author: GREEN, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Katherine Solis RIPKE et al., Appellees.
    No. 327.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 21, 1968.
    Rehearing Denied April 18, 1968.

      Carter, Stiernberg, Skaggs & Koppel, Jack Skaggs, Harlingen, for appellant.
    Walter C. Hasse, Brownsville, for Ripke.
    Cox, Wilson, Duncan & Clendenin, Bas-com Cox, Brownsville, for Model Laundry & Dry Cleaning.
   OPINION

GREEN, Chief Justice.

This appeal is from a judgment in a condemnation suit tried before a jury in which The State of Texas is plaintiff and Katherine Solis Ripke, Trustee for Victoria Catherine Ripke, a minor, as owner, and Model Laundry & Dry Cleaning Company, Inc., as leaseholder, are defendants. The appeal will be determined on the proposition raised by appellant’s third point of error, which reads:

“This Honorable Court should reverse and remand this cause for a new trial, because the trial Court was unable to make a statement of facts in accordance with Rule 377(d), and Appellant has, without fault on its part, been deprived of a statement of facts with which to present to this Court material points of error on appeal.”

Both appellees reply in their separate briefs by counter-points to the effect that the judgment should not be reversed because the failure to have a statement of facts was due to the negligence and fault of appellant, and to its failure to take the steps required by law to secure a statement of facts.

We sustain appellant’s third point.

This cause went to trial in the County Court at Law of Cameron County without a reporter or any recording device to make a record of the testimony, and proceeded in that manner for about a day and a half during which a number of material witnesses were heard. After such time official court reporters were secured to record the remainder of the evidence. Jury verdict was returned into court October 6, 1966, and the judgment was signed by the trial judge October 21, 1966. Appellant’s amended motion for new trial was overruled January 5,1967, after which date appellant had sixty days to file in the appellate court a transcript and statement of facts which time was extended by order of this Court to April 6, 1967. The efforts of appellant’s counsel to secure a statement of facts are set forth by the findings of the court in appellant’s Bill of Exceptions No. 1, duly signed and certified to be correct by the trial judge, as follows:

“Upon the hearing duly held by the Court on Plaintiff’s Motion for Statement of Facts in the above numbered and entitled cause on the 2d day of March, 1967, at which hearing the Court overruled said Plaintiff’s Motion for Statement of Facts, the Court, in connection therewith, finds:
“(1) That a portion of the testimony heard by the Court during the trial of this cause was transcribed by the official Court Reporter of the 107th District Court of Cameron County, Texas, and a portion of said testimony was transcribed by the official Court Reporter of the 138th District Court of Cameron County, T exas;
“(2) This Court does not have a Court Reporter assigned to it on a regular basis;
“(3) During part of the trial of this cause, the three official Court Reporters for the three District Courts of Cameron County, Texas (the 103rd, 107th and 138th) were all unavailable and a portion of the testimony given by several of the witnesses during the trial of this cause was not transcribed by any official Court Reporter;
“(4) Plaintiff has caused to be prepared in one volume a proposed Statement of Facts containing the written reproduction in question and answer form of all of the testimony transcribed during the trial court of this cause by the official Court Reporters of the 107th and 138th District Courts respectively, and in written narrative form prepared by attorneys for the State the testimony of the various witnesses which was not transcribed by said official Court Reporters;
“(5) On February 9, 1967, Plaintiff presented separate copies of its proposed Statement of Facts to counsel for each Defendant;
“(6) The Plaintiff and Defendants have disagreed upon said proposed Statement of Facts, and Plaintiff has moved the Court to approve its proposed Statement of Facts, or, in the alternative, to settle any differences between the parties as to whether Plaintiff’s proposed Statement of Facts truly discloses what occurred in the trial Court during the trial of this cause, and to make a Statement of Facts to conform to the truth, under the provisions of Rule 377, Texas Rules of Civil Procedure;
“(7) The original of Plaintiff’s proposed Statement of Facts was filed in the papers of this cause with the Clerk of this Court on February 23, 1967, and such proposed Statement of Facts was, on March 1, 1967, presented to the Court for approval, or, in the alternative, to be made by the Court to conform to the truth;
“(8) The Court announced at the hearing held on March 1, 1967, that he would not approve said Plaintiff’s proposed Statement of Facts because the same was not approved by all of the parties to the cause and the Court was unable to conform same to correctly reflect the testimony given by the witnesses at said trial, for the reason the Court did not have any independent recollection of the testimony given by the various witnesses during the four days of trial over four months ago, or sufficient notes thereof;
“(9) Thereafter, by agreement of the parties, another hearing was set for this 2nd day of March, 1967, and the Court, after presentation and consideration of Plaintiff’s Motion for Statement of Facts, overruled the same by written order dated March 2, 1967, for the reasons set out in Paragraph (8) above.”

Thereafter, appellant filed in the trial court a motion for mistrial, alleging that it had followed the procedure set forth in Rule 377, Texas Rules of Civil Procedure, for obtaining a statement of facts and could not be compelled to appeal without one, and was, therefore, entitled as a matter of law to a new trial. This motion was dismissed by the trial court March 6, 1967, for want of jurisdiction. Appellant then filed in the 13th Court of Civil Appeals its petition for leave to file an application for a writ of mandamus to require the trial court to grant a new trial. Leave to file was denied by this Court without written opinion on March 23, 1967. The trial court by order dated February 17 granted appellant’s motion to send up original exhibits, and ordered the court reporter of the 107th District Court to prepare and cause to be filed such exhibits with a proper index thereof. This has been timely filed in this Court. On March 30, 1967, appellant filed in this Court a properly certified transcript and two volumes containing the proceedings of March 2 and 10, 1967, on the motions mentioned above duly approved by the trial court. It also submitted for filing the proposed statement of facts signed only by appellant’s attorneys and not approved by either of appellees’ attorneys or by the trial judge. This latter volume was not filed by our clerk, but was marked as “Rc’d but not filed as not agreed to by counsel.” Appel-lees timely filed their motions to strike this proposed statement of facts and to dismiss the appeal. The motion to dismiss the appeal was overruled and the motion to strike was taken with the case. Said proposed statement of facts, because it is approved by neither appellees’ counsel nor the trial court, and because proper objections to the filing thereof were timely made by appellees, is not properly before this Court and can not be considered by us, and appellees’ motion to strike it from the record is sustained. Thus appellant is without a proper statement of the evidence introduced on the trial of this cause.

Rule 377, T.R.C.P., now governs the matter of securing a statement of facts for appellate purposes. The duty of the trial court to settle differences between the parties as to whether the record truly discloses what occurred is set forth in subdivision (d) of Rule 377 as follows:

“(d) Approval of Trial Court Unnecessary. It shall be unnecessary for the statement of facts to be approved by the trial court or judge thereof when agreed to by the parties. If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.”

Where no court reporter was available, as often occurs in the trial of contested causes in the county court, or where the parties disagree on the statement of facts and it becomes necessary under Rule 377 (d) that the trial court settle their differences, or prepare a statement of his own, the trial court is authorized to prepare such statement in narrative form independent of a court reporter’s notes. Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317, wr. ref., n. r. e.; Crawford v. Crawford, Tex.Civ.App., 181 S.W.2d 992, wr. dism.; Sullins v. Pace, 208 S.W.2d 583, wr. ref. n. r. e.

It is a well established rule of law in our State that an appealing party is entitled to a statement of facts, and if through no fault of his own after the exercise of due diligence he is unable to procure such a statement of facts his right to have the cause reviewed on appeal can be preserved to him in no other way than by retrial of the cause. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, opinion adopted by Sup. Ct.; Crawford v. Crawford, Tex.Civ.App., supra; Strode v. Srygley, Tex.Civ.App., 342 S.W.2d 638, wr. err. ref. n. r. e.; Spencer v. Texas Factors, Inc., Tex.Civ.App., 366 S.W.2d 699, wr. ref., n. r. e.; Toland & Co. v. Turner, Tex.Civ.App., 152 S.W. 852, n. w. h.

Appellees do not seriously dispute this rule of law. It is their contention that the absence of a statement of facts has been caused through the fault of appellant, and that appellant has not shown the diligence required to be entitled to a reversal.

