author: GREEN, Chief Justice.

text:
    Ralph C. ALEXANDER, Appellant, v. Iva Maurine ALEXANDER, Appellee.
    No. 9.
    Court of Civil Appeals of Texas. Corpus Clmsti.
    Dec. 5, 1963.
    Rehearing Denied Jan. 9, 1964.

      George Shaffer, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.
    Royce C. Johnston, Kingsville, for ap-pellee.
   GREEN, Chief Justice.

This is an action for divorce, child custody and support, and division of property, real and personal, filed in the district court of Kleberg County, Texas, by ap-pellee Iva Maurine Alexander against appellant Ralph C. Alexander, alleging cruel treatment of such a nature as to render their living together insupportable as ground for divorce.

The trial was to the court without a jury. Only the plaintiff testified as to facts causing the separation. Defendant did not testify or offer any evidence in rebuttal of plaintiff’s testimony. Judgment was entered by the court granting the divorce, awarding plaintiff the custody of the only child under eighteen years of age, finding the realty involved to be community property, awarding plaintiff homestead rights in said realty until the youngest became twenty-one years of age, at which time it should belong one-half to each party, awarding the defendant an automobile, and granting an injunction permanently enjoining defendant from causing plaintiff any embarrassment or harassment.

Appellant’s appeal is based on the following points: (1) That the evidence is insufficient in law to entitle appellee to a divorce; (2) that the realty involved was appellant’s separate property, as shown by the undisputed evidence, and (3) that the trial court was without authority to divest title to one-half interest in appellant’s separate realty out of appellant and vest same in appellee.

To these points the appellee replies (1) that the evidence was sufficient to justify the trial court in granting the divorce, and (2) that the final judgment, in so far as it disposed of the property involved, was a judgment by agreement and consent of the parties, and not subject to the attack made on it by appellant.

We shall first discuss appellant’s point No. 1. We are of the opinion that the trial court did not, as a matter of law, err in finding that the appellee was entitled to a divorce.

To set out here in detail the testimony on which the trial court based his decision that divorce should be granted would add very little to the store of judicial literature. There are hundreds of opinions of our appellate courts in the Southwestern Reporter on the issues of sufficiency or insufficiency of the evidence to entitle a party to a divorce on the ground of cruel treatment under the statute. As stated by Chief Justice Murray in Guerra v. Guerra, (Tex.Civ.App., 1959) 327 S.W.2d 625, “Whether or not cruel treatment exists depends largely upon the peculiar facts in each case and it is difficult to lay down a general rule that applies to all cases.”

A summary of the undisputed testimony as shown by the record shows the following facts. The parties had been married thirty-three years. Appellant constantly argued with and nagged appellee and she left him for short intervals four times, but having in mind the welfare of their children, she returned to him after each separation. In the last five years of their marriage during which time he was employed distant from their home, he contributed nothing toward the support of his family, except payments on taxes and insurance premiums, and the entire load of supporting herself and the younger children at home was upon her. He became unemployed in July, 1962, and returned to their home. He would not work, though his health was good. He acted indifferently toward her and the family as a whole. He would not take their young son to school on cold mornings, although he had nothing else to do, but insisted that she take him. He refused to help her around the house. He interfered in the peaceful operation of her beauty parlor business. He constantly argued with her. He condemned her unjustly and accused her of infidelity. His actions were such that she could not work while he was around. In view of his treatment of her and of the untrue accusations of infidelity, her health failed, and she became a nervous wreck. After the trial court had issued a restraining order enjoining him from causing her any harassment or embarrassment and from coming around her home or attempting to communicate with her in any way, she recovered her health. She testified that she could not under any circumstances ever live with appellant again as his wife.

We note that the trial judge, after hearing the uncontroverted evidence, not only granted the divorce, but also wrote into the decree a permanent injunction whereby, after finding that appellant had been harassing and abusing appellee and interfering with the peaceable conduct of her business, and unless permanently enjoined would continue to do so, the court permanently enjoined him from “bothering plaintiff by coming around her residence or about her person or attempting to communicate with her in any way, at any time and place, or causing her any harrassment or embarrassment.”

It is true that for a divorce to be properly granted on the ground of cruelty, under Article 4629(1), acts constituting excesses, outrages or cruel treatment must be established by full, clear and satisfactory evidence. However, the sufficiency and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of facts, subject, of course, to review by the appellate courts. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Hogue v. Hogue, Tex.Civ.App., 242 S.W.2d 673; Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794; Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957; McGinnes v. McGinnes, Tex.Civ.App., 322 S.W.2d 417; Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625; Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112; Armstrong v. Armstrong, Tex.Civ.App., 350 S.W.2d 348.

As stated in McCullough v. McCullough, Sup.Ct., supra, “It is the settled law of this state that the cruel treatment provided by our statute as a ground for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations.”

False charges of unchastity or infidelity made by a husband to his wife, or even a single deliberately false accusation, may constitute such cruelty as will entitle the wife to a divorce. Fomby v. Fomby, Tex.Civ.App., 329 S.W.2d 111; 20 Tex.Jur.2d, Divorce and Separation, Sec. 20, p. 368.

From a careful examination of the entire record, we are convinced that the judgment of the trial court granting appel-lee a divorce is supported by full, clear and satisfactory evidence and should be sustained. Appellant’s first point is overruled.

The transcript contains an original judgment approved by the attorneys for both parties and signed by the trial judge on March 29, 1963, showing exception and notice of appeal, a motion of appellee filed June 7, 1963, asking that the court enter a nunc pro tunc judgment in lieu of the first decree, and a nuric pro tunc judgment signed and approved by the same attorneys for both parties and signed by the trial judge on June 11, 1963, also containing exception and notice of appeal. The purpose of said second decree was to include the provision, inadvertently omitted from the order of March 29, 1963, that prior to the entry of the first decree, the parties and their lawyers, in open court, with the approval of the court, announced that all matters involved in this suit with the exception of the granting of the divorce had been agreed upon by the parties and their attorneys with the approval of the court, and that the judgment of the court, in disposing of all such issues except that of the divorce was an agreed judgment. Other than to include the fact of such agreement, the two decrees were identical.

The right of a court of record to enter judgments nunc pro tunc to correct mistakes in the record of their orders and make them conform to the truth is expressly provided by Rules 316 and 317, T.R.C.P. The opposite party must be given reasonable notice of the application, which notice is shown in this instance by the fact that the second decree was signed and approved by appellant’s attorney of record.

The court was authorized to enter this nunc pro tunc judgment, and said decree became the judgment of the court in this cause. Tex.Jur.2d Vol. 3, Appeal and Error, Sec. 344, p. 603. Panhandle Constr. Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068; Bolling v. Rodriguez, Tex.Civ.App., 212 S.W.2d 838, writ ref. n. r. e.; Jeffersonian Club v. Waught, Tex.Civ.App., 217 S.W.2d 103; Campbell v. Hart, Tex.Civ.App., 256 S.W.2d 255, writ ref. n. r. e.

Appellant’s second point is to the effect that the court erred in finding the realty involved in the suit to be community property when, as he contended, the undisputed evidence showed it to be his separate property. We overrule appellant on this point.

The realty, being three improved lots in Kingsville, Texas, for many years the homestead of these parties, was conveyed to appellant as his separate property in consideration of $1.00 paid from his separate estate and love and affection, by his parents S. Y. and Ellie Alexander, by deed dated January 23, 1934. Appellant on November 28, 1934, executed a deed to Ellie Alexander to this property for a loan of $650.00, though the deed said nothing about such loan. Thereafter, and the evidence is vague as to time, S. Y. and Ellie Alexander were divorced, and Ellie wanted payment of the debt owing her together with taxes she had paid on the property. Appellee, in 1938 or 1939, “in order to buy the house back,” as she testified borrowed from S. Y. Alexander $720.00, receiving a check for this amount from him, which check was used by ap-pellee to repay the debt to Ellie Alexander. Appellant and appellee, after paying Ellie Alexander, moved onto the premises. They were to pay this debt to S. Y. Alexander at $15.00 per month, presumably from community funds, as the record fails to show that either had any other income. By deed dated March 13, 1939, Ellie Alexander for a recited consideration of $650.00, conveyed the property to S. Y. Alexander, who, by deed dated January 27, 1944, for a recited consideration of $1.00, and love and affection, reconve3'ed it to appellant “as his separate property and estate.”

In the meantime, appellant and appellee had been residing on the property as their home after paying the debt to Ellie Alexander with the money borrowed from S. Y. Alexander, and had been making payments from community funds to the latter. Ap-pellee testified of two payments having been made, but did not remember whether all of this debt to S. Y. Alexander was ever paid. In 1941, appellant and appellee started making extensive improvements to the property, remodeling the house, adding bedrooms, a new bathroom and kitchen, and spending over $4,000.00 community funds, and she testified that as the result thereof, the value of the property was enhanced four fold. Most of these improvements were effected prior to the last deed from S. Y. Alexander, and at the time of this deed, appellant and appellee had been living on this realty as their home since 1938 or 1939.

The parties continued to use this property as their home to the time of their separation, December 31, 1962, and thereafter it served as home for appellee and two of her sons. In addition, for over five years to and including the time of the trial ap-pellee used the garage apartment as the site for her beauty parlor business.

