author: WILLIAMS, Justice.

text:
    ARROW CHEMICAL CORPORATION, Appellant, v. William E. ANDERSON et al., Appellees (two cases).
    Nos. 16494, 16526.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      Tobolowsky, Hartt, Schlinger & Blalock, Dallas, for appellant.
    Goldberg & Alexander, and Palmer & Palmer, Dallas, for appellees.
   WILLIAMS, Justice.

These two appeals, closely interrelated, are from two separate , judgments, both granting and denying temporary injunctions and flowing from an original cause of action. Arrow Chemical Corporation (hereinafter referred to as “Arrow”) instituted this suit originally in the district court against William E. Anderson (hereinafter referred to as “Anderson”), Maurice A. Tharp, Jr. (hereinafter referred to as “Tharp”) and Anko Products Company of Texas, Inc. (hereinafter referred to as “Anko”). Basically Arrow’s suit was for a temporary injunction to enforce a noncompetitive agreement and to protect what Arrow alleged was a trade secret. Arrow asserted that on September 19, 1962 it entered into a written agreement with Anderson whereby Anderson was employed by Arrow as a salesman for its products; that Anderson agreed that he would not compete with Arrow for a period of one year after he ended his employment; and further agreed that, a certain formula for a product known as CS-141, being a concrete stripper manufactured by Arrow, was a trade secret. Arrow alleged that on March 18, 1964 Anderson terminated his employment with Arrow and at that time entered into another written agreement wherein he reaffirmed the September 19, 1962 contract concerning the restrictive covenant and also the validity of the trade secret. Arrow claimed that following the termination of his employment with Arrow, Anderson entered into a conspiracy with Tharp whereby the corporation known as Anko was formed and that Anderson became an employee of Anko. It was further said that Anderson violated the terms of the restrictive covenant by competing with Arrow and further violated the agreement by divulging the trade secret to Anko and Tharp which resulted in Anko manufacturing and selling the same product in competition with Arrow. Arrow asked that Anderson be restrained from violating the non-competitive agreement and further requested that a temporary injunction be issued against Anko and Tharp restraining them from using formula CS-141 and also from employing Anderson to sell or solicit the sale of the products manufactured by Arrow, including CS-141, for the period of the contract between Anderson and Arrow. Defendants, in their answer to Arrow’s petition, presented numerous defenses, including the illegality of the noncompetitive agreement because of vagueness and failure to limit the area covered; a denial that a trade secret existed; and further, that Arrow did not come into a court of equity with clean hands. Trial was had before the court, without a jury, which resulted in the rendition of a judgment, enjoining Anderson from personally using the formula known as CS-141 and further enjoining Anderson, during the restrictive period, from calling on, soliciting or selling to anyone who was a customer of Arrow at the time he left the company’s employment, such customers being identified in an attached exhibit to the judgment. The court’s judgment denied all of Arrow’s relief for injunction against Anko and Tharp. All parties gave notice of appeal.

OPINION IN CAUSE NO. 16,494

In this appeal appellant Arrow -presents four points of error in which it complains that the court erred (1) in finding that the formula for CS-141 was not a trade secret; (2) in refusing protection for appellant’s secret formula; (3) in refusing to find a conspiracy between Anderson, Tharp and Anko to appropriate Arrow’s trade secret; and (4) in refusing to impute certain knowledge to Tharp which he had received from his attorney Goldberg in forming the new corporation, Anko. Appellees urge upon us their motion to strike appellant’s points for the reason, inter alia, that same fail to present the proper question in an appeal from a temporary injunction, namely, whether the trial court abused its discretion in granting or refusing to grant the injunctive relief. It is true, as contended by appellees, that the Supreme Court of Texas has clearly enunciated the rule that on appeal from interlocutory orders and injunction matters the narrow question is whether the trial court abused its discretion in entering the order appealed from and further, that such order should not be overturned unless the record discloses the clear abuse of such discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235; Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; and Janus Films, Inc. v. City of Ft. Worth, 163 Tex. 616, 358 S.W.2d 589. However, in considering this motion to strike we are mindful of the injunction of Rule 422, Texas Rules of Civil Procedure, which directs us to give liberal construction to briefing rules. We have previously held that where appellant’s points on appeal, as presented, were subject to criticism concerning form we would, nevertheless, consider same where the substance of the objection clearly appears in the brief, either under argument or statement. DialTemp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82. The liberality of construing briefing rules is especially applicable to appeals from interlocutory injunction orders as evidenced by the provisions of .Rule 385, T.R.C.P. In fact, briefs in such appeals are not a necessary prerequisite. Austin v. Consolidated Casting Co., Tex.Civ.App., 246 S.W.2d 273; Dunn v. Patton, Tex.Civ.App., 360 S.W.2d 837. Following the statement and argument under each of its points, appellant does, under the heading of “Discussion”, pursue the proposition that the trial court in this case did abuse its discretion in failing to maintain the status quo and also in failing to apply the undisputed facts to the law applicable thereto. For these reasons we overrule appellees’ motion to strike appellant’s points.

By its first two points appellant Arrow, in essence, complains that the trial court should have granted injunctive relief to protect its trade secret relating to the concrete stripper known as CS-141. The judgment rendered in this appeal did grant Arrow injunctive relief as against Anderson, individually, specifically finding that “the defendant Anderson is bound contractually with Arrow Chemical Corporation to the effect that CS-141 is determined to be a trade secret as between said Anderson and the Arrow Chemical Corporation.” Arrow makes no complaint against this part of the judgment so the real question presented is whether the implied denial of the trial court to find the existence of the trade secret as between Arrow and Anko and Tharp amounted to an abuse of discretion. An answer to the problem requires a consideration of the evidence relating to the question of trade secret.

From the standpoint of appellant, Leonard Meritz, Vice-President of Arrow, testified that the concrete stripper know as CS-141, being a primary product of Arrow, is a closely guarded secret, never publicized nor revealed and that the company has written contracts between itself and Anderson, Schwiff and others admitting the secrecy of such formula.

However, the evidence is undisputed that the formula for CS-141 concrete stripper was developed by one Robert DeRosier, an experienced chemist and chemical engineer, and being part owner of Research Products-Company. Long prior to his employment with Arrow, Anderson, who was at that time a salesman for Paper Supply Company, asked DeRosier to give him a formula, for a concrete stripper and DeRosier complied with such request. Anderson gave the formula to Paper Supply Company, who processed and used it. DeRosier! had also-given the same formula to Crane Chemical Company of Dallas, Scientific Supply Company of Denver, Colorado, Hunter Industrial Chemicals, Houston, Texas, and Research Products, his employer. DeRosier-testified that the formula was simple and could be analyzed by any chemist within-an hour’s time. He testified further that he knew of some fifteen to twenty! different companies manufacturing the same product or one similar to it. He said that the formula which he gave Anderson was generally known in the chemical trade among people who do their own compounding. Anderson testified that when he left Paper Supply Company and went to work for Arrow that he consented to let Arrow use the formula. The witness Brand, a principal stockholder in Paper Supply Company, testified that Paper Supply Company was still using the formula and expressed the-belie'f that the secret relating to CS-141 was not in the product itself but is in the-selling of the product.

Our Supreme Court, in Wissman v. Boucher (1951), 150 Tex. 326, 240 S.W.2d. 278, at 280, said:

“The subject matter of a trade secret must be secret. Matters of general knowledge in an industry cannot be appropriated by one as his secret. Restatement, Torts, Ch. 36, p. 7.”

The above summary of the evidence relating to trade secret clearly reveals ample evidence to support the trial court’s, implied finding as to the absence of a genuine trade secret as between! Arrow and Tharp and Anko. We must find in support of the trial court’s judgment if' Ríete is evidence of probative value in the record to sustain the findings. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643; North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795, 11 A.L.R.2d 1065; Wilson v. Teague Ind. School Dist., Tex.Civ.App., 251 S.W.2d 263.

There being evidence to support the ■court’s judgment, can we say that the ■ court abused its discretion in applying the facts to the law and denying to Arrow injunctive relief as against Tharp and Anko? Obviously, we cannot do so. There is no ■abuse of discretion presented here. The evidence is conflicting as to the question of trade secret. We are not to substitute our judgment for that of the trial court in •a case of this kind. While it is true that .Anderson entered into a written contract, which was later reaffirmed in writing, and in which he stated that the formula was to be considered a “trade secret” as between him and Arrow, this fact does not in any ■way bind Anko and Tharp, they not being ■privy to this contract. There is evidence that Tharp did not know anything con■cerning the provisions of these contracts -until after Anderson was employed by Tharp and Anko.

Appellant relies upon Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763, and K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782. A careful review of these cases reveals that both involve patented products and also involve findings that trade secrets existed subject to being protected by injunctive relief. While the law announced in those cases is clearly well settled, it has no application to the facts presented to us on this appeal. Here the trial judge found, based upon ample evidence of probative value, that there was no trade secret, especially as to Tharp and Anko. There being no abuse of discretion in so finding and denying injunctive relief, we overrule appellant’s first two points of error.