The case of Strode v. Srygley, Tex.Civ.App., supra, holds contrary to appellees’ contention that because appellant proceeded to trial without requesting that the testimony be recorded by a reporter or other means, and made no complaint or objection thereto, it is not now entitled to complain of its inability to secure a proper statement of facts. The Court said:

“We are of the opinion that an appellant is entitled to a statement of facts under the provisions of part (d) of T.R.C.P. 377 where there was no court reporter, even though he made no complaint of the absence of such reporter as the trial proceeded. Hence, if the opposing party refuses to agree upon the proposed statement of facts prepared and presented to him by the appellant, it is obligatory that the trial court or judge thereof cause the statement of facts to be used on the appeal to conform to the truth. If, by reason of inability to remember the matters necessary to make such statement of facts conform to the truth, the trial judge cannot cause the same to be so corrected, then reversible error is made to appear in those cases where the error is material. If the record shows that an appellant was deprived of a statement of facts which would enable him to present to the appellate courts questions he would he entitled to raise on appeal, the error is material and will necessitate reversal. Johnson v. Brown, Tex.Civ.App. Beaumont, 1948, 218 S.W.2d 317, writ refused n. r. e.
“It is true that a litigant who voluntarily goes to trial without the presence of a court reporter takes a ‘gamble’ in respect to the statement of facts upon which he will be forced to rely in the event the decision is against him and he desires to appeal. However, the chance he takes does not include the hazard that he will thereby be compelled to appeal without a statement of facts, for to this he is entitled as a matter of law if he follows the procedure whereby it is obtainable. His only risk is the hazard that the statement of facts upon which he may be forced to rely, in the event it must be obtained pursuant to the provisions of part (d) of T.R.C.P. 377, may not be as favorable to him as would be the case had he insisted upon the services of a court reporter.” (emphasis supplied)

Appellees cite a number of cases as authority for their contention that appellant was at fault in failing to object to proceeding to trial in the absence of a reporter or other device for truly recording the evidence. Some of these cases were decided prior to the adoption of Rule 377 (d) fixing the responsibilty on the trial court in the event of a disagreement between counsel to make the statement of facts conform to the truth, and others are to be distinguished on the facts. Among the latter are Brady v. Brady, Tex.Civ.App., 255 S.W.2d 585, n. w. h., and Harris v. Lebow, Tex.Civ.App., 363 S.W.2d 184, wr. ref. n. r. e. In Brady, the Court in holding against appellant’s claims stated that appellant had made no request that the testimony be taken down by a court reporter, and neither did he make any effort to comply with Rules 377 or 378, and for such reasons, appellant had not been wrongfully deprived of a statement of facts. We have heretofore detailed the efforts of appellant in our case to secure a statement of facts, and find that such efforts were sufficient to comply with the requirements of Rule 377. Rule 378 is not applicable, since the motions filed by appellees in the trial court and in this Court and the testimony introduced in the hearing of March 2 show the futility of securing an abbreviated agreed statement of facts.

In Harris v. Lebow, supra, appellant is shown to have made no effort to secure a statement of facts other than to prove that the court reporter did not report the testimony. This was properly held to be an insufficient compliance with the requirements of Rule 377.

Appellee also argues that appellant has waived this point because it was not assigned as error in the amended motion for new trial. Appellant is not here asking for reversal because of anything that occurred prior to the time his amended motion for new trial was overruled. It does not assign as error the failure to have a court reporter present, or the failure to have the testimony recorded as in Harris v. Lebow, supra. Its point of error deals with the inability of the trial court to make a statement of facts in accordance with Rule 377(d). Everything complained of by appellant occurred after the amended motion was overruled. Rule 324, T.R.C.P., provides in part that a motion for new trial shall not be required in a case where the appeal is based upon some error of the trial court arising after its action upon the motion for new trial.

Appellee also contends that appellant failed to use due diligence because it did not seek a writ of mandamus from the appellate court to require the trial court to furnish appellant with a statement of facts. Authorities cited in support of such argument include Reagan v. Copeland, 78 Tex. 551, 14 S.W. 1031; Osborne v. Prather, 83 Tex. 208, 18 S.W. 613; Middlehurst v. Collins-Gunther, 100 Tex. 349, 99 S.W. 1025; Tennille v. Morgan, Tex.Civ.App., 35 S.W. 514, wr. ref.; Owen v. Cibolo Creek Mill & Mining Co., Tex.Civ.App., 43 S.W. 297, n. w. h.; Pruitt v. Blesi, Tex.Civ.App., 204 S.W. 714, wr. ref.; Jenkins v. Jenkins, Tex.Civ.App., 50 S.W.2d 341, wr. dism.; Scott v. Harris, Tex.Civ.App., 52 S.W.2d 286. None of these cases are in point on the fact situation here. The trial judge certified that the reason he was unable to prepare a correct statement of facts or make the one submitted to him by appellants conform to the testimony given by the witness was that he had no independent recollection of the testimony, or sufficient notes thereof. As stated by Chief Justice Fly in Toland v. Turner, Tex.Civ.App., 152 S.W. 852, n. w. h.:

“ * * * If the judge had forgotten the material testimony, he could no more be compelled to make out a statement of facts than could a dead man. A writ of mandamus will not be issued when it may prove unavailing, or when the respondent cannot obey it. Merrill on Mandamus, §§ 75, 76. The courts of the country will not lend aid to any such unreasonable and absurd attempt.”

See also, Caffee v. McBee, Tex.Civ.App., 142 S.W.2d 581, wr. ref.

Under the facts of the present case, appellant was not guilty of failing to use proper diligence in not seeking the writ of mandamus to require the trial judge to furnish a proper statement of facts.

The burden was on appellant timely to secure and file in the appellate court a proper statement of facts or to show that his inability to procure same was through no fault of appellant after the exercise of due diligence on its part. We hold that the facts recited above and shown in the record establish that appellant was not negligent and that it showed due diligence in its efforts to secure a proper statement of facts of the proceedings in the trial of this cause, and that it has been deprived of such statement of facts through no fault of its own.

In its amended motion for new trial appellant advanced thirteen assignments of legal and factual insufficiency of the evidence to support the findings of the jury. Other assignments were addressed to alleged error in the admission into evidence over appellant’s objections of various exhibits and of certain other items of testimony. In the absence of a statement of facts it would have been futile for appellant to present points of error and argument pertaining to such assignments, since the appellate court would have been precluded from a consideration thereof. Sanchez v. Carey, Tex.Civ.App., Corpus Christi, 409 S.W.2d 458, 460, n. w. h., and authorities there cited. Hence, appellant has been prejudiced to his detriment on this appeal by the absence of a statement of facts.

We do not attempt to discuss or to pass upon the merits of appellant’s contentions that the verdict of the jury finding the “intrinsic value” rather than “market value” of the leasehold interest was meaningless and immaterial, and that the judgment in favor of the leaseholder Model Laundry should be reversed and rendered because of appellees’ failure to obtain a finding of cash market value of the leasehold interest. In the absence of a statement of facts, we do not know what the state of the evidence was as to whether such interest had any market value, or what if any agreements may have been entered into by the parties leading to such special issues being submitted 4o the jury. We do notice that the transcript does not show any objection to these issues by appellant in the trial court.

In view of a new trial we call attention to the case of Urban Renewal Agency v. Trammel, 407 S.W.2d 773, 777 (Tex.Sup.Ct.1966), decided after trial of the instant case, concerning the proper manner of submitting the value issues in a real property condemnation case involving the fee title and a leasehold interest; and to the cases of Luby v. City of Dallas, 396 S.W.2d 192, 198 (Tex.Civ.App., Dallas, 1965, wr. ref. n. r. e.); State v. Parkey, 295 S.W.2d 457, 460, 462 (Tex.Civ.App., Waco, 1956, wr. ref. n. r. e.) relating to valuation of the lessee’s leasehold interest.

Reversed and remanded.

       It was held in Pacific Fire Insurance Company v. Smith, Tex.Sup.Ct., 199 S.W.2d 486, that the failure of the statement of facts to be properly authenticated is one of the informalities contemplated by Rule 404, T.R.O.P., and that the defect is waived unless objected to within thirty days after the record is filed in the appellate court.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. Zelda W. CASPER, Appellee.
    No. 311.
    Court of Civil Appeals of Texas. Tyler.
    March 28, 1968.
    Rehearing Denied April 18, 1968.

      Perkins & Perkins, William Drew Perkins, Lufkin, for appellant.
    R. W. Fairchild, Nacogdoches, for appel-lee.
   DUNAGAN, Chief Justice.

This is a workmen’s compensation case. Zelda Casper, on a jury verdict, recovered compensation for benefits for total permanent incapacity beginning on December 11, 1965, resulting from an injury in the course of her employment sustained on April 1, 1964.

From an award of the Industrial Accident Board of Texas, appellee filed suit in the District Court of Nacogdoches County, Texas, on October 16, 1964, for benefits for permanent total incapacity. In her pleadings, she did not allege that she was or was not a feme sole.

This case was tried before a jury. Upon the jury findings, the court rendered judgment for appellee, Zelda Casper. From this judgment, appellant has duly and timely perfected its appeal to this court.

On the third day of the trial of this case, after both parties had rested, appellant presented to the trial court its motion for the court to declare a mistrial and abate the suit on the ground that Zelda Casper was married to Odis Moore at the time this cause of action arose and at the time of the alleged injury, April 1, 1964, and that Odis Moore was therefore an essential and necessary party, which motion the court overruled and appellant duly excepted thereto. Odis Moore was not a party to the suit. He did not file a plea in abatement or any other pleading in the case.

Odis Moore and appellee were first married in 1962. During the trial of this cause, Zelda Casper consistently maintained that she was single on April 1, 1964 — that she had been divorced by Odis Moore before that time.

However, on the last day of the trial, appellant produced and offered in evidence a certified copy of a judgment of the District Court of the 55th Judicial District, Harris County, Texas, reflecting that a divorce in the case of Odis Moore v. Zelda W. Moore, No. 640-980, was granted on June 29, 1964, to Odis Moore. The judgment in such divorce action recites: “The Court further finds that there was no community property accumulated during this marriage.”

Even though appellant brings forward three points of error, the controlling question to be decided is whether Odis Moore is a necessary or indispensable party to this suit.

Appellant asserts that because Zelda Cas-per was married to Odis Moore at the time she sustained her injury, which gave rise to her cause of action, Odis Moore is a necessary or indispensable party to the litigation.

In answer to issues submitted to them, the jury found that Zelda Casper sustained an accidental injury in the course of her employment on April 1, 1964; that she sustained total incapacity as the result of such injury; that such total incapacity began on December 11, 1965; that such total incapacity from such date was permanent; that she sustained no partial incapacity as a result of such injury; and that manifest hardship and injury would result if her compensation was not paid in a lump sum.