Although the deeds to appellant, and it is the last deed of 1944 that he must depend on here, recite conveyance to him as separate property, such recitals are not conclusive of the true character of the transactions, and are subject to be overcome by evidence. 30 Tex.Jur.2d Husband and Wife, Sec. 182, and cases cited; Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900. Kearse v. Kearse, Com. of App., 276 S.W. 690; Morris v. Neie, 212 S.W.2d 981, Tex.Civ.App. wr. ref. n. r. e. The evidence detailed above was sufficient to create an issue on this matter in the trial court. The trial judge decided this issue by finding the realty to be community property. We find no reason to set aside his decision.

In addition to the above, according to the terms of the nunc pro tunc judgment as asserted by appellee in her second counter point, an agreement was reached in open court by the parties and approved by the court as to the nature and disposition of this property, and this decree was entered in accordance with such agreement and stipulation. The decree containing this agreement was signed and approved by the attorneys of record for both parties. It thus became a consent judgment as to all phases of the disposition of the case other than as to the matter of granting the divorce, which remained a contested issue. Under the provisions of the decree, the parties agreed that this property was community property. Since that portion of the final decree which was made the subject of appellant’s attack by his second point was based on the agreement of the parties made in open court entered of record in the court’s decree, approved and signed by the attorneys of record for both parties, and approved by the court, the same is not subject to the attack here made on it by appellant. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786; Turman v. Turman, Com. of App., 123 Tex. 1, 64 S.W.2d 137; Rawlins v. Stahl, Tex.Civ.App., 329 S.W.2d 308, no writ history; Everette v. Everette, Tex.Civ.App., 309 S.W.2d 893; Gago v. Raines, Tex.Civ.App., 268 S.W.2d 724, n. w. h.; Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177, writ ref. n. r. e.; Bean v. S. W. Bell Telephone Co., et al., Tex.Civ. App., 164 S.W.2d 412, writ ref., want of merit; Posey v. Plains Pipe Line Co., Tex.Civ.App., 39 S.W.2d 1100, n. w. h.; Prince v. Frost John Lumber Co., Tex.Civ.App., 250 S.W. 785, n. w. h., 33 Tex.Jur.2d Judgments, Sec. 104, p. 622, Tex.Jur.2d Divorce and Separation, Sec. 417, pp. 41-42.

On the effect of consent judgments, Justice W. O. Murray, in Plumly v. Plumly, supra, said:

“The court approved this agreement, ordered a copy of it attached to the judgment * * * that part of the decree which settles the property rights of the parties, and provides for the support and maintenance of the children is based upon the agreement of the parties and is therefore an agreed judgment. That part of the judgment which was based upon the agreement of the parties is governed by the laws relating to contracts, rather than laws relating to judgments. * * * An agreed judgment is interpreted like a contract between the parties. * * * Consent judgments are, in effect, merely contracts acknowledged in open court and ordered to be recorded, but as such they bind the parties as fully as do other judgments.”

Under the heading “Stipulation as to judgment”, we quote from 3 Tex.Jur.2d, Appeal and Error, Sec. 213, p. 479, as follows:

“A stipulation by the parties to an action as to the nature and terms of the judgment to be entered constitutes a waiver of all nonjurisdictional errors committed by the court prior to the agreement and judgment and justifies its affirmance, if the agreement is based on a valid consideration and was not obtained by fraud, collusion, or the like.”

Among authorities cited are Dunman v. Hartwell, 9 Tex. 495; Tait v. Matthews, 33 Tex. 112; McDaniel v. Monday, 35 Tex. 39; Wells v. Houston, Tex.Civ.App., 56 S.W. 233, no writ hist.; Thomas v. American Bldg. & Loan Ass’n, Tex.Civ.App., 70 S.W.2d 757, no writ history.

In Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, p. 908, wherein the principal question at issue was community versus separate estate, Justice Garwood, in addressing himself to a point upon which he found that the appellants were taking a stand inconsistent with that asserted by them in the trial court, stated:

“In their pleadings in the trial court, the petitioners — defendants affirmatively conceded to him the full homestead rights, which his pleadings asserted, and did not repudiate that judicial admission until the appeal. The change of position came too late and cannot now be validated, so the judgments below in this respect must remain undisturbed.”

We hold that the finding of the court that this realty was community property has sound basis in the evidence, and by the agreement of the parties. Appellant’s second point is overruled.

Appellant concedes in his brief that the portion of Article 4638, Vernon’s Ann.Tex.St. providing that a party can not be compelled by divorce decree to divest himself or herself of the title to real estate applies only to separate property, and that community realty can be partitioned between parties in accordance with the findings of the court in a judgment of divorce. Hailey v. Hailey, 160 Tex. 372, 373, 331 S.W.2d 299; McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722. There was no error in the ruling of the trial court partitioning this realty equally between the parties after appellee’s homestead rights granted by the decree had ceased.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Leland FIKES et al., Appellants, v. Waldo W. PORTS, Receiver, Appellee.
    No. 16469.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1963.
    Rehearing Denied Jan. 10, 1964.

      Gene Lary, Dallas, Prothro & Sellers and Lee Sellers, Wichita Falls, for appellants.
    Dawson & Penix, Arch Dawson, Rogers, Eggers, Sherrill & Pace and Guy Rogers, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

In the trial court was initiated a summary proceeding, at the instance of the receiver of an estate, the objective of which was to subject certain real property not in possession of the receiver to the administration of the receivership estate. Incident thereto the individual who was in possession of the property and the corporation which held record title to the same, under and by virtue of a conveyance made under authority of a deed of trust, were sought to be divested thereof.

Language of the instrument filed in the receivership proceedings, read as follows: “The Receiver requests the Court to issue notice to Leland Fikes and Trans-Southern Corporation, both domiciled in Dallas County, Texas, to appear herein and show cause why the Trustee’s Deed to the corporation should not be voided and the property turned over to the Receiver with the proceeds of production distributed to claimants herein as their interests and priorities appear.” We take occasion to note that no citation was ever issued or served upon Fikes or Trans-Southern.

Pursuant to a hearing held before the court on a motion to show cause which issued under the direction of the court, based upon the “request” so referred to, a “judgment” was rendered by the trial court, part of which decreed that the conveyance of the property in question was totally void and therefore annulled, set aside, and held for naught, — and the title and interest thereto divested out of Trans-Southern Corporation and vested in the receiver. Another part of the decree required Leland Fikes to make an accounting of the fruits and profits realized from the property in question and the operations conducted thereon, and to deliver same over to the receiver, although Fikes was allowed to remain in possession.

Fikes and Trans-Southern appealed.

We have concluded that the entire proceedings in the trial court were and constituted a nullity in so far as the same might be understood to have had any effect upon the right, title and interest in and to the property in question.

In view of the nature of the summary procedure there never came into existence any “cause of action pending” as against Fikes and Trans-Southern, or either of them, which clothed the trial court with authority to act, or to even consider the matter of proper venue for action upon the merits, in connection with the controversy which no doubt does actually exist between the parties, although not yet become a matter in litigation. Particularly is this evident when it is observed that the decree of the trial court purported to adjudicate a disputed title to real estate, which, in-cidently, was not described sufficiently to enable any officer to place the receiver in possession, had that been directed by decree.

The catalyst which stimulates the judicial process to action to enforce or to protect the rights of a complainant is expressed as a concept: the litigious controversy. Our judicial system rests upon the foundation of adversary presentation, which affords a theoretical guarantee that the diligent antagonists, by developing all aspects of the dispute, will prevent the court from being misled by inadequate understanding of the facts and law, into a position unjust to the parties before it and possibly damaging to the community. Therefore, before the court will act, there must be tendered for settlement a situation where the court may say that “ ‘The complainant asserts rights which are challenged by the defendant and presents for decision an actual controversy to -which he is party, capable of final adjudication by the decree to be rendered.’ ” McDonald, Texas Civil Practice, p. 124 “Actions”, § 2.01, “The Litigious Controversy”. The instant situation is not one concerning which such might be said.

Continuing, (on pages 126 and 127) Mr. McDonaid says: “A court will adjudicate a civil action only when the conflicting claims of two or more actually adverse parties involved a mature, presently existing dispute, * * * concerning specific legal rights and relations of the parties, with reference to a subject matter within the general judicial power, and within the prescribed jurisdiction of the particular tribunal. * * * ” (Emphasis ■supplied.) In this connection we take note that the receivership proceeding is one in equity, wherein the court acts in per-sonam rather than in rem; where the court, under general rules, can interfere .with a legal title of any description only where there is some equity by which it can affect the conscience of a party defendant. Further, we take note that the location of the property, title as to which was purportedly adjudicated by the decree of the court, “on motion” (the form of which was not for judgment — as in our well understood Motions For Summary Judgment), was in a county other than that of the suit, a matter pointed out to the court by instrument filed by Fikes and Trans-Southern.

On page 186, “Parties”, under § 3.04, “The Defendant”, Mr. McDonald says: “ * * * a person is not deemed to be before the court as a defendant when he is named merely as a nominal party, no relief is sought against him, and no service is attempted upon him.” It is obvious that such a party is not before the court for any adjudication against him if he is not even a nominal party, and that in such an instance a decree therein is a nullity so far as his estate’s interests are concerned.

In a leading case where the question determined was analogous it was held that a trial court had no power to enter an order on summary proceedings, the effect of which would be to deliver into the hands of a receiver property in the hands of a stranger to the (receivership) record claiming adversely; that everyone is entitled to his day in court, and that summary proceedings are not suitable to try conflicting claims of title. Ex parte Renfro, 1925, 115 Tex. 82, 273 S.W. 813, 40 A.L.R. 900. The question is annotated in A.L.R. following the publication of the opinion.

