the Board of Directors and the Directors approve the officer of [sic] officers designated.” Constitution and by-laws, Art. 8, Sec. 1, as amended in part, January 10, 1955.
“Section 3. Secretary-Treasurer. The Secretary-Treasurer shall sign all policies of membership and keep any and all other records pertaining to the Company, subject to the approval and to be kept as per instructions from the President.” Constitution and bylaws, Art. 8, Sec. 3, as amended October 2, 1939.

When the Board of Directors elected Huffman Secretary-Treasurer, they also passed the following resolution:

“Resolved: That R. D. Huffman, Secretary-Treasurer, be, and he hereby is, authorized and empowered to open one or more bank accounts in the name of the company in any bank or banks in Texas that are legal depositories for funds of such companies and to sign such signature cards, checks, resolutions or other instruments of writing as may be required for the normal conduct of business of the Company.” Minutes of Special Meeting of the Board of Directors of Southern Industrial Life Insurance Company, February 13, 1959.

Neither the statutes nor the constitution and by-laws of the company expressly establishes the Secretary-Treasurer as a trustee. If, therefore, the Court of Civil Appeals is correct in holding Huffman a trustee, it must be by implication. However, the issue before this Court is not whether a trust was created; rather, the question is whether Huffman’s conduct was fraudulent and dishonest. If it was, then the surety is liable on the bond regardless of whether Huffman was a trustee; and if the conduct was not, there can be no recovery on the bond.

On the issues submitted to it, the jury found: that Huffman did not commit an act of fraud or dishonesty upon Southern Industrial Life Insurance Company, either directly and alone, or in connivance with Bridges, in signing certain checks and making them available to Bridges; that Huffman was not guilty of reckless, willful and wanton disregard for the interests of Southern Industrial Life Insurance Company so that his acts were manifestly unfair to the company and clearly subjected it to the likelihood of loss; and that Huffman was not guilty of wrongful abstraction. The jury further found that Southern Industrial Life Insurance Company did not receive mortgage liens purchased with the above checks; that Huffman’s failure to secure the mortgage liens for Southern Industrial Life Insurance Company did not constitute fraud and dishonesty on his part toward the company; that Huffman’s failure to secure the mortgage liens was not such reckless, willful and wanton disregard for the company’s interests so as to be manifestly unfair to the company.

While in the Neiman and Shaw cases, the bookkeepers did acts to conceal the missing funds, and with knowledge that funds were missing made false entries in the hooks, Huffman did not. There is no^ allegation that false book entries were made. There is no evidence showing that Huffman actually knew money was missing. The evidence is in dispute as to whether he knew what Bridges was doing, and whether he knew there were no mortgages to support the book entries. Since such evidence was in dispute, we think the questions were correctly given to the jury to decide. We therefore hold that the Court - of Civil Appeals was in error in holding that as a matter of law the surety company was liable on the bond.

We must now turn to procedural matters ■in order to determine what disposition of the case this Court must make.

After oral argument in this Court, the Receiver filed an amended application for writ of error raising for the first time in this Court cross-points which, if sustained, would require a reversal of judgment of the trial court and a remand for new trial. These points were raised by the Receiver as appellant in the Court of Civil Appeals, but that court did not pass upon them. They were not contained in a motion for rehearing in that court because the .Receiver was the prevailing party there.

The surety company objected to the late amendment of the application under the authority of City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1955). A majority of this Court is of the opinion that the amendment should be allowed under Rule 481, Texas Rules of Civil Procedure. The distinction seen by the majority is that in Deer Park the amendment was attempted after a judgment had been announced by this Court in that case.

We could return this case to the Court of Civil Appeals for it to pass upon these points, and let the points be brought back to us by writ of error. But since they raise only questions of law, we will pass upon them now in the interest of expediting the determination of the case.

Most of the Receiver’s cross-points deal with the trial court’s charge to the jury. The substance of the first two of his points is that the court erred in using the word “guilty” in several of the issues. He argues that the use of . the word placed upon him an undue burden of proof, and that it was prejudicial because the word carried a criminal connotation. Thus, the Receiver argues, the use of the word “guilty” erroneously led the jury to believe he had to meet the standard of proof required in a criminal case, and that the conduct in question had to be of a criminal nature for the surety company to be liable on the bond. He further argues that the use of the word “guilty” was unfair because it was calculated to confuse and mislead the jury; that it is a word subject to several meanings; one of which, the criminal connotation, is unfair to his case.

The bond in question which was before the jury did cover several acts, the violation of which would ordinarily result in a person being accused or convicted of a crime. For example, it covered acts of “larceny, theft, embezzlement, forgery * * * wrongful abstraction * * * or any other act of fraud or dishonesty.” The Receiver limited his accusations against Huffman to wrongful abstraction, fraud and dishonesty. But he alleged that Huffman willfully exercised no control, was motivated by fraudulent and dishonest intent, and purposely acted in the role of a dummy or tool of Bridges. We have held above that for the surety to be liable on this bond, some intent to commit the wrongful act is necessary; and that it does not cover mere neglect, carelessness, or incompetence.

