author: PHILLIPS, Justice. HUGHES, Justice

text:
    Xenia D. BELL, Appellant, v. Robert G. UMSTATTD, Appellee.
    No. 11378.
    Court of Civil Appeals of Texas. Austin.
    March 30, 1966.

      Martin J. DeStefano, Austin, for appellant.
    Brown, Sparks & Erwin, Jay H. Brown, Will G. Barber, Austin, for appellee.
   PHILLIPS, Justice.

This is a suit for damages brought by Xenia Bell, the appellant here, against Robert G. Umstattd, an anesthesiologist and appellee, for injuries sustained by appellant as a result of appellee’s attempts to insert an endotracheal tube between her vocal cords in order to administer an anesthetic prior to surgery. When appellant rested her case in the trial court, appellee made a motion for an instructed verdict upon the grounds that no competent evidence of any probative force was presented- upon which any findings of negligence or proximate cause could be based. The trial court granted this motion and appellant has perfected her appeal to this Court from a take nothing judgment.

We affirm the judgment of the trial court.

On or about March 1, 1962, appellant contacted Dr. John Garcia concerning a mass or swelling in her abdomen. Dr. Garcia then engaged Dr. Maurice Hood to examine appellant. Said examination revealed a pulsating mass, and it was decided by said doctors to perform an exploratory laparotomy to determine the nature of the pulsating mass. An operation was scheduled for March 13, 1962, to perform this surgery. Appellee, Dr. Robert Umstattd, was engaged on behalf of appellant by Dr. Maurice Hood to administer the anesthetic to appellant while undergoing the operation. Appellee decided to administer the anesthetic gases by use of an endotracheal tube, a method wherein a plastic tube is inserted between a patient’s vocal cords. After the tube is inserted it is connected to an anesthesia machine which administers the gases selected by the anesthesiologist. Following said operation on March 13, 1962, appellant’s vocal cords were en-demous and swollen. Two granulomas were caused to be formed on appellant’s vocal cords and an adhesion developed at the anterior intersection of appellant’s vocal cords and a web formed.

Following the operation on March 13, 1962, appellant was sent to the intensive care unit of Brackenridge Hospital' because of fear that her vocal cords would swell shut and that she might die of suffocation. She remained in an oxygen tent in the intensive care unit from March 14 to March 16, 1962. A tracheotomy kit to perform a tracheotomy, a method wherein a patient’s throat is slit to provide an airway, was kept available during appellant’s stay in the intensive care unit.

Dr. Oliver Suehs was contacted following the surgery to examine appellant’s vocal cords. On or about April 12, 1962, surgery was performed on appellant by the said Dr. Oliver Suehs, and one of the granulomas was removed. The web, or adhesion, was removed. Appellant claims that the web has reappeared and still exists on her vocal cords, and the granuloma which was not removed still exists on her vocal cords in the form of a nodule.

For several days following the operation appellant was unable to speak. Later, she was only able to speak in a hoarse whisper and in harsh, rasping tones. Appellant claims that she still experiences difficulty in speaking and still talks in harsh tones.

As a youth appellant was a trained vocalist and voice instructor, and still enjoyed the use of her voice by singing in various local functions. As a result of said injuries, appellant claims that she is no longer able to sing and experiences difficulty and embarrassment in speaking.

Appellant’s first point of error is that of the trial court in granting judgment against appellant because there was an abundance of evidence of probative force raising fact issues that should have been submitted to the jury.

We overrule this point.

Appellant alleged that the appellee was negligent in thirty-two instances which negligent acts proximately caused injury to her vocal cords. For the purposes of this opinion it is unnecessary to state these alleged acts of negligence in detail. Appellant’s case primarily rests upon the alleged negligence of appellee in attempting to thrust a No. 8 size plastic tube between appellant’s vocal cords for the purpose of administering the anesthetic; that a size eight tube was too large for the opening between appellant’s vocal cords; that appel-lee attempted to insert the No. 8 tube at least two or three times using more force than was needed on each attempt; that appellant’s vocal cords were damaged thereby; that appellee subsequently attempted to place a No. 7 tube, then a No. 6 tube in the same manner, both attempts being unsuccessful; and that, finally, Dr. Hood, the surgeon who was standing by to operate, at appellee’s suggestion, intubated appellant with a No. 5 tube which allowed the anesthetization to proceed as desired.

Appellant asserts that this is not a case involving the complicated fields of medicine in regard to diagnosis and treatment of a patient, but is one involving the mere physical act of inserting a plastic tube between a patient’s vocal cords. Appellant further contends that the appellee had not seen appellant before the day of surgery, that appellant had an unusually small opening between the vocal cords; that appellee had not used the proper type of laryngoscope in order to view the larynx and vocal cord opening; that a gentle, twisting motion is used to insert a tube and that appellee used more force than was necessary in order to insert the tube; that appellee used too large a tube and that when Dr. Hood took over and finally inserted a smaller tube, the opening between appellant’s vocal cords was bleeding and finally, that appellant did not have a laryngospasm.

The only doctors called by appellant were Doctors Hood (the surgeon in the case) Suehs and appellee. These doctors testified for approximately six days and the case is before us on an extensive record. Able counsel for appellant questioned each of the doctors thoroughly however none of this testimony discloses any negligence on the part of appellee or any causal connection between the alleged acts of negligence and the result of his unsuccessful attempts to intubate- her.

The burden of proof in an alleged medical malpractice case, as stated by the Texas Supreme Court in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949), is as follows:

“It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries.” 219 S.W.2d at p. 782.

Cited in more than fifty subsequent Texas cases, the Bowles case furnishes the qualitative test to be applied by Texas courts to a plaintiff’s evidence in any alleged medical malpractice suit. Indeed, the above quoted language has been twice reiterated with approval by the Supreme Court, first in Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 935 (1953) and again in Hart v. Van Zandt, Tex.Sup., 399 S.W.2d 791 (1965).

The rationale of the burden of proof rule pronounced in Bowles is explained as follows :

“As a circuit judge in Ohio, Chief Justice Taft clearly stated the principle, with the reasons supporting it, in these words: ‘When a case concerns the highly specialized art of treating (disease), with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. Again, when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury.’ Ewing et al. v. Goode, C.C., 78 F. 442, 444. * *” 219 S.W.2d at p. 782.

This rationale was recently repeated by the Supreme Court in Hart v. Van Zandt, supra, in the following language:

“In determining negligence in a case such as this, which concerns the highly specialized art of treating disease, the court and jury must be dependent on expert testimony. There can be no other guide, and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury. Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio, 1897); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954).
In determining the question of proximate cause, the general rule is ‘that proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill, since the jury will not be permitted to speculate as to the cause of the injury. Thus where the evidence most favorably to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof.’ 13 A.L.R.2d 22. * * *” 399 S.W.2d at p. 792.

Of this rule, this Court said in Kaster v. Woodson, 123 S.W.2d 981 (Austin Civ.App.1938, writ ref.):

“Such has been the law in all civilized nations since in his politics, Aristotle wrote: ‘As the physician ought to be judged by the physician, so ought men to be judged by their peers.’ ” 123 S.W.2d at p. 983.

Bearing in mind the rules stated in Bowles and Hart, the testimony given by the medical witnesses was that appellant went into a spasm of the larynx which was the principal cause of the difficulty in in-tubation; that while, in all probability, one of the tubes that were attempted to be inserted or the tube that was actually inserted caused the trauma that subsequently produced the damage to the vocal cords complained of, no one could point out, for certain, what tube (or for that matter, which doctor handling the various tubes) had caused the damage.

The testimony of the medical witnesses as to proximate cause can be summarized by that of Dr. Hood as follows:

“Q * * * Now, then, Doctor, you -don’t know which of these tubes may have caused the granulomas and the little web?
A No, sir, I do not.
Q And there is no way in the world to tell.
A No, sir.
Q You don’t have any idea whether they resulted at the first, second or third effort on the part of Dr. Um-stattd to intubate the patient.
A No, sir, I do not know.
Q And you don’t know whether the little .granulomas and web were due to the presence of the No. 5 tube during-the surgery.
A No, sir. I do not. I don’t know whether it caused it or not.
Q And that tube was in place over a period of something like an hour and a half.
A Yes, sir, it was.
Q And we would all agree, I am sure, that friction alone can cause -injury.
A In some patients it might, yes, sir.
Q And I am talking now about injury to the vocal cords.
A Yes, sir.
Q And the movement caused by the Jefferson ventilator, while not a major movement, was present throughout the time the ventilator was on over a period of approximately an hour and twenty-five minutes.
A Yes, sir.
Q Now, the web was at the smallest part of this ‘V’ made by the vocal cords, according to Dr. Suehs’ testimony.
A Yes, sir.
Q And I will ask you to assume that to be true for the purpose of these questions. And that being true, Doctor, didn’t the smallest tube have the best chance to get to the smallest place where the vocal cords come together?
A The smaller the tube, I think the more anterior it could reside under any circumstances.
Q And the presence of this smallest tube during the surgery could have caused the web that we have been talking about.
A I think it could have been caused by that, yes, sir.
Q And this littlest tube could have also caused the granulomas, could it not ?
A Yes, sir.
Q It is all just pure guesswork as to which part of the intubation procedure resulted in this minor trauma.
A As far as I am concerned, it would be.
Q * * * Now, these minor injuries could have been caused even though Dr. Umstattd used the identical technique he had used thousands of times.
A Yes, sir. * * *
Q And these minor injuries could have resulted even though Dr. Umstattd used the same standard of care that is used by anesthesiologists in this community in the exercise of ordinary care in the practice of their specialty.
A Yes, sir.”

