author: PER CURIAM.

text:
    James BAGLEY et al., Relators, v. The Hon. Looney E. LINDSEY et al., Respondents.
    No. 7867.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 31, 1967.
    Joe. J. Taylor, Jr., Wm. Martin, III, Longview, for relators.
    Welby K. Parrish, Gilmer, for respondents.
   PER CURIAM.

Relators James Bagley, J. W. Rash, G. W. Harbour, and W. L. Nixon have filed a sworn petition in an original mandamus proceeding in this Court praying for a writ of mandamus requiring the Hon. Looney E. Lindsey, Judge of the 115th Judicial District Court of Upshur County, to set the amount of a supersedeas bond in Cause No. 13,630 on the docket of that court, styled Bagley et al. v. Holt, wherein judgment was rendered on August 1,1967.

The relators’ petition alleges that it was adjudicated in the mentioned action that, “the proposition for consolidation had carried by a majority of legally qualified and registered votors of the East Mountain Independent School District No. 907” in an election heid to determine whether or not the East Mountain District and Gilmer Independent School District would consolidate. Further, the petition alleged, such judgment noted that the relators as contestants therein had given notice of appeal to this court and that following entry of the judgment the relators requested the trial court to set the amount of a superse-deas bond so the relators might file a bond to supersede the judgment. No copy of the request has been made a part of the record in this court, but the petition alleges that such request was heard and refused on August 10, 1967.

The general authority for suspending the execution of a court’s judgment by supersedeas bond is contained in Texas Rules of Civil Procedure 364. The language of the rule is broad enough to permit it to be said by a well respected authority that, “supersedeas may issue as a matter of right pending the appeal of civil matters”, except in those instances otherwise specifically excepted by the rule or by statute. Espinosa v. Price, 144 Tex. 121, 188 S.W.2d 576, 160 A.L.R. 284 (1945); 53 Tex.Jur.2d Supersedeas § 2. No contention is made in this case that the judgment herein can not be superseded because it is excepted from the general rule by a provision of either the rule or a statute. Affirmatively stated, the judgment under consideration appears to be governed by both subdivisions (e) and (g) of Rule 364. Both subdivisions provide that the amount of the super-sedeas bond be set in the trial court. The trial court judge’s discretion is limited by the language in both subdivisions solely to a determination of the amount of bond; the judge is not authorized or called upon by either subdivision to grant or deny supersedeas.

The respondents candidly concede that the relators are entitled by Rule 364 to file a supersedeas bond in an amount fixed by the judge of the trial court, but asserted that a mandamus action is not available to them to compel the trial court judge to fix the amount of the bond because the mandamus writ, if issued, would be ineffectual; that the writ would compel the doing of a useless and idle act. This argument looks beyond the valid operation of the writ. In Renger v. Jeffrey, 143 Tex. 73, 182 S.W.2d 701, (Tex.Comm’n App.1944, opinion adopted) it is said: “The rules of civil procedure relating to supersedeas bonds * * * prescribe a method of suspending the execution of a judgment before it becomes final and while an appeal is pending.” The effect of filing a proper supersedeas bond, as stated in Tex.R.Civ.P. 368 is that “ * * * execution of the judgment, or so much thereof as has been superseded, shall be stayed.”

No reason has been suggested to this court by the respondents nor is a reason perceived why a writ of mandamus would not be effectual to cause the trial judge to fix the amount of the supersedeas bond. The cases respondents rely on present situations in which the issuance of a writ of mandamus would be ineffectual to accomplish the object in view. The object in view in this instance, the only valid objective of the mandamus writ, is to require the trial court judge to fix the amount of a supersedeas bond. The thrust of the argument of the respondents, as well as of the relators, is not directed to the effectu-ality of the mandamus writ, but concerns itself principally with the effect of super-sedeas on the relative positions of the parties, their relationships and rights, should the trial court judgment be superseded. An expression upon these problems has no place in this proceeding. The sole question before this court is whether or not the re-lators have a right to require the trial court judge to fix the amount of the super-sedeas bond. The relators have such right.

To the argument of the respondents that superseding the judgment will avail the re-lators nothing and is an act without meaning and utterly useless, it may be suggested that superseding the judgment would hold in abeyance the right and means of the contestees in the election suit to collect costs of court from the contestants, if nothing more. On the other hand the rela-tors’ preoccupation with and argument re-pecting the nature and extent of the status quo a supersedeas bond would preserve in the election contest is not before this court in this proceeding and of course is not determined by the judgment herein.

Having full confidence that the judge of the trial court will act in harmony with the views of the law expressed herein, the formal writ of mandamus will not issue out of this court at this time. To expedite a review of this court’s action by the Supreme Court, a motion for new trial will not be entertained and the parties will be allowed until the 12th day of September, 1967, to apply to the Supreme Court for relief; but should a petition not be presented to the Supreme Court on or before that date, or should the Supreme Court refuse it or decline to take action on or before such date, the trial court will proceed without unnecessary delay to fix the amount of the supersedeas bond, and may, if the court should ascertain from the parties that no petition will be presented to the Supreme Court, fix the amount at an earlier day.

This court suggested to the parties during oral argument that doubt as to its jurisdiction had arisen. Such doubt no longer exists, the court is satisfied that it has jurisdiction. See Hidalgo County Drainage Dist. No. 1 v. Magnolia Petroleum Company, 47 S.W.2d 875 (Tex.Civ.App.1932, error ref’d); Bard v. Kapp, 15 S.W.2d 719 (Tex.Civ.App.1929, error ref’d); and 37 Tex.Jur.2d. Mandamus § 83. Without going into detail it is sufficient to say that the record deposited in this court contains a petition for mandamus, that counsel for all parties appeared and argued the case, and submitted the issues raised to decision by this court, without objection on any ground. Such action constituted a waiver of any objection to a determination of the merits of the case.

DAVIS, J., disqualified and did not participate in the proceeding.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Charles Philip AKIN, Appellant, v. Mildred Bustin AKIN, Appellee.
    No. 11523.
    Court of Civil Appeals of Texas. Austin.
    July 5, 1967.
    Rehearing Denied Sept. 13, 1967.

      Ashton, Smith & Henderson, Teddy Henderson, Austin, for appellant.
    Van Thompson, Jr., Austin, for appellee.
   HUGHES, Justice.

Mildred Bustin Akin, appellee, sued Dr. Charles Philip Akin to recover delinquent payments due for support of their four children under a divorce decree which approved and incorporated an agreement made between the parties in contemplation of divorce, and for reasonable attorneys’ fees.

A similar suit was before this Court in Akin v. Akin, 412 S.W.2d 765, n. w. h.

The trial court rendered summary judgment for the amount of delinquent payments sued for and for $990.00 as reasonable attorneys’ fees.

Appellant’s first two points are to the effect that appellee’s cause of action is contractual in nature, subject to the pleaded defenses of material breach and failure of consideration, and that material issues of fact were present precluding the propriety of summary judgment for the delinquent payments.

Appellee’s motion for summary judgment and accompanying affidavit are adequate to establish the amount of payments delinquent under the property settlement and divorce decree, and this amount, as such, is not controverted. Attached to such motion are copies of the property settlement agreement and divorce decree. We refer to our opinion in Akin, supra, for the material contents of the property settlement agreement. This agreement was specifically approved by the court and made a part of its decree in the divorce suit. The court not only approved the support payments provided for in the contract but, separately and apart from such contract, “After investigation of the financial circumstances of both Plaintiff and Defendant (found) that the Defendant is well able to contribute to the support of said children” in the same amounts as stipulated in the agreement and entered judgment accordingly.

Appellant filed no controverting affidavit in reply to appellee’s motion for summary judgment. He did file, through his attorney, a sworn answer from which we copy the relevant portions:

“The agreement signed by defendant was based on plaintiff maintaining and supporting the four children of defendant. Since the divorce the oldest child Larry Akin, age 13, has left plaintiff by his own wishes, and with the plaintiff’s consent, since that time he has lived with defendant who has fed, clothed and supplied said child with all of his support. The failure of plaintiff to provide said Larry Akin support is failure of the consideration on which the agreement to provide support was entered into.
V.
That defendant under said agreement on which plaintiff sues was to have reasonable visitation privileges with all four of the said children; defendant has since been denied all rights to visit the three children still living with the plaintiff. Such right has not been by the court, but has been so denied by threat to do defendant bodily harm if he tried to pick up the children. Denial of defendant’s visitation rights is a material failure of the consideration on which defendant agreed to pay child support.”

We note here that the divorce decree was rendered by the court for the 147th Judicial District and that this case is appealed from the court of the 98th Judicial District.