The issues as submitted did not place upon the Receiver a greater burden of proof than is proper for this type case. The proper standard of proof is “preponderance of the evidence.” Each issue submitted to the jury in this case stated this standard of proof. Nowhere was there mentioned any other standard which might have led the jury astray. Thus, on the face of the record, the burden of proof was proper.

The Receiver argues that a stricter standard is contained in the word “guilty.” If the charge had asked no more than whether Huffman was “guilty,” there might be merit in his argument; but the charge does ask more. As already stated, the standard of proof is explicitly set forth as “preponderance of the evidence.”

The word “guilty” is defined in Webster’s New International Dictionary (Merriam-Webster, 2d ed. unabridged 1960) as follows:

“Having committed a breach or breaches of conduct; justly chargeable with, or responsible for, a delinquency, crime, or sin; as, a guilty man; also,• chargeable with, or culpably responsible for, the fault or crime (of); as, guilty of bad taste; guilty of larceny.”

The word, as used in the Bankruptcy Act, is defined by the court in In re Goldberg, 53 F.2d 454, 80 A.L.R. 399 (6th Cir. 1931), as denoting intentional wrongdoing. It was there held applicable to fraudulent misconduct, not criminal in nature (taking or attempting to take a second discharge in bankruptcy within a six-year period). Similarly, Hilkert v. Canning, 58 Ariz. 290, 119 P.2d 233 (Ariz.Sup.1941), the court had before it a statute authorizing the revocation of an accountant’s license if he should be found to be “guilty of any act or default discreditable to the profession * The court construed this to mean the commission of acts of unprofessional conduct, and it held that the statute was sufficiently definite to support a revocation of a license. The court relied upon that portion of the dictionary definition of “guilty” which gave its meaning as “responsible for a delinquency, crime, or sin.”

As a matter of fact, the Texas Insurance Code in its general provisions, Article 21.47, says in effect that any person who shall, with regard to a material fact, knowingly and willingly falsify, conceal or cover up any scheme, or make any false, fictitious or fraudulent statement or representation, shall be fined $5,000, or be imprisoned not more than 5 years, or both. The accusations made by the Receiver of Huffman came very close to stating the substance of this crime.

The Court here was careful to point out what Huffman was accused by the Receiver of doing or failing to do. The word “guilty” does’ have a recognized meaning which correctly fits the allegations made, and no suggestion was made that the Receiver had to prove his point “beyond a reasonable doubt” as is required for a criminal conviction. In this context, we cannot say that the use of the word was erroneous.

The jury was asked in separate issues whether Huffman did or did not do the acts relied upon by the Receiver as being fraudulent and dishonest, without reference to “guilt.” In other issues the jury was asked whether he was ’guilty of having committed the acts. The jury could have answered that from a preponderance of the evidence, he did do some or all of the acts, without regard to “guilt.” It did not do so. It is therefore clear that no prejudice or harm resulted from asking whether, by a preponderance of the evidence, Huffman was guilty of committing the acts alleged against him.

The Receiver next argues that Issue No. 1 and similar issues were improperly worded because they did not contain words which would also inquire as to whether Huffman failed to exercise control over funds. The issue as submitted is copied below, with the words desired by the Receiver but omitted by the trial court being italicized:

“Do you find * * * that, in signing the checks * * * and making them available to W. L. Bridges, Jr., and in failing thereafter to exercise control over such funds disbursed or property received therefor, R. D. Huffman committed an act of fraud or dishonesty upon Southern Industrial Life Insurance Co., acting either directly and alone, or in connivance with said Bridges ?”

The signing of the checks in blank and making them available to Bridges is one thing, and the failure to exercise proper control over the funds and affairs of the company is another. Thus the included words would have made the issue duplicitous. The jury charge in later issues inquired whether the company received liens purchased with the checks and whether Huffman’s failure to secure liens was wrongful.

The refusal of the trial court to include the omitted words was not error for the additional reason that it assumes that it was Huffman’s duty to exercise “control” over the funds and the property of the company. “Control” is a very broad word. As we have discussed above, the law does not impose upon a person in Huffman’s position the duty to control the investment of the company’s funds. He was not given “veto” power over acts of the company or its president. Consequently, any fact finding on whether he exercised control or not would not be pertinent to the controlling issues in this cause.

In this connection the trial court instructed the jury as follows:

“You are instructed further that, at all times involved herein, R. D. Huffman was responsible in the handling of the funds of Southern Industrial Life Insurance Company.”