The testimony further disclosed that it is preferable to use the largest size tube possible so that more oxygen can pass to the patient’s lungs with less effort on the part of the machine applying the oxygen. Consequently, with less effort on the part of the machine there is apt to be less movement of the tube between the patient’s vocal cords during the operation. It is for this reason that the preferred method is to try the larger tubes first then working down to smaller sizes as necessary.

In addition, the medical witnesses testified that in their opinion, appellee had acted according to accepted standards of medical practice by anesthesiologists and that he he did not do anything which would not have been done, or failed to do anything which would have been done, in the exercise of ordinary care by anesthesiologists.

Edwards v. West Texas Hospital, 89 S.W.2d 801 (Amarillo Civ.App.1935, writ dism.), Henderson v. Mason, 386 S.W.2d 879 (El Paso Civ.App.1964, no writ), and Dobbins v. Gardner, 377 S.W.2d 665 (Houston Civ.App.1964, writ ref., n. r. e.) are cited by plaintiff as dispensing with the requirement of proof of negligence and proximate cause by testimony of a doctor where the defendant’s alleged negligence “is the use of mechanical instruments, or where it is so plain as to be within common knowledge of laymen.” In Edwards the defendant delivered only one twin and failed to detect the other; in Henderson reference is made as dictum to leaving surgical instruments or sponges in an incision or operating on the wrong portion of a body; and in Dobbins a gauze pack was left in the patient’s body. Although these cases illustrate instances where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, they are not pertinent to this case. The subjects of alleged negligence in administering anesthesia and causation of granulo-ma and adhesion injuries to vocal cords are -medically complex and specialized matters beyond the common knowledge of laymen.

Appellant’s second point of error is that of the trial court in overruling her motion to declare the witness, Dr. Maurice Hood, as an adverse and hostile witness because the testimony introduced in support of such motion clearly revealed the hostility and bias of said witness against appellant.

We overrule this point.

Prior to calling Dx. Hood as a witness, plaintiff filed a motion to have him declared an adverse witness upon the grounds that since plaintiff could have named Dr. Hood as a co-defendant in this suit, he was an adverse party under Rule 182, Texas Rules of Civil Procedure, and that Dr. Hood’s oral deposition established that he was a hostile witness.

Rule 182 is applicable only to one who is a party to such suit or proceedings either as plaintiff or defendant. Dr. Hood was not a party to this lawsuit. See Parker v. Traders & General Insurance Co., Tex.Civ.App., 366 S.W.2d 107, modified on other grounds, 375 S.W.2d 714, Sup.Ct.

Appellant’s third point of error is that of the trial court in refusing to grant appellant a new trial because of newly discovered evidence by appellant which showed that a witness subpoenaed by appellant was in fact under the employ of the appellee, which fact resulted in the trial court making erroneous rulings in regard to questioning by appellant’s attorney and appellee’s attorney, and the weight to be given these witnesses’ testimony.

We overrule this point.

As best we can understand this point, appellant asserts that his witness Dr. Suehs was discovered to be in the employ of Dr. Umstattd in that appellee’s attorney offered to pay Dr. Suehs a witness fee or in fact did pay Dr. Suehs a witness fee. Inasmuch as this case turns on the no evidence rule, if error was committed here, it is harmless, Rule 434, T.R.C.P.

Appellant’s points of error four and five, briefed together, are that of the trial court in sustaining appellee’s exceptions to appellant’s questions propounded to Dr. Oliver Suehs inquiring into whether said Doctor desired to testify against the defendant or any other medical doctor because said questions were calculated to and would have shown if any bias existed on the part of said witness, and would have given the opportunity to the appellant to explore said biases or prejudices; the error of the trial court in overruling plaintiff’s objections to the testimony of Dr. Oliver Suehs, because such testimony contained conclusions based on matters not in evidence and therefore invaded the province of the jury.

We overrule these points.

With respect to appellant’s point of error number four, the court’s ruling was correct in that appellant was attempting to impeach'her own witnesses. See this Court’s opinion in Whitfield v. Traders & General Insurance Company, 136 S.W.2d 626.

With respect to appellant’s point of error number five, we repeat -that since the case is controlled by the no evidence rule, should there have been any error here, it was harmless error under Rule 434, T.R. C.P.

Appellant’s point of error number six is that of the trial court in refusing to grant the plaintiff’s motion for directed verdict, because the undisputed evidence showed an intentional trespass on appellant by appellee.

We overrule this point.

Before the operation, appellant signed the following “Consent to Operation and Anesthesia” which is as follows:

“BRACKENRIDGE HOSPITAL
CONSENT TO OPERATION AND ANESTHESIA
* * * * * *
It is hereby requested that the following operation be performed on Xenia Bell, and this constitutes my voluntary consent and an unconditional grant of authority by me to Dr. Garcia & Dr. Hood of the staff of Brackenridge Hospital, to cause any anesthetic to be administered and to do the following: Aortic Graft and all surgery and procedures -reasonably related thereto and deemed necessary by the above-named physician at the time of the operation. I have been fully informed of the nature of this operation and its possible consequences.
Dated: 3/12/62
/s/ Xenia D. Bell Patient”

Before surgery, appellant was informed that the anesthetic to be administered would be halothane, and she made no inquiry regarding the method to be used in administering it.

Appellant cites an opinion of the San Antonio Court of Civil Appeals, in Scott v. Wilson, 396 S.W.2d 532, application for writ of error pending, wherein the Court held that a doctor had the duty to fully inform his patient of the nature of operation known as stapedectomy with vein graft; that the doctor should have informed the patient of the process contemplated, the dangers and hazards of the operation together with chances of restored hearing in order to enable patient to choose between the operation or living with impaired hearing.

We do not have the same situation here as in Scott. The main operation upon appellant was an Aortic Graft and all surgery and procedures reasonably related thereto and deemed necessary by her surgeon at the time of the operation. The anesthetic was incidental to this operation, was necessary in order to perform the operation and, in fact, appellant had consented to “any anesthetic to be administered.” Under these circumstances, the appellee, barring inquiry, was not under a duty to disclose the method he or the surgeon would select in administering the anesthetic. Dr. Hood testified that he would not have performed appellant’s surgery with the administration of anesthesia by any method other than the endotracheal tube method. Surgical operation may consist of many steps and involve many specialists. It would, indeed, be unreasonable and undesirable to place a burden of full and complete disclosure upon each and every specialist involved as to the specific methods intended to be used in an operation and all of the possible risks involved in each step of an operation. See Hall v. United States, D.C., 136 F.Supp. 187, affirmed 5 Cir., 234 F.2d 811.

Appellant’s point of error number seven is that of the trial court in refusing to apply the doctrine of res ipsa loquitur to the facts presented in this cause, because this doctrine is clearly applicable under the facts of this case.

We overrule this point.

This Court has repeatedly held that the doctrine of res ipsa loquitur does not apply in a malpractice case. See Floyd v. Michie, Tex.Civ.App., 11 S.W.2d 657 and Kaster v. Woodson, Tex.Civ.App., 123 S.W.2d 981. See also an opinion of the San Antonio Court in Barker v. Heaney, 82 S.W.2d 417.

Appellee has a motion before this Court that the original of the deposition of Dr. Maurice Hood heretofore filed in this Court is not a part of the transcript or statement of facts in this cause and should be stricken from the appellate record. In support of this contention he cites Rules 371, 372(d) and 379. Texas Rules of Civil Procedure.

We have read the portions of the deposition cited by appellant. Since the deposition could only have been offered for impeachment purposes, and since our decision would have been the same irrespective of the conflict in Dr. Hood’s testimony, if any error was committed in bringing up the deposition in the manner complained of, it was harmless error under Rule 434, T.R.C.P. Consequently, in view of our decision in the matter, we dismiss appellee’s motion.

We affirm the judgment of the trial court.

Affirmed.

HUGHES, Justice

(dissenting).

It is my opinion that the majority has failed to state the case from appellant’s point of view as required in passing upon the propriety of an instructed verdict in a case tried to a jury. Hart v. Van Zandt, Tex.Sup.Ct, 399 S.W.2d 791, Abrams v. Brent, 362 S.W.2d 155, Austin, writ ref., n. r. e. Nevertheless, I am of the opinion that the Court has reached a correct result insofar as the lack of medical proof of negligence of appellee, except as noted below, is concerned.

I am of the opinion, however, that an issue of fact was made as to whether ap-pellee committed a trespass upon appellant in inserting or attempting to insert between her vocal cords a rather large plastie tube without explaining to her, since there was no emergency present, the different methods of administering anesthetics and giving her the choice of the method to be employed. This theory of trespass evolves from the doctrine of informed consent of the patient to surgery and medical treatment, a doctrine which is generally applicable in malpractice suits. See Scott v. Wilson, 396 S.W.2d 532, San Antonio, application for writ of error pending, Hall v. United States, D.C., 136 F.Supp. 187, affirmed, 234 F.2d 811 (5th Cir.), Mayor v. Dowsett, 400 P.2d 234, Supreme Court of Oregon.

Hall v. United States, supra, holds that this doctrine applies to the administering of anesthetics.