Appellant’s Points 3 and 4 complain of the court’s action in refusing to find a conspiracy between Anderson, Tharp and Anko to appropriate Arrow’s trade secret and in refusing to hold that Tharp was charged with knowledge of his agent Anderson and his attorney Goldberg in forming the new corporation, Anko. The statement of facts in this case is lengthy and contains testimony of numerous witnesses relating to the allegation of conspiracy. It would serve no useful purpose to summarize here the testimony of the various witnesses. The trial court found, impliedly, that there was no conspiracy. The evidence on the question of conspiracy was conflicting and the trial court’s action in resolving this conflict in favor of appellees Tharp and Anko does not amount to abuse of discretion. We have carefully examined appellant’s Points 3 and 4 and finding the same without merit, overrule the same.

Appellees Tharp and Anko present three cross-points of error contending that the trial court erred in granting injunctive relief against Anderson for the reason that (1) Arrow’s pleadings are not properly verified; (2) the court should have allowed evidence on the defense of unclean hands; and (3) the court erred in failing to apply the doctrine of unclean hands as to Arrow. We have carefully examined these cross-points and find no merit to any of them.

The affidavit attached to Arrow’s petition states that affiant “has read the foregoing petition, and each and every page thereof, and that the statements contained therein are true.” We believe that this substantially complies with the provisions of Rule 682, T.R.C.P. which requires that a petition in an injunction suit must be verified.

As to the cross-points dealing with the question of “unclean hands” appellees Tharp and Anko complain of the refusal of the trial court to permit them to develop certain testimony given by Anderson. On direct examination by appellant, Anderson testified that he had a restrictive covenant not to compete with Paper Supply Company at the time he entered into the agreement to be a salesman for Arrow. It was also developed that a specific trust was set up to protect Anderson and Arrow in the event Paper Supply Company, Anderson’s former employer, should sue Anderson for violation of their non-competitive agreement. The trial court ruled that the question of fact as to unclean hands was to be limited to dealings between the same parties and refused appellees’ tender of certain other testimony dealing with the transaction between Anderson and Paper Supply Company. We think the action of the trial court in limiting the issue of unclean hands to transactions between the parties, and not permitting same to extend to third parties, was proper. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401; 19 Am.Jur. 327, § 473. Any possible error committed by the trial court in refusing appellees’ right to further develop testimony relating to transactions between Anderson and Paper Supply Company would be harmless under this record. Rule 434, T.R.C.P.

Appellee Anderson, in a separate brief, submits the same counterpoints as are contained in the brief for appellees Tharp and Anko. He does not present a cross-point complaining of the action of the trial court in issuing a temporary injunction against him. However, in his argument and authorities under his first and second counterpoints he does state that the trial court erred in enjoining him from soliciting or selling to anyone who was a customer of Arrow because he contends such order is too broad and unenforceable since it does not contain a geographical limitation or properly describe the accounts which he must not contact. Applying the same rule of liberality of briefing as we have heretofore done in this opinion, we consider this as a cross-point of appellee Anderson and overrule same. The Supreme Court of Texas in Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, said:

“Since the decisions in Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798, and Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668 (wr. ref.), it! can no' longer be said that a covenant not to' compete is void and unenforceable simply because it is not reasonably limited as to either time or area.! These cases hold that although the territory or period stipulated by the parties may be unreasonable, a court of equity will nevertheless enforce the contract by granting an injunction restraining the defendant from competing for a time and within an area that are reasonable under the circumstances.”

The judgment rendering the temporary injunction against Anderson in this case is made reasonable by the trial court by attaching to the decree a list of names and addresses of those accounts of Arrow that Anderson is prohibited from contacting. Any question concerning the vagueness and uncertainty of the court’s order is completely eliminated by the attached exhibit which forms a part of the judgment itself.

Finding no merit to any of the points or cross-points presented, the judgment of the trial court is affirmed.

OPINION IN CAUSE NO. 16,526

Following the order of the trial court which was the subject of the appeal in Cause No. 16,494, and on August 7, 1964, appellant Arrow filed an amended ¡pleading in the original suit in which it made additional defendants, Jinks and Caplan, seeking to restrain and enjoin said additional defendants from engaging in competitive activities with Arrow. Appellant Arrow also alleged that at the time of the incorporation of Anko Tharp had borrowed the sum of $6,000 from Anderson and had given to Anderson a certain promissory note in the sum of $6,000, all of which Arrow contended was a part and parcel of the conspiracy between Anderson, Tharp and Anko to deprive Arrow of its trade secret. Arrow alleged that Anderson was insolvent .and if it obtained a judgment for damages against Anderson the same could not be ■collected. Arrow therefore prayed for the issuance of a temporary restraining order and temporary injunction against Anderson asking that he be enjoined from transferring to a holder in due course the promissory note in question and also enjoining Tharp from paying off the obligation of the promissory note pending outcome of the litigation. In the answer to this complaint it was alleged that Anderson had previously transferred the promissory note on July 20, 1964 to the Wynnewood State Bank and that on August 3 and August 7, 1964 Tharp had paid off the note to Wynnewood State Bank.

Anderson, Tharp and Anko directed special exceptions to that portion of Arrow’s pleadings seeking an injunction restraining the transfer of the promissory note for the reasons: (1) that the court had no power to grant an injunction restraining the transfer of a note pursuant to the allegations contained in Arrow’s pleadings; (2) that it was apparent from the face of the pleadings that Arrow was a stranger to the debt owed by Tharp to Anderson and therefore no facts existed justifying the issuance of an injunction in restraining the payment of said debt; and (3) it is apparent from the face of the pleadings that Arrow has an adequate remedy at law by garnishment or attachment if the facts alleged were correct. The trial court issued the restraining order and temporary injunction against the new defendants Jinks and Caplan. No appeal is taken from that portion of the order. The trial court sustained the special exceptions ■of Anderson, Tharp and Anko and dismissed the petition for injunction relating to the promissory note. From this portion of the judgment Arrow appeals, contending, in seven points of error, that the trial court erred in sustaining the special exceptions and denying the temporary injunction as to the transfer and payment of the promissory note. As we have heretofore discussed, in our disposition of Appeal No. 16,494, the real question, and the only question, for our appellate review from an order denying the issuance of a temporary injunction, is whether the trial court abused its discretion in refusing to issue the temporary injunction requested by Arrow. It is undisputed that Arrow was not a party to the loan transaction between Tharp and Anderson. Arrow was a complete stranger to this transaction. Arrow’s argument in support of this contention that it was entitled to a temporary injunction is predicated upon the presumption that there was a conspiracy from which some damage may flow, which presumption is contrary to the court’s findings which we have upheld. Therefore, Arrow’s claim is based upon an allegation for unliquidated damages which is certainly speculative in character. Arrow’s only claim is that it is entitled to restrain the passing of a negotiable instrument on the theory that it might possibly recover a judgment on an unliquidated claim and that the defendant may be liable for damages for which Arrow may not recover at some future date because of insolvency of Anderson.

Arrow, in its brief, candidly states that it has found no cases holding in support of its contention now presented before this court. Neither have we found such a case. Arrow cites authorities dealing with the injunction as between parties to negotiable paper but obviously these are not applicable here since it was a total stranger to the note sought to be enjoined from payment.

We believe that the opinion of this court in Pappas v. D’Clonis, Tex.Civ.App., 254 S.W. 588, err. dism., has some application to the situation here presented. In that case one partner sold his interest to the other and received notes and a chattel mortgage. Under the contract, the selling partner made such guarantees as to the payment of specific debts which the buyer claimed he had breached. The buyer brought suit, seeking an injunction to restrain the seller and his wife, to whom he had assigned the notes, from passing them during the pend-ency of the suit, requiring them to tender the notes into court. In reversing the trial court’s action in granting the injunction, we said:

“An examination of the petition renders it clear that the temporary injunction was improperly granted. The substance of the petition is that a transaction free from misrepresentation or any other vice was concluded between the parties, and that in connection therewith and incident thereto the notes were executed and delivered as valid and binding obligations against appel-lee, and that no defense in connection with the transaction itself in which they were executed exists against them. Transactions wholly disassociated with that in connection with which the notes were given were alleged for the purpose of disclosing that out of such other transactions liability for certain unliquidated damages exists in behalf of appellee against appellant.”

The transaction between Anderson and Tharp is free from misrepresentation and the note was executed and delivered as a valid and binding obligation between Anderson and Tharp. Moreover, as stated in the Pappas v. D’Clonis case, supra, an injunction will not issue to enjoin the transfer of negotiable notes, where there is an adequate and complete remedy at law. We fail to find any abuse of discretion on the part of the trial judge in dismissing Arrow’s application for temporary injunction under these facts. Arrow’s first six points on appeal are overruled.

By its seventh point Arrow contends that the trial court erred in failing to apply the undisputed facts to the law of this case. In this point Arrow says that the court abused its discretion in sustaining the exceptions and dismissing the suit. We do not agree with Arrow in this connection. It has been often said that a large measure of discretion is lodged in the trial court passing on exceptions to the pleadings and in the absence of a showing of an abuse of discretion or injury resulting from the ruling of the trial court, the ruling will not be disturbed. Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707; Tucker v. Northcutt, Tex.Civ.App., 248 S.W.2d 750; Yeatman v. Nelms, Tex.Civ. App., 345 S.W.2d 351. We believe that the special exceptions of Anderson, Tharp and Anko pointed out with particularity the defects of Arrow’s pleadings and the trial court was justified in sustaining same thereby dismissing the application. Ryan v. Holcombe, Tex.Civ.App., 170 S.W.2d 838; Hunt v. Dixie Motor Coach Corp., Tex.Civ.App., 187 S.W.2d 250.