The Receiver next contends that it was error not to instruct the jury that the policyholders are the owners of a mutual insurance company, and that it is to them, the policyholders, that Huffman was responsible. He argues that the failure to submit these instructions misled the jury into believing that Bridges had control over the investment of the company’s funds. As above stated, the court did instruct the jury that at all times, Huffman “was responsible in the handling of the funds of the company.” Whether the company was owned by policyholders or stockholders would not appear to make Huffman’s acts right or wrong. The question of whether or not the duties which Huffman owed to the policyholders were breached is pertinent to this lawsuit only insofar as it aids in determining violations of the fidelity bond. The court did include instructions that Huffman was the man legally responsible in the handling of the company’s funds. The instructions requested by the Receiver would be proper only if his analysis of the law on the theory of control were correct. The refusal of these instructions was proper.

The Receiver next contends that the court erred in its definition of “connivance.” The word “connivance” is one of ordinary meaning. It has no peculiar or particular connotation here. Webster’s dictionary, supra, defines “connivance” as :

“Corrupt or guilty assent to wrongdoing, not involving actual participation in it, but knowledge of, and failure to prevent or oppose it.”

The court’s definition of the word in the charge was obviously patterned after the dictionary definition. It was, “A corrupt or guilty agreement or assent to wrongdoing. Such agreement or consent may be active or passive, but the agreement or consent must be with knowledge of the wrongdoing.”

The Receiver’s requested definition was longer and, in effect, contained examples. It included voluntary oversight; voluntary blindness; secret co-operation to aid and abet; to feign ignorance of; to wink at, or pretend not to know, et cetera. It is our opinion, that the substance of the court’s definition was correct and that no harm resulted from failure to enlarge the definition.

The Receiver has other counterpoints which raise shades and variations of the points heretofore discussed. We have carefully examined them. In view of the length of this opinion, we shall not write further on them. They are overruled.

The Receiver next contends that the argument of counsel for the surety company was so unfair and inflammatory that a new trial should he ordered. The entire argument of both parties was transcribed and is before us and has been carefully read. Counsel for the Receiver made no objection to any of the argument complained of, and answered it in the closing argument.

Counsel for the Receiver opened the jury argument by telling the jury that Huffman was responsible to the policyholders and not to Bridges; that Huffman was wholly responsible for the funds; that Huffman’s conduct was voluntary blindness. He accused Huffman of leading a double life; that he reminded counsel of “The Great Pretender” and that was just what Huffman was; that all he did was write blank checks. He told the jury that “there is no question * * * but that the company was looted; and how it was looted because Mr. Huffman went along with his blind, willful, utter disregard for the interests of everybody but Mr. Bridges.” “We say there was wrongful abstraction because Huffman knew what he was doing; he knew these monies were being diverted over into Mr. Bridges’ private companies.” The “looting” charge was repeated.

In its argument, the first counsel for the surety answered the “looting” charge. He argued that there was nothing to convict this man of fraud and dishonesty. Most of the opening argument for the surety was directed toward stating that there were no acts of fraud and dishonesty on the part of Huffman; that Huffman never got anything out of the company himself; that the Receiver’s case was built on circumstantial evidence; and that the wrongs were based upon what Huffman “should have known,” rather than what he actually knew. Counsel then stated, “Where are the fingerprints of Huffman as a thief?”

The second attorney to argue for the surety company made the statements of which the Receiver complains most strongly. After referring to the “looting” charge, counsel said, “In all of this investigation, what have they got to show to connect this young man with being a crook, a thief, or an embezzler ?” He then discussed the evidence; and concluded, apparently in sarcasm, “That [evidence] makes him a crook and an embezzler and knowing all about this crooked looting of these insurance companies.” This counsel finished by saying, “The burden of proof is on them to show that this man had a willful disregard of the law and was dishonest”; and that the Receiver did not sustain the burden of proof to show that “this man is a thief, an abstractor of funds, and that he willfully and intentionally failed to do these things that the Court asks you about.” As stated above, there were no objections to any of this argument.

The closing argument for the Receiver stated that the bond in question was not just a Justice of the Peace bond; that it was not a bond in which the jury would have to find that Huffman was a thief or an embezzler. “You are shown in your charges what to find. And if from the evidence you think that what has been presented meets that standard, all three of them, or anyone of the three, we think it should be entered in the affirmative.”

