author: DAVIS, Justice.

text:
    Warren J. LOVE, Individually and as Next Friend of Idaliah J. Love, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 7663.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 12, 1965.
    Rehearing Denied Nov. 16, 1965.
    Otto B. Mullinax, Mullinax, Wells, Morris & Mauzy, Dallas, for appellant.
    John A. Gilliam, Thompson, Knight, Wright & Simmons, Dallas, for appellee.
   DAVIS, Justice.

Plaintiff-appellant, Warren J. Love, sued defendant-appellee, The Travelers Insurance Company, for workmen’s compensation, and doctor and hospital bills, for and on behalf of his wife, Mrs. Idaliah J. Love, for injuries she received while working for Safeway Stores, Inc., in Dallas County, Texas. The injury occurred on the afternoon of March 18, 1961, when Mrs. Love was sitting on a cardboard box, which she thought was full of canned goods. The box was empty and gave way, dropping her to the concrete floor, injuring her tailbone, lower back, coccyx, including the bone, nerves, muscles, tissues, and producing a ruptured or herniated disc in the Fifth Lumbar vertebra area. The injury was so severe that she instantly cried. Her employer was there and helped her up after the fall. She continued to work for about a week while going to see Dr. John H. Harakal, a doctor near the store. She was paid weekly compensation from March 27, 1961, until June S, 1961. On June 5, 1961, she returned to work, but had to continue to see the doctor. She continued to suffer such severe pain and had to quit work on July 29, 1961. Weekly compensation was commenced again on July 31, 1961, and continued to December 5, 1962.

Appellee had Mrs. Love examined by a Dr. Branch, and later by Dr. John B. Gunn. Dr. Gunn found Mrs. Love to have been injured and had her admitted to Baylor Hospital and treated her by therapy, traction, and muscle relaxants. He thought she had a ruptured or herniated disc, but was not firm in his diagnosis.

Mrs. Love’s pain persisted. Dr. Gunn referred her to Dr. Cherry, who ran a myelogram. The myelogram showed a small defect on the left at L-4 and L-5. This was discounted by Dr. Gunn, as most of her pain was on the right side. She was given more traction and therapy. Dr. Gunn then called Dr. Stephen Weisz, a psychiatrist, suspecting psychomatic problems. Dr. Weisz saw Mrs. Love once, or twice. She was discharged from the hospital on September 20, 1961, with tranquilizers prescribed, and her condition was unimproved. Mrs. Love continued to see Dr. Gunn after she left Baylor Hospital, and continued to follow his prescriptions. Later, Mrs. Love showed an allergy to a prescription that was given by Dr. Gunn. A phone call was placed to Dr. Gunn’s office. Dr. Gunn was not present, and their number was left for Dr. Gunn to call. Dr. Gunn did not call them. Then Mrs. Love called appellee’s agent, who consented for her to return to Dr. Harakal.

By Nov. 11, 1961, Mrs. Love was having radiating pain in the back and down the right leg. She was sent to Dr. Charles M. Hawes, an orthopedic surgeon, for consultation. Dr. Hawes suspected the possibility of a ruptured disc. The appellee wrote Dr. Hawes on Jan. 24, 1962, authorizing his examination of Mrs. Love. Dr. Hawes then placed her in the hospital and ran a myelogram. The x-rays during the myelogram showed a small ventral defect at the last segment beween the lumbar spine and pelvis. Mrs. Love continued to have episodes of low back pain and right leg pains. The appellee refused to authorize an operation, and advised Dr. Hawes that after his examination he felt an operation was necessary, that he must contact it for the authorization of the operation. It further advised Dr. Hawes that prior to the operation that it insisted Mrs. Love be reexamined by Dr. Gunn.

On May 17, 1962, Dr. Hawes wrote to appellee, recommending an operation to remove the lower lumbar ruptured disc and a stabilization of the lumbo sacral area of the back, with a copy of the letter to Dr. Hara-kal and appellant’s attorney. Appellee never responded to this letter. There were several contacts made by and on behalf of Mrs. Love with respect to the operation, but the record is completely silent as to appel-lee’s response thereto.

On June 6, 1962, appellee had Dr. Gunn re-examine Mrs. Love. Dr. Harakal and appellant were present for the examination. Dr. Gunn found that Mrs. Love’s back was stiffer, but he could not say that he could diagnose a herniated disc. Dr. Gunn recommended that she remove the back brace and that she become more active, to see if any disc that hadn’t completely shown itself might protrude further; and then they operate.

Mrs. Love continued to suffer severe pain in her back and in her right leg, and she was admitted to the Dallas Osteopathical Hospital on June 25, 1962. Dr. Hawes and Dr. Harakal, by surgery, removed a ruptured disc on June 27, 1962.

The case was tried before a jury. The jury found that Mrs. Love sustained an injury on March 18, 1961, while in the course of her employment. The jury found that she sustained total and permanent incapacity, and that the injury was the cause thereof. The jury found that the total incapacity began on July 30, 1961, and ended on September 26, 1962. The jury found that Mrs. Love had sustained some partial incapacity, that the injury was the cause of such, that the partial incapacity began on Sept. 27, 1962, and that it would be permanent. The jury found that Mrs. Love would be able to earn $75.36 per week during her permanent partial incapacity. The jury found that ap-pellee had not refused or failed to furnish medical aid to Mrs. Love. The jury found that the incapacity of Mrs. Love was not solely caused by diseases or conditions unassociated with and not aggravated with the accident of March 18, 1961. Judgment was entered for the total incapacity, as found by the jury for a total period of 60 weeks and 2 days, and partial permanent incapacity for the total sum of $24.00. Appellant’s motion for new trial was overruled, and he has appealed. He brings forward 8 points of error.

By his points 1, 2, 3, 4, and 8, appellant says the trial court erred in refusing to grant him a judgment for the medical, surgical and hospital bills for the disc surgery, and in refusing to disregard the jury’s answers to the special issue inquiring about hospital and medical bills because the evidence that appellee did not refuse, fail or neglect to furnish medical aid is against the undisputed evidence and the jury’s answer to special issues is against the great weight and preponderance of the evidence so as to be clearly wrong. Appellee seems to rely upon the case of Robertson v. National Surety Corp., U.S.C.A. 5th Cir. (1953) 208 F.2d 642. This case holds that the hospital and medical expenses had been voluntarily incurred by the plaintiff. Such does not seem to be true in the present case. Mrs. Love secured the injury on March 18, 1961. From that date until after she was operated upon she suffered continuous pain. She had undergone two myelogram tests and had filed an application with the Industrial Accident Board for the operation. Apparently the pain became so severe that she could not wait. The appellee was put on notice of the operation, and was asked if they would furnish the same. To this notice and request the appellee did not reply. It seems that Art. 8306, Secs. 7 and 7a, Vernon’s Ann.Civ.St., has been amended and provides for such medical and hospital services. Travelers Insurance Co. v. Hernandez, U.S.C.A. 5th Cir. (1960) 276 F.2d 267. The insurance company had notice of the operation prior to the time it was had, and they are bound thereby under the statutes. Art. 8306, Secs. 7, 7a and 12e, V.A.T. C.S.; Texas Employers’ Insurance Ass’n., v. Drummond, CCA (1924) 267 S.W. 335, appvd. by S.C. (1926) Tex.Com.App., 279 S.W. 1116; Federal Underwriters Exchange v. Brigham, CCA (1930), 184 S.W.2d 849, N.W.H.; Texas Employers Ins. Ass’n. v. Hodnett, CCA (1948) 216 S.W.2d 301, W.R., N.R.E.; Maryland Casualty Co. v. Hendrick Memorial Hospital, Tex.Comm.App. (1943) 169 S.W.2d 969; 63 T.J.2d 91, Sec. 177. The points are sustained.

By points 9 through 14, appellant complains of the error of the trial court for admitting into evidence evidences of other illnesses and hospital records without a proper predicate being laid therefor. Art. 3737e, V.A.T.C.S. is what is referred to as the Business Record Act. Every kind of regular organized business activities is admissible in evidence, providing a proper predicate has been laid or a foundation has been laid for admission. In the trial of this case there was no evidence that the prior illnesses were the cause of the pain and suffering with which Mrs. Love was complaining at the time. It would have been necessary to plead and prove such prior to the offer of evidence and records. 23 T.J.2d 497, Sec. 339; 32 C.J.S. Evidence § 682 (1), p. 894. When the records are offered in evidence it must be under pleading and proof that they were made in the regular course of business at or near the time the act or event of condition is recorded or reasonably soon thereafter. The records are admissible in evidence after a proper predicate has been laid or a foundation has been made therefor, even though the records may be hearsay to the obj ecting party. The insurer has the burden of pleading and proving that the injured party’s incapacity was due solely to former disease or former injury. Texas Indemnity Insurance Co. v. Desherlia, CCA, 237 S.W.2d 715, N.W.H.; Hartford Accident & Indemnity Co. v. Gant, CCA, 346 S.W.2d 359, and Zellarbach v. Associated Emp. Lloyds, CCA, 200 S.W.2d 653. To admit these records in evidence and permit the jury to take them in the room with them without such pleading and proof no doubt resulted in injury to Mrs. Love. The points are sustained.

