author: FRASER, Chief Justice. PRESLAR, Justice

text:
    Fay D. HOUSEMAN et vir, Appellants, v. Hilary D. MAHIN et al., and Lettie Mahin et al., Appellees.
    Nos. 5710, 5739.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 11, 1964.
    Rehearing Denied Dec. 30, 1964.

      Leonard Howell, Midland, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Charles Tighe, Legg, Saxe & Baskin and Reagan H. Legg, Midland, for appellees.
   FRASER, Chief Justice.

Appellants, who are Fay D. Mahin Houseman and husband, Henry H. Houseman, state that this is an appeal of judgments and orders entered adversely to them in two separate causes in the 142nd Judicial District Court of Midland County, Texas, involving the change of custody of three minor children from their natural mother, Mrs. Houseman, to their paternal grandmother, Mrs. Lettie Mahin. Appellants state that the subject matter and parties are identical in both cases.

On June 24, 1963 Hilary D. Mahin and his wife, Fay D. Mahin, were divorced in the 142nd Judicial District Court of Midland County, the term of which court expired August 31, 1963. The court, in its decree of divorce, temporarily awarded the custody of the three children to appellee Mrs. Lettie Mahin until January 25, 1964, at which time appellee Hilary D. Mahin was to deliver the children to appellant Fay D. Mahin Houseman (Mrs. Mahin, subsequent to the divorce, married Mr. Houseman). On January 15, 1964, ten days before the temporary custody provision was to expire, appellee Hilary D. Mahin filed, in the divorce suit numbered 18,962, a motion asking the court to modify and change the provisions which it had made with reference to the custody of the three children. The trial court set a hearing on such motion for January 23, 1964. On this same date, January 15, 1964, appellee Hilary D. Mahin filed a new suit, or cause of action, numbered 19,987, also in the 142nd District Court of Midland County, naming his mother, Mrs. Lettie Mahin, as co-defendant with the natural mother, Mrs. Fay D. Mahin Houseman, and her husband, Henry H. Houseman. In this cause of action Mr. Mahin alleges that Mrs. Lettie Mahin is a resident of Midland County, Texas, and that the natural mother is a resident of Dallas County, Texas, and asked for judgment changing or modifying the former judgment relative to the custody of the children. The natural mother filed her plea of privilege in the original divorce case, delivering a copy of same to the attorney for appellee, along with a letter demanding that the children be turned over to her on January 25th in accordance with the original divorce judgment. On January 23, 1964, in the original divorce case, No. 18,962, the trial court signed what appellants designate as a “stay order”, continuing the custody of the three children in appellee, Mrs. Lettie Mahin, pending further order of the court. On February 4, 1964 appellee Hilary D. Mahin filed a controverting plea to appellants’ plea of privilege in the original divorce case, and on February 10, 1964 appellants filed a motion for severance of the change of custody issue from all other matters contained in the motion filed by appellee. On February 19th, Hilary D. Mahin filed his amended original petition in the second case, No. 19,987, and obtained, on the basis of this petition, a temporary restraining order restraining appellants from attempting to obtain custody of said minor children, and commanding appellants to appear before the court on February 26, 1964 to determine why such order should not remain in force until final hearing. On February 21, 1964 appellants filed their plea of privilege to this second suit, and delivered a copy to the attorney for Mr. Mahin. Appellee Mahin filed his controverting plea thereto on March 2, 1964, and appellee Mr. Mahin, in opposition to the plea of privilege, alleged and maintained that on January 15th, when the second suit was filed, appellee Mrs. Lettie Mahin was a resident of Midland County, Texas and was the legal custodian of the children at that time, which was ten days before the original order issued in the divorce suit was to expire. Mrs. Lettie Mahin filed, apparently without objection of record, pleas of intervention in both suits. Appellee Mrs. Lettie Mahin also filed her answer in the second suit, copies of which, according to the transcript, were dispatched to the other attorneys involved, on February 27, 1964. In this answer Mrs. Lettie Mahin alleges that both the natural mother and father are unfit to have the care and custody of the three children, and states that the children are doing well under her supervision and custody in Midland County. In the petition of appellee Hilary D. Mahin, he alleges that Mrs. Fay D. Mahin Houseman’s new husband has at least three children by two prior wives and, at the time of filing of the petition, was approximately $6,000.00 in arrears in payments of child support for his children. The trial court, after considerable discussion between the parties, attorneys and the court did, according to appellants’ brief, on March 2, 1964 proceed to hear the matters in both cases and overruled the appellants’ pleas of privilege in both cases; then proceeded to hear the new suit, No. 19,987, on its merits and entered a judgment, dated March 25, 1964. This judgment recites that the plea of privilege of Fay D. Mahin Houseman and her husband is overruled. The judgment then states that “ * * * by agreement of all parties herein” the court proceeded to hear all matters relative to the main issue involving the custody and temporary custody of the minor children, and having heard such decreed in said judgment that the custody of the three children be continued in Mrs. Lettie Mahin, the grandmother, until September 1, 1964 or until further order of the court. The judgment further granted all parties the right to present any further evidence during the month of August, 1964. In a judgment dated the 2nd day of September, 1964, the court entered its last judgment, reciting that no one had submitted additional evidence during the month of August, 1964, and granted permanent custody to Mrs. Lettie Mahin, the grandmother, in cause No. 19,987.

It is apparent from the record before us that appellants appeal from the ruling of the court with reference to the plea of privilege, maintaining and insisting that the court should have transferred the case to Dallas, the residence of the defendant Mrs. Fay Mahin Houseman.

Appellants bring up five points, which charge that the trial court erred in failing to sustain the pleas of privilege of appellants; in entering the stay order of January 23, 1964 and entering the temporary restraining order of February 19, 1964 enjoining appellants from attempting to obtain care, custody and control of the 'children; in hearing the change of custody suit on its merits and entering judgment adverse to appellants concerning the custody of the minor children; in failing to consolidate the judgments in causes 18,-962 and 19,987.

Before we begin the discussion of the legal aspects of this case, it must be pointed out that the appeal here appears to be based on the actions of the court in the second lawsuit — to-wit, No. 19,987 — although appellants say they are appealing, too, from an attempt to change the provisions of the original divorce suit. In any event the entire controversy involves, and required the court to consider, whether there existed a change of conditions justifying and requiring a new and different disposition of the custody and care of these children,- who ranged in age from two and one-half to nine years of age. The record does not contain any statement of facts as to the evidence the court heard regarding the change of conditions; -but is confined to matters dealing with the pleas of privilege. Therefore we will consider, and are able to consider, only the matters before us, which are confined pretty much to the pleas of privilege. We cannot, and do not feel called on, to consider the court’s action in making the custodial change, as we do not have any evidence before us indicating that the court made anything but the right decision. In the absence of evidence usually found in the Statement of Facts, it is elementary that the action of the trial court is considered to be justified and sustained by the evidence and matters before him, and they are considered to have been favorable to, and in support of, his judgment.

Therefore, we pass now to the plea of privilege in the second case. We believe that the action of the trial court with regard to this matter was correct. In Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d Í016, the Supreme Court discusses this matter, and it is apparent from that case and subsequent cases which we will discuss in this opinion that the action for change or modification of custody of children is a new and independent suit. There are a number of cases holding that the venue of an action asking for a change of custody of minor children should be fixed in the county where either the children or their legal custodian resides. Many of these cases, hereinafter cited, mention Lakey v. McCarroll. In Adams v. Messer, 335 S.W.2d 676, Tex.Civ.App. (dismissed), the court said that the suit setting up the changed conditions with respect to the children is a new suit and would have to be brought in the county in which the children reside ('citing the Lakey case and Poindexter et al. v. O’Neill et vir, 313 S.W.2d 158, Tex.Civ.App.). The court further emphasizes that both the children and their custodian resided in Ector County and that, therefore, Ector County was the county of proper venue. To the same effect is Ardrey v. Ruth, 189 S.W.2d 15 (Civ.App., n. w. h.), wherein the court points out and states as follows: “Venue of suits for readjudication or involving custody of minors, is definitely fixed in the county of the residence of the minor, or custodian of the minor to whom custody has been awarded by a court of competent jurisdiction” (citing Lakey v. McCarroll). Also, in Leonard v. Leonard, 358 S.W.2d 721, Tex.Civ.App./which case is relied on by both parties as is the Lakey case, the court states: “However, it is equally well settled that venue in actions for change of custody of minors lies in the county of the residence of the person having legal custody” (citing Lakey v. McCarroll). Then, in Wilson et al v. Wilson et al., 137 Tex. 528, 155 S.W.2d 601 (Comm.App.1941), which decision was adopted by the Supreme Court, we find the following: “Shortly after the present case was decided by the Court of Civil Appeals, the precise question here presented was decided by the Supreme Court in the case of Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016, 1021. It is there held that Article 4639a did not have the effect of changing the rule theretofore existing, to-wit, that the proper venue for an action involving the custody of a minor was the residence of the custodian of such minor.”