We cannot say that considering the argument as a whole, read in the light of the record in the case, it was such as to cause a rendition of an improper verdict. The Receiver relies on this Court’s opinion in Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951). In the Dickson case there were two separate elements of improper jury argument. In the first, counsel for the plaintiff in answering the defendant’s opening argument, asked if his client (the plaintiff) was a liar, a cheat, or a fraud; that he did not think she was any of those, or a faker, or an impostor. The argument was objected to on the ground that the defendant had not called her any of those things. The objection was overruled. This Court said the objection should have been sustained. The second part of the argument was more inflammatory. It accused the defendant’s doctor of being a “cutting doctor” who was “influenced by a desire for whittling flesh”; that he “socked” the plaintiff $350 for just taking some stitches in her knee. Plaintiff’s counsel stated that the defendant’s doctor ought to be getting a part of the defendant’s attorneys’ fees because he was such an advocate; and that the doctor reminded counsel of the story about the fisherman who said to the fish, “Lay still! I ain’t going to do nothin’ to you except cut your guts out.” Counsel for the plaintiff further referred to the defendant and its lawyers as a bunch of cattle. This Court said the arguments were improper, and taken together, they probably did cause the rendition of an improper verdict. We regard the Dickson case as being clearly distinguishable.

Finally, there is a procedural problem. The Court of Civil Appeals, in holding as a matter of law for the Receiver, has in effect held there is no evidence to support the fact findings of the jury. In this, we have held it erred. A decision by a Court of Civil Appeals that there is “no evidence” to support fact findings includes, by necessary implication, a holding that the evidence is insufficient to support such fact findings, or that the findings of the jury are against the great weight and preponderance of the evidence. Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, 807 (1954); Calvert, Some Problems of Supreme Court Review, 21 Texas Bar Journal 75 (1958). Under these circumstances, instead of sending the case back to the Court of Civil Appeals for it to pass upon questions of the sufficiency or the “weight and preponderance” of the evidence we remand the case directly to the trial court for a new trial. Barker v. Coastal Builders, supra. But, for this Court to so remand, there must be pioper points presented in the briefs in the Court of Civil Appeals raising the questions of “insufficiency” and “weight and preponderance.”

There were no such proper points in this case, and the rule above referred to is not applicable here.

The only point in the Receiver’s brief in the Court of Civil Appeals attacking the weight and preponderance of the evidence or the sufficiency of the evidence was his Point 13. That point reads:

“The [trial] court erred in refusing to set aside the verdict of the jury because the verdict on the special issues was so contrary to the overwhelming w dght of all the evidence as to be clearly wrong and unjust.”

This point did not attack the sufficiency of the evidence to support a particular issue or the weight and preponderance of the evidence as to any issue. It was, rather, an attack at the entire jury verdict. This Court has held that such a general assignment will not support a reversal. Texas Employers Ins. Ass’n v. Hawkins, 369 S.W.2d 305 (Tex.1963). A basis of the ruling is that the Court of Civil Appeals itself must decide that a specific issue or issues are not supported by sufficient evidence or that they are against the great weight and preponderance of the evidence. Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960).

The Receiver attempted unsuccessfully to supply specific points by amendment. Rule 431, Texas Rules of Civil Procedure, dealing with the Courts of Civil Appeals, says:

“Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe * * * ”

The Receiver presented to the clerk of that court a motion for leave to amend his brief and to add therein the proper points on “insufficiency” and “weight and preponderance.” The motion for leave to amend and the amendment (the points themselves) are all under the same cover. This combined document bears the file mark of the clerk of that court. If that were all, it might be presumed (though it is unnecessary to decide) that the court had granted leave to file and that it had considered the new points. But that court has written an opinion which affirmatively shows that it did not act on the motion. The unpublished opinion reads:

“Appellants have filed a motion in this Court requesting that our records be corrected to show that their motion filed herein on June 17, 1963, to amend their brief was granted. Writ of error has been granted in this cause and it is now pending in our Supreme Court.
“We have jurisdiction and authority, and it is our duty, to correct or amend our records at any time in order that they may speak the truth. The truth here, however, is that appellants’ motion to amend their brief was never overtly acted on by this Court. We will say that had such motion been formally determined, we would have granted it. We would do so now had we the authority.
“Whether or not our silence regarding this motion, under the circumstances related by appellant, is the equivalent of granting it is, we believe, now a question for decision by the Supreme Court.
“The motion is overruled.”

This must mean that the Court of Civil Appeals did not act upon, and hence did not grant, the leave to amend.

In the trial court, the surety company contended that Huffman was a necessary party and that it was error to proceed to trial without his being made a party. In this Court, the Receiver has submitted a conditional application contending that the Court of Civil Appeals erred in sustaining the surety company’s point that Huffman must be joined as a party. The surety company’s argument in this Court is that the Court of Civil Appeals erred in not dismissing the suit for failure to join Huffman as a party. Since this Court is reversing the Court of Civil Appeals and affirming the judgment of the trial court in favor of the surety company on other grounds, it is .not necessary to resolve this point. The outcome of the present case does not affect the rights of Huffman, and it does not prejudice the right of the Receiver to file a separate lawsuit against Huffman, personally, if he so desires.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN and SMITH, JJ., dissenting.

