author: CHAPMAN, Justice. DENTON, Chief Justice CHAPMAN, Justice.

text:
    Donald BJORGO, Appellant, v. Marie BJORGO, Appellee.
    No. 7462.
    Court of Civil Appeals of Texas. Amarillo.
    May 3, 1965.
    Rehearing Denied May 31, 1965.

      Wayne B. Barfield, Amarillo, for appellant.
    Dee Miller, Dist. Atty., B. G. Compton and John B. Reese, Asst. Dist. Attys., Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted Marie Bjorgo against Don Bjorgo brought under the Texas Enforcement of Support act, Article 2328b-l et seq., Vernon’s Ann.Civ.Tex.St.

On May 26, 1954, in the State of Kentucky, a judgment was awarded for Marie Bjorgo against Don Bjorgo finding him to be the father of an illegitimate child born to her and requiring him to contribute $10.-00 each week to the support of said child for sixteen years.

All parties by brief appear to agree that the State of Kentucky has a statute known as the Bastardy Act, which requires a father to support an illegitimate child. The judgment mentioned in the preceding paragraph was rendered under such statute and appellee brought suit in the trial court of this state to have the Kentucky bastardy judgment enforced under our Enforcement of Support act, Article 2328b-l et seq., V.A.T.S. Both sides filed motions for summary judgment. The trial court overruled Don Bjorgo’s motion for summary judgment, refused him a trial on the merits, and granted the motion of Marie Bjorgo, awarding her a judgment requiring Don Bjorgo to contribute $10.00 per week to the support of the illegitimate child until she reaches the age of eighteen years.

Though this appears to be a first impression case in Texas under a Bastardy Act of another state brought under the Enforcement of Support act of Texas, we do riot believe it to be a first impression case under the rules of law applicable.

At common law the father was under no legal obligation for the support and maintenance of his illegitimate children. In Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, our Supreme Court has said:

“ * * * while they are his children in fact, the rules of the common law refuse to recognize them as his children, to impose upon him the duties and obligations which the lawful father cannot avoid, or to confer upon them the right to support and paternal care which the child begotten in wedlock has.”

The common law has not been altered in this respect by Article 602 of the Penal Code of Texas, V.A.T.S., which punishes for the neglect or refusal to provide for the support and maintenance of a child, since that provision applies only to legitimate children. Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929.

The adoption of the Texas Probate Code did not change the common law because Section 3(b) of that Act provides: “Child” * * * “unless expressly so stated herein, does not include an unrecognized, illegitimate child of the father.” We find no place where the act expressly so states otherwise and appellant herein has denied by pleadings that he is the father of the child for whom support is sought.

In a similar situation, so far as support to an indigent parent is concerned, our Supreme Court has written upon the obligation of a son living in Texas to support his mother under a California statute so requiring, the court saying: “We concur in the holding of the Court of Civil Appeals that no recovery can be had for support furnished after respondent removed to and became domiciled in this state.” The court further held as follows:

“We are aware of no rule of law that would make the obligation a continuing one after removal from California even though it attached to him while a resident of that state. Citizens of a state equally share the burdens and privileges of citizenship regardless of when or how that status is attained. To say that the support statute compelled liability for that period of time after the respondent moved to Texas would seem to deny to him equality with other citizens of the state.” (All italics herein are ours.)

Though the Court did not cite the 14th Amendment to the Constitution of the United States for the statement just quoted, we would assume the “equality with other citizens” clause in the opinion had reference to that amendment wherein it says: “No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.” If appellant, a citizen of Texas, should be required to support a child under a Bastardy Act of another state, he would not have equal protection with the other citizens of Texas who fathered an illegitimate child in Texas because there is no legal obligation for support under such circumstances in our state and our legislative enactments have apparently carefully avoided changing the common law rule stated by our Supreme Court in Lane v. Phillips, supra.

It is true that in the Copus case we had a divided court but so far as the rule of stare decisis obligates that court, they are bound by the majority opinion regardless of change in personnel on the court. It is also true that petitioner in that case did not bring its suit under the provisions of our Enforcement of Support act. However, the dissenting opinion stated: “ * * * all that is required to have been done or which could have been done by the certifying court in California under the Support Act has been directly accomplished and proved in the Texas district court. * ⅜ * So here, in my opinion, we have the substance of the Uniform Support Act * * The dissenting opinion also confirmed that the majority held that to require Copus to contribute to the support of his mother would be to deny him the equal protection of the laws. The dissent also stated: “Both Texas and California have statutes authorizing the court to require support of parents. Moreover, if the Uniform Support Act had been invoked and followed here, and a recovery allowed under it, that Constitutional point would be the same.” Thus, most of the dissent reasons given in Copus would not be applicable to the instant case.

The dissenting opinion in Copus also stated: “Texas should not become a haven for deserting providers who would ignore or repudiate their duty to support.” We agree. To alleviate that problem, so far as the requirement of a citizen of this state to support an illegitimate child in another state is concerned, all that would be necessary to change such haven would be for the legislature of Texas to pass a law requiring such support.

Section 7 of our Texas Enforcement of Support act, heretofore cited, provides in part that duties of support enforceable under such act are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee.

The obligee here selected the initiating state but did not seek to enforce those payments which had become absolute, final and vested. Section 13 of the act provides: “If the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.” Had appellee proceeded under the last clause of Section 13 requiring reimbursement for accumulated payments, the question would be more serious if proof had been made that the Bastardy Act of Kentucky does not operate retrospectively, as we shall later see.

We believe it cannot be denied that Section 7 and the first clause of Section 13 of our Enforcement of Support act are repugnant to the protection of the equal rights clause of the 14th Amendment to the Constitution of the United States from the manner in which it is sought to be imposed in the instant case. We thus are presented with the question of whether a state law may be given precedence over the Constitution of the United States. We believe that question was settled in 1803 in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60. That court speaking through Chief Justice Marshall said:

“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
“Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
* * * * íji *
“So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or con-formably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”

It is true we are faced with the full faith and credit clause of Article 4 of the Constitution of the United States. Our Supreme Court in Guercia v. Guercia, 150 Tex. 418, 241 S.W.2d 297, refrained from passing on whether that clause applies in cases under the Reciprocal Support Act.

It appears to be settled law that in enforcing foreign judgments the full faith and credit clause applies only where the right sought to be imposed has become absolute and vested. Criteser v. Gaffey, Com.App., 222 S.W. 193. It becomes absolute, final and vested only where the foreign judgment has become final and not subject to change. Quinn v. Quinn, Tex.Civ.App., 216 S.W.2d 1001 (N.R.E.). It is the burden of the plaintiff to establish by pleadings and proof that under the law of the foreign state such judgment so entered therein is final. Quinn v. Quinn, supra. This record shows no such pleading or proof and neither the pleading, proof nor judgment seek to recover for the amount of payments already accumulated but only those to be paid weekly after the judgment was rendered in Texas. Those not being final and vested, the full faith and credit clause of the United States Constitution is not applicable.

The leading case appears to be Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A..N.S., 1068, 20 Ann.Cas. 1061. The opinion in Criteser v. Gaffey, supra, set out the general rule and exception in that case as follows:

“ ‘First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber Case [21 How. 582, 16 L.Ed. 226], “alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.”
“ ‘Second, that this general rule, however, does not obtain where by the law of the state in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.’ ”

Our Supreme Court has also spoken on the subject of decrees being absolute and vested. In Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618, the court quoted with approval from the Sistare case to the effect that where future installments for alimony is rendered in a decree, the right to such installments becomes absolute and vested upon becoming due and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made. Thus, if the court rendering the judgment had the right to act retrospectively, the decree was not absolute and vested and the full faith and credit clause did not apply. The Supreme Court then said: “We have accepted the holding in the Sis-tare case.”

The fact that alimony of a former wife is exempt in the Enforcement of Support act would have no bearing on our case because fathers of illegitimate children are also exempt by our common law and case law. Lane v. Phillips, supra.

In the case at bar, had there been proper pleading and proof of the payments that had accumulated to the date of judgment, and proof that the law of Kentucky as to bastardy payments does not operate retrospectively, the question here would have been more serious because: “When the installments matured, her right thereto became ‘absolute, vested, and protected by the full faith and credit clause of the Federal Constitution.’” Gard v. Gard, supra.

