text:
    Perry R. BASS et al., Appellant, v. ARANSAS COUNTY INDEPENDENT SCHOOL DISTRICT et al., Appellee.
    No. 19.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      R. Dan Settle, of Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Allen Wood, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellant.
    Ross Terry, J. C. Hinsley, Austin, for appellee.
   GREEN, Chief Justice.

This appeal is from a judgment entered after a jury verdict, granting recovery to appellees, Aransas County Independent School District, the State of Texas and Aransas County, plaintiffs below, for delinquent taxes for the years 1960 and 1961. The property involved, owned by the S. W. Richardson Estate of which appellants were independent executors, was St. Joseph Island, consisting of approximately 32,750 acres, divided for tax purposes into two classes of land, usable pasture land, and waste land, consisting of tidal flats, mud flats, sand dunes and shore grass flats.

Appellants resisted the suit on the grounds that the valuations upon which the assessments were made were grossly excessive, unequal, and made pursuant to an arbitrary and fundamentally erroneous method of valuation used by appellees’ Boards of Equalization which resulted in placing an unequal and discriminatory share of the tax burden on appellants’ property. Appellants also complain that appellees, in violation of their promise and agreement, refused to reduce the 1960 assessment to conform to the 1961 assessed value.

The jury, in answer to special issues, found: (1) there were 10,200 acres of usable pasture land on the island on January 1, 1960 and January 1, 1961; (2) the reasonable cash market value of the usable pasture land on said dates was $70.00 per acre; (3) the reasonable cash market value of the waste land on the island on said dates was $21.00 per acre; (4) appellees did not fail to send written notices of the meeting of the Boards of Equalization held June 9, 1960, to appellants; (5) appellants, their agents or employees, received such notices; (6) the Boards of Equalization did not follow a plan to value all pasture land in Aransas County at $100.00 per acre for ad valorem tax purposes for the year 1960; (7) the Boards of Equalization, except for the discount given St. Joseph Island, did not follow a plan to value all pasture land in Aransas County at $100.00 per acre for ad valorem tax purposes for the year 1961.

It was stipulated between the parties, and the jury was so instructed, that the cash market value of all land on St. Joseph Island was the same on January 1, 1961, as on January 1, 1960, and that the amount of usable pasture land, as well as the amount of waste land, was the same in both years.

In September, 1959, appellees county and school district employed Thomas Y. Pickett & Co., specialists in appraising- minerals, real estate, utilities and industries for taxing agencies, to assist them in appraising taxable property, so that it could be equalized for taxation purposes. Such a contract is valid, and it is not under attack here. Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333; Tatton v. Aransas County, Tex.Civ.App., 359 S.W.2d 200. Bill Taylor, head of their land appraisal department, was placed in charge of this project by Pickett. He and his crew worked on this appraisal in Aransas County from September, 1959, until late Spring, 1960.

Appellants mailed their 1960 renditions to each of the taxing bodies in January, 1960, based on the 1959 valuations. These renditions proved unsatisfactory to the taxing authorities, and both county and school district decided to have this property revalued by their 1960 boards of equalization. Arts. 7206, 7211, 7212, 7343, Vernon’s Ann. Tex.Civ.St. Though an issue of fact developed as to whether appellants received notice of such decision as provided by subd. 5, Art. 7206, appellants do not deny that the evidence was sufficient to support the jury’s answers to special issues 4 and 5, that appellees sent and appellants received such notices.

In June, 1960, the boards of equalization for county and school district met for the purpose of hearing witnesses and revising assessed valuations as the facts might show proper. While the two boards met together for convenience to hear the testimony and reports at the same time, they did not intermingle or sit as one board, each having its own separate members and chairman and each acting for its own principal. Appellants did not appear, nor did they have any representative present.

At this meeting, after hearing sworn testimony from witnesses, including Taylor, the boards each raised materially the valuations of appellants’ St. Joseph Island property. From the evidence, the boards estimated that approximately half of the 32,750 acres on the island was usable pasture land, and the other half was waste land, and set a value of $75.00 per acre on the former and $26.25 per acre on the waste land, averaging the two figures to place a valuation of $50.00 per acre on all of the land. This was a very substantial increase over the valuations fixed for 1959. Assessments were based on a percentage of 20% of market value for state and county, and 25% for school district. Appellants were unaware that the valuations had been raised until in October, 1960, when they received notices from the tax collectors of appellees of the taxes due for 1960. In January, 1961, appellants sent the tax collectors their checks for 1960 taxes computed upon the valuations set out in their voluntary renditions, the same as for the year 1959. These checks were returned by the respective collectors as unacceptable. So far as shown in the record, the taxes for the years 1960 and 1961 have not been paid, nor has any tender of the amount claimed to be due by appellees been made by appellants.

Shortly after appellants received the tax notices in October, 1960, their tax representatives contacted proper officials of ap-pellees county and school district concerning the increased valuations. Further investigation was made by Taylor and appel-lees’ taxing authorities, and it was determined that the usable pasture acreage was overcalculated, and the amount of waste land was under estimated. At the 1961 meeting of the two boards of equalization, attended by representatives of appellants, adjustments on such acreage were made for the year 1961, and the valuations of the property for 1961 were reduced to $70.00 per acre for usable pasturage land and $21.-00 per acre for waste land. No change was made in the valuation or assessments for 1960. Such valuations were unsatisfactory to appellants, and they have refused to pay taxes based on the assessments for said two years, which refusal resulted in this suit.

Appellants in their first point of error state that the trial court erred in failing to grant their motion for judgment non obstante veredicto since the evidence established as a matter of law that appel-lees’ assessments of St. Joseph Island were unequal and grossly excessive in comparison to assessments of other property. We have found no testimony in the record of the assessed value of any other tract of land in Aransas county with which to make a comparison with the assessed value of appellants’ land. The only evidence of assessments of other property was by the introduction of the total amount of assessed value of all real estate in the county, including improvements, less mineral rights which are not here involved, for the years 1959 and 1960. This evidence shows to have been introduced by appellants to prove that the percentage of increase in the assessed valuation of St. Joseph Island property in 1960 over the 1959 assessed values was greater than the percentage of increase in assessed value of the total of all other taxable real estate in the county for the same two years. However, appellants did not attempt to show whether such other property had been assessed at less than market value in 1959, or that in 1960 it was assessed at values more favorable to the owners than was appellants’ property, or to show that any facts existed calling for a like percentage of increase in such other property. In the absence of such showing, and in the total absence of any testimony of the assessed value of any other pasture land or waste land in the county, appellants failed to make any showing of discrimination against their property, or that their assessments were unequal and grossly excessive in comparison with assessments of other property. State v. Houser, 138 Tex. 28, 156 S.W.2d 968; Dallas County v. Dallas National Bank, 142 Tex. 439, 179 S.W.2d 288; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414; Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163; State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847; City of Orange, Texas v. Levingston Shipbuilding Co., 5 Cir., 258 F.2d 240; Westerman v. Vernon Independent School District, Tex.Civ.App., 354 S.W.2d 431.