Appellant relies upon the following cases to sustain his position: Mobley v. Mobley, 221 S.W.2d 565, Tex.Civ.App., San Antonio, n. w. h.; Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370; Hutchings v. Bates, 406 S.W.2d 419, Tex.Sup.Ct.

In Mobley, the Court construed a divorce decree as follows: “From an inspection of the face of the divorce decree it appears that the judge rendering the same treated the matter of child support and the settlement of community property rights as separate matters. The paragraph relating to child support does not show that it was based upon an agreement of the parties. In fact, it does not follow the terms of the agreement, in that the provision relating to the length of time during which the payments shall be made — until the children are through with their schooling — is omitted.”

The Court thereupon held that the decree with respect to its child support provisions was subject to modification, the Court expressly stating that “Nothing contained herein shall affect the obligations” assumed by the parties in the contract executed by them in contemplation of divorce.

Jones was a habeas corpus proceeding growing out of a contempt citation for failing to build a house in compliance with a judgment in a divorce case. The Court found that the obligation to build a house was based entirely upon an agreement between the parties and incorporated, by reference, in the judgment. The Court held that this judgment, as to the contract provisions, was governed by the law of contracts and not the law relating to judgments. The Court held “The contractual provisions in the settlement decree or agreed judgment are neither subject to modification nor can they he enforced by contempt proceedings.”

In Hutchings the Court held that a divorce decree based on a property settlement between the parties by which the husband was obligated to make support pyaments for his children was binding on his estate after his death. The Court, citing Jones, stated that the rights and obligations of the parties under a settlement agreement in a divorce case, approved by the Court and incorporated in the decree “are governed largely by the rules relating to contracts.”

A judgment by consent has the same force and effect as a judgment rendered after protracted litigation. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, and authorities there cited.

In Routon v. Phillips, 246 S.W.2d 223, Tex.Civ.App., Fort Worth, writ ref. n. r. e., opinion by Justice Culver, the Court quoted approvingly from 49 C.J.S. Judgments § 178, as follows:

“[1] 49 C.J.S., Judgments, § 178, states: ‘In the absence of fraud or mistake a consent judgment is valid and binding, as such, as between the parties thereto and their privies. The judgment is not invalidated by a subsequent failure to perform a condition on which the consent was based, * * * and unless it is vacated or set aside in the manner provided for by law it stands as a final disposition of the rights of the parties thereto.’ ”

The law, thus stated, as applied to agreements for child support payments incorporated in divorce decrees is found in Brady v. Hyman, 230 S.W.2d 342, Tex.Civ.App., San Antonio, n. w. h., opinion by Justice Norvell, as follows:

“A judgment based upon a party’s agreeing and consenting to a court’s rendition of judgment against him for a specified amount is a consent judgment, and that is the type of judgment involved here. A provision for child support may properly be a part of a settlement agreement made in contemplation of divorce.
The order amending and modifying the original 1946 decree purports to affect and modify the settlement agreement upon which the provisions of the decree relating to child support are based. In this particular, the order is erroneous for, as stated in the Plumly case, [210 S.W.2d 177] the child support provisions of the judgment, insofar as they are based upon contract, and ‘in the absence of fraud, accident or mistake, should not be set aside or modified except by the consent of the parties.’ ”

To the same effect is Morris v. Morris, 406 S.W.2d 550, Tex.Civ.App., Amarillo, n. w. h.

If appellant has any remedy in the premises it is by direct attack on the divorce judgment in the court which rendered it. The duty of other courts, meanwhile, is to enforce it.

Appellant has a point to the effect that attorneys’ fees are not recoverable in a suit of this kind. The contrary has been held in Schwartz v. Jacob, 394 S.W.2d 15, Tex.Civ.App., Houston, writ ref. n. r. e. We follow this decision.

The trial court erred, however, in rendering summary judgment for attorneys’ fees based on affidavit of an attorney expressing his opinion of the value of the services rendered. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155.

We reverse and remand this cause insofar as attorneys’ fees are concerned; otherwise, it is affirmed. See Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, Tex.Sup.Ct.

Affirmed in part; in part reversed and remanded.


author: CHADICK, Chief Justice.

text:
    W. E. “Buddy” SANDERS, Individually and d/b/a Buddy Sanders Display Service, Appellant, v. FIT-ALL PRICING CORPORATION, Appellee.
    No. 7829.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 15, 1967.
    Thomas A. Melody, Dallas, for appellant.
    Dan Hoffmeyer, Ungerman, Hill, Unger-man & Angrist, Dallas, for appellee.
   CHADICK, Chief Justice.

Fit-All Pricing Corporation instituted a sworn account action against W. E. “Buddy” Sanders, Individually and d/b/a Buddy Sanders Display Service in County Court #3, Dallas County. Sanders’ original answer contained a general denial and a verified plea that “such claim is not just or true, in whole or in part, and that all offsets, just and lawful, payments and credits have not been allowed”, together with a cross-action against Fit-All to recover $5,-179.46, plus costs of suit. Fit-All Pricing Corporation entered a special appearance to challenge the jurisdiction of the court to entertain Sanders’ cross-action.

On the same day Fit-All entered its special appearance, Sanders filed a “Motion to Pass Setting”; the motion’s grounds and prayer are as follows:

“Without waiving any former motion Defendant prays of the Court to pass this setting to a time convenient to the Court and the Plaintiff because of bus conditions upsetting the regular work week of the Defendant. Further, Defendant desires time to bring in certain exhibits not now available in the form of materials supplied by the Plaintiff to the Defendant, the subject matter of this controversy.
“WHEREFORE, PREMISES CONSIDERED Defendant prays for passing of this Court setting of the 4th day of October, 1966.”

Two days later, on October 6th, the case proceeded to trial. The trial judge sustained Fit-All Pricing Corporation’s plea to the jurisdiction of the County Court to entertain Sanders’ cross-action and dismiss such cross-action. The record on appeal reflects that Sanders’ general denial and verified contravention of Fit-All’s sworn account remained unaffected by the ruling. However, immediately after Sanders’ cross-action was dismissed, his counsel in open court tendered for filing an instrument labeled “Defendant’s First Amended Answer”. The instrument was orally described and tendered as a trial amendment. Objection to filing was made on the ground that leave of the Court had not been obtained; following a colloquy between the trial judge and counsel, some off-the-record and a part only reported, the judge refused leave to file the instrument. Appellant Sanders’ one point of error is: “The trial court incorrectly overruled the Defendant’s Trial Amendment consisting of an affirmative defense which would have allowed adequate defense, such overruling being arbitrary, an abuse of discretion, resulting in substantial injury to the Appellant”.

Examination of the rejected pleading shows it to have a hybrid nature. Besides a general denial and a verified contravention of Fit-All’s sworn account, a third paragraph pleads an offset of $361.88 as not having been properly credited as an offset against the total of the sworn account. This paragraph alleges that the product purchased by Sanders from Fit-All was inferior to, and not of the quality represented, resulting in damage to Sanders of $361.88 in loss of material and the sum of $50.00 for labor in its replacement. The prayer (see footnote a) was that Sanders be discharged of liability on' the account and that he recover judgment for costs of suit, together with $361.88 cost of inferior material, and $50.00 for labor. The statement of facts shows the trial judge understood the instrument to be a cross-action to recover judgment for material and labor. Sanders, speaking for himself while on the witness stand, appeared to agree that he understood the instrument to be an effort to recover damages. Counsel for Sanders did not commit himself to an interpretation, apparently relying on the instrument to speak for itself. While proper interpretation is not free of doubt, it appears from the prayer that the pleading contemplated not only an offset against the sworn account, but also, a recovery of damages, in addition to an offset. So construed, the proposed amendment to the pleading was actually in part a eross-action praying for affirmative relief by way of a judgment for or an award of damages.

It is a general rule that a party appearing in a case is charged with notice of subsequent amendments to an opponent’s pleadings without the necessity of a new citation. On this problem Professor Roy McDonald in 2 Tex.Civ.Practice, Sec. 811, says, that the practice prior to current rules was that when a cross-action was filed without leave of the court, the cross-defendant was entitled to have actual notice of the amendment before judgment was rendered thereon. However, he expresses the view that such procedure may no longer apply, because, under the prior practice, leave to amend was considered a device to assure notice of the pleading to the opponent; but, under current rules, in instances when no leave is required, notice is assured by the requirement of Rule 72 that a copy of the amendment be forwarded to the opponent.» He does not discuss the problem that arises in the situation presented by this appeal. Here the amendment was tendered shortly before trial without notice to the pleader’s opponent and without leave of the trial judge permitting it to be filed. Under the circumstances of this case, the logic of the prior practice would prevail. Otherwise, if leave to file was granted, the cross-defendant would be put to trial upon the cross-plaintiff’s suit for "damages when the cross-defendant had no notice of the suit and its demands before trial time.