SMITH, Justice.

I respectfully dissent. In my opinion, Huffman committed acts of “fraud and dishonesty” within the meaning of those terms as used in Article 14.08, Texas Insurance Code, and the surety company is accordingly liable on its fidelity bond.

I fully recognize that the bond in question does not “guarantee a faithful performance of duties.” Furthermore, as the majority opinion notes, it is elementary that the bond “indemnifies only for crimes or wrongs listed * * Among the listed wrongs, for which protection is provided, are acts of fraud and dishonesty.

The surety company has contended throughout the trial of this cause that the terms “fraud and dishonesty” are limited to include only conduct involving moral turpitude or want of integrity on the part of the bonded employee committed by him with a sense of consciousness and willful wrong. In the alternative, the surety company has contended these terms cover only conduct committed with such reckless, willful and wanton disregard for the interests of his employer that such conduct was manifestly unfair to the employer and clearly subjected it to the likelihood of loss.

On the other hand, respondents contend that the terms “fraud” and “dishonesty” as applied to coverage under a bond of fidelity insurance given by the bonding company pursuant to the provisions of Article 14.08, include not only those elements contended for by the surety company, but include acts and conduct the nature of which shows a want of integrity or a breach of trust.

This court has held that to constitute fraudulent and dishonest conduct, within the meaning of the bond, Huffman must have had “some degree of intent to perform the wrongful action. There must be the physical act plus the mental state for there to be fraud.” The majority opinion further states that “ * * * an intent to do a wrongful act, or knowledge that others were acting wrongfully” is necessary. The majority then concludes that the jury findings in favor of the surety company must be upheld since “ * * * the evidence of Huffman’s conduct does not conclusively show that he either participated in the wrongdoing or that he had knowledge of the wrongdoing.”

First, assuming that this court has applied the correct test as to what constitutes “fraudulent and dishonest” acts within the meaning of the bond, Huffman’s conduct falls within the majority’s definition. The evidence clearly shows that Huffman posted the very checks declared on which showed their diversion to the private account of W. L. Bridges, Jr.

There is a more basic reason, however, why I cannot agree with the majority. Pri- or to this cause, the terms “fraud” and “dishonesty,” as used in conjunction with the extent of coverage of a fidelity bond, had not been definitively interpreted. This being-so, this court should liberally com strue the terms in order to effectuate the purpose for which the Legislature has required that such a bond be posted; e. g., the protection of the public interest. In my opinion, the narrow definition adopted by the majority does not carry out this purpose but, to the contrary, renders Article 14.08 meaningless and makes inoperative the bond in question.

Under the provisions of Article 14.08, the Legislature has directed that some officer “shall be responsible in the handling of the funds of the corporation.” In the present case, Huffman was appointed to, and accepted, this responsibility placed upon him by the Statute. At this point, any attempt to comply with the legislative mandate ceased. By his own testimony, Huffman admitted that he voluntarily and completely surrendered all control of handling the corporation’s funds :

“Q Now, having taken over as secretary-treasurer and bonded officer of Southern Industrial Life Insurance Company, did you have occasion to write some checks from time to time in that company?
“A Yes, sir.
“Q Did you write all or most of the checks in that company?
“A No, sir. I signed most of the checks.
“Q How did you sign them?
“A I signed checks in blank in most instances. Possibly some bills I had before me; I paid them with the bill in front of me.
******
“Q Did you ever look to see the source of these ■ expenditures resulting from the blank checks that you signed—
“A No, sir, other than—
“Q —to. see where the money was going?
“A No, sir, other than casually looking at a check, while I was signing it, maybe, sometime.
“Q And did you ever bother to see whether any papers were executed to support these disbursements, the blank checks that you were signing?
“A No, sir; Mr. Bridges handled all the paper work, the legal documents, the processing of all investments.
“Q You never did bother to check on that?
“A No, sir.
* * * * * *
“Q Did you see any of the mortgage loan papers in the office there, supporting those purported mortgage loans, for the year 1959 for Southern Industrial?
"A No, sir. As I said, Mr. Bridges handled the investments and all the necessary legal documents.
5>í % :{í :jc %
“Q Did you attempt to make an investigation whatever of the financial affairs or bookeeping of Southern Industrial Life Insurance Company while you were the secretary-treasurer and principal bonded officer of the company?
“A No, sir.
“Q Did you exercise any care whatever in seeing that the money that was disbursed went for authorized investment purposes under the Insurance Code?
“A I only made disbursements when I was instructed to by Mr. Bridges. As far as checking on any of those disbursements, I did not.
“Q Well, did you exercise any degree of care or responsibility with reference to determining whether the disbursements were for authorized purposes and were proper ?
“A No, sir; since Mr. Bridges handled that, he took care of it.
“Q Did you ever make any attempt to recapture any of the money that went out of the company on these blank checks which you said you signed, where it went for purposes other than the insurance company, Southern Industrial?
“A Did I personally make any attempt to recover?
“Q Yes.
“A No.
“Q Did you ask anybody in the company or any of the officers or directors to make any attempt?
“A No, sir.
“Q Did you ever call to the attention of any of the officers or directors of Southern Industrial Life Insurance Company any irregularities, or the fact that you were signing all the checks in blank ?
“A No, sir, I was not aware of any irregularities, either in signing checks in blank, or in anything else.”