For the reasons stated, we have concluded that the proceedings undertaken in the trial court, at every stage, were and constituted complete nullities, without force and legal effect from the time the receiver filed his motions for Fikes and Trans-Southern to appear and “show cause”. Thereupon, and as to proceedings subsequent, the trial court entered its order of severance. The effect thereof leaves undisturbed the proceeding in receivership and all matters relative thereto other than as arisen pursuant to that summary action against Fikes and Trans-Southern which is the subject matter of the appeal and of our discussion. In other words action by this court reversing the (purported) judgment below and dismissing the proceedings giving rise thereto would have no effect upon the receivership and the administration thereunder.

Accordingly the (purported) judgment is reversed and judgment is here rendered dismissing the proceedings heretofore taken by the receiver against Leland Fikes and the Trans-Southern Corporation.


author: GRISSOM, Chief Justice.

text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Forrest Dwane CARTER, Appellee.
    No. 3846.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1963.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, for appellant.
    Warren Burnett, Lee Arnett, Odessa, for appellee.
   GRISSOM, Chief Justice.

Forrest Dwane Carter sued Aetna Casualty & Surety Company for the purpose of setting aside a compromise settlement agreement approved by the Industrial Accident Board on February 17, 1960. He obtained a judgment, based on a jury verdict, setting aside that agreement and the insurance company has appealed.

Appellant’s first point is that there was a second release which was not set aside that is a bar to any further recovery of compensation. It is undisputed that on February 15, 1960, Carter executed an agreement to compromise and settle his claim for workmen’s compensation in consideration of $230.00, to be paid, in addition to $35.00 that had theretofore been paid, and that said agreement was approved by the Industrial Accident Board on February 17, 1960. That agreement was set aside. But, when that agreement was signed the insurance company issued a check to Carter for $50.00. Thereafter it issued a second check to Carter for $180.00, the remaining part of the consideration for the compromise settlement, which was received by him on February 20, 1960. About two days thereafter he endorsed and cashed that check and signed a receipt thereon, which provided that:

“When properly endorsed this draft becomes and constitutes a receipt for compensation benefits stated on the face hereof, and is an acknowledgment of full compromise settlement, accord and satisfaction of all compensation and claims for compensation which the Payee has or could have against the Payer by reason of injuries received by the Payee.”

No doctor, or insurance company representative, talked to Carter when he cashed the check and signed that agreement. This second release was pointed out before the trial by pleadings, during the trial by pleadings and evidence, and by objections to the charge, by motion for judgment non ob-stante veredicto and by motion for a new trial. Despite all of this, 'said receipt, or second release, was wholly ignored. It was then and is now asserted as a bar to recovery of further compensation by appellee and as now requiring a reversal and rendition of the judgment.

- In appellant’s amended answer said receipt, or second release, was expressly pleaded and reference was made to a copy thereof attached, to its pleadings. In appellant’s trial amendment it was alleged that the receipt and second release- executed ’by Carter when he cashed the $180.00 check was a valid and subsisting release and a bar to recovery. Reference was made therein to said receipt, or second release, fully set forth in plaintiff’s pleading. Defendant’s motion for an instructed verdict contained the following:

“11. A release and ratification and confirmation of the compromise settlement agreement, contained on the check (Def. Ex. C) endorsed properly and cashed a day or two after receipt on January 20, 1960, (Ex. D) by registered mail has not been attacked or refuted in any manner, and such second and subsequent release stands as a bar to any possible recovery of a judgment by the plaintiff in this case. The exact words of the second release or ratification, or compromise settlement receipt are as follows:
“ ‘When properly endorsed this draft becomes and constitutes a receipt for compensation benefits stated on the face hereof, and is an acknowledgment of full compromise settlement, accord and satisfaction of all compensation and claims for compensation which the payee has or could have against the payer by reason of injuries received by the payee.
Forrest D. Carter
Payee’
“There is no evidence, and in the alternative, insufficient evidence to show any fraud on the part of the defendant or its agents or representatives inducing the plaintiff to accept and cash the $180.00 check (Ex. C) and execute the compromise settlement receipt on it some 6 or 7 days after going to the Midland office of Aetna on January IS, 1960, and since the plaintiff has wholly failed to plead or prove grounds to invalidate this second release, it is a bar to a recovery of any additional compensation benefits, and the original compromise settlement agreement stands ratified and confirmed under 'the evidence in this case.”

This pleading was substantially repeated in defendant’s motion for judgment non ob-stante veredicto. It was set forth in defendant’s motion for new trial in the following manner:

“Once more, and admittedly and particularly as repetition, the defendant points out to the court that there was a receipt and release on the final check, which is set out twice above, and under the Supreme Court case of Associated Employers Lloyds v. Howard [156 Tex. 277], 294 S.W.2d 706, and the Civil Appeals opinion of Epps v. Aetna [Cas. & Sur. Co.], 309 S.W.2d 555, which previously have been cited to the court, and which, contrary to convention are cited in this Motion, the plaintiff has failed to complete the matter of voiding the Compromise Settlement Agreement. The plaintiff had two agreements to void, and he has attempted to void only the first, and the second one still stands as a complete bar to a judgment for the plaintiff in this case.”

It is evident that said second release was pointed out at all stages of the trial as being an insuperable barrier to further recovery, unless it, also, was set aside. This is a stronger case on the facts, so far as the defense of the receipt, or second release, as a bar to further recovery of compensation, is concerned, than is shown in Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706, 708. There, it was stated that there was no evidence tending to show any fraud on the part of the insurance company in inducing the claimant to accept and cash a check and execute the same kind of a compromise settlement receipt after the claimant had executed a compromise settlement agreement. The Court said that:

“Inasmuch as respondent has wholly failed to plead or prove grounds for invalidating his release of April 30th (which was the receipt or second release) the same is a bar to the recovery of additional compensation benefits and it is immaterial that he was induced by fraud to execute the Compromise Settlement Agreement.”

The judgment setting aside both the compromise settlement agreement and the release was reversed and judgment was rendered that the claimant take nothing, because there was no evidence that fraud induced execution of the second release. Here, Carter, notwithstanding the fact that it was repeatedly pointed out that the insurance company was asserting that the second release Carter executed when he cashed the check barred his recovery, asserted no fraud, either by pleading or evidence, as an inducement to his execution of the second release.

In Epps v. Aetna Casualty & Surety Company, Tex.Civ.App., 309 S.W.2d 555, 557, (Ref. N.R.E.), the insurer asserted the same kind of release as a bar to further recovery of compensation and the claimant made no attempt to show that it, also, should be set aside, or why it should not bar his recovery and, upon authority of the Howard case, the Court held that, notwithstanding fraud in obtaining the prior compromise settlement agreement, such receipt was a bar to further recovery by the claimant. See also Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591, 592; Morris v. Millers Mutual Fire Insurance Company of Texas, Tex.Civ.App., 343 S.W.2d 269, 271, and Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619, 621.

Despite the fact that he has been granted four extensions of time to file a brief, ap-pellee has not filed a brief and did not argue the case when it was submitted.

The judgment is reversed and judgment is rendered for appellant


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Denton R. BRUNKEN, Appellee.
    No. 3831.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1963.
    Rehearing Denied Jan. 10, 1964.

      Crenshaw, Dupree & Milam, Brad Crawford, Jr., Lubbock, for appellant.
    John K. Ford, Odessa, Woodrow Edwards, Gilmer, for appellee.
   GRISSOM, Chief Justice.

Appealed from the District Court of Borden County.

This is a workmen’s compensation case. Denton R. Brunken, the employee, obtained a judgment in the District Court of Borden County based on a jury verdict that he was permanently partially incapacitated by an injury he received while employed by Noble Drilling Corporation in Borden County. Aetna Casualty & Surety Company, said employer’s insurer, has appealed.

Appellant’s first point is that the court erred in overruling its plea in abatement that there was a prior suit pending between the same parties over the same cause of action in the United States District Court at Lubbock. It was shown that on April 17th, 1962, appellant filled its notice of intention not to abide by the award of the Industrial Accident Board and its notice of appeal with the Board and on the same day filed its original complaint, “appealing” from the action of the Board, in said United States District Court. On April 19th, Brunken likewise appealed and filed suit in the District Court of Borden County; on April 24th, service was had on Brunken in the federal court case; on April 26th, Brunken filed an answer and cross action in the federal court; on May 11th, the insurance company filed its plea in abatement in the state court. Said suits were between the same parties over the same cause of action. The court did not err in overruling the plea in abatement. The general rule, which is adhered to in Texas, is that pendency of a prior suit between the same parties over the same cause of action in a federal court is not ground for abatement of a subsequent suit in a court of the state in which the federal court sits. 56 A.L.R.2d 338; 2 Texas Digest, Abatement & Revival, ^12; 1 Texas Jur.2d 61; Trinity Universal Ins. Co. v. De Martini, Tex.Civ.App., 118 S.W.2d 901 (Writ Ref.); International & G. N. R. Co. v. Barton, 24 Tex.Civ.App. 122, 57 S.W. 292, (Writ Ref.); Northwest Engineering Co. v. Chadwick Machinery Co., Tex.Civ.App., 93 S.W.2d 1223, (Writ Dis.); Boger v. Moore, Tex.Civ.App., 196 S.W.2d 646, 648; Mack v. Reserve Life Ins. Co., Tex. Civ.App., 217 S.W.2d 39. See also Hyde Corporation v. Huffines, 158 Tex. 566, 578, 314 S.W.2d 763.