The rule has been definitely established in Texas that where an aggrieved taxpayer fails to avail himself of the affirmative remedies of injunction and mandamus to prevent a taxing authority from putting an invalid and arbitrary plan of taxation into effect, but waits until suit is brought against him for delinquent taxes, his right to relief is limited. Once such a plan is put into effect, in the absence of a showing, by comparison of the assessments against his property with assessments against other like property, of a gross discrimination against him, the land owner may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving excessiveness. He must show that the use of such a plan worked to his substantial injury, and the extent of such injury. Authorities cited in preceding paragraph; also East and Mount Houston Independent School District v. South Texas Lumber Company, 153 Tex. 795, 271 S.W.2d 795; City of Houston v. McCarthy, Tex.Civ.App., 371 S.W.2d 587 writ ref. n. r. e.; Darby v. Borger Independent School District, Tex.Civ.App., 386 S.W.2d 572.

We have not found any evidence showing the extent of the claimed excessiveness of the taxes assessed against appellants, or that by the assessments they have suffered substantial injury.

In connection with appellants’ contentions of gross excessiveness of the valuations placed on their land, attention is called to the fact that on the basis of the-appraised valuations, the respective assessed valuations on their property in 1961 by county and State were $14.00 per acre on pasture land and $4.25 per acre on waste land, and only slightly more in 1960. Assessed valuations of the school district were comparable, based on 25% of market valuation instead of 20%. In the absence of any evidence of assessed valuations of other tracts of land in the county, we do not feel that such assessed valuations were proved to be so grossly excessive as to establish invalidity of the assessments.

Appellants, on page 2 of their brief, concede that the findings of the jury, heretofore set out in this opinion, would in effect sustain the validity of the assessments. Their motion for judgment n. o. v. depended on the trial court setting aside such findings. In the course of this opinion it is our intention to show that the verdict of the jury was based on sufficient evidence, and was not against the overwhelming preponderance of the evidence, and that the trial court did not err in declining to disregard such verdict.

For these reasons, and for others which will be hereafter discussed, the trial court correctly overruled appellants’ motion to disregard the findings of the jury and render judgment for appellants. Appellants’ first point is overruled.

By their second point, appellants contend that there was no evidence and insufficient evidence to support the jury’s answer to special issue No. 1 that there were 10,200 acres of usable pasture land on the island on January 1, 1960 and 1961. It is a fact that Taylor and members of appellees’ 1961 boards of equalization had accepted the figure of 8500 acres of such land given them by some of appellants’ representatives. However, on the trial two of appellants’ expert appraisal witnesses, Lewis and Slay, testified that in January, 1961, there were 10,200 acres of usable pasture land on the island, and another, Crow, said there were 10,048 acres of such land. Clearly, the jury reached the figure of 10,200 'acres of usable pasture land from the testimony of appellants’ own witnesses. This point is overruled.

Appellants’ third and fourth points deal with the proposition that there was no evidence to support the jury’s answer to Special Issue No. 2 that the cash market valúe of the usable pasture land on the island on January 1, 1960 and 1961, was $70.00 per acre, and that such finding was contrary to the overwhelming preponderance of the evidence. Their fifth and sixth points raise the same contentions as to the answer of the jury to Special Issue No. 3, that the cash market value of the waste land on such dates was $21.00 per acre.

Appellants produced quite an array of expert land appraisers who, after testifying concerning their qualifications and the basis for their opinions as to value of the property, stated that in their opinions the usable pasture land had a cash market value of not (Jver $20.00 per acre, and the waste land had such a value of not over $5.00 per acre. Their testimony covers 241 pages of the statement of facts, and is quite detailed in giving the reasons why this property, situated on a long, narrow island, difficult in accessibility to the mainland, with its disadvantages as to profitable ranching, had such low value.

However, appellants also introduced in evidence without reservations the statement of County Commissioner Sparks in his deposition that in his opinion the land was worth the amounts at which appellees’ boards of equalization valued it, both in 1960 ($75.00 per acre) and 1961 ($70.00 per acre) for the pasture land.

Taylor was the only witness as to market value placed on the stand by appellees. His qualifications as an appraiser of land values included many years as a rancher in south Texas, land appraiser for the tax assessors office in Nueces County, manager and valuation appraiser for the Nueces County Tax Payers Association, senior appraiser in the tax office of the city of Corpus Christi, Texas, and four years in charge of real estate appraisals for Thomas Y. Pickett and Co.

He testified at considerable length, both on direct and cross examination, as to the procedure followed by him in determining the market value of appellants’ property, and after considering its disadvantages as island property, concluded that it had a reasonable cash market value of $70.00 per acre for the usable pasture land, and $21.00 per acre for the waste land. Although appellants’ brief has much criticism of Taylor’s testimony, we consider this as going only to the credibility of the witness and the weight to be given his testimony, and the jurors were the sole judges of that. Having considered all of the evidence on the issue of value, we find that it was sufficient to support the jury’s answers to Special Issues No. 2 and No. 3, and that such answers were not contrary to the overwhelming preponderance of the testimony. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126.

Tatton v. Aransas County, 4th Court of Civil Appeals, 359 S.W.2d 200, n. w. h., arose in Aransas County, and also involved the validity of the county and school district assessments for the year 1960. We consider the opinion in that case concerning the issues of arbitrary plan of taxation and methods and rates of valuation as strongly supporting, if not controlling of, the determination of this case on such issues. The same basis of valuation by the same boards of equalization (1960) based on appraisals made by the same tax appraisal firm, Thomas Y. Pickett & Co., was sustained in the Tatton case. It is to be noted that appellants in the present case were accorded a lower and more favorable valuation, both as to pasture land and waste land, than was given the taxpayer in the Tatton case.

Appellants’ seventh and eighth points attack the jury’s answer to Special Issue No. 6, stating that there was no evidence to support such answer and that the finding was contrary to the great weight of the evidence. Their ninth and tenth points state the same with reference to the jury’s answer to Issue No. 7.

Special Issue No. 6 reads:

“Do you find from a preponderance of the evidence that the Boards of Equalization followed a plan to value all pasture land in Aransas County at $100.00 per acre for ad valorem tax purposes for the year 1960?
“Answer: No.”

Special Issue No. 7 reads:

“Do you find from a preponderance of the evidence that except for the discount given St. Joseph’s Island the Boards of Equalization followed a plan to value all pasture land in Aran-sas County at $100.00 per acre for ad valorem tax purposes for the year 1961?
“Answer: No.”

It will be noted that Issue No. 6 did not exclude any pasture land in the county, not even appellants’ land on St. Joseph Island. Appellants did not object to the form of the issue. Since appellants’ island pasture land was valued by the I960 boards at $75.00 per acre for ad valorem tax purposes, the jurors were required to answer the issue “No”.

When appellees introduced in evidence their official records showing the assessment of the taxes against the property of appellants, together with the testimony of their tax assessor-collectors that the records showed that such taxes were due, delinquent and unpaid, a prima facie case for the validity of the assessed valuations and the collection of such taxes was made. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; City of Houston v. McCarthy, Tex.Civ.App., 371 S.W.2d 587, writ ref. n. r. e. Thereafter the burden rested on appellants to produce proof meeting the requirements of law to invalidate the assessments.