On consideration of the entire record, it appears the trial judge, in this instance, did not abuse his discretion in refusing to grant permission to Sanders to amend his pleading at the time it was tendered. A reading of the statement of facts makes it apparent that the trial judge was willing to permit Sanders, pursuant to the pleading before the court, to show any offsets and credits he might be entitled to as a result of being furnished and charged for inferior goods. Sanders tendered no evidence that the goods furnished him were inferior in quality or otherwise. The record shows no request by Sanders for a continuance after the original cross-action was dismissed. The Court is aware of the reduction of the amount demanded in the original cross-action to a demand in the second for an amount within the jurisdiction of the County Court; but, because of the unique nature of the original cross-action and the context in which it was plead, this Court prefers to base affirmance upon the grounds discussed. Since no error is shown requiring a reversal, discussion of other aspects of the case would be to no purpose. The point of error must be overruled and judgment affirmed.

      . The body and prayer of the pleading are as follows:
      “NOW COMES W. E. Buddy Sanders, individually, and dba Buddy Sanders Display Service, and files this his Defendant’s First Amended Answer, and would show the Court:
      “Defendant denies each and every all and singular the allegations contained in Plaintiff’s Original Petition, and demands strict proof thereof.
      2.
      “Defendant further denies that the Plaintiff’s Original Petition and any amendment thereof does not contain a proper verified account in that such claim is not just or true, in whole or in part, and that all offsets just and lawful, payments and credits have not been allowed.
      3.
      “That such offsets are namely: That invoice order No. 9287, 8551 & 8552 in the amount of $361.88 has not been properly credited or offset in that such product identified was represented to be the same as the Eastman product known as Uvex, being cellulose acetate butyrate, and that such product being used by the Defendant properly in signs has yellowed and discolored, and that such yellowing and discoloration was through no failure or negligence of the Defendant, and that such representation by the agent, being Richard Florence, being within the scope of his employment, acting for, and on behalf of Plaintiff, assured Defendant, upon which Defendant relied that such goods were equal to and could be used the same as the identified Eastman prod-duct, and that the Defendant relying upon such representation had said product fail and discolor and cause him $361.88 damages because of loss of the material, and in addition, the sum of $50.00 labor in replacement of said signs and material.
      “That said Defendant has been damaged in the amount of this offset which has not been allowed by the account.
      “WHEREFORE, PREMISES CONSIDERED Defendant prays that the Plaintiff go hence without day, and for costs of suit, and for $361.88, the costs of the material, and for $50.00 labor for replacement of said material.”

      . Authorities supporting Professor McDonald’s view are listed in the footnotes to the text.


author: SHARPE, Justice. NYE, Justice

text:
    Mrs. George Allen WARD, Jr., Appellant, v. Mrs. James A. BRAUN et al., Appellees.
    No. 287.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 29, 1967.
    Rehearing Dismissed Aug. 31, 1967.

      J. Lev Hunt, of Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellant.
    William R. Anderson, Jr., of Sorrell, Anderson & Porter, Corpus Christi, for ap-pellees.
   OPINION

SHARPE, Justice.

This suit was brought by Mrs. Dorothy V. Ward, appellant, the surviving widow of G. A. Ward, Jr., against Mrs. James A. Braun and Mrs. J. R. Viola, (joined by their respective husbands), individually and as Independent Executrixes of the Estate of G. A. Ward, Jr., seeking to have set aside to appellant all personal property of said estate which is exempt under the constitution and statutes of Texas; for an allowance of $1000.00 in lieu of other exempt personal property; for an allowance of $5000.00 in lieu of homestead or to have set aside the homestead to her for life with mortgage indebtedness payments to be made by the estate; for a family allowance of $5400.00 for her support and maintenance during one year from the death of G. A. Ward, Jr.; and for her share of the community property.

The lower court in a non jury trial rendered judgment that appellant recover (1) a life estate in a house situated in Corpus Christi, Texas, but required appellant to make payments during her lifetime of $112.00 per month on a promissory note in the amount of $13,500.00 given by G. A. Ward, Jr., prior to the instant marriage for the purchase price of said home, if she desired to remain in the same; (2) $350.00 as an allowance in lieu of exempt property; and (3) $412.74 for appellant’s interest in the community property. Appellant’s claims were otherwise denied. In response to appellant’s first general request the trial court made some findings of fact and conclusions of law. Later, on timely motion of appellant, the trial court made further findings and conclusions, but denied many specific findings and conclusions so requested.

Appellant asserts seven points of error. We will first consider points one through four, reading as follows:

“POINT OF ERROR 1
“The trial court erred in refusing to set aside to appellant all exempt property of the estate of George Allen Ward, Jr., as directed by Section 271, Texas Probate Code.
“POINT OF ERROR 2
“The trial court erred in setting aside the homestead to appellant for life conditioned on appellant making monthly payments on a promissory note which was and is a liability of the estate of the deceased husband of appellant.
“POINT OF ERROR 3
“The trial court erred in refusing to allow appellant a sum of money in lieu of homestead, as directed by Section 273, Texas Probate Code.
“POINT OF ERROR 4
“The trial court erred in refusing to fix a family allowance for support of the widow for one (1) year from the time of death of the decedent, as required by Sections 286 and 287, Texas Probate Code, and in holding (a) such allowance is properly allowable only out of community funds of an estate, (b) that appellant has separate property adequate for her maintenance, and (c) that a reasonable family allowance for one (1) year is nothing.”

We sustain these four points.

The material facts established by the evidence, some of which were found by the trial court will be briefly stated.

Appellant was married to G. A. Ward, Jr., on December 4, 1965, and he died on January 14, 1966. Both parties had been previously married to other persons. The first Mrs. Ward died. The first marriage of appellant was dissolved by divorce, and she was given custody of the three minor children of that marriage, who were 13, 12 and 8 years of age. After their marriage, appellant and Mr. Ward established a homestead in Corpus Christi, Texas, in a house which Mr. Ward had purchased prior to their marriage in August, 1965. Mr. Ward had a small equity in this home and there was an indebtedness secured by mortgage against it in the approximate amount of $13,500.00, payable $112.00 monthly. This home contained furniture which Mr. Ward also purchased prior to the marriage.

The inventory, appraisement and list of claims of said estate reflects the following: Separate real property of deceased consisting of a lot in Beeville, Texas, valued at $4,270.00, a cemetery lot, valued at $50.00, and a lot in Corpus Christi, Texas (which was shown by other evidence to be the homestead of the parties) valued at $528.05. The inventory did not expressly identify the homestead as such, did not show either its total value or the above-mentioned indebtedness of $13,500.00 against it. The amount of $528.05 apparently represented Mr. Ward’s equity in the homestead. Separate personal property of Mr. Ward aggregated $23,243.97. Of this amount there was $2321.99 in cash; $19,050.25 was shown to be the value of 421 shares of United Gas Corporation stock; $1150.00 was the value of a 1963 Oldsmobile automobile; $271.43 was the value of bonds; and $450.30 was indicated as the value of separate personal property not otherwise identified. The inventory further showed there were no claims owing to the estate, and there was no specific mention of any claims owing by it.

Concerning appellant’s point one, the trial court should have set aside to appellant all exempt property of said estate in accordance with Section 271, Texas Probate Code, V.A.T.S. Article 3832, Vernon’s Ann.Civ.St., lists twenty-four categories of property exempted to a family. The evidence shows that the estate owned property within eight of such categories, and that there was no property within sixteen of them. The trial court made an allowance in lieu of such missing items of $350.00. Aside from the homestead (which will be specifically discussed under points two and three) the trial court did not set aside to appellant any of the exempt property owned by the estate. The eight exempt classes of property owned by the estate (with the appropriate subdivision of Art. 3832, V.A.C.S., indicated in parenthesis) were: (a) the homestead of the family (1); (b) household furniture (2) ; (c) paintings (6) ; (d) one 1963 Oldsmobile automobile (10); (e) a gun (11); (f) current wages for personal services (16); (g) wearing apparel (17), (including 2 watches and a ring). Appellant was entitled to have set aside to her each of the exempt items just mentioned which were shown to be owned by the estate of her deceased husband. Sections 271, 272 Texas Probate Code; Connell, Guardian v. Chandler, Administrator, 11 Tex. 249 (1853); In re Mays’ Estate, 43 S.W.2d 306 (Tex. Civ.App., Beaumont, 1931, writ refused); Hickman v. Hickman, 149 Tex. 439, 234 S.W.2d 410 (1950). Under Section 271, Texas Probate Code, all the exempt property of the estate should be set aside for the use of the widow herein. The fact that she owns other property in her separate right does not affect the matter unless the items mentioned in Article 3832 are exceeded, which is not shown here.