By points 15 and 16 appellants complained of the error of the judgment because of the undisputed evidence and stipulation between the parties showing that Mrs. Love was totally and permanently disabled at least until Dec. 5,1962, or sometime thereafter, and the verdict of the jury is contrary to the overwhelming weight of the evidence and is clearly wrong. Much has been written about the stipulation of the parties and payment of workmen’s compensation, but we will not discuss that here. The evidence shows (by appellee’s witness, Dr. Gunn), that when a person has a disc removed the person is not able to go back to work anywhere from 6 to 12 months, or 8 or 10 months after surgery. We will quote a question and answer from the Statement of Facts, wherein Dr. Gunn testified as follows:

“Q. Doctor, assuming there was surgery June 23, 1962, upon Mrs. Love’s back, what period for recuperation and recovery is normal?
“A. Usually, depending on the patient and the type job, usually we let them go back to work from six to twelve months. This is depending on the job, I mean, if it is an operation job, with the removal of a disk, some people go back in eight or ten.”

This evidence was offered on the direct examination of the attorney for appellee.

Mrs. Love testified at the time of the trial that she could not hold the job down that she was doing at the time of the injury. She testified that she could not do more than 50% of the work she did before. Other witnesses verified this testimony. See the following cases: Texas Employers Ins. Ass’n. v. Musick, CCA, (1961) 349 S.W.2d 619, N.W.H.; Traders & General Ins. Co. v. Harper, CCA (1940) 140 S.W.2d 593, er. ref.; United States Fidelity & Guaranty Co. v. Camp, CCA (1963) 367 S.W.2d 952, Wr. Ref., N.R.E.; Griffin v. Superior Ins. Co. (1960) 161 Tex. 195, 338 S.W.2d 415; Buss v. Robison, CCA (1952) 255 S.W.2d 339, W.R., N.R.E.; Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 951. The points are sustained.

For the purpose of passing on all the points, we will hold that appellant’s points 5, 6, and 7 are without any merit and they are overruled. The judgment of the trial court is reversed and the cause is remanded.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Charles M. WALKER, Appellant, v. GLOBE-NEWS PUBLISHING COMPANY, Inc., Appellee.
    No. 7516.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 27, 1965.
    Rehearing Denied Oct. 25, 1965.
    Carnahan & Fields, George S. McCarthy, Amarillo, for appellant.
    Folley, Snodgrass, Calhoun & Kolius, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a libel suit brought by Charles M. Walker against the Globe-News Publishing Company, Inc., to recover damages resulting from alleged libelous articles appearing in the defendant’s newspaper on July 19, 20, and 21, 1964. The trial court granted the defendant’s motion for summary judgment, and the plaintiff below has perfected this appeal.

The action is based on the three articles appearing in appellee’s Amarillo newspaper. The first article appeared in defendant’s Sunday edition on July 19, 1964, as follows:

“Two Amarillo businessmen were arrested Saturday in connection with an extensive burglary operation centered in Tulsa, Okla., and which involved the sale in several states of thousands of dollars in merchandise ranging from aircraft instruments to air compressors. An estimated $25,000 worth of stolen items have been recovered by Amarillo police.
“Charged with receiving and concealing stolen property were Bobby Gene Hunter of 2405 W. 4th., owner and operator of Hunter’s Honda Sales, 806 Georgia, and Charles M. Walker of 5309 Gem Lake, with Walker Brothers Cement Contractors.
“They were arraigned Saturday morning before Justice of the Peace Cliff Roberts, released and ordered to post bond of $1,500 each by 10 a. m. Monday.
“Charges were filed after Tulsa police, who after more than six months of investigation, broke up a burglary ring in that city. Amarillo police have been working on the case with Tulsa authorities since May when aircraft instruments, stolen in Tulsa, were found in Amarillo.
“Two Tulsa men, Billy Joe Mann and Bobby Bluejacket, were arrested by Tulsa authorities and charged with burglary. Mann, who was brought to Amarillo by Tulsa authorities, told authorities here that he and Bluejacket had made several trips to Amarillo during the past six months and had made sales to Hunter and Walker.
“Police detectives had already recovered a major portion of the known items by Saturday afternoon from the homes and offices of Walker and several other locations in the area.
“The items include pistols, shotguns, rifles, a photocopy machine, posting machine, two tape recorders, two cameras, three adding machines, a calculator, aircraft radio and naviscalpel and other hospital equipment, and a diamond ring believed to be part of a recent $29,000 jewelry burglary in Tulsa.
“Also included in the recovered items was a $5,000 compressor unit in Trinidad, Colo.
“All of the stolen property is believed to have been taken from the city and county of Tulsa, and authorities there are still sifting through their reports.
“ ‘The more we investigate, the more cases we clear up’, a spokesman for the Tulsa police department said Saturday night. ‘Some of these cases go back to 1963.’ ”
“He added that the loot came from burglaries of both homes and businesses, but mostly homes. Tulsa officials will make no estimate as to the total value merchandise stolen.
“According to Tulsa records Bluejacket, 34, is currently facing six charges in Tulsa County. He was freed Friday on bonds totaling $42,000 and had been out of jail only li/¿ hours when he was picked up on additional forgery charges.
“The charges include armed robbery, forgery, concealing stolen property, and harboring a fugitive. He also faces a fugitive charge stemming from an armed robbery in Minneapolis, Minn.
“Police records indicate he was sentenced in 1948 to 99 years for first degree manslaughter. He was later paroled after the sentence was commuted to 50 years. In 1962, he received a pardon from Gov. George Nigh who served 11 days in office.
“Tulsa police said the ring has been distributing merchandise throughout the country and are known to have operated in Dallas, New Orleans, Wisconsin and California. Most of the activity has been in the Tulsa and Oklahoma City areas, however.
“Amarillo police said some of the stolen property was sold through an Amarillo surplus store.”

A picture of appellant and Bobby Gene Hunter taken at the timé they were being arraigned accompanied this article. Two condensed articles dealing with the same subject matter and the posting of bond by the two men appeared in appellee’s newspaper the following two days. We see no need to quote them here.

Appellant attacks the trial court’s action on the ground it erred in holding the newspaper’s articles were privileged as a matter of law, and that the pleadings, affidavits and depositions on file presented a genuine issue of material fact. Appellee takes the position the articles published were fair, true, and impartial accounts of the proceedings in a court of justice and, as such, were privileged. The primary question to be determined is whether or not the published articles are within the privileged matters provided for in Article 5432, Vernon’s Ann.Civ.St. Pertinent parts of that article provide:

“The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
“1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of same when in the judgment of the court the ends of justice demand that the same should not be published and the court so orders, or any other official proceedings authorized by law in the administration of the law.”

It is a settled rule of law that whether a publication is privileged or not is generally a question of law for the court to determine. When the language used in unambiguous, or where the facts and circumstances surrounding the publication are undisputed, it is for the court to decide whether or not it was privileged. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909; Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499; Newton v. Dallas Morning News, (Tex.Civ.App.), 376 S.W.2d 396. A published account of the proceedings in a court of justice or other proceedings authorized by law in the administration of the law is privileged only if it is a fair, true and impartial account of such proceedings. Caylor v. Nunn, (Tex.Civ.App.), 235 S.W. 264; 36 Texas Jurs.2d, Libel and Slander, Section 84. We must therefore determine in the light of the pleadings, affidavits, and depositions if the published accounts are privileged under Section 1 of Article 5432 and the applicable rules.

It is without dispute that the published reports are based on a proceeding in a court of justice. There were on file with the Justices of the Peace, Precinct 1, Places 1 and 2, of Potter County, Texas, the following instruments: affidavits for search warrants by two Tulsa, Oklahoma detectives; affidavits for search warrants by Billie Joe Mann, one of the persons accused of stealing the merchandise involved herein; a complaint sworn to by an Amarillo detective before the District Attorney charging appellant did “fraudulently receive from Billie Joe Mann and did fraudulently conceal, certain property, to-wit: one yellow gold ring with a diamond center stone and surrounded by smaller diamond stones, and one seven millimeter Luger pistol and the same being of the /alue of over fifty ($50.00) Dollars; which said property had been theretofore acquired by another in such manner as that the acquisition thereof comes within the meaning of the term theft; and the said CHARLES M. WALKER then and there received and concealed the said property, knowing the same to have been so acquired.”; a commitment which was issued by the Justice of the Peace directing the Sheriff to commit appellant to jail on the charge of “receiving and concealing stolen property”; and a warrant of arrest issued by the Justice of the Peace on the same charge. Mann’s affidavit discloses he stole the listed goods in Tulsa, Oklahoma, and that certain items were sold to appellant by Mann and Robert Bluejacket and that appellant “knew the same to be stolen * * * because we both told him where and how the property was acquired.” Affidavits, search warrants, commitments, and warrants of arrest were also on file in the same courts charging Bobby Gene Hunter with the same offenses as those charged against appellant. In fact the cases filed against these two were filed simultaneously, and they were both arraigned at the same time. The officers’ affidavits disclose the large amount of goods stolen in the Tulsa, Oklahoma area by Mann and Bluejacket and that they disposed of the merchandise in widely scattered parts of the country. All the instruments herein referred to were on file in the two justice courts prior to the publishing of the articles complained of.