It is here contended that the paternal grandmother, Mrs. Lettie Mahin, was not a legal and proper person, or legitimate resident of Midland County at the time of these hearings. The record reveals that she had been a resident of Oklahoma; but, by her own testimony, had moved to Midland a little while before these hearings. In her words, she had lived in Midland since the Christmas holidays (1963). She also stated that she had leased out her property in Oklahoma and now lived in Midland County and had a bank account in the City of Midland, and she stated as follows: “My home is in Midland at this time.” She also stated that it has been her intention to make her home in Midland and that she intervened voluntarily in both cases; that the two older children are in school in Midland; and she again stated that she intends to continuo, to make Midland her place of residence.. We believe this record justified the court in finding that on January 15, 1964 Mrs. Lettie Mahin was the legal custodian of the children and, at that time, was a legal resident of Midland County, Texas. In his judgment of March 2, 1964, entered March 25, 1964, the court officially finds that Mrs. Lettie Mahin, at that 'time, was still the legal custodian of the minor children and that she was a legal resident of Midland County, Texas. On the basis of the record we believe that the court, as stated above, was fully justified in making these findings. Having made them, the cases cited above, we believe, provide the legal disposition of the matter, and requires us to affirm the decision of the trial court We should like to point out one further fact; that is, that there is a tendency in some courts (as illustrated in the case of Fowler v. Fowler, 292 S.W.2d 800, Tex.Civ.App., n. w. h.) to describe the status of either parent as that of a custodian, rather than a parent We believe this theory extends, of course, to the designation of any legal custodian, whether immediate parent or not. Also, with reference to the residence of Mrs. Lettie Mahin, we should like to mention two cases found in her brief. In Spencer v. Spencer, 371 S.W.2d 898. Tex.Civ.App., the mother had, by the court, been given custody of the children in the divorce suit. While she was in a hospital suffering from a nervous breakdown, her father delivered the children to their natural father. When the natural mother left the hospital she filed an action asking the court to return the children to her. The court held that even though the father in this case did not have "legal” custody of the children, he had their actual custody and that he was entitled to be sued in the county of his residence. By the court’s language wherein it states that the mother’s father delivered the children to their natural father, it can be assumed that they resided with the natural father in the county of his residence. As shown, this case reflects no writ history. Lastly, our Supreme Court held, in the case of Mills v. Bartlett, 377 S.W.2d 636 (S.Ct., 1964), that neither bodily presence alone, nor intention alone, suffice to create residence, but when the two coincide residence is fixed and determined. The court says: “There is no specific length of time for the bodily presence to continue”.

Appellees also base their support of the trial court’s judgment on subdivision 4 of Article 1995, Vernon’s Ann.Civ.St., which holds that suit may be brought in any county where one of the defendants reside. Again our Supreme Court states very clearly the applicable law (in Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300), holding that it must be proven by affirmative evidence that one of the defendants resides' in the county where it is attempted to maintain venue. Our Supreme Court, in a very scholarly discussion, holds that the petition must allege a definite or legitimate cause of action against a proper defendant in order to maintain venue in the county where the matter is filed. Without going further into the able discussion of this matter by our Supreme Count, we feel that appellee Hilary Mahin has complied with the provisions of subdivision 4 as interpreted by our Supreme Court, in that his petition contains the necessary allegations, and his evidence the necessary proof. We therefore hold that, under subdivision 4, Mrs. Lettie Mahin was a prop.er and necessary defendant who, at the time of this suit, No. 19,987, was the legal and actual custodian of the children and a legal resident of Midland County.

We should like, also, to point out that, as in all cases involving the care and custody of children, the trial court has considerable latitude in all of its rulings, and is empowered and even required to exercise considerable discretion.

As stated above we do not pass on, other than to overrule, appellants’ points with regard to the court’s action in changing his original judgment so that custody did not and would not vest in the natural mother on January 25, 1964, but would be continued and made permanent in Mrs. Lettie Mahin, the paternal grandmother (which is appellants’ fourth point), because there was no evidence presented and nothing to suggest that the trial court was in any way in error.

Appellants, in their third point, also charge error in the court’s action in entering its temporary restraining order of February 19, 1964, enjoining appellants from attempting to obtain care, custody and control of the minor children; and in their second point they also charge that the court committed error in entering its stay order of January 23, 1964, continuing the custody in Mrs. Lettie Mahin until further order of the court. We overrule these two points because we do not find error, and again point out that the trial court, in matters involving minor children, has great discretionary power to enter orders which, in his opinion, are necessary not only for the well-being of the children, but to enable a proper disposition of their custody to be made by such court. We think the trial court, therefore, was within his power and rights in issuing these two orders.

Appellants’ fifth point charges error in the court’s failure to consolidate the judgments in the two cases, to-wit, the original divorce case and the second, independent action, numbered 19,987. We do not find any merit in this point, either, as it appears to us from this record that the second case was a new and independent action alleging changed conditions and asking for change of the custodial ruling entered in the original divorce case. This is the case the court heard, and is the case wherein the court overruled the plea of privilege here appealed from. We have a transcript in both cases, and pleadings in both cases, but it is our feeling and holding that the decision of the trial court and the disposition of this matter is entirely confined to the second case, the first case having been decided and concluded with the exception of the custody of the minor children which, of course, is always a matter that may be inquired into.

On the basis of the authorities cited and discussed above, we hold that Mrs. Lettie Mahin was the legal custodian of the three minor children herein involved at the time of this lawsuit, and at such time, and all times subsequent thereto, was a legal resident of Midland County. Such being the case, venue was properly laid in Midland County and the court acted correctly in overruling the plea of privilege filed by Mrs. Fay D. Mahin Houseman, the natural mother of the children, who was a resident of Dallas, Texas.

Appellants’ points are all, therefore, overruled, and the action of the trial court is in all things affirmed.

PRESLAR, Justice

(dissenting).

I respectfully dissent. It is my opinion that the appellants’ plea of privilege should have been sustained.

We are concerned only with cause No. 19,987 for the reason that a suit seeking to re-litigate the custody of children based on changed conditions is a new and independent cause of action from the original suit for divorce. Also, the controverting affidavit filed in the original suit, cause No. 18,962, was not filed within the time limit permitted by the Rules of Civil Procedure, and there being no pleading and proof of good cause for such late filing, the court had no choice but to sustain the plea of privilege. Southern Insurance Company v. Rogers, Tex.Civ.App., 342 S.W.2d 135.

This being a suit to re-litigate the custody of minor children, whose custody had already been adjudicated at a term of court which had expired, the venue is controlled by the general law of venue. Duncan v. Duncan, Tex.Civ.App., 300 S.W.2d 149; Cade v. Jones, Tex.Civ.App., 289 S.W.2d 787; Fox v. Fox, Tex.Civ.App., 281 S.W.2d 122; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Fitzgerald v. Neutze, Tex.Civ.App., 348 S.W.2d 677 (El Paso, 1961). Venue in such cases lies in the county of the residence of the person having legal custody. Lakey v. McCarroll (supra) ; Ellington v. Floyd, Tex.Civ.App., 255 S.W.2d 948; Taylor v. Taylor, Tex.Civ.App., 348 S.W.2d 226; Leonard v. Leonard, Tex.Civ.App., 358 S.W.2d 721. As I understand the majority opinion, it is based on custody being in the grandmother at the time of institution of suit. Or, that she being a party defendant and a resident of the county of suit, then venue is proper as to the other defendant-appellant under exception 4 of Article 1995. As to the first proposition, it is to be noted that there existed a valid and final judgment placing permanent custody in appellant, such custody to begin on January 25th. Custody was to be in the grandmother until that date. The father filed this suit on January 15th, and in February he filed his amended petition which was the basis of his controverting affidavit. It is my position that, at the time of the filing of this amended petition and at the time of the hearing thereon, custody was, by the final judgment, in appellant. Venue is determined by the facts as they exist at the time the plea is heard, Phipps v. Reed, Tex.Civ.App., 219 S.W.2d 561; Midlothian Oil & Gin Co. v. Commercial Standard Ins. Co., Tex.Civ.App., 120 S.W.2d 518 (El Paso, 1938) ; Avery v. Llano Cotton Seed Oil Mill Ass’n., Tex.Civ.App., 196 S.W. 351 (err. ref.). The venue question at the time of hearing was simply: Who had legal custody? To me, the answer is “appellant”, by virtue of the final judgment. That venue fact could not have been changed by any temporary stay order of the court entered in the dormant original suit for divorce, nor in this suit.

As to the second proposition, it appears to me to be a legal fiction to permit the father to maintain venue against the mother by making the grandmother a party defendant in a suit filed ten days before the grandmother’s custody expired by the terms of the final judgment. An essential venue fact under exception 4 of Article 1995 is that plaintiff has a bona fide claim against the resident defendant. In the case before us the plaintiff-father alleged no cause of action against the resident defendant-grandmother in the first place; and, in the second place, I fail to see how he could have had a bona fide cause of action against her, for such custody as she had would have expired within ten days of the filing of his suit. He could not expect to have her and the other defendant (the mother) in court for twenty days. Also, the nature of his suit was for change of the permanent custody portion of the judgment, and sought no action for the ten-day period in which the resident grandmother had custody.

For the reasons stated, I would sustain the appellants’ plea of privilege.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Claude GILLIAM, Appellant, v. Edward RIGGS (AKA A. E. Riggs, Jr.) and Sarah L. Riggs, Appellees.
    No. 6645.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 25, 1964.
    Rehearing Denied Dec. 30, 1964.

      Adams & Browne, Beaumont, for appellant.
    Keith, Mehaffy & .Weber, Beaumont, for appellees.
   PARKER, Justice.

On February 13, 1962, Claude Gilliam, as an intervenor, filed suit to set aside a divorce decree and judgment entered on December 16, 1948, in the District Court of Jefferson County, Texas, by which A. E. Riggs, Jr., was granted a divorce from Sarah L. Riggs. Intervenor alleged that the divorce was obtained by fraud practiced upon the District Court of Jefferson County, Texas, because both plaintiff and defendant were residents of the State of Louisiana and neither had lived in the State of Texas for one year prior to the said Riggs having filed suit for divorce. The inter-venor’s suit to set aside the judgment of divorce between A. E. Riggs, Jr., and Sarah L. Riggs was in all things overruled and dismissed upon the exceptions and plea of abatement urged by A. E. Riggs, Jr., and Sarah L. Riggs with the inter-venor, Claude Gilliam, taking nothing on his motion to set aside the judgment of December 16, 1948.

Appellant is Claude Gilliam, the inter-venor, whose points of error are as follows:

"1. The trial court erred in holding in effect that a plaintiff does not have to be a resident of the State of Texas for one (1) year immediately preceding the filing of a petition for divorce.
“2. The court erred in holding in effect that Article 4631 of the Revised Civil Statutes of the State of Texas does not apply to a divorce case.
“3. The court erred in holding in effect that Article 4631 is not mandatory.
“4. The court erred in making a holding, which is against the public policy of the State of Texas, which is against fly-by-night divorce suits.”

All points of error will be considered together.