In the absence of proof that the law of a foreign state is contrary to the law of the forum the latter must be followed. Clark v. Clark, Okl., 380 P.2d 241. Periodical payments for child support in the future as provided for in the judgment here under consideration are not final and vested in this state and may be changed and suspended as the facts, circumstances and justice may require. Article 4639a, V.T.C.S.

As heretofore stated, appellee did not offer any proof as to the rule in Kentucky in this respect but Article 435.240 of the Kentucky Revised Statutes provides: “Pending an application for divorce or on final judgment the court may make orders for the care, custody and maintenance of the minor children of the parties * * * and at anytime afterward upon the petition of either parent, revise and alter the same * * * if

In the absence of proof to the contrary we would assume illegitimate children are considered “children” of the father within the purview of such article, since he is required in that state to support them.

Therefore, since the payments under the judgment rendered herein had not at the time of the rendition of the judgment become absolute, final and vested, we hold the full faith and credit clause of Article 4 of the Constitution of the United States did not apply. Since it does not apply, appellant is protected under the “equal protection of the laws” clause of the 14th Amendment to the Constitution of the United States.

In Berkley v. Berkley, Mo., 246 S.W.2d 804, 34 A.L.R.2d 1456, a wife domiciled in California sued her husband, domiciled in Missouri, to recover a sum expended for her support of their legitimate child in the care and custody of the mother. The parties prior to separation had resided in and were citizens of California. The Supreme Court held: “Defendant is a resident of Missouri and subject to its legislative jurisdiction. Therefore, the law of Missouri governs his liability.”

The Supreme Court of Missouri relied on Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, which held: “The character and extent of the father’s obligation, and the status of the minor, are determined ordinarily, not by the place of the minor’s residence, but by the law of the father’s domicile.”

There is still another jurisdiction which held in conformity with the majority opinion in Copus where the question involved a Uniform Dependents Act. Pennsylvania brought a suit in Ohio under the Uniform Dependents Act against an Ohio son. The latter state had a statute which denied support from a child to a parent who had abandoned such child before it became 16 years of age. The parent had so abandoned the child and recovery was denied in Ohio by the majority opinion on the ground of equal protection, the same ground upon which recovery was denied by our Supreme Court in Copus.

Therefore, since the full faith and credit clause does not apply to the proceedings as instituted here, appellant is protected under the 14th Amendment to the Constitution of the United States which provides: “No State shall * * * enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.”

Accordingly, the judgment of the trial court is reversed and remanded.

DENTON, Chief Justice

(dissenting).

I respectfully dissent.

As I understand it, the majority has based its decision on the theory that to require appellant to support his illegitimate child, in the absence of a Texas law imposing such a duty, would deny him the equal protection of the law. In so holding the majority relies on State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227. In my opinion the Copus case is not controlling. It was not an action brought under the Uniform Reciprocal Enforcement of Support Act as is the instant case. It seems to me another distinction is that in the Copus case the claim sought to be asserted was based on a sister state statute while in the present case the child support claim is based on a valid judgment of a sister state.

A portion of the Uniform Reciprocal Support Act, Section 7 of Article 2328b-3, V.A.C.S., reads as follows:

“Duties of support enforceable under this law are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee, but shall not include alimony for a former wife.” (Emphasis added)

In my opinion this section allows the obligee (Marie Bjorgo) to choose the substantive law that is to determine the duty to pay child support. She chose the Kentucky law which was duly invoked. The Kentucky court then declared appellant the father of the minor child and ordered him to pay support. Texas courts should look to the law of Kentucky and recognize the duty of appellant of support “imposed or imposable” under the Kentucky law. Under this record Mrs. Bjorgo made this election by instituting this proceeding. It is uncontradicted she was present in the initiating state (Kentucky) when appellant’s “failure to support commenced”.

The enforceability of a child support judgment of a sister state by Texas courts against a father who has thereafter become a resident of Texas can not be questioned. Guercia v. Guercia, 150 Tex. 418, 241 S.W.2d 297. That case held that the enforcement of such judgments of sister states is based on comity and public policy. The only distinction between the Guercia case and the instant case is the legitimacy of the child for whom support is being sought. Kentucky law does not make such a distinction. Under the Uniform Reciprocal Support Act I do not think courts of this state should make such a distinction.

We are called on here to enforce a duty imposed by a Kentucky court under a Kentucky law. At the time the duty to support arose appellant was a resident of Kentucky. The fact he voluntarily left that state and became a resident of Texas, which does not require a father to support an illegitimate child, should not relieve appellant of that duty. If the Reciprocal Support Act is to be effective, the judgments of the initiating states must be recognized and enforced.

Although the Supreme Court in Guercia v. Guercia, supra, specifically refrained from passing on the question as to whether or not the full faith and credit clause of the United States Constitution applies in cases under the Reciprocal Support Act, I am convinced such constitutional requirement is applicable. I would affirm the judgment of the trial court.

ON MOTION FOR REHEARING

CHAPMAN, Justice.

Because this case involves the support of a minor child this writer has given further study to the case since Appellant’s Motion for Rehearing. The majority is still firmly convinced that we properly disposed of the case.

The Dallas Court of Civil Appeals, Freeland v. Freeland, 313 S.W.2d 943 (N.W.H.), in construing Article 2328b-l et seq., V.A. T.S., with respect to a case originating in Indiana as the initiating state has held:

“Since appellant so far as the records show has continued to reside in the State of Texas we believe that the laws of Texas as Responding State are to be applied in this case. State of California v. Copus, Cal., 309 S.W.2d 227; Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863; Daly v. Daly, 21 N.J. 599, 123 A.2d 3.”

In an extradition hearing in Florida, Clarke v. Blackburn, Fla.App., 151 So.2d 325, where North Carolina was seeking to extradite appellant to answer for non-support of an illegitimate child fathered in the latter state, the District Court of Appeal of Florida, Second District, after stating the ultimate question was “whether Clarke should be surrendered, under the Uniform Reciprocal Enforcement of Support Law, to the State of North Carolina for trial on the charge of committing the crime of nonsupport of an illegitimate child,” held:

“Chapter 742 establishes a procedure whereby any unmarried woman who is pregnant or delivered of a bastard child may bring proceedings in the circuit court in chancery to determine the paternity of such child; and if the court (of the responding state) shall find the defendant to be the father of the child, then the court shall order the defendant to pay monthly payments for the care and support of the child. Only after such judicial determination is there a duty imposed by the laws of Florida upon the father to support such a child. The record here does not disclose any such judicial determination. Under the laws of the State of Florida, Clarke did not owe a duty of support. * * * There being no duty of support imposed by law upon Clarke, the provisions of Chapter 88, the Uniform Reciprocal Enforcement of Support Law, are not applicable and Clarke could not be extradited under the provisions thereof.” (Parenthetical statement ours).

Where the initiating state was Michigan and the responding state Maine the Supreme Court of Maine in Lambrou v. Berna, 154 Me. 352, 148 A.2d 697 held:

“The rights of the parties are determined by the law of this state, our court having jurisdiction of the respondent.”

That same court in Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863, in a case involving their Uniform Reciprocal Enforcement of Support Act held:

“The laws which govern in a situation such as this, are those of the responding state (Maine) and not the laws of the initiating state (New York).”

In Jackson v. Hall, Fla., 97 So.2d 1, the Supreme Court of Florida held:

“And the duty of support enforced under the Act is not necessarily that imposed by the law of the initiating state; it is that ‘imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought’ which is presumed to be the responding state ‘until otherwise shown’. * * * It then becomes the duty of the court of the responding state to examine the petition and if it ‘finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.’ ”

In passing upon the Uniform Reciprocal Enforcement of Support Act in the State of Nevada as respects the obligation of a husband to support a wife, the Supreme Court of that state, where the initiating state was California held in State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709, as follows:

“In the case of Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30, 32, it was pointed out that the initiating state cannot fix the liability of the obligor in the responding state. In this regard the New Jersey court said:
‘In effect it (the finding of the court in the initiating state) amounts merely to a finding that the allegation of the complaint warrants further proceedings; it is in no way evidentiary as to defendant’s liability.’
⅝ ⅜⅞ ⅜ ⅝ ⅜ ⅝
“ ‘ * * * it is the obligation, not of the initiating court, but of the court in the responding state, to determine whether or not the defendant spouse is under a duty to support the plaintiff spouse; and such determination may be made by the latter court only upon the basis of evidence adduced before that court * * *.’ Pfueller v. Pfueller, supra.”