Appellant makes no assertion the published articles were not based on a judicial proceeding but contends the articles were not a fair, true and accurate account of the proceedings. He argues the newspaper accounts at least by implication and innuendo connects appellant and Hunter together as members of a burglary ring; that it at least implied that $25,000 worth of stolen merchandise was recovered from Walker and Hunter; and that Walker’s arrest cleared up a long-continuing burglary ring. Appellant makes other interpretations of the articles but these serve to illustrate his argument. We can not accept appellant’s interpretation of the publications. The courts have held in this type of case that the articles must be interpreted in the sense that the ordinary reader would understand. Caylor v. Nunn, supra; Express Publishing Co. v. Keeran, (Com.App.), 284 S.W. 913; Express Publishing Co. v. Gonzalez, (Tex.Civ.App.), 326 S.W.2d 544, (Writ Dismissed). It is not necessary for the published account to be literally true in order to be privileged. The statutory requirement that it be true is satisfied if it be substantially true. Ray v. Times Publishing Co., (Com.App.), 12 S.W.2d 165.

A review of the published articles, when compared with the instruments on file in the justice courts, leads us to the conclusion no untrue statements appeared in the articles. The fact the newspaper reporters testified by deposition they did not get their information from the filed instruments themselves is of no significance. The information was obtained primarily from those who executed the instruments. It can not be denied Walker and Hunter were “arrested in connection with an extensive burglary operation centered in Tulsa”. They were in fact charged with “receiving and concealing stolen property” taken from the Tulsa burglaries according to one man who admitted being involved in such burglaries. The fact that a large portion of the stolen property was recovered from Hunter rather than Walker is not such a departure from the undisputed facts to render the articles an untrue or unfair account of the proceedings. We further conclude the language of the articles complained of is unambiguous, and there was no basis for the need of explanatory evidence before a jury. Newton v. Dallas Morning News, supra; Gartman v. Hedgpeth, 138 Tex. 73, 157 S.W.2d 139, 138 A.L.R. 666, (Opinion Adopted) ; Herald-Post Publishing Co. v. Hervey, (Tex.Civ.App.), 282 S.W.2d 410, (NRE).

After reviewing the pleadings, affidavits and depositions in the light of the applicable rules, we are of the opinion the published articles constituted a fair, impartial, and substantially correct account of the charges filed against appellant in the justice court. As such, the articles were privileged and not actionable.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    CHEM-GAS ENGINEERS, INC., Appellants, v. TEXAS ASPHALT & REFINING COMPANY et al., Appellees.
    No. 4445.
    Court of Civil Appeals of Texas. Waco.
    Nov. 12, 1965.
    Nowlin Randolph, Houston, for appellant.
    Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellee.
   WILSON, Justice.

Appellee has filed a motion to dismiss the appeal on the ground the judgment appealed from does not dispose of all issues and parties, and is not a final, appealable judgment. The motion is overruled.

Appellant sued Texas Asphalt Refining Company and Fort Worth National Bank, asserting a debt against the former for labor and material furnished in improving realty, and seeking foreclosure of a lien. The petition alleged the bank also claimed a lien on the same realty, and prayed for a declaration that appellant’s lien was prior and superior, and for its foreclosure. Texas Asphalt filed a plea in abatement alleging the prior pendency of another suit in which appellant’s action constituted a compulsory counterclaim.

The order sustaining Texas Asphalt’s plea in abatement, which is that sought to be appealed from, concluded: “and such action as against said defendant is hereby abated and dismissed without prejudice at plaintiff’s cost.”

Where a plea in abatement alleging prior pendency of another suit is sustained, the proper order to be entered is one of dismissal without prejudice. Real Estate-Land Title & Trust Co. v. Dildy, Tex.Civ.App., 92 S.W.2d 318, 322, writ ref.; Guaranty Building & Loan Co. v. Nowell, Tex.Civ.App., 76 S.W.2d 830, 831, writ ref.; Reed v. Staley, Tex.Civ.App., 139 S.W.2d 851, 854. Accord: Humphrey v. National Fire Ins. Co., Tex.Com.App., 231 S.W. 750, 752. The language'in Zarsky v. Moss, Tex.Civ.App., 193 S.W.2d 245, 246 to the effect that when a plea in abatement is sustained the general order is one dismissing the cause, but it is “effective” only so long as the cause of abatement continues to exist, does not mean the judgment is not final or appealable, or that the same cause may be later revived from a suspended state on the docket. It means, if the cause of action still exists, a new suit may be instituted when the cause of abatement becomes nonexistent.

A judgment is final and appeal-able when there are no equities or rights between the parties remaining for adjudication. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 ; 33 Tex.Jur.2d 604. It is not always essential that a judgment expressly and specifically enumerate or name the issues and parties disposed of. The judgment disposes of issues and parties which are included by necessary implication. McKenzie v. Withers, 109 Tex. 255, 206 S.W. 503, 505; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161.

“The general rule in Texas is that all issues presented by the pleadings are disposed of by the judgment unless the contrary appears from the face thereof,” and “[Wjhere a claim is not expressly disposed of by judgment although raised by pleading, the judgment will be construed as denying relief upon such claim, and the judgment will be considered as being final and ap-pealable.” Vance v. Wilson, Tex., 382 S.W. 2d 107, 108, 109.

When plaintiff’s action against Texas Asphalt seeking the adjudication of priority and foreclosure of the lien was dismissed, there were no rights, equities or issues left for adjudication as between plaintiff and the bank. These could exist only if plaintiff established a lien. The judgment, denying this remedy, effectively disposed of plaintiffs claim against the bank by necessary implication. Texas Life Ins. Co. v. Miller, Tex.Civ.App., 114 S.W.2d 600, 601, per Justice Alexander.

Motion overruled.


author: MASSEY, Chief Justice.

text:
    Mrs. Lorena Bates SMITH, Appellant, v. Mrs. Bessie SELZ et al., Appellees.
    No. 16663.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 8, 1965.
    Supplemental Opinion Oct. 29, 1965.
    Rehearing Denied Nov. 19, 1965.

      Turner, Atwood, Meer & Francis, and Dean Carlton, Aubrey J. Roberts, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, and Frank Finn and George C. Chapman, Dallas, Gray & Beadle, and Jack Gray, Fred H. Minor, John L. Sullivan, Denton, for Mrs. Bessie Selz and others, appellees.
    Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellee Betty Joe Morris.
   MASSEY, Chief Justice.

This is an appeal by Mrs. Lorena Bates Smith from a judgment in favor of the Estate of Leo V. Selz for damages growing out of personal injuries to Leo V. Selz during the six months period following an automobile collision in which he sustained injuries and in favor of Mrs. Bessie Selz, his widow, for damages under Texas’ Wrongful Death Statute accruing as the result of Selz’ resulting death.

Judgment in favor of Mrs. Selz affirmed. Judgment in favor of the Selz Estate affirmed upon condition of remit-titur.

Important to the discussion warranted by-points of error are two special issues in answer to which the jury found amounts of damage accruing to the Leo V. Selz Estate and to Mrs. Selz, the surviving wife. They read as follows:

“SPECIAL ISSUE NO. 31

“What amount of money, if any, do you find from a preponderance of the evidence would, if paid now; reasonably compensate Mrs. Leo V. Selz for the loss sustained by her as a result of the death of Leo V. Selz?

“In arriving at and determining your answer to the foregoing question you may take into consideration loss of maintenance and support, if any, services, if any, contributions from his earnings, if any, care and counsel, if any, that Mrs. Leo V. Selz would, if she would have, in reasonable probability received from her husband during his lifetime had he lived. You must not take into consideration nor allow any sum to Mrs. Leo V. Selz, for her grief and sorrow suffered on account of Mr. Selz’s death, or loss of society, affection, companionship or physical and mental pain suffered by her husband.

“Answer by stating amount, if any, for each of the following:

$10,000.00 “1. Loss of maintenance and support, if any.
$ 2,500.00 “2. Services, if any.
$10,000.00 “3. Contributions from his earnings, if any.
$ 2,500.00 “4. Care and counsel, if any.
“TOTAL $25,000.00

“SPECIAL ISSUE NO. 32

“What amount of money, if any, do you find from a preponderance of the evidence would, if paid now, reasonably compensate the Estate of Leo V. Selz, deceased, for such alleged injuries and damages, if any, as you may find from the evidence to have been sustained by Leo V. Selz, deceased, and Leo V. Selz Estate, proximately caused by the collision here in question?

“In answering this question you may take into consideration and allow the Estate of Leo V. Selz whatever amount of money you may find would fairly and reasonably compensate Leo V. Selz for whatever physical pain and suffering, if any, and mental pain and suffering and anguish, if any, which he underwent to the date of his death as a result of injuries sustained by him in the collision here in question. And if you further find from a preponderance of the evidence that Leo V. Selz was prevented from working and earning money by reason of the injuries received by him in the collision in question, you may allow such a sum of money as would fairly and reasonably compensate Leo V. Selz for whatever amount you may find, if any, he would have earned from the time of such collision up to the date of his death. You may further find whatever amount you may find from a preponderance of the evidence Leo V. Selz paid or became liable to pay or the Estate of Leo V. Selz paid or became liable to pay for hospital bills, if any, damage to his automobile, if any, and funeral expenses, if any, but only in such amount as you may find to have been reasonable and necessary.

“Answer by stating amount, if any, for each of the following:

“1. Leo V. Selz’s physical pain and suffering, if any. $25,000.00
“2. Leo V. Selz’s mental pain, suffering and anguish, if any. $25,000.00
“3. Lost earnings to the date of Leo V. Selz’s death, if any. $ 2,412.50
“4. Hospital bills, if any. $ 1,200.00
“5. Automobile damage, if any. $ 1,500.00
“6. Funeral expenses, if any. $ 1,262.50
“TOTAL $56,375.00.”

