author: RENFRO, Justice.

text:
    Felix MOZISEK, Appellant, v. Ciara MOZISEK, Appellee.
    No. 16393.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 22, 1963.
    Rehearing Denied March 22, 1963.
    Paul Huser, Schulenburg, for appellant.
    Armond G. Schwartz, Hallettsville, for appellee.
   RENFRO, Justice.

Appellant Felix Mozisek, defendant in a divorce suit filed by appellee Clara Mozisek, appealed from the judgment only in so far as the property was involved.

Appellant contends the court committed reversible error in failing to order a division of the community and separate property, in granting appellee a money judgment for money advanced out of her separate funds to appellant for improving his separate real estate, and in granting appellee an equitable lien on appellant’s property to secure the payment of the money judgment.

It is the duty of the Court of Civil Appeals to indulge every reasonable presumption in favor of a proper exercise of discretion by the trial court in dividing the properties of the parties. Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409.

A proper construction of the judgment, in the light of the whole record and the court’s recitals in the judgment, shows the court did partition the property.

The community property consisted of a Ford pickup, cows, calves, heifers, sheep, hens, turkeys and a tractor. Appel-lee, during the marriage, had advanced to appellant out of her separate funds more than a thousand dollars which appellant had used for various purposes.

At the time of the divorce appellee was working as a maid for $15.00 per week. In making a division of property the court may take into consideration the relative condition of the parties, their status as to obligations to meet and their ability to earn a living, etc. Harris v. Harris, Tex.Civ.App., 190 S.W.2d 489. Obviously, appellee with no land and no home had no use for the community property heretofore mentioned. Although the court recited that appellant’s property had been enhanced in value by appellee’s contributions from her separate funds, the judgment can be affirmed on the basis of an equitable division. The judgment did not specifically set aside all the listed community property to appellant, but by implication it did so. The court, in its discretion, awarded appellee, in lieu of her interest in said property, a money judgment for $1,468.50.

The provisions of Art. 4638, Vernon’s Tex.Civ.Rev.St., do not require the division of property to be equal. The court can be controlled by what the facts may lead him to believe is just and right. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299.

Under the statute, the court has wide discretion and power to determine questions of fact in respect to the division or partition of the property between the parties to a divorce and such awards will not be disturbed unless there is a clear abuse of discretion. Kollenborn v. Kollenborn, Tex.Civ.App., 273 S.W.2d 660; Milligan v. Milligan, Tex.Civ.App., 282 S.W.2d 127.

In view of all the evidence concerning the community property, the use of appel-lee’s separate funds by appellant, the amount of separate property owned by appellant and thf limited ability of appellee to earn, we see no abuse of discretion on the part of the trial court in the disposition of the property.

The court had authority to fix an equitable lien on appellant’s separate property to secure the payment of the money judgment to appellee. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306; Smith v. Smith, Tex.Civ.App., 187 S.W.2d 116; Berg v. Berg, Tex.Civ.App., 115 S.W.2d 1171; 20 Tex.Jur.2d, p. 542, § 205, p. 581, § 253.

All points of error are overruled.

Judgment affirmed.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Thomas Earl GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 3765.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 14, 1962.

      Thomas Earl Garrett, Brownwood, for appellant.
    Davis Grant, Austin, for appellee.
   GRISSOM, Chief Justice.

The appellant filed a Transcript in this court on August 1, 1962. Texas Rules of Civil Procedure, rule 414 required him to file briefs within thirty days thereafter. Texas R.C.P. 415 provides that when an appellant has failed to file briefs within the prescribed time, the court may dismiss his appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. On September 26, 1962, the appellee filed a motion to dismiss the appeal because appellant had failed to file briefs within the time prescribed. According to a rule of this court, said motion was set for hearing on November 9th, 1962, and appellant was given written notice thereof on October 12th. On November 7th appellant was reminded that a hearing of the State’s motion to dismiss his appeal would be heard on November 9th. Appellant did not appear at that hearing. Appellant has never filed briefs, nor has he offered any excuse for his failure to do so. He has not replied to the motion to dismiss his appeal. Therefore, appellee is entitled to have its motion sustained. Haynes v. J. M. Radford Grocery Company, 118 Tex. 277, 14 S.W.2d 811; Bloss v. Alston, Tex.Civ.App., 284 S.W.2d 416; Western United Realty Company v. Shaw, Tex.Civ.App., 356 S.W.2d 205.

The appeal is dismissed.


author:
BELL, Chief Justice.
      COLEMAN, Justice

text:
    Marie Therese Awapara GOULD, Appellant, v. Jorge AWAPARA, Appellee.
    No. 14059.
    Court of Civil Appeals of Texas. Houston.
    Feb. 28, 1963.

      Kenyon Houchins, Houchins & Tasker, Houston, for appellant.
    Stein, Bennett & Shepley, and John R. Bennett, Houston, for appellee.
   BELL, Chief Justice.

Appellant filed suit in Harris County on February 3, 1961, to recover from appellee money which he owed under a judgment .rendered in the State of California on February 5, 1951. The petition sets out the judgment which granted appellant a divorce and provided that appellee should pay appellant for the support of herself and minor child the sum of $100.00 per month. There was a separation agreement between the parties in which appellee agreed to make such payment. This agreement was made a part of the judgment. Appellant alleged that appellee had made payments of only $60.00 per month, and prayed for $4,800.00 together with attorney’s fees.

By an amended answer appellee pled a general denial and that the claim was barred by the statutes of limitation of California Section 337 and Subdivision 3 of Section 337.5, and the two, three and four year Statutes of Limitation of Texas.

Appellant filed no exception to appellee’s pleading.

On trial to the court without a jury, the court rendered judgment for appellant for $256.50. The court filed findings of fact and conclusions of law. We need only notice those material to the appeal. The court found as follows:

1. The California judgment provided the defendant (appellee) pay plaintiff (appellant) $100.00 per month, beginning February 1, 1951, for the support of herself and minor child.

2. That it is undisputed that appellee paid at least $75.00 per month for 1951, 1952 and for the first 8 months of 1953. That appellee paid at least $100.00 for the last 4 months of 1953.

3. That additional sums were paid by appellee for 1951, 1952 and 1953 and appellant failed to produce evidence that ap-pellee had not paid the $100.00 per month as required by the judgment.

4. That appellee paid the $100.00 per month for each of the years 1954, 1955, 1956 and 1958.

5. That there was a deficiency in 1957 of $58.50, in 1959 of $200.00, 1960 of $19.00, and 1961 up to the filing of suit $11.00.

The total deficiency was found to be $256.50.

Under conclusions of law the court concluded appellant had failed to establish deficiencies except for the sum of $256.50. Further the court concluded that this being a suit upon a foreign judgment, Article 5530, Vernon’s Ann.Texas Civil Statutes, applied, and that the California five year Statute of Limitation, Section 336 of the California Code, as amended to present Section 337.5, therefore applied, and therefore the deficiencies claimed for 1951 through 1953 were barred by limitation.

The first point of appellant is that the court erred in concluding that any part of her claim was barred by limitation or that the California statute of limitation applied to this case. Under this point by way of statement and argument she contends that limitation is a matter of procedure and the law of Texas applies and that under Article 5530, V.A.T.S., the limitation for suits on foreign judgments is ten years, therefore none, of appellant’s claim was barred.

This provision of Article 5530, prescribing ten years in which suit may be brought on a foreign judgment, is only part of the article. The first part of this article provides that an action on a judgment or decree of any other state of the United States, etc., shall be barred if by the laws of such state, etc., such action would there be barred, or the judgment or decree would be incapable of being otherwise enforced there. The effect of this provision is to make the limitation statute of California applicable to this judgment.

Then, under this point, appellant says that Article 5530 was not pled and the California statutes therefore could not be employed because limitation is an affirmative defense.

Had there been no pleading of any limitation, appellant would be correct. However, the statute of limitation applicable is the California statute since Article 5530 makes it so. The California statute was pled, thus giving notice to appellant that appellee was going to rely on limitation. This was a sufficient pleading of limitation. If there was any imperfection it could have been reached by a special exception. The form of pleading the defense, if there was any defect, not having been excepted to, the imperfection was waived. Article 5530 is employed only to show that the California statute, which was pled, is applicable.

Further, under the same point, appellant complains that the court erred in taking judicial notice of the California statute because no motion, as required by Rule 184a, Texas Rules of Civil Procedure, was made asking the court to take judicial notice. That rule does provide in substance that the judge, upon motion, may take judicial notice of the laws of another state. It also provides that sufficient information shall be furnished the judge to enable him to comply with the motion and the adverse party shall be given notice sufficient to enable him to fairly prepare to meet the request.

While no formal motion was made to the judge requesting him to take judicial notice of the California statutes, they were pled and appellant was thus given notice of appellee’s intention to rely on them. The .record shows that trial was on March 14, 1962, and at the conclusion of appellant’s case the matter of the applicability of the California law was argued. Then on the same date, after all evidence was in, the California law was discussed and then the case was recessed until March 19 to give the attorneys further time to prepare argument on the law. Appellant thus had full notice of reliance by appellee on the law of California. Too, she does not complain she did not have adequate time in which to prepare. The court’s judgment shows he noticed the California law and seems to have been satisfied he was sufficiently informed as to its meaning. Under these facts, there was no reversible error in the court’s taking notice of the foreign law. Gard v. Gard, Tex.Civ.App., 244 S.W.2d 884, C.C.A., error dism.

In 1951, when the judgment sued on was entered, the statute applicable was Section 336 of the California Code of Civil Procedure. At the time this case was filed it had become Section 337.5. Until 1953 the statute of limitation was five years. In that year it was amended so the limitation period was thereafter ten years. Apparently the parties and the court treated the five year term as applicable instead of the ten year period, because the five year period was applicable when the judgment was rendered. However, no point of error is assigned that the five year instead of the ten year term was used. Such is not fundamental error apparent on the face of the recorcl.