Appellant’s point 2 asserts that the trial court erred in setting aside the homestead to appellant for life conditioned on her making the payments on a note secured by lien, which is a liability of the Estate of G. A. Ward, Jr. Point 3 asserts that the trial court erred in refusing to allow appellant a sum of money in lieu of homestead as provided by Section 273, Texas Probate Code. Appellant’s ■ petition prayed alternatively that the homestead be set aside to her with the lien indebtedness against it to be paid by the Estate, or that she be allowed $5,000.00 in lieu of her homestead rights. The trial court did not grant either request, but set aside the homestead to appellant for life conditioned upon her paying the monthly installments on such indebtedness.

It is undisputed that there is only a small equity of $528.05 in the homestead and there is a lien indebtedness against it of approximately $13,500.00, payable in monthly installments. Default in payment of the indebtedness would result in foreclosure. Thus, under the order of the trial court, appellant, in effect, is required to pay for the use of the homestead, and if she does not do so, loses her homestead rights completely. In the absence of her agreement appellant cannot be required to accept such disposition of her homestead rights. Appellant, as surviving widow, could not be required to accept a homestead which is incomplete or unsuitable because of the impediments presented, and she could elect to insist upon an allowance in lieu of homestead. The fact that there is only a small amount of community property does not prevent such allowance, and it may properly be paid out of the deceased’s husband’s separate estate. In Cooper v. Cooper, 168 S.W.2d 686-690 (Tex.Civ.App., Galveston, 1943, n. w. h.), the court said:

“Nor, contrary to appellants’ insistence, was it necessary for the appellee to have a community interest in the landed estate of her husband in order to be entitled to such an allowance in lieu of a homestead, as was herein permitted by the trial court, based upon the verdict and findings; because, under our statutes and decisions, being the surviving widow of the deceased, which she in fact and law was, notwithstanding the then pendency of an un-disposed of divorce suit between them, she was entitled' to such a homestead right, even in his separate property — and to the awarded allowance in lieu thereof, on the coming in of the proof to the effect that his estate had been left in such condition from incumbrances and other impediments (including any nonexempt character of its lands) as to prevent the setting apart of a homestead thereon to her; Runnels v. Runnels, 27 Tex. 515; Kopplin v. Ewald, Tex.Civ.App., 70 S.W. 2d 608; Jones v. Bartlett, Tex.Civ.App., 189 S.W. 1107, error refused; 18 Tex. Jur., § 212, page 792; § 235, page 814; Simkins Administration of Estates, 3rd Edition, page 214, § 160, also page 244, § 181; R.S. Article 3498; Buse v. Buse, Tex.Civ.App., 287 S.W. 141; Beall v. Hollingsworth, Tex.Civ.App., 46 S.W. 881; Crump v. Andress, Tex.Com.App., 278 S.W. 422; Cockrell v. Curtis, 83 Tex. 105, 18 S.W. 436; Bradley v. DeRoche, 70 Tex. 465, 7 S.W. 779; Good v. Good, Tex.Civ.App., 293 S.W. 621; Simkins on Estates, 3rd Edition, page 230.”

In Simkins Administration of Estates in Texas, Holt, Third Edition, Section 181, page 245, “When homestead incomplete”, the following statement appears :

“It is contemplated that the homestead must be free from the claims of creditors,45 but the homestead may be so incumbered with liens that its permanency as a home may be defeated at the will of the lienholder, in which case the widow may have an allowance in lieu of the exemption. Thus, where a valid lien existed on land at the time of its designation as a homestead, or where there is a vendor’s lien, or other lien which under the constitutional limitation subjects the homestead to sale for satisfaction thereof.46”

Cases cited in footnote 45 are: Zwernemann v. Von Rosenberg, 76 Tex. 522, 527, 13 S.W. 485; Lacy v. Lockett, 82 Tex. 190, 17 S.W. 916; Krueger v. Wolf, 12 Tex.Civ.App. 167, 33 S.W. 663. Cases cited in footnote 46 are: Stone v. Darnell, 20 Tex. 11; Baird v. Trice, 51 Tex. 555; Mabry v. Harrison, 44 Tex. 286; Brooks v. Chatham, 57 Tex. 31; Kempner v. Comer, 73 Tex. 196, 203, 11 S.W. 194.

Under Section 273, Texas Probate Code, appellant, if she so elects, is entitled to an allowance in lieu of homestead in an amount not exceeding $5000.00, which is to be fixed by the trial court in the first instance. See 28 Tex.Jur.2d, Homesteads, Sec. 202, “Allowance in lieu of homestead.”

By her point 4 appellant contends that the trial court erred in refusing to fix a family allowance for her support, as the widow of G. A. Ward, Jr., for one year from his death, and in holding (a) that such allowance was payable only out of community funds, (b) that appellant had separate property adequate for her maintenance, and (c) that a reasonable family allowance for one year would be nothing. We agree with appellant here also.

The evidence shows that at the time of their marriage both Mr. and Mrs. Ward were employed by Union Producing Company in Corpus Christi, Texas. At that time Mr. Ward earned $978.00 monthly or $11,736.00 annually, and appellant earned $300.00 per month or $3,600.00 annually. At the time of trial, on May 31, 1966, appellant earned $320.00 per month. Appellant’s take-home pay was $248.00 per month from the date of Mr. Ward’s death to May 5, 1966, and since then $260.00 per month. It thus appears that during the marriage of appellant and Mr. Ward their combined salaries, constituting community property, amounted to more than $15,000.00 annually, and after Mr. Ward’s death the salary of appellant amounted to less than $4,000.00 annually.

Appellant testified, among other things, that her three minor children had been living with her since sometime in January, 1966, and that she was having to support them because her divorced husband, the father of said children had failed to do so. Appellant concedes that there was no obligation on Mr. Ward’s estate in connection with the support of the minor children of her first marriage. However, such testimony of appellant shows the facts and circumstances existing during the first year after the death of Mr. Ward, including her obligations to support her minor children and the consequent effect on her personal earnings. Even at appellant’s increased take-home pay after Mr. Ward’s death she had available $260.00 per month. Under the trial court’s theory (which we have held to be untenable) that appellant would be required to pay $112.00 per month in order to enjoy homestead rights in the Corpus Christi property, she would have left the sum of $148.00 per month, for the purpose of all other living expenses for herself and three minor children.

Section 287, Texas Probate Code, “Amount of Family Allowance”, provides as follows:

“Such allowance shall be of an amount sufficient for the maintenance of such widow and minor children for one year from the time of the death of the testator or intestate. The allowance shall be fixed with regard to the facts or circumstances then existing and those anticipated to exist during the first year after such death. The allowance may be paid either in a lump sum or in installments, as the court shall order.”

In the case of Pace v. Eoff, 48 S.W.2d 956 (Tex.ComApp., 1932) 90 A.L.R.2d 687, 699, which involved among others the predecessor statute to Sec. 287, Texas Probate Code, the court held that the allowance must be made with regard to the whole condition of the estate during the first year after the husband’s death and to the necessities of the widow and the circumstances to which she has been accustomed. When we apply the tests provided by the statute and the holdings in Pace v. Eoff, supra, we conclude that the trial court erred in denying to appellant an allowance for her maintenance for one year after the death of her husband.

Conclusions of law 4, 5 and 6 made by the trial court are as follows:

“4. Mrs. Ward is not entitled to a family allowance for reason that such allowance is properly allowed only out of community funds of the estate and not the separate property of the late Mr. Ward.
“5. Mrs. Ward is not entitled to a family allowance for reason that Mrs. Ward has separate property adequate for her maintenance and in addition is gainfully employed.
“6. If Mrs. Ward is entitled to a family allowance, then it is my decision that a reasonable sum for said family allowance will be that of nothing.”