One basis of complaint by Mrs. Lorena Bates Smith is that there was no instruction given as part and parcel of the quoted special issues which required the jury, as a condition upon which its answers were to be returned, to find whether Selz’ death and the pain and suffering experienced prior to death were proximately caused by injuries sustained by him in the automobile collision. The contention of Mrs. Smith is that such was a question of fact and not of law.

In our view of the evidence the question was not one of fact, but was established as a matter of law that the damages he sustained prior to his death, and the damages accruing to his surviving widow as the result of his death, proximately resulted from the collision. However, and in any event, there was no objection made to the court’s charge because of the failure of the trial court to submit the questions as to proximate cause of injury and of death to the jury in a special issue or issues. Assuming the questions were questions of fact, and as such constituted matter upon which independent special issues should have been submitted, such omitted issues would for that reason be deemed as found by the trial court in such manner as to support the judgment under the provisions of Texas Rules of Civil Procedure 279.

Furthermore it is to be noticed that the form of Special Issue 32 inquired as to injuries and damages which proximately resulted from the collision up until the time of death. There was no necessary assumption by the jury that Selz’ death had been the proximate result of the collision. The form of the issue was not such as informed the jury that they should treat his death as having thus proximately resulted. It was neither a comment on the evidence nor a charge on the weight of the evidence.

Another complaint because of the wording of Special Issues Nos. 31 and 32 was that there was no affirmative exclusion of amounts “for any pre-existing heart condition or known physical disability on the part of the deceased”, and/or “for death or other diseases resulting from a pre-existing heart disease or other physical impairment of Leo V. Selz.” The theory upon which these objections were made to the court’s charge was that there was evidence of the existence of heart trouble, disease, or impaired condition of the heart independent of any injured and impaired condition proximately caused by injuries sustained in the collision, which the jury might have found and believed to have caused, or contributed to cause, Selz’ disability, suffering, and ultimate death. For that reason Mrs. Smith insists there was error in omitting instructions that such be taken into consideration by the jury in arriving at answers to be returned to the special issues.

From our review of the record in the case we have concluded that there was no such evidence, at least none which had probative value. The evidence to which Mrs. Smith directs our attention in connection with her complaint is contained in the medical and hospital records introduced into the record by Mrs. Selz and the Selz Estate as “business records”, under Vernon’s Ann. Civ.Tex.St. Art. 3737e, “Memorandum or record of act, event or condition; * *

One section of such records relates to condition of the deceased while he was in the hospital on March 30, 1962 to April 4, 1962, both dates inclusive. On the page containing part of the nurses’ notations for the. first day the date is shown as “3/30/61” instead of the obviously correct date of “3/30/62”. This obvious error is wholly disregarded. In another section of such records is found the “Past History” notations made in connection with the admission into the hospital on March 30, 1962. After language mentioning the previous admission of the patient immediately following the prior admission to the hospital after the automobile collision, February 8, 1962, with statement of his condition at that time, the language of the notation continued, as follows: “There is a question about the patient having a mild coronary thrombosis in 1956 however this is very questionable.” In our opinion the language of the notation quoted does not qualify as evidence that the deceased had a coronary thrombosis in 1956. In any event it would only be a scintilla of evidence, having no probative force and effect. Furthermore it would not qualify as evidence under Art. 3737e because it would not be a record of an act, event, or condition contemplated by the language of the statute.

Another section of such records relates to the hospitalization of the deceased from the day of the collision, February 8, 1962, to and inclusive of February 21, 1962. Therein this statement appears: “This patient is reported to have had a very mild myocardial infarction in 1953. He has been well since that time.” What we have said heretofore, concerning the qualification of the other statement appearing in the hospital records, has full application to this portion of the records. Furthermore, by the words “is reported” in the first sentence quoted, it is made evident that the entire sentence constitutes “hearsay” and as such is without probative force and effect.

Finally, and having application only to Special Issue No. 31, is the complaint that the issue as framed does not limit the finding concerning the loss to Mrs. Selz as the result of the death of her husband to her “pecuniary” loss. In our opinion the instruction to the jury included such limitation in the language: “You must not take into consideration nor allow any sum to Mrs. Leo V. Selz, for her grief and sorrow suffered on account of Mr. Selz’s death, or loss of society, affection, companionship or physical and mental pain suffered by her husband.”

In connection with what we have held hereinabove, it is to be noticed from Mrs. Smith’s pleadings that no part thereof included any allegations having relation to opposing pleadings concerning the cause of deceased’s pain and suffering, etc., damages prior to his death, nor as to the cause of death, other than connoted by her general denial.

At the time when most of the evidence had been introduced an event occurred which amounted to error. From our review of the state of the record as a whole we have concluded that it was not such error as was reasonably calculated to cause and probably did cause the jury to return an inhibited verdict. In other words the error did not amount to reversible error within the requisite of T.R.C.P. 434 and 327. These rules have application and are controlling.

The court was in recess. In a witness-room across the hall from the courtroom Mrs. Selz (widow of the deceased), and her daughter-in-law, and Betty Jo Morris, and Miss Morris’ father were cast in a situation where they were in communication with certain of the jurors in the case. Betty Jo Morris was a young woman who was a defendant in the case, but who was acquitted of liability by jury findings of which no complaint is made on this appeal. Her father was a witness who had testified on trial. The record is clear that none of the aforementioned parties initiated an approach to any juror so that any communication was invited. Furthermore, the evidence establishes that nothing said during the course of the communication had any relation to the issues on trial. The only evidence was from the aforementioned parties and from the Bailiff in charge of the jury in the case and was introduced before the trial continued. On the motion for new trial there was no affidavit attached thereto in affirmation of jury misconduct, and no tender of evidence from anyone upon the matter. Mrs. Smith’s theory of reversible error is wholly cast upon the theory that there had been improper communication, a matter conceded, and that prejudice to her interests in the matter on the trial resulted therefrom, a matter in dispute.

One of the best statements of the meaning of the rules in their application to a question such as that posed is in Cloudt v. Hutcherson, 175 S.W.2d 643, at page 649 (El Paso Tex.Civ.App., 1943, writ ref. w. o. m.). In the instant case Mrs. Smith necessarily bore the burden to show that the proven misconduct resulted in probable injury. We hold that she did not discharge this burden of proof.

The matter is discussed in 41 Tex.Jur.2d, pp. 163-179, inch, secs. 60 to 68. See also 55 A.L.R. 750, supplemented in 62 A.L.R.2d 298, Annotation: “Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal.” Texas cases in which communications have been held harmless include: Swanson v. Fort Worth Transit Co., 209 S.W.2d 772 (Fort Worth Tex.Civ.App., 1948, no writ hist.); Smith v. Travelers Ins. Co., 205 S.W.2d 432 (Texarkana Tex.Civ.App., 1947, ref. n. r. e.); Insurors Indemnity & Ins. Co. v. Brown, 172 S.W.2d 174 (Beaumont Tex.Civ.App., 1943, refused) ; Oliphant v. Buie, 134 S.W.2d 751 (Waco Tex.Civ.App., 1939, Dism., Judgm. Cor.). Texas cases in which the circumstances have been deemed prejudicial include: Wallis v. Long, 75 S.W.2d 138 (Galveston Tex.Civ.App., 1934, refused); Galveston, H. & S. A. Ry. Co. v. Krenek, 138 S.W. 1154 (Austin Tex.Civ.App., 1911, refused); Palm v. Chernowsky, 28 Tex.Civ.App. 405, 67 S.W. 165 (1902, no writ hist.); Gulf, C. & S. F. Ry. Co. v. Matthews, 28 Tex.Civ.App. 92, 66 S.W. 588 (1902, no writ hist.); Larson v. Levy, 57 S.W. 52 (C.C.A. of Texas, 1900, no writ hist.); Gulf, C. & S. F. Ry. Co. v. Schroeder, 25 S.W. 306 (C.C.A. of Texas, 1894, no writ hist.). It is noticed that some of these decisions antedated the effective date of our Rules of Civil Procedure.

By a final group of points of error, Mrs. Smith contends that the amounts found by the jury as loss and damage sustained by Mrs. Selz, the widow of the deceased, and by the Leo V. Selz Estate are excessive. In connection with our consideration thereof we will consider the jury findings in Special Issues Nos. 31 and 32 separately.

The deceased was shown to have had a life expectancy of approximately ten (10) years at the time of his death. The life expectancy of his widow was not shown, however there is nothing in the presentation of Mrs. Smith which bases any portion of her complaint upon the absence of such proof. In view thereof we are entitled to presume, and will, that there is no question but that Mrs. Selz would have probably-lived at least as long as her husband had the collision not occurred. It is to be observed that the evidence showed that the deceased would in all probability have continued in his employment for the same employer, for whom he had worked practically his entire adult life, for the entire period of his life expectancy. Furthermore, it shows his income from personal services in such employment as of the time of the collision in question, and that in reasonable probability his salary would have continued at the same, or perhaps an enhanced amount during the years he might have worked for such employer. The total of the amounts found by the jury as to Mrs. Selz’ loss of maintenance and support and contributions from his earnings was approximately one-half the total salary he would have earned, if neither increased nor decreased as to rate of pay, during the years of his life expectancy. The married couple had been living together for many years, Mrs. Selz being supported by her husband, and presumably this situation would have continued the balance of his life. Under this state of the evidence the amounts allowed for the aforementioned items of loss and damage were not excessive.