A. E. Riggs, Jr., filed suit for divorce from Sarah L. Riggs on November 15, 1948, in the District Court of Jefferson County, Texas. Sarah L. Riggs waived service on. November 20, 1948. Divorce was granted December 16, 1948, the judgment, on its- face, being regular and valid in all respects. Appellant was not a party to the divorce suit and in no manner alleges that he has any rights, claims or interest which would be prejudiced or injuriously affected by the enforcement of the judgment of divorce. Nevertheless, he seeks to set aside the 1948 judgment, alleging that A. E. Riggs, Jr., fraudulently represented to the District Court of Jefferson County, Texas, that he was a bona fide citizen and inhabitant of the State of Texas at the time he filed such suit and for twelve months prior thereto, when in fact the said Riggs had not been a resident of Texas for twelve months when he filed such suit.

Article 4631, Revised Civil Statutes of the State of Texas, is mandatory in the residential qualifications of the plaintiff to bring a divorce suit in the State of Texas. Ex parte Scott, (1939) 133 Tex. 1, 123 S.W.2d 306 (answers to certified questions conformed to), 126 S.W.2d 525. The residential requirements must be pleaded and proved. The District Court of Jefferson County had jurisdiction of such suit. It was authorized to grant the divorce upon pleading and proof of residence having been made as required by Article 4631, Revised Civil Statutes of the State of Texas. Upon the trial of 1948 in the District Court of Jefferson County, it will be presumed that evidence was offered supporting and complying with the residential requirements of Article 4631 as the basis for such judgment for divorce. Such court had power to determine the facts on which jurisdiction, as well as the power to grant the divorce, turned. That decision cannot be attacked collaterally. The appellant Gilliam’s motion to set aside the divorce judgment of December 16, 1948, is a collateral attack. It was not a void judgment.

The original petition of A. E. Riggs, Jr., contained the allegation:

“1. That plaintiff is now and for the last 12 months past has been an actual bonafide citizen and inhabitant of the State of Texas, and has actually and continuously resided within the County of Jefferson for a period of more than 6 months preceding the filing of this suit, and the residence of the defendant is non-resident of this county and state.”

The judgment itself of December 16, 1948, found that all material allegations of plaintiff’s petition were true. The residential prerequisites alleged in plaintiff’s petition were found by the judgment to be true and import absolute verity as against the collateral attack on the judgment by appellant.

On the record before this court, proof on this issue of validity of the 1948 judgment is limited to the judgment and the allegations of plaintiff’s petition which the judgment found to be true. Thereby, it is conclusively established that A. E. Riggs, Jr., was a resident of the State of Texas for one year immediately preceding the filing of his petition for divorce from which it follows that the 1948 judgment is valid and subsisting. Easterline v. Bean (Tex.S.Ct. 1932), 121 Tex. 327, 49 S.W.2d 427; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932 (Tex.S.Ct. 1935); 34 Tex. Jur.2d 304, Sec. 325.

Appellant has shown no right in himself violated by the parties to the divorce action of which he can complain. No facts are alleged that give him a right to bring the suit. Appellant has no cause of action. In order to make a collateral attack Upon the 1948 divorce judgment, appellant must show a cause of action in himself. This he has failed to do and the trial court correctly refused to allow him to attack the judgment. Kieke v. Cox, 300 S.W.2d 309, Tex.Ciy.App. (1957); Mercantile Bank & Trust Co. v. Schuhart, (Tex.S.Ct. 1925) 115 Tex. 114, 277 S.W. 621, 624.

The foregoing established rules in Texas applying to judgments generally apply to divorce judgments with equal, if not more, force than other judgments. Public policy and public morals so demand.

Each and all of appellant’s points of error are overruled.

Judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    Mary E. BAKER et ux., Appellants, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee.
    No. 14397.
    Court of Civil Appeals of Texas. Houston.
    Dec. 17, 1964.
    Rehearing Denied Jan. 7, 1965.

      Jim S. Phelps, Houston, and Bill Kilgar-lin, Houston, of counsel, for appellants.
    Clawson, Jennings & Clawson, Max H. Jennings, Houston, R. Philip Schulze, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit for workmen’s compensation insurance. At the close of appellant’s testimony, the trial court instructed the jury to return a verdict for the defendant. The question is whether the evidence is sufficient to raise an issue of fact on good cause for appellant’s failure to give notice of her injury and to file her claim for compensation within the statutory period of time.

Appellant is a 52 year old white married woman. She has children, including an adult retarded son. She was about 5 feet 3 inches in height and weighed about 235 pounds. She was married at the age of twelve. For about 18 years prior to the trial she had been working with some regularity as a seamstress in laundry and cleaning and pressing establishments.

Appellant testified that about two months after she was first employed by the Spic and Span Cleaners, on November 15, 1960, while she was lifting and pulling on a sewing machine weighing about 100 pounds, she felt a pop in her back at about the belt line. She felt a sharp pain momentarily, which subsided into a dull ache after she took aspirin. She continued to work and did not inform anyone about her condition at the time. Although she continued to have pain in her back, she continued to work regularly for six months. During that period she was unable to work at various times and lost the total of about one week’s time. The intensity of the pain varied. At times it was so severe that she could hardly turn over at night, and sometimes she could hardly get in and out of a car. At other periods she might be free of pain for as much as a week. Since she was free of pain at times, she thought there “was not much to it, nothing to it.”

In June, 1961, she had to take off from work to take her son to a state institution in Austin, and missed several days’ work, and, as a result, lost her job. Thereafter, for the first time, she went to see a doctor. He placed her in a hospital for examination and treatment. When she was released from the hospital, after two weeks, the doctor told her that she had a pinched nerve.

She did not seek work because her son had returned home. Although her back continued to hurt off and on, she was able to do her housework and stopped going to see the doctor. She continued to believe she was going to get better until she had a “real bad spell” in January, 1962. At night she could not move or turn over. She became afraid she was going to get where she couldn’t move. She then consulted an attorney, who promptly filed her claim for compensation. On the advise of her attorney, she consulted another doctor who continued to treat her to the date of the trial. In September, 1962, she secured another position and was working up to the date the case went to trial.

The rules of law applicable to the question under consideration have been clearly defined. In Texas Employers’ Ins. Ass’n v. Clark, Tex.Civ.App., 23 S.W.2d 405, writ dism., the court said:

“That the employee did not believe his injuries to be serious would clearly afford a good cause for not giving notice and filing claim until it was learned that they were serious. Compensation is not provided for pain and suffering, but for loss of wages, and there would arise no necessity for giving notice or filing a claim so long as the employee lost no time from his work, but believed his injuries were trivial. Consolidated Underwriters v. Seale (Tex.Civ.App.) 237 S.W. 642.”

This case was cited with approval in Texas Employers’ Ins. Ass’n v. Roberts, Tex.Com.App., 135 Tex. 123, 139 S.W.2d 80, opinion adopted.

Both of these cases have been cited by the Supreme Court of Texas in such recent cases as Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370; Harkey v. Texas Employers’ Ins. Ass’n, 208 S.W.2d 919; Texas Employers’ Ins. Ass’n v. Portley, 153 Tex. 62, 263 S.W.2d 247; and Texas Employers’ Ins. Ass’n v. Hancox, 162 Tex. 565, 349 S.W.2d 102. In the Portley case, supra, the court, referring to the cases above cited, said:

“But those cases make clear that delay may not be excused unless the belief that the injury or condition was not serious would have been entertained by a reasonably prudent person in the same or similar circumstances. While ordinarily the question is one for the trier of the facts to determine, a mere statement by an injured person that he did not regard his injuries as serious will not raise a fact issue when the facts themselves put the matter beyond the pale of reason or beyond belief by a prudent person.”

Appellant testified clearly that she considered her injury trivial. Her testimony is supported by the fact that she continued to work regularly for six months after the injury until she was laid off. It is further supported by the fact that she did not report the injury and did not seek medical treatment during that period of time. There is no evidence that she took medication for pain although she testified that she was suffering back pain off and on. While she was not working she consulted a doctor for the first time. He took x-rays, put boards under her bed, gave her some shots and medication and, at the time of her release, told her she had a pinched nerve. She took the medicine for a short time and then discontinued the medication and stopped seeing the doctor. During this time she was able to do her housework though she experienced pain at frequent intervals and the pain at times was severe. We cannot say that her conduct was inconsistent with her statement that she considered that there was “not much to” the injury. Even though she suffered severe pain at times and had been informed that she had a pinched nerve, we cannot say that her expressed belief that her injury was not serious and that she would get better without medical treatment was one “beyond the pale of reason” or was a belief which could not be entertained by a prudent person under the existing circumstances.

In support of the action of the trial court in finding as a matter of law a failure to prove good cause, appellee cites Texas Employers’ Insurance Association v. Hancox, 1961, 16 Tex. 565, 349 S.W.2d 102; Texas Employers’ Insurance Association v. Dill, Tex.Civ.App.1963, 369 S.W.2d 464; Texas Employers’ Insurance Association v. Doss, Tex.Civ.App.1957, 301 S.W.2d 473; Fortenberry v. Maryland Casualty Company, 5 Cir., 247 F.2d 702; and Wedel v. Indemnity Insurance Co. of North America, 5 Cir., 239 F.2d 302. The facts of the Wedel case, supra, most nearly approximate the facts of this case, but there, as the court points out, the claimant delayed filing his claim for an additional thirty .days after he fully realized the seriousness of his condition. The court-also held the plaintiff’s contention that good cause existed for not filing his claim within the statutory period was without substantial basis as a matter of law where he delayed for six months after the period for filing his claim ended, knowing that his injury was not healed. We consider this ground of decision contrary to the cases previously cited and decline to follow it.

Appellee also stresses this language found in the Dill case, supra:

“To hold that claimant proved ordi- ' nary prudence despite the delay would be to effectively nullify the statutory provisions designed to secure the prompt filing of claims and prevent frauds ofttimes incident to the filing of stale demands. We cannot indulge the over-credulous at the risk of admitting the fraudulent, but must follow the public policy of the state as declared by legislative enactment. The trial court should have instructed the jury to find for the defendant insurance company, or failing this, should have rendered judgment non obstante veredicto. Copinjon v. Aetna Casualty & Surety Co., 1951 (Tex.Civ.App., San Antonio), 242 S.W.2d 219, error refused, and authorities therein cited.”