California law, prior to the amendment, held the five year statute to apply and held it barred all installments provided for in a judgment that were due more than five years before attempted execution. See numerous California cases cited and discussed in 79 A.L.R.2d, pp. 1262-1268.

The result is the court did not commit reversible error in holding any deficiency for 1951, 1952 and 1953 was barred by limitation. There was no error in the court’s finding that for the years of 1954, 1955 and 1956 appellee had paid at least $100.00 each month. The contention of appellant here is that there was no payment to her when the court’s decree provided appellee should pay her for the support of herself and minor child. The undisputed evidence shows appellee paid at least $100.00 per month for these years by paying for sending the child to a private school. We think the evidence shows this was done with the knowledge and approval of appellant, and this amounted to an agreement by her that such payment would be a satisfaction of the judgment for the years 1954 through 1956.

We are of the view, however, that appellant is correct in her contention that the court was in error in allowing certain items for the years 1957 and 1960. Without noticing each item, we think the court correctly gave appellee credit for clothes furnished the child and for doctor’s bills paid for her. However, the hereinafter mentioned items should not have been allowed :

1.Continental Airlines, for plane fare for the child to visit him in Houston .$170.23

2. Eastern Airlines ....21.07

3. Tours and travel_179.08

Total .370.38

The court found that full payment had been made in 1958. This was based on the general testimony of appellee. We do not have any break-down as to items.

The judgment is reformed so as to add to the $256.50 amount of the items enumerated that were erroneously credited to ap-pellee, making a judgment for appellant in the amount of $626.88. Judgment as so reformed is here rendered in favor of appellant, and as so reformed is affirmed.

COLEMAN, Justice

(concurring).

I concur in the opinion of the Court. Appellant’s point of error that the court erred in concluding that any part of her claim was barred by limitation is sufficient to direct the attention of the Court to the fact that the statutes of limitation of the State of California applicable to appellant’s cause of action did not bar appellant’s claim contrary to the ruling of the trial court. Appellant has briefed this point, and therefore, has neither abandoned nor waived it. However the argument made in her brief has not persuaded us that the action of the trial court in applying a limitation period of five years requires reversal. It appears from the briefs, both of appellant and ap-pellee, that neither party was aware of the fact that the California statute under consideration was amended prior to the filing of this case to enlarge the period of limitation from five years to ten years. It is my feeling that where the attention of the appellate court is directed to an erroneous ruling of the trial court by a point in appellant’s brief, the fact that appellant has failed to advance in her argument the particular grounds upon which the point properly could be sustained cannot alter the judgment that this Court is required to enter.

While appellant’s point does not point out why the court erred, it did point out with some degree of certainty the nature of the complaint. It is the policy of the appellate courts to indulge a liberal construction in favor of the sufficiency of a point of error. Johnson-Sampson Construction Co. v. W. & W. Waterproofing Co., Tex.Civ.App., 274 S.W.2d 926, err. ref., n. r. e.; Crawford v. Continental Panhandle Lines, Tex.Civ.App., 278 S.W.2d 566; Houston-American Finance Corp. v. Travis, Tex.Civ.App., 343 S.W.2d 323, err. ref., n. r. e.; Old Line Mutual Life Ins. Co. v. Tilger, Tex.Civ.App., 264 S.W.2d 557; Gillette Motor Transport Co. v. Wichita Falls & Southern R. Co., Tex.Civ.App., 170 S.W.2d 629; Rule 431, T.R.C.P.

In this case, however, I would not reverse the judgment entered by the trial court by reason of the failure to properly apply the law of California. Rule 184a, T.R.C.P., provides:

“The judge upon the motion of either party shall take judicial notice of the common law, public statutes, and court decisions of every other state, territory, or jurisdiction of the United States. Any party requesting, that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with the request, and shall give each adverse party such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. The rulings of the judge on such matters shall be subject to review. Promulgated by order of June 16, 1943, effective December 31, 1943; amended by order of October 10, 1945, effective February 1, 1946.”

As has been pointed out in the opinion of the court, the trial court properly took notice of the Law of California. The rule places on the party requesting that the court take judicial notice of the law of another state the duty to furnish to the court sufficient information to properly comply with the request. It also gives to the opposing party the right to meet the request. This provision should be construed to mean that such party should have the right to contest the propriety of taking judicial notice of the law and also to point out any error in the information presented by the requesting party and to supplement such information to the end that the trial judge is in fact properly informed of the law. The ruling of the trial court on the question of what the law of another state is would be subject to review on appeal by the terms of Rule 184a, supra. Where the opposing party fails to present to the trial judge information indicating that the information presented by the moving party is incorrect or incomplete, he impliedly agrees that the law has been correctly presented and should not be permitted to question that fact on appeal. King v. Bruce, Tex.Civ.App., 197 S.W.2d 830, Rev. on other grounds 145 Tex. 647, 201 S.W.2d 803, 171 A.L.R. 1328; Reynolds v. McMan Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778, rehearing den. 14 S.W.2d 819; Boatner v. Providence-Washington Ins. Co., Tex.Com.App., 241 S.W. 136; Johnson v. Employers Liability Assur. Corp., 131 Tex. 357, 112 S.W.2d 449; Missouri, K. & T. Ry. Co. of Tex. v. Eyer, 96 Tex. 72, 70 S.W. 529; Gulf, C. & S. F. Ry. Co. v. Shelton, 30 Tex.Civ.App. 72, 69 S.W. 653, aff’d 96 Tex. 301, 72 S.W. 165; Ward v. Wingate, Tex.Civ.App., 280 S.W.2d 938; Benritto v. Fransen, Tex.Civ.App., 274 S.W.2d 758.


author: DAVIS, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Homer M. ELLIS, Appellee.
    No. 7393.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 12, 1963.
    Rehearing Denied March 12, 1963.

      Atchley, Russell & Hutchinson, Texar-kana, for appellant.
    Bird Old, Jr., Russell & Perkins, Mt. Pleasant, for appellee.
   DAVIS, Justice.

A Workmen’s Compensation case. Plaintiff-appellee, Homer M. Ellis, sustained an accidental injury on May 7, 1959, while working for the Lone Star Steel Company. Defendant-appellant is Texas Employers’ Insurance Association, the insurer.

The injury actually occurred while the appellee was working as a slitter operator. At the time of the injury, he was in the process of changing the slitter knives on the slitter machine. The knives were about 24 inches in diameter, approximately 3 inches thick, circular in shape, and weighed about 150 pounds. The slitter machine is supposed to slice off the rough edges of the iron, or to cut it. The knife fell and hit the appellee in the lower part of the stomach, and he fell backward, his back hitting a protruding bolt. The total injuries consisted of a hernia and a bulge, or ruptured disc in the spine. The appellee submitted to surgery for the hernia. The appellant admitted the injury, admitted its liability, tendered and demanded in writing that the Board require the appellee to submit to an examination and a report by a physician, and in the event the Board unanimously found that the appellee could safely submit to surgery to the spine, that the Board order him to report for such surgery. The Board ordered the examination, and that the ap-pellee report to Dr. Marvin P. Knight, an orthopedist in Dallas, Texas, for surgery. The appellee refused the surgery, because, in his opinion, it would be more than ordinarily unsafe. The Industrial Accident Board entered its final order based upon the refusal of the appellee to submit to surgery, and allowed him only 52 weeks of Workmen’s Compensation.

The case was tried before a jury. There was no pleading or special issues submitted as to the hernia. In response to the special issues submitted, the jury found that the appellee sustained total and permanent disability as a result of the injury. The jury also found in response to the special issues submitted as to surgery as follows:

“SPECIAL ISSUE NO. 10
“Do you find from a preponderance of the evidence that it would have been more than ordinarily unsafe for plaintiff, Homer M. Ellis, to have submitted to the operation on his back?
“Answer ‘Yes’ or ‘no’.
“Answer: ‘Yes’.
“SPECIAL ISSUE NO. 11.
“Do you find from a preponderance of the evidence that between December 21, 1960 and January 10, 1961 that plaintiff, Homer M. Ellis, was in such physical condition, at that time, that the operation to his back would have been more than ordinarily unsafe? (Emphasis added)
“Answer ‘Yes’ or ‘no’.
“Answer: ‘No’.
“SPECIAL ISSUE NO 12.
“Do you find from a preponderance of the evidence that the plaintiff, Homer M. Ellis, on his refusal to accept surgery, was not diseased or had other physical condition which rendered the operation more than ordinarily unsafe? (Emphasis added)
“Answer: ‘not more than ordinarily unsafe’ or ‘more than ordinarily unsafe’.
“Answer: ‘not more than ordinarily unsafe’.”

There were no special issues submitted as to whether or not (in the event the jury should find that the operation would not be more than ordinarily unsafe) such an operation would cure the appellee, or would relieve his condition, or would materially .benefit him. In the event of such jury findings, it would be necessary for the trial court to submit such issues as to whether or not such an operation would cure the injured employee, or would relieve his condition, or would materially benefit him. Then, the trial court should submit an issue, based upon such jury findings as to the percentage of permanent partial disability that the injured employee would suffer after the operation, based upon the evidence introduced at the trial. Since the jury found in favor of the appellee, it is not necessary for this court to presume that the trial court found in favor of the appellee on such issues. Rule 279, Texas Rules of Civil Procedure. Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298; Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449. No objections or exceptions were submitted to the charge of the court for failure to submit such issues.

Motions were presented for judgment by the appellant and by the appellee. The trial judge overruled the motion of the appellant, and entered a judgment for the appellee for total and permanent disability benefits. The appellant excepted and brings forward five points of error.

By its points 1 and 2, appellant contends the trial court erred in entering judgment for appellee because appellant having admitted liability while the claim was pending before the Industrial Accident Board, tendered surgery and made demand therefor in writing; the Board had ordered such surgery, and such surgery had been refused by the appellee, then judgment should have been entered for 52 weeks compensation, less payments previously made; and, alternatively, to disregard the finding to special issue No. 11, and entered judgment on the remaining jury findings.