It was not sufficient in order to establish a defense that appellants prove that their property was overvalued, or that the taxes were excessive.

“The rule has been repeatedly announced that, in the absence of fraud or illegality, the action of a board of equalization upon a particular assessment is final; and, furthermore, that such valuation will not be set aside merely upon a showing that the same is in fact excessive. If the board fairly and honestly endeavors to fix a fair and just valuation for taxing purposes, a mistake on its part, under such circumstances, is not subject to review by the courts.” State v. Mallet Land & Cattle Co., 126 Tex. 392, 88 S.W.2d 471. See also to the same effect Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163; State v. Whittenburg, supra; State v. Houser, 138 Tex. 28, 156 S.W.2d 968.

Appellants’ attempt to invalidate the assessments of appellees, both in the trial court and on this appeal, is based on their complaint that the boards of equalization in 1960 and in 1961 illegally and arbitrarily, without any regard to the actual market value of the property, adopted a plan to value all pasture land in Aransas County at $100.00 per acre, and all wasteland at between $30.00 and $35.00 per acre, and that because of such invalid, arbitrary plan, appellants’ property was over valued and over assessed, and that their taxes were grossly excessive and unequal. No issue was requested or submitted concerning the wasteland.

The only evidence relied on by appellants as establishing such a plan was given by County Commissioner Sparks, and County Judge Wendel. Sparks testified that “the Board” (1960) wanted all pastureland kept at $100.00 per acre and that Pickett and Company recommended this, and were instructed “to proceed in that manner”. Wendel stated that in 1960 they attempted to place all ranchland at a hundred dollars an acre, and that in 1961 it was the same with the exception of possibly some discounts on some low land. Appellants in their brief state that this is the only testimony offered on these issues, and refer to no other evidence as tending to prove that appellees followed what appellants rely on as the illegal, arbitrary plan to value all pasture land in the county at $100.00.

Neither Sparks nor Wendel testified to any facts showing, or even indicating, that the equalization boards for either county or school district actually put any such plan in effect, or actually placed a value of $100.00 on all pasture land in Aransas County. The appraisers could not and did not make any final decisions on what value was actually to be placed on property for taxation purposes; their function was to appraise and advise. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378; Darby v. Borger Independent School District, Tex.Civ.App., 386 S.W.2d 572. There is no testimony that land of the value of less that $100.00 per acre or that land of a value of over $100.00 per acre, was valued for taxation purposes at $100.00 per acre by the boards of equalization, and assessed on that basis by appellee’s taxing authorities. In fact there is no evidence in the record that any pasture land in the county was actually valued by the boards or assessed by appellees on a basis of $100.00 per acre in either 1960 or 1961. The most that can be said is that Sparks, whose testimony in this regard is limited to the 1960 boards, testified that they wanted the pasture land kept at $100t00 per acre, and Wendel stated they attempted to place pasture land at $100.00 per acre, though he further testified that in. 1961 some low land pasture land was possibly valued at less. There is no testimony that these desires were accomplished in fact by the results of the appraisals, or by the later results on the tax rolls.

There was testimony that the figure of $100.00 per acre was used by the boards of equalization as a basis for arriving at-the market value to be placed on appellants’ pasture land on the island in 1960 and in 1961. The fact that this figure was reduced by both equalization boards to a reasonable market value of $75.00 per acre in 1960, and $70.00 per acre in 1961, due to disadvantages in the property’s location, productivity, and for other reasons, is convincing evidence that neither of the boards adopted an illegal, arbitrary plan to place a value on this property regardless of what they considered its actual market value to be. Though Special Issue No. 7 excluded the discount given appellants’ island pasture land in 1961, Wendel’s testimony, on which appellants rely, does not state that all other pasture land in the county was valued by the boards in 1961 at $100.00 per acre.

In the absence of evidence that such a plan of taxation as is depended on by appellants was actually adopted by ap-pellees’ boards of equalization, and was placed in effect on appellees’ tax records, in either 1960 or in 1961, we hold, not only that the evidence was sufficient to support the jurys’ answers to Special Issues Nos. 6 and 7, but that any other answer to either would not be supported by evidence.

In view of our disposition of this appeal, we do not find it necessary that we pass upon appellees’ counter proposition that by failing to appear before the boards of equalization after receiving due notice thereof in 1960, appellants are precluded from obtaining any relief in court from the tax assessments based on the boards’ valuations for that year.

By their eleventh point of error, appellants contend the trial court erred in failing to submit their specially requested Issues Nos. 1 and 3. Requested Issue No. 1 inquired as to whether the value of the waste land on St. Joseph Island was (adversely affected) (depreciated) because of the large amount thereof as compared to usable pasture land. Requested Issue No. 3 inquired as to whether there was pasture land in Aransas County having a cash market value in excess of $100.00 per acre as of January 1, 1960. The trial court properly refused to give such issues. The first issue requested, besides being duplicitous, was merely evidentiary of Special Issue No. 3 as given in the court’s charge, and inquires of no ultimate fact issue. As to requested Issue No. 3, the fact that there may be pasture land in Aransas County having a cash market value in excess of $100.00 per acre, without a further finding that such property was valued and assessed by appellees on a different basis from property of appellants, causing substantial injury to appellants, would be of no assistance to appellants. There was no evidence in the record to support such a finding.

Appellants’ twelfth point of error reads as follows:

“The trial court erred in rendering judgment against appellants upon ap-pellees’ assessment for the year 1960, because the evidence conclusively establishes that appellees agreed that the market value of St. Joseph Island was the same on January 1, 1960, and January 1, 1961, and had contracted with appellants to reduce the 1960 assessment to conform to the 1961 assessment.”

As has heretofore been stated, in October, 1960, after both boards of equalization had finished their work for 1960 and had adjourned, and after the tax collectors had sent their tax notices to appellants, representatives of the latter on learning of the increase in the valuations and taxes contacted tax officials of county and school district and convinced them that a mistake had been made in the acreage calculations with reference to usable pasture land and waste land. In connection therewith, county commissioner Sparks was asked on his deposition the following question, to which he made reply as stated:

Q. “Didn’t the Board tell Mr. Kirk-wood that an error had been made and the property had been overvalued and that if they would wait until ’61 it would be corrected and the Board would put the ’60 valuation the same as the ’61 valuation ?”
A. “Yes, sir.”

This is the evidence relied on by appellants to establish the “contract” mentioned in their point of error. No time when said “contract” was made is stated, although it must have been in October, 1960, or later, after the 1960 boards had adjourned. Though the county and the school district each had its own board of equalization, the question asks only generally as to “the Board”, without any other identification. If it be the contention of appellants that the “Board” of 1960 (whether the County “Board” or the school district “Board” is not stated) contracted to bind the “Board”, of 1961 to change and reduce the 1960 assessments, such an agreement is obviously null and void for the reason that it is beyond the power of one board of equalization to bind the actions of a future board. Boards of equalization are quasi-judicial fact-finding bodies, and their decisions are quasi-judicial in their nature. Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163. In order to set aside the findings of such a board, it is necessary to show either that the board had no jurisdiction, or that it acted unlawfully to the prejudice of the complainant. Victory v. State, 138 Tex. 285, 158 S.W.2d 760.