In Cobbe v. Cobbe, 163 A.2d 333, the Court of Appeals, District of Columbia, under that jurisdiction’s Uniform Reciprocal Enforcement of Support Act, in a well-reasoned opinion involving a child seeking support from a father in Florida held:

“The duty of our courts, when the District of Columbia is the initiating jurisdiction, is to ascertain if ‘the defendant owes a duty of support’ in the sense of there being an obligor-obligee relationship like that of husband-wife or parent-child. Thereafter, the applicable law to determine defendant’s liability for the breach of that duty is governed by the law of the responding state.”

That court after quoting the Supreme Court of Florida in Jackson v. Hall, supra, then said:

“Florida has said the law of the responding jurisdiction will be used to determine the duty of support, and it is to be applied by the courts of that state as they interpret it. We think this view commends itself both in logic and practicability.”

A careful study of all these cases convinces the majority that the Uniform Reciprocal Support laws were passed to provide the petitioner with a more convenient remedy, the purpose being to help indigent people who were unable to employ attorneys and travel about the country pursuing their remedies. Such is indicated in Zelek v. Brosseau, 47 N.J.Super. 521, 136 A.2d 416, syl. 13, p. 423. That case cited Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30, which holds with respect to the Uniform Enforcement of Support Act that:

“Under the statute it becomes the obligation, not of the initiating court, but the court in the responding state, to determine whether or not the defendant is under a duty to support the plaintiff.”

Since the State of Texas does not require the support of an illegitimate child and since all jurisdictions we have studied, including our own, have held the law of the responding state determines the duty of support, the majority believes we reached the correct conclusion in our original opinion and that this case must be reversed and remanded. Accordingly, the motion for rehearing is overruled.

      . Acts 1955, 54th Legislature, p. 88, Chapter 55.

      . State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227.

      . Texas does not have a statute requiring support by a father of an illegitimate child.

      . Commonwealth of Pennsylvania ex rel. Department of Public Assistance, etc. v. Mong, 160 Ohio.St. 455, 117 N.E.24 32.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    Juana A. VILLAGOMEZ, Individually and as Next Friend of Irene Villagomez and Evangelina Villagomez, Appellant, v. AMERICAN MOTORISTS INSURANCE COMPANY et al., Appellees.
    No. 5703.
    Court of Civil Appeals of Texas. El Paso.
    May 12, 1965.
    Rehearing Denied June 9, 1965.

      Guinn & Guinn, Ben A. Endlich, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, and Charles R. Jones, El Paso, for appellees.
   PRESLAR, Justice.

This is a Workmen’s Compensation case in which summary judgment was granted for the defendants. At issue is whether, as a matter of law, the claim was not timely filed, and whether, as a matter of law, death was not due to the injury which the workman suffered in the course of his employment. We are of the opinion that summary judgment should not have been granted.

Adolfo Villagomez suffered an injury on April 4, 1955 when he slipped and fell. He continued to work for two weeks at the request of his foreman, after which time he ceased working, saw a doctor, and was treated for injuries to his left hand. He filed claim for his injury with the Industrial Accident Board on July 11, 1955 and on the same day he suffered a “stroke”, and he died on July 17, 1955. His attorney immediately notified the Board of his death and requested forms on which to make application for a death claim. The widow executed these forms for herself and on behalf of her two minor children in the office of her attorney on October 18, 1955, but they were not filed with the Industrial Accident Board until March 16, 1956, seven months and twenty-seven days after death came to Adolfo Villagomez.

This being a summary judgment case, it must be determined by the provisions of Rule 166-A, Texas Rules of Civil Procedure, and certain rules laid down by the courts as to proceedings thereunder. The latest expression of our Supreme Court in that regard is the case of Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., Tex., 391 S.W.2d 41 (April 24, 1965):

“ * * * Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1962). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affi-ants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the positron of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957) * * *”

The rule provides that the motion may be supported by affidavits, depositions and admissions on file, but the affidavits must be based on personal knowledge. However, it is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavits, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

The case before us has been pending too long, and there is much virtue in the attempt to make disposition of it, but we are of the opinion that it was not the proper subject of a summary judgment proceeding. The contention of the movant that the death of the claimant was due solely to natural causes and had no connection with the injury received on the job is not established as a matter of law within the meaning of the summary judgment rule. There is evidence that the claimant received a blow to his head when he suffered his accident on the job, and his wife told of a bump on his head and his complaints of headaches. The depositions of the three doctors offer a preponderance of evidence that the blow to the head was not a contributing cause of death, but the opinions of these experts are not conclusive. By the very nature of their medical science, when applied to a cause of death of this type, an opinion was the strongest answer they could give. It was not possible to rule out the blow to the head with certainty as a factor in the cause of death. The opinions of experts are not the conclusive character of evidence required for summary judgment. Mallow v. City of Denton, Tex.Civ.App., 356 S.W.2d 705, ref., n. r. e., citing McDonald, Texas Civil Practice, sec. 17-26.5 Cumulative Supplement, “Summary judgment, (IV) Determination of Motion on Matters Outside Pleadings”. The Mallow case involved a question on the quantity of acreage as to which experts had testified, and speaking of such evidence the court said:

“On summary judgment proceedings, an expression of opinion as to quantity, just as in an instance of expression of opinion as to value, does not have such conclusive force as to support entry of summary judgment. The credibility and weight to be given such character of evidence, which has the fundamental character of opinion testimony, is only proper to be determined after a trial in the regular manner. Sartor v. Arkansas Natural Gas Corporation, 1943, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967.”

The existence of a fact question as to a connection between the injury received and the subsequent death is not foreclosed by the evidence in the case before us.

On the question of the timely filing of the claim for death benefits with the Industrial Accident Board, we are of the opinion that the requirements of our Workmen’s Compensation laws were met. We view the death claim as an amendment of the then pending claim before the Board, for it was based on the same alleged accident and was tendered before the Board made its determination as to such accident. The right existed to amend and claim greater or different injuries flowing from such accident at any time before the Board made its final award. There is no requirement that such amendment be made within any specified period of time, so long as it is made before the Board disposes of the claim. Such is the holding in Western Casualty Co. v. DeLeon, Tex.Civ.App., 148 S.W.2d 446, error dismissed, judgment correct. In Traders & General Ins. Co. v. Herndon, Tev.Civ.App., 95 S.W.2d 540, error dismissed, an employee filed claim describing injuries as fractures of writ and thumb, and some sixteen months later amended such claim alleging general injuries and total and permanent disability. This court held such amendment could be made without showing good cause for delay.

The judgment is reversed and the cause is remanded to the trial court for trial on the merits.


author: SHARPE, Justice.

text:
    James LIEBMAN, Appellant, v. Morin SCOTT, d/b/a Tidelands Motor Inn, Appellee.
    No. 62.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 22, 1965.
    Rehearing Denied June IT, 1965.
    Newton B. Schwartz, Frank C. Herzog, of Schwartz & Lapin, Houston, for appellant.
    Richard B. Miller, R. Gordon Gooch, of Baker, Botts, Shepherd & Coates, Houston, for appellee.
   SHARPE, Justice.

This is an appeal from a judgment non obstante veredicto rendered in favor of ap-pellee, Morin Scott, d/b/a Tidelands Motor Inn, defendant below, and against James Liebman, plaintiff below.

Liebman sued Scott for damages on account of personal injuries sustained on March 20, 1960, when he walked through a glass sliding door in Room 161 at the Tidelands Motor Inn, Houston, Texas, where he was a paying guest.

In response to nine special issues the jury found that Scott failed to use such appropriate design of the sliding glass door providing entrance and exit from Room 161 as would have been used by a person of ordinary prudence in the. exercise of ordinary care under the same or similar circumstances, and that such failure was a proximate cause of the incident in question. The jury acquitted Liebman and his wife of contributory negligence, found that the incident in question was not the result of an unavoidable accident, and that Liebman’s damages aggregated $7,743.30.

The trial court granted the motion for judgment non obstante veredicto on the ground that Scott did not violate any duty which he owed to Liebman with regard to the condition made the basis of this suit and that a directed verdict in favor of Scott would have been proper.

On this appeal Liebman asserts six points of error, contending primarily that the trial court erred in failing to render judgment in his favor and in granting judgment non obstante veredicto for Scott. Scott contends that the latter action was proper, but, alternatively asserts that if the judgment is reversed, the case should be remanded for new trial because the lower court did not submit an issue to the jury on the question of whether the design of the glass door in question was “open and obvious”.