There is no specific complaint of the $2,500.00 allowed Mrs. Selz for loss of services of her husband, nor of the $2,500.00 for loss of his care and counsel. In any event we consider these findings reasonable and not excessive.

In connection with the jury’s findings in answer to Special Issue No. 32, the complaint is confined to the findings that for the approximate six months’ period during which Selz lived — between date of the collision and date of his death — he had physical pain and suffering in the amount of $25,-000.00, and mental pain, suffering and anguish in the amount of $25,000.00. The total thereof is $50,000.00. In connection therewith we are in agreement with the contention that these findings are excessive and that the judgment in the case, in so far as it is based upon the findings of damages in said amounts, may not be sustained.

It must be remembered that the deceased was a man approximately 70 years of age, in good health, who received injuries occasioning his death approximately six months thereafter. Death occurred following a “seizure” while visiting in Bridgeport, Texas, on August 25, 1962 — death ensuing on August 27,1962.

In the examination of Mrs. Selz she was asked about the “seizure”. She testified that inception thereof was at night after the couple had gone to bed, about 10:30 or 11:00 o’clock in the evening. Her husband was sweating, his skin was clammy, and he was breathing hard — gasping for breath. He was removed to the hospital where he died. Mrs. Selz further testified that the attack was “just like” the prior attack about the middle of 1962 at their home in Denton County, Texas, and at the same place in March of 1962. Concerning the attack in March Mrs. Selz testified that her husband “couldn’t get his breath; he struggled for breathing and perspiration stood out all over him. He couldn’t lie down; he just begged for help.” She testified that on the occasion of each attack her husband’s “seizure” was worse than the last. She did not testify concerning the duration of the attacks.

The night of March 29-30, 1962 the deceased’s attendant physician was called to the house following a “seizure” of the type about which the widow testified. Selz was ordered admitted to the hospital in Denton, Texas, and was received there at 1:45 o’clock A.M. He is not shown to have received medication to relieve pain until during the tenth hour of his confinement. The records show that he slept soundly between 3:00 A.M. and 5:00 A.M. The following night he was quiet and slept soundly. This favorable result seems to have continued until he was dismissed the morning of April 4, 1962. It is indicated that afterward, except on the occasion of the “seizure” in midsummer, Mr. Selz was ambulatory. Indeed, he worked two days at his regular employment during this period.

The deceased had theretofore been confined for a period of thirteen days immediately following the collision on February 8, 1962, being dismissed on February 21, 1962. Upon admission to the hospital he had multiple abrasions and contusions to his back, of which no further notice need be taken. Relative to his abdomen, the following was recorded: “There is marked tenderness in the epigastrium. Partial outline of the steering wheel can be seen over the patient’s lower chest and upper abdomen. There is no tenderness or rebound tenderness in the lower quadrants of the abdomen and bowel sounds are normal. No evidence of hernia.” The “final diagnosis” noted on the record made on discharge included the following: “Passive congestion of heart. Contusion of Myocardium.” On the “progress notes” for the date of February IS, 1962 it is shown that “Repeat X-Ray shows pulmonary edema. Pt. in very mild failure.” On the record it is shown that as of February 11th, 1962 the patient was allowed to ambulate to the bathroom and sit up in a chair. Apparently this permissive activity was allowed between this date and the time of discharge from the hospital on February 21st, 1962. On the “Nurses notes” for February 8th it is noted that the patient rested “fairly well”; that he had a “fairly good evening with some generalized soreness.” On the afternoon of February 10th appears the notation: “No complaint of severe pain”; and for the evening the notation: “No complaints of pain.” This favorable condition continued until the time of discharge “via wheel chair” on February 21, 1962.

From all the evidence it appears that after the occasion of the hospitalization of the deceased in February of 1962 — during which he had no “seizure” as the result of the condition in the chest cavity and in the lungs called pulmonary edema (a filling thereof with body tissue fluids), which in turn was the result of inadequate functioning of the heart as the result of the injury thereto in the collision — he experienced his first “seizure” in March of 1962. For this he was hospitalized six days, during which time treatment caused or allowed the heart to sufficiently function or “compensate” so that in its circulating the bodily fluids it controlled the pulmonary edema. At least the amount and degree of the condition of edema was so minimized that the physical, mental and emotional effects of the typical “seizure” resultant therefrom ceased to be experienced. Another such occurrence took place in June or July of 1962, but was controlled by treatment in the home so that hospitalization was not required. The final “seizure took place the late evening of August 25, 1962. He was removed to the hospital in Bridgeport, Texas the early morning of August 26, 1962, where he remained until time of his death — thirty-four or thirty-five hours later — on August 27, 1962. The only evidence relative to the pain experienced on the occasion of the final “seizure” would be that found in the testimony of Mrs. Selz, wherein she stated that each time he experienced such it was worse than the time before.

Relative to the pain and mental distress experienced by a person with such a condition, the deceased’s personal physician testified as follows:

“Q. Doctor, I believe you stated just a moment ago that a person is in a great mental distress on those occasions ?

“A. That is true.

“Q. Do they undergo or not, undergo a great deal of pain and suffering in that type of condition?

“A. Not necessarily pain. Pain may or not be present; it depends on the condition that causes the pulmonary edema to develop.

“Q. Well, in gasping for breath and shortness of breath, does that cause physical distress ?

“A. Very great.

“Q. And what is the situation with respect — I believe you mentioned a moment ago that they were worried. What with respect to mental distress ?

“A. A person in this condition has the feeling of impending doom, the feeling that they are going to die, that they are not going to be able to get enough air, to get enough oxygen.”

In view of our consideration of the testimony bearing upon the physical pain and suffering and the mental pain, suffering, and anguish of the deceased we have arrived at the conclusion that the maximum amount allowable because thereof, considered collectively, would be $20,-000.00. In other words the verdict of the jury in favor of the Estate of Leo V. Selz, deceased, was excessive in the amount of $30,000.00. The judgment in favor of such Estate and against Mrs. Lorena Bates Smith should therefore have been in the amount of $26,375.00.

From analysis of the entire record, we do not believe that the jury was motivated by any passion or prejudice, or other improper motive in arriving at the figure. There is no indication thereof other than to be found in the amounts awarded for the elements discussed. Rather, we are of the opinion that the evidence does not support the finding of the jury in connection with the elements we have discussed, nor the judgment thereon entered — along with other elements of damage — except in the maximum amount of $26,375.00. It follows, therefore, that the trial court, by eliminating the “excess” from answers returned, should have required a remittitur in such amount as would be requisite to reduce the judgment in favor of the Leo V. Selz Estate to the aforesaid figure, $26,375.00. For discussion of propriety for an appellate court to order remittitur see Wichita Valley Ry. Co. v. Williams, 116 Tex. 253, 259, 288 S.W. 425, 430 (1926) answering certified questions.

The judgment in favor of Mrs. Bessie Selz against Mrs. Lorena Bates Smith is affirmed.

The judgment in favor of the Estate of Leo V. Selz, deceased, against Mrs. Lorena Bates Smith is reversed and remanded for another trial, subject to an affirmance on condition that within fifteen days from date hereof it file remittitur reducing recovery awarded by the judgment of the trial court to the amount of $26,375.00.

SUPPLEMENTAL OPINION

On October 8, 1965, we indicated by our opinion in writing that if appellee Estate of Leo V. Selz would file remittitur reducing the amount of recovery awarded to the sum of $26,375.00 within fifteen days thereof, the judgment of the trial court would be affirmed; otherwise the judgment of the trial court in favor of said appellee would be reversed and the cause (as to it) remanded.

Within said period of fifteen days Mrs. Leo V. Selz, as Independent Executrix of the Estate of Leo V. Selz, deceased, did file the remittitur indicated.

Accordingly, as of this date judgment of the trial court is reformed and affirmed. As affirmed the judgment in favor of Mrs. Bessie Selz against Mrs. Lorena Bates Smith is for recovery of damages in the amount of $25,000.00; and in favor of the Estate of Leo V. Selz, deceased, against Mrs. Lorena Bates Smith is for the recovery of damages in the amount of $26,375.00.

Motion for rehearing may be filed by any party to the appeal within fifteen days after this date.


author: CHADICK, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Corean BROWN et al., Appellees.
    No. 7668.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 5, 1965.
    Rehearing Denied Nov. 2, 1965.
    Herbert Boyland, Kenley & Boyland, Longview, for appellant.
    R. E. McDaniel, Winnie, McDaniel, Hunt & Fairchild, Center, for appellees.
   CHADICK, Chief Justice.

This is a Workmen’s Compensation Law (Art. 8306 et seq.) case. The widowed mother and the brothers and sisters of Curtis Brown were awarded recovery of death benefits by the District Court of Gregg County, in an action arising out of Brown’s death during the construction of school facilities for the Pine Tree Independent School District in Gregg County. The judgment is reversed and rendered.