The boards of equalization for 1961 could not be bound by any such statement by Sparks. “The commissioners’ court is a court of record, and speaks through its minutes, and not by the mouths of the members of the body.” Judge Gaines in Gano v. County of Palo Pinto, 71 Tex. 99, 8 S.W. 634. There is no record of any such “contract” entered into by either of the two boards of equalization. Nor is there any evidence of compliance by appellants, since they have made no offer to pay the taxes as assessed for 1960, or 1960 taxes based on the 1961 valuations.

Appellants invoke Art. 7345d, V.A.T.S., as authorizing the reopening of the 1960 equalized assessment by a subsequent board of equalization. This act invests Commissioners Courts with authority to reopen, reconsider, correct and adjust assessments current or delinquent, and to reassess properties in cases where it is established that the former assessments are inequitable, excessive, out of proportion to taxable value or are discriminatory, or where the value of the property has since depreciated. If the application of the provisions of this statute was squarely before us by reason of the 1961 boards actually having attempted to reopen, reconsider, correct and adjust the valuations of the 1960 boards, which they did not attempt to do, we would be inclined to hold the act unconstitutional insofar as it authorizes reopening and reconsideration of valid assessments, as being in violation of Texas Constitution, Art. 3, Secs. 52 and 53, and Art. 8, Sec. 10, Vernon’s Ann.St. While we do not find where an appellate court has passed upon the constitutionality of the statute, the State Attorney General has issued a series of opinions ruling it unconstitutional and void in so far as it applies to valid assessments. Attorney Generals Opinions No. 0-930 (1939); No. 0-6257 (1944); and No. v-1517 (1952). See also Rowan Drilling Co. v. Sheppard, 126 Tex. 276, 87 S.W.2d 706. The valuation by the boards and subsequent assessment of this property in 1960, though probably a mistake was made in miscalculating the respective amounts of usable pasture land and waste land, was not invalid or illegal, and is not subject to collateral attack. State v. Houser, 138 Tex. 28, 156 S.W.2d 968; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569.

Opinions of the Attorney General are not binding upon the courts, and are not judicial precedents, but are persuasive and entitled to consideration, and we feel that the correct conclusion is reached in the aforementioned opinions. However, our action in overruling appellants’ 12th point of error is based primarily on the proposition that the evidence does not show that any such contract as is relied on existed.

By their thirteenth point of error, appellants say that the trial court erred in overruling their objections to testimony regarding improvements and personalty situated on the island, when the values thereof were not in issue, and the jury might be prejudiced by such testimony. Appellants in their brief do not refer us to the particular testimony introduced over their objections, nor do they point out the objections made or the rulings of the court. The statement in their brief refers very generally to extensive interrogation of three of their witnesses, and that is all. We therefore are unable from the brief to determine anything as to this point. We have carefully read the testimony of the witnesses referred to, and find no ruling by the court adverse to appellants concerning the introduction of any testimony of improvements and personalty on the island which we consider to show reversible error.

The point is overruled.

Appellants’ fourteenth point complains of alleged jury misconduct. Their amended motion for new trial having alleged such misconduct, and affidavits of jurors having been attached to such motion, the trial court at the hearing on said motion heard testimony on the issue. Seven jurors testified at this hearing. In ruling on this point, we shall be guided by the language of Justice Griffin, speaking for the Supreme Court, in Brawley v. Bowen, 387 S.W.2d 383, as follows:

“Where no express findings are filed, it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion and that no misconduct occurred. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932); Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App., 1960, writ refused, n. r. e.). If the evidence offered at the hearing on the motion for new trial is conflicting as to whether or not misconduct occurred, the decision of the trial court on the question is binding on appeal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961).”

One of the remarks supposedly made in the jury room was by juror Miller that S. W. Richardson was one of the wealthiest men in the world, and could pay the taxes, and that the school district could use the taxes. The testimony shows that such statement, if made, was heard by only two or three jurors, was not openly discussed by the jury, and was merely an idle remark not followed through. There is some conflict as to whether the remark was made. At any rate, such remark, not shown to have had any effect on the jury’s verdict, is not sufficient, in view of the trial court’s ruling, to show reversible error. Hauck v. Price, Tex.Civ.App., 374 S.W.2d 463, n. w. h.; St. Paul-Mercury Indemnity Co. v. Bearfield, Tex.Civ.App., 296 S.W.2d 956, writ ref. n. r. e.; Harris v. Levy, Tex.Civ.App., 217 S.W.2d 154, n. w. h.; Menefee v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 181 S.W.2d 287, writ ref. w. m.

Another alleged ground of misconduct is that several members of the jury-had been on the island, and used information gained by them personally to mention that an exhibit introduced by appellants to show the amount of waste land on the island was greatly exaggerated. We find a conflict in the testimony of the jurors on this matter. Some heard some discussion to such effect, so they said; others did not; and juror Le Blanc testified that a couple of times some of the jurors said they had been on the island, but the jury foreman told them that they were not supposed to relate any personal experiences, so they shut up. We find no harmful error in the record as to this. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556, writ ref. n. r. e. Appellants cite as jury misconduct the fact that some jurors discussed the possible value for hunting and fishing and other recreational activities on the island. As pointed out by one of the jurors, there was considerable testimony introduced on the trial with reference to use of the island property for these purposes and such discussion was not improper. Further, there was definite conflict of testimony as to whether hunting and fishing possibilities of the island was mentioned as an item of value of the land.

We have carefully read the evidence given on the motion for new trial, and have considered all of appellants’ charges of misconduct of the jury, and have concluded that, in view of the trial court’s ruling on appellants’ motion for a new trial, no material misconduct was established from which injury probably resulted to appellants. Rule 327, Texas Rules of Civil Procedure; Brawley v. Bowen, Sup.Ct., supra; Cree v. Miller, Tex.Civ.App., 255 S.W.2d 565, writ ref. n. r. e.; Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364; Allan v. Materials Transportation Company, Tex.Civ.App., 372 S.W.2d 744.

Appellants’ fourteenth point of error is overruled.

However, even a finding on our part that jury misconduct materially influencing the verdict in the particulars complained of occurred, if we were so inclined to hold, would not affect the judgment entered by the trial court. Earlier, in this opinion we have held that appellants failed to produce evidence raising a fact issue upon the very basic proposition on which their defense rested, i. e., that the valuations upon which the assessments were based were made pursuant to an invalid, arbitrary and fundamentally erroneous method of valuation used by appellees and their boards of equalization which resulted in placing an unequal and discriminatory share of the tax burden on appellants’ property. We further held that by failure to offer any evidence of either market value or assessed value of other tracts of pasture land or waste land in the county by which to make a comparison with the valuations and tax assessments placed on appellants’ property, they failed to raise an issue of fact that their taxes were unequal or excessive, or that they suffered substantial injury.

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


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    AMERICAN CENTRAL INSURANCE COMPANY, Appellant, v. James R. MELTON, Appellee.
    No. 16476.
    Court of Civil Appeals of Texas. Dallas.
    March 26, 1965.
    Rehearing Denied April 9, 1965.