It is our opinion that in considering a motion for instructed verdict neither the trial court nor this Court is authorized to pass on the credibility of the witnesses; It is our duty to review the testimony, assuming it to be true, to determine whether or not the claimant’s belief that her condition was not serious was one that would have been entertained by a reasonably prudent person in the same or similar circumstances. Bennevendo v. Houston Transit Company, Tex.Civ.App., 238 S.W.2d 271, error ref., n. r. e.; Hawkins v. Safety Casualty Company, supra.

While the courts should be diligent in their efforts to prevent frauds incident to the filing of stale demands, the statute excuses failure to give notice promptly, and late filing of claims for compensation, where good cause is shown. It is the function of the jury to pass on the credibility of the witnesses subject to review by the trial court on motion for new trial.

Neither the trial court nor this Court should ignore facts known to this claimant when examining her testimony that she believed her condition not to be serious. Even though such testimony is accepted as true, it might well appear that an ordinarily prudent person under the conditions would have entertained a contrary belief. The circumstance that the claimant failed to give notice and delayed filing a claim, even though the task of disproving a fraudulent claim thereby would be made more difficult, is entitled to no consideration as evidence that the claimant did not act as a reasonable and prudent person would have done under the existing circumstances.

The evidence in this case presents a question for the determination of a jury. The trial court erred in instructing a verdict for the defendant.

The trial court also erred in excluding certain medical testimony offered by appellant. Appellee objected to the testimony of a doctor, who did not treat appellant, on the ground that the doctor’s objective findings were based in whole or in part on the subjective complaints of the patient. The testimony developed that the patient told the doctor that her difficulty was in her back and lower extremities, and that the doctor limited his examination to that area. The doctor testified that an electromyogram examination could not be influenced by either history or physical findings; that the results of the test are audible and visible, and therefore, objective.

Since the testimony was based upon objective symptoms and his own observations, and not upon subjective symptoms related by appellant, the doctor’s testimony was admissible. Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587; Texas Employers’ Insurance Association v. Fletcher, Tex.Civ.App., 214 S.W.2d 873, error ref., n. r. e.

Reversed and remanded.


author: ARCHER, Chief Justice.

text:
    Richard GUNN, Appellant, v. Calvin J. CAVANAUGH and Wife Inoyce, Appellees.
    No. 11290.
    Court of Civil Appeals of Texas. Austin.
    Dec. 16, 1964.
    Rehearing Denied Jan. 6, 1965.
    Paul Petty, Ballinger, for appellant.
    John W. Norman, Winters, Yates & Yates, Abilene, for appellees.
   ARCHER, Chief Justice.

On April 2, 1964 Calvin J. Cavanaugh and wife, Inoyce Cavanaugh .filed their petition in the District Court of Runnels County, Texas, to adopt Richard Keith Gunn, Ronald Wade Gunn and Ruth Ann Gunn, all under the age of four years, and children of Richard Gunn and Barbara Gunn, apparently, divorced, but no showing is made as to the custody of the children.

Service was not asked for and none had on Richard Gunn and no appearance was made by him.

Barbara Gunn filed her consent to adopt in writing.

An allegation was made in the petition that “the father, Richard Gunn, has deserted the said chidren” but no details or circumstances were made as to the alleged desertion or the length of such abandonment, or that Richard Gunn’s parental rights had been terminated by a court of competent jurisdiction.

Subdivision (6) of Sec. la of Article 46a, Vernon’s Ann.Civ.St., sets out what a petition to adopt shall set forth. Woodall v. Schmudlach, Tex.Civ.App., 299 S.W.2d 780; Ex parte Blackstock, Tex.Civ.App., 319 S.W.2d 167; Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877.

On May 25, 1964 an order was entered granting leave to the petitioners to adopt the children, and in this order it was again stated that Richard Gunn, the father, had deserted the children.

On August 31, 1964, appellant filed a petition for writ of error, alleging that he had not consented to the adoption, had not been served with citation or notice and had not participated either in person or by an attorney in the trial of the case, and plead that the court did not have jurisdiction to hear and dispose of the action and that he desired to remove the case to the Court of Civil Appeals.

Request was made to the trial court for an order directing the Clerk of that court for a transcript of the proceedings. This request was overruled by the trial court stating but not intended to prohibit the Clerk from performing any function she is supposed to perform.

The transcript was filed in this Court on September 29, 1964 in Cause No. 11,290.

On October 29, 1964, the appellees filed their Motion to Dismiss the Appeal on the ground that appellant was not a party to the adoption proceedings, and such not being appealable in the absence of participation by appellant.

The Motion to Dismiss is granted and the cause is dismissed.

As a general rule only parties to the record of a case or their privies are entitled to appeal. A stranger to the record cannot appeal. See 3 Tex.Jur.2d, Appeal and Error, Ch. VI, p: 467 et seq., McLean v. Morrow, 156 S.W.2d 1002, Austin C.C.A., n. w. h.

Mr. Gunn, of course, has an interest in this proceeding, but he is a stranger to the record. He has his remedy, but it is not by appeal.

In dismissing this appeal we have gone into some detail in reviewing the proceedings and the order allowing the children to be adopted may not be binding on the father since he was not a party thereto and did not give his consent to the adoption. Jones v. Willson, Tex.Civ.App., 285 S.W.2d 877; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687; Strode v. Silverman, 209 S.W.2d 415, Waco C.C.A., writ ref., n. r. e.

Motion granted; appeal dismissed.


author: MURRAY, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Louie ARNETT, Appellee.
    No. 14330.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1964.
    Rehearing Denied Jan. 13, 1965.

      Wm. C. Church, Jr., James D. Baskin, Jr., San Antonio, Davis Grant, Austin, for appellant.
    James C. Brady, Houston, for appellee.
   MURRAY, Chief Justice.

This is a suit for reinstatement as an attorney by Louie Arnett, under the provisions of Art. XII, Sections 32 and 33, of the State Bar Rules, Art. 320a — 1, Vernon’s Ann.Civ.St. The State of Texas, acting by and through its Grievance Committee of the State Bar of Texas, contested the application of Arnett, and after a hearing before the District Court the petition of Louie Arnett was granted, and an order rendered reinstating him to the right to practice law in this State, from which judgment the State of Texas has prosecuted this appeal.

Appellee’s petition for reinstatement was made under the provisions of Sec. 32 of the State Bar Rules, reading as follows:

“Section 32. Petition for Reinstatement after Disbarment
“At any time after the expiration of five years from the date of final judgment of disbarment of a member, he may petition the District Court of the county of his residence for reinstatement. The petition shall allege in substance that petitioner at the time of filing is of good moral character, and since his disbarment, has been living a life of generally good conduct, and that he has made full amends and restitution to all persons, if any, naming them, who may have suffered pecuniary loss by reason of the misconduct for zvhich he was disbarred. The petition shall state the name and address of the Chairman of the District Grievance Committee and the name and address of the Secretary of the State Bar. (Emphasis added.)”

After hearing evidence, the trial court made the following findings of fact:

“FINDINGS OF FACT
“1. On August IS, 1956, petitioner Louie Arnett was disbarred by this Court.
“2. Petitioner has filed his petition for reinstatement under the provisions of Art. XII, Sec. 32 and Sec. 33 of the Rules Governing the State Bar of Texas, as promulgated by the Supreme Court of Texas.
“3. Petitioner at trial produced testimony of several members of the bar and other witnesses who testified in general concerning the good moral character of petitioner at this time, and that since his disbarment petitioner has been living a life of generally good conduct.
“4. Respondents produced evidence that petitioner had written two letters in 1963 for his brother on his old ‘attorney-at-law’ letterhead; however, testimony on behalf of petitioner and his secretary indicated that this may have been an oversight on the part of the secretary and that the words ‘attorhey-at-Law’ should have been stricken from the letterhead. This Court had found petitioner guilty in February of 1959 of contempt of Court for writing a letter on his old letterhead, and fined him $10.00 and one day in jail.
“5. Respondents produced evidence that in 1957 petitioner took a false notarial certificate acting as a Notary Public; that although this remote act is not to be condoned, the Court nevertheless feels that it is probable that petitioner’s future conduct as an attorney may be such as to never contravene the rights of others nor to violate the canons of ethics of the bar.
“6. A judgment for $12,270.50 was obtained by the Liquidator of the State Board of Insurance in 1955, by virtue of which judgment and execution, the State Receiver received a deed to four (4) lots owned by petitioner, and credited the judgment in the sum of $2,000.-00 for same; petitioner testified that the four lots were worth considerably more than the amount credited, and that he considered them worth at least $10,000.00 today; no evidence to the contrary was offered by respondents.
“7. A release of this judgment against petitioner was introduced into evidence dated January 22, 1963; that this release recited that petitioner paid $1,000.00 at that time as a compromise settlement of the full amount due on the judgment; and that the Honorable John R. Grace, General Counsel for the Liquidation Division of the State Board of Insurance, who testified for respondents, stated that ‘it was a pretty good settlement.’ This would amount to a total of $3,000.00 actually credited to this judgment prior to its release, although evidence of the value of the property sold at execution was in excess of this amount was adduced.
“8. Petitioner’s net worth just prior to the last payment to the State Liquidation Division of the $1,000.00 compromise settlement and release of judgment, was $951.22, consisting of a four year old automobile and some office furniture.
“9. One W. C. Briclcey, Jr., president of the now defunct Pioneer Western Mutual Insurance Company, had obtained large sums of money totaling some $102,055.87, during which period petitioner received only a nominal salary.
“10. There is no evidence or testimony as to the amount of pecuniary loss suffered by any particular individual persons, other than the statement by Mr. Grace that there were over 10,000 policy holders and 475 general unsecured creditors, and that the net loss to them by the overall general operations of this defunct company was $374,991.16.”