In view of the record in this case, it must be held as a matter of law that Zelda Casper and Odis Moore were not divorced until June 29, 1964.

It is clear that, under Texas law, workmen’s compensation benefits for incapacity by reason of a general injury that accrues during marriage constitute community property. Piro v. Piro, 327 S.W.2d 335 (Tex.Civ.App., 1959, Fort Worth, writ dism.) ; Speer’s Marital Rights in Texas, Vol. I, page 638, Sec. 432 ; 30 T.J.2d, page 131, Sec. 74.

The verdict of the jury establishes that Zelda Casper’s incapacity did not begin until December 11, 1965. In view of the fact that the 1962 marriage of Zelda Casper and Odis Moore had been dissolved by a divorce decree on June 29,1964, which was subsequent to any benefits that had accrued to Zelda Casper by reason of her injury, it is thus established that Odis Moore had no community interest in the benefits for the incapacity of appellee resulting from the injury of April 1, 1964, by reason of the 1962 marriage. No cause of action arose by reason of appellee’s injury until some incapacity to appellee resulted therefrom.

However, it developed upon the trial of this case that Zelda Casper and Odis Moore remarried on January 1, 1965, but that she remained with him thereafter only a very short time. Upon the trial of this case, she testified that she was not married. The following testimony of Mrs. Casper found in the record concerns the basis for her testimony that she was not married:

“Q And when were you and Mr. Moore divorced ?
“A I was in Conroe and I received some papers in the mail and I signed them.
“MR. FULMER: You notice he asked you when, if you know when it was say so.
“A It was in January, just what day, it was January of this year.
“Q All right. I take it from that that you never have gone to Court to divorce him?
“A No.
“Q And you are assuming that he has gone to Court and divorced you ?
“A Yes.
* *
“Q Did you ever, you signed, do you remember whether or not the papers you signed, a waiver?
“A Well, it was several papers saying he wanted a divorce and my signature.”

She testified that later Odis Moore told her he had gotten a divorce. The evidence shows that the signature of Mrs. Cas-per to the papers (presumably waiver of service) was not notarized as required by Rule 119, Texas Rules of Civil Procedure, nor did she at any time thereafter receive a copy of a divorce decree granting Odis Moore a divorce as required by Rule 119a, T.R.C.P. As we view this record, there is no competent evidence that the 1965 marriage of Zelda Casper and Odis Moore has actually been dissolved by a divorce decree. In the absence of such evidence, the presumption is that this marriage continued to exist at the time of trial and rendition of judgment in this case. The jury having found that the benefits for the incapacity of appellee accrued after and during the 1965 marriage of appellee and Odis Moore, the accruing benefits would be community property of said parties.

Appellee contends that the plea in abatement was not timely filed and therefore appellant waived its right to file such plea.

If Odis Moore is an indispensable party to the suit, the court was in error in proceeding in his absence and such was fundamental error which could and should be noticed by this court on its own motion. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup., 1966); Adams v. Bankers’ Life Co., 36 S.W.2d 182 (Tex.Com.App., 1931, holding approved). “Jurisdiction over indispensable parties to a suit is as essential to the court’s right and power to proceed to judgment as is jurisdiction of the subject matter.” Petroleum Anchor Equipment, Inc. v. Tyra, supra, and cases therein cited.

“An indispensable party is defined as ‘a party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting such interest.’ ” Hollar v. Jowers, 310 S.W.2d 721 (Tex.Civ.App., Eastland, 1958, writ ref., n. r.e.); see 67 C.J.S. Parties § 1, page 892; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472.

The Supreme Court in the Tyra case said: “Decision of any question of necessary parties to a suit should be made in light of the provisions of Rule 39, Texas Rules of Civil Procedure.”

Rule 39, entitled “Necessary Joinder of Parties”, reads:

“(a) Necessary joinder. Except as otherwise provided in these rules, persons having a joint interest shall be made parties and be joined as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff.
“(b) Effect of failure to join. When persons who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them made parties. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein shall not affect the rights or liabilities of persons who are not parties.
“(c) Names of omitted persons and reasons for non-joinder to be pleaded. In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties, if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.”

The Supreme Court in the Tyra case in discussing Rule 39 also said: “It is at once apparent that the ‘necessary’ parties of which the rule speaks fall into two categories: (1) those who under paragraph (a) ‘shall be made parties,’ and (2) those who under paragraph (b) ‘ought to be parties if complete relief is to be accorded between those already parties.’ It is also at once apparent that ‘persons having a joint interest’ within the meaning of paragraph (a), properly interpreted, are indispensable parties, but that those who simply ought to be joined if complete relief is to be accorded between those already parties are not indispensable.”

An indispensable element of “community property” is the joint ownership of or interest in such property by a husband and wife. George v. Taylor, 296 S.W.2d 620 (Tex.Civ.App., Fort Worth, 1956, writ ref., n.r.e.); Dillard v. Dillard, 341 S.W.2d 668 (Tex.Civ.App., Austin, 1960, writ ref., n.r.e.); Bridges v. Commercial Standard Ins. Co., 252 S.W.2d 511 (Tex.Civ.App., Eastland, 1952, n.w.h.).

Any portion of the compensation benefits that accrued to appellee during the marriage of her and Odis Moore is community property in which they have a joint interest. It is thus clear that if the 1965 marriage of the appellee, Zelda Casper, and Odis Moore has not been dissolved by a divorce decree or otherwise prior to December 11,1965, appellee and Odis Moore would have a joint interest in the compensation benefits that appellee may ,be entitled to which accrued during their marriage. Consequently, Odis Moore would be an indispensable party to the litigation for such benefits.

Appellee does not claim that Odis Moore obtained a divorce decree dissolving the 1965 marriage until sometime in January, 1966, or sometime thereafter. Thus it is established by her own testimony that at least a portion of the benefits are community property, the incapacity of appellee having been found by the jury to have begun December 11, 1965. Piro v. Piro, supra; Speer’s Marital Rights in Texas, Vol. 1, page 638, Sec. 432. The trial court could not determine his interest in the benefits which accrued to appellee without him being a party. National Educators Life Insurance Company v. Master Video Systems, Inc., 398 S.W.2d 358, 366 (Tex.Civ.App., 1965, Corpus Christi, writ ref., n.r.e.). We hold that Odis Moore is an indispensable party. Proceeding to judgment in the absence o( Odis Moore as a party after it was brought to the attention of the trial court that he was an indispensable party was fundamental error which this court could and should take notice of on its motion.

Therefore, Odis Moore being an indispensable party, we must reverse and remand this case to the trial court for further proceedings.

Judgment reversed and remanded.


author: TUNKS, Chief Justice.

text:
    D. C. TEER et ux., Appellants, v. J. WEINGARTEN, INC., Appellee.
    No. 88.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 20, 1968.
    Rehearing Denied April 17, 1968.

      James E. Knox, Oscar Nipper, Nipper & Knox, Houston, for appellant.
    Vincent W. Rehmet, Barrow, Bland & Rehmet, Houston, for appellee.
   TUNKS, Chief Justice.

In this case, the plaintiffs, D. C. Teer and his wife, seek a recovery for damages for personal injuries sustained by Mrs. Teer while she was an invitee, on September 5, 1963, in a store of the defendant, J. Wein-garten, Inc. The parties will sometimes be designated plaintiff and defendant, as in the trial court.

The evidence showed that, on the occasion in question, Mrs. Teer was on defendant’s premises, a supermarket, for the purpose of buying groceries. Her status as an invitee and the corresponding duty of the defendant to keep its premises in a reasonably safe condition are not in dispute.

The defendant, in keeping with the usual practice of such establishment, generally displayed its merchandise in long racks or cases arranged parallel to each other and with passageways or aisles about eight feet wide between them. These display racks (called gondolas by the defendant’s employees) were open on both sides so that each of them made groceries available from two aisles. Carts were furnished for the use of customers. The aisles were used by the customers in pushing the carts about the shopping area and collecting items to be bought. At the end of each display rack was a vacant area also used by customers as a passageway in going from one aisle to the other.

Among the items sold by the defendant were bottled soft drinks. Some of these soft drinks were displayed, as were other grocery items, in the parallel display racks —the gondolas. Other soft drinks were placed in what was referred to as an end display. The cartons of bottled soft drinks were stacked at the end of the regular display rack in an area used by the customers in pushing carts from one aisle to the other.

On the day that Mrs. Teer was injured the defendant had one of the end displays in its store. At the end of one of the parallel racks there was a stack of cartons containing bottled drinks. Mrs. Teer was standing in one of the aisles with her back to the end display of bottled drinks and about fifteen feet from it. Another shopper in the store pushed a grocery cart into the display. One or more of the cartons fell and the bottles broke. A piece of flying glass hit Mrs. Teer in the back of the leg inflicting a wound of such size as to require several stitches in treating it.

The case v?as tried to a jury to whom the trial court submitted special issues. In response to those special issues the jury found: (1) there was a soft drink display at the end of the regular display case; (2) “permitting the construction of” such display was negligence; (3) such negligence was not a proximate cause of the injury to Mrs. Teer; (4) the injury to Mrs. Teer was not due solely to the act of the shopper who pushed the cart into the display; (5) the injury was not the result of an unavoidable accident; (6) the plaintiffs were damaged in the amount of $850.00.

It is to be noted that the only finding against the plaintiffs is No. 3, the finding in response to the proximate cause issue.