Scott v. Wilson, supra, is the subject of an excellent note in 44 Tex.Law Review, 799. The author was critical of the opinion for the reason that consent to the operation having been given by the patient the duty of the doctor to inform as to the risks involved, he believed, should be determined on the basis of negligence rather than on the theory of assault and battery. This distinction is of paramount importance because if negligence must be established then hard to come by medical testimony must be obtained to sustain it. This would not be true under the trespass theory.

In this case there is, in my opinion, medical testimony upon which negligence of the appellee in failure to explain and give appellant a choice of how the anesthetic was to be administered could be based, which testimony is:

“A * * * We see the patients in a get-acquainted type visit, and give them some idea of what to expect from the anesthesia standpoint, being careful to allay fears without trying to initiate any.
* ⅝ * * *
Q Now, you don’t tell the patient, as an accepted procedure, the type method you have selected to administer the anesthesia ?
A We give them a general idea of what to expect from the type of administration, yes.
Q Do they have a choice?
A We give them an opportunity to deny it. Our visit is more of a visit more dependent upon the patient’s response to our being there, our presence. If the patient is anxious to talk, we will stand there or sit there and talk with them as long as they want to, of course, but we don’t like to draw out our pre-operative visit on our own accord.
Q All right. Doctor, you are saying that the patient has a choice or doesn’t have a choice, — do they?
A In the , final analysis, yes, they have a choice.”

An anesthesiologist is responsible for his negligence as is a surgeon. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933. Whether his services are but an “incident” of the operation, as the majority states, is, therefore, of no consequence. Such services are, however, of the greatest importance to the patient since the anesthesiologist holds the life of the patient in his hands.

I respectfully dissent.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Rayburn M. HAMILTON, Individually and as Administrator of the Estate of H. S. Cobb, Deceased, Appellant, v. Ava Josephine McAMIS, Appellee.
    No. 204.
    Court of Civil Appeals of Texas. Tyler.
    March 24, 1966.

      James T. Flynt, Quitman, for appellant.
    H. M. Harrington, Jr., Harrington & Harrington, Longview, for appellee.
   MOORE, Justice.

This cause originated in the probate court of Wood County, Texas, in a probate proceeding involving the estate of H. S. Cobb, deceased. The appellant, Rayburn M. Hamilton, was the administrator of the estate. On February 19, 1965, the probate court of Wood County entered a final decree closing the estate and partitioning the properties belonging to the estate to the various heirs, including appellant, Rayburn M. Hamilton, and the appellee, Ava Josephine McAmis. Appellant immediately gave notice of appeal to the District Court of Wood County, Texas.

Upon motion of the appellee, the District Court of Wood County dismissed the appeal for want of jurisdiction on the grounds (1) that appellant had failed to file an appeal bond with the County Clerk within 15 days after the rendition of the order appealed from, and (2) that appellant failed to file the transcript of the proceedings in the probate court with the District Clerk within 30 days of the order appealed from.

The question is whether or not appellant has properly perfected his appeal so as to confer jurisdiction upon the District Court.

Appellant admits in his brief that the transcript of the proceedings in the probate court was not timely filed with the Clerk of the District Court. He contends, however, that since he filed all of the original papers in the probate proceedings in the District Court prior to the time the court heard the motion to dismiss, the court should have retained jurisdiction and therefore erred in dismissing the appeal. We do not agree.

Contrary to appellant’s contention in his brief, the record before us does not reflect that the original probate papers were ever filed in the District Court. The record does reflect that the decree of partition closing the estate was filed. This instrument, however, does not appear to have been certified to by the County Clerk, and was not filed in the District Court until March 29th, whieh date was more than 30 days after the date of the order appealed from.

It is provided in Rule 336, Texas Rules of Civil Procedure that the party appealing from the order of the probate court shall file a transcript of the proceedings therein with the Clerk of the District Court within 30 days from the rendition of the order appealed from. The Rule further provides that no enlargement of time for filing the record prohibited by Rule 5 shall be allowed.

We are of the opinion that Rule 5 has the effect of making mandatory and jurisdictional the provisions of Rule 336 regarding the filing of the transcript in the District Court. Since the provisions of Rule 336 requiring the transcript be filed in the District Court within 30 days of the rendition of the judgment or order appealed from is mandatory and jurisdictional, we are of the opinion that appellant lost his right to prosecute his appeal and as a result, the District Court acquired no jurisdiction; consequently, the trial judge had no alternative other than to dismiss the appeal. Callahan v. Stover (Tex.Civ.App.), 263 S.W.2d 630, writ ref.

In view of the ruling made on appellant’s first point, the remaining question of whether or not appellant, as an administrator of the estate, was required to give bond as a prerequisite to his appeal to the District Court under Section 29 of the Probate Code, V.A.T.S., becomes immaterial and we therefore defer discussion of the second point.

For the reasons stated, the judgment of the District Court dismissing the appeal must be affirmed.

Affirmed.


author: SELLERS, Justice.

text:
    Rayburn M. HAMILTON, Appellant, v. Ava Josephine McAMIS et al., Appellees.
    No. 209.
    Court of Civil Appeals of Texas. Tyler.
    March 24, 1966.
    James T. Flynt, Quitman, for appellant.
    H. M. Harrington, Jr., Harrington & Harrington, Longview, for appellees.
   SELLERS, Justice.

The plaintiff, Rayburn M. Hamilton, brought this suit in the District Court of Wood County, Texas, by filing an unverified petition seeking to enjoin and abate a valid District Court judgment pending in the District Court of Smith County, Texas, rendered in 1949 in which the plaintiff was a party. The suit was in trespass to try title.

The plaintiff’s petition also seeks the same relief against a valid judgment of the County Court of Wood County rendered in February 1965 in which the plaintiff was likewise a party. Neither judgment is alleged to be void, but certain errors of law are alleged to have been committed.

The prayer for relief in plaintiff’s petition is for relief in equity and law that all partition judgments and motions be arrested and held in abeyance and abated, and defendants enjoined from further action until a construction can be had on its merits of the will of Mrs. W. W. Cain, deceased, pending in the District Court of Kaufman County, Texas.

The defendants, through their attorney, answered the above petition of plaintiff with a motion for summary judgment to which is attached the affidavit of the attorney setting out the validity of the judgments sought to be enjoined and abated and further alleged that plaintiff’s petition presents a collateral attack on said judgments and the trial court was without jurisdiction to grant the relief prayed for by plaintiff.

The trial court set the motion of defendants down for hearing on July 23, 1965. No counter affidavits were filed by plaintiff and no evidence was offered on the hearing by either party except the above referred to affidavit attached to defendants’ motion for summary judgment.

The trial court sustained the motion for summary judgment by defendants and entered judgment denying the plaintiff any relief to which action the plaintiff excepted and gave notice of appeal to the Court of Civil Appeals at Tyler, and the record is now before this court for review.

At the outset we are of the opinion that the trial court’s judgment must be sustained for the reason that plaintiff’s petition seeking injunctive relief was not verified and the plaintiff offered no evidence on the hearing in support of the allegations in his petition. Rules of Civil Procedure No. 682 provides-:

“No writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit, and containing a plain and intelligible statement of the grounds for such relief. * * * ”

We are likewise of the opinion that the plaintiff’s petition presents a collateral attack upon the judgments complained of, and the trial court had no jurisdiction to enjoin the same. In State v. Epperson et al., 121 Tex. 80, 42 S.W.2d 228, it was held:

“ * * * The law in this state is thoroughly settled that, when a court of competent jurisdiction acquires jurisdiction of the subject-matter of a suit, its authority to determine all the questions involved therein continues, subject only to the appellate authority, until the matter is finally disposed of; and no court of co-ordinate jurisdiction can lawfully interfere with its action. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Barrier v. Lowery et al., 118 Tex. 227, 11 S.W.2d 298, 13 S.W.2d 688. * * *”

For the above reasons the judgment of the trial court is affirmed.


author: NYE, Justice. SHARPE, Justice

text:
    Marilou McCAMPBELL et al., Appellants, v. COASTAL STATES CRUDE GATHERING COMPANY, Appellee.
    No. 184.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 24, 1966.
    Rehearing Denied March 17, 1966.
    Huggins, Vickery & McConnell, by Charles R. Vickery, Jr., and Harley W. McConnell, Houston, for appellants.
    W. T. Blackburn, Corpus Christi, for ap-pellee.
   NYE, Justice.

This is a condemnation case in which the plaintiff, Coastal States Crude Gathering Company, sought to condemn an easement for pipeline across the land of the defendants. Victoria Bank & Trust Company, as trustee for Marilou McCampbell, the defendants in the trial court and appellants here, questions the jurisdiction of the county court to render judgment in this case.

The record reflects that the plaintiff filed with the county judge of Victoria County its statement in writing of its intention to condemn a certain easement across defendants’ property. Regular proceedings were held before the Special Commissioners who were duly appointed. After notice was given to the defendants and a hearing was had before the Commissioners, an award representing the value of the 3.84 acres taken, was made by the Commissioners in the amount of $3,208.76. This was filed with the Judge of the County Court. The plaintiff deposited twice the amount of the award in the registry of the court and took possession of the property. Art. 3268 Vernon’s Ann.Tex.Civ.St. Defendants thereafter filed a motion to withdraw the amount of the award, stating that the Commissioners’ award should be distributed to the Victoria Bank & Trust Company, Trustee for Marilou McCampbell, and that the County Court should order the clerk of that court to promptly pay the defendants the sum of $3,208.76, without prejudicing the right of either party to a determination of the damages by the Court, subsequently.