Appellant’s points 2, 3, 4, 5, 6, 7 and 8, which it refers to as Group 1, is restated in summary in its brief as follows:

“This case should be reversed for the failure of the trial court to sustain objections of appellant’s counsel to improper argument by Appellee’s attorney, and for the improper jury argument by Appellee’s counsel in going outside of the record and appealing to passion and prejudice and because of the aggregate effect of such improper argument upon the jury.”

Appellant says objections were made to arguments until the court twice instructed its counsel that the court did not rule on objections to arguments and ordered counsel to be seated. It contends that the court’s said action prevented appellant from objecting to other inflammatory and prejudicial argument. Bills of exception 1 to 5, inclusive, are as follows:

(1)

“BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, and on final argument by counsel for plaintiff, plaintiff’s counsel, Honorable Robert Zeisenheim, made the following argument:

‘We found out how easy it is for the insurance company to produce witnesses. All they’ve got to do is to call up the assistant superintendent or the drilling superintendent and tell him to send them over and they appear here. I think it is reasonable to assume that, and of course they are fully aware of what their legal rights are. There are ways to produce testimony, and when Denton took the stand and testified, he placed his credibility as a witness at issue in this case; and if he was lying, the law provides ways he can be impeached. If there was anything wrong with this boy, if there was any fact in his past, anything about his life at all, indicating that he would lie to you under oath, the insurance company would have them up here and — ’

‘MR. CRAWFORD: We object to that as being improper. Mr. Zeisenheim knows there are a lot of things you can’t bring out in a court of law.

THE COURT: Well, I will note your objection. I don’t rule on argument ordinarily. I will note your exception. Just have a seat, Mr. Crawford.

MR. ZEISENHEIM: On the other hand, you are dealing with a boy in his twenties, who got through the Navy with an honorable discharge. Mr. Crawford is going to cry loud and long about the fact that Den-ton did not work steadily during the two years after he got out of service and before he got hurt out here on the job.’

That objections to such arguments and rulings by the Court are as shown by the above quoted record.”

(2)

“BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, and on final argument by counsel for plaintiff, plaintiff’s counsel, Honorable Robert Zeisenheim, made the following argument :

‘Let’s be frank about it. When Aetna was collecting these premiums on this policy and the money was coming in and they weren’t sued, they were stuffing the money down in their sock; and the only time when we ask them to pay, they holler and — ’

‘MR. CRAWFORD: That is highly improper and has no basis in this case.

THE COURT: All right, the jury heard it; they will remember the testimony.

MR. ZEISENHEIM: Aetna carried the policy of insurance and they were not giving it away, and what does the insurance company do when we bring suit and ask them to pay off like they are supposed to do ? They’ve got something for everybody. Santa Claus is a joke compared to the Aetna Insurance Company. They’ve got something to feed the jury with. If one of them is sued they said he didn’t have an accident. Sometimes they will say he had an accident, but he didn’t get hurt; he has already gone back to work — they have something for everybody. I think you can rely on the fact that Dr. Tull is telling the truth. Then they said if he did get hurt, why it wasn’t this accident, but one he had six months before that. He didn’t file any claim. Yes, they’ve got something for everybody and they are asking you to close the door on this boy, not just today; but for all time, for his future.’

That objections to such arguments and rulings by the Court are as shown by the above quoted record.”

(3)

“BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, and on final argument by counsel for plaintiff, plaintiff’s counsel, Honorable Robert Zeisenheim, made the following argument:

‘Now I gather from what Brad says he is accusing me of something, but I firmly believe that his witnesses didn’t tell you anything that has anything to do with the facts of this lawsuit. In sum, as I recall, they testified they did not discuss the accident on the way home in the car. They were out there and they appeared here as witnesses of this insurance company. I am under no duty or obligation to ask them anything. Brad avoided asking them whether the accident happened; he merely asked them whether they discussed it on the way home in the car. That as far as he asked them, did they talk about it on the way home in the car, and of course both of them said no. I didn’t ask — I wasn’t obligated to ask his own witnesses whether an accident happened out there on that rig, but he could — ’

‘MR. CRAWFORD: We object to that. Mr. Zeisenheim can ask all the questions he wants to of the witnesses. He has an opportunity to cross examine.

THE COURT: He can comment on your not asking certain questions. You commented on his witnesses not — taking the stand. I don’t like to take part in the argument, but let’s let him argue his case. You argued yours. Let’s be seated.

MR. BRAD CRAWFORD: We accept.’

That objections to such arguments and rulings by the Court are as shown by the above quoted record.”

(4)

“BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, and on final argument by counsel for plaintiff, plaintiff’s counsel, Honorable Zei-senheim, made the following argument:

T will do my best to give you most of my time back to your Honor and this jury. I have heard this same type of speech so many times that it doesn’t scare me any more. Now Mr. Crawford told you about how he truly loves the jury system. I take it in that — he is trying to imply that Aetna loves the jury system. Ladies and gentlemen, let’s be frank about this thing. Of course we brought this lawsuit. Aetna is here because they wouldn’t pay this boy who is being criticized because he went out and hired a lawyer.’

That objections to such arguments and rulings by the Court are as shown by the .above quoted record.”

(5)

“BE IT REMEMBERED that upon the trial of the above entitled and numbered cause, and on the final argument by counsel for plaintiff, plaintiff’s counsel, Honorable Robert Zeisenheim, made the following argument :

‘One of the things that did impress me about Dr. O’Bannion is that he told you that if he were going to examine x-rays and his ■decision and the results of his examination might mean somebody’s life he would certainly prefer to look at the x-rays in a view box, just like the careful Dr. Tull did, and just five minutes before that I picked up some x-rays he had never seen before, and without a view box, he didn’t look at them two minutes and yet he could reach a decision which might mean a person’s life — not his life maybe, but the kind of life he is entitled to have. And based on that skimpy examination he is in effect saying something that may take away from this boy benefits that this insurance company owes him under the law and for which they accepted premiums and issued the policy.’

That objections to such arguments and rulings by the Court are as shown by the above quoted record.”

In bill number one it appears that the only thing objected to was the statement that if there was anything that indicated appellee had committed perjury the insurance company would have produced witnesses to prove it. Appellant’s objection was merely that said argument was improper. In connection with that extremely general objection appellant’s counsel stated that appellee’s counsel knew there were a lot of things he could not bring out in court. The court stated in response to said objection that “ordinarily” he did not rule on objections to argument but that he would note his exception. He then asked counsel to be seated. As we understand it, appellant was claiming that if appellee had any disability it was caused by an injury suffered about six months prior to the injury asserted by appellee as the basis for this suit, for which previous injury appellee had not filed a claim for compensation, and, as shown in bill 3, it was, at least, indicated that appellant’s witnesses, who were present when ap-pellee claims he was last injured, were not asked by appellant whether an accident then happened, while appellant’s testimony was to the effect that he suffered no disability from the previous injury but that he is disabled and his disability was caused by an injury at the rig on the occasion made the basis for this suit, at which time appellant’s said witnesses were present. Under these circumstances, there was justification for argument that if appellee had testified falsely with reference to the happening of an accident which he says caused his disability that appellant’s witnesses would have so testified. There was no request that the court instruct the jury not to consider this or any other argument.

The only thing objected to as shown in bill number two was appellee’s argument, “Let’s be frank about it. When Aetna was collecting these premiums on this policy and the money was coming in and they weren’t sued, they were stuffing the money down in their sock; and the only time when we ask them to pay, they holler and — ” The obj ection made was that the argument was highly improper and had no basis in the evidence. As stated, there was some contention by appellant that if appellee had any disability it was caused by a previous accident for which appellee had not claimed compensation. We think there was a basis for the argument in the evidence and that it was not highly improper.

The substance of bill number three is that appellee’s counsel argued that appellant’s counsel had not asked its witnesses whether appellee had an accident at the rig and that he had no duty to ask them about it. Appellant’s counsel simply stated that he objected to “that”. He then stated that appellee’s counsel could ask said witnesses all the questions he wanted to and that he had an opportunity to cross examine them. If, as the bill indicates, appellant’s witnesses, who were present at the rig at the time appellant says he was injured, were not asked by appellant whether the accident happened, we think, as appellee argued, that his counsel had no “duty” to ask them whether it happened, especially since they had not disputed Brunken’s testimony that he was injured at that time. We think the effect of the court’s action was to overrule said general objection. It is the duty of the court to pass upon objections and not leave it to a jury to determine whether there is a basis in the evidence for the argument objected to. But, the argument objected to was not improper and there was a basis therefor in the evidence. Therefore, appellant could not have been hurt by the court’s action.

Appellee’s attorney did not tell the jury anything they did not already know when he said (as shown by bill 4) that appellee brought the suit and appellant was in court because it wouldn’t pay him. The criticism of the testimony of appellant’s doctor (shown in bill S) was not unreasonable, nor improper.