      Touchstone, Bernays & Johnston and Webber W. Beall, Jr., Dallas, for appellant.
    Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

James R. Melton brought this action against American Central Insurance Company seeking to recover medical expenses under the provisions of an automobile liability insurance policy issued to Melton by the insurance company. The insurance policy, under “Medical Payments” provided, inter alia:

“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral expenses.”

Plaintiff Melton alleged that he and his wife had been involved in an automobile accident on March 12, 1962 wherein each had allegedly sustained personal injuries and had incurred medical expenses in excess of $1,000 each for treatment therefor. The insurance company answered with a general denial.

The jury, in answer to special issues inquiring as to the amount of the reasonable expenses necessarily incurred for medical services by both Mr. and Mrs. Melton, found such amount to be $800 and judgment was rendered for the plaintiffs in that sum, together with $200 attorneys’ fees, and $96 penalties. Defendant’s motion for judgment non obstante veredicto, based upon the absence of evidence to support the jury’s answer to the medical expense issues, was overruled. Defendant appeals from that action, asking us to reverse and render the judgment of the trial court. Plaintiff also appeals, asking us to reverse and remand the judgment, based upon alleged procedural errors, and also for the reason that the verdict is manifestly inadequate.

Special Issue No. 2, as submitted to the jury, inquires:

“What do you find from a preponderance of the evidence to be the amount of the reasonable expense, if any, incurred within one year from the date of the accident in question for necessary medical services, if any, to James R. Melton?”

Special Issue No. 4 was the same question as to the services rendered Mrs. Melton. Appellant presents six points of error which contend that the trial court erred in refusing to set aside the jury’s verdict in answer to each of these special issues, and to render judgment non obstante veredicto for appellant, because there was no evidence, insufficient evidence, and no competent evidence of the reasonableness and necessity for medical services to Mr. and Mrs. Melton. Since all of appellant’s points relate to the action of the court in refusing its judgment non obstante vere-dicto such points are “no evidence” points inasmuch as the trial court would not have been legally authorized to grant the motion for judgment non obstante veredicto unless there was no evidence to sustain the answers of the jury to Issues 2 and 4. Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400; Burbridge v. Rich Properties, Inc., Tex.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; Quarles v. Quarles, Tex.Civ.App., 386 S.W.2d 337. Appellant’s Points 1 and 2, being “no evidence” points, will be discussed presently. Appellant’s Points 3, 4, 5 and 6, being “insufficient evidence” points, must be overruled on the authority of the above cited cases.

Being a “no evidence” situation, we have reviewed appellant’s Points 1 and 2 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. Having so examined this question of law we are in agreement with appellant that there is no evidence of probative force of the reasonableness of the medical services that were rendered Mr. and Mrs. Melton. As recited above the insurance contract expressly provided that the company would be liable to pay the insured reasonable medical expenses necessarily incurred as a result of an accident. Melton, in his pleadings, alleged an itemized list of medical expenses for which he sought a judgment. The insurance company denied these items. This cast the burden of proof upon Melton to prove by a preponderance of the evidence the reasonableness of the medical expenses which had been necessarily incurred by him and his wife growing out of the accident in question. In an effort to meet this burden of proof only two witnesses were offered by appellee and those were Mr. and Mrs. Melton. Several attempts were made to elicit testimony from these witnesses as to their opinions regarding the reasonableness of the medical expenses. On each occasion objection would be interposed to the effect that Melton and his wife were not shown to be qualified to express an opinion relating to the reasonableness of the items and on each occasion the trial court sustained such objection and refused to allow Mr. and Mrs. Melton to render an opinion concerning this vital question. The trial court did permit Mr. and Mrs. Melton to testify what they had actually paid in medical expenses but limited this testimony to showing the amount paid. In taking this action the court said:

“I will allow them to prove what they paid out in expenses, but if they are reasonable, I don’t believe they have qualified, certainly to the extent of knowing. I don’t believe they could qualify as knowing if they were reasonable. I am going to let them testify to the amount of the bill, but as to the reasonableness, I would have to have a showing that they had more than the common knowledge that an ordinary person would have.”

We think the trial court was correct. These expenses involved technical expenses such as x-rays, orthopedic care, physiotherapy, etc. These are matters outside the scope of the knowledge of the ordinary layman and must be established by those who are cognizant with such matters. The trial court heard the testimony of both witnesses as to their experience in matters of this kind and concluded that neither possessed the necessary qualifications to express an opinion. The trial court is vested with broad discretion in determining whether a witness offered as an expert possesses the necessary qualifications and this discretion is not subject to review, except for an abuse thereof. Long v. Surls, Tex.Civ.App., 275 S.W.2d 728. We see no abuse of discretion revealed in this record.

We also think the trial court was correct in allowing evidence of actual payment of medical expenses but in denying that such constituted evidence of reasonableness thereof. Our Supreme Court, in Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, specifically held that it is now well settled in Texas that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable. See Annotation, 82 A.L.R. 1325; Pelham Mfg. Co. v. Ridlehuber, Tex.Civ.App., 356 S.W.2d 502.

There being nothing in this record but the amount of medical expenses paid, and there being no evidence of probative force concerning the reasonableness thereof, we find no basis for the answers of the jury to Special Issues 2 and 4. Appellant’s Points 1 and 2 are sustained.

Appellee Melton presents five cross-points of error, seeking to reverse the judgment of the trial court. In his first cross-point he complains of the action of the trial court in refusing to permit Mr. and Mrs. Melton to testify as to the reasonable value of the medical services rendered to them. It is argued that medical services, hospital bills, drug bills and physical therapy are matters of every day experience and that the average layman is familiar with the reasonableness of the charges for such services. We cannot agree. The matters under controversy are not such as to be commonplace. Values of such services are within the peculiar knowledge of those who deal in such things and can express a professional opinion. Cases dealing with expression of opinions by laymen concerning the value of land or animals have no relevancy in this situation. As we stated above the trial court exercised its discretion in refusing to permit these witnesses to express an opinion and such refusal will not be disturbed by us as an abuse of discretion.

In his second, third and fourth cross-points appellee complains concerning the action of the trial court in permitting appellant to cross-examine Melton relating to other lawsuits and claims arising out of the accident in question; in cross-examining Melton on the matter of notes made by him in preparation for a lawsuit; and in cross-examination concerning the amount of Melton’s income in the year prior to the accident. We have carefully examined the record relating to these three procedural complaints and find that in each instance the cross-examination was limited by the trial court to impeachment. Since all of the matters were clearly for impeachment purposes we see no reversible error reflected. The trial court has a large degree of discretion in determining the manner and extent of cross-examination and we do not feel that there has been any abuse of such discretion here. Varnado v. City of Groves, Tex.Civ.App., 329 S.W.2d 100; Grocers Supply Co. v. Stuckey, Tex.Civ.App., 152 S.W.2d 911.

By his fifth cross-point appellee complains that the jitry findings of Issues 2 and 4 are contrary to the overwhelming weight and preponderance of the evidence. We need not comment further on this cross-point since we have already held that there is no evidence of probative force to justify the answers of the jury to these special issues.