Finding no merit in any of Arrow’s points on appeal the judgment of the trial court is, affirmed.

Affirmed.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    PAN-AM FOODS, INC., Appellant, v. Salvador E. PEREZ, Appellee.
    No. 20.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 31, 1964.
    Rehearing Denied Jan. 27, 1965.

      Bascom Cox, of Cox & Wilson, Brownsville, for appellant.
    Hector Yznaga, of Cunningham, Yznaga & Duncan, Brownsville, for appellee.
   NYE, Justice.

This is a breach of contract suit. Salvador E. Perez brought suit against Pan-Am Foods, Inc., for damages on account of an alleged breach of contract for the purchase and sale of okra. Perez entered into a contract with Pan-Am whereby Pan-Am agreed to pay Perez six cents per pound for all okra raised on his land and delivered to Pan-Am’s plant in Brownsville between June 1, 1962, and August 1, 1962, which met certain specifications. The contract provided for deductions for off-grade okra and provided that Pan-Am could reject any load with a high percentage of off-grade okra. Perez contended in the trial court'that Pan-Am had breached the contract by refusing to purchase any more okra - from Perez after June 27, 1962, whereas, Perez had an abundance of okra from the land in question meeting the contract specifications. Pan-Am contended that it only refused to accept okra from Perez that contained a high percentage of off-grade okra. The case was tried before a jury and based upon the verdict of the jury the trial court rendered judgment in favor of Perez for the sum of $4,128.00. Pan-Am perfected its appeal to this Court.

Pan-Am assigns twenty-seven points of error, many of which complain of the three special issues submitted. We, therefore, deem it advisable to quote the issues submitted to the jury, which are as follows:

“SPECIAL ISSUE NO. 1”
“Do you find from a preponderance of the evidence that Pani-Am Foods, Inc., refused to accept delivery of any okra after Junt 27, 1962, which was being produced on the land in question?
“Answer ‘yes’ or ‘no’
“We, the Jury, answer: Yes
“If you have answered Special; Issue No. 1 ‘yes’ and only in that event, answer Special Issue No. 2.”
“SPECIAL ISSUE NO. 2”¡
“How many pounds, if any, of okra produced on the land in question do you find from a preponderance of the evidence would have met contract sped- ■ fications if delivered to Pan-Am Foods, Inc., during the period from June 28, 1962, to August 1, 1962, if Pan-Am Foods, Inc., had not refused to accept delivery, if you have found it did so refuse ?
“Answer by number of pounds, if any, or ‘none’.
“We, the Jury, answer: 170,000
“If you have answered ' Special Issue No. 1 ‘yes’, and only in that event, answer Special Issue No. 3.”
“SPECIAL ISSUE NO. 3”
“What expense, expressed in dollars and cents, do you find from a preponderance of the evidence would have been incurred by Salvador E. Perez in producing and delivering okra from the land in question between June 27, 1962, and August 1, 1962, if Pan-Am Foods, Inc., had continued to accept okra until August 1, 1962, if they did not so accept his okra?
“Answer in dollars and cents.
“We, the Jury answer: $6,072.00”
“In connection with your answer to the above question, you will consider the cost, if any, of picking and preparing for market, the cost, if any, of delivery, and the cost, if any, for watering, spraying and fertilizer of the okra being produced on the land in question.”

Pan-Am’s first three points complain that the trial court erred in submitting special issue number 1 because the issue was prejudicial to Pan-Am; it amounted to a comment on the weight of the evidence; and it did not limit the jury’s consideration to okra meeting contract specifications. Pan-Am argues that it was undisputed that after June 27, 1962, Pan-Am had refused to accept any load with high percentage of off-grade okra which they had the right to do under the contract. It was also undisputed that on July 7, 1962, the okra operations at the plant were completely suspended. Appellant contends that the only inquiry material to the case was whether or not Pan-Am refused to accept any of appellee’s okra which met contract specifications after June 27, 1962. Appellant argues that the submission of special issue number 1 infers that Pan-Am did not have the right to refuse to accept any of appel-lee’s okra.

The inquiry in special issue number 1 as to whether or not appellant refused to accept delivery of any okra after the date of the alleged breach of the contract,, if answered in the negative, would have acquitted the defendant-appellant from any liability, because special issues 2 and 3 were conditionally submitted. The trial court, in its charge, defined the type of okra that would meet the specifications under the contract which Pan-Am would be required to-accept from appellee. Even though issue number 1, by the use of the word “any”' would not necessarily limit consideration to only okra that did meet contract specifications, the following special issue number 2, conditionally submitted, required the jury in its answer to there consider only such okra that met the specifications of the-contract. This issue number 2 required the-jury to find only the number of pounds-of okra, “if any”, that would have “met contract specifications” if delivered to appellant, which appellant refused to accept “if you found it did so refuse” after the date of the alleged breach of contract. Special issue number 2, being one of the ultimate issues, determines the necessary facts that give rise to the bases for the judgment. The trial court avoided assuming any controverted fact by a proper submission of special issue number 2, by using the language “if any” and “if you-found it did so refuse,” thereby eliminating any comment on the weight of the evidence. We find no reversible error.

There was ample evidence presented that would entitle the appellee to a submission-of an issue inquiring whether or not appellant refused to accept the appellee’s okra. It was appellee’s theory of the case that Pan-Am arbitrarily refused to accept any more okra from appellee after June 27, 1962. Appellee’s son testified that when he arrived at the appellant’s plant on June-27, 1962, appellant’s employee told the witness not to bring any more okra without even looking at the load. Appellee testified' that he also talked with Pan-Am’s employee and was advised not to bring any more okra. Mr. Perez (appellee) asked Mr. Salter (Pan-Am’s employee) : “I understand you don’t want my okra any more?”, to which Mr. Salter answered: “That is right. We don’t want it any more. We can’t use it any more. We just can’t use it.”

Although special issue number 1 might have been framed differently, we do not believe that the jury was misled or that the issue was prejudicial to the appellant. In determining whether a special issue constitutes prejudicial error, consideration must be given to the charge as a whole to determine the probable effect of the special issue on the minds of the jury. We believe that viewing issues number 1 .and number 2 together, along with the definitions and instructions of the court, it is unlikely that the jury was misled by the submission of special issue number 1. Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); 4 Tex. Jur.2d 618, § 954 and page 557, § 936. Appellant’s points 1, 2 and 3 are overruled.

Appellant’s fourth point complains •of the trial court’s instruction to special Issue number 3 inasmuch as the enumerated items of expense did not include all the items of possible, or even probable expense. The court instructed the jury concerning •special issue number 3 as to the expense ■that appellee would incur in producing and ■delivering the okra during the period of time in question as follows:

“In connection with your answer to the above question, you will consider the costs, if any, of picking and preparing for market, the cost, if any, of delivery and the cost, if any, for water, fertilizer and spraying of the okra being produced on the land in question.”

Appellant contends that the instruction does not direct the jury’s attention to the matter of rent on the land; nor would the jury be apt to consider the cost of securing and housing the braceros, nor is the jury told by the court that they can take into consideration the matter of depreciation of appellee’s several trucks and equipment. Appellant’s objection to the court’s instruction was vague and general, stating only that the instruction does not include all items of possible or even probable expense. Appellant’s objection is not well taken as it was too general to be considered. Rule 274 Texas Rules of Civil Procedure, 3 Tex.Jur.2d 410 § 138; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474 (1934) ; Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956) ; City of Houston v. Priester, 302 S.W.2d 948, (Tex.Civ.App.1957).

The contract price set the value of the acceptable growing crop at six cents per pound. Appellee testified that the pickers were getting two cents per pound for the okra. Other testimony included the cost per day of the foreman, two graders, the payment to his two sons, the cost per day for gasoline and truck expense, insurance and contracting fees for fifteen braceros. There was testimony that the crop had matured. There was no evidence that the crops needed any additional water, fertilizer, spraying or cultivation after June 27, 1962. The testimony was that this had been done prior to this date and the expenses had heretofore been paid. The appellant did not bring out cost of rent or the arrangements that the appellee had with his lessor, or any evidence as to how this would affect the damages. Without such evidence as to how the possible rent expense would affect the damages owed to the appellee by the appellant, we find no error in the instruction given by the trial court. International & G. N. R. Co. v. Pape, 73 Tex. 501, 11 S.W. 526 (1889) ; Schultz v. Harless, 271 S.W.2d 696, (Tex.Civ.App. 1954).

Appellant’s point number 11 is restated and argued along with the remaining points in appellant’s brief. Appellant contends that the trial court erred in instructing the jury to continue its deliberations after the receipt by the court of the following message by the jury, to-wit:

“On the basis of the evidence during the trial, we are unable to answer special issue no. 3 due to the fact that we do not know the cost of labor, watering, fertilizing, etc., or whether the plaintiff would have performed these services.”

The trial court rightly declined to give the jury further instructions in such connection and advised the jury to continue its deliberations. Appellant argues that the question submitted to the court by the jury supports the position that the answer of the jury to special issue number 3 was based on surmise and speculation because there is no evidence to support the answer to such issue. We have heretofore discussed the sufficiency of the evidence to support the finding on such issue under appellant’s point number 4. We find no error in the incident complained of and, therefore, appellant’s point number 11 is overruled.