The County Court thereupon granted the motion and paid to the defendants out of the registry of the court, the amount determined by the Special Commissioners. The defendants timely filed their objections to the award, contending: (1) that the award was grossly inadequate and (2) that the statutory measure of damages was not used by the Special Commissioners in arriving at their award.

The case was tried before a jury in the county court. The record shows that the defendants, the appellants herein, assumed the burden of going forth with the evidence at the beginning of the trial in the normal position of plaintiff, seeking to establish the damages to their property. Rule 265 Texas Rules of Civil Procedure. In response to the answers by the jury to a number of special issues, judgment was entered, granting the plaintiff an easement to construct a pipeline across the defendants’ property, and awarded the defendants the sum of $1,209.00. The judgment recognized that the plaintiff had heretofore deposited the sum of $3,208.76 and that the defendants had withdrawn that amount. It was therefore ordered that the defendants pay the difference of $1,999.76 to the plaintiff.

The court found in its judgment that “ * * * Defendants had waived all questions concerning the right of Plaintiff to condemn this property and the fulfilling of the prerequisites necessary to give jurisdiction to this Court, and that the only matter left for the consideration of the Court and the Jury at the time of trial were questions concerning the damages caused to Defendants’ real estate by Plaintiff, * * At no time did defendants tender or pay the award money previously withdrawn and held by the defendants, to the plaintiff, nor did they move for a directed verdict or for a dismissal of the proceedings based upon the failure of the plaintiff, the appellee herein, to prove jurisdictional facts in the county court. However, defendants predicate their appeal on the sole question of the jurisdiction of the county court, contending that the plaintiff failed to prove facts establishing (a) the public interest, (b) facts empowering plaintiff to condemn and (c) the jurisdiction of the court over the subject matter, i. e., the right afforded them to condemn. The question narrows itself on appeal in this court to: Did the withdrawal by the landowners, defendants, of the amount of the award which plaintiff deposited in the registry of the court, obviate the necessity of plaintiff introducing any evidence to establish jurisdictional facts in the county court ? The plaintiff admits that there was no evidence introduced by it except as to the element of damages. The appellant-defendant raises no point on appeal on the question on the adequacy of the damages, but attacks the judgment of the county court solely on the question of its jurisdiction to enter the judgment hereinabove set forth.

The plaintiff-appellee’s statement was filed with the County Judge in the county where the land was situated. It clearly sets forth the plaintiff’s name, its principal place of business, and the nature of its business. The petition statement sets forth the necessity and the plaintiff’s purpose for acquiring the property; a complete description of the land sought to be taken; the names of the owners of the property; and the statutes under which the legislative body had vested in plaintiff its right of eminent domain for the purpose of acquiring easements and rights of way. The plaintiff plead that it has made a bona fide effort to agree with the defendants as to the value of the right of way and easement sought to be condemned, but that the negotiations were unsuccessful. The judgment recited that all procedural matters, proper notice to defendants, and objections to the award were given. There is no question that the county court of Victoria County has actual potential jurisdiction to decide cases of eminent domain.

The record indicates to us that all of the proceedings through the Commissioners’ decision and award were regular and in compliance with the statutes authorizing the plaintiff to condemn the subject property. Art. 3264, V.A.T.S., et seq.; Art. 6022, V.A.T.S.; Art. 2.01 B(3) (b), Texas Business Corporation Act. Where the award of the Commissioners. has been deposited by the condemnor in compliance with Art. 3268 V.A.T.S. and thereafter appropriated or accepted by the condemnee, such condemnee is thereafter precluded from contesting the condemnor’s “right to condemn” the property. The Supreme Court of Texas has so held. State v. Jackson, 388 S.W.2d 924 at 925, Sup.Ct.1965. In a situation where the plaintiff wishes to take possession of the property after the award has ■ been made, Art. 3268 V.A.T.S., Sec. 3, provides that: Should it be determined on final decision of the case of condemnation that the “right to condemn” the property does not exist the plaintiff shall surrender possession thereof and the court shall order a writ of possession and determine the amount of damages, if any, suffered by the defendant. However, if the “right to condemn” has been agreed to by the condemnee by his acceptance or appropriation of the award of the special commissioners, it seems to us that the latter part of Section 3 of this Article 3268 properly provides for the situation we have before us, where it says: “ * * * ; provided, that in any case where the award paid the defendant or appropriated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to be returned to the plaintiff.” (emphasis supplied). This would seem to us to limit the defendant in condemnation to determination of the value of his property where the amount of the award was appropriated by him or was paid and accepted by him before the court rendered final judgment. See Henslee v. State, Tex.Civ.App., 375 S.W.2d 474, wr. ref., n. r. e. (1963), where in effect only damages were considered on appeal. This is true because the “right to condemn” is conceded when the defendant accepts the award. State v. Jackson, supra. This reasoning is further indicated by virtue of the Constitution of the State of Texas in Article I, Section 17, Vernon’s Ann.St., wherein it provides that:

“No person’s property shall be taken, * * * or applied to public use without adequate compensation being made, unless by the consent of such person', * * (emphasis supplied)

The appropriation or acceptance of the award by the defendants before final judgment was entered was tantamount to consent. State v. Jackson, supra.

This we believe was the holding of the Supreme Court of Texas in State v. Jackson, 388 S.W.2d 924 (1965). The Supreme Court said:

“ * * * After an award has been made, and the money deposited in the registry of the Court and the landowner has withdrawn the same, he cannot thereafter contend that the' taking was unlawful. In legal contemplation, he has consented to such taking and will not be permitted to retain his compensation and at the same time assert that the condemning authority had no right to take his property under the eminent domain power. This point was settled by this Court’s decision in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 476 (1897). See also, McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App.1960, wr. ref., n. r. e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App.1960, no wr. hist.), 22 Tex.Jur.2d 380, Eminent Domain, § 266 — Waiver of right to object to appropriation.”

The acceptance of the award of the special commissioners by the defendants precluded them from contesting the condemnor’s right to take the property. Art. 3266, Sec. 6, V.A.T.S.; State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 1960; Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 1958; Crockett v. Housing Authority of City of Dallas, 274 S.W.2d 187.

This appeal is not a proper contest of the jurisdiction of the county court under these facts. Defendants themselves invoked the jurisdiction of the county court by objecting to the award of the special commissioners. Art. 3266, Sec. 6, V.A.T.S. Their complaint here in effect is, that the plaintiff failed to prove jurisdictional facts. The defendants by accepting and retaining the award after regular proceedings were had before the commissioners, have in legal contemplation consented to the proceedings in the county court. They are only entitled to litigate the issue of adequate compensation. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93 (1953), State v. Jackson, supra.

Appellants’ points of error are overruled. Judgment of the trial court is affirmed.

SHARPE, Justice

(concurring).

I concur in affirmance of the judgment below for the reasons stated in this opinion.

In my view, all of appellants’ five points of error are squarely answered by appel-lee’s single counterpoint and the argument made thereunder. Appellee’s basic position is that the withdrawal of the commissioners’ award by the landowner made it unnecessary for appellee, the condemning authority, to go forward with any evidence and left for determination only the issues of damage caused by the taking, placing reliance upon the case of State v. Jackson, 388 S.W.2d 924 (Tex.1965), and the cases therein cited. That correct contention requires affirmance of the judgment.

Appellants’ argument in support of their points is primarily based upon the case of Wilbarger County v. Hall, 55 S.W.2d 797 (Tex.Comm.App.1932, judgment approved, but opinion not adopted by the Supreme Court). Appellants’ brief contains the following statement: “The case comes down to simply this — Is Appellant within the jurisdictional holding of Wilbarger County (Com. A), 55 SW (2) 797, or within the waiver holding of State v. Jackson, — Tex. —, 388 SW (2) 924; the two cases are not in conflict; this case is controlled by the Wilbarger County holding, and Appellant is entitled to dismissal.” In my view, appellants’ reliance upon Wilbarger is misplaced for several reasons. There the evidence did not show that the landowner had withdrawn the amount of the award deposited in the registry of the court, and there was no question about the effect of a withdrawal upon the jurisdiction of the county court to try the condemnation case; nor was there such withdrawal in any of the cases cited by Wil-barger as authority for its holding that the condemnation proceeding there involved was a nullity. Further, in Wilbarger and the cases therein cited it appeared that the condemnor was proceeding to condemn in a manner not authorized under the statutes, particularly because the County was seeking to condemn on its own initiative for State Highway purposes; and in each case the Court held that the County was required to file the cases on behalf of the State Highway Commission, and that suits filed on the sole initiative of the County were void. The cases relied upon by appellants turn on the interpretation of the particular statute involved and are not relevant to the case now before us. In Wilbarger there was an attempt to confer jurisdiction by agreement, while in State v. Jackson, supra, in the cases cited therein, and in the instant case, there was no such attempt. Here the judgment of the trial court is premised upon the view that the landowners are precluded from asserting that the condemning authority had no right to take their property under the power of eminent domain because they withdrew the commissioners’ award. In effect, the appellants elected to withdraw the award and to seek additional damages rather than to contest appellee’s right to condemn. See Crockett v. Housing Authority of City of Dallas, 274 S.W.2d 187, 190 (Tex.Civ.App.1954 n.w.h.) which case is referred to in footnote 2 of State v. Jackson, at 388 S.W.2d 925. I believe that the holding in State v. Jackson, supra, controls the disposition of this case rather than that in Wilbarger County v. Hall, supra.