Both parties admit that the trial of this case was lacking in perfection. It is our judgment that in the interest of justice this cause should be reversed and remanded for a new trial, rather than reversed and rendered as prayed for by appellant. 4 Tex. Jur.2d 522, § 914, and cases therein cited.

The judgment of the trial court is:

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Betty HENDRICKS et vir, Appellants, v. Alton B. CURRY et ux., Appellees.
    Nos. 16610, 16611.
    Court of Civil Appeals of Texas. Fort Worth.
    March 19, 1965.
    Rehearing Denied April 16, 1965.

      Coleman & Whitten, and Royce Whitten, Denton, for appellants.
    G. H. Kelsoe, Jr., Dallas, for appellees.
   MASSEY, Chief Justice.

Presented are two separate appeals from judgments of the District Court of Denton County, Texas. One judgment constituted an adjudication that a certain infant was a “dependent child”; the other constituted an adjudication decreeing an adoption of the" same infant by “adoptive parents”. Each adjudication was against the contentions and over the protests of the natural mother of the child, coupled with a denial to her of that custody for which she prayed. Both were made pursuant to a combined trial before the court without a jury. On appeal we have two separate transcripts, but a single statement of facts.

We affirm the judgments of the trial court.

Aside and apart from any question of the propriety of the trial court’s adjudication of dependency, the right of custody of the child (as between the parties) was left in the prospective adoptive parents who had theretofore received and for sometime maintained the child. They had originally acquired custody through the initiative and by the consent of the natural mother. In such an instance, when the natural mother invokes the jurisdiction of the court, she invokes its equitable discretion as well. The court is called on to decide the question of custody under the test: “Would the best interest of the child be served by granting the relief prayed for?” Only in the event of an abuse of discretion would the decision of the court be reversible on appeal. See this court’s opinion in Herre v. Morris, 251 S.W.2d 260 (Fort Worth Civ.App., 1952, no writ hist.), and the authorities cited therein. See also Hendrick v. Voss, 334 S.W.2d 308 (Dallas Civ.App., 1960, no writ hist.), and authorities cited at end of page 314 and beginning of page 3Í5. In the instant case there was no abuse of discretion and the court’s refusal of that, change of custody sought by the natural mother would not be disturbed.

The fact that the natural mother may not regain custody would not foreclose her right “as an interested person” to oppose any adjudication that the child was dependent or neglected or to oppose a decree of adoption, particularly if her opposition to the dependency proceedings should prevail. If she prevailed in these, she could “elect” whether or not she would defeat any proposed adoption by granting or withholding her consent.

Appellants, above styled, were the natural mother of the child in question and the husband whom she married after she had initiated proceedings directed toward obtaining custody and preventing adoption. In the opinion we will ordinarily make reference to the interests of these parties in a use of the term “natural mother”. Appel-lees were for a time “prospective” adoptive parents, later the adoptive parents.

Before the time for the infant to be born the natural mother, then an unmarried minor child herself, initiated (or consented to the initiation of) arrangements whereby her baby, when born, would be taken by prospective adoptive parents. The whole of the evidence supported the conclusion of the trial court that after the baby was born the natural mother did freely consent that it be taken and delivered to other persons. At her specific request the identities of such persons were not to be revealed to her. All arrangements were made through an intermediary by the name of Lawrence. Although not entirely clear from the record it is indicated that Lawrence was acting as the agent for both the natural mother and for the adoptive parents, with the consent of all. In any event the natural mother left him free to deliver the newborn baby to individuals of his choosing, without direction, restriction or condition made by her. At the time, the natural mother executed, in writing, her consent for the adoption of the child. She was made aware of the fact that the law required a six months’ waiting period in adoption cases. In other words she knew that the baby would not be “adopted” for at least six months.

Circumstances of the instant case were materially different from those in Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31 (San Antonio Civ.App., 1959, writ ref., n. r. e. at 160 Tex. 274, 329 S.W.2d 83). There the natural mother, — apparently ready, willing and able to finance her confinement and incidental expenses,— was “talked out” of assuming them and “talked into” yielding up her baby. Promptly after the birth of the baby the natural mother began to do all in her power to gain custody. Here the natural mother was not ready, willing and able to assume financial responsibility for any kind of care. She was not “talked into” yielding up her baby, but did so voluntarily. She took no steps to gain custody of her baby for some five months, during which she evidenced no willingness to discharge any parental responsibility — or to personally afford or provide proper parental care of guardianship for the child.

The entire proceedings of the instant case were those usual in instances where individuals attempt these adoptive transactions, i. e., having the prenatal care and hospitalization and delivery services arranged, etc., without participation by any agency licensed by the state. Hazards thereof are well known, but nevertheless continue to be risked. In this instance there were no papers signed by the natural mother in connection with any anticipated judicial proceedings relative to having the child declared “dependent”. There had been no intention to have an adjudication to this effect.

Ordinarily, procedure thus risked results in an untroubled and uncomplicated adoption. The instant case was an exception. After the child had been in the care and custody of the “prospective adoptive parents” for a period of five months the natural mother wrote a letter to Mr. Lawrence in which she expressed the desire to retract her consent theretofore given for the adoption of the child. Mr. Lawrence prevailed upon her to delay action. He was unable to persuade her to abide by her original agreement. She determined to do all things necessary to regain the child. She learned the identity of the “prospective adoptive parents” and initiated habeas corpus proceedings in Dallas County.

Although inconclusive and immaterial to the disposition of the case, it would appear that such action on the part of the natural mother threw the prospective adoptive parents into a state of near panic. Although they resided in a fine home in Dallas County, they moved out of it and established residence in an apartment in Denton County. With somewhat unseemly haste they caused to be filed in the District Court of the latter County the written petition required to be filed in proceedings anticipated to culminate in a decree of the court declaring a minor to be a “dependent child”. Without notice to the natural mother (who was trying to prosecute the habeas corpus proceedings in Dallas County) a decree of the court was obtained which adjudicated the infant to be a “dependent child”.

Constitution of Texas, Art. V, “Judicial Department”, § 8, Vernon’s Ann. St., “Jurisdiction of District Court”, provides that the District Court shall have “original jurisdiction and general control over * * * minors under such regulations as may be prescribed by law.” This means that as and when necessary the court has the authority to exercise custodial control, etc., as might be indicated for the protection of the interest of the people of the state, in particular the minor directly affected. The qualifying phrase, “under such regulations as may he prescribed by law” has not the effect to delay or defer the authority so conferred upon the District Court, but rather constituted a notice of the conferring of authority upon the Legislature to regulate and place limitations upon the rather broad authority conferred upon the court. Of course, it is plain to be observed that the Legislature became endowed with the authority to enact laws, both mandatory and directory, bearing upon the subject embraced by the Constitutional provision.

Such were those under Title 43, Vernon’s Ann.Tex.Civ.St, Art. 2330, “Dependent or neglected child” et seq., relating to which minors fall within the definition, how they should be dealt with, and in effect to so regulate judicial proceedings affecting such minors as to place a limitation upon the authority of the District Court. These statutes are not conclusive, nor exclusive, of the ordinary powers of the courts to determine the best interests of the child. They are in effect in aid of those powers, and cumulative of other remedies. Speer’s Marital Rights in Texas, 4th Ed., § 118, “(Custody and control) — Dependent or neglected children.” Thereunder it is prescribed that a child under sixteen years of age, coming within certain qualifications and found in certain circumstances, should be adjudged a “dependent child”. An infant may not be adjudicated a “dependent child” in any manner other than as provided by these statutes.