The basic facts are as follows: On March 20, 1960, Liebman and his wife were paying guests at the Tidelands Motor Inn, Houston, Texas. About 9:00 P.M. on said date Lieb-man, his wife and two other couples returned to Room 161 following dinner at a restaurant. There were two entrances to said room, one of which was a sliding glass door in the outside wall near the parking lot, and the other a wooden door on the opposite side of the room. Liebman and the other persons used the sliding glass door to enter the room on said occasion. Shortly thereafter Liebman decided to go to his car which was parked about forty feet from the outside glass door in order to get a map. He left the said door open, as it had been for a short time theretofore. While Lieb-man was outside, and unknown to him, his wife closed the sliding glass door. The lights inside said room were on. When Liebman attempted to re-enter the room he walked straight into the glass door, colliding with it and sustaining injuries, particularly to his leg, when the glass shattered. There were no push bars, tapes or other markings on the door and the glass was highly polished and clean. There was a narrow aluminum frame around the glass portion of said door in which there was a small lock mounted in the left side thereof, facing it from the outside, and there was a small handle immediately to the right of said lock which extended a short distance in front of the glass. Liebman thought he was walking through the space left by the open door, but instead, he walked into the glass. Lieb-man said he had used the glass door in the daytime prior to the accident, but not at night that he could recall.

The judgment of the trial court, rendered non obstante veredicto, is squarely based upon the premise that Scott did not violate any duty which he owed to Liebman with regard to the conditions made the basis of this suit. It is apparent that Scott, as owner and operator of Tidelands Motor Inn, at which Liebman was a paying guest and business invitee, was required to use ordinary care to keep his land and premises in a reasonably safe condition for such invitees. Scott had a duty to protect his invitees from dangers of which he knew, or because of his duty to inspect, of which he should have known. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950) ; Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). As to dangers which were not open and obvious, Scott was under a duty to take such precautions and give such warnings as would a reasonably prudent person under the circumstances. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

If the evidence herein conclusively established that the design of the sliding glass door presented a dangerous condition which was known and appreciated by Liebman, then it is apparent that Scott owed no duty to take precautions or warn him of such danger, and Liebman could not recover. There is no doubt that the said glass door when closed presented a dangerous condition if a person walked into it. However, if reasonable minds could differ as to whether Liebman had knowledge of and appreciated such dangerous condition, then a jury issue was presented as to such facts, and if established favorably to Liebman (that he did not have such knowledge or appreciation) would lead to the further inquiry as to whether Scott was negligent in failing to take precautions for Liebman’s safety or to warn him of such danger.

In support of his position, Liebman places reliance upon the case of Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App.1959), reversed and remanded to the Court of Civil Appeals in 160 Tex. 23, 325 S.W.2d 126 (1959), trial court judgment affirmed as on original disposition, 326 S.W.2d 915 (Tex.Civ.App.1959), and a number of out of state authorities involving glass doors or windows, as well as upon the principles announced in Halepeska, supra. Scott relies principally upon the cases of A. C. Burton Co. v. Stasny, 223 S.W.2d 310 (Tex.Civ.App.1949, wr. ref.) ; Acme Laundry Co. v. Ford, 248 S.W.2d 745 (Tex.Civ.App.1955, wr. ref. n. r. e.) ; Crawford v. Given Bros., 318 S.W.2d 123 (Tex.Civ.App.1958, wr. ref. n. r. e.); Raeburn v. City of Houston, 346 S.W.2d 488 (Tex.Civ.App.1961, wr. ref. n. r. e.), as well as a number of out of state authorities, all involving glass.

One of the most recent decisions involving injuries from glass doors is Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (8th Cir., January 26, 1965). That case affirms a recovery for the plaintiff therein based upon a jury verdict. The opinion reviews a number of cases involving glass doors, panes and windows and distinguishes some of them where recovery was denied to plaintiffs on the no duty theory.

A careful review of the evidence in this case, considered in the light most favorable to Liebman, convinces us that the trial court erred in rendering judgment non obstante veredicto on the basis that Scott did not violate any duty which he owed to Liebman with regard to the conditions made the basis of this suit. The evidence shows that a comparatively inexpensive tape properly placed on- the sliding glass door would have served to give warning when it was closed, and that a more expensive push bar, properly located, would have given such warning and, also, prevented to a great extent a violent collision with the glass in said door under most conditions. Photographs in evidence strongly support testimony offered by Liebman to the effect that when a person approached the sliding glass door from the outside at night, it appeared to be open when it actually was closed. The cases relied upon by Scott can all be distinguished so as to allow recovery to Liebman in this case, provided he is able to secure jury findings favorable to him upon the controlling issues.

On the trial of the case, the trial court refused Scott’s request that the following special issue and definition be submitted to the jury:

“Do you find from a preponderance of the evidence that the design of the sliding glass door providing entrance and exit from room 161 was open and obvious to the plaintiff, James Liebman, prior to the occasion made the basis of this suit?”
“A condition is open and obvious to a person, if such person knows or in the exercise of ordinary care should know of it, and if such person also appreciates or in the exercise of ordinary prudence should appreciate the full extent of the danger involved in its use.”

The action of the trial court in refusing to submit said issue with its accompanying definition was proper. The requested definition was duplicitous in that it included a “no-duty” theory (knows-appreciates) as well as part of a contributory negligence theory (should know-should appreciate, in the exercise of ordinary care). Furthermore, only actual knowledge, or its equivalent, and actual appreciation of the dangerous condition would be material to the “no-duty” contention of Scott. Halepeska v. Callihan Interests, Inc., supra. No such issues were requested. Neither were the “should know” or “should appreciate” phases of knowledge and appreciation requested in connection with issues of contributory negligence. No objections were made to the charge of the court for failure to submit any of such issues. The jury found in favor of the Liebmans on the issues of contributory negligence, i. e., alleged failure to keep a proper lookout on the part of Mr. Liebman, and the closing of the sliding glass door on the part of Mrs. Liebman. In the absence of proper objections or the refusal of other properly requested issues or definitions, it appears that Liebman is entitled to judgment based upon the jury verdict.

For the reasons given, the judgment of the trial court is reversed and is here rendered in favor of Liebman against Scott, d/b/a Tidelands Motor Inn, in the amount of $7,743.30, with interest at 6% per an-num from August 19, 1963, together with costs of this court and the court below.


author: STEPHENSON, Justice.

text:
    Ex parte Olive Ellen BANDY, Deceased. W. A. GOODWIN v. Lillie Mae BIVENS.
    No. 6758.
    Court of Civil Appeals of Texas. Beaumont.
    May 27, 1965.
    Motion for Rehearing Overruled June 23, 1965.
    John Blair, Beaumont, B. T. McWhorter, Port Arthur, for appellants.
    Howard C. Sadler, Port Arthur, for ap-pellee.
   STEPHENSON, Justice.

This is a will contest. The will of Olive Ellen Bandy, deceased, was admitted to probate. Trial was by jury, and the jury found that the testatrix was of sound mind at the time of the execution of the will, and that the will was not procured through undue influence. No contention is made that these findings were not supported by the evidence. All of the points of error are as to exclusion of evidence. The parties will be designated as proponents and contestants, as they were in the trial court.

The will in question was made January 15, 1958, when testatrix was 87 years of age. She died September 26, 1962, at the age of 91. According to the will admitted to probate, all of the estate was left to two neighbors, the proponents in this action. The contestants are all nieces and nephews of the testatrix.

Contestants’ first point is that the trial court erred in sustaining proponents’ motion in limine. The order complained' of read in part as follows:

“On this the 28th day of April, 1964, at 8:50 A.M. before any evidence is presented in the above captioned and numbered cause, but after the Jury has been selected, and all pleadings read to the Jury, the Court hereby orders as follows:
“That the Honorable John Blair and the Honorable W. T. McWhorter, attorneys of record, for the Contestants, are ordered not to introduce into evidence any of the following documents:
“(a) An application signed by Willie B. Kipp and dated January 9, 1958, to have Olive Ellen Bandy declared a mentally ill person filed January 10, 1958.
“(b) Ex Parte orders dated January 10, 1958, in regard thereto.
“(c) Notice of hearing pertaining to temporary hospitalization filed January 14, 1958.
“(d) Ex Parte affidavits by Drs. James Makins and E. C. McRee filed in said proceeding on the 10th day of January, 1958.
“(e) Order regarding another Ex Parte hearing dated January 17, 1958.
“(f) Motion for a new trial filed January 20, 1958.
“(g) Order entered January 24, 1958, granting said motion for a new trial.
“(h) Order dated January 31, 1958, granting a setting for said case for February 5, 1958; and
“(i) An acceptance of patient showing file mark January 22, 1958.
“Further, the Honorable John Blair and W. T. McWhorter are ordered not to allude to the said instruments above listed or other proceedings styled Cause No. 17361 styled Mrs. Olive Bandy, Mental Illness.”