I am further of the view that Section 3 of Article 3268, V.A.C.S., need not be considered in support of appellee’s position here. The first portion of that section is clearly applicable to a case where it is finally determined that the right to condemn does not exist, which necessarily involves the premise that said issue can be properly litigated; and, further, the damages there involved are those accruing to the defendant (landowner) by virtue of the temporary possession of the plaintiff (con-demnor), and the landowner’s recovery is not in terms of adequate compensation upon a lawful taking. The last provision of Section 3, following the only semicolon in it, relates to any case where there is a lawful taking and the award which has been paid to or appropriated by the landowner exceeds the value of the property as determined by the final judgment; in which event the court shall adjudge the excess to be paid to the condemnor. It thus appears that the first provision of Section 3 affords protection to the landowner where the attempt to take his property is unlawful, and the second provision thereof affords protection to the con-demnor where there is a lawful taking and a refund is due from the landowner. Although Section 3 of Art. 3268 covers the fact • situation as to reimbursement of the condemnor herein, in my view it does not assist in resolving the controlling question presented in this case relating to whether the condemnor was relieved from the necessity of offering evidence to establish its right to condemn because the landowner withdrew the commissioners’ award.

I believe that the line of authority culminating in State v. Jackson, supra, is controlling here and that Wilbarger County v. Hall, supra, and the other cases relied on by appellants are not in point. It appears that the case was fairly and properly tried in the lower court and its judgment should be affirmed.


author: WILSON, Justice.

text:
    Bert M. JAMISON et al., Appellants, v. CITY OF PEARLAND, Appellee.
    No. 4459.
    Court of Civil Appeals of Texas. Waco.
    March 17, 1966.
    Rehearing Denied April 7, 1966.

      C. Wayne Holder, Freeport, Jack Harrison, Alvin, for appellants.
    Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., Robert R. Randolph, Houston, for appellee.
   WILSON, Justice.

Summary judgment was rendered for the city in this action seeking to restrain it from exercising municipal control over land described in ordinances purporting to annex the land to the city. Plaintiff contended the annexed land did not adjoin the city limits. The trial court concluded that the provisions of Arts. 966h and 974d-10, Vernon’s Ann.Civ.Stats., validated the annexation in any event, and rendered the summary judgment. We affirm.

We assume for the purposes of decision that there was a fact issue as to whether the land in controversy adjoined the limits of the city before each of the annexation ordinances was passed. We are pointed to no evidence showing the land was not adjoining the boundaries of the city at the time each was finally adopted. The undisputed evidence establishes the land described in each then adjoined the original boundaries. Art. 974, Vernon’s Ann.Civ.St., applicable to appellee, provides that when a majority of the qualified inhabitants “of any territory adjoining the limits” of any city incorporated as was appellee vote to become a part of the city, the territory may be received as a part of the city under other requirements specified.

We assume also, as the parties do, but without deciding, that but for the effective validation of the ordinances in question by the Acts first referred to above, they would be void under such decisions as City of Irving v. Callaway, Tex.Civ.App., 363 S.W.2d 832, writ ref., n. r. e. and cases cited. See State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780.

Under the contentions of the parties we are relegated to a determination of whether the provisions of Arts. 966h and 974d-10 serve to validate the annexation ordinances, assuming they are otherwise void. The former statute provides that the “areas and boundary lines” of affected cities including “any subsequent extension thereof are in all things validated”, and that any subsequent extension of corporate limits should not be held invalid “because of the inclusion in such limits of more territory than is expressly authorized in Article 971” (which limits area in proportion to population). It declares also that “All governmental proceedings and acts performed by the governing bodies of such cities and towns” since attempted incorporation are validated. Art. 974d-10 contains a general provision (See. 3) similar to that last quoted from Art. 966h. Its other sections are not applicable.

The Legislature may ratify what it could have authorized originally, absent constitutional prohibition. Perkins v. State, (Tex.Sup., 1963), 367 S.W.2d 140, 145; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065, 1078.

Curative or remedial legislation, such as Art. 966h, is to be “given the most comprehensive and liberal construction possible.” City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 280; 2 Sutherland, Statutory Construction, (3d ed.) Sec. 2214, p. 138; 53 Tex.Jur.2d Statutes, Sec. 20, p. 36.

Art. 966h, in our opinion, validated any deficiency complained of in the extension of the boundary lines and the corporate limits of appellee by the ordinances complained of. Duncan v. City of Waco, 125 Tex. 189, 81 S.W.2d 57; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065; State ex rel. American Manufacturing Co. of Texas v. City of Fort Worth, Tex.Civ.App., 339 S.W.2d 707, writ ref. n. r. e.; Bute v. League City, Tex.Civ.App., 390 S.W.2d 811; Lefler v. City of Dallas, Tex.Civ.App., 177 S.W.2d 231. Affirmed.

      . Art. 1175, V.A.C.S., applicable to Home Rule Cities, in enumerating powers, provides authority to such cities to annex additional territory “lying adjacent to said city.”


author: DENTON, Chief Justice.

text:
    EXPORT INSURANCE COMPANY, Appellant, v. Lemuel JOHNSON, Appellee.
    No. 7579.
    Court of Civil Appeals of Texas. Amarillo.
    March 7, 1966.
    Rehearing Denied April 11, 1966.

      Albert Smith, Lubbock, for appellant.
    Wagonseller & Cobb, Lubbock, for ap-pellee.
   DENTON, Chief Justice.

This is a workman’s compensation case in which Lemuel Johnson recovered a judgment against the Export Insurance Company for total and permanent incapacity as a result of a jury verdict.

Appellant first contends the trial court committed reversible error in permitting claimant’s attorney to inform the jury of the number and amount of compensation payments recoverable under the Workmen’s Compensation Act under a total and permanent finding. Appellant’s motion in limine, asking that this information not be referred to before the jury was overruled by the trial court. On voir dire examination of the jury panel, plaintiff’s attorney stated the plaintiff was suing for the sum of $35.00 per week for 401 weeks. Appellant then moved for a mistrial, but the motion was overruled. Plaintiff’s petition containing the same allegations was read to the jury and the plaintiff’s attorney alluded to the same matter on two occasions in the argument to the jury. No objections were made when those pleadings were read or when the statements were made in the jury argument. A motion in limine is not a necessary predicate for complaint on appeal that the admission of the evidence pointed out was error and that the error was prejudicial. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366. The Supreme Court in Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331 had this to say about the holding in the Bridges case: “It seems that the converse of our holding in the Bridges case is that although the overruling of a motion in limine may be error, it is never reversible error.” We cannot say appellant’s motion for mistrial was sufficient to serve as a continuing objection when the same matter was offered during the trial. In the absence of proper objection at the time the evidence was offered, the error is not a reversible error.

Appellant cites Texas Employers’ Insurance Association v. Poe, 152 Tex. 18, 253 S.W.2d 645, for the holding: “It is the better practice not to read to the jury those portions of the pleadings with which the jury is not concerned.” The court did not reverse the case on this ground and no case had been cited which has declared such an error to be reversible.

Appellant urges, in anticipation of appellee’s contention that the matter complained of was “harmless error”, that the injection of the number and amount of compensation payments recoverable into the record four times by claimant’s attorney conclusively shows it to be harmful to the defendant. This argument might have some force if it were not for the fact the matter complained of was brought to the attention of the jury in compliance with the trial court’s ruling. The court had overruled the motion in limine and the motion to declare a mistrial. Regardless of the propriety of the “better practice” of not reading such pleadings to the jury or otherwise bringing the matter to their attention, we must still be guided by the rule that such error, if any, is not reversible in the absence of a showing of harm. We must follow the rule that no judgment will be reversed on appeal unless the error complained of amounted to such a denial of appellant’s rights as was reasonably calculated and probably did cause the rendition of an improper judgment in the case, Rule 434, Texas Rules of Civil Procedure. Numerous cases have held under the records there presented, it was not reversible error to mention or refer to the amount and number of compensation payments recoverable under the Workmen’s Compensation Act. St. Paul Fire and Marine Insurance Company v. Escalera (Tex.Civ.App.) 385 S.W.2d 477, 479 (Ref. N.R.E.); Texas Employers’ Insurance Association v. Charles (Tex.Civ.App.) 381 S.W.2d 664 (Ref. N.R.E.); Texas Employers’ Insurance Association v. Rubush (Tex.Civ.App.) 337 S.W.2d 501 (Ref. N.R.E.); Argonaut Insurance Company v. Titus (Tex.Civ.App.) 347 S.W.2d 372; Texas Employers Insurance Association v. Jackson (Tex.Civ.App.) 366 S.W.2d 599 (Ref. N.R.E.); Texas Employers’ Insurance Association v. Logsdon (Tex.Civ.App.) 278 S.W.2d 893 (Ref. N.R.E.). After viewing the whole record we cannot say that but for the error a different verdict or judgment would probably have been rendered. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277. Appellant’s first point of error is overruled.