When argument was objected to no legal ground therefor was stated and the objections were not clearly directed to any specific statement of opposing counsel. The court was not requested to instruct the jury not to consider any argument. The arguments complained of in bills 4 and 5 were not objected to, nor attempted to be objected to, in any manner. Generally the duty rests upon an appellant to object to all argument that is not “incurably” improper and failure to object constitutes a waiver of the error. Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264, 267. However, when the argument is so prejudicial or inflammatory that no instruction from the court will cure the error an objection and request for instruction is not required. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, 1055. In Travelers Insurance Company v. Broadnax, Tex.Civ.App., 365 S.W.2d 683, 685, Judge Chadick, in an excellent opinion showing considerable research, states that, with the exception of argument that injects racial, religious, social, political, or like prejudice, harm may be removed by the court instructing the jury to disregard it. Appellant contends it was excused from the duty to further object and request the court to instruct the jury not to consider argument by the fact that when it had previously objected the court had twice stated that it “ordinarily” did not pass upon objections to argument, stated he would note the objection and ordered counsel to be seated. It has apparently been held that failure to object and ask for an instruction is not required when the trial court has established a rule that he will in no case sustain an objection to argument or instruct a jury to disregard it. See Galveston, H. & S. A. Ry. Co. v. Washington, 42 Tex.Civ.App. 380, 92 S.W. 1054, 1059, (Dis. WOJ); Houston & T. C. R. Co. v. Rehm, 36 Tex.Civ.App. 553, 82 S.W. 526, 527, 41-B Tex.Jur. 351, Section 290. Existence of such a firm and inclusive rule is not here established. However, regardless of whether said last mentioned rule is correct, the arguments not objected to were not reasonably calculated to cause and did not probably cause rendition of an improper verdict. While it is the duty of the court to rule directly upon objections when they are made, the effect of the court’s actions, where objections were made, was to overrule them. None of the arguments were “incurable” and the cumulative effect thereof considered in the light of the record as a whole, was not, in our judgment, reasonably calculated to cause and did not probably cause the jury to be prejudiced or to render an improper verdict. See Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 and Texas Power & Light Company v. Hering, 148 Tex. 350, 224 S.W.2d 191, 192. We have carefully considered all complaints about argument and conclude that reversible error is not shown.

Appellant’s points 9 to 11, inclusive, designated as Group Two, is restated in summary by appellant as follows:

This case should be reversed for the reason that there is insufficient evidence to support the findings of the jury of partial permanent incapacity, or for the reason that such findings are against the great weight and preponderance of the evidence.”

Appellant’s main contention is that therq was no evidence, or insufficient evidence, from which a jury might reasonably conclude that appellee suffered the disability found by the jury as a result of the injury he asserts as the basis for this suit. We be-Heve the testimony of appellee and his medical witness is sufficient to support said findings. Tersely stated, the effect of appellee’s doctor’s testimony was that appellee had greater disability than found by the jury and appellee’s testimony was to the effect that he had no disability from the previous injury, but that he was disabled and his disability was caused by his last injury. After applying the established rules for considering said points we have concluded that they should be overruled.

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


author: RENFRO, Justice.

text:
    Don E. HANSEN et al., Appellants, v. EAGLE MOUNTAIN-SAGINAW INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 16467.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1963.
    Rehearing Denied Jan. 10, 1964.

      Dixon, Alley & Petrovich, and Travis Alley, Fort Worth, for appellants.
    Morgan & Shropshire, and Cecil A. Morgan, Fort Worth, for appellee.
   RENFRO, Justice.

This is an appeal by Don E. Hansen and American Employers’ Insurance Company from a summary judgment awarded to Eagle Mountain-Saginaw Independent School District.

The plaintiff plead that Hansen submitted a proposal to erect a shop building as an addition to the W. E. Boswell High School of plaintiff district for a consideration of $45,910.00 on May 8, 1962; attached to the proposal was a bid bond of same date signed by Hansen and American Employers’ Insurance Company; the bid bond provided that defendants would pay plaintiff the sum of five per cent of the total amount bid conditioned that Hansen would carry into execution his proposal to construct the building; on May 8, 1962, the Board of Trustees awarded the contract to Hansen; and on May 11 notified Hansen the contract had been awarded to him; Hansen defaulted on his proposal and refused to construct the building; on May 21 the Board of Trustees awarded a contract in the amount of $56,448.00 to John W. Webb; that defendants were bound and liable to pay plaintiff five per cent of $45,910.00 or the difference between the Hansen bid and the Webb bid, whichever was the lowest amount for which the plaintiff could legally contract with another party to perform the work; prayer was for the lesser amount, or five per cent of $45,910.00.

Defendant answered that he was granted a 10 day period after award of contract to execute such a contract and furnish bond; plaintiff breached said provision by awarding the contract to another before the expiration of such 10 day period; denied that the sum of $56,448.00 was necessary or required to construct the building.

The suit was filed July 11, 1962, and answer filed August 20, 1962. On Nov. 27, 1962, plaintiff filed motion for summary judgment attaching thereto plaintiff’s interrogatories and request for admissions, defendants’ answer to such interrogatories and requests, affidavit of the architect for plaintiff and affidavit of a member of the School Board.

Defendants did not reply to the motion for summary judgment.

The first point of error is that a material issue of fact exists in that Hansen made a material mistake of fact in the bid submitted, and of which facts he advised the plaintiff promptly and requested withdrawal or renegotiation of his bid.

Defendants’ answer did not plead either mutual or unilateral mistake.

Exhaustive interrogatories and requests were submitted to defendants.

It was admitted that Hansen submitted the $45,910.00 bid and that a bid bond was duly executed by both defendants, but “which written instrument inadvertently and through mutual mistake contains the figure $45,910.00, and otherwise said instrument speaks for itself.” In answer to another request, “Defendants admit the inadvertent execution of such Bid Bond through mutual mistake of the parties * * and * * * any statements made by Hansen were predicated upon a mutual mistake concerning his sub-contractor bids, which facts were made known to the Board by Hansen as soon as such mutual mistake was discovered”; that defendants met with the architects and at such “time informed them of such mutual mistake.” It was admitted that Hansen received a letter dated May 11, 1962, informing him officially that he had been awarded the contract and notifying him to sign the contract documents, which were ready in the office of the architect, by May 15.

The affidavit by the architect stated that Hansen was present when the Board accepted his bid. The next day he informed both defendants all papers were ready for execution but both refused to sign. On May 21, the contract was awarded to the next lowest bidder, John W. Webb, in the amount of $56,448.00.

Board member Elkins, by affidavit, stated that all bids were opened on May 8, that Hansen’s was the low bid, and after a discussion between Hansen, the architect and members of the Board the contract was unanimously awarded to Hansen. Hansen was present when the contract was awarded to him; Hansen failed and refused to enter into a written contract; the Board waited until May 21 for Hansen to execute the contract, but upon his refusal the Board awarded a contract to Webb.

As heretofore stated, the defendants did not reply to the motion for summary judgment, the various instruments and affidavits contained therein, but base point one on their replies in answer to admissions wherein they refer to mutual mistake.

We have carefully studied the pleadings and all matters before the court at the time of the hearing and find no allegations or statements regarding mistake other than the quoted references in the forepart of our opinion. At no time did defendants allege the nature of the mistake, who made it or when it was made. More important, it is nowhere claimed, except in appellants’ brief, that a material mistake was made.

The Supreme Court in James T. Taylor & Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, quoted with approval 43 Amer.Jur., Public Works and Contracts, § 63, p. 805, wherein it is said: “ ‘As a general rule, equitable relief will be granted a bidder for a public contract where he has made a material mistake (emphasis added) of fact in the bid which he submitted, and upon the discovery of that mistake acts promptly in informing the public authorities and requesting withdrawal of his bid or opportunity to rectify his mistake, particularly where he does so before any formal contract is entered into.’ ”

In setting out a guide for trial courts in matters of mistake in bids on public works, the Supreme Court in the Taylor case, supra, said: “ * * * the trial court, guided by the principles herein stated, should determine from the facts and circumstances under which the mistake was made whether there is raised such issue of negligence that should be submitted to the jury. If there is raised an issue of fact as to whether the mistake was the result of such carelessness or lack of good faith in calculation which violates the positive legal duty in making a bid, then the court should inquire whether such mistake was wholly caused by the failure to exercise at least that minimum degree of care which a public authority in the position of the School District may reasonably expect all of its bidders to exercise in the light of the circumstances of the transaction and the practice of the trade.”

The record shows that defendants did not plead mistake. They did not answer plaintiff’s motion for summary judgment. In their answer to request for admissions they merely said a mistake had been made. They did not say by whom, under what circumstances, when, or that such mistake was material.

We sustain the trial court’s conclusion that, as to mistake, there was no genuine issue as to any material fact.

The point of error is overruled.

Other points are based on contentions the pleadings presented material issues of fact as to the time which Hansen had to accept the contract, and the date the subsequent contract was awarded to Webb.

By exhibits and affidavits the plaintiff demonstrated to the court there were no genuine issues of such facts.

Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere pleading denial, even a sworn one, in order to overcome the force of the motion. McDonald, Texas Civil Practice, Vol. 4 (1962 Cumulative Supplement, § 17.26.3, p. 47).

Defendants did not file an answer to the motion for summary judgment. They did not show that they were unable to obtain affidavits or evidence to contradict 'plaintiff’s exhibits and affidavits. According to the rule, the Court’s rulings are to be based upon the pleadings, depositions and admissions on file, together with the affidavits, if any. Sub. (c), Rule 166-A, Texas Rules of Civil Procedure. Formal issues framed in the pleadings are not controlling when extrinsic evidence demonstrates the absence of any true issue, McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Saenz v. Lower Rio Grande Valley Chamber of Commerce, Tex.Civ.App., 296 S.W.2d 806; hence a genuine issue of material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, and they must be bolstered by counter-affidavits or other evidence. Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718.