Appellant filed motions for instructed verdict and a motion and supplemental motion for judgment non obstante veredicto. Appellant, in point number 22, contends that the trial court erred in granting appellee’s motion for judgment. All of appellant’s remaining points are points of no evidence or insufficient evidence and being contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. These points require a careful examination of all of the evidence in the record. The assignment of no evidence points requires the Court of Civil Appeals to be governed by the well established rule that if an issue of fact is raised by the evidence it must go to the jury even though the verdict that is based on such evidence would have to be set aside as not supported by sufficient evidence. An issue of fact is raised, if disregarding all adverse evidence and giving credit to all of the evidence favorable to the appellee and in indulging every legitimate conclusion that is favorable to him which might have been drawn from the facts proved, a jury might have found such fact in favor of the appellee. 38 Texas Law Review 361; Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410, (Tex.Civ.App.1962, ref., n. r. e.) ; In re King’s Estate, 150 Tex. 66?. 244 S.W.2d 660. On those points challenging the insufficiency of the evidence we are governed by the rule set out in 38 Texas Law Review at pages 367 and 368:

“If there is evidence or probative force tending to prove the existence of a vital fact and evidence tending to disprove its existence, and the point of error is that the finding is against the great weight and preponderance of the evidence, the rule by which a Court of Civil Appeals should be guided in passing on the point is simple even if the conclusion to be reached in a particular case is difficult. If the finding of the existence of the fact, considering all of the evidence, is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, the court should sustain the point and order a new trial; otherwise, the court should overrule the point and affirm.”

For the most part, appellant’s no evidence points complain of the appellee’s failure to negate all conceivable factors that would lessen appellant’s damage. For instance, appellant complains that there was no evidence as to the weather conditions during the thirty-four days from June 28th to August 1, 1962, or proof that such weather conditions would have been conclusive to growing okra; no evidence that the period was one of rain or extreme drought; no evidence that there were no hurricanes, tornadoes, floods or disastrous weather conditions; no evidence as to what the okra growing conditions were during said period ; no evidence that it would be necessary to cultivate the crops during this period or that appellee was financially able to arrange for such cultivation; no evidence as to whether or not it would be necessary to irrigate or that appellee was financially able to arrange for such irrigation. The same complaint is made as to fertilizer, insecticides, spraying, the presence or absence of insects, and his ability to finance or harvest the crop; no evidence that all of his employees were in good health and able to carry out their duties or that an epidemic would have stricken a number of the workers or that they would have been injured in a truck accident or been drafted into the Army, killed or injured in brawls or otherwise unavailable to work, and many other such complaints.

The jury determined the number of pounds of okra that the appellant refused to accept that met contract specifications. The contract provided for a price of six cents per pound. The jury determined the amount of expense which would be deducted from the gross sales price to determine the amount of damages due the appellee after proper instructions by the court. There was no necessity for the appellee to eliminate from consideration every other conceivable expense not raised by the appellant by proper pleadings and evidence.

The evidence does show that appellee planted one hundred fifty acres of okra between the 1st and 10th of February, 1962, using Clemson’s Spineless certified seed; he testified that the crop had been irrigated, cultivated, fertilized and sprayed until the crop matured. He described the okra fields as they appeared on June 27, 1962, as being green; that the plants were about three feet high and just reaching their peak and that it was the best stand that he had had in years. Appellee testified that he was one of the first farmers that delivered Clemson’s Spineless okra to the appellant and that he had planted, picked and shipped okra for a period of fifteen years. He testified that his rows were clean and that 1962 was the best crop year that he had ever had with reference to yield and quality. He testified further that after checking his records for prior years and conferring with other farmers, that his farm would yield 8,000 pounds per acre for the 1962 season. Appellant’s witness testified that an average between three and four thousand pounds per acre of usable okra could be harvested. This was after deducting 35% culls from the gross yield. The same witness testified further that a good bracero can pick up to 400 pounds of okra per day and that it is easier to pick okra when the plants are two-and-a-half to three feet high because the picker can see it better and does not have to stoop to get it. Appellee testified that okra can be picked until the 1st of September and okra plants keep putting on okra all season long; that Pan-Am had bought okra during the 1961 season until August 12th. Appellee testified that the contractual specifications called for Clemson’s Spineless okra; that the pods had to be from 2J4" x 3t/z" with caps off, and that it was to be tender and free from defects or insects and that the okra be typically green color. He testified that 85% of his okra would meet these specifications. That his total 1962 yield would be 1,200,000 pounds and that up to June 27th he had picked 337,400 pounds, leaving 862,600 pounds available for market. Other witnesses testified that the total yield would be around 600,000 pounds, which would bring it well within the answer that the jury found to special issue number 2, i. e. 170,000 pounds of okra meeting contract specifications. There is ample evidence that appellant refused to accept the appellee’s okra that would have met contract specifications after June 27, 1962. There is little doubt that the appellee qualified himself as an expert on okra and as such, he can give his opinion as to the probable yield, the value of the crop and such other relevant matters, where he has qualified himself accordingly. Southwestern Portland Cement Co. v. Kezer, 174 S.W. 661 (Tex.Civ.App.1915, wr. ref.); Schultz v. Harless, supra.

Appellee testified as to the cost of picking and preparing for the market, the cost of delivery, and other expenses incidental to the production of the okra. Although there was some conflict in the testimony we hold that there was sufficient evidence to sustain the jury’s answers to the special issues involved and that such evidence and the inference that can be properly drawn therefrom, tends to support the verdict. It was the jury’s province to weigh all the evidence and to decide what credence should be given to the testimony of the various witnesses. We hold that there is evidence of probative value to sustain the findings of the jury and such findings are not contrary to the great weight and preponderance of the evidence. For the reasons given the trial court granted appel-lee’s motion for judgment and properly overruled appellant’s motions for instructed verdict and for judgment non obstante veredicto. Appellant’s points are overruled.

Judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    LIBERTY UNIVERSAL INSURANCE COMPANY, Appellant, v. Roosevelt BURRELL, Appellee.
    No. 16591.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellant.
    Hill, Paddock & Street, and John G. Street, Jr., Fort Worth, for appellee.
   MASSEY, Chief Justice.

Judgment appealed from was for weekly benefits provided under the Workmen’s Compensation Act for total permanent disability. While the case was pending on appeal the claimant, Roosevelt Burrell, died from causes which may or may not have had relation to the injuries and resultant disability because of which the jury returned a verdict in his behalf.

Liberty Universal Insurance Company, appellant, will hereinafter be referred to as the Company, or Insurance Company. Roosevelt Burrell, now deceased, will be referred to as claimant, although in respect to the final point of error discussed the term will include his estate or those to whom his rights under the judgment survived.

We affirm the judgment of the trial court.

By its first point of error the Company complains because the trial court permitted claimant to introduce in evidence a portion of a letter it had written to the claimant and to the Industrial Accident Board while claimant’s case was pending before that quasi-judicial body. Such portion read: “First of all, we would like to make an unequivocal admission of liability in this case.”

Under the Act, Vernon’s Ann.Tex.St. Art. 8306, “Damages and compensation for personal injuries”, § 12e, “Surgical operation”, makes provision that in cases where liability for compensation exists and it is believed that a surgical operation for such injury will effect a cure of the employee or will materially and beneficially improve his condition, the insuring company may demand that such an operation be had. Under what is known as the “Seelbach case”, Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960), it has been held that if an insurance company desires to introduce evidence to show that one who claims compensation of it would have been benefitted by a surgical operation it must have theretofore laid a predicate for such evidence by making an unqualified confession of liability for the payment of such compensation as might be or become due (because of disability sustained by the claimant as the result of the injury sustained) and tender such operation while the case is before the Industrial Accident Board.

It was to comply with such requisite of law that the Company wrote the letter containing the “admission of liability” above quoted. The Company desired to introduce evidence in the course of any trial in the forum to which an appeal might be taken from an award by the Board demonstrating that the claimant, had he submitted to surgery, would have been cured or his condition materially and beneficially improved.

It is tlie contention of the Insurance Company that its admission of legal liability “before the Board” afforded it in the trial court the opportunity to introduce evidence of the curative effects of surgery, if such had been had, as applied to the disability of which complaint was made against it, but — in view of the fact that the proceedings constituted a de novo trial — that admission of liability on its part could not be shown by the claimant

We reject the contention and overrule the point. Regarding statements and conduct of an adversary which one desires to show upon trial as an admission beneficial to him who tenders proof thereof, it is stated in McCormick and Ray, Texas Law of Evidence, 2nd Ed., Vol. 2, p. 29, “Admissions of a Party”, § 1141, “Form of Statement” (1st Ed., p. 636, § 497), as follows: “In general it may he said that any statement made by a party or on his behalf which is inconsistent with his present position is receivable as an admission. The precise form of the statement is immaterial.” Exceptions to such general rule are subsequently mentioned. None of them fit the circumstances of the case before us. We believe it to be governed by the general rule. The Insurance Company’s pleadings, as well as actions in conduct of the trial, presented its position as one whereby it denied liability for the claimant’s condition or for payment of compensation for any incapacity resulting therefrom. The statement in question was therefore properly admitted into evidence against it.