Because of the fact that the other shopper pushed a shopping cart into the soft drink display, the trial court included the element of new and independent cause in its definition of proximate cause. The court also included in its definition of proximate cause, of course, the element of foreseeability, on the part of the defendant, of the event from which Mrs. Teer sustained her injury. The court then defined new and independent cause in the following language:

“By the term ‘new and independent cause’ as that term is used in the foregoing definition of ‘proximate cause’ is meant the act or omission of a separate and independent agency, which destroys the causal connection between the negligent act, if any, or omission, if any, and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury.”

The plaintiffs submitted to the trial court a requested definition of new and independent cause in the following language:

“By the phrase ‘new and independent cause’ is meant the act of omission of a separate and independent agency, not reasonably foreseeable, which destroys the causal connection, if any, between the negligent act or omission, if any inquired about and the event and thereby becomes, in itself, the immediate cause of such injury, if any.”

The plaintiffs’ requested definition was refused and the plaintiffs duly objected. The court’s action in this respect was made the basis of an assignment of error in plaintiffs’ amended motion for new trial (which was overruled) and a point of error in this court. Under the evidence which we have outlined above, we cannot say, as a matter of law, that there either was or was not such a new and independent cause as to destroy the causal connection between the defendant’s negligence and the plaintiff’s injury. The existence of such a cause was, under the record, a question of fact to be resolved by the jury in its answer to the proximate cause issue. We thus have presented to us the question as to whether the trial court erred in its definition of new and independent cause and in the refusal of plaintiffs’ tendered definition. The only significant difference between the two definitions is in the fact that in the definition requested by the plaintiff an act or omission of a separate and independent agency could not be a new and independent cause, referred to in the main definition of proximate cause, if that act or omission of the new and independent agency was reasonably foreseeable by the defendant. The definition submitted by the court did not include such element of non-foreseeability.

The appellee here insists that the trial court correctly defined the term “new and independent cause” because it followed the exact language (except for the insertion of the words “if any” at two places) of a suggested definition of that term as set forth in Young v. Massey, 128 Tex. 638, 101 S.W.2d 809. The opinion in Young v. Massey was written by Judge Critz, who, while on the Commission of Appeals, had written the opinion in Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60. In his opinion in Young v. Massey, Judge Critz said:

“In the Tips Case we held that the term new and independent cause means ‘the act or omission of a separate and independent agency, which destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury.’ In such case we also held that the term proximate cause is generally defined as meaning ‘that cause which, in natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which the result could not have occurred.”

We are of the opinion that neither in the Tips case nor in Young v. Massey was the quoted language intended as a definition of the term “new and independent cause” to be used by a trial court when the evidence indicated that the intervening force in question might have been foreseeable. In fact, in the Tips case, the court specifically said:

“A prior or remote cause cannot be made the basis of an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition.” (Emphasis added)

We think it apparent from the opinion of the Supreme Court as written by Judge Critz in Young v. Massey, that the intended language in fact was not intended as a suggested definition in those situations where the question of the foreseeability of the intervening force was raised by the evidence. It is to be noted that the quoted definition of proximate cause likewise does not include an element of foreseeability. It is too well established to require the citation of authority that the element of foreseeability must almost always be included in the trial court’s definition of the term “proximate cause.” If Judge Critz had intended the quoted language to be form for instructions to be used by a trial court, he certainly would have included in his definition of proximate cause the element of foreseeability.

In Tyreco Refining Co. v. Cook, 149 S.W.2d 136, err. dismd., judgment correct, the trial court had not included the element of non-foreseeability in its definition of new and independent cause. This was assigned as error. The Court of Civil Appeals first pointed out that the jury had found that the only act which could have been a new and independent cause, the striking of a match by a third party, had not occurred. The Court of Civil Appeals further said, however, that leaving out the element of non-foreseeability in the definition of new and independent cause was not error because the main definition of proximate cause covered the matter of foreseeability. Also it is to be noted that in that case, strangely enough, it was the defendant who was objecting to the omission of the element of non-foreseeability from the definition. It does not occur to us how a defendant could be harmed by such omission in the definition because such would permit the jury to consider an intervening force, a new and independent cause whether it was or was not reasonably foreseeable by the defendant. However, we do not agree with the language of that opinion. The foreseeability inquired about in the main definition of proximate cause is the capacity to foresee the cause which intervenes between the defendant’s negligence and the event which is the subj ect matter of the lawsuit. They are two separate and distinct elements. The foreseeability of the event which is the subject matter of the lawsuit is not the same as the foreseeability of the cause which intervenes between the ■defendant’s negligence and that event which is the subject matter of the lawsuit.

Many authorities on the law of torts treat the element of foreseeability as relating to the question of the defendant’s duty or negligence, rather than as to causation — a limitation upon the results of his conduct for which the defendant could be held liable. Green, Proximate Cause in Texas Negligence Law, 28 Tex.L.Rev. 471, 621, 755; Harper & James, The Law of Torts, Vol. 2, p. 1134, Sec. 20.5; Prosser, Law of Torts, (3rd Ed.) p. 282, Sec. 49; 100 A.L.R.2d pp. 944-1001. However, the Texas Courts are firmly committed to the proposition that the issue of foreseeability is related to the issue of proximate cause. It is also undoubtedly true, as a matter of substantive Texas law, that an intervening cause reasonably foreseeable by the defendant, is not such a new and independent cause as to break the chain of causation between the defendant’s negligence and the injury complained of to the extent of relieving the defendant of liability for such injury. City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326; Phoenix Refining Co. v. Tips, supra. It should be noted that the reverse is not necessarily true. Intervention of an unforeseen cause of the plaintiff’s injury does not necessarily mean that there is a new and independent cause of such a character as to constitute a superseding course which will relieve the defendant of liability. The intervening cause of the plaintiff’s injury, even if unforeseeable, may be a concurring cause if the chain of causation flowing from the defendant’s original negligence is continuous and unbroken. The intervening cause, if it is a concurring cause, does not break the chain of causation between the defendant’s negligence and the plaintiff’s injury simply because the intervening cause was unforeseeable. Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Bryant v. Banner Dairies, Inc., Tex. Civ.App., 255 S.W.2d 271, err. ref., n. r. e.

Rule 277, Texas Rules of Civil Procedure, requires that the trial court “shall submit such explanatory instructions and such definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict” on the special issues submitted to them. It was in response to that requirement that the trial court submitted its definition of new and independent cause. We are of the opinion, however, that the definition submitted by the trial court was erroneous in that it omitted the important element of non-forseeability. The omission of that element in the definition was harmful to the plaintiff in that it failed to eliminate those causes, the intervention of which could reasonably have been foreseen by the defendant. Since the only jury finding adverse to the plaintiffs was the finding on proximate cause to which that erroneous definition related, it is apparent that the error may well have caused the rendition of a different judgment from that which would have been rendered had the definition been correct. We are of the opinion that because of such error the judgment of the trial court must be reversed and remanded for a new trial.

Other points of error set forth in the appellants’ brief relate to the refusal of the trial court to submit certain other special issues requested by them as plaintiffs. In special issue No. 2, submitted by the trial court, without objection as to its form, the jury was asked if the defendant was negligent in “permitting the construction” of the soft drink display in the aisle at the end of a regular display case. The jury answered in the affirmative but found that such negligence was not a proximate cause of the injury to Mrs. Teer. Other issues requested by the plaintiff and refused by the trial court inquired as to whether the defendant was negligent in “permitting the display” in stacks of cartons four high and in “permitting the display” without “side guards or other protective devices.” We are of the opinion that the language in special issue No. 2 was sufficiently broad to cover the subjects of the other special issues requested by the plaintiff. The trial court did not err in refusing to submit the other issues requested by plaintiffs.

The judgment of the trial court is reversed and remanded.


author: RENFRO, Justice.

text:
    ROYAL INDEMNITY COMPANY, Appellant, v. C. M. KENNEDY, Appellee.
    No. 16907.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1968.
    Rehearing Denied April 19, 1968.
    Stone, Tilley, Parker, Snakard, Law & Brown, and Lawton G. Gambill, Fort Worth, for appellant.
    Woodruff, Hill, Bader & Kendall, and David M. Kendall, Jr., Dallas, for appellee.
   OPINION

RENFRO, Justice.

Based upon jury findings, judgment was rendered for plaintiff Kennedy against Royal Indemnity Company for workmen’s compensation benefits for total and permanent disability.

The first point presented by defendant reads, “The trial court incorrectly defined ‘Total Incapacity’ in its charge to the jury.”

The court’s definition was, “ ‘Total Incapacity’ does not mean an absolute disability to perform any kind of labor, but a person disaqualified from performing the usual tasks of a workman in such a way as to be able to procure and retain employment is totally incapacitated. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular trade or occupation.”

Defendant’s argument, in essence, is that the definition instructed the jury that a person could be totally incapacitated without regard to whether or not he was able to procure and retain employment.

The first sentence of the court’s definition of “Total Incapacity” is the standard definition of that term as used in this jurisdiction. Texas Employers Ins. Association v. Hawkins, 369 S.W.2d 305 (Tex.Sup., 1963).

The second sentence of the definition was taken from Texas Employers' Ins. Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944), wherein the Supreme Court, referring to “total incapacity,” stated: “The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation.” It is true those words were not included in the definition of total incapacity in Mallard, but were approved as a statement of the law after the court had disapproved of the words, “in the usual occupation which he is suited to perform,” which were included in the definition in that case.