Appellant next asserts the jury finding of total and permanent disability is against the great weight and preponderance of the evidence. A review of all the record is required. Lemuel Johnson, a filter press cleaner for Paymaster Oil Mill Company in Lubbock, Texas, was injured on April 24, 1964. He was putting a pipe together and was tightening a bolt when the 15-inch forged steel wrench he was using slipped from the bolt and struck him across the nose. His nose bled profusely that afternoon and he complained of severe headaches, dizzy spells, a blurring of vision, hurting in the back of the neck and across the top of the shoulders and the left arm. Dr. Cobb, a company doctor, examined him three days later. Johnson was hospitalized from April 27 until May 14, 1964. X-rays were taken of the cribriform plate and the ethmoid sinuses, and they revealed a fracture of the ethmoid plate. Evidence of bloody and watery discharge from the patient’s nose and mouth was “suggestive of spinal fluid”. The ethmoid plate was described as being separated from the brain by three layers of meninges which forms a sac full of spinal fluid. Dr. Cobb’s diagnosis was that the plaintiff had a leaking of cerebrospinal fluid through the meningeal area. Dr. Cobb, a general practitioner, immediately referred plaintiff to a neurosurgeon, Dr. William Evans, who agreed with Dr. Cobb’s diagnosis. Treatments consisted of two spinal taps to reduce pressure in the head and medication to prevent infection. He was referred by Dr. Evans to Dr. Mayes, an orthopedic surgeon, who treated plaintiff from July to September, 1964 for his neck and back. Dr. Mayes prescribed additional medication and physical therapy. On August 26, Dr. Evans wrote a letter stating the plaintiff could return to work if Dr. Mayes did not advise otherwise. Dr. Mayes was of the opinion plaintiff was able to return to work “as far as his neck was concerned”. Johnson did not return to his job with Paymaster Oil Mill but in the latter part of November, 1964 he worked for two days for the Texas Planting Seed Association. He testified he was unable to continue the work because: “I started back to bleeding. And my nose started to bleeding and that drainage started coming out through my mouth again and my back got back sore again”. He then returned to Dr. Evans for another examination. Johnson testified Dr. Evans told him: “Not to try to do that kind of work no more”, and then sent Johnson to Dr. Healy, an eye, ear and nose specialist. The latter prescribed glasses for Johnson for his blurry vision and headaches. Except for picking cotton for a short time one afternoon in the fall of 1964 and for working 1½ days on a construction job approximately one month before the trial, Johnson had performed no other work since receiving the injuries complained of. Prior to the injury, it is uncontradicted Johnson had worked regularly for Paymaster Oil Mill for some 23 months and he testified that prior to his injury in April, 1964 he had had no difficulties with his back, neck or headaches and had not experienced nasal drainage or faulty vision. In fact he described his physical condition prior to the injury as being in “perfect health”. Lay witnesses, including a fellow employee and plaintiff’s wife, testified to his inability to work. Johnson testified the condition of his back and neck were about the same at the time of the trial and that he continued to have periodic severe headaches; and that dust and heat prevented him from doing the “type of work I used to do”. Although the treating doctors conceded the plaintiff had received a serious injury, they testified that he had recovered and he was physically able to perform the usual tasks of a workman.

The absence of medical witnesses testifying to claimant’s total and permanent disability is not decisive. It is well settled in this state that total and permanent disability may be reasonably inferred from circumstantial evidence produced by lay witnesses, even though contradicted by medical experts. Travelers Insurance Company v. Arnold (Tex.Civ.App.) 378 S.W.2d 78 and Travelers Insurance Company v. Wade (Tex.Civ.App.) 373 S.W.2d 881 (Ref. N.R.E.) and cases cited therein. When we review the record and testimony as a whole, we cannot say the finding of total and permanent incapacity of the plaintiff is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. This holding necessarily overrules appellant’s contention that the finding of total and permanent disability is grossly excessive by at least 250 weeks.

Appellant’s last point urges error in the refusal of the trial court to submit appellant’s requested special issue inquiring if Johnson’s present incapacity was not caused solely by conditions which existed prior to the accident of April 24, 1964. Rules 277 and 279, Texas Rules of Civil Procedure, require the submission of affirmative defenses only where there is evidence raising such issue. The only evidence tending to show a condition which may have caused Johnson’s disability other than the injuries sustained on April 24, 1964, was the testimony of one of the doctors that x-rays taken three days after the April injury showed a small amount of calcification within the soft tissue behind the spinous process at the fifth cervical vertebra. Obviously, this “very small calcium deposit” was present before the injury complained of, but the same doctor testified the calcium deposit “would be of very little, if any, significance, probably of no significance”. None of the medical witnesses testified that Johnson’s incapacity was caused solely by conditions which existed prior to the injury in April, 1964. We therefore conclude the evidence was not sufficient to raise the issue requested.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    SCHLUMBERGER WELL SURVEYING CORPORATION et al., Appellants, v. Frank L. JAMES et ux., Appellees.
    No. 14452.
    Court of Civil Appeals of Texas. San Antonio.
    March 9, 1966.
    Rehearing Denied April 6, 1966.
    Kampmann, Kampmann & Church, San Antonio, Perkins, Floyd, Davis & Oden, Alice, for appellants.

      Putman & Putman, Ferguson & Davis, Michael W. Wagner, San Antonio, for ap-pellee.
   BARROW, Justice.

This case involves the priority of liens of materialmen who furnished materials and services used by an absconding contractor in drilling a water well upon owners’ homestead, and of the assignee of the promissory note and mechanic’s lien contract executed by owners to the contractor. These parties are hereinafter sometimes referred to as “Suppliers,” “Contractor,” “Assignee,” and “Owners.”

Judgment was entered, after a non-jury trial, whereby the Owners’ liability upon the note was fixed at $9,634.10, and As-signee was given priority for the sum of $7,000.00 which had been advanced by him, and the remaining $2,634.10 was divided among the Suppliers on a pro rata basis. Findings of fact and conclusions of law were filed. Suppliers have appealed, complaining of the judgment insofar as As-signee and Owners are concerned, but they do not question the pro rata distribution among themselves.

On November 18, 1961, Frank L. James and wife entered into an agreement with Stafford McCumber, whereby McCumber contracted to drill a water well on their homestead for $9,380.00, with a provision for credit to be given them for undrilled footage under 2,300 feet. A promissory note with specific reference to the mechanic’s lien contract, a mechanic’s lien contract, and a drilling contract were executed at this time by Owners and Contractor. It was necessary that Owners obtain financing through Farmer’s Home Administration (FHA), and it was contemplated that this lien was to be assigned to the FHA for permanent financing. The drilling and mechanic’s lien contracts required Contractor to pay for all labor and materials furnished on this job, and these bills were required to be paid before the FHA would make its loan to Owners.

It was necessary that Contractor secure interim financing for this job, and on November 27, 1963, the note and mechanic’s lien contract were assigned to Assignee, J. Arnold Uzzell, in exchange for his agreement to furnish the necessary funds needed to drill this well up to the sum of $8,000. Assignee advanced Contractor the sum of $7,000 by co-signing McCumber’s notes at Assignee’s bank. Of this sum, $2,000 was advanced while the work was in progress, and the remaining $5,000 was paid a few days after the well was completed. The trial court found that little of this money was used by McCumber on the well. Shortly after receiving the $5,000 McCum-ber absconded and his whereabouts were thereafter unknown to all interested parties.

On December 1, 1963, McCumber commenced work on this contract and on January 9, 1964, the well was completed. Owners were unable to close their loan with FHA because Suppliers made claim for materials and services furnished to Mc-Cumber on this job. The trial court found that Suppliers furnished materials, supplies and services in connection with drilling said well as follows: Schlumberger Well Surveying Corp., $425.00; Halliburton Company, $1,199.31; Adcock Pipe and Supply Company, $4,414.52; and Frost Drilling Company, $1,015.00. All, except Frost Drilling Company, gave proper notice and recorded their mechanics’ and ma-terialmen’s liens in accordance with law. Frost did not do so because a closer with title company handling Owners’ FHA loan said Frost’s claim would be protected and a lien was not necessary.

Suppliers do not question that the note given by Owners as consideration for drilling this water well was a negotiable instrument. They assert, however, there is no evidence to support the trial court’s finding that Assignee was a holder in due course to the extent of $7,000, and urge that he was not, as a matter of law.

The mechanic’s lien contract requires that all bills be paid, and Assignee knew that it was necessary that they be paid before Owners could close their FHA loan. There was evidence that Assignee should have known of McCumber’s poor financial condition before the $5,000 was advanced. Assignee was informed that McCumber was writing hot checks, and he was informed that at least one materialman had not been paid, nor had the driller and his son. Further, it was shown that Assignee stood to make at least $1,380 by the lending of his credit for about sixty days.

Assignee testified that he advanced the money in good faith and assumed that Contractor would pay all bills with this money. He is corroborated by his own act in advancing Contractor $3,000 on another job, three days after the $5,000 was given McCumber. Assignee further testified that Contractor furnished an affidavit that all bills were paid. When this evidence is viewed in the light required under the “no evidence” test, it amounts to more than a scintilla that Assignee was a holder in due course to the extent of the $7,000 advanced by him.

Suppliers assert that, in any event, their liens are entitled to priority or at least equal dignity with Assignee’s lien under the “relate back” or “inception” theory as set forth in Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652 (1895). See also Sullivan v. Texas Briquette & Coal Co., 94 Tex. 541, 63 S.W. 307 (1901).