January 29, 1964, the trial court had sustained a previous motion in limine by order reading as follows:

“Ordered, Adjudged and Decreed that counsel of record is instructed not to allude or refer to any proceedings, whether pleadings, affidavits or orders in Cause No. 17,361, or the guardianship proceedings without first approaching the bench and in a manner and tone of voice that the jury cannot hear, or during a recess, if necessary, to let the Court rule on the offer of evidence, piece by piece.”

By bill of exception, contestants tendered in evidence certified copies of the following proceedings in Cause No. 17,361, styled, “The State of Texas for the Best Interest and Protection of Mrs. Olive E. Bandy as a Mentally Ill Person”:

“(1) File mark of Application dated January 10, 1958.
“(2) Certificate sworn to by Dr. E. C. McRee filed January 10, 1958, stating that he had examined Olive E. Bandy on January 8, 1958 and that in his opinion she was suffering from cerebral arterio-sclerosis on that date and that she was mentally ill and should be placed under protective custody.
“(3) Certificate sworn to by Dr. James Makins, filed January 10, 1958, stating that he had examined Olive E. Bandy on January 9, 1958 and that in his opinion she was suffering from arterio-sclerosis and dementia on that date, and that she was mentally ill and should be placed under protective custody.
“(4) Notice setting hearing for January 17, 1958, dated January 10, 1958, issued by the County Judge, showing service on Mrs. Olive Bandy on January 13, 1958.
“(5) Judgment of the County Court dated January 17, 1958, in which the Court, on the basis of the application filed on January 10, 1958, adjudged Mrs. Olive Bandy a mentally ill person and committed her as a patient to Oak-rMge Sanitarium in Austin, Texas, under the supervision of Dr. David Wade.
“(6) Commitment of the patient, Mrs. Olive Bandy, to Oakridge Sanitarium for observation and treatment, dated January 17, 1958.
“(7) Order dated January 27, 1958 after hearing on January 20, 1958, granting a new trial and placing the care, custody and control of Mrs. Bandy to, ‘Mr. Weldon Denbo and Mrs. B. M. McLaughlin, and/or Miss Lillie Mae Bevins and Mrs. Eliza Durham’, and further reciting that the said ‘Miss Lillie Mae Bevins and Mrs. Eliza Durham are citizens of Port Arthur, Jefferson County, Texas, and are responsible citizens have also agreed to assume the care and maintenance of Mrs. Bandy * * ”

The refusal of the trial court to permit contestants to introduce any of these makers in evidence is assigned as error.

Contestants also complain of the a^.<on of the trial court in excluding evidence as to guardianship proceedings. The bill of exceptions shows an application for guardianship for the testatrix was filed March 7, 1958, and by order dated March 27„ 1958, she was declared a person of unsound mind and one of the proponents, Lillie Mae Bev-ins, was appointed guardian of her pe» son. Other matters in such guardianship which were excluded were the following: Oath and bond of Lillie Mae Bevins; Claims made for services by Lillie Mae Bevins and Mrs. V. D. Durham; Claim of Jack Voyles for legal services.

The judgment finding the testatrix to be a mentally ill person and committing her to the Oakridge Sanitarium was dated two days after the will was executed. The judgment in the guardianship proceeding was dated two and one-half months after the will was executed. No cases have been cited to us involving the admissibility of such judgments in a will contest. The law is settled that in an action to set aside a deed, such judgments which are subsequent in time to the date of execution of the deed are not admissible in evidence. Wright v. Matthews, Tex.Civ.App., 130 S.W.2d 413; Joy v. Joy, Tex.Civ.App., 156 S.W.2d 547. We hold the same rule is applicable to this will contest. The acts and conduct of the testatrix both before and after the execution of the will were admissible, if not too remote, but subsequent judgments were not. All of the other matters set out in the bills of exceptions were likewise not admissible. The points are overruled.

Affirmed.


author: BATEMAN, Justice.

text:
    Ida CARTER, Administratrix of Estate of Cora Carter, Deceased, Appellant, v. Narvel CARTER, Appellee.
    No. 16565.
    Court of Civil Appeals of Texas. Dallas.
    May 21, 1965.

      Wilson F. Walters, Denison, for appellant.
    Carl R. McLynn, Sherman, for appellee.
   BATEMAN, Justice.

Appellee Narvel Carter made claim against the estate of his deceased sister, Cora Carter, for $1,560 which he claimed he sent to her to keep in trust for him. The appellant Ida Carter, Administratrix of the Estate of Cora Carter, Deceased, rejected the claim and in the suit filed in the district court to establish the claim she contended the amounts of money appellee sent Cora Carter constituted gifts. At the conclusion of a nonjury trial the court rendered judgment for appellee for the $1,560.

By her first point of error on appeal the appellant asserts that the evidence is insufficient to support the judgment. Appel-lee called three witnesses, Marie Hall, Nathaniel Caffee and Norman Hall, all of whom testified to conversations they had had with Cora Carter in her lifetime. Marie Hall said that Cora told her that appel-lee, who had been working in Chicago, had been sending money to her in Denison, Texas, to put in the bank as his “retirement money” which he would live on when he retired. Nathaniel Caffee said Cora told him that appellee was sending money for her to keep for him, and that she had money which he had sent her and which she was keeping for him. Norman Hall said that Cora told him about some money she was saving for appellee and that when he got old and thought of retiring she would have a little money saved for him; that this was money he, appellee, was sending to her. This evidence was admissible against Cora’s administratrix. 2 McCormick & Ray, Texas Law of Evidence, p. 70, § 1177; Dooley v. McEwing (1852), 8 Tex. 306; Schmidt v. Huff, Tex.Sup., 1892, 19 S.W. 131.

Appellee was called as a witness by counsel for appellant and in response to his questions testified that he had been working in Chicago and that when he came to Denison on vacation his sister, Cora, said to him: “I want you to put some money in the bank,” and that when he said “I ain’t got none,” she replied: “Send me some money and I’ll keep it. When you get 65 years old you can’t get no job and you’ll have something to live on.” He said he sent the money home so he couldn’t get to it; that if he had it “up there” he would spend it; that he sent about $50 a month. There were also in evidence money order stubs aggregating $1,560, all payable to Cora Carter.

We think the foregoing testimony was clearly sufficient to support the judgment. The only evidence to the contrary was a prior claim filed against the estate by appellee for $1,700, in which he swore he had sent the money to Cora “for her benefit and support prior to her death.” Appel-lee explained in his testimony that his first attorney prepared this claim and that it was wrong; that he told his second attorney (the one who represented him in the trial) that the first claim was wrong and that the reason he was keeping the money order stubs was so that when he resigned and came home he would know just exactly how much money he had, and that if he lost some of them that was his loss; that he didn’t send the money to help Cora Carter, because she had more money than he would ever have. The trial judge had the opportunity to observe the witnesses and their demeanor while testifying and was thus in much better position to evaluate the testimony than we. We have no authority to substitute our evaluation thereof for his.

Appellant argues that the arrangement between Cora and appellee cannot properly be construed as a trust because it was unilateral and lacked reciprocal agreement of Cora to act as trustee, and also because it was not definitely agreed how long the trust would last nor how it would be terminated. The record shows an understanding between them that Cora would keep for appellee the money he sent her so that it would be available to him when he retired. It was shown that she agreed to the plan and, in fact, suggested it. Even if the parties did not specifically agree on every element necessary to the creation of an express trust, there was competent evidence to the effect that appellee sent the money to his sister, Cora, without receiving any consideration and with no intention to make a gift. The court, as trier of the facts, must have impliedly found this to be true. If so, the trust resulted even if Cora had not expressly agreed to hold the money in trust and disburse it according to a specific plan and at a certain time. Her agreement to turn the money, or any part of it, over to appellee on demand would be supplied by operation of law. 42 Tex.Jur., Trusts, § 40, p. 643; Jackson v. Hernandez, Tex.Civ.App., 274 S.W.2d 131, affirmed 155 Tex. 249, 285 S.W.2d 184; Brown v. Warfield, Tex.Civ.App., 234 S.W.2d 264, 267, wr. ref.