In connection with conclusion of law number 4, appellees rely upon Sec. 288, Texas Probate Code, providing that no such allowance shall be made for the widow when she has separate property adequate for her maintenance, and the cases of Miller v. Miller, Tex.Civ.App., 230 S.W.2d 237, reversed by the Supreme Court, 149 Tex. 543, 235 S.W.2d 624 (1951) on the question of election by the widow, and Pace v. Eoff, 48 S.W.2d 956 (Tex.Com.App., 1932). In the case of Miller v. Miller, Tex.Civ.App., 230 S.W.2d 237, reversed 149 Tex. 543, 235 S.W.2d 624, the Court of Civil Appeals, among other things, held that the trial court judgment, properly construed, provided for payment of the widow’s allowance for support in the amount of $1,000.00, out of community property of the parties. It appeared there that sufficient community property existed to cover such payment. The Supreme Court reversed the judgment of the Court of Civil Appeals on the ground that the widow was put to an election whether to take under her husband’s will or not to do so and claim her rights under the law to exemptions or allowances in lieu thereof; and the case was remanded for new trial so that the issue of election could be determined. The statement of the Supreme Court at 235 S.W.2d 628-629, to the effect that if the widow elected not to take under the will, that the year’s allowance for her support would he charged against the full community property so that the widow’s half would bear its portion of such charge, was made in the factual context showing that community funds were available for such purpose. We do not regard this as a holding that in any event the husband’s separate estate cannot be charged with the widow’s allowance for support. We hold that it can be so payable where there is not sufficient community property to satisfy the same. In the case of Pace v. Eoff, 48 S.W.2d 956 (Tcx.Com.App., 1932), the Court held that the widow’s allowance for one year’s support was payable out of the community estate of herself and the deceased hu.sband, and not solely out of the widow’s half of it. In that case community funds were available for such purpose. The Court expressly pointed out that the record did not present a question of the widow’s right to have such allowance paid out of the separate estate of the husband, and the Court did not discuss or decide that question as well as others not there presented for decision. However, the Court squarely held that the allowance for the widow was a debt against the estate of the deceased.

We hold that the trial court should have fixed an amount for an allowance for appellant’s support for one year and that the same is payable, in the absence of sufficient community property as appears here, out of the separate estate of the deceased husband.

The evidence in this case does not show that the wife had separate property adequate for her maintenance during the period of one year from the husband’s death. Although appellant separately owned certain old furniture which was in storage and a used car at the time of Mr. Ward’s death, the furniture was exempt, and the automobile may have been so. In any event, the widow would not be required to sell such items in order to make up her allowance for a year’s support; and this is particularly true in view of evidence that appellant was separately indebted to the Internal Revenue Service for approximately $1000.00, and for debts in connection with a former Beauty Shop business in the amount of $900.00.

The amount of the allowance for the widow’s maintenance for one year should be first fixed by the trial court. In determining the amount the court should consider all of the factors permitted by the Statute. Sec. 287, Texas Probate Code. See annotation, 90 A.L.R.2d 687, on the subject “amount of allowance from decedent’s estate for widow and family where not fixed by Statute.”

Appellant’s points 5, 6 and 7 read as follows :

“POINT OF ERROR 5
“There is no evidence to support the findings of fact of the trial court or, in the alternative, the evidence is insufficient to support the findings of fact of the trial court, or, in the further alternative,' the findings of fact of the trial court are so contrary to the great weight and preponderance of the evidence as to be clearly wrong. ,
“POINT OF ERROR 6
“The findings of fact of the trial court do not properly support the conclusions of law.
“POINT OF ERROR 7
“The trial court erred in refusing the request of appellant for additional findings of fact, all of which are uncontro-verted in the evidence, and for conclusions of law.”

In view of our indicated disposition of this case, extended discussion of points 5, 6 and 7 is unnecessary. These points are not sufficiently specific to require consideration. However, it does appear that the trial court should have granted a number of appellant’s timely requests for additional findings of fact and conclusions of law. Rule 298, Texas Rules of Civil Procedure. These matters are covered by our previous discussion of the holdings in which the trial court erred, and to that extent dispose of appellant’s contentions under points 5, 6 and 7 favorably to her.

The judgment of the trial court is reversed and the cause is remanded for new trial wherein the trial court will determine the rights and duties of the parties in accordance with applicable law and the holdings herein made.

Reversed and remanded.

NYE, Justice

(concurring).

“It must be candidly admitted that declarations of law on this subject (homestead property) contained in opinions by eminent justices cannot be reconciled with declarations in other opinions by justices of like eminence. * * * ” (parenthesis supplied) Thompson v. Kay, 124 Tex. 252, 77 S.W.2d 201 (1934, Justice Greenwood).

The trial court erred in requiring the widow of the deceased to make the purchase money mortgage payments on the homestead property as a condition precedent to her receipt of such exempt property as her homestead. This homestead was purchased by the deceased prior to this marriage and the only lien against it was the purchase money mortgage. The deceased devised his property, including this homestead after the payment of all his just debts, to his two married daughters by a previous marriage and named them co-independent executrixes under his will. The title to this property is in the deceased’s daughters subject to the indebtedness owed by the estate. Art. XVI, Sec. 52, Texas Constitution, Vernon’s Ann.St. This property being the designated homestead of the deceased and the surviving widow, is subject further to the homestead right of the surviving spouse so long as such widow qualifies the property as a homestead. See Sec. 277, Texas Probate Code.

The majority opinion of this Court holds as I take it, that because of this indebtedness this property is unsuitable as a homestead and is an incomplete homestead as a matter of law; therefore the widow is entitled to elect not to take this previously designated homestead and can elect to take an allowance in lieu thereof. I cannot agree with this holding.

It is true that a widow is not required to take an incomplete homestead and this may be determined by the court as a matter of law. It is also true that a widow may not be required to accept an unsuitable homestead, but this is a matter of fact to be determined by the court or jury. See special issues submitted in Cooper v. Cooper, 168 S.W.2d 686, n.w.h. Here the trial court impliedly held the property was suitable. I would not hold that just because there exists a constitutionally exempted lien against the property (even though it might be large), that, this alone would make the homestead unsuitable as a matter of law. Miller v. Miller, Tex.Civ.App., 230 S.W.2d 237, reversed on other grounds, 149 Tex. 543, 235 S.W.2d 624 (1951).

It may be appropriate to again reiterate the dosing remarks made by Brady Cole in his article in 3 Texas Law Review 217:

“ * * * the homestead provisions of our present constitution have created in our law many anachronisms, anomalies, and paradoxes which, being beyond the solution of the bench as well as the bar, should receive the attention of a constitutional convention whenever one is called. If these inconsistencies and incongruities can really stand together, then is the famous dictum of Lord Tennyson to the effect that ‘the law is a wilderness of single instances,’ no longer obiter.”


author: COLEMAN, Justice.

text:
    Thomas H. SULLIVAN, Appellant, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, Appellee.
    No. 15091.
    Court of Civil Appeals of Texas. Houston.
    July 3, 1967.
    Rehearing Denied Aug. 24, 1967.
    Sonfield, Sonfield & Lawrence, Robert L. Sonfield, Robert L. Sonfield, Jr., Houston, for appellant.
    Phipps, Smith & Alexander, Irwin M. Herz, Jr., Galveston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment for the plaintiff in a suit for the balance due on a promissory note after the application of the proceeds of a trustee’s sale under a deed of trust.

Appellant filed a sworn answer in the trial court in which he admitted the execution of the note attached to the plaintiff’s petition as Exhibit A, and that the note evidenced a loan secured by appellant from ap-pellee. Otherwise the answer denied generally the allegations of the petition and alleged that the land was reasonably worth $1,014,000.00 and that the price realized at the trustee’s sale was grossly inadequate.

Appellee filed a sworn motion for summary judgment, to which was attached a copy of the note, a certified copy of the deed of trust, a certified copy of the trustee’s deed and of an instrument executed by appellant waiving the posting of notices, and the affidavit of R. F. Varnado.

It is appellant’s contention that the requirements of the deed of trust were not complied with in making the trustee’s sale and that the sale is void; that the defective nature of the foreclosure sale is apparent from the record and under such circumstances a suit for a deficiency may not be maintained.

Specifically, appellant questions the sufficiency of appellee’s sworn application and affidavit to establish that appellee was the legal owner or holder of the note; that the legal holder or owner of the note requested the trustee to sell the property; that the trustee named in the deed of trust died, resigned, removed from Texas, became disqualified from acting, or failed or refused to act as trustee; or that a substitute trustee was appointed by an instrument in writing as required by the deed of trust.

As noted, appellant admitted the execution of the particular note on which this suit is based and that it evidenced a loan secured by appellant from National Western Life Insurance Company. The deed of trust, trustee’s deed, instrument of waiver signed by appellant, and affidavit of R. F. Varnado, were all properly before the court for consideration.

The deed of trust provided:

“It is agreed that the recitals in the conveyance to the purchaser, or purchasers, shall be full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against GRANTOR, his heirs and assigns.”