We fail to see the vice the defendant professes to see in the definition. Properly construed, it instructs the jury that in order to prove total incapacity, as that term is defined in the first sentence, the plaintiff must go further than prove he cannot perform the usual tasks of his particular trade or occupation, but he must prove incapacity to perform the usual tasks of a workman. It seems the time-honored Supreme Court approved standard definition of “Total Incapacity” would have sufficed in this case.

It may be that inclusion of the last sentence could in some instances constitute error, nevertheless such could not be reversible error in the instant case because under the evidence the inclusion was in the defendant’s favor, and not prejudicial.

In its remaining points defendant argues that the jury’s answers finding plaintiff totally and permanently disabled are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust and wrong.

Since we must consider and weigh all the evidence to determine such points, In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), our summary of the testimony will necessarily be quite lengthy.

Plaintiff testified: he is 36 years of age. He worked for General Motors ten years. On November 4, 1963, while working as a spot welder he had occasion to move a “jig” and while moving it “got a catch” in his back. Within three or four hours he reported his injury to his foreman and was sent to the hospital where he was given heat treatment. Next day he could hardly get out of bed. The following day he returned to work and took heat treatments from the plant doctor. He hurt in his lower back below the belt line. He got no better and went to Forth Worth for treatment by Dr. Pumphrey. He got no better. Soon thereafter he went to Dr. Key and received therapy while continuing to work. Therapy treatments had no effect on his pain. He continued to work for about two years, alternating between light and heavy work, but his back hurt and he could not work without pain. The pain was present when he did lighter work and he had to return to the doctor. Dr. Key was company doctor. Plaintiff’s back grew progressively worse from the time of the original injury. He requested the Insurance Company to send him to another doctor, but the Company said it was satisfied with Dr. Key and refused his request. Before leaving General Motors he had decided to become a missionary, but he would have quit General Motors anyway because he could no longer do the work because of his back. He could not have worked any longer. The Company paid Dr. Key. Since leaving the job his back has been getting worse. When he drives he uses a back brace. At time of trial he was raising money for the mission field in Mexico. The church pays a missionary $10 per month. Due to the condition of his back there is no job he knows of where he could do day to day work. His back hurts when he walks, mows the lawn or tries to lift weighty objects. As a result of helping to lift an ice box he was “layed up” for two weeks. He does not feel that he can ever hold down any laborer’s job in the future.

His work raising mission funds requires him to drive to several different states. He has at times let months go by without seeing a doctor, because he could not afford to pay one and the Company refused to pay anyone except Dr. Key. After leaving General Motors his income dropped from $160.15 per week to $50 per month.

Plaintiff’s wife testified plaintiff was very active and energetic before the injury, but after the injury he is always tired, has ceased to do yard and household chores and no longer hunts and fishes. He requires much more rest than formerly. In her opinion plaintiff is getting no better.

Dr. Key, orthopedic surgeon, called by defendant, saw plaintiff November 25, 1963. Plaintiff could bend forward three-fourths of the normal range. The doctor concluded plaintiff had sustained a soft tissue injury of his back. Many of the most disabling back injuries are soft tissue injuries, though he did not believe plaintiff’s injury was very serious. He saw and examined plaintiff several times up to January 3,1964. In the meantime he had prescribed therapy treatments. X-rays showed a little bit of “peaking” of the ends of the vertebrae in some areas. On January 3, plaintiff was doing pretty well. Examination showed no signs of pinched nerves in the lower extremities, his condition was good. Plaintiff visited him again in December, 1964. Plaintiff said he was still having pain in his lower back. Examination showed he had some muscle impairment. Plaintiff returned on June 1, 1965. Plaintiff could bend forward pretty well. Therapy was recommended until he returned September 11, 1965. At that time it was doctor’s opinion plaintiff was able to perform a good day’s work, but not able to perform bending and lifting jobs. He would have pain and problems and be off work if he did. In other words he would be a poor candidate for a job that involved repetitious bending and heavy lifting. He estimated plaintiff had a five per cent permanent physical impairment to the back. He last saw plaintiff January 30, 1967. His permanent percentage of disability was still five per cent. He classified the injury a sprain or some type of injury to the disc. Plaintiff’s condition is permanent. Plaintiff’s ability to procure and retain employment as a workman was not included in the doctor’s estimate of percentage of disability. In fact, he was sure some employers would turn down a man with five per cent anatomical disability.

Dr. Kresh, called by the plaintiff, examined plaintiff September 28, 1965. He found plaintiff had a loss of normal lumbar spine curvature, there was some concomitant para lumbar muscle spasm, which meant the muscles along the spine, the lumbar vertebrae were in spasms and tender to palpation. There was some wedging of the thoracic vertebra and some osteoarthritis changes in his lower dorsal spine. “What this patient has is an instability of his back because of ligamentous soft tissue damage. The ligaments supporting the vertebra, the tendons, the muscles that support all this area are weakened and traumatized. * * Traumatized means injured. * * * And because of this the back is unstable and is subject to injury and reinjury at the minimal provocation. * * * ” He examined plaintiff again on May 16, 1967. Essentially the findings were about the same as they were on September 28, 1965. The plaintiff is totally disabled and the disability is permanent.

Defendant does not question the fact that plaintiff was injured on November 4, 1963, in the course of employment and such injury was the proximate cause of some permanent incapacity. Its objection goes only to the finding of total incapacity.

The evidence shows that plaintiff continued to work without reduction in amount of wages for a considerable length of time.

A judgment will not be reversed merely because there is evidence showing the disabled employee is in fact working and earning money regardless of the amount of money being earned. Such proof constitutes a part of the factual evidence which may and should be taken into consideration by the jury in answering the issues upon incapacity or disability, but does not, as a matter of law, preclude the award of compensation even for total and permanent disability. Trinity Universal Ins. Co. v. Scott, 342 S.W.2d 348 (Tex.Civ.App., 1961, ref., n. r. e.); Aetna Casualty and Surety Co. v. Curlee, 416 S.W.2d 890 (Tex.Civ.App., 1967, no writ hist.); 63 Tex. Jur.2d, p. 20, § 140.

Actually at the time of trial, so far as the record shows, plaintiff’s income was drastically less than it was at the time of injury. He testified he quit General Motors to become a missionary, and because he was no longer able to do the work, and added that his injury would have forced him to quit regardless.

The determination of whether he was unable, because of the injury, to continue to work was in the province of the jury.

The jury had the exclusive power to determine the credibility of the witnesses and the weight to be given their testimony. Mitchell v. Texas Electric Service Co., 299 S.W.2d 183 (Tex.Civ.App., 1957, ref., n. r. e.). In exercising its power the jury may consider the demeanor of witnesses and determine their credibility under the facts and circumstances of the particular case. Sinclair v. Brownlee, 300 S.W.2d 103 (Tex.Civ.App., 1957, ref., n. r. e.). It may accept part of a witness’ testimony and reject other parts, and may determine not only the facts proved but also any reasonable inferences that may be drawn therefrom. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958).

In our opinion the evidence is such that the jury findings have ample support, and in view of all the evidence, both for and against the verdict, the findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust or wrong.

We are therefore not at liberty to disturb the verdict and judgment.

Affirmed.


author: SELLERS, Justice.

text:
    T. L. LESTER, Appellant, v. Joe E. WEDDLE, Jr., et ux., Appellees.
    No. 338.
    Court of Civil Appeals of Texas. Tyler.
    March 28, 1968.
    Rehearing Denied April 18, 1968.

      Ramey, Brelsford, Flock & Devereux, Richard Grainger and Michael A. Hatchell, Tyler, for appellant.
    Woodrow Edwards, Mt. Vernon, Ivan Alexander, Jr., Emory, for appellees.
   SELLERS, Justice.

Joe E. Weddle and wife brought this suit to recover for the death of their eight-year-old son who was struck by a truck and trailer loaded with calves belonging to T. L. Lester, the appellant herein, who was driving the truck at the time of the collision and death of Jim E. Weddle, ap-pellees’ son. The accident happened about 8 o’clock in the morning on November 7, 1966. Visibility was good. The Weddles lived on Highway 19, some two miles south of the town of Emory in Rains County, Texas. The appellant with his load of cattle was driving south on Highway 19 at a speed of about 45 miles per hour when he saw a child standing alone near an auto parked on the east side of Highway 19 in front of what proved to be the Weddle home. At the time he saw the car and the child, he was several hundred feet from them. The appellant instantly took his foot off the accelerator which had the effect of reducing the speed of the truck from 45 miles per hour to between 45 and 40 miles per hour when the accident happened.

The grounds of negligence alleged by the appellees against the appellant are as follows:

“Plaintiffs allege that at the time and on the occasion in question defendant T. L. Lester failed to use ordinary care toward their deceased son, Jim E. Wed-dle, in that defendant:
“(1) Failed to keep a proper lookout;
“(2) Failed to stop his pickup in time to avoid collision with their son’s body;
“(3) Failed to turn right in time to avoid the said collision, when he had the time and means to do so.
“Plaintiffs further allege that each of the above omissions to act on the part of defendant was a proximate cause of the collision which resulted in their son’s death.”

Appellant filed his plea of privilege to be sued in Van Zandt County where he lives. This plea was contested by the appellees alleging venue in Rains County where the accident occurred under the venue statue placing venue in the county where a trespass occurs. After a hearing on the venue issue, the trial court sustained venue in Rains County, and the appellant has duly prosecuted this appeal.