! By a point of error the Company complains because of the wording of Special Issue No. 2, submitted to the jury and found against it, reading as follows: “Do you find from a preponderance of the evidence that the plaintiff, Roosevelt Burrell, sustained total incapacity for any length of time as a natural result of the accidental personal injuries, if any you have heretofore found he sustained, on or about July Sth, 1962?”

* This court has recently written upon a point of error presented in complaint of a special issue which may properly be considered identical in all material particulars to that above quoted. The case was Texas General Indemnity Company v. Deaton, 380 S.W.2d 719 (Fort Worth Civ.App., 1964, writ ref. n. r. e.). In the Deaton case the objection to the issue was that it was duplicitous in that it submitted in a single issue two controllng questions, towit: whether the claimant sustained any incapacity as a natural result of injuries sustained,—and also whether such capacity was total. Our holding was that in view of the nature of the objection made, considered with the admissions on file and the other issues submitted, reversible error was not present as the result of the form of the issue.

In this case the objection was that the issue amounted to a comment on the weight of the evidence with reference to the claimant having sustained incapacity. We hold that the issue is not subject to such objection. Point of error is overruled.

By another point of error the Company contends that there was no evidence to support the jury finding that the claimant’s total incapacity was permanent, with an alternative contention that such finding was against the great weight and preponderance of the whole of the evidence in the case. We overrule. Though it he conceded that the claimant had a complicating preexisting condition which might be termed a chronic defect, because of which he was in all likelihood more susceptible to the injury he claimed, yet we deem the evidence concerning the total disability, of which the accidental injury sustained was found to have been a producing cause, to have amounted to sufficient evidence of probative force and effect to support the jury’s finding. Furthermore, we hold that the jury’s answer was not against the great weight and preponderance of the evidence.

Special Issue No. 13 was submitted to the jury, with burden thereon placed upon the claimant. It read: “Do you find from a preponderance of the evidence that the disability, if any, of the plaintiff, Roosevelt Burrell, was not caused solely by disease, impaired physical condition, injuries, or a combination of such, which had no connection with the injury alleged to have been sustained by him on or about July S, 1962 ?” The jury’s answer found that such disability was not caused solely by disease, impaired physical condition, etc.

The Company objected to the issue. Essentially, the position the Company took was that it was entitled to have the jury consider severally the matters that would support its defense, and that the jury should consider specifically the aneurysm, the back injury of 1953, the abdominal sprain of 1963, or a combination thereof, in an issue or issues submitting the inquiry. The Company filed a specially requested issue which posed the inquiry according to its theory of proper submission. Such was refused, and, because of such refusal, the Company has presented a point of error companion to that just stated.

It may be that the requested issue failed to meet the test that it be a substantially correct issue. Be that as it may, we have no doubt of the propriety of its refusal. The issue which was submitted fairly presented the ultimate question involved, and its consideration and answer by the jury afforded the Company those rights to which it was entitled. The issue covered any and all diseases, impaired physical condition, injuries, or any combination thereof, which were in the case and proper to be considered by the jury in answering the question posed. The points of error are overruled.

We have heretofore mentioned that the claimant died while the case was on appeal. By its final point of error the Company contends that judgment should be reformed so as to limit recovery of the compensation, prescribed as payable from week to week under the judgment rendered by the trial court, and allow compensation payments only until the date of claimant’s death.

A somewhat similar question was under consideration by the Supreme Court in Bailey v. Travelers Insurance Co., 383 S.W. 2d 562 (Tex.1964). Actually, we have in the instant case a phase of the question not heretofore decided, but which we believe may be determined under the reasoning of prior cases discussed in the cited opinion.

The "key” to such determination seems afforded when it is kept in mind that there is a trial of issues made between the parties before the Industrial Apcident Board, and, on any appeal therefrom, by the District or County Courts. Contrarily, there is no trial by the Courts of Civil Appeals or the Supreme Court where the scope of authority over the case is confined to that of review of final judgments rendered elsewhere.

Where a judgment of the trial court fixes the amount of compensation to be paid and prescribes the time at which it is to be paid, whether in a “lump sum” or at stated times after the date of the judgment, as in a judgment for compensation payable weekly in installments upon the amount decreed, —the obligation of the Insurance Company is fixed thereby if and in the event the judgment shall become final, whether by way of failure to perfect an appeal therefrom, or, if an appeal be taken, the appellate court fails to find reversible error; in the trial proceedings. If reversible error is not found by the appellate court it is, of course, the duty of such court to affirm the judgment of the trial court. In such an instance it is a judgment for compensation payments as distinguishable from a claim for compensation comprising the substance with which the appellate court must work. It might be said that it is a hardened statue rather than malleable clay (which might still be molded and altered to suit the idea of propriety as to finished form) which it receives.

Having perceived no reversible error warranting and justifying any reversal of the judgment, we consider ourselves without authority to alter the number of weeks therein prescribed for the payment of compensation, .and likewise without authority to reduce the total amount of compensation prescribed as payable.

Judgment is affirmed.


author: BATEMAN, Justice.

text:
    NATIONAL SURETY CORPORATION, Appellant, v. Tom Pete MOORE, Appellee.
    No. 16431.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 11, 1964.
    Rehearing Denied Jan. 29, 1965.
    Touchstone, Bernays & Johnston, and Duffield Smith, Jr., Dallas, for appellant.
    Yarborough, Yarborough & Johnson, W. E. Johnson, Dallas, for appellee.
   BATEMAN, Justice.

Workman’s compensation suit. The employee, Tom Pete Moore, alleged injury to his back on September 14, 1961, resulting in total permanent disability. The jury found his total incapacity to have been temporary for 120 weeks, followed by temporary partial incapacity for 260 weeks. The insurer, National Surety Corporation, appeals from the judgment rendered on such verdict. We reverse and remand because of prejudicial jury misconduct complained of in appellant’s first four points of error on appeal and the error asserted in Point 5.

Eight of the jurors testified at the hearing of the motion for new trial, and they all recalled that during their deliberations the jurors Pennington and Russell (neither of whom testified) gave information of their own prior back injuries. Two of the jurors, Mrs. McClanahan and Holloway, presented by appellant, testified that Pennington told the other jurors on several occasions about his back having been injured in an airplane and that he had never fully recovered. According to Mrs. Mc-Clanahan, Pennington also stated that he had always had trouble with his back since the accident and believed that once a person had been injured in the back he never recovered because he never had. She also testified that on more than one occasion the juror Russell told of his back injury from which he said he had never recovered. Holloway testified that Pennington mentioned his own injuries more than once and discussed them about half the time he was talking; also that some juror, whose name he could not recall, gave certain information concerning life expectancies, from which they figured appellee had thirty-two more years of life expectancy. Mrs. Mc-Clanahan said that this was used by the jury “to decide the length of time to give Mr. Moore on his disability.” No evidence of any of such matters was introduced at the trial.

Appellee presented the testimony of six other jurors, including the foreman Hogue. They all admitted that Pennington and Russell mentioned their own back injuries while discussing the issues on whether the incapacity was temporary or permanent and the duration thereof. Foreman Hogue stated that he could not recall the number of times Pennington brought up his own experiences, but that each time he did bring it up he rebuked him and told him it was not to be used as evidence. Hogue also testified that back injuries were brought up two or three different times, that he cannot recall who brought them up and how many times, but that each time they were told that the judge instructed them not to use it as evidence. He also recalled the matter of life expectancy having been brought up. Four of the six jurors recalled that back injuries of some of the jurors were brought up several times, but that each time whoever brought it up was rebuked and admonished that it was not proper for them to consider it. Two of the six jurors did not remember the matter having been brought up more than one time, when the foreman promptly stopped it and told them they should “go by the evidence.” Mrs. McClanahan stated on cross-examination that the foreman stopped the discussion of other jurors’ back injuries several times “after it had already been said” and admonished the jury that that was not to be taken into consideration but that they “were to go on the evidence.” Holloway’s testimony was similar in this respect.

Two doctors had testified at the trial; one that in his opinion appellee had a herniated disc and was totally and permanently disabled; the other that his examination of appellee revealed only a low back strain, with no symptom of a herniated disc, and that in his opinion the strain had disappeared at the time of the examination in January 1962. It appears without dispute that at least two jurors gave unsworn evidence in the jury room concerning their own injuries, similar in nature to those suffered by appellee, and the duration of incapacity resulting therefrom, and that this occurred during, deliberations upon, and before determination of, the period of appellee’s incapacities. The fact that this was misconduct of a material nature is not open to question. It then becomes our duty to determine whether such misconduct probably resulted in injury to appellant. This is a question of law, to be determined by us after examining the entire record in the case. Rule 327, Vernon’s Texas Rules of Civil Procedure; White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259; Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615.

Appellee argues earnestly that the judgment should not be reversed on account of jury misconduct because: (1) the jurors guilty of the alleged misconduct were promptly rebuked and the jury admonished by the foreman and others that these matters were not to be considered; (2) the evidence and record as a whole shows that the juror Mrs. McQanahan, who told the other jurors that her husband had also sustained a back injury but that it did not prevent him from working, more than “neutralized” the alleged misconduct and actually succeeded in convincing the other jurors of her view that appellee had not sustained a permanent injury; and (3) appellant failed to sustain the burden of showing that the mention of personal back injuries probably resulted in harm to it.