The Sullivan instrument of waiver provided :

“ * * * and upon such sale being had, the recitals in the conveyance to the purchaser, or purchasers, shall be conclusive evidence of the truth of the matter therein stated, including but not limited to the fact that NATIONAL WESTERN LIFE INSURANCE COMPANY fulfilled its agreement not to actually post such notices of sale, and that all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against the undersigned, his heirs and assigns *

The trustee’s deed provided:

“ * * * and default having been made in the payment of said indebtedness, and the holder of said indebtedness having declared same due, and the said THOMAS H. SULLIVAN having by instrument in writing dated June 8, 1966, which instrument is attached hereto and made a part thereof, waived the provisions of Article 3810 of Vernon’s Revised Texas Civil Statutes and provisions of the aforementioned Deed of Trust requiring posting of Notices of Sale and further agreeing that sale of the hereinafter described property could be conducted by virtue of said Deed of Trust on the first Tuesday in July, 1966, being July 5, 1966, or any day thereafter, without the necessity of posting any kind or character of notice whatsoever, I, the undersigned, duly appointed Substitute Trustee under the provisions of said Deed of Trust, having been requested by the holder of said indebtedness to proceed and enforce said trust, and after having determined that the aforementioned Deed of Trust was not paid off in full by the said THOMAS H. SULLIVAN, or any one acting on his behalf, on or before July 1, 1966, did on the 5th day of July, 1966, (that being the first Tuesday in said month) offer said property for sale before the Court House Door of Galveston County, Texas, in the City of Galveston, Texas, between the hours of 10:00 a. m. and 4:00 p. m. of that day, at public auction, to the highest bidder, for cash, and at such sale said property was struck off by me to NATIONAL WESTERN LIFE INSURANCE COMPANY for the sum equivalent in cash to $300,000.00, that being the highest and best bid obtained for the sale; * * *»

R. F. Varnado is the Senior Vice President, Secretary and Treasurer of National Western Life Insurance Company, and the trustee named in the deed of trust. In his affidavit he states that Thomas H. Sullivan signed the promissory note in question payable to Security National Life Insurance Company, and that the note was secured by a deed of trust to R. F. Varnado as trustee for the benefit of Security National Life Insurance Company, “the Corporate predecessor of National Western Life Insurance Company;” and that National Western is the holder of the note. He further stated in the affidavit that Sullivan failed to pay an installment of interest due on March 1, 1966, whereupon appellee declared the note in default, accelerated the maturity of the unpaid balance as provided in the note, and, at the trustee’s sale as provided in the deed of trust, sold the property in question to National Western Life Insurance Company for $300,000.00. The affidavit stated facts from which the amount remaining unpaid on the note could be calculated, including the statement that after the sale on July 5, 1966, appellant paid to appellee $16,180.00 “to be applied on the balance of indebtedness evidenced by said note.”

By virtue of the quoted provision of the deed of trust, the trustee’s deed, together with the recitations therein, established prima facie that in the sale by the substitute trustee all of the requirements of the law, and of the deed of trust, were observed. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; McFarlane v. Whitney, 134 Tex. 394, 134 S.W.2d 1047 (1940, opinion adopted); Natali v. Witthaus, 134 Tex. 513, 135 S.W.2d 969 (1940, opinion adopted).

The record demonstrates that ap-pellee established a prima facie case which would have entitled him to an instructed verdict had this been a trial on the merits before a jury. Appellee has sustained its burden of establishing that there was no genuine issue of fact by producing evidence other than its unsworn pleading. In such a case it became necessary for appellant to counter with facts properly presented in sworn pleadings or affidavits raising a material issue of fact. Gulf, C. & S. F. Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959); Jacobson, Trustee v. National Western Life Insurance Company et al., 403 S.W.2d 528 (Tex.Civ.App.—Houston 1966).

If appellant’s sworn answer is held to present an issue of fact as to the adequacy of the consideration received at the Trustee’s sale, this alone will not establish that the foreclosure was void or not valid. The mere inadequacy of consideration does not render a foreclosure sale void if the sale was legally and fairly made. Burnette v. Realty Trust Co., 74 S.W.2d 536 (Tex.Civ.App.—Dallas 1934, writ ref.).

That issue alone, therefore, would not be a material issue of fact in this case since there is no fact issue with respect to the propriety of this sale. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 (1942); Tarrant Savings Association v. Lucky Homes, Inc. et al, 390 S.W.2d 473 (Tex.Sup.1965).

The judgment of the Trial Court is affirmed.


author: FANNING, Justice.

text:
    Patrick Michael REED, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7827.
    Court of Civil Appeals of Texas. Texarkana.
    July 18, 1967.
    Rehearing Denied Aug. 8, 1967.
    James E. Bock, Waco, for appellant.
    Henry Wade, Dist. Atty., John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   FANNING, Justice.

A driver’s license suspension case. The Texas Department of Public Safety obtained an affirmative finding from the corporation . court of Dallas County, Texas, finding appellant to be an habitual violator of the traffic law of Texas, and suspending his driving license and driving privileges. Appellant appealed to the County Court at Law No. 1 of Dallas County, Texas. Trial was had in the said county court at law, and the court after hearing the evidence adduced, found that appellant had been convicted of four moving traf-violations occurring within a twelve months period of time, which made appellant an habitual violator of the traffic law of Texas, as defined by Article 6687b, § 22, Vernon’s Annotated Texas Civil Statutes, and the judgment of the trial court provided for the suspension of appellant’s driving license and driving privileges for a period of eight months. Appellant has appealed from said judgment.

Appellant presents a single point of error which reads as follows:

“The trial court erred in finding appellant to be a habitual violator of the traffic law in Texas and in suspending his driving licenses and driving privileges as one of the four convictions relied upon was void and could not support such a finding.”

The record shows four judgments of convictions of appellant for four moving traffic violations within a period of twelve months. Appellant attacks only one of these judgments, to-wit, a judgment convicting appellant of violation of the law with respect to speeding, on November 18, 1965, upon a public road in Kaufman County, Texas, which judgment of conviction was in the Justice Court, Precinct 2, Kaufman County, Texas. There is in the record a judgment of conviction in this case which is regular on its face. (The record also contains abstracts of judgments in the four cases regular in form and duly-certified in accordance with Article 670Id, § 152, Vernon’s Annotated Texas Civil Statutes). This judgment of conviction has not been attacked by motion for new trial, by appeal, bill of review, habeas corpus, or other proceeding in a court of criminal jurisdiction. Appellant contends the said judgment was void because he did not appear in court and enter a plea in the cause. Appellant paid the fine assessed against him by mail.

Appellant’s point is without merit under the record in this case. We affirm the judgment of the trial court under authority of the recent case of Texas Department of Public Safety v. Casselman (Morris), 417 S.W.2d 146, which opinion was rendered by the Supreme Court of Texas on June 28, 1967.


author: BARROW, Chief Justice.

text:
    Benancio M. AGUIRRE, Appellant, v. PAN AMERICAN INSURANCE COMPANY, Appellee.
    No. 14609.
    Court of Civil Appeals of Texas. San Antonio.
    July 19, 1967.
    Rehearing Denied Sept. 13, 1967.

      William R. Edwards, Corpus Christi, Arnold Garcia, Alice, for appellant.
    Keys, Russell, Watson & Seaman, Corpus Christi, for appellee.
   BARROW, Chief Justice.

This is a workmen’s compensation case. Judgment was entered on the jury verdict that appellant’s injury of June 24, 1965, was a producing cause of two weeks temporary total incapacity and that he did not sustain any partial incapacity.

Appellant asserts by this appeal that there is no evidence, or the evidence is factually insufficient, to support the jury finding to Issue No. 6, that he did not sustain any partial incapacity after June 24, 1965. His argument is largely based on the erroneous assumption that the jury finding is “that since July 8, 1965, Aguirre sustained no incapacity of any kind whatsoever from any cause whatsoever.” He urges that since the uncontradicted medical evidence showed that at the time of the trial on November 30, 1966, he had physical conditions which demonstrated some disability, the finding of no partial incapacity was against all of the evidence and against the great weight and preponderance of the evidence.

It is seen, however, that the definition of “partial incapacity” restricted the jury to consideration of incapacity “by reason of injuries sustained in the course of his employment.” Therefore, we must consider the evidence in the light of the court’s definition of “partial incapacity” in deter-, mining appellant’s points.