According to the evidence, the appellee had previously submitted to surgery for the hernia. He was operated on in Mt. Pleasant, Texas, by Dr. John M. Ellis, the family physician, and a first cousin of the appellee, and Dr. Thomas W. Renfroe. The appellant paid for this operation. The ap-pellee refused the disc surgery based upon personal reasons; the advice that had been given to him by Dr. Ellis and Dr. Renfroe, as well as other evidence that might be deduced from the testimony of Dr. Casey Patterson, a neurosurgeon of Dallas, Texas, Dr. Marvin P. Knight, an orthopedic surgeon of Dallas, Texas, and Dr. Milton Frie-berg, an orthopedic surgeon of Tyler, Texas, and because of the physical condition of his wife.

All the doctors testified as to the type of disc operation. How all the nerves of the body extend through the spinal cord and protrude through the joints of the spine; how a bulge, or a ruptured disc, affects the nerves. In such an operation how you have to split the back and remove the muscles or ligaments of the body away from the vertebra, pry the vertebra open and proceed to remove the disc. There was much discussion as to whether or no a spinal fusion would be necessary. Dr. Knight, the man that was ordered to perform the operation by the Industrial Accident Board, swore that he would have done a spinal fusion of the appellee. Such a spinal fusion is done by the securing of bone from other parts of the body, by chiseling separate pieces of bone about a half-inch wide and 1 ½ inch to 2 inches long and placing that along the vertebra of the spine, with the hope that it would fuse and make the spine rigid (stiff). Only Dr. Knight testified that a spinal fusion of the spine would be necessary. They all testified that the removal of the disc would be necessary. Dr. Knight testified as to the removal of discs as follows:

“Q. Suppose you took them all out, what would happen to the patient ?
“A. He would be in a hell of a mess.”

All the doctors testified that the spinal operation, if successful, would relieve a major portion of the pain. Dr. Patterson actually said that it would not relieve all of it. Dr. Knight further testified that after the appellee had the operation that “I wouldn’t guarantee you you’re going to get home.” Dr. Renfroe testified about the spinal operation and the spinal fusion, and the period it would take the patient to heal, as follows:

“Q. And then what do you do with that piece of bone that is chipped off?
“A. Well, these pieces of bone are laid over the repaired disc site, and through their osteoblastic and osteoplastic activity, which are the bone producing cells, they cement in this area and give the patient a more or less rigid spine.
“Q. In other words, Doctor, I will ask you to tell the jury whether or not that this spinal fusion that you are talking about the bone is removed and placed in the spine of the individual?
“A. Yes, sir.
“Q. And it is placed at the particular point where the disc has been removed isn’t it?
“A. Yes, sir.
“Q. And is that placed there, Doctor, in the nature of what we might say ‘grafted on there’ ?
“A. So to speak, yes, sir.
“Q. Well, state whether or not it has to actually grow to the other bone?
“A. Yes, sir. It will grow to the other bones.
“Q. Well, does it have to, Doctor, before it will become fixed there ?
“A. Yes, sir.
“Q. Now, Doctor, assuming that the patient Homer M. Ellis had had disc surgery with spinal fusion, how long in your opinion would it be before this bone will fuse with the spine completely ? If it is performed successfully, how long will it be before that bone will actually fuse and be tied to the spine, if the operation is successful in every respect how long would it be ordinarily?
“A. Several weeks to several months.
“Q. Does it vary in individual cases?
“A. Yes, sir.
“Q. During all that period of time what does the patient have to do ?
“A. Well, as a professor of mine used to say ‘pack them in peach fuzz and don’t even let a cat tromp through the room.’
“Q. I beg your pardon, the professor said what ?
“A. Pack them in peach fuzz and don’t even let a cat tromp through the room.
“Q. Why? Why would he have made that statement?
“A. Well, they have to be pretty quiet and pretty still, they can’t do any heavy lifting or anything.
* * *»

Dr. John M. Ellis testified as to several experiences he had with the appellee. He testified about the appellee becoming nauseated and vomiting, and about the many experiences that he had had with back operations. He knew the physical condition of the appellee probably more than any other person. He testified that the spinal operation was unwarranted, and that it would not cure or substantially improve his condition. He further testified that the operation was a ‘bum operation’ and that he advised the appellee not to have disc surgery. Dr. Ellis was also the doctor of appellee’s wife. He testified that she had rheumatoid arthritis and had been an invalid or semi-invalid for over a year. Appellee had two children at home, a boy five years of age, and a girl fourteen. At the time of ordering the operation the appellee’s wife was confined to her bed at home.

Dr. Milton Frieberg testified as to the disc surgery, and stated that in his opinion a spinal fusion was not actually necessary. He also testified that he would not guarantee the results of such an operation and would not operate upon the appellee unless he was perfectly willing. As to the result of the operation he testified as follows;

“Q. No, sir; I think you are trying to be fair, and I think you will be fair, and I would like for you to think that over and I think this Jury would want to know the answer to that. And if you want to take a few minutes then you can come back to the witness stand.
“A. I would like to just sit here and think about it. I would say without any detailed review of all the surgical procedure that it’s possible to demand about the only way I could be fair about it is just thinking in terms of two groups, and this 50% had the best results and this 50% had the worst results. I would have to put it in that group of 50% where the results were not as good as the first 50%.
“Q. In other words, you would put the operation for the removal of a : herniated disc and spinal fusion in the worst 50% ?
“A. I would.
“Q. And when you say the worst 50% you mean the 50% that are the most unsafe operations, don’t you?
“A. Unsafe from the standpoint of predicting the end result.
“Q. Yes, sir, that is improvement or results ?
“A. Yes, sir. * * *”

At most, the Doctor would not swear that more than 50% of such operations would be successful.

There is no contention that the issues of surgery are not involved in this lawsuit. The appellee actually plead and proved that liability had been admitted, that the operation had been tendered and demanded in writing while the claim was pending before the Industrial Accident Board. That the Industrial Accident Board had ordered the examination and the operation. The appellee had refused the surgery because he felt that it would be more than ordinarily unsafe. The Supreme Court, in Hardware Mutual Casualty Company v. Courtney et vir, 363 S.W.2d 427 has laid down the law in such cases. The appellee, however, is not bound by the Supreme Court decision. He admits that it is upon him to prove that such an operation would be more than ordinarily unsafe. This he did by a preponderance of the evidence, and the jury so found. This court is bound by the jury findings. There is one case of like import that the Court of Civil Appeals in Fort Worth, Texas Employers’ Insurance Association v. Chancellor, Tex.Civ.App., 292 S.W.2d 360, W.R., N.R.E., reversed and remanded the case because the insurance company had apparently done what the appellant had done in this case. The trial court sustained a motion that Texas Employers’ Insurance Company could not make any proof of the effects of surgery, and instructed it to inform its witnesses not to so testify. The trial judge did not submit to the jury a special issue as to whether or not an operation would not be more than ordinarily unsafe.

There has been one other case, Travelers Insurance Company v. Garcia, Tex.Civ.App., 360 S.W.2d 415, in which the Court of Civil Appeals reversed and rendered a judgment of the trial court. The Supreme Court has granted a writ of error. In that case, the Court of Civil Appeals discussed the question of whether or not Garcia could still consent to the operation. The courts can not, under any theory of reasoning, order or supervise such an operation. American Surety Co. of New York v. Mays, Tex.Civ.App., 157 S.W.2d 444, error refused. The question of the operation has to be decided while the case is pending before the Industrial Accident Board.

The holdings in the following cases are not in point here: Texas Employers Insurance Ass’n v. Kubiak, Tex.Civ.App., 276 S.W.2d 909, W/R., N.R.E.; American General Insurance Company v. Quinn, Tex.Civ.App., 277 S.W.2d 223; Texas Employers’ Insurance Association v. Curry, Tex.Civ.App., 347 S.W.2d 334, er. ref.; Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521; Hardware Mutual Casualty Company v. Courtney et vir, supra. In those cases the insurance company did not admit liability, did not tender an operation, nor make a demand in writing therefor while the claims were pending before the Industrial Accident Board. In this case, the insurer admitted liability, tendered the operation, made a demand therefor in writing, and the employee refused the operation. The Industrial Accident Board based its reward upon such refusal. The employee excepted and filed his petition in the district court on the theory that the operation ordered by the Industrial Accident Board would be more than ordinarily unsafe. This was done in accordance with the provisions of the law. Art. 8306, Sec. 12b and 12e. Art. 8306, § 12b provides, in part, as follows:

“ * * * In all such cases where liability for compensation exists, the-association shall provide competent surgical treatment by radical operation. In-case the injured employé refuses to submit to the operation, the board shall immediately order a medical examination’ of such employé by a physician or physicians of its own selection at a time and place to be by them named, at which examination the employé and the-association, or either of them, shall have the right to have his or their physician present. The physician or physicians so selected shall make to the board a written report, signed and sworn to, setting forth the facts developed at such examination and giving his or their opinion as to the advisability or non-advisability of an operation. If it be shown to the board by such examination and such report thereof and the expert opinions thereon that the employé has any chronic disease or is otherwise in such physicial condition as to render it more than ordinarily unsafe to submit to such operation he shall, if unwilling to submit to the operation, be entitled to compensation for incapacity under the general provisions of this law. If the examination and the written report thereof and the expert opinions thereon then on file before the board do not show to the board the existence of disease or other physical condition rendering the operation’ more than ordinarily unsafe and the-board shall unanimously so find and so-reduce its findings to writing and file the same in the case and furnish the employé and the association with a copy of its findings, then if the employé with, the knowledge of the result of such examination, such report, such opinions; and such findings, thereafter refuses to-submit within a reasonable time, which time shall be fixed in the findings of the-board, to such operation, he shall be ent-titled to compensation for incapacity under the general provisions of this law for a period not exceeding one year.” (Emphasis added).