• In the face of these findings we are unable to say that appellee has been living a life of generally good conduct since he was disbarred on August 15, 1956, and has made full amends and restitution to all persons who may have suffered pecuniary loss by reason of the misconduct for which he was disbarred. This is what the law requires before a person who has been disbarred can be reinstated. When a disbarred attorney applies for reinstatement to the status of a practicing attorney, the burden is upon him to show that he is entitled to be reinstated and is not upon the State to show the contrary.

Appellee cites Petition of Stalnaker, 150 Fla. 853, 9 So.2d 100, but that was a case in which the attorney had not been fully disbarred, he had only been suspended for one year, and furthermore, it is not shown that the statutes of Florida require such an applicant to allege that he has made full amends and restitution to all persons. This is a statutory requirement in Texas.

Appellee cites In re Andreani, 14 Cal.2d 736, 97 P.2d 456, for the proposition in restitution cases too great weight should not be placed upon the restitution of money misappropriated, but the Legislature of this State has made it a prerequisite to reinstatement. We do not know what the law in California is along this line. Re Harris, 88 N.J.L. 18, 95 A. 761, is cited for the statement, that “[w]ithout underestimating the importance of restitution * * * the mere circumstance of restitution is the one most likely * * * to depend upon conditions and circumstances that afford no reliable test of moral qualities.” This may be true, but as we understand the Texas law it makes restitution a prerequisite to restoration of the privilege to practice law.

The right to practice the profession of law is a very great privilege, and where a person has abused such privilege to the extent that he has been permanently disbarred from the legal profession, he should not be reinstated unless he has strictly complied with the provisions of the statutes and State Bar Rules relating to reinstatement,

Furthermore, the record shows that since appellee was disbarred he has been found guilty of contempt of court for writing a letter on his old letterhead and fined $10.00 and one day in jail, and that he has taken a false notarial certificate while acting as a Notary Public.

The judgment of the trial court is reversed and judgment here rendered refusing appellee’s application for reinstatement as an attorney.


author: PER CURIAM.

text:
    Bianca Marina PODGOURSKY, Appellant, v. Mary Babicki PODGOURSKY, Appellee.
    No. 14354.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1964.
    Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.
    Brown, Daniels, Reeves & Davila, San Antonio, for appellee.
   PER CURIAM.

This is an appeal from a partial summary judgment and severance granted on July 7, 1964, in a suit filed by Bianca Marina Podgoursky, individually and as next friend of Elaine Marina Podgoursky, a minor, against Mary Babicki Podgoursky, individually and as independent executrix of the estate of Ivan Podgoursky, deceased. By this suit, appellant asserted rights in the estate of deceased.

Appellee has filed her motion to dismiss the appeal and urges that the partial summary judgment is not appealable. She asserts that although it disposed of appellant’s claim to a community interest in the estate, it did not dispose of, and therefore still leaves open, appellant’s allegation that appellant and deceased, through joint venture, joint effort, or partnership, acquired property together and therefore appellant has an interest in the property of the estate through a constructive trust.

Appellant concedes that a fact issue is involved by this allegation, but in her reply to appellee’s motion to dismiss, stipulates that she, appellant, does not base any of her claimed property rights upon a meretricious relationship between her and Ivan Podgoursky, deceased. She urges that this stipulation made the partial summary judgment a final judgment. The question presented is whether this stipulation, together with the partial summary judgment, makes the latter a final judgment from which an appeal may properly be taken to this Court.

In Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200, the Supreme Court said: “In our opinion a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court.”

The determination of whether the judgment was final must be made as of the time of the entry of same and this determination is not aided by the stipulation made in this Court in reply to the motion to dismiss. Although there was a severance entered in connection with the partial summary judgment, the court did not sever as to, nor dispose of, all the issues before it in connection with appellant’s claims. The judgment was therefore interlocutory and not appealable.

Appellant will have her right of appeal when, and not before, the interlocutory summary judgment is merged in a final judgment disposing of the whole case. Ap-pellee’s motion is granted and the appeal dismissed.


author: PRESLAR, Justice.

text:
    FURR’S, INC., et al., Appellants, v. UNITED SPECIALTY ADVERTISING COMPANY et al., Appellees.
    No. 5664.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 25, 1964.
    Rehearing Denied Dec. 30, 1964.

      Turpin, Kerr, Smith & Dyer, Kerr, Fitzgerald & Kerr, Midland, Crenshaw, Dupree & Milam, James H. Milam, Cecil C. Kuhne, Lubbock, for appellants.

      Stubbeman, McRae, Sealy & Laughlin, Milton L. Bankston, W. B. Browder, Jr., Rush Moody, Jr., Midland, Passman & Jones, Dallas, and Hindin & Susman, Los Angeles, Cal., for appellees.
   PRESLAR, Justice.

This is a “trade secret” case which also involves unfair competition and conspiracy. After a trial by jury, appellees (as plaintiffs) recovered judgment against appellants Furr’s and the Webster, Harris & Welborn Advertising Agency for damages in the amount of $60,000.00, and a permanent injunction by which the appellant-defendants were enjoined from making, using or distributing a system and device known as the “Cash Circle Card” program, or any other advertising program, scheme or device the same, or substantially the same, as plaintiffs’ ■Bonus Card program or system. Plaintiffs obtained a temporary injunction which was reversed by this court in Furr’s Inc. v. United Speciality Advertising Company, Tex.Civ.App., 338 S.W.2d 762 (1960), writ of error refused, n. r. e., and reference is made to that case for greater details.

Appellants present some 48 assignments of error, grouped for convenience of argument. We do not feel it necessary to discuss each individually, as the disposition of some will make the consideration of others unnecessary. The case will be reversed and rendered.

We first take up appellants’ contention that this court’s prior decision on the temporary injunction phase of the case determined, as the law of the case, that no trade secret existed and no confidential relationship existed between the parties. We feel that those issues were so distinctly put into issue and so fully developed and brought forward on appeal as to make their determination final as to the parties here involved and their privies. They were so tried and determined as to come within the rule followed by this court in Texaco Inc. v. Parker, Tex.Civ.App., 373 S.W.2d 870 (err. ref., n. r. e.), which held that, even though in the strict sense, the decision on appeal from the granting or refusal of a temporary injunction may not be res judicata of the issues on final hearing, it may become the law of the case as to the legal principles declared. This is an exception to the general rule that an interlocutory judgment will not support a plea of res judicata, but it is a well-founded exception where the parties elect to distinctly put in issue a right or question of fact, as a ground of recovery or defense, and have it directly determined by the courts. It is supported by the authorities. Birchfield v. Bourland, Tex.Civ.App., 187 S.W. 422; International Longshoremen’s Ass’n., Independent v. Galveston Mar. Ass’n., Tex.Civ.App., 358 S.W.2d 607; Baker v. Hill, Tex.Civ.App., 35 S.W.2d 779 (wr. dism.); Hayden v. City of Houston, Tex.Civ.App., 305 S.W.2d 798 (wr. ref., n. r. e.); Hudspeth v. Guggenheim, Tex.Civ.App., 12 S.W.2d 238 (wr. dism.) Its application depends in each case on what was done. Wilson v. Abilene Independent School Dist., Tex.Civ.App., 204 S.W.2d 407 (err. ref., n. r. e.). In the case before us, the parties fully litigated the two issues in question. This is reflected by this court’s prior opinion:

“We believe that the issues that are here decisive are: Do the Cash Surprise Bonus Cards of appellees constitute a trade secret; and, if so, was such obtained unfairly by appellant by means of a breach of confidence?”

The opinion then reviews the evidence and wealth of exhibits and the applicable law, and reaches the conclusion which was decisive of the appeal:

“Therefore, because we do not believe there is a trade secret here involved, and because we do not believe that any information that appellant’s advertising agency might have used was improperly obtained or obtained through breach of confidence, we must hold that there was not sufficient reason or justification to warrant tlie trial court in granting the injunction.”

Appellees seek to avoid this holding by urging that they have now obtained jury findings as to ultimate facts, and that an additional party defendant has been added. We do not think that has any particular bearing on the res judicata question, because the evidence and established facts being the same, what matter if found by the court or the jury? On the issue of trade secret, the evidence is more voluminous, but its quality is unchanged, and no contention is made that there have been any additional developments or changes in the factual set-up which brought about the suit. On the issue of confidential relations the evidence is unchanged. And the addition of a party privy, appellant Furr’s advertising agent, has not brought about any change in the facts passed on, and it does not in any way alter the question or issues of trade secret and confidential relationship.

In addition to our holding that the law of the case has been established, we are of the further opinion that the facts of the present trial do not permit appellees to recover on the theory of what they call “theft of trade secrets”, or any other theory of protection of trade secrets, for the evidence on the present hearing fails to establish any confidential relationship existing between the parties for the breach of which an action would lie. Assuming a trade secret, the existence of some duty owed in connection therewith, and its breach, becomes our pertinent inquiry.

One who does not wish to make disclosure of his secret in return for the term protection of the patent laws, or otherwise protect it specifically by contract, can still be protected if his disclosure is made in confidence so as to place .the other party under a duty to keep his secret. It is a well-settled rule that equity will grant relief when one breaches his confidential relationship in order to unfairly use a trade secret. Luccous v. J. C. Kinley Company, 376 S.W.2d 336 (S.Ct.1964); Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763; K & G Oil Tool & Service Co. v. G & G Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782. The owner of the secret must do something to protect himself. He will lose his secret by its disclosure unless it is done in some manner by which he creates a duty and places it on the other party not to further disclose or use it in violation of that duty. The rule of the American Law Institute Restatement of the Law, as set forth in Hyde v. Huffines, supra, by the Supreme j Court, is:

“ ‘One who discloses or uses another’s trade secrets, without a privilege to do so, is liable to the other if (a) he discovers the secret by improper means, or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to Mm * * 4 Restatement of Torts § 757.” (Emphasis ours).