It is well settled in our law that when a juror starts to tell of personal experiences that might influence the jury, or to make any other improper remark, if the foreman or other member of the jury promptly rebukes the offending juror and admonishes the jury not to consider such matters, and the matter is not thereafter considered, no reversible error is shown. Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556, wr. ref. n. r. e.; St. Paul Mercury Indemnity Co. v. Bearfield, Tex.Civ. App., 296 S.W.2d 956, wr. ref. n. r. e. But in this case the evidence taken at the hearing of the motion for new trial and the record as a whole convince us that, not only was the mischief completed when the rebuke came, but that it was repeated several times. The foreman evidently did not exercise that degree of control over the deliberations and statements of ju-j rors as was necessary to prevent the occurrence and recurrence of this misconduct for it is obvious from the record that his admonitions went unheeded. We note that similar efforts of foremen and other members of juries to rebuke and admonish, where shown to be ineffective, have been held not to render the misconduct harmless. Associated Employers Lloyds Co. v. Grissom, Tex.Civ.App., 291 S.W.2d 756, wr. ref. n. r. e.; White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Travelers Ins. Co. v. Carter, Tex.Civ.App., 298 S.W.2d 231, wr. ref. n. r. e.; Burkett v. Slauson, 150 Tex. 69, 237 S.W.2d 253.

It has also been held that several improper jury arguments, taken together, will require reversal even though no one instance would be sufficient by itself to do so, Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302, and that jury misconduct ought to be governed by the same rule. Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642, 645. While we feel that any one of the acts of alleged misconduct, standing alone and followed by proper rebuke and admonition and not pursued further, would probably not require reversal, we are quite well convinced that the several acts shown by the entire record of this case together do require it.

We therefore hold that the appellant carried the burden of establishing misconduct, the materiality thereof, that injury probably resulted to it, and that the trial court should have granted its motion for new trial. Garcia v. Phoenix Assurance Co. of N. Y., Tex.Civ.App., 376 S.W.2d 77, wr. ref. n. r. e. Appellant’s first four points of error are sustained.

By its fifth point of error appellant says the court erred in admitting in evidence a written medical report of Dr. James W. Sewell over appellant’s objections that it constituted hearsay and that no proper predicate had been laid for its admission. Appellee called to the witness stand appellant’s adjuster and obtained from his file the report in question, and the trial court permitted him to introduce it in evidence as a business record kept in the usual course of business, under Article 3737e, Vernon’s Ann. Civ. St. It was not shown that the report was made by any employee or representative of appellant in the regular course of appellant’s business, with personal knowledge of the information contained therein; only that it was kept by appellant’s adjuster, who had no personal knowledge of the facts stated in the report, as a part of his file; neither was it shown that the doctor who presumably “made” the report was unavailable as a witness. Being hearsay, and no opportunity for cross-examination being given to appellant, and the provisions of Article 3737e being inapplicable, the report was inadmissible. Skillern & Sons, Inc. v. Rosen, Tex.Sup.Ct., 1962, 359 S.W.2d 298.

Was the admission of this report prejudicial to appellant, or was it harmless error? Rule 434, T.R.C.P. Appellant in effect concedes that there is nothing in the report which in itself is prejudicial, but directs our attention to this statement therein : “Acute low back strain versus herniated disc. Possible spondylolisthesis,” and takes the position that this long technical word, spondylolisthesis, going before the jury and into the jury room unexplained and undefined, probably caused the jury to believe that appellee’s injuries were more serious and his period of incapacity of longer duration than would otherwise be the case. We agree with appellant. During the deliberations of the jury the foreman sent a note to the judge requesting a definition of the word, demonstrating that the jury was concerned about it. The request was refused. There was evidence at the hearing of the motion for new triál to the effect that at least one juror took this report into consideration in arriving at the verdict. The error cannot be said to be harmless by application of the tests provided by Rule 434. Atkins v. Graves, Tex.Civ.App., 367 S.W.2d 372, 376, wr. ref. n. r. e. The fifth point is sustained.

Appellant’s sixth and seventh points of error complain of the refusal of the trial court to permit the introduction of evidence in an effort to impeach appellee’s witness Dr. H. Y. Sigler. We have concluded that under the circumstances shown by this record no reversible error appears. These points are overruled. ¡

Reversed and remanded.


author: COLEMAN, Justice.

text:
    The HOUSTON LUMBER SUPPLY COMPANY et al., Appellants, v. Leo WOCKENFUSS et ux., Appellees.
    No. 14408.
    Court of Civil Appeals of Texas. Houston.
    Jan. 14, 1965.
    Rehearing Denied Feb. 4, 1965.

      Charles M. Leftwich, Sidney Farr, Houston, Barrow, Bland, Rehmet & Singleton, Houston, of counsel, for appellants.
    Tom Alexander, Pearson Grimes, Houston, Butler, Binion, Rice & Cook,! Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit to cancel and enjoin enforcement of a promissory note together with the deed of trust and mechanics’ lien securing it. The defendants in the trial court, filed a cross-action for the balance due on the note and judicial foreclosure of the liens1 securing same, and, in the alternative, for recovery in quantum meruit of the market value of the improvements constructed on plaintiffs’ lot. Judgment was entered based on the verdict of a jury cancelling the note, deed of trust and mechanics’ lien and adjudging that the defendants take nothing on the cross-action.

The Houston Lumber Supply Company, appellant, contracted with appellees to construct a dwelling house on a vacant lot owned by appellees in accordance with certain plans and specifications. In response to special issues, the jury found that appellant did not substantially perform the contract; that the work performed under the contract was not done in a good, workmanlike manner; that the market value of the house built by appellant on appellees’ lot, on the date appellees occupied it, was $4,250.00; that at the time of signing the deed of trust and mechanics’ and materialmen’s lien ap-pellees intended to occupy the house,to be built on their lot as their home and that prior to that time appellees had done overt acts of preparation evidencing a purpose to carry out such intention within a reasonable time limit other than buying the lot, approving the plans and making the contract for the construction of the house.

Appellant does not attack the finding of fact that at the time appellees executed the instruments purporting to create a lien on their lot they intended to occupy the house to be erected thereon as their home, but they contend that the finding concerning .overt acts of preparation is supported by no evidence, or, alternatively, is contrary to the great weight and preponderance of the evidence.

Appellees emigrated to this country from West Germany in 1952. Leo Wockenfuss, herein referred to as appellee, testified that ever since he had been in this country he had planned to build a house for his wife and that he had saved his money for that purpose. After he moved to Houston he bought a house, which he sold in 1959. Then he rented a house. He and his wife looked for a lot for several months before they found the one they wanted and also looked at houses to find the kind of house he wanted to build. He was operating a filling station at that time and one of his customers was R. A. Burrage, the assistant manager of appellant Lumber Supply Company. Appellees took Mr. Bur-rage to see the house they liked and he prepared some house plans for them based on this house, but incorporating certain changes suggested by Mrs. Wockenfuss. They also took Mr. Burrage to see the lot they had chosen on more than one occasion before any of the contract instruments were signed and, according to appellees, before the lot was purchased, and on Burrage’s advice he arranged to buy five more feet of land. Appellee testified that he bought the lot to make it his home for the rest of his life and when he bought it he owned no other property anywhere. While discussing plans for building Mr. Burrage pointed out that a large tree would have to be removed. Before the instruments were signed appellee removed the tree and dug up the stump. He also cleared the lot and staked it out. Accepting as true the testimony of appellee, these facts must have been known to Mr. Burrage before the lien instruments were signed. The deed of trust and mechanics’ and materialmen’s liens were not acknowledged before a notary public by either of appellees, and these instruments, together with the promissory note were executed on September 19, 1960, and the note recites that it is secured'by these lien instruments. The contract to build had been previously entered into on September 12, 1960, and was not acknowledged. This evidence was clearly sufficient to support the answer made by the jury to Special Issue No. 5, which asked whether appellees had done cmy overt acts of preparation evidencing a purpose to make their home on the lot within a reasonable time.

Appellants contend that the fact findings made by the jury, together with the undisputed facts, are insufficient to support the conclusion of law that the lot constituted appellees’ homestead.

“ * * * in order to impress upon property a homestead character, in the absence of actual occupancy thereof, there must be an intention by the head of the family to reside upon it with his family as a home, coupled with some overt act of preparation evidencing that intention.” (Gilmore v. Dennison, Tex.Com.App., 131 Tex. 398, 115.S.W.2d 902, opinion adopted)

The issues submitted to and answered by the jury were proper and constitute a sufficient basis for the conclusion that the property was impressed with a homestead character prior to the execution of the lien instruments. Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033; Skiles v. Shropshire, Tex.Com.App., 124 Tex. 462, 77 S.W.2d 872, opinion adopted; Surratt v. Thomas, Tex.Civ.App., 233 S.W.2d 350; Stout v. Sommers, Tex.Civ.App., 28 S.W.2d 247, aff’d Sommers v. Stout, Tex. Com.App., 44 S.W.2d 901; Foley v. Holtkamp, 28 Tex.Civ.App. 123, 66 S.W. 891, error ref.; Espinoza v. Cocke, Tex.Com.App., 276 S.W. 1095; Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317, writ ref.

Appellant contends that the fact that ap-pellees occupied rented premises prior to and at the time of the purchase of the lot in question established as a matter of law the homestead character of the rented premises. It is further contended that since appellees had a homestead a new one could not be acquired until abandonment was established by moving out of the rented premises.