Adjudication of such “dependency” was prescribed to be in writing. The court was charged with the duty to turn the child so adjudicated over to individuals or agencies as a “dependent child” for custodial purposes. Duties were prescribed to be devolved upon the court making the adjudication. It is clear from the statutes that preexisting custodial rights of the parents or guardian of such a child are nullified by such an adjudication, and one effect thereof is that the child becomes a ward of the court, which is charged with the primary responsibility of custody. Although the court is empowered to confer upon another, or others, custodial rights over such a child the court cannot divest itself of the primary responsibility therefor. He to whom custodial rights might be conferred by the court is exposed to loss thereof by order of the court. Indeed, it is to be noted that the court may confer custodial rights over such a child upon the parents themselves, who may have been the persons responsible for the child’s “dependency”. From these provisions it is evident that the proceedings prescribed by the statutes were to afford, in the public interest, additional protection to dependent and neglected children within this state by divesting all persons with any presumptive priority of custodial rights and making the court itself the custodian. So long as there is no adjudication which is outside of, and other than or in addition to, that contemplated by Art. 2330, et seq., the child continues to be a “dependent” child, and the primary right and responsibility for the care and custody belongs exclusively to the court.

It is not intended to say that the “dependency” proceedings might forever settle the status of the child as a “dependent child”, for it is noted in Art. 2337, “Custody of child”, that a child who has so been adjudicated may lawfully be restored to the parents or guardian upon proper proceedings. Otherwise stated, the “dependency” proceedings may by order of the court be suspended or even vacated, set aside and held for naught, where it is made to appear that the best interests of the child so require. Obviously, in connection with such a proceeding it could be that the status of the child would be restored to that existent prior to the institution of any “dependency” proceeding. In such a proceeding there could be no investiture of custody (primary right of legal custody) in any new person. During the pendency of the “dependency” of a child, custody of the child might be in a “new” person, but such custody could not be primary. It would be dependent upon and subsidiary to the primary custodial right existent in the court.

There is, however, a means provided by law under which the primary right of legal custody of such a child could become vested in a “new” person. Under V.A.T.S., Title 3, “Adoption”, Art. 46a, “Proceedings for adoption, hearing and rights of adopted child”, § 6, “Consent of parents and child; exceptions”, it is provided that a minor child may be adopted without the consent of the natural' parents, etc., in instances where their “parental rights have been terminated by order of the Juvenile Court or other court of competent jurisdiction.” In such an instance it would be only the consent of the court which would be necessary to adopt such a child, and by provision of § 9, “Status of adopted child” (Art. 46a) the adoptive parents would assume relationship to the child as original natural parents, and the child’s status would become the same as that of a child naturally born to said parents, — all pursuant to the decree of adoption.

As heretofore noted, entry of a proper decree that a child was “dependent” automatically (and pursuant to statute, Art. 2337) terminates the parental custodial rights theretofore appertaining to said child. In the event of subsequent adoption (coupled with the decree of adoption contemplated in said cases under Art. 46a), there is a resultant termination of the “dependency” proceedings under Art. 2330 et seq. The “dependency” proceedings are not vacated nor suspended; they are ended and terminated by operation of the law as embodied in Art. 46a.

As applied to the instant situation and with reference to Art. 2330, we are obliged to ascertain the propriety of the trial court’s adjudication that the child in question was a “dependent” child. We must consider the facts and circumstances of the situation and test them as to whether they present a case wherein the child might properly be said to have been “dependent or neglected” at the material time. “What is the material time for purpose of consideration in the determination of whether (under Art. 2330, et seq.) the child in question was (1) dependent upon the public for support, (2) destitute, (3) homeless, (4) abandoned, or (5) had not proper parental care or guardianship?”

In any case there seems to be little question but that in the tests to be made of Nos. (1) to (S), inclusive, above outlined, we are obliged to view the condition of the child — in connection with its circumstances — from the standpoint of the natural mother who is contesting the propriety of any adjudication that her child was “dependent or neglected”. In other words the question would be: “From the standpoint of the natural mother had she allowed the child to become destitute, homeless, abandoned, dependent upon another or others for support; or — had she failed to afford or provide proper parental care or guardianship for the child?” Spangler v. Breashears, 359 S.W.2d 206 (Texarkana Civ.App., 1962, writ ref., n. r. e.).

We have no doubt but that fact questions were raised in relation to the foregoing if we consider the time between that of the birth of the child in question, and the time —some five months later — when the natural mother first published (in so far as the adoptive parents were concerned) her desire to undo a situation which she had voluntarily initiated, or to which she had consented. Of course, her primary objective was to gain custody of the child. In that observation it is possible that we err; and it may be that her primary objective was to prevent its being adjudicated “dependent”, or to prevent its adoption in any event.

Viewed from the standpoint of the natural mother her voluntary relinquishment of the infant to persons unknown (under an agreement which contemplated the permanent parting with the child by the mother as custodian in respect to control, and as one responsible for the expenses incident to the care and nurture), with no right retained by her — not even to enforce care, nurture, etc., expected to be furnished by the new custodian — entitled the trial court to factually conclude that she had abandoned it; had rendered it dependent upon public or private charity for its food, clothing, and shelter; and dependent upon another, or others, for parental care or guardianship, during the first five months of its life.

The term “abandonment”, as used in the adoption statutes, has been held to mean “an absolute relinquishment of the custody and control of the child and the willful purpose and intention to relinquish the benefit of the rights to which the parent is entitled under the law.” Platt v. Moore, 183 S.W.2d 682 (Amarillo Civ.App., 1944, writ ref., w. o. m.); 1 Tex.Jur.2d 707, “Adoption”, § 25, “ * * * Abandonment”. We believe it should have the same meaning under the dependency statutes.

Although contrary to the decision in Pettit v. Engelking, 260 S.W.2d 613 (San Antonio Civ.App., 1953, writ ref., n. r. e.); Hull v. Hull, 332 S.W.2d 758 (San Antonio Civ.App., 1960, no writ hist.); and De Fur v. Speers, 369 S.W.2d 850 (Dallas Civ.App., 1963, no writ hist.), we nevertheless hold that where the acts and/or omissions of the natural parent amounted to proximate cause (s) of the conditions and circumstances surrounding the child, or in which the child was found, — when and on account of which said child was given help, aid and succor, or was sheltered and protected and afforded care and custody by any person or agency or legal entity — such is legal evidence warranting and justifying the court’s order and decree at a later time adjudicating the status of such infant to be that of a “dependent” child.

Furthermore, we deem it immaterial whether the individual filing or inspiring the filing of the petition (setting forth facts constituting the child “dependent” or “neglected” under Art. 2331) might have done so with the hope of later adopting the child. Proceedings under Art. 2330 et seq. are to adjudicate the “status” of a child.