Hyde v. Huffines granted protection to the owner of a trade secret who had granted another the right to manufacture his secret, which was done for some two years, under a written licensing agreement. The contract was silent as to the secret being kept confidential, but the court held that an express agreement was not necessary where the actions of the parties, the nature of their arrangement, the “whole picture” of their relationship established the existence of a confidential relationship. It was noted that they were, under the licensor-licensee arrangement, “co-adventurers”. The facts of the case left no doubt that a confidential relationship existed and that all parties understood that it existed when disclosure was made. Hyde v. Huffines says no express agreement is necessary, but it stands to reason that the confidence reposed in the-other person must, in some way, be manifest —if not by words, then by the acts of the parties or the whole picture of their relationship. Confidential relationship is a two-way street: if the disclosure is made in confidence, the “disclosee” should be aware of it. He must know that the secret is being revealed to him on the condition he is under a duty to so keep it. We belabored the point in this discussion because we do not believe that such was done in the case before us. We do not believe that the whole picture of the parties’ dealings shows the existence of a confidential relationship. Further, if the owner of the secret intended that the disclosure be treated in confidence, such fact was not made known to the “dis-closee”, Furr’s. There is no evidence to support the jury finding that there existed between the parties “a relation of trust and confidence at the time of the transactions had between them in 1959”. Mrs. Hoese who, with her husband, owns the appellee companies, testified that she had confidence in Furr’s and relied on their integrity. This we can well accept as true, but the fact remains that she did not in some manner make it known to Furr’s that her secret was being revealed to them in trust. And, she did not participate in the 1959 transactions. The only person Furr’s had dealings with was the salesman, and he testified (and the jury so found) that he did not ask them to treat his statements as statements made in confidence. The record reflects a salesman working hard to make a sale — a sale with no strings attached, so far as confidence was concerned. There was nothing about the transactions and dealings of the parties which would establish a confidential relationship, nor put Furr’s on notice that such was intended. It was an arm’s-length transaction which the jury found to be that of buyer-seller. 'Under such state of facts, we are of the opinion that such relationship as existed between the parties ended with the delivery of the materials purchased and the payment for them. That was in 1959, while this lawsuit is for breach of confidential relations alleged to exist in 1960. As stated, assuming a trade secret we are of the opinion that no confidential relationship existed between the parties; and absent such, appellees were not entitled to judgment for appropriation of a trade secret.

Appellees contend that there are other bases on which the judgment is supportable, but we are of the opinion that if we are correct in our determination that no confidential relationship existed between the parties, then the record does not substantiate any actionable wrongs. The judgment cannot be supported on the basis of unfair competition, for while unfair competition can be actionable where a confidence is violated, or where there is a palming-off of one’s goods for that of another, neither theory will stand here. The first we have already ruled out, and the palming-off theory is not in this case. Nor do we think that Gilmore v. Sammons, Tex.Civ.App., 269 S.W. 861, is applicable to the facts of this case. The wrong condemned in Gilmore v. Sammons was the conduct of Sam-mons in appropriating the news items of Gilmore and selling them in competition with Gilmore. Without going into the standing of that case in the light of more recent pronouncements, we simply note its inapplicability here, for there is no contention that Furr’s ever sold or attempted to sell that which it is alleged to have appropriated, and we fail to see how it could make any difference that Furr’s hired Webster to prepare the product for them. That brings us to another matter, that of substantiating the judgment on the theory of a conspiracy of Furr’s and the Webster agency. “A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.” Bartelt v. Lehman, Tex.Civ.App., 207 S.W.2d 131 (err. ref.) ; Kingsbery v. Phillips Petroleum Co., Tex.Civ.App., 315 S.W.2d 561 (ref., n. r. e.). The necessary elements are not present in this case. It cannot be said that Furr’s and Webster acted together in the use of the Cash Circle Card. Furr’s hired Webster to produce the Cash Circle Card for them and paid him for it. After that, Furr’s owned it outright and had sole control of its use. How they used it or whether they ever used it was not for Webster to say. It is the use of the card in 1960 which is the cause of action alleged by appellees, as plaintiffs, and Webster was not acting with Furr’s in such use.

The judgment of the trial court is reversed, the injunction dissolved, and judgment here rendered that appellees take nothing by their suit.


author: CLAUDE WILLIAMS, Justice.

text:
    D. A. BROWN, Appellant, v. Dr. Fairfax Vandyke BRENEMAN et ux., Appellees.
    No. 16432.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 4, 1964.

      Andress, Woodgate, Richards & Condos, Steven G. Condos, Dallas, for appellant.
    No appearance for appellees.
   CLAUDE WILLIAMS, Justice.

D. A. Brown originally sued Dr. Fairfax Vandyke Breneman and wife, in Cause No. 23,035-A in the County Court at Law, Dallas County, alleging the breach of a lease contract for which he sought money damages and foreclosure of statutory landlord’s lien on certain furniture belonging to defendants. Based upon affidavit that the residence of defendants was unknown, citation was made by publication in due form. Following citation by publication the trial judge appointed an attorney to represent the defendants and proceeded to hear the case. On September 5, 1961 a judgment was entered in the cause, awarding plaintiff judgment against the defendants for damages and also ordering a foreclosure of the landlord’s lien on the furniture and directing the same be sold. On September 12, 1961 the property was sold at sheriff’s sale to plaintiff Brown.

Approximately ten months later, on June 14, 1962, Dr. Fairfax Vandyke Breneman and wife instituted an action in the County Court at Law of Dallas County in Cause No. 29,339-A, styled “Bill of Review”, complaining of D. A. Brown, as defendant, in which they alleged various grounds for vacating the judgment previously rendered in Cause No. 23,035-A and praying that same be set aside and that plaintiffs be either giyen their property or damages for the value thereof, as well as for general-relief. Brown answered this suit with a motion to dismiss and general denial. Following complete hearing the trial judge, on February 14, 1963, decreed that the judgment in Cause No. 23,035-A be set aside and held for naught and further ordered that the personal property sold under order of the judgment be returned to Dr. Fairfax Vandyke Breneman and wife at no cost to them. From this judgment Brown appeals.

Rule 329, Texas Rules of Civil Procedure, entitled “Motion for New Trial on Judgment Following Citation by Publication” provides:

“In cases in which judgment has been rendered on service of process by publication, where .the defendant has not appeared in person or by attorney of his.own selection:
“(a) The court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was rendered. The parties adversely interested in' such judgment shall be cited as in other cases.
" “(c) If property has been sold under the judgment and execution before the process was suspended, the defendant shall not recover the property so sold, but shall have judgment against the plaintiff in the judgment for the proceeds of such sale.”

This rule, with minor exceptions, is identical with Art. 2236, Vernon’s Ann.Civ.St., which had been in effect prior to the enactment of Rule 329, T.R.C.P.

While appellees, in their Suit No. 29,339-A, designated same to be a “Bill of Review” it was nothing more than a motion for, new trial under Rule 329(a), T.R.C.P. True, they did not expressly move for a new.trial within the terms of the rule, but

the facts alleged by them, if found to be true, were sufficient to entitle them to a new trial under their prayer for general relief as well as their specific prayer seeking to set aside the judgment in the prior suit. Accordingly, their designation of the pleading as a “Bill of Review” is of no consequence. Their pleadings demonstrated affirmatively that plaintiffs had a statutory right to set aside the judgment by motion for new trial, rather than by resort to equity, and therefore we ignore the designation and consider the pleading of appellees as being a motion for new trial pursuant to Rule 329(a), T.R.C.P. It is immaterial that the motion for new trial was filed in a separate suit and docketed under a separate number in the same court that granted the original judgment. Gahagan v. Texas & Pacific Ry. Co., Tex.Civ.App., 231 S.W.2d 762; Harkness v. McQueen, Tex.Civ.App., 207 S.W.2d 676; Ashton v. Farrell & Co., Tex.Civ.App., 121 S.W.2d 611. The pleading of appellees being truly a motion for new trial, and not an equitable bill of review, is to be construed in the light of the decisions interpreting Rule 329, T.R.C.P., and its predecessor article of the Revised Civil Statutes. Schwarz et al. v. Smith, 160 Tex. 280, 329 S.W.2d 83; Trujillo v. Piarote, 122 Tex. 173, 53 S.W.2d 466; Texas Co. v. Dunlap, Tex.Com.App., 41 S.W.2d 42; 41 Tex.Jur. 2d 481, § 227, et seq., and cases cited.

Having so determined, we are immediately confronted with the question as to whether the order of the trial court sustaining such motion for new trial is appeal-able. It is elementary that an order granting a new trial is not appealable. 3 Tex.Jur.2d § 80, pp. 345, 346, and cases cited.- We have concluded that since the action of the trial court is tantamount to the granting of a motion for new trial, such order is interlocutory in nature and we are therefore without jurisdiction to entertain this appeal.

The identical situation was presented in Robinson v. Robinson, Tex.Civ.App., 164 S.W.2d 35, wherein Justice Norvell of the San Antonio Court of Civil Appeals said:

“This is an attempted appeal from an order granting a motion for new trial under the provisions of Rule 329, Rules of Civil Procedure, formerly Article 2236, Vernon’s Ann.Stats.
“The original action resulted in appellant’s obtaining a decree of divorce from appellee.
“The order from which the appeal is prosecuted sets aside the former judgment and awards appellee a new trial. It does not determine the cause of action for divorce which was originally asserted by appellant.
“The order is interlocutory in nature and consequently the appeal must, be dismissed for want of jurisdiction. Lovenstein v. Lovenstein, Tex.Civ.App., 35 S.W.2d 271; Trujillo v. Piarote, 122 Tex. 173, 53 S.W.2d 466.”

As stated by the Commission of Appeals in Trujillo v. Piarote, 53 S.W.2d 466:

“When a motion for new trial, filed within the timé provided by article 2236, has been granted in a case of this kind, the case - stands upon the docket, as between the parties, in the same condition as if the judgment had never been rendered. All burdens placed upon the person against whom the judgment has been rendered are effectually removed when the motion for a new trial has been granted; just as in any other case where a judgment has been set aside upon a defendant’s motion for a new trial.” Glaze v. Johnson, 27 Tex.Civ.App. 116, 65 S.W. 662.