Appellant was injured on June 24, 1965, in the scope of his employment as a truck driver for Valley Capitol Service, Inc., hereinafter referred to as Val-Cap, Inc., when he was struck on the back by a heavy chain thrown over a trailer by a fellow employee. On the day following the accident, he went to see the company doctor, Dr. Albert, in regard to his injury. Dr. Albert was unavailable and, therefore, appellant was examined by Dr. John C. Turnham, who was taking Dr. Albert’s calls. Aguirre was given a muscle relaxant and medication for pain. He was hospitalized the following day when the pain had not subsided. He remained in the hospital from June 26 to June 29, 1965. In the hospital, he was placed in traction to reduce muscle spasm and given a muscle relaxant. On June 29, 1965, he was discharged with the notation in his hospital record: “Improved.” The diagnosis of Dr. Turnham was “Acute back strain. Possible HNP, which is herniated nucleus pulposus.”

Dr. Turnham testified that at the time of discharge appellant was markedly improved, and that he believed, with an additional week of rest, appellant would be all right. Appellant never returned for further treatment and Dr. Turnham had not seen him since June 29, 1965.

Appellant returned to his regular duties with Val-Cap, Inc., on July 8, 1965, and worked without complaint or incident until he was laid-off on October 11, 1965, for reasons not connected with' his injuries. On October 17, 1965, he went to work as a truck driver for Ken Clark Pipe Supply Co., and worked for Clark until May 13, 1966. He went to Ohio with his family during the summer of 1966 and worked some as a tomato picker. After his return he worked for Clark when the latter had work for him. Appellant testified that his back pained him when he worked.

The evidence that appellant returned to his regular work on July 8, 1965, and worked without difficulty until about January, 1966, is sufficient evidence under the “no evidence” test to support the jury finding of no incapacity after July 8. Although the fact that a claimant works and earns money after the injury does not necessarily preclude him from recovering benefits for the time he was gainfully employed, such a fact is evidence to be considered with the other facts and circumstances. Texas Emp. Ins. Ass’n v. Cummings, 364 S.W.2d 255 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.); Consolidated Cas. Ins. Co. v. Baker, 297 S.W.2d 706 (Tex.Civ.App.—Waco 1957, writ ref’d n. r. e.)

To determine appellant’s second point that the finding of the jury to Issue No. 6 is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, we must examine the entire record. Two doctors testified on behalf of appellant that he was unable to perform manual labor. Dr. Burns, a neurological surgeon, examined appellant at the request of Dr. Sharp, on October 3, 1966, and again on November 28, 1966. He found a degenerative disc pathology with a narrowing between the L4-L5 and L5-S1 vertebral spaces. One of these narrowed in-terspaces was causing nerve pressure as demonstrated by a positive dermatone pattern, atrophy of the right calf, and the absence of a right ankle jerk, although Dr. Burns was not sure which of the two in-terspaces was causing the trouble. The degenerative changes were a gradual process and created a condition which would have eventually caused trouble, but in his opinion the injury was the contributing or aggravating cause of appellant’s difficulty, as it was the “straw that broke the camel’s back.”

On cross-examination, Dr. Burns admitted this his diagnosis was based largely on the accepted fact that there was no other incident in appellant’s history to precipitate the degenerative condition, and that if the injury of June 24, 1965, had been the contributing cause, it should have caused trouble in a few days. He also admitted that if appellant returned to work with no complaints or trouble, you would assume that he had fully recovered from the chain injury. The narrowed interspaces existed prior to this injury, in that the x-rays of June 26, 1965, showed the same narrowing of these two interspaces as the x-rays of January 16, 1966.

Dr. James C. Sharp commenced treating appellant on January 17, 1966, upon referral by appellant’s attorneys. He also diagnosed the two degenerated vertebral discs at the L4-L5 and L5-S1 levels. It was also his opinion that there was a protruded disc at one of these levels causing nerve pressure. The accident of June 24, 1965 was the precipitating cause of appellant’s condition even though the degenerative condition had developed over a long period of time. Dr. Sharp testified it was necessary for an accident to trigger off the pre-ex-isting condition in appellant’s back, and since there was no other incident in appellant’s history, he attributed same to the accident in question. Dr. Sharp admitted, on cross-examinaion, that the condition could be triggered off by a minor incident, such as appellant’s bending over to tie his shoes or to pick up a pencil or even in his sleep. Dr. Sharp testified that appellant’s degenerative condition was such prior to the injury that he would not have passed him on a pre-employment physical exam.

The first significant pain suffered by-appellant after returning to work on July 8, 1965, was in January, 1966, while returning from a three-day and two-night trip to Wyoming. Dr. Sharp admitted that such an extended trip might cause onset of symptoms. Both Dr. Burns and Dr. Sharp admitted that as a general rule the symptoms develop closer in time to onset. Dr. Burns testified that the rapid loss of the ankle jerk between his October and November, 1966, examination indicated the cause was of recent origin.

Appellee had appellant examined shortly before trial by Dr. Norstrum, a neurological surgeon. However, Dr. Norstrum was not called as a witness, and the physical findings of Doctors Sharp and Burns are uncontra-dicted.

Assuming that the uncontradicted evidence establishes that appellant suffered some incapacity after July 8,1965, we cannot say from an examination of the entire record that the evidence is factually insufficient to support an implied finding of the jury that such incapacity was not precipitated by the injury sustained in the course of his employment. The jury was not bound by the opinion of Dr. Burns and Dr. Sharp that the injury was the contributing or aggravating cause of appellant’s incapacity. Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948); Muro v. Houston Fire & Cas. Ins. Co., 329 S.W.2d 326 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.)

It is our opinion, after an examination of the entire record, that the jury’s finding that appellant had not sustained any partial incapacity, as that term was defined to them, after June 24, 1965, is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment is affirmed.

      . “By the term ‘partial incapacity,’ as used in this charge, shall mean where an employee by reason of injuries sustained in the course of his employment is only able to perform part of the usual tasks of a workman, but nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work or is only able to perform labor of a less remunerative class than he performed prior to his injuries, whereby he suffers a depression or reduction in his earning capacity.”

      . Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Renfro Drug Go. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R. 2d 1114 (1951); Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).


text:
    C. E. JEFFCOAT et ux., Appellants, v. Dr. John R. PHILLIPS, Appellee.
    No. 7812.
    Court of Civil Appeals of Texas. Texarkana.
    June 27, 1967.
    Rehearing Denied July 25, 1967.

      John H. Holloway, Nipper & Knox, Houston, for appellants.
    W. N. Arnold, Jr., Fulbright, Crooker, Freeman, Bates & Jaworski, William L. Durham, Murfee & Hoover, Houston, for appellee.
   FANNING, Justice.

C. E. Jeffcoat and wife, Mary Jeffcoat, sued Dr. John R. Phillips for alleged ordinary and gross negligence in the performance of surgery upon Mrs. Jeffcoat and for alleged unauthorized surgery on Mrs. Jeff-coat. A jury trial resulted in the submission of no negligence or gross negligence issues on Dr. Phillips and in a verdict in favor of defendant on answers to issues inquiring about unauthorized surgery. The damages issue was answered “none”. Judgment was entered that plaintiffs take nothing. Plaintiffs have appealed.

Appellants have briefed their points 1 to 4 inclusive, together. These four points are lengthy and multifarious. Point One contends to the effect that the trial court erred in entering a take-nothing judgment based upon the jury finding to Special Issue 1 that defendant did not perform an operation for removal of veins of the legs of Mrs. Jeffcoat without her consent “for the separately assigned errors” consisting of seven listed alleged errors. Point 2 contends to the effect that the trial court erred in entering judgment based upon the jury finding to Special Issue 4, that defendant did advise Mrs. Jeffcoat of the intended surgery for removal of the veins so as to permit her to elect to undergo such operation “for the separately assigned errors”, consisting of five listed alleged errors. Point 3 contends to the effect that the trial court erred in a take-nothing judgment based upon the jury’s finding to Special Issue 5, whereby the jury found that the defendant reasonably and adequately warned Mrs. Jeffcoat that she might expect scarring on her legs from the operation “for the separately assigned errors” consisting of four alleged errors. Point 4 contends to the effect that the trial court erred in entering a take-nothing judgment based upon the finding to Special Issue No. 7, that defendant informed Mrs. Jeffcoat that he would remove the ulcer from her right leg and strip and excise the varicose veins in her right leg, and if everything turned out well, he would strip and excise the veins in her left leg “for the separately assigned errors”, listing seven alleged errors.

While we think appellants’ points One to Four, inclusive, are multifarious and are not in accordance with the briefing rules, nevertheless we have examined the points, statements, arguments and authorities listed thereunder, and will write upon what we understand to be some of appellants’ main contentions under the numerous matters raised under said points, sub-points, and contentions.