It is clear that as a direct result of this haphazard, loose manner of handling the funds, the corporation “expended” $277,500.00 for which it received nothing in return. Yet, the majority says that the surety company is not liable on its bond because the conduct of Huffman was not fraudulent and dishonest.

By directing that some officer be responsible for handling corporate funds, I do not believe the Legislature intended to permit a person in Huffman’s position to handle the funds in any manner, so long as he acted with a pure heart. As stated in McFarland v. George, Mo.App., (1958) 316 S.W.2d 662, 671:

“ * * * The primary meaning of 'responsibility’ as found in the dictionaries is the state of being answerable for an obligation. * * * The term 'responsibility’ includes judgment, skill, ability and capacity. Ohio Power Co. v. N. L. R. B., 6 Cir., 176 F.2d 385, 387 [11 A.L.R.2d 243]. Legal responsibility is the state of one who is bound or obliged in law and justice to do something. Behnke v. New Jersey Highway Authority, 13 N.J. 14, 97 A.2d 647, 654. In Crockett v. Village of Barre, 66 Vt. 269, 29 A. 147, the court said: ‘One’s duty is what one is bound or under obligation to do. One’s responsibility is its liability, obligation, bounden duty.’ The word ‘responsibility’ as used in the rule means the doing of something. Any other meaning would render the rule meaningless.3’ (Emphasis added.)

In my opinion, the Legislature clearly intended for a person in Huffman’s position to at least be responsible for seeing that corporate funds were actually being spent for those things shown on the company books: without such a minimum requirement, Article 14.08 is meaningless.

In his work on Contracts and Sales, Judge Simkins has defined “fraud” as follows:

“Fraud is an act or concealment involving a breach of legal duty, trust or confidence justly reposed, and from which injury results to another. * * * ”

This court has quoted the above definition with approval. See Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, aff. 258 S.W. 462, 51 A.L.R. 1 (1924).

The following general rule is set forth in 9 Appleman, Ins. Law and Practice, Sec. 5668, p. 513:

“Liability on a fidelity bond covering fraud or dishonesty is not limited to such losses as result from the criminal acts of the employee, but such words have been construed to have a broader meaning and to include any acts which show a want of integrity or a breach of trust.”

I am in full accord with the Court of Civil Appeals’ holding that, under the provisions of Article 14.08, Huffman was a trustee of the corporate funds. Furthermore, under my construction of the statute, his conduct amounted to a breach of trust as a matter of law. Therefore, he committed acts of fraud and dishonesty within the meaning of those terms as used in the statute; and, accordingly, the surety company is liable on its fidelity bond.

Even assuming that the majority is correct that “the Court of Civil Appeals was in error in holding that as a matter of law the surety company was liable on the bond,” I cannot agree with the judgment entered by this court. In my opinion, there were proper points presented in the Court of Civil Appeals raising the question of “insufficiency” and “weight and preponderance.” Thus, this cause should be remanded to the trial court for a new trial.

On June 17, 1963, prior to oral argument in the Court of Civil Appeals, appellant Langdeau filed a motion to amend his brief, together with an amended brief, in that court. This amended brief contained points on “insufficiency” and “weight and preponderance.” On the same day, a copy of the motion and the amended brief was delivered to counsel for the appellee surety company. Prior to filing his motion, appellant’s counsel was informed by one of the Court of Civil Appeals’ justices that it was not necessary that the Court enter any formal order granting the motion to amend, and that the Court considered such briefs as were before it on the date of oral submission.

During oral argument of the case, appellant’s counsel made reference to the amended brief stating that he assumed such brief would be considered by the Court and that such points as were raised in such brief were properly before the Court for consideration.

Although duly notified of the filing of said amended brief, counsel for appellee did not contest same by written motion nor did he contest the filing of such brief for consideration thereof by the Court during oral argument before the Court.

Notwithstanding the above, this court now holds that appellant failed to present proper points in his briefs in the Court of Civil Appeals raising the questions of “insufficiency” and “weight and preponderance.”