It is seen that since this well was drilled upon the homestead of Owners, the liens of Suppliers, under Art. 5460, Vernon’s Ann.Civ.St., were derivative of the contract entered into between Owners and Contractor. Assignee, as a holder in due course of the note given to Contractor by Owners, is entitled to priority under the rule set forth in McCutcheon v. Union Mercantile Co., Tex.Civ.App., 267 S.W.2d 916, wr. ref.

In McCutcheon, the Court resolved a very similar factual situation by holding the assignee of a mechanic’s lien contract was entitled to priority over materialmen who had furnished materials to the original contractor. It was held that the note was a negotiable instrument, although it referred to the mechanic’s lien contract. It was further held that the owners owed the contractor nothing at the time the materialmen perfected their liens, since the contractor had previously transferred the note and lien contract to the assignee. The property was the homestead of owners, and since the materialmen had no contract executed as prescribed by Sec. 50, Art. 16 of the Constitution, Vernon’s Ann.St., any right to a lien in their favor could be derivative only from the lien created by the mechanic’s lien contract. This contract and note had been assigned, so the owners owed contractor nothing. Owners’ debt was to the assignee, the holder .in due course, and the assignee was given priority over the materialmen. See also First National Bank of Lubbock v. Jenkins, Tex.Civ.App., 350 S.W.2d 52, no wr. hist.; Borden v. Tapp, Tex.Civ.App., 333 S.W.2d 417, no wr. hist.

Oriental Hotel Co. v. Griffiths, supra, involved the conflicting priority rights between a deed of trust holder and material-men. The Court held that the material-men’s liens had their inception at the beginning of the work upon the project and were equal to the deed of trust executed upon the same date. The proceeds of the foreclosure were paid pro rata between both claimants. There was no assignment of a negotiable note in that case. The “inception” theory has recently been applied to hold that liens of the assignee of a mechanic’s lien contract and claimants who had furnished labor and materials on the job were of equal dignity, and the mate-rialmen and assignee were held to be entitled to share pro rata in the foreclosure proceeds. See Lubbock National Bank v. Hinkle, Tex.Civ.App., 397 S.W.2d 285, no wr. hist

The Hinkle case does not distinguish the rule of McCutcheon v. Union Mercantile Co., supra, and does not consider whether the materialmen were derivative claimants of the contractor in perfecting a lien against the homestead. It is our opinion that this is a significant distinction between the facts set forth in Oriental Hotel Co. and those of McCutcheon. The Supreme Court in McConnell v. Mortgage Investment Co., 157 Tex. 572, 305 S.W.2d 280 (1957), while approving the rule in Oriental Hotel Co., recognized it as a comparatively narrow one, and said that the rule should not be expanded to apply to factual situations not strictly analogous to those disclosed in the reported opinion.

In our case the property sought to be foreclosed is the homestead of Owners and since Suppliers had no contract with the Owners as prescribed by Sec. 50, Art. 16 of the Constitution, they can perfect a lien only as derivative claimants under the contract of McCumber. At the time they furnished the material and services to Mc-Cumber, he had assigned all his interest in the mechanic’s lien contract given by Owners. Suppliers did not perfect a lien against this homestead property and the trial court properly Reid that Uzzell, as holder in due course of the negotiable note assigned by Contractor, is entitled to priority in the enforcement of the mechanic’s lien contract executed by Owners.

Suppliers assert that the trial court erred in not finding that Uzzell and Mc-Cumber drilled the well as partners or were in a joint venture. These contentions are based largely on activities of these parties in trying to make an oil well out of the water well. During the drilling operation it appeared that a good showing of oil sand was discovered and an oral agreement was made among James, McCumber and Uzzell to test same. Uzzell testified that he agreed to pay, and did pay, an additional $400 for these tests, and was to receive a one-fourth interest in production if oil was discovered. There was testimony from a third party who had some negotiations relative to purchasing the well which would have supported a finding of partnership. However, the trial court refused to find either a partnership or a joint venture and we cannot say that this refusal is without support in the evidence. It is therefore immaterial as to whether or not Suppliers are entitled to interest and attorney’s fees on their claim against Uzzell on a sworn account.

Suppliers also assert that the judgment should have required Owners to pay interest at the rate of 10% after maturity, with an additional sum of 10% for attorney’s fees, as called for under the terms of the note. The promissory note signed by Owners was a ninety-day note with interest at the rate of 6% per annum with a provision for interest at the rate of 10% per annum if not paid at maturity. Owners did not make a formal tender at any time, although about a week before the trial, they filed an amended petition and alleged that they were ready, willing and able to pay the note if they could be protected on same.

The trial court found, as a matter of equity, that none of the parties were entitled to attorney’s fees, although As-signee, Suppliers and Owners had prayed for same. In our opinion the trial court did not abuse its discretion. Ingham v. Harrison, 148 Tex. 380, 224 S.W.2d 1019 (1949). Owners were at all times willing to close the matter in accordance with their original agreement by securing an, FHA loan. They were prevented from doing so because of the claims asserted against the Contractor by Suppliers. It would not be equitable to permit Suppliers to prevent Owners from closing the FHA loan and then to collect attorney’s fees for the delay caused by their own claims.

The judgment is affirmed.


text:
    Lloyd W. ROBERTS et ux., Appellants, v. C. F. HODGES, Appellee.
    No. 7596.
    Court of Civil Appeals of Texas. Amarillo.
    March 21, 1966.
    Rehearing Denied April 18, 1966.

      Linn & Helms, Spearman, Richard N. Countiss, Spearman, of counsel, for appellants.
    Lemon, Close & Atkinson, Perryton, for appellee.
   DENTON, Chief Justice.

This is an appeal from a judgment rendered in favor of C. F. Hodges, appellee against appellants, Lloyd W. Roberts and wife, Rose M. Roberts, by the District Court of Hansford County, Texas, in ap-pellee’s suit on an Oklahoma judgment. The Texas court, without a jury, rendered judgment for appellee on the Oklahoma judgment and appellants have timely perfected this appeal.

On June 26, 19S9, appellants executed a renewal note in Guymon, Oklahoma, in the principal sum of $2667.14, payable to the order of appellee at the First National Bank of Texhoma, Oklahoma on November 1, 1959. The note was not paid and appellee instituted suit against appellants in the district court in Texas County, Oklahoma on May 11, 1962. On December 19, 1963 appellee filed an amended petition requesting out-of-state service be had on appellants in accordance with certain named Oklahoma statutes The district judge issued such order and appellants were served with citation on December 21, 1963 in Hansford County, Texas by a deputy sheriff of that county. On August 24, 1964 the Oklahoma district court rendered a default judgment against appellants on the note, interest, and attorneys’ fees. The instant suit was subsequently filed in the district court of Hans-ford County, Texas. Appellee’s proof included authenticated copies of the Oklahoma court’s default judgment and a citation and return showing personal service upon appellants in Hansford County, Texas. The Oklahoma judgment recited appellants : “were duly served with summons hereof, outside this state under the provisions of 12 O.S.Supp.1963, Section 187, more than twenty days prior to this date and has failed to answer or otherwise plead herein and is in default”. The trial court here found, among .other things, service of process upon appellants was in full compli-anee with the Oklahoma statute covering service upon the non-resident defendants and that no amount of the Oklahoma judgment had been paid.

The general rule is that in order that a judgment of another state may-come within the full faith and credit clause of the Constitution of the United States, it must be a final, valid, subsisting judgment not vacated or set aside in the state of rendition; and it must be conclusive on the merits. 34 Tex.Jur.2d 384, Section 368, and cases cited therein. The Oklahoma judgment appears on its face to be a valid, final and subsisting judgment rendered by a court of general jurisdiction. The introduction of an authenticated copy of that judgment made a prima facie case for ap-pellee unless it was successfully attacked or shown the court lacked jurisdiction. Garman v. Reynolds (Tex.Civ.App.) 284 S.W.2d 262, (Err. Ref.). Ryan v. City National Bank and Trust Company of Oklahoma City, Oklahoma (Tex.Civ.App.) 186 S.W.2d 747. Gard v. Gard (Tex.Civ.App.) 244 S.W.2d 884. Appellants then had the burden to establish that the judgment was not valid or subsisting or that the court did not have jurisdiction to render the judgment. Mendlovitz v. Samuels Shoe Company (Tex.Civ.App.) 5 S.W.2d 559. Garman v. Reynolds, supra. The presumption of validity may be overcome by a showing of lack of proper service or appearance. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577.

Appellee’s pleadings alleged his cause of action on the promissory note was on a contract executed in the State of Oklahoma and on its face it was to be performed in that state; and that it was a class of case under which personal service of summons may be obtained out of state against non-residents under a cited Oklahoma statute. As previously stated, the judgment recited appellants “were duly served with summons herein outside this state under the provisions of 12 O.S.Supp. 1963, Section 187 more than twenty days prior to this date and has failed to answer or otherwise plead herein and is in default”. The statute itself was not introduced into evidence. Appellants contend the Oklahoma statute relative to service must be plead and' proved, and in the absence of such pleadings and proof to the contrary the Oklahoma law must be presumed to be identical to the law of Texas. This contention has been rejected. The Waco Court of Civil Appeals in Dowden v. Fischer (Tex.Civ.App.) 338 S.W.2d 534, decided this question contrary to appellants’ contention here. The court held:

“The presumed validity of a sister state judgment cannot be overthrown by a presumption. ‘The burden of undermining the verity which the Nevada decrees import rests heavily upon the assailant.’ Williams v. State of North Carolina, supra (325 U.S. 226, 65 S.Ct. 1097). If effect were to be given to the rule contended for, every sister state judgment would be vulnerable to a mere showing that the notice or service differed from that required by Texas law.”