The appellant in his Brief asserts that there is no evidence of any negligent act or trespass committed by appellant in Rains County, and that the trial court was in error in so holding. He likewise asserts that the evidence is against the great weight and overwhelming preponderance of the evidence.

The record is clear that Jim Weddle was out on the side of the highway waiting for the school bus to arrive and to notify the other Weddle children that the bus was coming. The bus usually came about 8 o’clock. The controlling evidence was given by appellant as follows:

“Q Mr. Lester, you traveled, traveling out of Emory on Highway 19 in a southerly direction were you involved in an accident shortly the other side of the city limits of Emory ?
“A Yes sir.
“Q Could you tell us what it was that happened down there?
“A Well, when I got where I could see, I saw a car, it was stopped on the right-hand side of the road, and as I got, approached it I could see a little boy standing by the front fender of the car, at the front part of the car, and I saw it was a child, and I just took my foot off the gas, raised my foot up, and when I got close enough, well the child turned and walked toward the door, back door of the car like he was getting in the car, and so my thought was they stopped to pick him up to take him to school, and just as I got even with the car, the car started up and a little dog ran out from behind the car, and I honked my horn and whipped to the right, apd as I did, a little boy darted out from behind the car right into the side of my pickup.
it * * *
“Q Well, how far would you say you were outside the town of Emory?
“A Oh, approximately two miles.
“Q Would that be your answer as to how far you were from where you turned off of 69, we’ll say, at the intersection of 69, Highway 69 and Highway 19?
“A Approximately two miles.
“Q All right, sir. Now, how far from where your truck was located on Highway 19 was it to where the car was stopped on Highway 19 facing you?
“A Well, I couldn’t see the car till I go, oh, approximately one hundred yards because I went over a little hill.
“Q Yes sir. And when you came over the top of this hill then you saw the car situated at the bottom of the hill?
“A Well, it wasn’t at the bottom of the hill, no sir, it was up the hill a little ways.
“Q And this car was stopped?
“A Well, best, I didn’t know it at the time, but as I got closer I could tell that it was stopped.
“Q And of course it was facing north on Highway 19 ?
“A Yes sir.
“Q All right, sir. Now, then, where was the, where were you when you first observed the little boy?
“A Well, about two hundred feet from the car I guess, approximately.
“Q Did you later learn that this boy was Jim Weddle?
“A Yes sir.
“Q All right, sir. Now, Mr. Lester, as you approached this stopped car traveling south on Highway 19, how far did you travel from the time that you first saw this car until you met the car ?
“A Oh, approximately one hundred yards, seventy-five to a hundred yards.
“Q And at that time the car was traveling north on Highway 19?
“A Yes sir.
“Q All right, sir. Now, you mentioned about seeing a dog; tell us what this dog did?
“A It darted out from behind that car across the road in front of me.
“Q How far behind the dog was the boy?
“A Immediately behind it.
“Q You told me, did you not, that when you saw this car stopped that you took your foot off the accelerator of your pickup?
“A I just raised my foot up.
“Q Why did you do that, sir?
“A Well, natural instinct when I see somebody on the road that I do that.
“Q Natural instinct for what reason, sir?
“A Well, see a child on the road, side of the road.
“Q Did you take any other action in regard to the control of your vehicle at that time?
“A No sir.
“Q Why didn’t you, sir?
“A Well, I didn’t think it was necessary.
“Q When was the next time that you raised your foot off of the accelerator on your vehicle from that time until the point of impact?
“A Well, I never did put it completely back up, I just had my foot laying down there, I never did give it anymore gas.
“Q What was the next action you took in regard to the control of your vehicle then ?
“A I hit my brakes after the incident.
“Q After the incident?
“A Yes sir.
“Q What do you mean by the incident?
“A After the little boy ran into the side of the pickup.
«* * *
“Q All right, sir. How fast were you traveling, Mr. Lester, when you first observed this car stopped on the east side of Highway 19?
“A I’d say about forty-five miles an hour.
“Q How fast were you traveling at the point of the impact between your vehicle and the Weddle child?
“A Well, I’d estimate about forty, between forty and forty-five.
“Q And you were going downhill all of that time, is that correct?
“A. Slight downgrade.
“Q Wouldn’t your truck normally have picked up speed on a downhill grade ?
“A Not necessarily.
“Q Did you ever attempt to turn your vehicle to the right or the left?
“A Yes sir.
“Q Which direction ?
“A To the right.
“Q And at what point did you attempt to do that?
“A When I first saw the little dog.
“Q Did you move your vehicle to the right ?
“A Yes sir.
“Q In relation to the center stripe in Highway 19, where was the point of impact located where you struck the Weddle child?
“A Over in my lane about, say, three foot from the centerline, four, approximately.
“Q How far did you travel in your vehicle after the point of impact, Mr. Lester?
“A Well, approximately two hundred feet or two-fifty.
“Q All right, sir. And this was after you had started applying your brakes immediately ?
“A Yes sir.
“Q So would it be safe to say that it takes you two hundred to two hundred fifty feet to stop that particular vehicle traveling at forty to forty-five miles per hour?
“A Not necessarily, I just didn’t come to a quick stop, I stopped as quick as I could without endangering turning the pickup over.
“Q After you stopped your vehicle on the, on which side of the road did you stop your vehicle, sir?
“A Right-hand side.”

Under this evidence, the appellant in his Brief takes the position that the facts bring the case within the rule of “sudden appearance” of a child, with the motorist being unable to avoid the collision, and cites many authorities to support the rule.

We overrule this contention, and believe the evidence sufficient to support the trial court’s conclusion that a trespass was committed in Rains County in that appellant failed to keep a proper lookout to avoid the striking of Jim Weddle and failed to keep his truck under control, each of which was the proximate cause of the accident. The facts in our opinion bring the case within the rule which governs the conduct of one driving a truck and seeing a child in or near the highway. Blashfield Cyclopedia of Automobile Law and Practice, Volume 4, Section 151.12, page 202, states the rule as follows:

“A motorist seeing a child or children in or near the street or highway must exercise a far greater degree of care and watchfulness than is required of him as to a pedestrian similarly placed who has reached the age of discretion; and a person driving on a city street through a crowd of children is required to exercise the greatest care possible for their safety. Accordingly, where an automobile driver sees a child in a place of danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision. The mere presence of children is itself a warning because of the unpredictable nature of their conduct.
“The degree or extent of care required of a motorist to avoid injury to a child may depend on whether the child was alone or was accompanied by an adult, greater care being required when the child is not accompanied by an adult.
“A driver of an automobile seeing children in or near the street or highway should take proper steps for their protection if under the circumstances he should anticipate that they will get in his way. He should turn as far away from them as is practicable under the circumstances, and must have his automobile under control.
“Where children are on the sidewalk and corners, it is the duty of a motorist to drive his machine at such a rate of speed as will give him control thereof in an emergency. Where the driver is aware of the presence of children he may be held responsible although it appears that he did not see the injured child in time to prevent the injury.
“However, there is no liability on the part of the motorist in the absence of negligence, since he is not an insurer.”

The appellant by his own admission did nothing to bring his truck under control after seeing the child standing alone on the side of the road except to remove his foot from the accelerator and after colliding with the child, he ran some 200 feet before he could stop his truck with safety. It is true that appellant now says that he surmised the child got in the car; however, it would have been just as easy to surmise that the child got out of the car to catch the school bus, neither of which would have been correct, and neither of which should excuse the appellant from reducing the speed of his truck to where he could have stopped the same when the emergency existed. Had he reduced the speed of his truck to where it would have been under control, the accident in all probability would not have occurred. Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W.2d 13; Red Arrow Freight Lines, Inc. v. Smith et ux, Tex.Civ.App., 93 S.W.2d 495, 499.

We quote from the last cited case as follows:

“ * * * It seems to us that the driver of appellant’s truck owed the duty to check up the speed of his truck to a much less rate than he said he was going before and at the time of the accident. He then saw and had passed the school zone notice, saw children on the school grounds, and the uncontro-verted evidence of other witnesses shows that other children were on the highway going toward the school grounds at the time of the accident. Conceding that the driver of appellant’s truck did all that he could do to avoid striking the boy after he saw him go upon the highway in front of his truck, yet, by his failure to use that degree of care that an ordinarily prudent person would ordinarily use under the same circumstances, it seems to us he created the danger of injuring some child he now says was unavoidable. While the driver of the truck had the right, under ordinary circumstances, to drive on the highway at the rate of 25 miles per hour, we think, under the undisputed circumstances, there could be no question but that he should have checked up his speed to a much less speed than he said he was going at the time of the accident. * * * ”

The trial was before the court without a jury, and we are of the opinion that the evidence was ample to support the court’s finding of a trespass in Rains County and therefore retain venue in that county.

The judgment of the trial court is affirmed.


author: SAM D. JOHNSON, Justice.

text:
    Luke C. CASH, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 86.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    March 20, 1968.
    Rehearing Denied April 17, 1968.
    Charles Kipple, Saccomanno, Clegg & Martin, Houston, for appellant.
    William A. Olson, City Atty., F. William Colburn, Senior Asst. City Atty., Houston, for appellees.
   SAM D. JOHNSON, Justice.

The case arises under Article 1269m, Vernon’s Ann.Tex.Civ.St., the Firemen’s and Policemen’s Civil Service statute.