The school construction project was undertaken by H. R. Bergstrom under a written contract with the school district. Berg-strom subcontracted masonry work to John Woods Smith. Included in the masonry work was washing down and cleaning excess mortar from interior brick walls. Jim Louis submitted this offer to Smith:

“To J. W. Smith Masonry Cont.
“I agree to furnish all labor, material, etc. to clean all interior walls of Unit A of Pine Tree School at .04 per sq. ft.
Jim Louis”

Smith accepted the offer. Curtis Brown was an employee of Smith, working a regular daylight shift May 17, 1961. By arrangement between Curtis Brown and Jim Louis, Brown undertook to clean up, that is, wash down and remove the excess mortar from the interior brick walls, at a rate of $10.00 per room. This cleanup work was to be performed by Brown at times that did not conflict with his regular daylight shift with Smith. In the late afternoon or night of May 17, 1961, Brown began the cleanup work and was found dead at the job site the next morning. The jury, by unchallenged answers to special issues, found that Brown was accidentally electrocuted.

One of the compensation insurer’s grounds for reversal is the absence of evidence to support the jury’s finding that the decedent Brown was an employee, as the term is used in the Workmen’s Compensation Law, of the General Contractor Bergstrom or the Subcontractor Smith at the time of his death. As a phase of this ground the insurer develops its’ thesis that Jim Louis was proven to be as a matter of law an independent contractor and Brown was Louis’s employee at the time Brown died.

The employer-employee relationship subject to the Workmen’s Compensation Law is the legal consequence of a mutual agreement by the parties to a contract of hire, and is created only by contract. Carter Publications Inc. v. Davis (Tex.Civ.App.) 68 S.W.2d 640, writ refused, and Workmen’s Compensation, 62 Tex.Jur.2d 563. Art. 8309, Sec. 1, Vernons Ann.Tex.Civ. St. defines an employee as “ * * * every person in the service of another under any contract of hire, expressed or implied * * * »>_ This record is devoid of evidence of an express contract of hire between Brown and Bergstrom or Brown and Smith, unless it may be said from the evidence in the record that Jim Louis was authorized to hire laborers for Bergstrom or Smith. Whether or not there is evidence of an implied contract of hire between Brown and Bergstrom or Smith is a closely related inquiry relevant to this appeal.

It was urged in the trial court and is reiterated here by the appellees that Jim Louis was not and could not legally become an independent contractor on the school construction job. Without going into the reasons advanced it will be assumed, without being decided, that Jim Louis was not an independent contractor. To sustain the judgment rendered the record must show that Louis had authority or apparent authority from Bergstrom or Smith to employ workmen for their respective accounts regardless of Louis’s specific status.

Appellees construed the above quoted letter from Louis to Smith as a contract authorizing Jim Louis to employ laborers to do Smith’s cleanup work. The letter must be considered against the background of circumstances surrounding its execution, since it does not evidence the entire contract and affects the rights of third parties. Allison v. Campbell, (Comm.App.) 117 Tex. 277, 298 S.W. 523; 13 Tex. Jur.2d Sec. 126, p. 297. There is no evidence, the letter aside, of an intention on Smith’s part to empower Louis to employ workmen for Smith or the General Contractor Bergstrom. Neither Smith nor Louis so construed the letter, and no negotiation toward that end occurred preceding the contract’s execution. The contract letter requires Jim Louis to furnish labor, not laborers. The written memorandum standing alone or considered in connection with all the facts developed in the case does not constitute evidence that either Berg-strom or Smith empowered Louis to employ Brown to work for either of them. No expressed contract of hire is shown.

Neither Bergstrom, Smith, nor any authorized representative of either was aware that Brown was undertaking to do cleanup work after his regular daylight shift. Wallace v. Southern Cotton-Oil Company, 91 Tex. 18, 40 S.W. 399 is cited as an authority sustaining appellees’ proposition that Brown was impliedly employed by both Bergstrom and Smith. The Supreme Court in Wallace held that the evidence raised an issue as to the factual status of John Davis, an impecunious Negro man, as an independent contractor with or employee of an oil mill. The opinion says: “The evidence tends to prove that the company, by its superintendent and other officers, did actually exercise authority and control over Davis, over the machinery, and over the hands employed by him, inconsistent with the idea that this work was under the control of Davis.” (Emphasis added). The evidence in the case at hand does not show that Bergstrom and Smith, or anyone authorized to act in their behalf, exercised control or offered or was authorized to exercise authority and control over Brown in the performance of the cleanup work. The evidence furnishes no basis for a conclusion that by conduct or implication Brown was employed at the time of his death by either Bergstrom or Smith.

On June 19, 1963, the appellees requested Travelers Insurance Company, J. W. Smith, and H. R. Bergstrom for admission of facts under the provision of Rule 169, V.A.T.R. Two of the separately numbered requests and the answers thereto that ap-pellees claim to constitute evidence that Smith and Bergstrom admitted Brown to be an employee are reproduced next:

“41. Within 30 days after May 17, 1962, the defendant J. W. Smith notified the defendant, The Travelers Insurance Company, of the death of Curtis Brown.
“16. In reply to paragraph 41 of such requests, Defendants say that any information furnished the Travelers Insurance Company by H. R. Berg-strom is privileged under the Rules of Civil Procedure and the Workmen’s Compensation Act of the State of Texas and thereby refuse to make reply to such request.
“42. Within 30 days after May 17, 1962, the defendant H. R. Bergstrom notified the defendant, The Travelers Insurance Company, of the death of Curtis Brown.
“15. In reply to paragraph 42 of such requests, Defendants say that any information furnished the Travelers Insurance Company by H. R. Berg-strom is privileged under the Rules of Civil Procedure and the Workmen’s Compensation Act of the State of Texas and thereby refuse to make reply to such request.”

The appellees assert that the answers to the requests are so defective that it may be considered as proven that within thirty days after May 17, 1962, J. W. Smith and H. R. Bergstrom notified the Travelers Insurance Company of the death of Curtis Brown. The report, if actually made, is not in evidence. Should it be conceded that Bergstrom and Smith admitted that they separately notified the insurance company of Brown’s death, such facts alone do not constitute an admission that they, or either of them, acknowledged in the reports that Brown was an employee of either. The bare fact of a report of Brown’s death that does not couple with it an admission that Brown was an employee does not amount to evidence that the deceased was regarded as an employee by either Bergstrom or Smith. Security Union Casualty Co. v. Hunt (Tex.Civ.App.) 294 S.W. 695, er. dism’d., relied upon by the appellees is distinguishable on the facts from the present case.

The trial court judgment will be reversed and a take nothing judgment entered.


author: CHAPMAN, Justice.

text:
    Rhea H. OWENS, Appellant, v. Grover C. RIDGEWAY, Jr., and Malcolm L. Morrison, Appellees.
    No. 7478.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 13, 1965.
    Rehearing Denied Oct. 11, 1965.

      Stone & Stone, Amarillo, for appellant.
    Carnahan & Fields, Amarillo, for appel-lees.
   CHAPMAN, Justice.

This is an appeal by Rhea H. Owens from an instructed verdict in a suit to cancel and rescind two assignments of oil and gas leases to him by defendants below, Grover C. Ridgeway, Jr., and Malcolm L. Morrison, of 24 of their 8/8 working interest therein to specified depths in the oil and gas leases on two sections of land in Beaver County, Oklahoma, described as Sections 8 and 17, Township 6 North, Range 22 E.C.M. upon which is situated a gas well known as Taylor No. 1. The parties will be referred to as in the court below.

Plaintiff Owens alleged that defendants personally and through their duly authorized agent, David L. Whatley, represented to him as a fact that such well was producing 600 M.C.F. of gas per day without diminution of the flowing pressure, and condensate at the rate of five barrels per 1000 M.C.F.; that in reliance upon such representations he entered into a contract on July 19, 1962, with defendants for the purchase of of their working interest in such leases and well for the consideration of $28,000.00; that thereafter Mr. Morrison, for himself and Mr. Ridgeway, negotiated with plaintiff for the sale of an additional of their working interest in such leases and well, representing to plaintiff as a fact that daily production of such well “was holding up,” and that it could produce 1000 M.C.F. of gas per day without bad effect; that after such representations, defendants on November 9, 1962, executed and delivered to him an assignment of 14 of their working interest for which he paid defendants $6,000.00 in cash; that said well never at any time had a daily production of 600 M.C.F. of gas per day, never produced condensate at the rate of five barrels per 1000 M.C.F. of gas per day; that two weeks prior to July 19, 1962, the well had a daily production of less than 1000 M.C.F. of gas per day and never produced the represented amount of condensate; that plaintiff has never received any proceeds whatever from any production of such well and the working interests therein transferred and assigned by defendants to plaintiff have no value whatever; that all such representations were false and untrue at the time they were made; that they were made with the intent to induce plaintiff to make such purchases; that they were representations of material facts; that plaintiff relied on such representations believing them to be true, and was induced thereby to purchase the J4 working interest from defendants; that such false representations made by defendants and their agent, Whatley, were made with their knowledge that such representations were untrue and made with the intent to deceive or mislead plaintiff.

After the testimony was closed and a motion made by defendants for an instructed verdict, plaintiff was permitted to file the following trial amendments:

“NOW COMES, the plaintiff, Rhea H. Owens, and herewith tenders to the defendants in this cause a reassignment of all of the interests assigned by the defendants to the plaintiff described in the Plaintiff’s Original Petition and binds himself to do all things necessary to do complete equity herein as finally determined by the Court.”

From the judgment based upon the instructed verdict plaintiff has appealed upon the one point of error in the trial court instructing the jury to return a verdict against plaintiff in favor of defendants.