Art. 8306, Sec. 12e, reads as follows:

“In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the em-ployé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the em-ployé as herein provided, and the association shall provide and pay for all necessary surgical treatment, medicines and hospital services incident to the performance of said operation, provided the same is had. In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employé in the same manner as is provided for in the section of this law relating to hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the injured em-ployé or will materially benefit him, the board shall so state in writing and upon unanimous order of said board in writing, a copy of which shall be delivered to the employé and the association, shall direct the employé at a time and place therein stated to submit himself to an operation for said injury. If the board should find that said operation is not advisable, then the employé shall continue to be compensated for his incapacity under the general provisions of this law. If the board shall unanimously find and so state in writing that said operation is advisable, it shall make its order to that effect, stating the time and place when and where such operation is to be performed, naming the physicians therein who shall perform said operation, and if the em-ployé refuses to submit to such operation, the board may order or direct the association to suspend the whole or any part of his compensation during the time of said period of refusal. The results of such operation, the question as to whether the injured employé shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board in the same way as is provided in the case of hernia in this law.” (Emphasis added.)

In construing the foregoing two sections, it must be determined whether or not the operation was a major operation, and whether or not the appellee is required to take such an operation, regardless. Such is not the intention of the two articles. This surgery, with spinal fusion, is a major operation. Under the evidence in this case, the jury found that the appellee could not safely undergo such an operation. On appeal to the district court, the case was tried de novo. 99 C.J.S. Workmen’s Compensation § 287b, p. 969. The appellee was successful in getting a jury finding that such an operation would not be safe. This the appellee had a perfect right to do. An injured employee is not compelled to submit to surgery. 99 C.J.S. Workmen’s Compensation § 319, p. 1145. The point is overruled.

By its third point appellant says the trial court erred in entering judgment for appellee because the answers to Special Issues ten, eleven and twelve are in irreconcilable conflict. Special issues No. 11 and 12 are surplusage. No. 11 inquires about his physicial condition other than the injury to his back between Dec. 21, 1960, and Jan. 10, 1961. Special Issue No. 12 inquires about disease or other physical condition which rendered the operation ordinarily unsafe. The evidence showed that the appel-lee had previously been a healthy, robust man who had never suffered from any disease of any kind prior to the injury. Any other answer of the jury would have been untrue. The answers are not in conflict with the answer to special issue No. 10. The point is overruled.

Appellant’s points four and five are without any merit and are overruled.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Chesley BROADNAX, Appellee.
    No. 7471.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 19, 1963.
    Frank Finn, Jr., Thompson, Knight, Wright & Simmons, Dallas, William M„ Huffman, Smith, Hall & Huffman, Marshall, for appellant.
    Jones, Brian, Jones & Baldwin, Marshall, for appellee.
   CHADICK, Chief Justice.

This is an appeal in a Workmen’s Compensation Law case. Judgment awarding compensation was entered by the trial court upon jury findings that the workman was injured and suffered total permanent disability. The judgment is affirmed.

The appellant’s first point presents the proposition that the jury’s answer to Special Issues 2, 4A, 4B, 5, 6, and 9 are against the great weight and preponderance of the evidence. Some of appellee’s evidence is weak, even containing apparent contradictions, yet when the proof is considered in its entirety, it does not weigh or preponderate against the jury’s verdict on these issues. The first point is overruled.

The summation to the jury was the setting for the argument, objections and rulings put in question by the appellant’s second point. These occurrences and the record relevant to them are as follows:

(1) Plaintiff’s counsel addressing the jury: “During this trial I waited for the defendant to' raise á defense to Chesley’s claim. I’ve never heard a case before like this one — when there wasn’t any defense. Their own witness says just that he didn’t see the accident happen — not that it didn’t happen.” Insurer’s counsel from a place to the rear of the speaker raised his arm in a gesturing position, and the speaker continued: “That’s right * * * (turning and gesturing toward insurer’s counsel) throw up your hands. It hurts, doesn’t it when you don’t have a defense and there isn’t any defense that has been raised by the defendant. None has been raised because they don’t have any defense.” No objection to the argument was lodged with the court;

(2) Insurer’s counsel when addressing the jury had said: “I don’t believe ‘Big Boy.’ I don’t believe ‘Big Boy’ (Chesley Broadnax) hurt his knee on the hay bailer.” Thereafter in what the trial judge construed to be a reply, the workman’s counsel "said: “What do they do? They jump on Chesley. This lawyer from Dallas (indicating insurer’s counsel) comes in here representing this insurance company and comes very close to calling Chesley a fraud. He comes close, but he doesn’t come right out and call Chesley a fraud. This lawyer from Dallas (pointing to insurer’s counsel) asks you to call Chesley Broadnax a fraud and says that Chesley’s story isn’t true. This lawyer comes in from Dallas (still referring to insurer’s counsel) and asks you to do for him what he won’t quite do himself — say that Chesley is a fraud.” Appellant’s counsel made an undisclosed objection to the argument, and commented: “I did not realize I did not have a right to come to Marshall to try a lawsuit.” The trial judge replied, “You have a perfect right to come to Marshall to try a lawsuit anytime”; and forthwith instructed the jury not to consider the argument quoted for any purpose;

(3)The workman’s counsel to the jury: “The defendant in this cause sent Chesley to Dr. Graves and had Dr. Graves examine him. Now don’t you know that if Dr. Graves would say anything different from Dr. Anderson that they would have had him come in here and testify? They didn’t call Dr. Graves. Don’t you know that if Dr. Graves would say anything at all different from what Dr. Anderson said they would have brought him in?” Objection was first made to this-argument in a mistrial motion filed by insurer after jury verdict. There is evidence in the record that the workman reported to Dr. Graves for medical examination at the request of the insurer.

The insurer complains that the argument set out in instance (1) above constituted personal criticism of its trial counsel of a nature so harmful as to require a reversal of the judgment. Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291 (1944); Bell v. Bell, Tex.Civ.App., 248 S.W.2d 978, (N.R.E. 1952) ; Western Union Tel. Co. v. Wingate, 6 Tex.Civ.App. 394, 25 S.W. 439 (1894); Chicago R. I. & T. Ry. Co. v. Musick, 33 Tex.Civ.App. 177, 76 S.W. 219 (1903); Metropolitan St. Ry. Co. v. Roberts, Tex.Civ.App., 142 S.W. 44 (1911); “Trial Civil Cases”, 41B, Tex.Jur. 253; Rule 269, Vernon’s Ann.Texas Rules of Civil Procedure, are cited in support of the insurer’s contention. Implied or expressed personal criticism of opposing counsel is not jury argument. It is improper conduct and is specifically prohibited by Rule 269 (e). However, with the exception of criticism injecting racial, religious, social, political or like prejudice, the harm of the criticism may be removed by the trial court admonishing the jury to disregard it. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054 (1940); Texas Standard Cotton Oil Co. v. Hanlan, 79 Tex. 678, 15 S.W. 703 (1891); Holder v. Martin, Tex.Civ.App., 131 S.W.2d 165 (1939); Rountree Motor Co. v. Smith Motor Co., Tex.Civ.App., 109 S.W.2d 296 (1939); Texas & New Orleans Railroad Company v. Jacks, Tex.Civ.App., 306 S.W.2d 790, N.R.E. (1957); 3 (McDonald) “Texas Civil Practice” 1207, Sec. 13.12. The absence of objection to the argument when it was made adds to the difficulty this court finds in determining the argument’s effect. The trial judge is in a much better position to assess the consequence of improper argument, because of the posture, tone and attitude of the persons involved and the circumstance and environment in which it occurred. This is not on its face one of the exceptional cases in which objection would emphasize the prejudicial statement, or where no instruction from the trial judge could remove the harm caused by improper remarks. Ramirez v. Acker, supra; Robbins v. Wynne, Tex.Com.App., 44 S.W.2d 946 (1932); and Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954) discuss the nature of argument that is regarded as not curable by admonition from the presiding judge. The criticism employed in this argument would have yielded to an admonitory instruction had an objection been made. Failure to object constituted waiver. Texas & New Orleans Railroad Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264; Wade v. Texas Employers Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197.

The insurer insists that the argument shown in passage (2) is harmful in two respects, even though objection to the argument was sustained by the trial judge and the jury instructed not to consider it. Initially harm is said to flow from the thrice repeated statement that the insurer’s counsel was a “lawyer from Dallas”. The repetition of this phrase is supposed to have conjured up one or all of the genni of prejudice, contempt, hatred and resentment, and at the same time placed before the jury of an immaterial fact outside of the record. It has been held that referring to opposing counsel as a “Dallas lawyer”, where such fact was known to the jury, was not prejudicial error. Hobbs v. Grant, 314 S.W.2d 351, N.R.E., (1958). See also Airline Motor Coaches, Inc., v. Bennett, Tex.Civ.App., 184 S.W.2d 524 (1945), reversed on other grounds, 144 Tex. 36, 187 S.W.2d 982; Zurich General Accident & Liability Ins. Co. v. Moss, Tex.Civ.App., 118 S.W.2d 410 (1938); Ramirez v. Acker, supra. Though the pronouncement informed the jury of something outside of the record, the trial judge promptly instructed the jury not to consider it. The instruction was sufficient under the circumstances to prevent the jury from making any use of this immaterial information. Likewise, at the same incantation any evil genii then at large would scurry away to dissolve into nothingness, according to the Sturgeon and Wade cases, as well as numerous others.

As for the second phase, the insurer’s bill of exception does not disclose the basis of the objection interposed. In its brief the insurer argues that opposing counsel’s assertion that the insurer was asking the jury to say by its answers that “Big Boy” was a fraud, constituted an unfair, inflammatory and prejudicial attack upon the insurer’s prerogative of challenging the credibility of the workman’s testimony. Southwestern Greyhound Lines, Inc., v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951) is cited as presenting an analogous factual situation. The text of the opinion in City of Dallas v. Andrews, 149 Tex. 609, 236 S.W.2d 609 (1951) is referred to for the statement that, “The term ‘fraud’ is a harsh one, and it is not to be used lightly when applied to the motives or conduct of others.”