That part of the judgment complained of by appellant which directs appellant to return to appellees the furniture in question is obviously in direct contravention of Subdivision (c) of Rule 329, T.R.C.P., above quoted, which expressly provides that if property has been sold under the judgment and execution before the process was suspended the defendant shall not recover the property so sold but can have judgment against the plaintiff in the judgment for the proceeds of such sale. Obviously, the effort on the part of the trial court to order the return of the property is of no force and effect.

Lacking jurisdiction to determine this appeal, the same is dismissed.

It is so ordered.


author: DAVIS, Justice.

text:
    Marie Ann HAYS, et vir., Appellants, v. Bird OLD, Jr., et al., Appellees.
    No. 7613.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1964.
    Rehearing Denied Dec. 22, 1964.

      Robert M. Parker, Welby K. Parish, Gil-mer, for appellants.
    Bird Old, Jr., Old & Moye, Mt. Pleasant, for appellees.
   DAVIS, Justice.

Petitioners-appellees filed a petition in the District Court to have the five minor children of respondents-appellants, Marie Ann Hays and Virgil Hays, husband and wife, to be declared dependent and neglected because of the ill treatment the children were receiving. The case was tried before a jury. The jury found all five of the children were dependent and neglected. Judgment was entered and appellants have perfected their appeal. They bring forward six points of error.

By their first four points of error, appellants take the position that the petitioners did not verify their pleadings as required by Art. 2331 Vernon’s Ann.Civ. St.; the court was without jurisdiction in the proceedings; and the error was fundamental. According to Art. 2331, a petition to have minor children declared dependent and neglected requires same to be verified. The verification can be waived. When any party makes an appearance before the court and does not specifically except to the pleadings, or file a plea in abatement specifically pointing out the error, such informality has been waived. That is, in a case tried before the court without a jury, the specific exception or plea in abatement must be filed before the rendition of the judgment. In a case tried before a jury, the specific exception or plea in abatement must be filed before the charge is read to the jury. There were no specific exceptions or plea in abatement. Rule 90, Vernon’s Ann. Tex.Rules of Civil Procedure. The verdict of the jury cured all defects in the form of pleading. 45 T.J.2d 750, Sec. 188. In their motion for an instructed verdict they had this to say: “ * * * And the petition of Petitioners mentioned above, and the evidence introduced herein fails to comply with the laws of the State of Texas, and fails to state a cause of action as defined by the laws of the State of Texas. * * *” If this exception is good, this court is wrong with its opinion.

There are many ways that a person can enter an appearance in court. 6 T.J.2d 111, “WHAT CONSTITUTES APPEARANCES”. The appellants first filed a motion for change of venue. A hearing was had thereon and the motion denied.

The verification goes to the form of the pleading. The one making the allegations merely verifies the fact that such allegations are true and correct. If one wants to raise the issue, he must file exceptions, 45 T.J.2d 568, Sec. 111.

The appellants did file some special exceptions to the first amended original petition. These exceptions did not specifically point out the fact that said petition was not verified. The special exceptions were filed less than seven days prior to the trial. On motion of appellees, they were stricken from the record.

There is no case direct in point in a suit to have children declared dependent and neglected that anyone can waive the verification of the petition. This fact has given this court much concern. There are other cases where pleadings must be verified and the defect can he waived. 27 T.L.R. 564; 46 T.J.2d 186D, Objection and Waiver Thereof. None of the authorities specifically hold that a waiver of the verification applies to dependent and neglected children under Article 2331.

Appellants take the position that the trial court was without jurisdiction, and base their claim upon Hardy et al. v. McCulloch et ux., Tex.Civ.App., 286 S.W. 629, er. ref.; and, Sanchez v. Garcia et al., Tex.Civ.App., 278 S.W. 868, N.W.H. Both of the cases were decided prior to the new rules of civil procedure. In the Sanchez case, the court held that the County Attorney had no authority to participate in a habeas corpus proceeding to determine whether or not the child was a dependent and neglected child. It held that the trial judge had apparently become confused in the habeas corpus proceedings and for the adjudication and disposition of dependent and neglected children. The court held that the proceedings were fundamentally different in nature and in procedure. It went on to hold that in the adjudication of infants as dependent and neglected children a verified petition was essential to the validity of the proceedings. There was nothing said about a waiver by answer and hearing in the proceedings. In the Hardy case the mother of a child had formerly married a man by the name of Simpson. They had one child, Frances Simpson. Simpson deserted his wife prior to the birth of the daughter. The mother apparently gave the child to the McCullochs. Mrs. .Simpson then married a man by the name of Hardy. The Hardys filed a petition on July 18, 1923, for the custody and control of Frances Simpson. The McCullochs answered on August 21, 1923. The case was tried before a jury on April 23, 1924. Judgment was entered leaving the custody and control of the child to the McCullochs. On May 31, 1924, the court entered an order without pleadings or proof that the custody and control of said minor should go to Mrs. Hardy and continue until the first Saturday in August, 1924. On July 9, 1924, the court,'on his own motion, called all the parties and attorneys before him for another hearing. The jurisdiction of the court had not been invoked by any form of motion or pleadings. The court ordered the child returned to the McCullochs, without the right of the mother or father to see the child any more. Under the law, the appellate court' held that the order or judgment of the trial court was void because the court had never acquired jurisdiction of the child, and reversed and vacated the same.

There are many cases under injunctions and other matters which require verification that have held that verifications can he waived. In Oldfield et ux. v. Lester et al., Tex.Civ.App., 188 S.W.2d 722, N.W.H., it holds that the law respecting dependent and neglected children shall be liberally construed with a review to effect their objections and to promote justice.

To point out the court’s holding in this case, we will briefly summarize what the proof shows. Appellants are the parents of four boys and one girl. On May 23, 1964, the sheriff, county judge and county attorney received a call to come to the home of appellants to make an investigation of the cruel treatment towards the minor children. When they arrived the mother of the children was out in the yard, apparently securing a switch. They inquired about the presence of the little girl. They were told by- the mother that she was away visiting some friends, but she could not give their names. The sheriff went in, and after a brief search he found a large box or chest against a closet door. He attempted to move the box or chest, and the mother tried to prevent him from doing so. He then removed her, moved the object from in front of the door and opened it. In the closet he found a little four year old girl, with her hands tied behind her back, and her feet tied together. There was a piece of tape, or bandage, on her upper lip. They removed the tape and found her upper lip completely split up to the base of her nose. They then proceeded to untie her hands and arms, and there were scars to show she had been previously tied many times. The evidence shows that she had been continuously beaten and whipped unmercifully. While she was eating, they would whip her so hard she would vomit in the bowl and be forced to eat the vomit, along with the other food.

There was evidence that one of the boys had a broken leg, which was in a cast up around his hips. He was placed in the bathtub, where apparently he had to sleep. There was evidence of scars that looked like cigarette burns on parts of his body.

One little boy had been forced to leave their home and had spent more than one year with his grandparents. There was MUCH other evidence of the cruel treatment, but it is not necessary to detail here. Although, there was no evidence of any cruel treatment towards the baby, who was about fifteen months old at the time. The evidence showed they did not begin to whip and correct the children until they became about two years old.

From the evidence in the case, it is mandatory that this court must hold that appellants waived the verifications of the pleadings by their answer and the motion to change the venue. The points are overruled.

Appellants’ points of error 5 and 6 are without any merit and they are overruled.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Bob MARSHALL, dba Bob Marshall Motors, Appellant, v. S. S. McCALL et al., Appellees.
    No. 11240.
    Court of Civil Appeals of Texas. Austin.
    Dec. 2, 1964.
    Rehearing Denied Jan. 6, 1965.

      E. B. Fuller, Mitchell & Gilbert, Arthur Mitchell, Phillip Gilbert (on appeal only), Austin, for appellant.
    Gay & Meyers, Brown, Sparks & Erwin, Will G. Barber, Austin, for appellees.
   HUGHES, Justice.

This suit was originally by Bob Marshall, dba Bob Marshall Motors, appellant, against S. S. McCall, George S. McCall and H. T. Hibler, doing an insurance business under the name of McCall and Hibler Company, for their alleged failure to properly write, endorse and change a fire insurance policy issued by Hartford Fire Insurance to appellant, and “in general their failure to so handle (appellants) insurance business as regards the insurance policy in question here as to cause him loss.”

By what is dubiously denominated a supplemental petition appellant named Hartford Fire Insurance Company a party defendant alleging the issuance of a fire insurance policy by it to appellant and further alleging that, “on January 15, 1963, an endorsement was issued adding an additional location * * * effective at 12:01 a. m. on January 15, 1963, which was a time prior to the fire which which destroyed” or damaged appellant’s automobiles.

Hartford denied this allegation, although admitting that appellant sustained a fire loss prior to 7 p. m. on January 15, 1963.

When all parties rested the trial court granted the motion of Hartford that the jury be instructed to return a verdict in its favor. We will dispose of this portion of the appeal first.

There is no evidence in the record to sustain appellant’s allegation that the policy issued by Hartford had been endorsed by adding an additional location effective at 12:01 a. m., January 15, 1963, a time prior to the fire causing appellant’s loss.

Appellant did not plead Hartford’s liability generally under the policy issued by it but limited his theory of recovery to an endorsement on the policy which would include as covered the premises where the fire occurred.

Appellant now contends that without such endorsement his loss is covered by the policy as originally issued.

We believe that appellant is precluded by his pleading from now contending that his suit was based upon the original policy independent of any endorsement. We quote the rule which supports this conclusion:

“The [plaintiffs] were, and are, bound by their pleadings. A plaintiff can recover, if at all, only on the cause of action pleaded by him. The office of a pleading is to define the issues to be tried. It is certainly the general rule that an admission in a pleading, on which a party goes to trial, is taken against him. It is the further rule that the pleadings and the evidence must coincide. Finally, it is the rule that parties are restricted in the appellate court to the theory on which the case was tried in the lower court.” Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238.