While it is clear that a homestead exemption may be claimed for rented premises, it does not follow that one occupying rented premises may not acquire homestead rights in other property in the absence of evidence that he intended the rented premises to be his homestead. Espinoza v. Cocke, supra; Grimes v. Cline, Tex.Civ.App., 300 S.W. 235, error dism.; Bartels v. Huff, Tex.Civ.App., 67 S.W.2d 411, writ ref.

In the absence of a bona fide purchaser for value before maturity, the mechanics’ lien securing a promissory note may not be foreclosed where the contractor failed to substantially perform the lien contract. Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928. If the property described in the mechanics’ lien contract is homestead property, there can be no recovery on the contract. Paschall v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 47 S.W. 98; Murphy v. Williams, 103 Tex. 155, 124 S.W. 900; Sommers v. Stout, Tex.Com.App., 44 S.W.2d 901. In the Sommers case the court said:

“In the Murphy Case, supra, our Supreme Court, speaking through Judge Williams, exhaustively reviewed the authorities bearing on the subject and held that the only way that a mechanic’s lien could be fixed on a homestead was by full compliance with the provisions of section 50, article 16 of our state Constitution in the making of the contract, and that one who has not substantially performed his part of such contract cannot maintain an action on the contract for its enforcement, though he may sometimes be allowed to recover upon a quantum meruit. Of course, where the recovery is on a quantum meruit, and not on the contract itself, no foreclosure of the lien can be had.”

Appellants contend that the trial court erred in refusing to set aside the jury’s answer to Special Issue No. 3 (relating to the market value of the house), or that the answer returned is contrary to the great weight and preponderance of the evidence.

There was expert testimony that had the house been constructed in accordance with the plans and specifications, it wohld have had a market value of $7.50 per square foot, but that as a result of the defective construction, the value of the house was reduced from 30% to 40% below that value. There were approximately 1880 square feet in the house. The various claimed defects were described in detail. Among other things it was shown that the foundation had settled and cracked; there were cracks in some of the walls; the doors would not open and shut properly; and one brick wall was not erected in a good workmanlike manner. A septic tank was installed instead of connections with the City sewer lines because foundation level of the house was below the level of the nearest manhole cover. If the foundation had been raised to the proper level, it would have been higher than the bottom of the ditch draining the street in front of the house, but as it was constructed it was lower than the ditch and when a sufficiently heavy rain fell the ditch overflowed and water entered the house. The terms of the contract show that a connection with the City sewer system was contemplated. The jury found that the value of the house was $4,250.00, substantially less than the value placed on it by the expert witness. Appel-lee’s testimony on this point is not clear, but, as we construe it, amounts to no more than that he does not like the house and it is worth nothing to him. He moved into it because his money was gone and he had no place else to live. Appellee testified that there was a four foot slope from the front of his lot to the back and that he had filled it in with three to four hundred cubic feet of soil. The house was built on a concrete foundation. He testified that the first year after he moved into the house he worked on the house every night, sometimes all night, and every Saturday and Sunday, and that he is still working in his spare time, trying to keep the place standing. In order to keep water out of the house he built two drains and a guard on the roof to force the water falling on the roof into the drains. He built walls in front of the house and in front of, as well as on the north side of, his yard to keep water from draining into the yard and from the yard into the house.

The testimony of expert witnesses is not ordinarily binding on the jury, and is not in this case. City of Houston v. Hendrix, Tex.Civ.App., 374 S.W.2d 764, writ ref., n. r. e.; State v. Haire, Tex.Civ.App., 334 S.W.2d 488, writ ref., n. r. e. Ordinarily the opinion testimony of experts is conclusive where the jury cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry. American Nat. Ins. Co. v. Ferguson, Tex.Civ.App., 209 S.W.2d 797, ref., n. r. e.

Neither the minimum nor the maximum valuation placed on property by the opinion testimony of expert witnesses is binding on a jury. The jury is entitled to weigh the testimony of such witnesses in the light of their own knowledge and experience. Slay v. Mary Couts Burnett Trust, Tex.Civ.App., 180 S.W.2d 480, aff’d in part and rev. in part, 143 Tex. 621, 187 S.W.2d 377; Barclay v. Burge, Tex.Civ.App., 24S S.W.2d 1021; City of Houston v. Hendrix, supra.

The answer made by the jury on the question of value is supported by such evidence of probative force that we cannot say it is clearly wrong. Appellants argue that in such event the trial court erred in failing to enter judgment in their favor for such value less the sum of $2,000.00, which they concede has been paid by appellees.

Unless the work is shown to be of benefit to the owner or to have been accepted by him, the contractor is not entitled to recover on a quantum meruit for work done under an indivisible contract where the completed work does not comply with the terms of the contract. Simons v. Paine, Tex.Civ.App., 140 S.W. 855, writ ref.; 10 Tex.Jur.2d, Building Contracts, § 45. We see no reason why a different rule should be applied in the case of a contract to construct improvements on a homestead. The recovery on quantum meruit is independent of a contract. Article 16, § 50, Constitution of Texas, Vernon’s Ann.St. protects the homestead against forced sale, and invalidates mortgages, trust deeds, and other liens on the homestead except for liens securing the purchase money thereof, or for improvements made thereon in accordance with the procedure provided in this section. The case of Magee v. I. & G. N. Wood & Coal Co., Tex.Civ.App., 269 S.W.2d 498, ref., n. r. e., is cited for the proposition that where there is a failure to substantially perform a building contract, there can be no recovery on quantum meruit. There a purchaser for value before maturity sued the builder and the landowner for the balance due on a note and for foreclosure of the mechanics’ lien securing it. The trial court had granted judgment against all defendants with a judgment over against the landowner in favor of the contractor for the amount he might be required to pay in satisfaction of the judgment. There was an alternative count in quantum meruit. The jury found in favor of the defendants on their defense of failure to substantially perform.

The Court of Civil Appeals held that the note sued on was a negotiable instrument and that there was no error in awarding the appellee a judgment thereon. The portions of the judgment awarding foreclosure of the liens and judgment over against the landowner were reversed. The Court, after holding that the liens were invalid because of failure to substantially perform the contract, stated: “Similarly, no recovery can be had upon a quantum meruit basis.” We think, however, that this statement is not supported by Murphy v. Williams, 103 Tex. 155, 124 S.W. 900, the authority cited. This case holds that in the absence of a recovery on the contract, the liens cannot be enforced. It specifically calls attention to the holding in Paschall v. Pioneer Savings & Loan Co., 19 Tex.Civ. App. 102, 47 S.W. 98, and stated: “The principle applied in that case, which is clearly sustained by the authorities, is that one who has not substantially performed his part of a contract cannot maintain an action for its enforcement although he may sometimes he allowed to recover upon quantum meruit.” (Emphasis added.) Ap-pellee recovered on the contract because he was the holder in due course of a negotiable instrument. The contractor could not have recovered because he failed to substantially perform his contract. He, therefore, was not entitled to a judgment over against the landowner.

Recovery may be had in such cases on the basis of quantum meruit, but only an in personam judgment may be rendered. Continental Nat. Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928; Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 38 A.L.R. 1377; Walker v. Woody, 40 Tex.Civ.App. 346, 89 S.W. 789; Blackburn v. Temple Nat. Bank, Tex.Civ.App., 216 S.W.2d 233; Bratcher v. Moore, Tex.Civ.App., 219 S.W.2d 527.

This house cannot be connected with the City sewage system, and threat of flooding cannot be eliminated, unless the house is removed and the lot filled to street level. There is testimony that appellees demanded that the house be removed. One of the prayers in this suit was for an order requiring appellants to remove the house. Appellee testified that the house had no value to him and that he occupied it only because he had no money and nowhere else to live. The evidence is not clear as to when the walls and foundation cracked. The jury found that the house had substantial value.

We have found no case where it was held that the act of taking possession of a house, after protest and by reason of necessity, is, as a matter of law, an acceptance of benefits under an invalid building contract. Where the benefits are not accepted, no action on quantum meruit will lie. Tramonte v. A. J. Rasmussen & Sons, Tex.Civ.App., 167 S.W.2d 566; Cantrell v. Garrett, Tex.Civ.App., 342 S.W.2d 466; Benson v. Harrell, Tex.Civ.App., 324 S.W.2d 620. We are of the opinion that an issue of fact was raised by this evidence as to whether appellees knowingly accepted the benefit of the labor and material furnished by appellants. Since the trial court rendered judgment against appellants, no subsidiary issues can be deemed found in their favor, and independent issues not submitted are deemed waived. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031; Simons v. Paine, Tex.Civ.App., 140 S.W. 855, error ref.; Allison v. Wheless, Tex.Civ.App., 84 S.W.2d 529, error dism.; Ft. Worth Properties Corporation v. Bahan, Tex.Civ.App., 68 S.W.2d 228.

The measure of damages in an action on quantum meruit ordinarily is the reasonable value of the work performed and material furnished. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848; Bratcher v. Moore, supra; Tramonte v. A. J. Rasmussen & Sons, supra. The reasonable market value of the house would not necessarily, or probably, be the same amount. The trial court did not err in refusing to enter judgment for appellants on the basis of the answer made to the issue on market value of the house.