Special Issues' Nos. 1, 4, 5 and 7 and the jury’s answers thereto were as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that Dr. John R. Phillips performed an operation for removal of veins of the legs of Mrs. Mary Jeffcoat without her consent on January 24, 1962 ?
“To which the jury answered, ‘We do not’.
“SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that the defendant, Dr. John R. Phillips, failed to advise the plaintiff, Mrs. Mary Jeffcoat, that the defendant intended to perform surgery upon her legs by cutting into her legs and removing the veins which he removed, at a time prior to the surgery so as to permit the plaintiff to elect whether she desired to undergo such proposed surgery for removal of the veins?
“To which the jury answered, ‘We do not’.
“SPECIAL ISSUE NO. 5
“Do you find from a preponderance of the evidence that the defendant, Dr. John R. Phillips, prior to the surgery of January 24, 1962, failed to reasonably and adequately warn Mrs. Mary Jeffcoat that she might reasonably expect scarring on her legs from such operation ?
“To which the jury answered, ‘We do not’.
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that prior to the surgery in question the defendant, Dr. John R. Phillips, informed the plaintiff, Mrs. C. E. Jeffcoat, that he would remove the ulcer from her right leg and strip and excise the varicose veins in her right leg, and if everything turned out well, he would strip and excise the varicose veins in her left leg?
“To which the jury answered, ‘We do’.”

As we view it, Special Issues Nos. 1, 4, 5 and 7 presented to the jury the controlling questions on the issue of unauthorized surgery or failure to obtain informed consent from Mrs. Jeffcoat.

With respect to the “no evidence questions” raised by appellant with respect to Issues Nos. 1, 4, 5 and 7, they are overruled. The testimony of defendant Doctor Phillips constitutes some evidence of probative force. According to his testimony he fully explained to Mrs. Jeffcoat about the operations which were eventually performed, that this information was discussed with her several days before surgery, that he told Mrs. Jeffcoat specifically about the necessity for making incisions in large troublesome veins; that Mrs. Jeffcoat checked into the hospital after being previously given, full information of the intended operations by Dr. Phillips, that she had been reasonably warned and adequately by the discussion in question about the likelihood of the scarring of her legs, and Dr. Phillips further testified to the effect that the operations which were performed had been fully explained to Mrs. Jeffcoat by him.

There was also written evidence of the consent of Mrs. Jeffcoat to the surgery in question consisting of an authorization signed by Mrs. Jeffcoat specifically authorizing a bilateral vein ligation, together with such necessary and closely connected surgical procedures as would be caused in the course of the operation.

If appellee’s testimony is to be believed, he proved both oral and written consent on the part of Mrs. Jeffcoat to the operations in question, as well as full informed consent by his oral testimony. The jury was the judge of the credibility of the witnesses and of the weight to be given their testimony, and the jury apparently believed Dr. Phillips’ testimony with respect to the matters in dispute with reference to Issues 1, 4, 5 and 7, and Dr; Phillips’ testimony constituted some evidence of probative force. Furthermore, the burden of proof on Special Issues Nos. 1, 4, 5 and 7 was on plaintiffs. We hold that there was evidence of probative force to support the jury’s findings to Special Issues Nos. 1, 4, 5 and 7, and that the same was sufficient. .

Appellants also contend to the effect that the findings of the jury to Special Issues Nos. 1, 4, 5 and 7 were so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In considering these contentions we have examined the entire record in this cause in the light of the rules enunciated by the Supreme Court of Texas in the case of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Mrs. Jeffcoat testified to the effect that she did not orally consent to the operations in question performed by Dr. Phillips, and that she signed the written authorization form in blank. Mrs. Jeffcoat testified to the effect that she had consented to an operation for the sole purpose of removal of an ulcer caused by a bum. She had been a patient of Dr. Phillips and had had previous surgery by Dr. Phillips as shown by the record, for conditions other than the operations complained of and sued upon. She also testified to the effect that Dr. Phillips on other occasions had recommended to her to allow him to operate on her legs for varicose veins, but that she in each instance refused to permit such surgery. Mrs. Jeffcoat also contradicted Dr. Phillips’ testimony with reference to “informed consent”, and warnings from Dr. Phillips that she might reasonably expect scarring on her legs from such operation, and in short Mrs. Jeffcoat contradicted Dr. Phillips’ testimony on most of the material matters, thus leaving issues for the jury to determine. It appeared from Dr. Phillips’ testimony and other medical testimony in the case that Mrs. Jeffcoat had severe varicose veins on one leg and somewhat less severe on the other leg. It was Dr. Phillips’ testimony that both legs needed the operation, and that it was necessary to excise as well as strip the veins and that the operation was not a “routine operation” and was one that required excising and that scarring of the legs would result therefrom. Other doctors corroborated Dr. Phillips to the effect that the operation was not a “routine operation”. Photographic exhibits show the scarring on Mrs. Jeff coat’s legs.

After carefully reviewing the entire record in this cause in the light of the rules of law enunciated in the case of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), we hold that the jury’s answers to Special Issues Nos. 1, 4, 5 and 7, were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Appellants also contend to the effect that because there was no proof that Mr. Jeffcoat gave his consent to the operations in question performed on his wife, that coverture was a bar to a valid legal agreement on the part of the wife to consent to the operations in question. In other words, appellants contend to the effect that the failure of Dr. Phillips to obtain Mr. Jeff-coat’s permission is reason for reversal of the judgment of the trial court. Appellants cite no authority in support of such proposition, and we have found no authority to support such a proposition. The record shows Mrs. Jeffcoat was an adult married woman and no question appears or is raised as to her mental capacity. As we view the matter, appellants’ contention in this regard is without merit. A person does not fall within the classification of “property”, and Mrs. Jeffcoat, a person, had the right to consent to the operations in question if she chose to do so, and her husband’s consent was not necessary.

Appellants’ other contentions raised under their points 1, 2, 3 and 4 have been considered and are deemed to be without merit.

Appellants’ points 1, 2, 3 and 4 are overruled.

Appellants by their point 5 contend to the effect that the trial court erred in entering a take-nothing judgment based upon the jury’s finding to the damage issue “none” and listed thereunder are five sub-points.

Since the liability issues were answered unfavorably to the plaintiffs, the answer to the damages issue does not present reversible error under the record in this case. See the following authorities: Southern Pine Lumber Company v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939); Dillon v. Moore, Tex.Civ.App., 367 S.W.2d 70, no writ (1963); Benton v. B. F. Walker Truck Line, Inc. et al., Tex.Civ.App., 410 S.W.2d 822, writ ref., n. r. e. (1967). Appellants’ Sth point is overruled.

Appellants by their points 6, 9 and 10 complain of the failure of the trial court to submit plaintiffs’ requested issues 4, 5, 10, 11, 12 and 13, which issues inquire about the alleged negligence of appellee in making the incision and operation in question, etc.

Expert testimony is essential in medical malpractice cases based on negligence except where the injury is so plain as to be within the common knowledge of laymen. Henderson v. Mason, Tex.Civ.App., 386 S.W.2d 879, no writ (1964). Such expert testimony must come from a doctor of the same school of medicine as that of the defendant, Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); however this rule has been qualified to the extent that doctors of different schools may testify in malpractice cases: (1) where the particular subject of inquiry is common to and equally recognized in both schools of practice; and (2) where the subject of inquiry relates to the manner of use of electrical or mechanical appliances which are of common use in both schools of practice. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 233 (1953). In this connection see the recent case of Drummond v. Hodges, 417 S.W.2d 740, rendered May 26, 1967, by the Dallas Court of Civil Appeals.

The medical experts who testified in the case confirmed the fact that the operation in question performed by Dr. Phillips was not a “routine” operation and that excision in some cases was proper. As we view the evidence, there was no evidence of probative force from any of the medical experts to the effect that they could say that the operation as actually performed by Dr. Phillips was improper. As we view it, there was no medical evidence of probative force to show “negligence” on the part of Dr. Phillips in performing the operation in question. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). The case of Wilson v. Scott, Tex.1967, 412 S.W.2d 299, cited by appellants, is a case dealing with “informed consent”, with respect to a patient’s cause of action against a physician for failure to make reasonable disclosure of risks incident to operation as one of malpractice for the physician’s failure to conform to medical standards in obtaining the patient’s consent. We have carefully read the Wilson v. Scott case and find nothing in it which militates against any of our holdings in this case.

On the question of “informed consent”, the burden of proof on the issues raising these matters was on plaintiffs, and the jury answered these issues against plaintiffs on evidence of probative force, which was sufficient and which was not. so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. It is our holding also that there was no evidence of competent probative force to authorize the submission of any negligence issues against Dr. Phillips.

Appellants’ points 6, 9, and 10, and all contentions made thereunder, are overruled.

Appellants’ remaining points and contentions have all been considered and are overruled.

Finding no reversible error in the record, the judgment of the trial court is affirmed.