The trial court properly instructed a verdict in favor of Hartford unless appellant has admitted, or there is admissible evidence that appellant has confessed, liability to the extent of $5000.00.

Mr. James Laney, an adjuster for and employe of Hartford was quoted by appellant as saying:

■‘A Mr. Laney came up and said, 'Bob, I hate to tell you this, but I have been instructed by Hartford to offer you $5,000 on this loss, and if I were you — I am not supposed to be saying this because I am working for them, but if I were you I would not accept it, because there is a nigger in the woodpile somewhere, and I think you have got agent trouble instead of company trouble,’ and he said, Tf I were you I wouldn’t take it because I feel that after considering the thing, they will come on through with it for you.’
“Q Did he indicate to you that they were taking the position that this was an offer for all the damage specifically, or would it be fair to say that he was discussing this specific $5,000 provision?
“A He said that was what was provided in the policy and that was all that he was authorized to pay.”

This testimony, was. excluded.

Hartford does not brief this contention. Appellant relies upon Sec. 1142, McCormick and Ray, Texas Law of Evidence, as authority for the admission of this evidence. The applicable rule is there stated as follows:

“An offer to compromise or settle a disputed claim would seem to have relevance as indicating the value the offering party placed upon the claim. Our courts uniformly have held, however, that such offers are not relevant on the issue of the validity of the claim and are not receivable as an admission.
“Independent admissions of liability are admissible in evidence even though coupled with an offer of compromise. But this rule does not apply where the admission is so tied up with the offer that they cannot be separated so as to disclose clearly what the offeror had in mind, that is, whether he is stating his belief as to a fact, or whether he is merely making a concession for the sake of negotiation. Whether a particular statement or offer is an independent admission or an offer of compromise appears to be a question for the court.”

We do not believe that this testimony was so clearly an admission of liability as distinguished from an offer of compromise that the trial court was deprived of his discretion in determining its admissibility, and we sustain his ruling in this respect.

We affirm the judgment of the trial court in exonerating Hartford from liability upon the cause of action asserted against it herein by appellant.

The cause of action asserted against McCall and Hibler was, submitted to a jury which returned these findings:

1. Before January 15, 1963, appellant told Mr. Hibler. that he had acquired a new location for use in his automobile business.

2. Appellant did not, before January 15, 1963, request Mr. Hibler to include the new location acquired for use in his automobile business in the insurance policy involved in this suit as an additional named location.

Other issues were submitted to the jury and, except as to damages, were not answered.

Upon this verdict, McCall and Hibler successfully moved for judgment.

One of the issues submitted to but not answered by the jury was the following issue:

“Do you find from a preponderance of the evidence that defendant Hibler’s failure, after such notice, if any you have found, to secure for plaintiff Marshall insurance covering automobiles when at the new location was negligence ?”

The McCall and Hibler Company had for about seven years, except for a few months prior to writing the policy in suit, written virtually all of the property insurance carried by appellant. Mr. Marshall testified:

“Q Did Mr. Hibler advise you as to — was he the only one that advised you as to your insurance problems in any agency, except when you got together with Mr. ' Shackelford ?
“A He was the only one besides Mr. Shackelford, yes. And I taken his advice because I felt that he had taken care of me in the past and he would continue to take care of me.
“Q Now, Mr. Marshall, in all of your prior dealings with Mr. Hib-ler he had been a good and faithful agent, had he not ?
“A I would say Mr. Hibler — I had all the confidence in the world in him. I would not have had my insurance with him if I had not ■ had, and I taken him at his word ■ on everything, and that is what I did on this policy.
“Q Anyway, you did request certain coverage and he provided it, didn’t he?
“A I never did request any certain coverages, except on the total amount of coverages. The rest of the coverages he suggested to me that I take them.
“Q All right. Well, he could not have forced them on you ?
“A Do what?
“Q He could not have forced them on you?
“A Well, he didn’t have to, because T was depending on him.”

Mr. Hibler testified regarding a deposition given by him previously:

“ ‘Do I understand you to say that had you known that he (appellant) had the location and that you felt that then your duty would have been to immediately go out and inspect the location for the benefit of your company?’ And your answer was, ‘Yes’ * * * A. Yes. I still answer yes. Q. ‘And if the location was satisfactory in your opinion, then would you have endorsed the policy as another location?’ Your answer was, ‘Well, I would .have told my company the condition of the location and would have asked them to endorse it.’ Is that correct? A. That is correct. I would still do that today, yes sir.”

Mr. Hibler further testified:

“Q * * * Knowing his business and knowing that he had operated at Fifth and West Avenue * * had you learned in any capacity that Mr. Marshall had a place of •business somewhere else, what would you have done * * *?
“A If lie had told me that he had a new business over here, the very first thing I would have done * * * I would go to inspect the premises to see what kind of premises he had newly acquired. * * *
“Q And you would have done this even though you knew he was out of town and you had learned about it in the newspaper or something ?
"A Oh, no, no, I wouldn’t just take for granted something.
“Q In other words, you wouldn’t wait for Mr. Marshall to ask you specifically to do it ?
“A Well, yes. He would have to say, ‘I am going to buy this building,’ or ‘I am going to rent this building,’ and he would say, 'I am going to want coverage on it when I occupy it.’ I would get up and go and look at it.
“Q Well, what you are saying is now that it would be necessary for him to tell you he wanted insurance before you would do anything ?
“A Well, no, not before I would do anything. But before I wrote it, I would be sure that I knew what I was doing. ⅜ ⅜ *
“Q Are you telling this jury * * * that if he told you about this piece of property that you would do nothing unless he said, ‘Hib-ler, I want insurance?’ Would he have to ask you specifically to go down and look at it?
“A No * * * I would say, ‘Now, do you want me to cover you down there for some insurance,’ and he would say, ‘X-dollars.’ Then I would go back, and I would cover him and bind him for X-dollars.
“Q My question has been over and over, Mr. Hibler, that if Mr. Marshall * * * just told you about the location and didn’t say, T want insurance,’ and just kept his mouth shut on insurance, what would you have done.
“A I would have said, ‘Mr. Marshall, how much do you want me to cover you at that location?’ That would have been the first thing I would have asked him.
“Q All right And you would not ■ have taken it upon yourself to have gone down there without your turning to him and asking?
“A Why, certainly not; and if he wanted me to insure him, I would want to know what I was insuring him for.”

Mr. Hibler also testified that upon being notified by Mr. Marshall of the fire he, without being requested by Mr. Marshall to do so, placed $20,000.00 insurance on the car salvage which may have been in the fire damaged building saying, “I would not have been a prudent agent unless I had done that.”

Referring back to the time when appellant changed insurance agents and to the time when, appellant having become dissatisfied with the change, gave his business back to McCall and Hibler Company, we quote the testimony of appellant:

“A I called Mr. Hibler and I told him, I said, ‘Them people misrepresented this policy to me, and we have had very good experiences in the past with you, and if you want my insurance back, I will be glad to talk to you about it. If you don’t, I am going to call somebody else.’ And he said, ‘We sure would like to have it back,’- and he come down and we made an agreement, and went back— he went back on it with Hartford, and at that time I told him I wanted it exactly like my old policy that he had with the exception I wanted a fixed amount of $35,000 on a total loss, on the total amount of the loss, and he said, ‘Up till this year we couldn’t write you that type of insurance, but we can now.’ ”

It is to be noted that appellant’s insurance had been for the principal sum of $50,000.00, thus indicating that appellant, not the agent, conducted his own affairs.

The question presented is whether or not any evidence, more than a scintilla, existed from which the jury could have found that the McCall and Hibler Company was under obligation to insure appellant’s cars at the South Congress location.

We have wrestled with this record and have, with more than normal lucubration, reached the conclusion that some such evidence exists.

McCall and Hibler Company recognizes the rule that an insurance agent may so conduct himself as to be liable for a failure to insure. We quote from its brief:

“ * * * He (the agent) can, of course, so conduct himself that he will become liable for a failure to insure— as, for example, if he has undertaken to provide his customer with all the insurance that may be required for his customer’s business and other activities, or if there has been such a course of dealing over a long period of time that the customer justifiably believes that the agent will take care of his insurance needs.”

We also quote the following note contained in such brief:

“The jury found in response to Special Issue No. 1 that appellant told Mr. Hibler ‘that he had acquired a new location for use in plaintiff Marshall’s automobile business.’ There was no finding that Mr. Hibler was informed of the address of the new location, and Mr. Hibler denied that such information was given him.”

It is true, there was no such finding, but it is also true that appellant testified, “I did tell him (Mr. Hibler) the correct address in mid-December. I told him 510 South Congress.”

We believe that this testimony taken in connection with the admissions made by Mr. Hibler regarding his duties and obligations toward appellant are sufficient to raise an issue.

This evidence is augmented by the act of Mr. Hibler in procuring insurance for appellant after the fire without any request for such insurance being made. Appellant was billed for this insurance, and paid for it. It is true that Mr. Hibler explains this assumption of authority, which is contrary to the position he now takes, as being due to excitement and the stress of circumstances then prevailing. It is for the jury to weigh this evidence. A jury being present, neither the trial court nor this Court is originally authorized to perform this function.

Since this case is being reversed as to McCall and Hibler Company we note that there is some contrariety of opinion concerning the admissibility of acts of an agent or assumed agent for the purpose of showing his authority committed subsequent to the transaction in question. See 2 Tex.Jur., p. 720, Mills v. Berla, Tex.Civ.App., 23 S.W. 910, Adams (D. H.) and Company v. Texas Pacific Coal & Oil Co., 275 S.W. 1100, Texas Civil Appeals opinion with no writ history. Contra, 2 C.J.S. Agency § 23, p. 1049, Bartley v. Rhodes, 33 S.W. 604, Texas Civ.App., no writ history.

The conduct of Mr. Hibler in procuring unrequested insurance for appellant is so closely related to the transaction in issue that we would hold evidence of it admissible.

The judgment of the trial court is affirmed in part and in part reversed and remanded.

Affirmed in part and in part reversed and remanded.