The first point is overruled.

By her second point of error, designated as Point No. 1(A), appellant complains of the admission of the aforesaid testimony of Marie Hall over the objection that it was prohibited by the Dead Man’s Statute (Vernon’s Ann.Civ.St., Art. 3716). This point is without merit for two reasons. (1) The witness was neither a party to the suit nor interested in the estate, her relationship to Cora Carter being that of a second cousin and it appearing without dispute that Cora left surviving her a sister and a brother. Probate Code, § 38. (2) The testimony was cumulative of that of two other witnesses and, even if its admission were error, such error would be held by us to be harmless under Rule 434, Vernon’s Texas R.C.P. This point is overruled.

In her third point of error, designated as No. 2, appellant says it was error for the court to overrule her amended motion for new trial. The point as stated is too general. Rule 418, T.R.C.P.; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, wr. ref. n. r. e. But an examination of the statement and argument under it shows that it is based upon certain newly discovered evidence. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. In the motion it was alleged that after the trial three persons told appellant they had seen an account of the trial in a newspaper, were surprised at the result and, although they had been unwilling to become involved in the trial, were now willing to come to court and testify to the effect that Cora Carter had hold them that she needed money and wished that Nar-vel Carter would send her some money because she needed it to pay her bills; that he had been sending a money order to her periodically for her to live on and with which she bought groceries and paid for her utilities; and that Ida Carter had also been sending money to her. Appellant alleged in the motion that she was diligent in trying to find such evidence, that the people she talked to were silent, not wishing to become involved and not believing that appel-lee could recover anyway.

To obtain a new trial on this ground it is necessary for the complaining party to show that his knowledge of the existence of the new evidence was acquired subsequent to the trial; that his failure to discover and obtain the evidence in time to be used at the trial was not due to want of diligence; that the evidence is material and not merely cumulative, and that if admitted it would probably change the result upon another trial. 31 Tex.Jur., New Trial—Civil Cases, § 81, p. 90; City of Mesquite v. Scyene Investment Co., Tex.Civ.App., 295 S.W.2d 276, 281, wr. ref. n. r. e. The trial court by its judgment impliedly found that appellant did not bring the matter within the foregoing rule.

Moreover, the so-called newly discovered evidence would have been inadmissible as hearsay. It did not fall within the exception to the hearsay rule, as did the testimony of Marie and Norman Hall and Nathaniel Caffee, that admissions of a decedent against her interest may be proved against her administrator or executor by those to whom she made the admissions.

It is also well settled that “the grant or refusal of a new trial for newly discovered evidence rests within the sound discretion of the trial court, and that unless such discretion has been abused the court’s ruling will not be disturbed on appeal.” 31 Tex.Jur., New Trial — Civil Cases, § 82, p. 91. From a careful review of the record presented here we conclude that the appellant has not carried the burden of showing such abuse of discretion, and that the point should be overruled.

The judgment appealed from is

Affirmed.


author: HUGHES, Justice.

text:
    Jeffrey Ann LASHBROOK et vir, Appellants, v. Herman Edward ALTUM, Appellee.
    No. 11300.
    Court of Civil Appeals of Texas. Austin.
    May 26, 1965.

      See publication Words and Phrases for other judicial constructions and definitions.
    Harris & Holbrook, R. O. Harris, Jr., Killeen, Mitchell & Gilbert, Arthur Mitchell, Phillip W. Gilbert, Austin (on appeal only), for appellants.
    No brief filed by appellee.
   HUGHES, Justice.

This appeal is from an order of the District Court of Bell County declaring Lisa Ann Altum to be a “dependent and neglected child” and terminating all parental rights, making her a ward of the court and committing her to the care, custody and control of Herman Altum “subject to the continuing jurisdiction and further orders of this Court.”

Herman Edward Altum, appellee, is the paternal grandfather of Lisa Ann Altum. Her mother, Jeffrey Ann Lashbrook, joined by her husband, Major R. L. Lashbrook, an aviation officer in the United States Army, are appellants.

On August 18, 1964, appellee filed a petition in the court below alleging, under oath, that Lisa Ann Altum appeared to be a dependent and neglected child within the meaning of Art. 2330, Vernon’s Ann.Tex. Civ.St., and specifically alleging “That said child is dependent or neglected in that said child is dependent upon the public for support, destitute, homeless, abandoned and also the said child has no proper parental care or guardianship.”

The petition alleged the father of Lisa to be Lee Edward Altum, Route 1, Belton, Texas, and the mother to be Jeffrey Ann Lashbrook, Fort Hood, Texas.

On the day this petition was filed, the trial judge “ordered that any peace officer or probation officer taken into immediate custody the said child and transfer the said child into the immediate temporary custody of Herman Edward Altum, pending any and all further orders of this Court.”

On August 24, 1964, appellants answered the above petition by filing a general denial.

The record does not disclose that the father of Lisa was cited to appear or that he in fact appeared in the trial court.

After a hearing, the court, on September 18, 1964, entered the order from which this appeal is taken.

Appellee has filed no brief herein and under Rule 419, Texas Rules of Civil Procedure, we are entitled to accept appellants’ statement of the case as correct.

Because of the nature of the case, we have not availed ourselves of the benefits of this rule but have carefully read the entire, and rather long, statement of facts.

It is our opinion that there is not one shred of evidence to support the judgment of the trial court and that appellants’ no evidence point should be and is sustained.

On the very day that appellee filed his petition seeking to have his granddaughter declared to be a dependent and neglected child she was residing with him and his wife (grandmother), and had been so residing for about three years prior to such time. There is no suggestion in the record that Lisa was not given proper care by her paternal grandparents. In fact, the evidence shows that she has been showered with the love, care and attention which grandparents normally bestow on their grandchildren. Lisa’s education, both religious and secular, has not been neglected. Her physical needs have always been amply supplied.

We do not dwell longer on this phase of the case because the testimony of appellee and his wife indicate that the claim that Lisa is a dependent and neglected child is based wholly on the ground that Lisa has been abandoned by her parents. We will discuss this contention as it relates to appellant only.

Appellant and Lee Edward Altum were married in December 1950. They were divorced in 1954, in which proceedings appellant was awarded custody of Lisa, their daughter, then about two years of age. Lisa had lived with her mother until the divorce in July 1954, after which she stayed with the grandparents, Altums, until December 1955. From December 1955 until February 1956, Lisa stayed with her mother. From this time until August, 1958, Lisa stayed with the Altums. From August 1958, until June 1959, Lisa lived with her mother and went to school in Austin. Lisa spent the next three months with the Altums. From September 1959, until August 1960, Lisa lived with her mother and went to school in Austin. From August to December 1960 Lisa stayed with the Altums and went to school in Belton. From December 1960 until May 1961, Lisa lived with her mother and attended school in Austin. From this time on Lisa has lived with the Altums in Belton and has attended school there.

Appellant has had two marriages intervening between her divorce from Mr. Al-tum and her marriage to Major Lashbrook in November 1963.

The record shows that Lisa’s father has not contributed to her support since he was discharged from the Army although court proceedings were instituted for that purpose. The evidence also shows that the support money sent by the Army was retained by appellant even though Lisa was living with the grandparent Altums during the period covered by such payments.

The evidence does not show that appellant has contributed to the support of her daughter during the time she has lived with the Altums except for occasional gifts of clothing and the like. Nor does the evidence show that the Altums requested any aid from appellant in the support of Lisa.

Appellant, since her first marriage, has lived in Waco, Austin, Killeen, and perhaps, in Gatesville, except for a period of three months in New York, during which period Lisa was with her mother. All of these Texas towns are within short driving distances from Belton.

The evidence shows the Altums, appellant and her mother, the maternal grandmother, Mrs. Doris Enoch, were all on very friendly terms with each other. There was always free communication between them. The visits between these persons are too numerous to detail. During Lisa’s life Mrs. Enoch has missed spending only one of Lisa’s birthdays with her. Lisa, her mother and the grandparents have spent every Christmas together.