Under the record, as presented to the trial court, we uphold the trial court’s judgment that no genuine issue of material fact was presented at the hearing.

In their last point defendants allege error on the part of the court in overruling their motion, which, in effect, requested the court to order the plaintiff to take Hansen’s oral deposition rather than have him answer plaintiff’s request for admissions.

The request for admissions was filed Oct. 9, 1962.

The motion by defendants to require plaintiff to take Hansen’s oral deposition was filed October 21. Said motion was heard on October 25 and overruled. Defendants were ordered to make answer to the request for admissions on or before November 9. The motion for summary judgment was heard on December 27. It is not contended that the court allowed insufficient time for answering the admissions, and no contention is made that additional time was requested. Moreover, defendants had ample time before the hearing on the motion for summary judgment to prepare and file counter-affidavits for and from defendants. This they did not do.

Under the record, reversible error is not shown.

All points of error are overruled and the judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Albert E. KUEHNERT, Appellant, v. Bill ONG, Appellee.
    No. 14269.
    Court of Civil Appeals of Texas. Houston.
    Dec. 19, 1963.
    Rehearing Denied Jan. 9, 1964.
    Sonfield & Sonfield; Robert L. Sonfield, Houston, for appellant.
    Donald Peters, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment. Appellant, a licensed auctioneer, sued appellee to recover the amount of a bid made for certain real estate at an auction conducted by appellant. Appellee bid $20,100.00 for the real estate and was announced as the purchaser. By the terms of the rules and regulations governing the auction, he was then required to post 20% of that sum, $4,045.00, as a deposit, which he failed to do. This suit resulted.

In the sworn petition on which appellant went to trial, he alleged these facts, and further alleged:

Plaintiff says that he is a duly licensed Real Estate Broker; that, however, being a duly licensed auctioneer by the State of Texas, Harris County, and the City of Houston, Texas, he was and is exempt from the provisions of what is termed “The Real Estate License Act,” being Article 6573a of Vernon’s Civil Statutes of Texas, and may not be required to also have a license as a Real Estate Broker or Real Estate Salesman. Plaintiff further says that he was exempt from the provisions of such law under Section 6 [1] thereof, wherein it is provided that “the provisions of this Act shall not apply to the advertising, negotiation or consummation of any purchase, sale, rental or exchange of, or the borrowing or lending of money on, real estate by any person, firm or corporation when such person, firm, or corporation does not engage in the activities of a Real Estate Broker as an occupation, business or profession on a full or part-time basis.” Plaintiff was and is further exempt from the provisions of such law under Section 6 [3] wherein it is provided that “the provisions of this Act shall not apply to any person acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing, or exchanging of real estate * * *.

Appellee filed an unsworn answer and a motion for summary judgment with affidavits in support thereof, setting up as a defense the fact that appellant was not licensed as a real estate broker on the date of the sale.

Appellant also filed a motion for summary judgment and an affidavit containing this paragraph:

This affiant further says that he had been engaged in the business of an auctioneer for some time prior to the sale in question; that, however, he had never before sold any real property at any auction sale; that this was the first sale at which real property was sold; and, that he had never theretofore engaged in the business of a real estate broker or agent on either a full or part-time basis.

The Real Estate License Act, Art. 6573a, Vernon’s Ann.Civ.St., provides:

“Sec. 4. The following terms shall, unless the context otherwise indicates, have the following meaning:
“(1) The term ‘Real Estate Broker’' shall mean and include any person who, for another or others and for compensation or with the intention or in. the expectation or upon the promise of receiving or collecting compensation:
******
“(f) Auctions, or offers or attempts, or agrees to auction real estate;
******
“Sec. 5. Any one act set out in Section 4, Subdivision (1), when performed for another or others for compensation or valuable consideration or with the intention or in the expectation or upon the promise of receiving or collecting compensation shall constitute a person, partnership, association, or a corporation performing, offering or attempting to perform such act or acts,' a Real Estate Broker or a Real Estate Salesman within the meaning of this Act.
“Sec. 6. * * *
* * * * * *
“(3) The provisions of this Act shall not apply to any person acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing, or exchanging of real «state, nor shall this Act be construed to include in any way services rendered by an attorney at law, nor shall it be held to apply to the acts of any person while acting as an escrow holder, receiver, trustee in bankruptcy, administrator or executor, or to any per.son doing any of the acts specified in this Act under order of any court, nor to apply to the trustee acting under a trust agreement, deed of trust or will, nor to the regular salaried employees thereof, nor shall this Act apply to public officers or employees while performing their duties as such.
******
'“Sec. 19. No person or company may bring or maintain any action for the ■collection of compensation for the performance in this State of any of the Acts set out in Subdivision (1) of Section 4 hereof without alleging and proving that the person or company performing the brokerage services was a duly licensed Real Estate Broker or Salesman at the time the alleged services were commenced.”

These provisions, or provisions having .-substantially the same wording, were contained in the original Act of 1939, Vernon’s Annotated Texas Statutes, Cumulative Supplement, 1939, p. 884. From time to time this Act was amended and in the revision •of 1955 the 54th Legislature added certain provisions, including the following:

“Sec. 6. (1) The provisions of this Act shall not apply to the advertising, negotiation or consummation of any purchase, sale, rental or exchange of, ■or the borrowing or lending of money ■on, real estate by any person, firm, or ■corporation when such person, firm or ■corporation does not engage in the activities of a Real Estate Broker as an occupation, business or profession on a full or part-time basis.”

Since Sec. 6(1) exempts appellant from the provisions of the Real Estate Dealer’s Act unless he is engaged in the activities of a real estate broker as an occupation, business or profession on a full or part-time basis, the definitions contained in the Act cannot be considered in determining whether or not he is, in fact, a real estate broker. It seems clear that the legislature intended that no one be required to secure a license as a broker unless with some degree of regularity he engaged in activities concerned with the sale, lease, or rental of real estate either as the sole, or a supplementary, source of income.

Appellant, by his sworn petition, has alleged that at the time of the sale in question he did not engage in the activities of a real estate broker as an occupation, business or profession on a full or part-time basis. It follows that, since an issue of fact has been raised by the pleadings, which was not conclusively resolved in favor of appellee by facts appearing in his affidavits, appellee’s motion for summary judgment should have been denied. Butler v. Summers, 151 Tex. 618, 253 S.W.2d 418; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Appellant’s motion for summary judgment was properly denied by the trial court. The fact that appellant had never previously sold, or attempted to sell, real estate for a compensation would not show conclusively that at the time he listed his first parcel of real estate for sale he was not in the business of selling real estate. One sale of real estate for a commission would be evidence that the person making the sale was in the business of selling real estate. Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377. Appellee did not controvert the facts relating to appellant’s business, occupation or profession, as set out in appellant’s affidavit, but these facts are not sufficient to establish conclusively that appellant did not intend to enter the business or occupation of a real estate broker on a part-time basis when he contracted to sell the parcels of real estate listed on the notice of sale attached to plaintiff’s petition. The affidavit does not negative a regular course of activity concerned with the sale, lease; or rental of real estate thereafter.

There is nothing in the contract between appellant and the owner of the real estate to indicate that it was intended to be, or effective as, a power of attorney. The words “attorney”, “attorney in fact”', or “power of attorney” were not used. Appellant was not authorized expressly to execute a deed conveying the real estate to a purchaser, and the contract was not acknowledged. Exception 6(3) to Article 6573a, V.A.C.S., will not support appellant’s position. Brouse v. Miers, Tex.Civ.App., 261 S.W.2d 734, rev. on other grounds, 153 Tex. 511, 271 S.W.2d 419; Juliani v. Fitz-Gibbon, Tex.Civ.App., 234 S.W.2d 448.

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


author: WILLIAMS, Justice.

text:
    James L. STALDER, Appellant, v. Hickman Oscar BOWEN, d/b/a Bowen Express Company, et al., Appellees.
    No. 16255.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1963.
    Rehearing Denied Jan. 3, 1964.

      Johnson, Bromberg, Leeds & Riggs, Dallas and Bath, Turner & Lloyd, Henderson, for appellant.
    Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellees.
   WILLIAMS, Justice.

James L. Stalder brought this suit seeking damages for injuries to his wife, a pedestrian, who was struck by a truck owned by one of the defendants, and driven by its employee, as she crossed Cedar Springs Road at Hedgerow in the City of Dallas. Plaintiff based his action upon numerous acts of negligence on the part of defendants who, in turn, defended by alleging a number of contributory negligence acts on the part of plaintiff’s wife. The trial was to a jury and at the conclusion of the evidence a large number of special issues were submitted to the jury which was unable to agree on the answers to all issues submitted. The court received the partial verdict and, based upon the jury’s affirmative answer to an issue of contributory negligence on the part of plaintiff’s wife, rendered judgment for the defendants. Plaintiff appeals on nine points of error which we have carefully considered and, finding no merit to any of them, they are overruled and the trial court’s judgment is affirmed.