Appellant, plaintiff below, was denied a promotion to the position of Assistant Fire Chief of the City of Houston Fire Department. Appellant attempted to appeal to the District Court from the decisions of the Firemen’s and Policemen’s Civil Service Commission upholding the Fire Chief’s rejections of appellant for such appointment. Appellant’s appeal was dismissed for want of jurisdiction by the trial court.

Appellant’s cause proceeded to trial, however, as an application for writ of mandamus. It was heard by the court below without a jury and judgment was for appellees denying the writ of mandamus. Appeal is perfected from the judgment of the trial court.

The essential facts are as follows: On December 20, 1966, three vacancies existed in the classification of Assistant Chief of the City of Houston Fire Department. After appropriate notice the Firemen’s and Policemen’s Civil Service Commission administered an examination to give applicants, one of whom was appellant, Luke C. Cash. Appellant scored the highest on the written examination and, all applicants being equal in seniority points and efficiency reports, became the highest on the Register of Eligi-bles. On the same date, January 13, 1967, the Fire Chief submitted three separate requests to the Commission, each seeking certification of eligibles for one of the three vacant classifications of the same rank, that of Assistant Fire Chief.

The Commission’s first reply was dated January 16, 1967, and named Luke C. Cash first, the second highest eligible second, and the third highest eligible third. On January 20, 1967, the Fire Chief announced his intention to bypass Luke C. Cash and to appoint the second highest eligible to Assistant Chief. Appellant filed an application for review and the Commission upheld the Fire Chief’s decision February 3, 1967.

Thereafter, on February 6, 1967, the Commission replied a second time to the Fire Chief’s request of January 13, 1967, by certifying a second list of three eligibles. It named Luke C. Cash first, the third highest eligible (on the original list) second, and the fourth highest eligible third. The Fire Chief then announced his intention to bypass Luke C. Cash a second time and to appoint the second ranked on the second list, but third highest on the original list of eligi-bles. Appellant filed a second application for review and the Commission upheld the Fire Chief’s decision on February 28, 1967.

Thereafter, on March 1, 1967, the Commission replied a third time to the Fire Chief’s requests of January 13, 1967, by certifying a third list of three eligibles. It named Luke C. Cash first, the fourth highest eligible (on the original list) second, and the fifth highest eligible third. The Fire Chief then announced his intention to bypass Luke C. Cash a third time and to appoint the second ranked on the third list, but fourth highest on the original list of eligi-bles. Appellant filed a third application for review and the Commission upheld the Fire Chief’s decision on March 23, 1967.

After each of the three certifications of eligibles by the Commission, the Fire Chief filed identical letters with the Commission setting out his reasons for not appointing appellant to Assistant Chief and announcing his intention to appoint the second name on each list. The reasons stated are substantially that appellant: (1) had demonstrated a lack of ability in coordinating work under his jurisdiction; (2) was not able to properly supervise personnel within his jurisdiction; (3) could not assume a reasonable delegation of authority; and (4) had admitted to the Chief that he is unable and considerably embarrassed when called upon to speak before a group of people.

In each of the three instances, and within ten days after each of the Commission’s orders upholding the Fire Chief’s decisions, appellant sought judicial review by pleadings filed in this cause in the District Court. A preliminary hearing on appellee’s plea to the jurisdiction resulted in an order dismissing appellant’s cause insofar as an appeal to the court from the Commissioner’s order was sought, but affirming the District Court’s jurisdiction insofar as appellant sought relief by way of mandamus.

In establishing his right to a writ of mandamus, it is appellant’s contention that the Fire Chief had the duty of appointing appellant to one of the three vacant positions of Assistant Fire Chief from the moment he received certification of the first list of three eligibles on January 16, 1967, and that this duty was ministerial and mandatory by virtue of the provisions regarding vacancies and promotions in the Firemen’s and Policemen’s Civil Service Act, V.T.C.C., Art. 1269m. Stated another way, it is appellant’s position that where three vacancies exist in one classification at the time request for certification of eligibles is made, that only the three top names can be certified and all three persons must be appointed.

Appellant contends for such construction by combining the provisions of Section 10 with those of Section 14, subd. E. Section 10 requires the Fire Chief to request the names of suitable persons from the three names certified and “the appointment shall be of the person with the highest grade, except there be a valid reason why the appointment should be given to the one making the second or third highest grade.” Appellant reasons, and we think correctly, that the language in Section 10 restricts appointments made thereunder to the first, second or third names. Stated another way, appointments under Section 10 cannot be made except from the names certified.

It is apparent, however, from an examination of the Firemen’s and Policemen’s Civil Service Act, that Sections 9, 10 and 11 are intended to govern original appointments. Section 14, subd. E, on the other hand, is entitled “Promotions, filling vacancies” and is obviously intended to be applicable to that type of situation. A consideration of promotion is presented in the present fact situation, not an original appointment.

Section 14, subd. E provides, “Upon written request by the Heads of the Departments for a person to fill a vacancy in any classification, the Commission shall certify to the Head of the Department the three (3) names having the highest grades on such eligibility list for such classification for the vacancy requested to be filled, and the Head of such Department shall appoint the person having the highest grade, except where such Head of the Department shall have a valid reason for not appointing such highest name, and in such cases he shall, before such appointment, file his reasons in writing, for rejection of the higher name or names, with the Commission, which reasons shall be valid and subj ect to review by the Commission upon the application of such rejected person.”

To give the statute the construction prayed for by the appellant would eliminate an ingredient specifically provided for in Section 14, subd. E, that of discretion within the bounds enumerated. If the duty placed on the Fire Chief is purely ministerial, and is to appoint the first three names to the three Assistant Chief positions, the specific legislative provision providing for discretion for valid reasons is eliminated. It is only by virtue of the peculiar nature of the instant fact situation, i.e., three vacancies at one time, that the question is presented. Would there be limited discretion if two vacancies existed? If there were four or more vacancies what must the Commission do? In our judgment the Commission here did what the Act requires and what is reasonable, it certified three names to a vacancy. Appellant’s first point of error is overruled.

Appellant’s second point of error is that, to the extent that the appointments were discretionary, the evidence was clear that the Fire Chief’s refusal to promote appellant was an abuse of discretion. The trial court concluded that the rejections of appellant and the Chief’s reasons given therefore were not arbitrary, capricious or unreasonable and did not constititue an abuse of discretion.

Mandamus may issue in a proper case to correct a clear abuse of discretion, especially where there is no adequate remedy at law. Dykes v. City of Houston, 406 S.W.2d 176 (Tex.Civ.App.); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). The inquiry pursuant to the substantial evidence rule is limited to a determination of a question of law, to-wit: is the administrative decision under review reasonably supported by the substantial evidence. Fire Dept, of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664; Fuller v. Mitchell, 269 S.W.2d 517 (Tex.Civ.App., writ ref., n. r. e.).

There is a settled presumption in favor of the questioned order and the burden is on the appealing party to show that it is not reasonably supported by the substantial evidence. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.Sup.1966) ; Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A. L.R.2d 965.

Under Section 14, subd. E of Article 1269m, the head of the department, was given the discretion to pass over higher names on the eligibility list in order to promote names lower on such list by meeting certain requirements. In accordance with those requirements, he filed what he considered to be “valid reason for not appointing such highest name” in writing with the Commission, the substance of which were set forth previously. The Section further provides that the reasons filed by the Fire Chief shall be “valid and subject to review by the Commission upon the application of such rejected person.”

The Commission here, acting on the application of the appellant, granted appellant a full and complete hearing at which he was represented by attorney and presented evidence. After such reviews the Commission rendered decisions in each instance upholding the decisions of the Fire Chief and sustaining the validity of his actions.

The trial court then granted appellant a hearing on his application for mandamus. The statement of facts indicates that the court considered the evidence in full, including all witnesses presented. These were the appellant, the Fire Chief, the three men who received the appointments, and three other Chiefs. The trial court determined that the acts of the Fire Chief were not arbitrary, capricious or unreasonable, did not constitute an abuse of discretion, and were reasonably supported by the substantial evidence.

The three vacancies that were to be filled were second in importance in the Fire Department only to the position of the Fire Chief. The evidence here showed that the Fire Chief had the unusual opportunity of seeing the appellant function for over five months in the position for which he was being considered. He also had the opportunity of observing at least two other candidates function in the same job. The record indicates that initially, the Fire Chief had a very high regard for the appellant and considered him the best man for the job. The Fire Chief removed appellant from the acting position because he was not performing satisfactorily and if he had been so performing, he would have retained the acting appointment. Considering the importance of the position and the significance of the responsibility attached thereto, the reasons set forth by the Fire Chief on their face appear to be valid and sufficient. The record substantiates this conclusion.

We must conclude that appellant has not discharged his burden of showing that the decisions of the Fire Chief and the Firemen’s and Policemen’s Civil Service Commission are not reasonably supported by the substantial evidence. Appellant’s second point of error is overruled.

Appellant’s third point of error is that the trial court erred in dismissing the original appeal for want of jurisdiction. In City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, the Supreme Court held that there was no statutory right of appeal from an order of demotion. A subsequent amendment specifically provided for appeal where demotion occurs and amended Section 18 of the Statute now provides, “In the event any Fireman or Policeman is dissatisfied with the decision of the Commission, he may * * * file a petition in the District Court, asking that his order of suspension or dismissal or demotion be set aside * * The statutory authority refers to “suspension or dismissal or demotion,” and does not refer to the situation here presented, that is, a failure to promote. The statutory authority for appeal does not appear in such instance.