During all of this extremely close relationship between appellant and the Altums there was never any word spoken by or any conduct of the Atlums, to the knowledge of appellant, which indicated that the Altums considered themselves to be anything but grandparents to Lisa. The discord arose for the first time when in August 1964, the Altums refused to permit appellant and her husband to move Lisa to their home in Killeen.

Mr. Altum testified that when school was out in 1961, appellant called from Austin and told him “to come and get Lisa that he and Mrs. Altum went after her; that all her clothes, winter and summer, and her other personal belongings were packed and ready to go. Appellant did not tell the Altums how long she wanted them to keep Lisa. She has been there since.

This evidence and the opinions of the Altums that appellant had abandoned Lisa constitute all the evidence of substance upon which the trial court based his judgment. Considering the relationship of the parties, all the circumstances, and the nature and role of grandparents, it is our opinion that there is no evidence to support a finding that appellant has abandoned her daughter.

“It is well settled that before the drastic remedy of declaring a child dependent and neglected can be applied, the unfitness of the parent or parents should clearly appear from the evidence.” Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, San Antonio, Tex.Civ.App., C.C.A., writ, ref., n. r. e.

In Gaston v. Gaston, 371 S.W.2d 707, Houston, Tex.Civ.App., C.C.A., writ ref., n. r. e., opinion by Chief Justice Bell, the Court considered a case having some similarities to ours. There the trial court set aside jury findings that a child was dependent and neglected and granted judgment to the contrary. The Court of Civil Appeals affirmed and we quote from its opinion:

“What appellants really rely on to show dependency is abandonment. They seek to have this inferred from the fact that appellees did not support the child from 1958 to October, 1961, nor offer to do so, and with the two exceptions above mentioned did not inquire about the child. These facts alone are not determinative. Certainly the undisputed evidence shows that appellants knew when they first got the child in September, 1957, that appellees were in hard circumstances and they wanted to help out. Appellees did not want the child to go but finally consented if appellants would agree to return it upon request. While appellants deny such agreement, they in fact did return the child in December as requested. In January, 1958, when the child was taken with the consent of appellees, though they reluctantly agreed to it, it was again done by appellants to help appellees because of the difficult circumstances. As W. H. Gaston testified on trial, when he took the child it was the doing of a brotherly act. When asked when it ceased to be a brotherly act, he answered it had not ceased to be one.
“Unquestionably the evidence fails to show that appellees abandoned the child and left it to public charity and ceased to be concerned with its welfare. Appellants at all times knew where appellees were. They never called on appellees for any support or sought to return the child. Appellees knew the appellants had a good home; they knew W. H. Gaston had an honorable and responsible position; they knew appellants were taking an income tax deduction that was more advantageous in the light of their relative incomes and number of dependents. Too, Mrs. Miriam Gaston’s illness was of a nature that the passage of time would tell whether a recurrence was likely. John Gaston had a right, under all circumstances, to believe the child was being well cared for by his brother and if the brother felt he should or could no longer care for the child he would get in touch with him.”

The relationship between a grandparent and a grandchild is much closer, and the ties are much stronger, than those existing between an aunt or uncle and a nephew and niece. No grandparent who is worthy of the name would covertly design to claim parental rights over a grandchild. If such a claim is to be made, it should only be after fair and full notice to the parents. They, the parents, should not be lulled into a false sense of security by actions of a grandparent which bespeak love but harbor dissimulation. When the Altums first realized that they could not keep Lisa on a temporary basis, forthrightness demanded that they so inform her mother for then, and only then, could she consciously “abandon” her daughter. “Abandonment” is the intentional relinquishment of a known right. It must be voluntary, absolute, and must amount to a total desertion. 1 Tex. Jur.2d, p. 2, 64 Tex.Jur.2d, p. 1. The evidence to fulfill these requirements is completely lacking.

The Altums have been most generous in helping their former daughter-in-law and in caring for her daughter. They have been imposed upon and used, perhaps abused, but not against their will. They have a deep love for Lisa. They will be hurt when she leaves them. This is the lot of grandparents.

No contention is made that appellant is an unfit person to rear her daughter. She should not be denied this privilege or relieved of its obligation and responsibilities when she is ready and able to assume them.

The judgment of the trial court is reversed and judgment is here rendered denying appellee any relief sought by him in the court below.

Reversed and rendered.

      . Mrs. Lashbrook is indicated when the singular is used.


author: ARCHER, Chief Justice.

text:
    J. S. COCKE et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 11303.
    Court of Civil Appeals of Texas. Austin.
    May 26, 1965.
    McClain & Stump, W. K. McClain, Georgetown, for appellants.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, Stanton Stone, T. B. Wright, Carroll R. Graham, Robert C. Patterson, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

This is a condemnation case. Appellee, plaintiff, below, brought this action against J. S. Cocke and his wife, Mary E. Cocke, to condemn and take the fee simple title, excluding oil, gas and sulphur, to 39.7 acres of land out of a parent tract containing 220.4 acres located on U. S. Highway 81 approximately two and one-half miles north of the center of Georgetown, Williamson County, Texas.

Appellants admitted that appellee had the right to condemn under its petition, that all prerequisites to condemnation had been complied with, that the County Court of Williamson County, Texas, had jurisdiction to try said cause and that the only questions to be resolved at the trial were the fair market value of the property taken and damages, if any, to the remaining land as of September 20, 1962.

The case was tried before a jury and in answer to special issues submitted, the jury found that the market value of the tract condemned was $8,650.00, that the market value of the remaining land immediately before the taking was $49,957.00 and that the market value of the remaining land immediately after the taking was $48,-957.00.

Judgment was entered on the jury verdict on September 1, 1964, and it is from this judgment that appellants have appealed.

The appeal is predicated on six points and are that the trial court erred in permitting witness McKee to testify that a water culvert could be used as a stock pass; in permitting witness Legge to testify as to the use of the remaining land or a portion thereof could be used for business, such as a filling station, motel or shopping center, when the land was part of a farm; in overruling defendants’ motion for a new trial based on jury misconduct, in endeavoring to answer the issues in a manner that would entitle the appellants to only $1,000.00 damages ; in permitting witness Legge to compare this farm land to urban lots, and the sale price of such lots; in overruling a motion for new trial because the verdict of the jury in answer to Issues Nos. 1, 2 and 3 was so contrary to the preponderance of the evidence as to be fundamentally wrong, and in returning a verdict for an amount substantially less than the testimony shows appellant is entitled to.

The appellant did not object to and obtain a ruling from the trial court and waived such concerning the testimony of McKee.

The testimony about wmch appellant complains is as follows:

“Q All right. Now, there was some discussion earlier about — I thought maybe you might clear it up— the significance of this cattle pass that is under the highway; there was some question as to whether or not—
MR. McCLAIN. Now, just a minute. He says this is a cattle pass, but the witness hasn’t said this. For this reason, I say he is leading the witness. I would like him to state what that it down there, what that structure is.
THE COURT: Ail right.
Q Are you familiar with any structure that is under the creek in through there, Mr. McKee?
A Yes, sir; I refer to this as a culvert.
Q What type?
A Let me explain that on the interstate system, we don’t build stock passes, as such. If the design or the hydraulics require a structure large enough that is suitable for a stock pass, and the use of that structure as a stock pass is compatible with the construction and the operation of the facility, there is no objection by the Highway Department in the owner operating that as a stock pass.
MR. McCLAIN: I object to him saying that there is no objection from the Highway Department unless he has authority to speak for the Highway Department. I would object to this unless — do you have the authority to speak?
A I think so, yes, sir.
MR. McCLAIN: All right; okay.” 4 Tex.Jur.2d 377, Sec. 108. Texas Employers’ Insurance Association v. Dennis, Tex.Civ.App., 372 S.W.2d 559, er. ref., n. r. e. Webb v. Mitchell, Tex.Civ.App., 371 S.W.2d 754, n. w. h.

The appellants first introduced testimony concerning the use of stock passes under a highway.

Mr. Cocke was asked on direct examination and answered as follows:

“Q Mr. Cocke, what is your present use of this 25 acres which lies east • of old 81?
A Well, I’ve got an underpass under the present road, and my cattle go back and forth over there and come up here to the house to water.
Q Then let me assume this, Mr. Cocke. In so far as your 25 acres is concerned and your 12 acres is concerned, you will still have the underpass there; do you use that underpass for cattle?
A State that question over.
Q From the 25 acres to old 81 is still in here; that’s right, isn’t it, old—
A Yes.
Q 81 is still there, and your little 12-acre tract is still there on the west side ?
A Uh huh.
Q Now, I am asking you to state to this jury whether or not cattle can still go across here between the 12 acres and 25 acres?
A Yes, between the 12 acres and the 25 acres they can graze all that and then go back and forth under that underpass.”