Insurer’s counsel bluntly advised the jury that he did not think the workman had received an injury; his purpose was to persuade the jury to find that the workman was uninjured. Such argument is calculated to provoke a retort in equally blunt language. The assertion by insurer’s counsel that he did not believe the workman received an injury carried the positive inference that the suit was baseless and an effort to obtain money wrongfully. The workman’s counsel reply is responsive only in a general sense, but not so inapt and inaccur-rate as to be misleading to a jury of laymen, or unfair under the circumstances shown. Any error in the argument was curable. The trial judge’s prompt instruction to the jury not to consider the argument rendered it harmless. Rameriz v. Acker supra.

The (3) passage of the argument is said to be improper and prejudicial because there was no evidence that Dr. Graves was available to testify, was within the jurisdiction of the court, under the control of the insurer, or possessed relevant knowledge of material facts. Somewhat similar factual situation was presented in Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575, and the Supreme Court held that counsel was entitled to call the jury’s attention to the fact that the examining doctor was not called to testify. See also Marek v. Southern Enterprises, Inc., of Texas, 128 Tex. 377, 99 S.W.2d 594; Traders & General Ins. Co. v. Carlisle, Tex.Civ.App., 162 S.W.2d 751; Gulf, Colorado and San Francisco Ry. Co. v. Bouchillon, Tex.Civ.App., 186 S.W.2d 1006. The absence of an objection at the time the argument was made waives any impropriety it contained.

The insurer finally argues that each instance complained of, if not so harmful as to require a reversal, when considered together had the cumulative effect of probably causing the rendition of an improper judgment. This court is not satisfied that the argument, under all the circumstances shown and when the record as a whole is considered, was reasonably calculated to cause, and probably did cause, the jury to render an improper verdict. The appellant’s points are overruled, and the judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    L. G. GREGG, Appellant, v. Willie HOWARD et ux., Appellees.
    No. 13867.
    Court of Civil Appeals of Texas. Houston.
    Feb. 28, 1963.
    Rehearing Denied March 21, 1963.

      Croom & Barnes, Sam G. Croom, Houston, for appellant.
    Herman D. Voorhees, Gordon L. Moise, Houston, for appellees.
   BELL, Chief Justice.

Appellees recovered judgment against appellant for $500.00 together with interest of $92.15. This recovery was based on the action of appellant in allegedly making an undisclosed profit of $500.00 on a transaction with appellees when there allegedly existed between appellant and appellees a confidential relationship. The basis of the alleged confidential relationship was that appellant was the pastor of appellees’ church, the Pilgrim Baptist Church, at the time of the transaction. Trial was to a jury and the court rendered judgment on the verdict and certain fact findings made by the court in its judgment.

Appellees alleged that on March 12, 1958 they, under a contract of purchase, purchased from Roy D. Guyon and wife, a certain home on Firnat Street in Houston for the sum of $4,600.00. $400.00 was paid in cash and the deferred portion of the purchase price was to be paid at the rate of $45.00 per month, including interest at the rate of 6½% per annum, plus $5.36 per month for taxes and insurance. The contract provided that the balance of the purchase price of $4,200.00, if paid within 60 days from March 12, 1958, would be reduced $500.00 so the appellees would have to pay only $3,700.00, which would mean the total purchase price would be $4,100.00. It is then alleged that by April 9, 1958, ap-pellees had paid $2,000.00. Guyon then told appellees he would arrange for financing the balance and appellees allege this would entitle them to the $500.00 reduction. It is then alleged that appellant intervened and stated he could arrange financing on better terms than the sellers. Then it is alleged appellant “at that time was pastor of the Church which plaintiffs attended and they believed and relied upon what defendant told them about such financing.” Then follows the allegation that on April 17, 1958, appellant “induced” appellees to execute a promissory note in the amount of $2,600.00 with interest at the rate of 6½% per annum payable to Port City State Bank in monthly installments of $50.00. This note and the deed of trust securing it were assigned to appellant, May 8, 1958. Appellees allege the note should have been for $2,100.00 because of the $500.00 discount above noticed. Only $2,100.00 was paid the Guyons. Appellees assert $500.00 of the proceeds of this $2,600.00 note executed to the bank were unlawfully retained by appellant and that they are entitled to recover the $500.00 and have the note and deed of trust reformed.

Appellees’ theory, as pled, was that appellant, who stood in a confidential relation to them because he was the pastor of the church they attended, induced them to execute a note for $2,600.00 instead of $2,-100.00 and appellant paid Guyon only $2,100.00 and kept $500.00 of the proceeds of the $2,600.00 for himself, which was a secret profit.

The jury found as follows:

1. Appellant induced appellees to execute the note and deed of trust.

2. Appellees executed said instruments in reliance on appellant’s inducement.

3. Appellees would not have executed them but for their reliance on appellant.

4. At the time of the inducement appellant intended to have the note assigned to himself and to discharge the balance due Roy Guyon and wife by the payment of $2,100.00.

5. This intention was concealed from appellees.

In addition to the facts found by the jury, the court in its judgment made the following findings of fact:

1. The note and deed of trust were assigned by the Port City State Bank to appellant on May 8, 1958, and appellant paid Guyon and wife $2,100.00.

2. The bank never owned the note.

3. A confidential relation existed between appellant and appellees.

4. Appellant as a fiduciary made a profit on the transaction which was not disclosed.

Recovery of a personal judgment for $500.00 plus interest at the rate of 6½% per annum, or $92.15, was allowed.

Appellant asserts 13 Points of Error. We need not notice each because they really present these basic contentions:

1. There is neither pleading nor evidence to support a personal judgment for $500.00 and interest.

2. There is neither pleading nor evidence to support a finding there was a confidential relationship between appellant and appellees.

3. There was error in allowing Roy Guyon to testify he had made arrangements with Pasadena Savings and Loan Association for a loan of $2,100.00 at 6% interest because it was hearsay.

4. There is no evidence to support the answer to Special Issue No. 2 finding appellant induced appellees to execute the note because the undisputed evidence shows they consulted a lawyer of their choice who at their request inserted a provision that if the note was paid by May 12, 1958, there would be a discount of $500.00.

5. The answer to Special Issue No. 2 is against the preponderance and manifest weight of the evidence.

6. The court erred in refusing to grant appellant’s motion for instructed verdict and his motion for judgment notwithstanding the verdict.

From the evidence it appears that appellant and appellees became acquainted in 1954. They attended the same church. Appellant was not then a minister. He had a religious radio program. He used the congregation of this church to furnish the music for the program. Mr. Howard, as a musician, participated with the congregation in the program. In 1955 appellant, having been ordained as a minister, founded the Pilgrim Baptist Church. Sometime after it was founded, just when is not clear, the Howards began attending this church. Later, just when is not clear, Mr. Howard joined this church and was baptized. Mrs. Howard never became a member of the church. Mr. Howard was a member when the transaction here involved occurred. There is no evidence of any real association between the parties other than as minister and church member. Mr. Howard did testify that Mr. Gregg was his spiritual ad-visor but testified to no facts showing any special spiritual advice given by Mr. Gregg. What the evidence amounts to is a mere showing of the relation of minister and church member between Mr. Howard and Mr. Gregg.

We must examine the testimony. It is undisputed that appellees entered into a contract with Mr. Guyon and his wife on March 12, 1958, to purchase the property for $4,600.00. $400.00 was paid at the time and the deferred consideration was to be paid at the rate of $45.00 per month and it was to bear interest at the rate of &/¿% per annum. There was a provision that all or any part of the balance could be prepaid and that if the entire balance were paid within 60 days the balance to be paid would be reduced to $3,700.00. Sometime shortly before the execution of the note and deed of trust of April 17, 1958, the Howards had paid a total of $2,000.00, leaving a balance of $2,600.00 owing. If the balance was paid by May 12 the Howards would have paid only $2,100.00 because of the discount provision noted.

Mr. Howard testified that sometime after he bought the property Mr. Guyon told him he needed his money to use in some business transaction and asked if it would be all right if the Howards borrowed the money and paid him. He was to pay $2,-100.00 because this was within the 60 day period. He did not ask appellant to assist in paying Guyon, but appellant called him and told him he would help finance it and he could get a better deal. Appellant said he would have to borrow the money. Appellant did not tell him he was going to have to sign a note for $2,600.00 at that time. Mr. Howard did not know at that time how much the note was to be for. He had unlimited trust and confidence in appellant. He found out the note was to be for $2,600.00.instead of $2,100.00 at the time he signed it. Appellant told him he had to borrow $2,600.00, that the bank wouldn’t lend him the money unless the note called for the original amount provided in the contract. He knew the note was for $2,600.00 when he signed it. Appellant told him he could give back the $500.00 difference. He told Howard he would either take it off the principal or hand it back to him. No explanation was offered concerning the provision for 6½% interest. Howard believed appellant when he told him he would hand the money back or take it off the principal. Howard took the deed of trust that had been prepared to an attorney of his own choice. The deed of trust described the $2,600.00 note later executed. The deed of trust did not have a provision that if the note was paid by May 12 the principal amount would be reduced to $2,100.00. Mr. Bailey added such provision for him. While Mr. Howard leaves the evidence uncertain as to what instruments were taken to Mr. Bailey, both the note and the deed of trust which were introduced in evidence contain the provision with regard to the $500.00 discount if it was paid by May 12. Mr. Howard testified he understood he would get a discount of $500.00 if he paid it by May 12. He did not pay by May 12 and a substantial amount was still owing at the time of trial. He said he thought if the $500.00 was his he should have it and if it was appellant’s, appellant should have it. The reason he filed suit was to find out what happened and if the money was his he should have it. He took the papers to Mr. Bailey because he thought it was good business to have a third party look over the papers. At the time the provision with respect to the $500.00 discount was put in the papers he intended to pay the balance by May 12.