Appellant contends, in the alternative, there is an inherent right of appeal. In City of Amarillo v. Hancock, supra, the Supreme Court stated, “* * * the courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only where the administrative action complained of violates a constitutional provision.” (Emphasis added). There the trial and intermediate appellate court found an inherent right of appeal and the Supreme Court reversed and ordered that the case be dismissed for want of jurisdiction. See also Sfair v. City of San Antonio, 274 S.W.2d 581 (Tex.Civ.App.1955), writ ref., n. r. e.; Mason v. City of San Antonio, 324 S.W.2d 90 (Tex.Civ.App.1959, no writ hist.) ; Stone v. Texas Liquor Control Board, 417 S.W.2d 385 (Tex.Sup.Ct.1967). We must conclude no inherent right of appeal exists in the fact situation here presented. Appellant’s third point of error is overruled.

The judgment of the trial court is affirmed, Associate Justice Barron not sitting.


author: PEDEN, Justice.

text:
    Raymond AYALA et ux., Appellants, v. Paul F. WALDNER, Director, Catholic Family and Children’s Service et al., Appellees.
    No. 15276.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    April 4, 1968.

      Elizabeth Joyce Cox, Raul A. Gonzales, Jr., Houston, for appellants.
    Charles Kipple, Houston, Saccomanno, Clegg & Martin, Houston, of counsel, for appellees.
   PEDEN, Justice.

The natural parents of Bernard Ayala, age 4, filed this appeal from the trial court’s denial of their petition for a writ of habeas corpus by which they sought custody of Bernard. After a hearing, the trial judge awarded his custody to Mr. Paul Waldner, Director of Catholic Family and Children’s Service, and made findings of fact, which we summarize:

1.Petitioners are natural parents of Yolanda, 7, Diane, 6, Vincent, 5, Bernard, 4, and Charlene, 3.

2. In July, 1965, when Bernard was desperately ill, petitioners took him to Texas Children’s Hospital as a charity patient; they had no funds at the time.

3. They voluntarily executed a “custody agreement and medical consent” in favor of respondents. Its contents are set out in this opinion.

4. Bernard weighed only 17 pounds in July, 1965, although he was two and a half years old; he was suffering from severe malnutrition, unable to perform motor tasks or anything a normal child of one year could do.

5. Earlier, in October, 1964, when Bernard was twenty months old, he had been admitted to the same hospital weighing 14 pounds and ten ounces, the normal weight of a child about eight months old, and was in a malnourished state like that in which he was found in July of 1965.

6. While in the hospital in late 1964, Bernard gained eight pounds in twenty-six days. He weighed 23 pounds when returned to petitioners in 1964, but he had lost six of them by July, 1965. He was retarded both mentally and physically because of neglect and lack of food, not because of any disease.

7. In July, 1967, after being in exclusive custody of respondents for two years, he weighed 34 pounds and could walk, talk and care for himself.

8. At age three, in April, 1966, Bernard’s mental age was one year and ten months. Eight months later, while in his present environment, his mental age was two years and eight months, but he still has a marginal mental retardation.

9. Since late in 1965, Bernard has been in a foster home provided by respondents, a duly licensed child placing agency. Petitioners’ request that Bernard be returned home has been denied by respondents, who fear he would revert to the condition in which he was found twice before.

10. Mr. Ayala does not know the ages or the whereabouts of his four children of his former marriage. He suffers from epileptic seizures, one of which recently caused him to drive his car into a building. He works from noon to midnight six days a week at a drive-in grocery and beer stand, where his gross salary is $100.00 per week,

11. Bernard’s mental and physical problems resulted from petitioners’ inability to provide for his minimum physical, medical and emotional needs and from their neglect. At the present time they are unable to provide the medical care he needs if he is to continue to progress toward normalcy.

12. Bernard’s return to petitioners would be detrimental to his physical, mental and emotional state. He would probably revert to his condition of October, 1964, and July, 1965, which was caused by inability and neglect of petitioners to furnish his minimum needs, and it would be to his best interest for him to remain in the custody of respondent, Paul F. Wald-ner, Director of Catholic Family and Children’s Service.

The custody agreement mentioned in item 3. above is set out in full:

“I do hereby request the Catholic Family and Children’s Service to take care of, and I do hereby entrust to its care, my children, Bernard Ayala and in consideration of the acceptance of said children by the Catholic Family and Children’s Service and the expenses thereby incurred for their care, I do hereby agree to pay to said agency the sum of $ 1.00 each and every week, in advance, beginning 7-27-65 and continuing without further notice or demand upon me from the Catholic Family and Children’s Service until my said children are returned to me, or their support is otherwise provided for. I further agree to provide (or to pay for) the necessary clothing for my children.
“I do hereby request the Catholic Family and Children’s Service to furnish necessary medical care to my children, and authorize the Catholic Family and Children’s Service, by its duly authorized agent, to consent to the administration of anesthetic and to performance of any emergency operation found to be necessary for my children’s welfare upon competent medical advice, and I do hereby agree to pay for said medical care.
“I further agree to observe the rules and regulations of the Catholic Family and Children’s Service and not remove my children from its care, or the care of its agents, except at the request of the Catholic Family and Children’s Service or after reasonable notice of my intention to do so.”
/s/ Mrs. Amparo E. Ayala
/s./ Raymond M. Ayala

Appellants assert as points of error that the trial court erred in denying custody to them because:

1. no evidence the natural parents are unfit;
2. insufficient evidence to rebut the presumption that the child’s best interest is served by awarding his custody to his natural parents;
3. natural parents are entitled to custody unless shown to be disqualified;
4. no evidence as to conditions in the foster home;
5. trial court did not enforce the custody agreement;
6. no evidence that best interest of child would be served by award of custody to the agency;
7. court’s ruling makes the child dependent on charity and is contrary to public policy; and
8. there had been a judicial determination that the child was not a dependent and neglected one.

We have carefully examined the entire record of this case, and we hold that the evidence is sufficient to support the trial court’s findings.

In determining custody matters Texas courts are primarily concerned with the best interests of the child. There is a presumption that his interests are best served by award of his custody to his natural parents. The burden of proof on the issue of his best interests is on the one seeking to deprive the natural parents of custody. The trial court’s judgment in determining the best interests of the child and in awarding its custody in accordance with this determination should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him. Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966). In both the Herrera case and Mumma v. Aguirre, 364 S.W.2d 220 (1963), the Supreme Court of Texas has declined to restore custody of a child to a natural parent found to be a fit person to have such custody when to do so would disrupt a good family relationship to which the child had become accustomed. We feel that the facts of this case as found by the trial court present circumstances at least as compelling as those shown in the Herrera and Mumma cases we have mentioned. We hold that the trial judge did not abuse his discretion.

Although there is very little evidence in the record as to the conditions in the Ayalas’ home, and there is even less as to the conditions in the foster home where Bernard has thus far been placed by Catholic Family and Children’s Service, the circumstances shown in the evidence and the conclusions drawn from them by experts in the fields of medicine, psychology and social work support the finding of the trial judge that at present it is to Bernard’s best interest that he stay in the agency’s custody. On two occasions while in custody of his natural parents, Bernard’s state of malnutrition became so marked that his mental and bone development still lag, according to the uncontroverted evidence. On both occasions he responded dramatically to treatment provided by respondents. If the expert witnesses were correct in their conclusions, it was vital to Bernard that his care be placed in others.

Appellants assert that the trial judge made no finding that Bernard’s natural parents are unfit to have his custody and that there is no evidence of probative force to support such a finding. We hold that such findings are not necessary to support the judgment, but that the evidence is sufficient to support such a finding and that we would imply it from those findings which were made if it were necessary. De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944); Rule 299, Texas Rules of Civil Procedure; Herrera v. Herrera, supra. We overrule appellants’ first three points.

Appellants say the court’s decision constitutes error because there is no evidence as to the foster parents’ home life, affection for Bernard or their ability to provide for him. We overrule this fourth point. Custody was awarded to Mr. Wald-ner. As director of a licensed child placing agency he has the responsibility of looking out for Bernard’s best interests. The evidence supports the trial court’s findings that he is doing this well and that Bernard’s parents have seriously neglected him; the law requires proof of nothing more.

Appellants contend that the trial court erred in failing to award custody of Bernard to them by enforcing the Custody Agreement and Medical Consent. It was held in Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), that when a voluntary transfer of custody of a child is sought to be enforced it is to the best interests of the child that the court will look, adding: “The attempted transfer is not a contract, and cannot be enforced as such, because neither the child nor its custody was a subject-matter of contract.” We overrule this, the appellants’ fifth point of error, and for reasons already stated we overrule their sixth point.

Appellants’ seventh point asserts that the court’s awarding of custody to the agency was error because in effect it makes Bernard dependent on the public for support and is contrary to public policy. No authority has been cited in support of this theory, and we have found none. We overrule the seventh point. We hold that the public policy of this state favors the assumption by charitable agencies of the care of children whose best interests will thus be served.

Appellants’ eighth point asserts that it was error for the court to fail to return Bernard to his parents since there had been a judicial determination that he was not a dependent and neglected child.

A petition filed by the agency asking that Bernard be declared to be a dependent and neglected child had earlier been denied after a hearing; there was no appeal from that order. Our Supreme Court held in Hendricks v. Curry, 401 S.W.2d 796 (1966), that the issues of dependency and custody are severable. We hold that the outcome of the dependency case is not determinative of this custody suit.

The judgment of the Trial Court is affirmed.