In Liddel v. Blevins (Tex.Civ.App.) 244 S.W.2d 335 (Ref. N.R.E.) the court rejected the same contention advanced by appellants and quoted with approval from Texas Law of Evidence, page 102, McCormick & Ray:

“All acts are presumed to have been rightly done until the contrary appears. This includes every judgment and order entered at any stage of the proceeding. Thus, it is said that every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it. All prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment or order will be presumed to state the truth.”

In McKanna v. Edgar, 388 S.W.2d 927, the Supreme Court, in discussing an attack upon service of process to support a default judgment of a sister state used the following language:

“While ordinarily presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment.”

Here appellants present a collateral attack as distinguished from a direct attack.

Appellee proved a prima facie case by introducing the authenticated copy of the Oklahoma judgment and service of citation upon appellants. Based upon the authorities cited and this record, the presumption of validity of the Oklahoma judgment has been met until the contrary has been established by probative evidence. Appellants have failed to discharge this burden.

Appellants say the trial court erred in admitting into evidence the documents of the Oklahoma proceeding in that the provisions of Article 3731a, Section 3, Vernon’s Annotated Civil Statutes were not complied with. That section reads as follows:

“Such writing (official written instruments, certificates, records, returns and reports; and foreign laws) shall be ad-missable only if the party offering it has delivered a copy thereof, or so much of it as may relate to the controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.”

The complete answer to this contention is that appellant, Lloyd W. Roberts admitted he had seen a copy of the Oklahoma judgment and that he had a copy of such judgment in his files at his home.

Another contention is made that there was error in applying the Oklahoma non-resident service statute retroactively. The record does not show when the statute in question became effective. However, the pleadings and judgment indicate the statute was passed by the 1963 legislature. Assuming the Oklahoma statute became law after appellee’s cause of action arose the question is whether appellants right so affected was substantive or remedial. Whether or not- an out-of-state service statute involves a party’s substantive rights has not been directly passed on by Texas courts. In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, the United States Supreme Court was considering a California statute- which permitted California residents to institute suit against insurance companies on insurance contracts even though the insurance company could not be served with process within the state of California. The appeal was from a decision of a Texas court denying relief based on a California judgment under that statute. The court in reversing the Texas court and in upholding the validity of the California judgment, held:

“The statute was remedial, in the purest sense of that term, and neither enlarged or impaired respondents’ substantive rights or obligations under the contract. It did nothing more than to provide petitioner with a California forum to enforce whatever substantive rights she might have against respondent. At the same time respondent was given a reasonable time to appear and defend on the merits after being notified of the suit. Under such circumstances it had no vested right not to be sued in California.”

We conclude the retroactive application of the statute was not improper.

Appellants next attack the Oklahoma judgment on the ground appellants did not have such minimum contact within the state of Oklahoma to bring them within that state’s court jurisdiction. Whether or not the due process clause of the Fourteenth Amendment is violated by a court of a sister state when it renders judgment against a non-resident not served with process within its boundaries, depends upon an application of the so-called “minimum contact” test laid down by the more recent United States Supreme Court cases. International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. McGee v. International Life Insurance Co., supra. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. In International Shoe Company v. State of Washington, the Court said:

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”

In the McGee case, the court held:

“It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.”

The promissory note sued upon in the instant case was executed by both appellants in Oklahoma and the note was payable in that state. The whole transaction upon which the cause of action is based was performed in the state of Oklahoma. The facts of this case clearly bring it within the minimum contact test. The fact the note was a renewal of a prior note which grew out of an indebtedness incurred out of a farming operation in Texas would not alter the result. Only the new and independent cause of action sued upon here will be looked to. See also McKanna v. Edgar (Tex.Civ.App.) 380 S.W.2d 889 (Rev. on other grounds) 388 S.W.2d 927.

The judgment of the trial court is accordingly affirmed.


author: STEPHENSON, Justice.

text:
    Marshall IVY, Appellant, v. Cecil CARRELL, Appellee.
    No. 6814.
    Court of Civil Appeals of Texas. Beaumont.
    March 24, 1966.
    Rehearing Denied April 13, 1966.

      Glenn Faver, Jasper, for appellant.
    Barber & Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit to have a deed declared a mortgage, and to have a cloud removed from the title to plaintiff’s land. Trial was before the court and judgment was rendered for plaintiff. The parties will be referred to here as in the trial court.

Defendant’s only point of error is that the trial court erred by abusing its discretion in failing to grant defendant’s motion for new trial. The record shows plaintiff filed this suit June 12, 1963 and defendant filed an answer June 26, 1963. Plaintiff secured a temporary restraining order and an application for a temporary injunction was denied July 10, 1963. Plaintiff filed an amended petition July 8, 1963 and defendant filed an amended answer February 11, 1964, together with a motion to dismiss.

January 6, 1965 judgment was rendered and entered for plaintiff reading as follows:

“On the 6th day of January, 1965, in the above entitled and numbered cause, wherein Cecil Carrell is plaintiff and Marshall Ivy is defendant, the Judge in open court regularly called said cause in its order on the docket, and came the plaintiff by his attorney and announced ready for trial, and, though duly served with process and having answered herein, the said defendant, Marshall Ivy, failed to appear in this behalf, but made default; wherefore, the citation with the officers return thereon, having been on file with the Clerk of this Court ten (10) days exclusive of the day of filing and of this day, a jury being waived, the matters in controversy, as well of fact as of law, were submitted to the Court, and the Court having heard the pleadings, the evidence and the argument of counsel, all being fully understood, is of the opinion that the material allegations in plaintiff’s petition are true and have been proven by a full and satisfactory evidence, and that the deed given by plaintiff to defendant, dated April 9, 1959, and recorded in Vol. 147, at page 494 of the Deed Records of Jasper County, Texas, is in fact a mortgage on the following described property, which is the homestead of plaintiff, and is therefore void; and that such deed creates a cloud on plaintiff’s title which should be removed. The property covered by the aforementioned deed is more particularly described as follows:
[Description of property not copied into this opinion.]
“It is therefore ORDERED, ADJUDGED and DECREED by the Court that the plaintiff, Cecil Carrell, recover of and from the defendant Marshall Ivy the title and possession of the premises described above, it is therefore ORDERED, ADJUDGED and DECREED that the aforementioned instrument is of no force and effect and the same is hereby cancelled, removing the cloud on plaintiff’s title cast thereby, and that the plaintiff recover his costs of court in this behalf expended.
“Rendered and signed this 6th day of January, 1965.
/s/ O’Neal Bacon Judge Presiding”

January 14, 1965 defendant filed a motion for new trial, and then January 25, 1965 filed an amended motion for new trial. The ground set out in such amended motion in substance was that neither the defendant nor his attorney had received notice of such setting and that this case was heard by the court in their absence. It was also set out in such amended motion for new trial that defendant had a valid and meritorious defense in that plaintiff had given defendant a deed to the land in controversy.

March 11, 1965 the trial court heard the motion for new trial which was denied the same day. The statements of fact, both as to the original trial January 6, 1965 and the motion for new trial, are before this court.

We believe the rule controlling the type of case pending before us to be that in order to secure a new trial the defendant was required to allege and prove upon a hearing that his failure to be present or represented upon the trial was not due to his fault or negligence, or that of his counsel and that he had a meritorious defense to the cause of action asserted against him.

The evidence on the motion for new trial shows: That the attorney representing defendant practiced law in Lufkin until September 1, 1964 when he moved to Beaumont to assume the duties of the office of Assistant U. S. District Attorney. That on December 1, 1964 the court reporter mailed such attorney a notice to his Lufkin address that this case would be called for setting January 4, 1965. That neither the defendant nor his attorney appeared in court January 4, 1965 and the case was set for January 6, 1965 at which time evidence was heard and judgment rendered. Such attorney testified on the motion for new trial that he did not receive notice of the setting, that he did not notify the clerk of the trial court of his change of address, and that he had turned the file on this case over to some other attorneys.

The only allegation in defendant’s amended motion for new trial was that defendant had a valid and meritorious defense. The defendant testified on the hearing of his motion for new trial that he had paid out hard-earned money for the property.

The evidence given during the trial of this case on January 6, 1965 showed: That plaintiff bought the house and 15 acres of land involved in this suit in 1957, and that he and his wife and four children had lived on the property since that time. That they spent $2,000.00 or better on the house for repairs the first two years. That plaintiff borrowed $1,500.00 from defendant to buy a sawmill. That on the same date, plaintiff and his wife gave defendant a deed to the land in controversy and executed a lease from defendant as lessor on the same property. That the lease, which was introduced in evidence, showed the consideration for the lease was $1,687.50 payable $112.50 per month for 15 months, plus the payment of taxes. Such lease also provided that the plaintiffs had an option to purchase the premises at the expiration of the term of the lease and that all the rental payments would apply to the purchase price. Plaintiffs wife testified defendant told her she was not selling the place but just borrowing some money on it. This statement was confirmed by another witness.

The trial court by denying the motion for new trial found that the failure of defendant or his attorney to be present was due to fault or negligence, and, or that defendant did not allege and prove that he had a meritorious defense. We do not find that the trial court abused its discretion.

Affirmed.