Mrs. Howard testified she knew the contract with the Guyons provided for the $500.00 deduction if they paid the full purchase price within 60 days. When they later refinanced the contract she knew they got a deed. She asked appellant for it and he told her everything was being taken care of. She signed the note payable to the Port City State Bank in Mr. Bailey’s office. She did not remember signing the deed of trust. Appellant wasn’t present when she signed. Mr. Bailey explained the note was for $2,600.00. They told him what the deal was and he said he would change it. Mr. Bailey told them that he was changing it. They then went to appellant and she told appellant Mr. Bailey had changed it from $2,600.00 to $2,100.00. Appellant said, “I couldn’t understand why that had to be $2,600.00 instead of $2,100.00.” She thought the $500.-00 had been substracted until in October when they discovered differently. She would not have signed it if she had known it was for $2,600.00. She did not read it after it was supposedly changed.

Appellant testified he paid $2,100.00 for the note. He contacted the bank for ap-pellees. Mr. Hicks, the bank’s representative, told him to go ahead and have the papers prepared and executed and he (Hicks) would have the property inspected. He agreed with Mr. Hicks that if the bank couldn’t make the loan he would accept the note and deed of trust. The bank, after inspecting the property, would not make the loan and on May 8, 1958, assigned the note and deed of trust to appellant. He paid Guyon $2,100.00. He did not pay the bank anything and the bank paid him nothing. The bank did not lend him any money on the note. The reason the note was made for $2,600.00 is because the contract was for $2,600.00 and that is what was being purchased. The Howards would have been entitled to the $500.00 discount if they had paid by May 12. They did not pay by that date. They have kept up the installments. He denied he “butted in” and said he was asked by Mr. Howard to purchase the contract. He was ordained as a minister in 1954 and founded the Pilgrim Baptist Church in 1955. He baptized Mr. Howard. Mrs. Howard was not a member of his church. Mr. Howard called him and told him Mr. Guyon wanted his money and asked if appellant would “help to buy Guyon off.” His church is affiliated with the Bible Baptist Fellowship. The church property belonged to him and his wife because they paid for it. Appellant was also in the insurance and real estate business.

Mr. Hicks, President of the bank, testified appellant offered to sell the note to the bank. After appraising the property, he decided not to take it. The bank advanced no money on the note. He did not recall whether appellant asked for a $2,100.00 loan. When they decided not to take the note, since the papers had already been made out they assigned them to appellant.

Mr. Bailey, the attorney, testified that appellees came to his office. The note and deed of trust did not have the provision with regard to the $500.00 discount. They explained to him that the agreement they had was that if they paid the balance by May 12 they would be entitled to a $500.00 discount. Mr. Lusk, Mr. Bailey’s partner, dictated the provision in the note and deed of trust. Mr. Bailey, in appellees’ presence, told Mr. Lusk the provision they desired. They did not tell him of any agreement with appellant that he would give them back $500.00 regardless of what happened.

Mr. Guyon testified, over appellant’s objection that it was hearsay, that he had arranged with Pasadena Savings and Loan Association for $2,100.00 at 6% interest. The deal did not go through because appellant was going to handle it. He was finally paid $2,100.00. At one place, on cross-examination, Mr. Guyon testified Mr. and Mrs. Howard had not yet been approved as borrowers. No credit application for them had been made. He had friendly association with Pasadena Savings and Loan Association and he thought they would approve the loan. He told an officer of the Association about Mr. and Mrs. Howard and about the value of the property and how much would be against the property, and the officer said, “It sounded like a good deal to him and it sounded like it would be accepted.” He then said, “I feel sure it would have gone through.”

We have reached the conclusion that the case must be reversed and remanded for a new trial.

There was error in allowing Mr. Guyon to testify in effect that he had arranged with Pasadena Savings and Loan Association to refinance the contract for $2,100.00 at 6% interest. He stated he talked with an officer of the Association and discussed the matter with him and the officer told him it seemed like a good deal to him and it looked like they would take it. At another place in his testimony he testified the Association agreed to make the loan. This was hearsay testimony as to appellant because it was offered to prove as a fact that arrangements had been made for a loan to appellees for $2,100.00 at 6% interest and appellant was not shown to have been present.

Clearly such testimony was harmful. Appellees’ position was that the note they finally executed should have been for $2,-100.00 with 6% interest and since they could have gotten a loan of this nature they would not have signed the $2,600.00 note with 6½!% interest except for appellant’s conduct. Appellant’s position was that he bought the $2,600.00 note (contract) which bore interest at 6½'% and was refinancing the contract of sale which would allow the $500.00 discount only if $2,100.00 was paid by May 12. The effect of the testimony was to strongly support appellees’ position and refute that of appellant.

Too, there was error in rendering a personal judgment against appellant for $500.00 and interest because there is no evidence that appellant had received any profit except to the extent that the note was for $2,600.00 instead of $2,100.00. However, all of the evidence showed the note had not been paid and also that appellant had not received any money or other thing of value. He would receive no profit unless and until an amount more than $2,-100.00 and 6% interest should be paid.

We think the case was tried on the wrong theory. The theory pled was that there was a confidential relationship between appellant and appellees and that appellant induced appellees to execute a note payable to the bank for $2,600.00 with interest at the rate of 6½% per annum, when appellant had to pay Guyon only $2,100.00 and appellant did not disclose that he was to retain $500.00 of the proceeds of the note. Apparently appellees thought the bank had paid appellant $2,600.00 and he used only $2,100.00 to pay Guyon. The evidence does not support any such theory. The evidence shows appellees knew they had to pay Mr. Guyon only $2,100.00 because payment to him was before May 12 and under the contract of sale if payment was made by May 12 they would be entitled to a $500.00 discount. Too, the evidence reflects that appellees knew the note to the bank, that was subsequently assigned to appellant, was for $2,600.00. Appellees, according to their own testimony, took the note, which was for $2,600.00, and the deed of trust, neither of which provided for the $500.00 discount if it was paid by May 12, to a lawyer of their choice and had him put the discount provision in the note and deed of trust. Too, the evidence from the Howards themselves was that appellant told them the reason for the note being in that amount was that the bank would lend only the amount provided in the original contract, and he then told them he would either credit the $500.00 on the principal or give it back to them. They did testify they did not know the note was assigned to appellant.

The result is that appellees’ cause of action is not to recover an undisclosed profit that their alleged fiduciary allegedly made. There was, under their own testimony, no concealment. Their cause of action is to reform the note and deed of trust because of this affirmative representation made by appellant at the time the note and deed of trust were executed, that caused them to execute the instruments providing for $2,-600.00, that he would either pay them the $500.00 or credit it on the note. If it is found that he made such representations, that appellees relied upon them, and that appellant had no intention at the time of performing them, then there would be fraud that induced the making of the note and deed of trust that would entitle them to reformation. If it can be shown in addition to the above that an amount above $2,100.00 plus 6½% interest has been paid, appellees could recover such amount together with any interest paid more than <5½% on $2,100.00.

In the light of our disposition of the case, it is unnecessary for us to determine whether a confidential relation existed.

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


author: WERLEIN, Justice.

text:
    ALLIED BUILDING CREDITS, INC., Appellant, v. GROGAN BUILDERS SUPPLY CO., Appellee.
    No. 14077.
    Court of Civil Appeals of Texas. Houston.
    Feb. 14, 1963.
    Rehearing Denied March 14, 1963.

      Carl & Lee, Emory T. Carl, Houston, for appellant.
    William H. Scott, Jr., Houston, for ap-pellee.
   WERLEIN, Justice.

This is a suit for an accounting brought by appellee, Grogan Builders Supply Co., sometimes referred to as "Dealer," against appellant, Allied Building Credits, Inc., sometimes referred to as “ABC.” On September 27, 1951, Allied and Grogan entered into a dealer participation plan agreement under which Grogan sold and assigned notes and the security securing the same to Allied on a discount basis under endorsements without recourse. The purchase price paid for such notes is referred to in the contract as net proceeds. A dealer reserve account was established pursuant to provisions of the contract. Grogan sued for an accounting of such reserve account and for the amount allegedly due it therefrom, with interest. The trial court, without a jury, entered judgment in favor of Grogan for $5,293.38, from which judgment Allied appeals.

The decision of the case depends upon the proper construction of the contract entered into by the parties. We quote the following pertinent paragraphs of such contract:

“A SUPPORTING Dealer Reserve as required under the Dealer Participation Plan shall be established through joint contributions by Dealer and by ABC. Dealer will pay to ABC, or ABC is authorized to deduct from the net proceeds due to Dealer, an amount equal to two percent (2%) of the net proceeds and such funds shall be held by ABC in the Dealer Reserve Account. In consideration thereof, ABC will contribute a like amount (2% of net proceeds) and credit same to said Dealer Reserve Account. ABC is authorized to charge against said Dealer Reserve Account the balance due on any note or notes in default for a period of 90 days. Notes charged against said Reserve Account shall be reassigned to Dealer Without recourse together with any collateral security. Recoveries that are made by Dealer on such reassigned notes are to be turned over to ABC for credit to the Reserve Account.
“IT IS THE INTENT of ABC and Dealer to build and maintain the Dealer Reserve Account to an amount at least equal to 10 percent (10%) of the outstanding balance due on the notes purchased hereunder, or $1,000.00, whichever is the greater. ABC shall render an annual accounting on or about November 30th of each year, showing all credits and charges to the Dealer Reserve Account during the preceding 12 months. ABC will pay to Dealer the balance in the Reserve Account in excess of the minimum reserve less the total balances due on notes which are 30 days or more past due.
“DEALER shall have the right to discontinue selling notes hereunder and ABC shall have the right to discontinue purchasing notes hereunder at any time upon the giving of written notice. In the event of discontinuance, refunds to Dealer from the Reserve Account shall be made only to the extent that the amount in said Reserve Account exceeds total outstanding balances due on notes purchased by ABC hereunder.”