Rules of procedure should be interpreted liberally in order to promote justice, rather than to be utilized as a trap for the unwary to thwart justice. Since the Court of Civil Appeals sustained appellant’s no evidence points, it was not necessary for that court to formally determine appellant’s motion to amend or amended brief, wherein the jury answers to each special issue were properly attacked by points raising weight and preponderance of evidence questions.

It was not the fault of appellant that the ■Court of Civil Appeals did not formally grant his motion to amend, and appellant •should not, in justice, be penalized for such lack of action by the court.

It is necessary to discuss one other holding in order to understand the judgment I believe should be entered in this cause. In the trial court and the Court of Civil Appeals, the surety company contended that Huffman was a necessary party to the suit. The Court of Civil Appeals sustained this ■contention and therefore reversed and remanded with instructions to abate the cause “until Mr. Huffman is made a party or legal excuse for not doing so is established.” I do not agree that Huffman was a necessary party, and therefore the Court of Civil Appeals should have rendered judgment on the 'bond against the surety company.

The judgment of the Court of Civil Appeals should be affirmed in part and reversed m part. In the alternative, the judgment of the Court of Civil Appeals should be reversed and the cause remanded to the trial court for a new trial.

GRIFFIN, J., joins in this dissent.

      . All statutory references herein are to Vernon’s Annotated Civil Statutes of Texas.

      . Cited on p. 65, supra.


author: WOODLEY, Presiding Judge. McDONALD, Judge

text:
    Walter RILEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36696.
    Court of Criminal Appeals of Texas.
    April 1, 1964.

      Josephine Clements, Russell F. Wolters, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The complaint and information alleged that the appellant did “drive and operate a motor vehicle: to-wit, an automobile, on a public street.and highway — while his Texas license as a commercial operator- was then and there suspended, having been suspended under the provisions of Article 6687b, Sec. 24, of Vernon’s Annotated Texas Civil Statutes.”

Trial before the court on a plea of not guilty resulted in a judgment finding the appellant guilty and assessing his punishment at 5 days in jail and a fine of $50.

The evidence shown in the statement of facts reveals that on September 1, 1962, the appellant was driving an automobile on a public street in the City of Houston and was involved in a collision with a car driven by Minnie Bell. Police Officer L. Hoffman, Jr. investigated the collision and the appellant told him he had no driver’s license.

Joe Dvorsky, hearing officer and Deputy Custodian of driving records for the Texas Department of Public Safety, produced the records as to the appellant which showed the most recent license was a commercial operator’s license issued April 18, 1962. The records and the evidence show that such license was under suspension on September 1, 1962, by reason of a misdemeanor first offense D. W. I. conviction which became final on May 24, 1962.

The ground upon which reversal is sought is the contention that the trial court erred in overruling appellant’s motion to quash the complaint.

The transcript contains no motion to quash the complaint or the information.

The complaint and information are regular on their face.

Art. 513, C.C.P. provides: “All motions to set aside an indictment or information and all special pleas and exceptions shall be in writing.”

In the absence of a motion in writing, any issue as to the form of the information is not before us for review. Howard v. State, 157 Tex.Cr.R. 114, 247 S.W.2d 112; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Redding v. State, 166 Tex.Cr.R. 517, 316 S.W.2d 724.

If, despite the statute and the authorities cited, the claimed error in the overruling of the oral motion to quash is before us, the motion is without merit and the overruling thereof presents no error.

The judgment is affirmed.

McDONALD, Judge

(concurring).

While appellant did not effectively get before us his contention, he did get before us by brief and oral argument the two cases in support of his position. The two cases relied upon by counsel and which he refers to as “landmark cases” are the well known “stomping” and “drowning” cases of Northern v. State, 150 Tex.Cr.R. 511, 203 S.W.2d 206 and Gragg v. State, 148 Tex.Cr.R. 267, 186 S.W.2d 243. In the Northern case this Court held that an indictment charging that the defendant killed deceased by kicking and stomping her without charging that defendant stomped with his feet was fatally defective as failing to charge the means employed in commission of the offense. In the Gragg case it was held that an indictment charging that the defendant with malice killed another by then and there drowning her was defective as not alleging the manner and means used in accomplishing the drowning. Although this Court deviated from the holding in the Gragg case on rehearing and took the position and made it clear that its holding was grounded on the proposition that the defect in the indictment was in the State’s failure to allege the overt act of drowning such as that the defendant held his wife’s head under water or that he pushed her from a boat instead of as was alleged, that he killed her with malice by drowning her, this opinion, along with the opinion in Northern, supra, has not, to the writer’s knowledge, been cited as authority to this Court since the two opinions were written in 1945 (Gragg) and 1947 (Northern) . At this juncture, I should also like to observe that none of the present members of this Court were members of the Court at the time of rendition of these two decisions. Yet, this Court is still frequently criticized on account of these two cases and the Court still has them flaunted at it as expressing the philosophy of this Court. While the writer does not feel that a judge should be immune from criticism, and his acts should certainly not be based upon public approval or public disapproval, I do feel that this Court should at this time in this case take the opportunity of voicing its disapproval of these two decisions. While I might be criticized for reaching out and going out of my way to overrule the Northern and Gragg cases, supra, I think that it should be done and that this Court should do it in the majority opinion. To follow the holdings in these cases would cause an injustice today in favor of the defendant in so far as the rights of society or the efficiency of courts are concerned and would be a form of stare decisis neurosis on the part of this court.