Dependency actions are frequently based upon unjustified and unreasonable mistreatment, either direct or brutal or passive (as in the case of neglect where the child is left unattended for long hours). In either event the mistreatment will in nearly every instance no longer be occurring at the time the petition setting forth facts constituting the child “dependent” or “neglected” is filed. By this time a public agency will have assumed custody of the child. The very acts or omissions provable upon the hearing will necessarily relate to a time antecedent to the time the “dependency” petition was filed. That being true the question is posed: “Over how much antecedent time may evidence be receivable in the determination of whether conditions (presently) exist justifying a decree of dependency?” The answer must lie in the discretion of the trial court. A test of the efficiency of the evidence must include an examination into the matter of whether there has been an abuse of such discretion.

We believe that where the evidence received relates to such acts and/or omissions on the part of one who objects to the adjudication of dependency,- — which acts and/or omissions amounted to proximate cause(s) of the very conditions which rendered the child “dependent” or “neglected”, — the trial court should be entitled to consider such evidence. It is our opinion and holding that such evidence has sufficient probative force and effect to support a decree adjudicating the child a “dependent child” under the statute.

On the trial below, from which the appeals) were taken by the natural mother, the trial court ruled that she was obliged to carry the burden of proof on the hearing in the matter of “dependency”. She did proceed to introduce evidence in discharge of such burden- — -under protest. The proceedings were before the court. The record reflects that such evidence as was available to each of the parties was introduced. In other words a full hearing was had. In the court’s findings of fact and conclusions of law it was shown affirmatively that the decision would have been the same regardless of which side was obliged to discharge the burden of proof.

We agree that the burden of proof in the course of the proceedings below should not have been placed upon the natural mother. At least such would be true on the matter of “dependency”. However, in view of the fact that proceedings involving a full hearing were before the court without a jury — and in view of the facts reflected in the court’s findings of fact and conclusions of law, no reversible error resulted. Texas Real Estate Commission v. Sandefur, 279 S.W.2d 954 (Fort Worth Civ.App., 1955, no writ hist.).

When the initial hearing was held, pursuant to which the child in question was adjudged “dependent”, without notice to the natural mother, the hearing was upon “dependency proceedings” initiated in Den-ton County but heard (on the same day) in Cooke County. (Cooke and Denton Counties together comprise the 16th Judicial District Court. The regular judge of that District made the adjudication at the initial hearing.) It is contended by the natural mother that the court was without jurisdiction to make the adjudication,— wherefore it was void and of no effect.

We overrule the contention. It is frequently necessary and absolutely essential to an infant’s welfare that a decree be promptly entered adjudicating it to be a “dependent child”. Sometimes the very life of the infant would depend upon such an order. That the judge is holding court in a county other than that in which dependency proceedings are instituted, but within his district, would not render the court helpless to act. The judge, as the court, has authority and jurisdiction to act. And if he signs a decree of dependency, though it be without notice to the parents who consider themselves aggrieved, it is valid — subject only to the right of the parents to a full hearing in a subsequent proceeding on the issue — as to whether the child was in fact a dependent or neglected child. Broome v. Edna Gladney Home, 295 S.W.2d 266 (Fort Worth Civ.App., 1956, no writ hist.). In the instant case the complainant, the natural mother, did have “a full hearing in a subsequent proceeding”. It is from the judgment (s) in said proceeding that the appeal (s) have been taken to this court. Any prejudice which might have theretofore existed was cured.

From what has been said in our discussion to this point all of the material points of error are resolved against the contentions of the natural mother. We have refrained from discussing other points which in our view do not have any necessary relation to controlling issues of fact. They had been severally considered and are severally overruled. As applied to the issues of fact upon which findings were made, and as applied to the essential conclusions upon the law on the part of the court, we believe that there was ample evidence to support the findings of fact so made. The conclusions of law were correct. In other words the adjudication that the child was a “dependent child” was supported by adequate evidence having probative force and effect; and the fact findings upon which the court made legal conclusions perforce which the adjudication was made were not against the great weight and preponderance of the evidence. The same thing would properly he said with reference to the court’s decree of adoption.

Judgment (s) are affirmed.


author: RENFRO, Justice.

text:
    Fred McCOWN, Appellant, v. Bill OWEN, d/b/a Bill Owen Automotive Service, Appellee.
    No. 16616.
    Court of Civil Appeals of Texas. Fort Worth.
    March 12, 1965.
    Rehearing Denied April 16, 1965.
    Elton M. Hyder, Fort Worth, for appellant.
    Horace B. Sessions, Fort Worth, for ap-pellee.
   RENFRO, Justice.

Plaintiff brought suit against defendant in the nature of a verified account. An exhibit marked “A”, containing 18 separate items, was attached to the petition. Defendant filed a sworn denial in which he stated he might owe a small amount of money, but due to conflicting statements by plaintiff was unable to ascertain the exact amount, that he had fully paid a number of the items claimed by plaintiff, that three designated items were so “botched” up as to be valueless to plaintiff and concluded “Except as hereinabove stated, defendant denies the verified account of plaintiff filed in this cause, and states that same is not just or true in whole or in part, and that defendant does not owe same or any part thereof * * *."

Plaintiff filed a motion for summary judgment, attaching two affidavits wherein the affiants stated the work represented by the items in the exhibit had been done and that defendant owed plaintiff $363.64 therefor. Defendant filed a sworn reply in which he swore that he did not owe the alleged indebtedness, that a part of the indebtedness had been paid, that the work was valueless, and that the plaintiff’s claim was not just in whole or in part.

The court held that the pleadings and the affidavits showed an absence of any material fact and rendered judgment for plaintiff for the indebtedness plus Seventy-five ($75.00) Dollars attorney’s fee.

On appeal defendant contends material issues of fact were raised by his answer to the suit and his reply to the motion for summary judgment.

We agree.

The sworn account rule expressly provides that verified accounts will not constitute prima facie evidence if the resisting party files a sworn denial. The filing by the defendant of his counter affidavit denying the justice of a sworn account has the effect of neutralizing'the plaintiff’s affidavit; the plaintiff’s account stands as though it had not been verified, and its character as prima facie evidence is destroyed. The burden then rests on the plaintiff to prove his case as at common law.

We have concluded that defendant’s sworn denial was sufficient to neutralize plaintiff’s affidavit and that his answer to the motion for summary judgment was sufficient to put in issue the justness of all or a part of plaintiff’s claim. Tucker v. Neal Oil Corp., 255 S.W.2d 302 (Galveston Civ.App., 1953, no writ hist).

It was error for the court to determine a reasonable attorney’s fee, even if plaintiff had conclusively established his right to recover on the verified account. Nothing was presented to the court concerning attorney’s fee except the allegation in plaintiff’s original petition that “* * * Plaintiff is entitled to statutory attorney’s fees in the amount of $135.00, which is a reasonable amount therefor, as provided for in Art. 2226, V.A.T.S.”

Cases dealing with the fixing of attorney’s fees by the trial judge when acting as the trier of fact have no application to a summary judgment proceeding. Himes v. American Home Fence Co., 379 S.W.2d 290 (Sup.Ct., 1964).

Reversed and remanded.