By letter dated October 13, 1953, Allied elected to discontinue purchasing notes from Grogan. Thereafter Allied charged certain notes to the dealer reserve account, and in some instances continued to make collections thereon after so charging them, but did not reassign all of such notes to Grogan. The trial court found that the total net amount of the notes, including the Ramirez note which was reduced to judgment, that were charged to the reserve account and which were not reassigned to appellee, amounted to $3,252.00, which is the amount in dispute on this appeal. Appellant, in its answer filed June 1, 1959, admitted that there was a balance in the Reserve Account of $1,280.00, and offered to pay such amount to appellee and to reassign said notes, if furnished with release of federal tax lien filed against Grogan.

The trial court concluded that as a matter of law Allied, by failing to reassign said notes to Grogan, waived its right under the contract to charge the same to the dealer reserve account, and that appellant’s admitted liability of $1,280.00 should be increased by $3,252.00, representing the total amount of the unpaid balances on the notes that were not reassigned.

We agree with appellant that there was no waiver by it of its right to charge said notes to the dealer reserve account under the terms of the contract. Appellant had such right and exercised it. There was no intentional relinquishment by appellant of that right and hence there was no waiver of any kind by it. 13 Tex.Jur.2d 594, Contracts, § 330.

After appellant had charged such notes to the reserve account, it was obligated under the contract to reassign to appellee such notes and any security securing the same. This provision in the contract is a covenant on the part of appellant. The charging of the notes to the reserve account is not conditioned upon the reassignment of such notes and security. The provision in the contract is not a condition which would permit a forfeiture of the right to charge the notes, but is merely a covenant that such notes would be reassigned to Grogan after they had been charged to the reserve account.

The trial court erred in its conclusion that appellant had waived its right to charge the notes in question to the dealer account. The court found, however, that Grogan had made repeated demands on Allied for an accounting of the reserve account after October 13, 1953, but received no accounting or statement of account until on or about June 1, 1959, long after this-suit was instituted, when Allied offered to deliver into the registry of the court the sum of $1,280.00 which it admitted to be due Grogan, and also belatedly offered to transfer and assign the Ramirez judgment and reassign the notes in question, most of' which were then barred by limitation, con ditioned upon the federal tax lien filed against Grogan being released. The court concluded that Allied’s admitted liability in the sum of $1,280.00 should be increased by the sum of $3,252.00. While no finding •was requested and none was made as to the value of the notes in question charged to the reserve account, the court in finding Grogan entitled to recover the sum of $3,-252.00, representing the total unpaid balances of such notes, including the Ramirez note, impliedly found such amount to be the value of the notes and hence concluded that such amount should be added to Allied’s admitted liability in the sum of $1,280.00.

Under Rule 299, Texas Rules of Civil Procedure, where one or more elements of a ground of recovery have been found by the trial court, omitted unrequested elements, where supported by the evidence, will be supplied by presumption in support of the judgment. Bednarz v. State, 1943, 142 Tex. 138, 176 S.W.2d 562; Dahse v. National City Bank of Waco, Tex.Civ.App., 234 S.W.2d 102, writ ref., n. r. e.; Wisdom v. Smith, 1948, 146 Tex. 420, 209 S.W.2d 164; Becker v. Schneider, Tex.Civ.App., 335 S.W.2d 850; Loggins v. Stewart, Tex.Civ.App., 218 S.W.2d 1011, writ ref.

The present suit was brought as a suit for an accounting of the transactions between the parties, and for the amount due Grogan from the dealer reserve account. Under the terms of the contract there could be no payment to Grogan until after the time it filed its suit when the notes were practically liquidated, since the contract provides that, “In the event of discontinuance refunds to dealer from the reserve account shall be made only to the extent that the amount in said reserve account exceeds total outstanding balances due on notes purchased by ABC hereunder.” There is no evidence that Grogan was notified of Allied’s conduct, in charging the notes in question to the reserve account and failing to reassign the same, or that Grogan knew or ought to have known thereof until appellant filed its answer on June 1, 1959, long after this suit for accounting was brought.

By failing to reassign the notes and securities to Grogan after charging them to the reserve account, Allied not only violated the terms of its agreement, but effectively prevented Grogan from taking any necessary action to collect the balances due on such notes. Had the reassignment been made as provided in the agreement, Grogan would have been required under the contract to pay into the reserve account any collections made by it, and such amounts would in the final accounting belong to Gro-gan. The trial court in its findings of fact found the net amounts of the unpaid balances on the notes in question at the time they were charged to the reserve account, and the dates when such charges were made. Such notes, all of which were secured, were prima facie evidence of at least the value found by the court. Appellant has no assignment complaining that the court’s finding of the value placed upon such notes is not supported by some evidence or that such finding is against the great weight and preponderance of the evidence.

It is our view that the trial court did not err in crediting the reserve account with the aggregate amount of the unpaid balances, owing on the notes. Such amount represents prima facie the loss that Grogan will sustain if such notes are not so credited, and the amount it should recover.

We have not found or been cited to any case directly in point. It would seem, however, that the amount to be credited to the reserve account can be determined by analogy to the general rule with respect to the amount of damages recoverable in an action brought for conversion or for breach of contract. The law is well settled that where one converts a note to his own use the measure of damages is prima facie the face value of the note, and it devolves upon the defendant to show that it was in fact of less value. Peerless Fire Ins. Co. v. Barcus, Tex.Civ.App., 227 S.W. 368; Ramsey v. Hurley, 72 Tex. 194, 12 S.W. 56; Morris v. Smith, 51 Tex.Civ.App. 357, 112 S.W. 130; France v. Gibson, Tex.Civ.App., 101 S.W. 536; American Surety Co. of New York v. Hill County, Tex.Com.App., 267 S.W. 265.

It has also been held that the measure of damages for breach of a contract to deliver notes is, in the absence of any further proof of the value of the notes, their face value. 25 C.J.S. Damages § 79, p. 587; Kennedy v. Hudson, 224 Ala. 17, 138 So. 282; Garrson v. American Diesel Engine Corporation, 310 Mass. 618, 39 N.E.2d 566; Caldwell v. Kuykendall, 94 Okl. 84, 221 P. 84; Standard Lumber Co. v. Deer Park Lumber Co., 104 Wash. 84, 175 P. 578; Wasser v. Western Land Securities Co., 97 Minn. 460, 107 N.W. 160.

It is true that the notes in question were delinquent more than 90 days and there is some evidence that Allied used diligence in making collections, but this is not proof that the notes were uncollectible or that they were of less value than the unpaid balances of such notes as found by the court. Ap-pellee, having established prima facie the value of said secured notes at the time they were charged to the reserve account, was not required to proceed further in the absence of any evidence showing they were of less value.

The amount of damages sustained by Grogan from Allied’s failure to reassign the notes and securities was a proper item to be considered by the court in adjusting the account. See 1 Am.Jur.2d, p. 429, Accounts and Accounting, Sec. 55, where it is stated:

“It has been said, furthermore, that where, in a suit in equity for an accounting, a claim for damages is one of the items in controversy, the court not only has jurisdiction of the subject, but is bound to ascertain and allow such damages before it can adjust the account and grant the proper relief.”

There is no showing that the reserve account exceeded the total outstanding balances due on the notes purchased by Allied from Grogan, until October 30, 1958, and, therefore, under the terms of the contract, Grogan was not entitled to any payment from the reserve account until that date-Prior to that date Grogan had become subject to a federal tax lien, so that Allied, which was served with such lien, could not make payment to Grogan with impunity until such tax lien was released. We are of the opinion that the trial court erred in allowing interest as was done, and that the amount of $4,532.00 should bear interest from October 18, 1960, when such lien was-released, to date of judgment, May 21, 1962, at the rate of 6% per annum, such interest amounting to $432.81, which, added to the-sum of $4,532.00 makes a total of $4,964.81, representing the amount of the judgment as-reformed, with interest thereon at the rate of 6% per annum from date thereof until paid.

Judgment of the trial court reformed and,, as reformed, affirmed.


author: POPE, Justice.

text:
    STATE ex rel. SCHROEDER, Appellant v. Walter W. McALLISTER et al., Appellees.
    No. 14093.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.

      Charles J. Lieck, Jr., Maury Maverick, Jr., Arthur M. Gochman, San Antonio, for appellant.
    Harvey L. Hardy, San Antonio, for ap-pellees.
   POPE, Justice.

This is a quo warranto proceeding which seeks the ouster of seven of the eight councilmen of the City of San Antonio. The trial court granted a summary judgment in favor of the seven councilmen. Roland Bremer, the eighth councilman is not here involved, as the cause against him was severed from this quo warranto action.

The dispute arose in August, 1961, when the seven councilmen authorized the City’s sale of a lot to the construction firm of Bremer & Wilhelm. Bremer, the city councilman, was a member of that firm to which the lot was conveyed. In early October, 1961, Elton E. Schroeder protested the sale by letter addressed to all members of the Council, the City Manager, and the City Attorney. Thereafter, on October 18, 1961, the Council ratified the sale and the conveyance was then made.

This appeal concerns the seven members who authorized the sale, and not the councilman who received the property. The legal basis for the claimed ouster of the seven councilmen is found in Section 141 of the City Charter of San Antonio, and Article 373, Vernon’s Ann.Penal Code. The Charter provision is:

“No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or service, except on behalf of the City as an officer or employee. Any willful violation of this section shall constitute malfeasance in office, and any officer or employee guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, expressed or implied, of the person or corporation contracting with the Council shall render the contract involved voidable by the City Manager or the Council.”