It seems to me that just as this court reached'out when these two decisions were written, that we should now reach out and overrule them. The two cases may never -be cited again, and this Court will never follow them, I am sure, but in the interest of the jurisprudence of this state I think that the cases should be overruled.

I concur in the disposition of this case.


author: BELL, Chief Justice.

text:
    Margaret Hazel SCHULTZ et vir, Appellants, v. Robert Valentine McKINNEY et ux., Appellees.
    No. 14328.
    Court of Civil Appeals of Texas. Houston.
    April 30, 1964.

      Murray B. Mangum, Houston, for appellant.
    No appearance for appellee.
   BELL, Chief Justice.

The appellees, who are the maternal grandparents of David Lynn Strever, a ten year old boy, filed a petition in the Domestic Relations Court of Harris County asking that they be allowed to adopt the boy. In their petition they alleged that consent of the parents was not necessary because they had voluntarily abandoned the child and left him to the care, custody, control and management of other persons for ten years and had not contributed to his support commensurate with their financial ability to do so for said period. It was then alleged that the Judge of the Juvenile Court had given his written consent. We do not find any such consent in the record except that given in the order or judgment appealed from. The Judge of the Domestic Relations Court was also Judge of the Juvenile Court. The order appealed from is signed by the Judge as Judge of the Juvenile Court. The order appealed from is nothing more than one giving his consent to the adoption. The Judge found the parents had voluntarily abandoned the child, and that the father had left him in the care, custody, control and management of other persons for more than two years and had for more-than two years failed to support the child in a manner commensurate with his financial ability to do so.

The petition for leave to adopt is pending in the Domestic Relations Court.

We are of the view the order is not appealable and the appeal must be dismissed.

Article 46a, Sec. 6, Vernon’s Ann. Tex.St., provides that no adoption shall be permitted except with the consent of the living parent or parents of the child, or, with the consent of the Judge of the Juvenile Court if the parents have voluntarily abandoned the child, left it to the care, custody, control and management of other persons for two years or more, or, if the parents have failed for two years or more to contribute substantially to the support of the child commensurate with their financial ability to do so. The effect of this statute is to require the court before whom trial of the adoption proceeding is had to determine whether the requisite consent has been given. This necessitates a determination of the validity of the consent given by a Judge of a Juvenile Court. The validity of the consent depends upon the existence of the facts required by the statute. The existence of the requisite facts is, therefore, an issue in the trial of the adoption proceeding. If, in the Court passing on the petition for adoption, leave to adopt is granted the objecting parent who is a party to the suit may appeal from the final judgment of adoption on the ground that he or she had not consented to the adoption and the facts shown in the adoption proceeding do not authorize consent by the Juvenile Judge.

It may well be that before granting consent a cautious Juvenile Judge will want to determine whether the parents have voluntarily abandoned the child, etc. However, we are of the view that in doing so he is not acting in a judicial capacity.

The appeal is dismissed.


author: WILSON, Justice.

text:
    TRIANGLE ALUMINUM INDUSTRIES, INC., Appellant, v. Bertha JOHNSON, Appellee.
    No. 4232.
    Court of Civil Appeals of Texas. Waco.
    April 30, 1964.
    J. Manuel Hoppenstein, Dallas, Neal, Hazelwood & Wolfram, Amarillo, for appellant.
    Herbert C. Martin, Amarillo, for appel-lee.
   WILSON, Justice.

Defendant contends the trial court erroneously overruled its plea of privilege in plaintiff’s suit seeking to cancel a note and a lien on realty securing its payment, and recovery of damages to realty stipulated to be in the county of suit. Defendant contends that because the petition and controverting plea contained allegations, among others, that damage to the realty was caused by defendant’s negligence, it was necessary for plaintiff to establish the venue facts listed in subdivision 9a, Art. 1995, V.A.C.S., relating to negligence. It argues that since this subsection was enacted last, it controls. We do not agree.

If appellee showed (1) that his suit was for recovery of damages to land, and (2) that the land was situated in the county of suit, the venue facts necessary to maintain the suit under that portion of Subd. 14, Art. 1995 concerning suits for recovery of damages to land were established. The second of these venue facts was stipulated; the first was shown by the pleading. This was all that was required. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428; Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71. Affirmed.