Appellants’ point concerning jury misconduct cannot be sustained. It is contended that the answer to the issue on market value constituted a quotient verdict. Since the trial court overruled the motion for new trial, it will be presumed he found that there was no agreement in advance to be bound by the figure reached by the addition of the various sums suggested by the jurors and the division of the result by twelve. There is no direct testimony of an advance agreement to be bound by the calculation, and a reasonable inference is to the contrary. J. Weingarten, Inc. v. Azios, Tex.Civ.App., 384 S.W.2d 160.

Since the issue on market value was not an ultimate issue in this case, and since the judgment entered by the trial court was properly supported by other findings made by the jury, the several points raised by appellants concerning this issue deal with claimed errors that could not be calculated to cause the rendition of an improper judgment and, in fact, did not cause an improper judgment to be rendered. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.


text:
    Ava Nell QUARLES, Appellant, v. N. K. QUARLES, Appellee.
    No. 16437.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      Bruce Graham, Greenville, for appellant.
    G. C. Harris, Greenville, for appellee.
   WILLIAMS, Justice.

N. K. Quarles brought this suit in the district court against his wife, Ava Nell Quarles, seeking a divorce, distribution of the community property, and custody of three minor children of the marriage, ages 14, 10 and 3, alleging “that said children are with the plaintiff and it would be to the best interest and welfare of said children that their custody be awarded to plaintiff upon hearing hereof.” Ava Nell Quarles responded to this suit with her answer and cross-action wherein she sought a divorce from N. K. Quarles, a division of the community estate, and asked that custody of the three minor children be awarded to her. She alleged “that cross-plaintiff is a proper person to have the custody of their three minor children and asks that upon a final hearing that she be granted such custody.” Following a trial before the court and a jury special issues were answered by the jury in favor of both plaintiff and cross-plaintiff on the issues of divorce. In response to questions propounded to them concerning custody of the three minor children the jury found that (3) N. K. Quarles is a proper and fit person to be entrusted with the care and custody of the minor children; (4) that Ava Nell Quarles was not a proper and fit person to be entrusted with the care and custody of the minor children; and that (S, 6 and 7) the welfare and best interest of the three minor children would be best served by awarding their care and custody to the father, N. K. Quarles. Based upon this jury verdict the trial court awarded a decree of divorce to Ava Nell Quarles, ordered a division of the community property, and awarded the care and custody of the three minor children to the father, N. K. Quarles, with rights of reasonable visitation to the mother. Ava Nell Quarles appeals to this court complaining only of that part of the trial court’s judgment awarding custody of the three minor children.

In her first three points on appeal, grouped for presentation, appellant argues that the trial court erred (1) in placing the burden of proof on the mother, Ava Nell Quarles, in Special Issues 4, 5, 6 and 7 relating to custody; (2) in instructing the jury that the rights of the father and mother are equal with respect to their children; and (3) in refusing to give to the jury a requested instruction to the effect that ordinarily custody of a girl of tender years is best served by an award to the mother.

In Special Issue No. 4 the trial court asked the jury to find from a preponderance of the evidence whether Ava Nell Quarles is a proper and fit person to be entrusted with the care and custody of the minor children of the parties. The jury replied “No”. In Special Issues Nos. 5, 6 and 7 the court separately submitted the question to the jury to “find from a preponderance of the evidence whether the welfare and best interest of the minor child will best be served by awarding the care and custody of such minor to the father or to the mother.” In each instance the jury found “father”. We do not agree with appellant that the court erroneously placed the burden of proof upon her in these issues. It is an elementary rule of law that the party asserting an affirmative of an issue is obligated to establish it by a preponderance of the evidence. 31 Tex.Jur.2d 737, § 157. In this case appellant, in her cross-action, alleged that she, and not appellee, was a proper person to have the custody of the minor children. Special Issue No. 4 submitted that very question to the jury, properly placing the burden of proof upon appellant to establish the affirmative thereof. In Special Issues 5, 6 and 7 the court so worded the issues to properly place the burden of proof on both the mother and the father, each of whom had affirmatively sought custody.

As a part of the charge, the trial judge instructed the jury:

“You are further instructed that the rights of the father and mother are equal with respect to the custody of their children, but that the welfare of the child or children is of controlling importance, and it will be your duty to find according as you may believe from a preponderance of all the evidence as to what will be for the best welfare and good of the child or children, and you will answer such issues as you may find the facts to be, answering father or mother as indicated.”

We are of the opinion that this instruction is legally correct and overrule appellant’s objection thereto. In re Boyd, Civ. App., 157 S.W. 254; Gully v. Gully, Civ. App., 184 S.W. 555; Sanders v. Treend, Civ.App., 266 S.W.2d 235; 20 Tex.Jur.2d 653, § 326, and cases there cited. Nothing is more firmly established in our law that the paramount question to be decided in custody matters is the best interest of the child and any right of a parent must yield to such welfare and best interest. The statute itself, Art. 4639a, Sec. 1, V.A.C.S., provides that the decree and order relating to custody must be based upon the best interest of the minor. In this connection see Erwin v. Erwin, Civ.App., 344 S.W.2d 923; Huddleston v. Huddleston, Civ.App., 346 S.W.2d 931; Bell v. Hoskins, Civ.App., 357 S.W.2d 585; Robinson v. Robinson, Civ.App., 359 S.W.2d 215; Meyer v. Meyer, Civ.App., 361 S.W.2d 935.

As a part of her objections to the submission of Special Issue No. 7, inquiring concerning the proper custody of the three-year-old girl, Ann Quarles, appellant requested the court to give the following instruction:

“You are charged as a part of the law in this case, that in considering your answer to Special Issue No. 7, that unless you find from a preponderance of the evidence, that Ava Nell Quarles, the mother, is unfit to have the custody of Ann Quarles awarded her, that it is ordinarily for the best interest of a minor girl of tender years, that the custody of such child be awarded the mother.”

The court refused to give this instruction. Such refusal does not, in our judgment, amount to reversible error in this case. Appellant has cited us no case in which such a request, or similar request, was ever given. Neither have we been able to find any such case. While it is true, as reflected by many adjudicated cases, that it is ordinarily proper and desirable to award children of tender years to the mother, such rule is necessarily qualified and modified by circumstances affecting the child’s best interest and welfare. The mother is not, in every case, entitled to custody of such a child, as a matter of law. We believe that the instruction given by the court, set forth above, adequately presents the law of the case rendering it unnecessary to give the requested instruction. Moreover, any error, should there be error, in refusing such instruction is, in our opinion, harmless error and is not shown to have resulted in the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure.

Appellant’s Points 1, 2 and 3 are overruled.

In her fourth and fifth points, appellant contends that there are no pleadings alleging that she is unfit to have the care and custody of her minor children, nor was there any evidence of her unfitness, and therefore the court erred in submitting Special Issues 4, 5, 6 and 7 to the jury. There is no merit to either of these points and they are overruled. Both the father and the mother allege that it would be to the best interest and welfare of the minor children that custody be awarded to them. These pleadings were adequate to allow the introduction of evidence relating to the question of the best interest and welfare of the children and also to justify the submission to the jury of the special issues. Moreover, no objection, based upon lack or insufficiency of pleadings, was advanced when the testimony was submitted relating to the matter of custody. As to the question of no evidence on the issue of unfitness, as well as the best interest and welfare of the children, we find abundant ■evidence in this record, both pro and con, relating to those vital questions which were ultimately determined by the jury in favor of appellee. Appellant’s “no evidence” point is therefore without merit.

By her Points 6, 7 and 8, appellant contends that the court erred in overruling her motion for instructed verdict as to the custody of the three-year-old daughter, Ann Quarles; in overruling her motion for judgment non obstante veredicto as to the jury’s answer to Special Issue No. 4; and in overruling appellant’s motion for judgment non obstante veredicto as to the jury’s answers to Special Issues 5, 6 and 7. These points are “no evidence” points since the trial court would not have been legally authorized to either grant the motion for instructed verdict or motion for judgment non obstante veredicto unless ■there was no evidence to present the issues or sustain the answers thereto on the question of custody. As we said in Davidson v. Methodist Hospital of Dallas, Civ. App., 348 S.W.2d 400, it is only when there is no evidence of probative value in support of a jury’s verdict that a judgment non obstante veredicto can be allowed to stand. See also Burbridge v. Rich Properties, Inc., Civ.App., 365 S.W.2d 657; Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616. Being a “no evidence” situation we have reviewed these points in the light of the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The statement of facts in this case, 361 pages in length, has been carefully examined by us and rather than being devoid of any evidence at all on the question of the proper care and custody, we find the evidence to be abundant, both on behalf of the father and the mother, relating to what would be the best interest of these children and their future welfare. Prior to the enactment of Art. 4639a, V.A.C.S., which specifically provides for the determination of the custody question by a jury, and providing that the judgment of the court in such a jury trial may not contravene the jury’s determination of the child custody issue, a great amount of discretion was vested in the trial judge. Of course, the jury’s determination of the issue of custody must be supported by evidence, as in other cases. In Welch v. Welch, Civ.App., 369 S.W.2d 434 we had occasion to review Art. 4639a, V.A. C.S. and we there held that if the verdict of the jury relating to child custody is not supported by any evidence such verdict could be disregarded under the provisions of Rule 301, T.R.C.P., as in any other case. However, where there is evidence to support the jury’s verdict the trial judge has no right to substitute his findings or opinion with reference to the custody, nor neither may this court do so. Points 6, 7 and 8 are overruled.

The judgment of the trial court is affirmed.