We believe there is more than a scintilla of evidence to raise fact issues in the case and that the trial court was in error in not permitting the jury to pass upon them.

If there is any relevant evidence of probative value, a fact issue is raised and a directed verdict is improper. Texas Law Review, Vol. 22, p. 359. “This is a corollary of the constitutional guarantee of trial by jury in TEX.CONST. Art. I, Sec. 15.” Id.; Buckholts State Bank v. Graf, Tex.Civ.App., 200 S.W. 858 (N.W.H.). Likewise, a strong preponderance of the evidence on one side or the other is not sufficient to justify a trial court in denying the right to trial by jury. Drew v. American Automobile Ins. Co., Tex.Civ.App., 207 S.W. 547 (N.W.H.).

“In determining in any case whether or not error has been committed by a trial court in instructing a verdict, the testimony must be considered in the light most favorable to the losing party. Conflicts in the testimony must be disregarded, and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the verdict.” Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935.

With respect to the tesimony given by plaintiff concerning representations made by defendants or their agent, Mr. Whatley, as to the production of the well the record shows as' follows:

“Q. All right — now, did you have another conversation with Mr. Whatley a few days later ?
A. It was some days later — it was a day or two before—
Q. Well, let me go back a little. Did Mr. Whatley say anything about where he got his information ?
A. Not at that time. Not on this occasion we are referring to.
Q. State whether or not he said that an employee of Morrison’s office had called Panhandle Eastern ?
A. That is as I recall it, on a subsequent date to this first date we are talking about-.
% * * * * *
A. * * * So then, Mr. Hatton spoke up and asked him, says, ‘Now, Cotton, what is it doing to the pressure?’ And he says, ‘Well, the pressure is holding up fine.’
}ji ‡ % * * *
Q. Now, it was after he told you it was still producing six hundred thousand cubic feet a day, and the pressure was holding up, that you first became interested in buying an interest in the well ?
A. That is right.
Q. When was the next time you heard from Mr. Whatley?
A. It was on the 19th, the date that we, -that the deal was actually es-crowed.
Q. Did he call you or did you call him?
A. He called me by telephone.
Q. That morning, was it ?
A. I don’t remember exactly; I would say around noon.
Q. What did he say ?
A. He said that Ridgeway and Morrison want to escrow that deal; says, ‘if you want it, you go up to Neal, an attorney by name of Neal’s office.’ Says, ‘If you don’t, they are going to sell it to somebody else.’
Q. Did you ask him anything about the production at that point?
A. I says, ‘What is the production doing now?’ He says, ‘It is still holding to six hundred thousand cubic feet a day.’
Q. Now, Mr. Owens, what was said during these conversations about the condensate ?
A. The general talk was that it would yield from four to eight barrels per million cubic feet. Whatley’s talk seemed to center on five barrels per million cubic feet.
Q. Well, did he ever actually tell you it was actually producing five barrels per million cubic feet, per day?
A. That’s right, he did.
Q. On how many occasions?
A. At least three occasions — well, I wouldn’t say exactly, because on the telephone I don’t think he repeated about the condensate.
Q. But at least on two occasions he talked about it?
A. Yes, at least two occasions.
Q. In addition to saying it was producing six hundred thousand cubic feet of gas a day, he also said it was producing five barrels of condensate per million cubic feet?
A. That’s right.”
All italics herein are ours.

With respect to the second purchase of the 14 of the working interest plaintiff testified as follows concerning the representations made to him by defendant Morrison:

“A. * * * He talked at length, and I told him, I says, ‘Now, Whatley told me before I bought that half that that well was delivering six hundred thousand cubic feet a day.’ I says, ‘Is it delivering that much?’ So he went to a large sheet of paper on a tripod, I call it, or an easel, and began figuring; and he figured at length and he came up with, he says, ‘Well, I tell you what it will deliver every year,’ — he says, ‘It will deliver a hundred fifteen million cubic feet; and he figured that out at 17‡ per thousand, or $170 per million, and it came out with eighteen thousand dollars, plus; and then he says, ‘Well, it will bring out about six or eight barrels of distillate a day,’ or words to that effect. He used the figure of six, I mean six barrels per million cubic feet, and he extended that out at a net value of two dollars and fifty cents per barrel, and came up with, I believe, seventeen hundred and some odd dollars; and those two figures there together were something about or a little above twenty thousand dollars. He says, T know this well, I know the wells around it, and you can depend on that much per year. And I asked him then, I says, ‘Well, if it is that good why would you want to sell it’, at the price he had offered. He said, T have just acquired a bunch of leases up near Farnsworth, in the Texas Panhandle, and in order to get those leases I had to agree to drill a well on each lease every ninety days, and I am just pinched for money right now, and this money will make me more in those leases than it will in this gas well.’ ”

Though the agent, Mr. Whatley, made some statements in the record indicating they were made as merely the communication to plaintiff from another person, it is obvious that some of the material statements by him were affirmative representations of a fact. The statements of defendant Morrison just quoted were also clearly affirmative representations.

Our Supreme Court in Boles v. Aldridge, 107 Tex. 209, 175 S.W. 1052, has said:

“The positive affirmation of the truthfulness of information, upon which it is stated that a representation of fact is made, clearly amounts to an affirmation of the truthfulness of the representation itself. The inquiry in all such cases is not whether the party making the representation has actual knowledge, but whether the statement is made as one of fact and purports to be the truth.
“The rule is fully recognized that what one states to another merely as his information touching the subject of a transaction will not support an action for rescission, if such was in fact the information received, though in fact it was untrue.”

The record shows without question that the well was not still producing 600 M.C.F. of gas per day “about the 25th, 26th and 27th of June, 1962,” nor did it ever produce that much in any one day. It is without dispute in the record that it also never produced the amount of condensate defendants and their agent represented it would produce and was producing.

It is doubtful that the pleadings of plaintiff were sufficient for a rescission until the trial amendment was allowed but with that amendment he tendered a reassignment of all the interest assigned by the defendants to him and bound himself to do all things necessary to do complete equity.

Defendants contend plaintiff did not offer to refund the amount he had received from the well but the record shows Panhandle Eastern was holding in suspense all the production represented by plaintiff’s interest and that he offered to do complete equity.

Defendants also contend that a tender of reconveyance of real property in another state is insufficient for the reason that a court may not "by its decree affect title to land situated in another jurisdiction,” citing Paul v. Chenault, Tex.Civ. App., 44 S.W. 682 (N.W.H.).

That case is not in point with the instant case on the facts. That case in an obiter dictum statement held the court in Texas had no power to “affect by its decree the title to land” in Tennessee. Our Supreme Court in the case of Morris v. Hand, 70 Tex. 481, 8 S.W. 210, has held:

“ * * * courts of one state or county have no authority * * * to divest the title to real estate situated in a foreign state or country, * * *■ the extent of the power, in such cases being to decree that the person invested with the title make conveyance of it, which may be enforced by personal process against the owner. But the decree is not effectual unless the owner of the land in person executes a conveyance to it.”

Here the owner of the leases has offered to do so by tendering “to the defendants in this cause a reassignment of all interests assigned by the defendants to the plaintiff * * * ” and binds himself to do all things necessary to do complete equity, since the receiving pipeline company has held in suspense all plaintiff’s interest from production.

In speaking of the rule that “He who seeks equity must do equity,” the author in Pomeroy’s Equity Jurisprudence, Second Edition at p. 525, has said:

“ * * * It says, in effect, that the court will give the plaintiff the relief to which he is entitled, only upon condition that he has given, or consents to give, the defendant such corresponding rights as he also may be entitled to in respect of the subject-matter of the suit. * * *”

The trial court had jurisdiction of the parties and could certainly have decreed that defendants were entitled to the production held in suspense by the pipeline company awaiting the decree of the court to determine to whom it should be paid.

It has been settled by our courts that cancellation is an equitable remedy. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709. The record as finally made here is sufficient to entitle plaintiff to that remedy and to give him an opportunity to have a fact-finding body pass on the facts of the case.

Accordingly, the judgment of the trial court is reversed and remanded for a trial upon the fact issues.


author: BELL, Chief Justice.

text:
    Phillip RISCH, Appellant, v. Margaret Louise RISCH, Appellee.
    No. 14615.
    Court of Civil Appeals of Texas. Houston.
    Oct. 7, 1965.
    First Rehearing Granted Oct. 28, 1965.
    Second Rehearing Denied Nov. 18, 1985.

      Peter S. Navarro, Jr., Houston, for appellant.
    Ted Musick, Houston, for appellee.
   BELL, Chief Justice.

Appellee recovered judgment granting her a divorce from appellant; giving her custody of the two children living with her; fixing child support payments of $350.00 per month; awarding appellee a $1500.00 attorney’s fee, and making a division of the property. The 10 year old son was with appellant in Singapore, Malaysia, and the court made no custodial disposition of him.

Appellee filed her petition on May 22, 1964. Her petition affirmatively alleged appellant was “a resident of Singapore, Malaysia.” There was no allegation that he was domiciled in Texas, though she sufficiently alleged her inhabitancy in Texas and residence in Harris County. She obtained issuance of non-resident notice and the record shows service on appellant in Singapore. The petition also alleged separation on or about March 10, 1962, though proof shows it occurred in August, 1962.