FACTS

On July 5, 1960, at about 8:45 A.M., Dorothy Stalder, appellant’s wife, was a passenger on a city transit bus going in a northerly direction on Cedar Springs in the City of Dallas. Her place of employment was two blocks west of Cedar Springs on Hedgerow Street. At the southeast corner of Hedgerow and Cedar Springs there is a regular bus stop and when the bus stopped at this intersection Mrs. Stalder alighted from the bus. Another woman passenger alighted from the bus behind Mrs. Stalder. After Mrs. Stalder left the bus she proceeded around the front of the bus to cross Cedar Springs going West on the south side of Hedgerow. A truck operated by appellee Wilson and owned by appellee Bowen Express Company, was also proceeding in a northerly direction on Cedar Springs. Wilson came into view of the stopped bus for the first time when his truck reached a point about 350 feet south of the bus. At that time Mrs. Stalder had already dismounted from the bus and was apparently in front of the vehicle. Wilson did not see Mrs. Stalder as he approached the bus. When he was within about fourteen feet from the bus, he turned to go around the bus and proceeded around the same with his vehicle occupying the center of the street which was an asphalt paved street without a center stripe painted thereon. Mrs. Stalder apparently did not see the approaching truck as she dismounted from the bus and started across the street. As Wilson passed the bus he was traveling from fifteen to eighteen miles per hour and did not see Mrs. Stalder as she crossed the street until she was within two to five feet of him. The left front of the truck struck Mrs. Stalder as she was approximately ten feet from the west side of the bus, past the center of the street. Mrs. Stalder sustained serious personal injuries which prevented her from testifying at the trial.

In response to special issues the jury found (1) that the operation of appellee’s truck partly on its left hand side of the road within one hundred feet of the intersection was the proximate cause of the injuries to Mrs. Stalder; (2) that the bus was stopped at an unmarked crosswalk; (3) that the bus was not stopped to permit Mrs. Stalder to cross the roadway; (5) that Wilson, the driver of appellee’s truck, did not fail to keep a proper lookout on the occasion in question; (11) that appellee’s truck was not being operated at a speed of more than thirty miles per hour; (13) that ap-pellee’s truck was not being operated at an excessive speed; (15) that the failure of the driver of appellee’s truck to sound the horn was not negligence; (17) that the failure of the driver of appellee’s truck to turn it to the left was not negligence; (19) that the driver of the truck, by the use of all means at his command and safety to himself and the truck, could not have avoided the injury to Mrs. Stalder; (25) that Mrs. Dorothy Stalder failed to keep a proper lookout on the occasion in question; (29) that Mrs. Stalder was within an unmarked crosswalk; (31) that Mrs. Stalder’s injuries were not the result of an unavoidable accident. The jury did not answer Special Issue No. 32 concerning damages nor did they answer Issues 7, 8, 9 and 10 inquiring whether Mrs. Stalder had the right-of-way over the truck.

Special Issue No. 26, because of its importance in this appeal, is copied as follows: “Do you find from a preponderance of the evidence that at the time, place and occasion in question Dorothy Jones Stalder suddenly left a curb or other place of safety?”, to which the jury answered, “Yes”. In answer to Special Issue No. 26-A the jury found that such conduct on her part was negligence, as defined, and in answer to 26-B the jury found that such negligence was a proximate cause of the accident in, question. In answer to Special Issue No. 27 the jury found that Mrs. Dorothy Jones. Stalder walked or ran into the path of defendant’s Chevrolet panel truck and in answer to Special Issue No. 27-A the jury found that Dorothy Jones Stalder walked or ran into the path of defendant’s Chevrolet panel truck when such truck was so. close that it constituted an immediate hazard. Issues 27-B and 27-C, inquiring as to-whether this constituted negligence and a proximate cause of the accident were unanswered by the jury.

Appellant objected to the submission of the 26th series of questions and the 27th series of questions, not only for the reason that there was no evidence, but that the evidence was wholly insufficient to support the submission of same; and also that the manner in which Special Issues 26 and 27 were submitted amounted to splitting ultimate issues and therefore did not constitute the proper submission of ultimate issues of fact, but merely amounted to the submission of evidentiary issues not sufficient to support a judgment. Following the verdict the appellant objected to the granting of a judgment based upon these issues, inter alia,. that there was no evidence or insufficient evidence to support the answer thereto.

Consideration of appellant’s points requires a summary of material testimony. Mrs. Dorothy Murphy, a passenger on the bus, sitting in the front right seat, testified that she watched Mrs. Stalder as she got off of the bus and immediately turned in front of the bus and walked in a westerly direction. She said that she could see the top part of Mrs. Stalder’s head as she walked in front of the bus; that her motion appeared to be “continuous and appeared to be rapid”; that she continued to observe Mrs. Stalder’s head until the driver of the bus came between her and Mrs. Stalder; that about that time she saw a bit of color, a reddish rusty brown that came up on the left hand side of the bus which she later found to be a panel truck. She said that it was only a “split second” from the time she saw the truck until she heard the noise of the truck striking Mrs. Stalder.

The bus driver, J. B. Hughes, sitting in the bus driver’s seat, testified that he saw Mrs. Stalder get off of his bus and turn in front of the bus and start walking to the West; that her action was continuous and that she did not stop or hesitate before she walked from behind the bus into the street. He said that as she reached the left front corner of his bus he observed the truck coming from the rear and at that moment it was a little past the rear end of the bus. He said that Mrs. Stalder never did turn her head to the left as she left the front of the bus and that she continued to take continuous steps in a westerly direction into the path of the truck. He said that from the time Mrs. Stalder cleared the left corner of the bus until the collision was “one second or two seconds at the outside”.

Appellee Wilson, the driver of the truck, testified that he was in the act of passing the bus, traveling from fifteen to eighteen miles per hour; that the first time he saw Mrs. Stalder she was two to five feet from him; that she was running in the street and that he did not have time to swerve his truck or sound the horn before he struck her. He said that after Mrs. Stalder left the front of the bus she looked towards his truck and that he heard her holler: “Oh, no.” He said she did not stop at the corner of the bus to look to see if anything was coming from the South going North.

OPINION

In his first four points, briefed together, appellant contends that the court erred (1) in refusing to set aside the judgment based on the incomplete verdict of the jury which contained insufficient findings to support the judgment; (2) in rendering judgment based upon the jury’s answer to Special Issue No. 26, 26-A, and 26-B, because such basic issue No. 26 submitted an evidentiary fact and not an ultimate fact issue. By his Points 5 through 9 inclusive, briefed together, appellant asserts that there was no evidence or insufficient evidence to support the submission of or the jury’s answer to Special Issue No. 26 only.

Rule 301, Texas Rules of Civil Procedure provides that the judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict. Rule 290, T.R.C.P. defines a verdict as a written declaration by the jury of its decision either on a general charge or special issues submitted. While Rule 290 T.R.C.P. refers to “the whole or all the issues submitted”, it is now well established that the trial court has not only the right, but the duty to receive a partial verdict which will sustain a judgment. In order to support the entry of a judgment based upon a partial verdict the answers made by the jury must be of such a nature that the winning party was entitled to judgment no matter what the jury may have said in response to the unanswered issues. Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368; Colls v. Price’s Creameries, 244 S.W.2d 900, Tex.Civ.App. err. ref. n. r. e.; Cannon Ball Motor Freight Lines v. Grasso, Tex.Civ.App., 59 S.W.2d 337; affirmed, 125 Tex. 154, 81 S.W.2d 482; State Bar of Texas “Personal Injury Litigation in Texas,” Page 880, Section 14.9. While the law requires the court to submit every issue that is essential to a recovery or a defense, a jury finding upon one or more of such submitted issues may compel a judgment, irrespective of any finding that could be made upon the other issues. 41B Tex.Jur. Sec. 575, pp. 786-787; Speer’s Special Issues, Sec. 424; Lamb v. Isley, Tex.Civ.App., 143 S.W.2d 202; Williams v. Patterson, Tex.Civ.App., 170 S.W.2d 269.

Accordingly, we hold that it was not error for the trial judge to receive the incomplete verdict in this case and base a judgment upon the answers given by the jury, providing that such answers compelled the rendition of such judgment. This brings us to a consideration of the crucial question in this case, that is, whether Special Issue No. 26, and its subject issues, was a proper issue and compelled the issuance of a judgment thereon, regardless of the failure of the jury to answer other issues

Before proceeding further, however, we think it appropriate to direct attention to the rule that a trial judge, in rendering judgment upon a special issue verdict, must construe such verdict as a whole in the light of the pleadings and the evidence. Gray v. Cheatham, Tex.Civ.App., 70 S.W.2d 248, writ, ref.; West v. Cashin, Tex.Civ.App., 83 S.W.2d 1001, err. dism.; Texas & New Orleans RR. Co. v. Miller Bros., Tex.Civ.App., 22 S.W.2d 989; Traders & General Insurance Co. v. Wilder, Tex.Civ.App., 186 S.W.2d 1011, err. ref.

When we apply this rule of law, and consider the verdict as a whole, in the light of the pleadings and the evidence, and especially the undisputed evidence and admissions, we are of the opinion that Special Issue No. 26 was, in this particular case, an appropriate ultimate issue. The problem of the proper terminology to be utilized in the submission of special issues in any particular case is not one easy of solution. Our courts have recognized this problem and have established the principle of law that the problem of submitting controlling, as opposed to evidentiary special issues, should rest largely wthin the discretion of the trial court, such discretion not to be disturbed upon appellate review except in cases of probable harm. McDonald Texas Civ. Practice, Vol. 3, Sec. 12.06, pp. 1062-1063; Harvin, Ultimate or Controlling Issues in Texas, 25 Tex. Law Review, 391, 406; Dallas Railway & Terminal Co. v. Straughan, Tex.Civ.App., 254 S.W.2d 882; H. E. Butt Grocery Co. v. Johnson, Tex.Civ.App., 226 S.W.2d 501, err. ref. n. r. e.