Appellants are precluded from complaining about testimony which they invited the State to introduce and which they first introduced into the trial. 4 Tex.Jur.2d 279, Sec. 769. Texas Power & Light Company v. Lovinggood, Tex.Civ.App., 389 S.W.2d 712.

There was no testimony that the remainder would be damaged but for a stock pass and no witness testified that the market value of the remainder was reduced in value or damaged because appellants’ farm would be in four tracts after the taking as compared to three tracts before the taking, and there was no evidence upon which the jury could base damages due to the additional tract.

Apparently each value witness for appellants considered elements of damage to the house, and damage because a part of the remainder was left unfenced, and damage because a water gap would be needed on the fence in the Pecan Creek area.

Mr. Wolf fixed the before taking at $72,-120.00 and after taking at $61,840.00 or a difference of $10,280.00 and damages to the house at $5,000.00, refencing $1,500.00 and cost of water gap $200.00, or a total of $6,700.00.

J. S. Cocke fixed the value before taking at $72,120.00 and remainder after taking at $64,143.00 with damages to house, cost of refencing and water gap at a total of $8,000.00. There were two other witnesses who fixed the damages at substantially as did Mr. Wolf and Mr. Cocke.

Mr. Harold Legge, called by the State, testified concerning his experience in the appraisal business qualifying as an expert and listed professional organizations he was a member of, and named them, and of his appraisals in the State of Texas, but did more appraisal work in this area and that such included city property, urban property, from a residence to industrial properties, vacant land, farms and ranches, and was admitted to be an expert by the appellant.

The witness testified that he appraised the farm and ranch belonging to appellants in the early part of 1962, and had an opinion as to the market value of the land and detailed what he did and how he arrived at such value, and described the farm involved herein as to soil and contour and the improvements, and gave the prices paid for lands in the area naming a number of places and the names of the owners and purchasers.

The witness outlined the best usage of the properties in the separate tracts as home sites and other purposes and fixed a value of the three tracts including improvements at $57,000.00 or approximately $260.-00 per acre, that the improvements would contribute about $70.00 an acre and the land at $190.00 per acre, and specifically stated:

“ * * * Therefore, I considered that the entire frontage of this property had value back to a depth of 300 feet. By taking a 300-foot depth — it was my opinion that the influence of the highway extended back not more than 300 feet — and by taking that 300 feet across there and placing a value on the property as a highway frontage, it was my opinion that that had a value of $300 an acre as compared with $150 an acre for the rear land, and it is my opinion that the 25 acres could be sold at that time for $300 an acre at the date of this taking because it is a smaller tract and could be sold for a smaller use; and then the improvements, I estimate, contributed about $70 an acre, and that is on the basis of estimated value of the house and the improvements and so on. Now, the improvements, the outbuildings here and the fences, are usually considered in with the land, because all your comparables have the same improvements, and there is no need to make an adjustment for that. But for a home use value, I put $70 an acre over-all on the whole tract, and on that basis my total value was $57,000, including improvements.
Q All right, sir. Now, directing your attention to the part that was taken on September 20, 1962, what is your opinion of the value of the part, 39.7 acres, taken, considered as severed land?
A Well, the portion — now, we have got to turn this map again. (Does so). Now, if you take the portion of land back to the point that I am pointing to here, which is the — at the end of the 12.4 acres— well, since we turned this upside down here, I am a little mixed-up here, but the land beginning at the north point of this 12.4 acres and extending out to the north end of this property consists of approximately 2700 lineal feet of highway frontage; and considering that on the basis of the area in there at $300 an acre, although it is a little deeper in one place and a little shallower here, that figuring that on the basis of $300 an acre and then considering the remainder strip comparable to that rear land at $150 an acres, the total value, then, would be $8400 for the land taken, and there was a little building in there that I allowed $250 for, which makes a total of $8650 for the part taken.”

Further testimony was:

“ MR. McCLAIN: $48,400?
A $48,350, which is just simply the difference in the 57,000 and the 8650 for the part taken. If you add the 8650 and the 48,350, you are back to the 57,000, the original price.
Q (By Mr. Patterson) Now, directing your attention to the remainder of Mr. Cocke’s property just after the taking, and excluding any community benefits or damages, but including any specific benefits or damages, could you appraise — but then in addition, considering the use to which the part taken is to be put, did you appraise the remainder in this manner?
A Yes, sir.
Q All right, sir. Did you find that there were any specific damages to Mr. Cocke’s remainder?
A Yes, sir.
Q What were they?
A I considered that the — although we are talking about this being available for sale for other uses, small tracts, still, until — in the interim until that is done, it is still going to be used as a stock farm and there are fences, there are field fences around that perimeter of this tract. After they have built the highway — now, I am assuming that the highway is then in there; so I considered that anybody buying a piece of land with fences on three sides would consider in his mind that he is going to have to put a fence across there to enclose that, whether it is temporary use, or farming, or whatever it is, I think it would be done. There is a little question there as to what the cost of that would be because of this creek down here, that there would probably be a little water gap down there. Actually, taking this as about 4200 feet of fence being required across this point, the main part here across from the house there in that area, I think that you could build a field fence —that is a five-barb fence; that is, anything that would be comparable to what was there — at about sixteen cents a foot, or build the kind of fence that was actually built there, would probably be about twenty cents a foot. But in any event, I think that a thousand dollars would be a maximum to replace the fence in this area and the fence that would be needed over here. Now, there was already a fence along this area on this twelve — west side of that 12.4-acre tract except this little strip; there had to be some addition made there of fence. Of course, this over here would not be affected in any way, but I think that was specific damages to the property caused by the building of the highway. That is the only specific damage, now, that I considered.”

The witness on direct and on cross-exan. ination gave extensive testimony as to how he arrived at the values he gave and as to the values of other properties in the general areas that he used for comparison.

The case was submitted to the jury on Special Issues.

In answer to Special Issue No. 1 the jury found that the market value of 39.7 acres of land, with all improvements thereon, considered as severed land immediately before the taking of such land was $8,650.00, and in answer to Special Issue No. 2 the jury found that the market value of the 180.31 acres of land immediately before the 39.7 acres was taken was $49,957.00, and in answer to Special Issue No. 3 the jury found that the market value of the 180.31 acres immediately after the taking of the 39.7 acres was $48,957.00.

Based on the verdict of the jury the court entered judgment for the sum of $9,650.00 and that pursuant to an award of Special Commissioners of $9,775.00 in condemnation, such was deposited in the registry of the court and had been withdrawn by appellants and that the jury verdict being for $125.00 less than the amount withdrawn the plaintiff should pay the State the sum of $125.00 with interest at the rate of 6%, and the State was awarded fee simple title to the 39.700 acres of land, excluding all oil, gas and sulphur which can he removed.

The jury heard all of the testimony in the case and was at liberty to consider same and was not bound to accept such in exact accord, but could consider and resolve the facts as it found the facts to be, and we believe correctly.

Appellants’ third point is founded on alleged jury misconduct in agreeing upon the amount of money they wanted to award plaintiffs and then deliberately endeavored to answer Special Issue No. 3 that would entitle the plaintiffs to only $1,000.00 damages.

This issue inquired as to the market value of the 180.31 acres after the taking of the 39.7 acres.

The evidence was conflicting as to the decrease in value of the remainder of the farm. Appellants’ witnesses testified that it had decreased in value in amounts from $7,900.00 to $10,280.00. The witness testified that there was a net enhancement of $25,350.00, being the difference in after value of $73,700.00 and the before value of $45,350.00.

Mr. Legge testified that there was a specific damage because one side was left unfenced, that $1,000.00 would be the maximum cost.

The finding of the jury of $1,000.00 damages was within the range of the testimony and is therefore supported by evidence. State v. Haire, Tex.Civ.App., 334 S.W.2d 488, er. ref., n. r. e. Dyer v. State, Tex.Civ.App., 388 S.W.2d 226, n. w. h.

Finding no reversible error the judgment of the trial court is affirmed.

Affirmed.