Appellant filed a special appearance under Rule 120a, Texas Rules of Civil Procedure, challenging the jurisdiction of the court, and in it asserted he was a nonresident of Texas, was domiciled in Singapore, Malaysia, and that he and his property were not amenable to process issued by Texas courts. The plea was sworn to by appellant’s counsel.

The trial court, after hearing, overruled the plea and appellant excepted to the ruling. He here complains that this action was erroneous and therefore the court had no jurisdiction to fix child support, act on certain personal property in appellant’s possession in Singapore or to award attorney’s fees. There is no question that the court had jurisdiction to grant the divorce, to fix custody of the children who were here and to act on property within the State.

We are of the view that the court erred in holding it had personal jurisdiction so as to award child support and attorney’s fees.

The evidence shows the parties were married in Miami, Oklahoma, in 1954, at which time appellant lived in Oklahoma. The parties lived in Oklahoma until 1957. Then appellant, who worked for an oil company, commenced work for the company in its foreign service. From Oklahoma the parties went to Indonesia for two years. In November, 1959, while on vacation, they stayed a short time in the home of appellee’s parents in Houston and then rented an apartment. In 1960, before February when appellant went to Argentina, they bought a house in Pasadena, Texas. It was never lived in by the parties but was immediately rented to third parties and has continuously been so rented. Ap-pellee went to Argentina in April. She, appellant and the children stayed there until March, 1962, at which time she and the two small girls came to Houston. Appellant and the son followed in June. The trip to Houston was for a vacation. While here on vacation the parties rented an apartment. In August appellant left, ostensibly to go back to Argentina. He took the boy with him. Since this time ap-pellee has had no direct word from appellant, but she learned through friends he was in Singapore with the son. He sends $200.00 per month for support, but it is sent by a New York bank to her bank here. Appellee states as a conclusion that the house in Pasadena was bought as a home but nowhere does there appear anything said or done by appellant with regard to the house except it was bought in early 1960. $3,000.00 was paid down and the rentals have been used to keep up the deferred payments, taxes and insurance. The collection of the rental and the payments are made by some rental agent. Appellee apparently knows nothing more about the property than we have recited. Appellee stated Houston was a “transitory” point for them between assignments because her parents lived here. She did state that at some time before their marriage in Oklahoma appellant had lived in Texas.

We feel, under the evidence contained in the record before us, the last marital domicile of both parties was in Tulsa, Oklahoma, where they lived until 1957. Appellee, of course, has since 1962 been a good faith inhabitant and resident of Harris County.

Since appellant was not domiciled in Texas at the time of service, was served out of the State, and properly pled and proved under Rule 120a he is not amenable to service of process in matters in personam, it was error for the court to fix child support and to award attorney’s fees. Grubbs v. Grubbs, Tex.Civ.App., 164 S.W.2d 216, no writ hist.; Woodworth v. Woodworth, Tex.Civ.App., 277 S.W.2d 828, no writ hist.

Appellant also asserts that he had obtained a divorce in Mexico from appellee. Further he asserts that if this is not valid and he and appellee remained husband and wife, the evidence in this record does not support a judgment for divorce.

Appellee’s petition alleges as grounds for divorce “cruel treatment and outrages toward Plaintiff of such a nature as to render living together with defendant intolerable and insupportable.” Specifically appellee also pled that appellant stole the minor son and has the son with him in Malaysia where reportedly appellant is living with another woman to whom he is not married. The assertion that he is living in adultery is made on the basis, first, that the Mexican divorce was invalid, and second, that he never purported to marry his alleged companion.

The evidence shows that while the parties were here on vacation during June and July, 1962, they had “just the usual family arguments.” When asked if appellant struck her as a result of the arguments, appellee answered “yes.” The nature of the arguments and striking is not further characterized. In response to the question, “Now, after that time, Mr. Risch left, and what was your understanding of where he was going and what you were supposed to do when he left, Mrs. Risch,” appellee answered, “It was my intention that Mr. Risch was going back to Argentina where he was to stay * * * two or three months. * * * He was supposed to come back to the States and we were going to Indonesia, and, as I said, the next thing I knew Mr. Risch was in Indonesia, and I had no knowledge of that.” Previously she had testified that through friends she learned that he was in Indonesia living with another woman. She also testified she allowed him to take the boy with him because appellant was to send for her and the other children to join him in Indonesia. Appellee testified she had made two efforts to communicate with him, once when he failed to send the $200.00 support payment. She cabled him at Singapore and learned he was in the States on vacation. She was unable to locate him though she attempted to through Mr. Borlan of the New York office. The other occasion was in 1963 when she heard he had obtained a divorce or was trying to. She wrote him asking that he let her know something. She received no reply. She said she knew nothing definitely about the divorce until about January, 1964, when she received through the mail what she took to be a copy of a judgment of divorce granted appellant in Mexico. The judgment is dated September 8, 1962. Appellee testified she was never served with any notice nor did she ever agree to submit herself to the jurisdiction of the Mexican court. She- never submitted to the jurisdiction of the Court of Mexico. What is therefore shown is that appellant while in transit, presumably to Argentina, paused long enough in Mexico to go. through the formality of obtaining a divorce without notice of any kind to appellee. The judgment is void and after its pronouncement appellee and appellant remained husband and wife.

After all of the above evidence was developed appellee testified that because of all of this conduct on the part of appellant she could under no circumstances live with him as his wife and that such conduct rendered their living together as husband and wife intolerable and insupportable.

We are of the view that when all evidence is considered it supports the conclusion reached by the trial court, that there was cruel and harsh treatment of appellee by appellant of such a nature as to render their living together as husband and wife insupportable. Too, we feel the evidence is full and satisfactory.

Taken alone, evidence about the arguments and striking would not suffice. However, this must be considered in connection with the other undisputed facts. Almost immediately following such conduct, appellant persuaded appellee to allow him to take their son, who was then only eight years old, with him to Argentina, for the temporary stay of a few months. This was done with the understanding that appellant would then return to the States and take appellee and all of the children with him to Indonesia. That this promise by appellant was a pure guise to deprive ap-pellee, a mother, of her child is established by what immediately followed. Appellant went forthwith to Mexico where he surreptitiously filed suit for divorce in which he asked for custody of the son. Without notice to appellee he prosecuted the suit to a conclusion and obtained a judgment purportedly granting a divorce and giving him continued possession of the child. He then went on his way and was not heard from directly by appellee, but she did learn indirectly through friends that appellant was in Indonesia. While the information given by friends that he was in Indonesia is hearsay and cannot be used to establish that as a fact, appellant’s own pleading establishes what is just as bad, that is, that he is a resident of Singapore, Malaysia, just across Malacca Strait from Sumatra, the leading oil producing island of Indonesia. There, in a foreign country, in a country characterized by unsettled conditions, particularly for United States citizens, he has apparently kept appellee’s young son. During the time from August, 1962 until the time of trial of this case in December, 1964, appellant has not so much as one time communicated with appellee to let her know of the welfare of her son. Concern and grief of a mother so deprived of a child cannot be doubted. Appellee on at least two occasions during that period has directly sought information from appellant, but her efforts have met with stony silence. The striking of appellee, the procuring of possession of the child through false pretenses, and removal of him beyond the jurisdiction of the courts of Texas, the state where the mother was, the stealthy acts of appellant in connection with the divorce suit in Mexico, and the withholding of possession of the child in the foreign country for over two years, could but be deliberate and intentional acts designed and calculated to embarrass and bring grief to appellee. These acts demonstrate more than words the utter absence of any affection appellant might have for appellee and they could but destroy any love or respect that appellee might otherwise have for appellant.

Appellant complains that the house in Pasadena was separate property because the money invested was earned elsewhere and some of it after the Mexican divorce. We have held the relationship of husband and wife was not destroyed by the Mexican divorce. While some of the money invested in the house was earned elsewhere, it was earned during the mar-riage relationship. The balance that has been paid was from rents on the house earned in Texas. There is no pleading or proof that the laws of the State of appellant’s residence or domicile are any different than the laws of Texas. They are, therefore, presumed to be the same. The result is that the real estate is community property. The statute forbidding divesting of title to real estate does not apply to community real estate. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (S.Ct.).

Appellant finally urges the Court has no jurisdiction over property of a nonresident lying outside the State. This is true. However, in setting aside to one of the spouses property within its jurisdiction, the court may consider the property beyond its jurisdiction in the possession of the opposite spouse. Askew v. Rountree, Tex.Civ.App., 120 S.W.2d 117, writ dism.

The judgment of the trial court fixing child support and awarding an attorney’s fee is reversed and rendered for want of jurisdiction over the person. That part of the judgment awarding appellee a divorce, giving her custody of the two girls and awarding her property lying within the State is affirmed.

On Motions for Rehearing

Appellee’s motion for rehearing is overruled.

Appellant’s motion for rehearing is granted to the extent that our original disposition might not have made clear that we were reversing and rendering the trial court’s judgment insofar as it purported to divide property lying without the State. The court had no jurisdiction to do this so that in addition to reversing and rendering the trial court’s judgment awarding appel-lee child support and attorney’s fees, we reverse and render that Court’s judgment insofar as it purported to divide any property lying outside of Texas. The court had no jurisdiction to act on these matters. We would make clear, however, that the court had jurisdiction to adjudicate with regard to property within Texas and its judgment disposing of property within the State is affirmed as is the judgment awarding appellee a divorce and giving her custody of the two children residing with her in Harris County.