Under the peculiar facts and circumstances adduced in evidence in this case, the trial court was clearly faced with the problem of submitting an issue, from a defensive standpoint, of whether Mrs. Stalder was negligent in the manner in which she conducted herself immediately prior to the time she was struck by the truck. Defendant had pleaded that plaintiff’s wife was guilty of a statutory (both state and municipal) violation. The prime question presented was whether she suddenly moved out into the street from behind the bus into the path of the vehicle approaching. We are of the opinion that the evidence with respect to Mrs. Stalder’s movements, illustrated above, clearly gives rise to both statutory and common law issues. Fort Worth & Denver Ry. Co. v. Barlow, Tex.Civ.App., 263 S.W.2d 278, err. ref. n. r. e. While defendant did not plead both statutory and common law negligence on the part of Mrs. Stalder, the submission of a common law defense, as it was done in Special Issue No. 26, was not inappropriate since plaintiff failed to object to the submission thereof on the grounds that it was not supported by pleadings, thereby waiving any objection thereto.

Appellant argues that Special Issue No. 26 was not proper in that it was based primarily upon a statutory or municipal violation (Art. 6701d, Vernon’s Ann.Civ.St., Sec. 77 and Sec. 27 of Art. 85-13 Dallas City Ord.) which prohibits a person from leaving a place of safety and going out into the street in front of the vehicle which is approaching so closely as to constitute a hazard, and since the issue only submits the first part of the violation and not the second part, same is incomplete and evidentiary in nature. It must be remembered that the trial court is required to submit only controverted issues, and no jury finding is necessary to establish undisputed facts. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517. There was no necessity for the trial court to submit Special Issues Nos. 27 and 27-A inquiring as to whether Mrs. Stalder walked or ran into-the path of the defendant’s vehicle at a time when it was so close to constitute an immediate hazard. These facts are undisputed by the evidence, and moreover, appellant admits that it is undisputed that Mrs. Stalder either walked or ran into the path of appellee’s vehicle. To accomplish this the truck would necessarily have to be so close as to constitute an immediate hazard to her, as a matter of law. In this state of the record the only ultimate issue was whether Mrs. Stalder ran or walked from a place of safety “at the time and on the occasion in question”. The very nature of the terminology of the question itself confined the jury in its consideration of this question to the facts and circumstances as they existed at that very time. Moreover, when we view the verdict as a whole the picture becomes much clearer and conclusively demonstrates that the court was correct in submitting Special Issue No. 26. The jury found that appellee’s truck driver was not driving too fast or in failing to blow his horn. It also found that the truck driver had no time to avoid the accident and that he did not fail to keep a proper lookout. It is undisputed that Mrs. Stalder did not look prior to the time she came out from behind the safety of the bus and, in fact, the jury found that she did not keep a proper lookout. The evidence is uncon-troverted that Mrs. Stalder either walked or ran suddenly from behind the bus into the path of the oncoming vehicle. The trial judge defined “negligence” and “proximate cause” in the usual fashion which included the element of foreseeability on the part of Mrs. Stalder. Certainly Mrs. Stalder had constructive knowledge of the danger which would be involved in moving suddenly from her place of safety in front of the bus out into a busy street. Such facts charge her with knowledge of a potential danger that a person of ordinary prudence would have avoided. It is clear to us from the record here demonstrated, that but for Mrs. Stalder’s act of suddenly entering the street from immediately in front of the bus, where she could not see or be seen, the accident would not have occurred. The undisputed evidence, the admission of appellant, and the issue as submitted by the court in Series No. 26, would all justify the rendition of a judgment against appellant. Appellant’s Points 1 through 4 are overruled.

As to appellant’s Points 5 through 9, inclusive, we have carefully reviewed the evidence in its entirety in the light of the rule announced by the Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and find that there is not only some evidence, but ample evidence to support the jury’s verdict in this case. Therefore, appellant’s Points 5 through 9 are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: BELL, Chief Justice.

text:
    William A. BOWLING, Appellant, v. Helen BOWLING, Appellee.
    No. 14179.
    Court of Civil Appeals of Texas. Houston.
    Dec. 5, 1963.
    Rehearing Denied Jan. 9, 1964.

      Sam Bass, Freeport, for appellant.
    J. L. Wilcox, Freeport, Edwin E. Brewer, Angleton, for appellee.
   BELL, Chief Justice.

Appellee was awarded a divorce from appellant by the trial court. The judgment partitioned what the court found to be community property of the parties. A certain lot was held to be the separate property of appellee and was set aside to her. The judgment gave appellee, as her share in the community property, the home together with the household furnishings. Also it gave a personal judgment to appellee against appellant for $1400.00. Appellant was given as his share of the community 20 head of cattle, one pick-up truck, 2 head of horses, and other personal property in his possession.

Appellant makes no complaint of that part of the judgment granting the divorce. He complains of that part of the judgment giving appellee a personal judgment against him for $1400.00. His Point of Error is as follows:

“The Trial Court erred in awarding Plaintiff below, Appellee herein, the sum of $1,400.00 cash thereby placing Appellant in the position of having to sell his cattle to pay said sum for the reason that 16 head of cattle and 1 bull constituted the separate property of Appellant.”

It will be seen from this Point and the argument thereunder that appellant contends that 16 head of cattle and one bull were his separate property and should have been set aside to him as such and that the effect of giving appellee a judgment for $1400.00, which can be satisfied only by his selling the cattle, presumably because appellant has no other property, in effect divested him of title to his separate property. Too, in the argument under the Point of Error, he contends 16 head of cattle were his separate estate and should have been set aside to him as such and the division of the property made by the court is inequitable to him. The burden of appellant’s argument is that he used $1194.00, which he received from the sale of real estate he owned before marriage, to purchase 16 head of cattle and one bull and the cattle and bull became his separate property even though the sale took place after his marriage. So far as the judgment is concerned, the court found all property, except the Quintana lot, to be community property.

There is an agreed statement of facts in the record. It recites that appellant sold his real estate that he owned before marriage, and made a profit of $1194.00. The sale was after marriage. Of course, the $1194.00 received was appellant’s separate property and if it were traced to property purchased, the newly acquired property would have the same status. The agreed statement of facts contains this statement: “That shortly after the marriage * * * the sums received from the sale of the properties at Clute, Texas, were used by * * * William A. Bowling, to purchase sixteen head of cattle and one bull.” There is also this statement in the agreed statement of facts: “That this and the papers on file in said cause constitute the entire testimony submitted before the Court as of the date of the hearing.” On submission it was admitted by the parties that the written inventories filed by the parties, which appear in the transcript, were introduced in evidence. We find no other papers, except for the pleadings, that purport to recite facts with regard to the property. The pleadings, that is, the appellee’s petition and the cross-petition of appellant, make no contention that there was separate property. In fact, each recites there is community property, but the extent thereof is not known and the court is asked to require the opposite party to file an inventory. Appellant filed a sworn inventory. Appellee filed an unsworn one. We consider these inventories were introduced in evidence and are, therefore, considering the facts there shown. In the light of the recital in the agreed statement and the admission of the parties on submission, we consider them to be “the papers on file.”

It is noted that appellant’s inventory sets out numerous items of personal property, as well as an equity of $1,000.00 in the home. Too, it shows the value placed on each item. Nowhere does this inventory show which is claimed to be separate and which community property. The inventory filed by appellee shows there was a joint bank account. It shows a check drawn on the account in December, 1960, about two months after the marriage, for $2250.-00 given in purchase of cattle. This is more than the $1194.00 above mentioned. Too, the check number is given and is 26 numbers higher than the lowest numbered check shown as having been given in payment for property acquired. This indicates other checks drawn on the account during the period from October, the date of their marriage, and December 14. Too, there is a statement in appellee’s inventory showing that during the marriage appellant deposited $4428.11 in the account and appellee deposited $3357.44. Also $1433.19 is shown to have been obtained from the sale of cattle. The times of the various deposits are not shown.

It will be noted that the statement of facts merely states: “ * * * the sums received from the sale of the properties at Clute * * * ” were used to purchase cattle. This does not necessarily mean that the same money was used. From the facts we have above recited, the trial court could have well concluded there had been a co-mingling of the $1194.00 in the joint account so that it could not be traced to the cattle purchased. Too, there had been a sale of some cattle during the marriage, so different cattle were on hand at the time of the divorce. At least some of those originally purchased had been sold and apparently others purchased or some cows had had calves.

We must conclude that the trial court was justified in treating everything except the Quintana lot as community property.

When we consider the whole record, we are unable to say the trial court abused his discretion in dividing the property as he did and compensating appellee with a money judgment to substantially offset the greater amount of community property appellant received. The division need not be equal so long as it is not so disproportionate as to be inequitable. Here it was, under all facts, substantially equal.

No complaint is made that the court rendered a money judgment instead of dividing the property in kind.

We do not mean to imply that even had the cattle been separate property, the court could not have divested appellant of title. The limitation against divesting of title applies to real estate, not personal property.

The judgment of the trial court is affirmed.