Article 373 of the Penal Code provides :

“If any officer of any county, or of any city or town shall become in any manner pecuniarily interested in any contracts made by such county, city or town, through its agents, or otherwise, for the construction or repair of any bridge, road, street, alley or house, or any other work undertaken by such county, city or town, or shall become interested in any bid or proposal for such work or in the purchase or sale of anything made for or on account of such county, city or town, or who shall contract for or receive any money or property, or the representative of either, or any emolument or advantage whatsoever in consideration of such bid, proposal, contract, purchase or sale, he shall be fined not less than fifty nor more than five hundred dollars.”

State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832, shows that ouster laws are penal in character and must be strictly construed as though defining a crime and prescribing punishment. State ex rel. Hickman v. Alcorn, 78 Tex. 387, 14 S.W. 663. It reviews many cases and concludes that a duly elected public official may not be removed from office except for the violation of some rule established by a Legislature or some comparable local authority. If, therefore, the seven councilmen should be removed under the case as alleged and before us, it must be by reason of the provisions found either in Section 141 of the City Charter or Article 373 of the Penal Code.

The appeal has been briefed chiefly to prove that there is a fact issue that the seven councilmen acted willfully. In our opinion, however, there is a matter of construction of the Charter and Penal Code which must be determined before we reach the matter of willfulness. The Charter provision makes it wrongful for an officer or employee to have a financial interest, direct or indirect, in any city contract, or to be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or service. The Penal Code makes it a violation for any officer to become in any manner pecuniarily interested in any contracts of the City. Perhaps, without a strict construction called for by State ex rel. Edwards v. Reyna, supra, and certainly with such a construction, the person to whom the cited Charter and Code provisions extend their thrust is-the one who has benefited financially or pecuniarily. Nothing in either the pleadings or the affidavits forming a part of the summary judgment proceeding shows that any one of the seven councilmen here involved received any financial benefits by voting, whether wisely or not, to convey the lot to the eighth councilman.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    S. E. HARRISON, Appellant, v. Amelia HARRISON, Appellee.
    No. 14062.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.

      LeLaurin, Chamberlin, Guenther & Murry, San Antonio, for appellant.
    Allan A. Black, H. L. Dillashaw, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from a judgment granting Amelia Harrison a divorce from her husband, S. E. Harrison. The couple owned, as community property, a tract of land located on Highway 281 South, in Bexar County, Texas, and more particularly described as “Tract No. 16, in County Block 4163, out of Halliday Acres, a plat of which subdivision is recorded in Vol. 2222, Page 341, of the Deed and Plat Records of Bexar County, Texas.”

The trial court awarded the entire tract, which was all the real estate that the parties owned, to the wife, Amelia Harrison, as her sole and separate property, and the husband, S. E. Harrison, was awarded certain personal property, from which judgment he has prosecuted this appeal.

Appellant contends that the court erred in vesting in appellee, Amelia Harrison, all the right, title and interest in and to the community real estate belonging to the parties, thereby divesting appellant, S. E. Harrison, of his title to the same, in violation of Article 4638, Vernon’s Ann. Civ.Stats., which reads as follows:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”

We overrule this contention. That part of the above Article which provides that neither party may be required to divest himself or herself of the title to real estate does not apply to real estate which is a part of their community estate. McElreath v. McElreath, Tex., 345 S.W.2d 722; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299.

In divorce actions the trial court is vested with wide discretion in disposing of community property, and on appeal its judgment can be corrected only when an abuse of discretion is shown. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W.2d 21, 23.

The exact question presented in this case was certified to the Supreme Court, by the El Paso Court of Civil Appeals, in the very recent case of Reardon v. Reardon, Tex., 359 S.W.2d 329, and answered by that Court, speaking through Mr. Justice Norvell, in the following language:

“The question is squarely before us in this case and we hold that the proviso in Article 4638 — 'nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate’ — has no application to community real estate.”

We do not have a statement of facts m this case, and therefore cannot possibly pass upon whether the division of the community property was so unfair and unjust as to show an abuse of discretion. Clark v. Clark, Tex.Civ.App., 362 S.W.2d 655; Guerra v. Guerra, Tex.Civ.App., 362 S.W.2d 421.

The judgment is affirmed.


author: PHILLIPS, Justice.

text:
    FIRST STATE BANK OF CORPUS CHRISTI, a Corporation, Appellant, v. VON BOECKMANN-JONES COMPANY, a Corporation, Appellee.
    No. 11054.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1963.
    Rehearing Denied March 20, 1963.
    Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellant.
    Cofer & Cofer, Douglass D. Hearne, Austin, for appellee.
   PHILLIPS, Justice.

This is an action based upon fraud brought by the Von Boeckmann-Jones Company of Austin, hereinafter referred to as; the printing company, against the First State Bank of Corpus Christi, hereinafter referred to as the bank. The case was tried before a jury.

We will state the facts briefly as this case has been before us once on a plea of privilege involving the same question of fraud as is presented here. First State Bank of Corpus Christi v. Von Boeckmann-Jones Company, Tex.Civ.App., 359 S.W.2d 171, 1962, no writ history. In this opinion the facts and the evidence relied on by both parties were fully detailed with respect to the development of the case at this time and regarding the elements of fraud relative to the question of venue, this Court held that the three essential elements of actionable fraud were present and proved. The Court listed these elements as: (1) a false representation of a material fact, (2) reliance thereon by a person entitled to rely thereon, (3) resultant injury.

The printing company entered into a contract with a Mr. Welker in November of 1959 whereby they were to print a “1961 Oil and Gas Industries Directory.” The bank was completely aware of the details of this transaction and advanced funds to Welker from time to time. Welker would bring certain signed verified orders for the directory to the bank as he acquired them and would assign them to the bank as collateral for the money advanced.

On August 19, 1960, Mr. Werner Jessen, President of the printing company wrote the bank that it was the understanding of the printing company, after talking with Welker, that the bank was holding signed bona fide orders for the Oil Directory which were sufficient to defray the printing expenses.

The bank did not reply to this letter. On September 6, 1961, Mr. Jessen, Mr. Kent Rider, Vice President and Treasurer of the printing company, Mr. Evans its secretary and Welker met in Rider’s office. Rider placed a telephone call to Mr. W. S. Byrnes, Vice President of the bank in Corpus Christi.

The information conveyed and received during this telephone conversation is the crucial point of this lawsuit.

The printing company alleges that Rider was told by Byrnes that there was in excess of $36,000 in signed, approved, and accepted orders from Welker in the bank of which approximately $15,360.00 were being held by the bank to retire Welker’s obligation; that the balance was being held by the bank for the printing company.

The bank denied this version of the telephone conversation and Byrnes testified that the only representation he made was that Welker had brought an unverified list of accounts to the bank which were in addition to the signed bona fide accounts actually assigned the bank.

The bank contends that the printing com' ■ pany had not relied on it for payment of the debt and could not have so relied after Byrnes had written a letter to Jessen on September 28, 1961, fully detailed in the above mentioned opinion, which letter referred to Jessen’s letter of August 19, stated further that Byrnes had written Welker a letter on September 3, to the effect that “ ‘We (the bank), of course, cannot assure your publisher that the total cost of printing this directory will come out of your account first. We naturally hold assignments on the accounts for a sufficient amount to liquidate the indebtedness to us. It is apparent from the information we have in our files based on the assignments, and the list we were furnished, that you have approximately a total of $34,000.00 in order.’ ”

The letter to Jessen continues, “at this time we have assignments on some $18,-000.00 in orders and our files reflect a list of approximately $15,000.00 in orders which are not being held by the bank under assignment in our collateral files which we understand from Mr. Welker are ear marked for your purposes.”

The letter continues, “As of this date, Mr. Welker advises us that he has orders for advertising and directories amounting to $36,000.00.”

The letter to Welker of September 3,. written by Byrnes and referred to in the above mentioned letter to Jessen was never seen by any of the officials of the printing company. It did state in addition to the part quoted to Jessen, that the only signed verified orders that the bank held were those specifically assigned to it as security for the loans to Welker.

The record shows that the directory was printed, bound and delivered by the printing company to Welker and that from the assigned directory orders held by the bank it obtained sufficient funds to pay in full the indebtedness of Welker to the bank, but that of the $25,884.90 cost of printing the directory, the printing company has been paid only $2,200.00.

The bank did not have any collateral pledged to the payment of the printing company’s account.

The jury found that B. S. Byrnes represented to the officers of the printing company on the occasion of the September 6, telephone conversation that the bank was holding signed, bona fide orders for the directory for the printing company’s benefit; that the printing company relied on such representation; that the printing company would not have otherwise proceeded with the printing of the directory after September 6, 1960; that such representation was a material inducement to the printing company to complete the printing of the directory after September 6, 1960; that the expenses actually incurred by the printing company in printing the directory were $17,941.96; that a reasonably prudent person, in the exercise of ordinary care, acting under the same or similar circumstances as was Jessen, would not have been put upon notice by Byrnes’ letter of September 28, 1960, of the falsity of the representation inquired about in the first issue submitted.

An extensive record was made in this case. All three of the officers of the printing company testified that they were present in Rider’s office when he made the telephone call in question to Byrnes at the bank. In addition to hearing Rider’s conversation they heard Rider’s questions and observed his reactions thereto. During this conversation Rider wrote notes on a memo pad which were introduced in evidence. Among these notes was a statement “Assigned to VBJ.” This was written under the figure 15,360. The officers testified that the impression they received from Byrnes was that there was $15,360 in either assigned orders or orders to be assigned and being held for the printing company by the bank as collateral. That Mr. Byrnes never made any distinction between the quality of the orders that he was holding for the bank and the orders he was holding for the printing company. That these orders were held in the bank’s collateral file along with the orders securing Welker’s debt to the bank. That there were sufficient orders over and above those securing Welker’s debt to the bank to pay the printing bill. That the printing company would not have proceeded further with the contract after September 6, but for such representation.

There was ample evidence to support the jury’s findings. The allegations of the printing company and the findings made by the jury support the elements necessary for fraud set out in our former opinion.

The judgment of the trial court is affirmed.

Affirmed.'