author: DUNAGAN, Chief Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. Buford FARLEY, Appellee.
    No. 235.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 10, 1966.

      Larry W. Starr, Houston, Kenley, Boy-land & Hawthorn, Longview, for appellant.
    Ken McConnico, Gordon Wellborn and Rex Houston, Henderson, for appellee.
   DUNAGAN, Chief Justice.

This is a workmen’s compensation suit. The appellee, Buford Farley, plaintiff in the trial court, brought this suit against Trinity Universal Insurance Company, appellant, defendant in the court below for injuries sustained by the appellee while working for Smith Chevrolet Company, Henderson, Texas. A trial before the jury resulted in a finding awarding total and permanent benefits and $645.00 in medical benefits. The appellant, Trinity Universal Insurance Company, has appealed.

The appellant has brought forward eight points in which it complains the trial court committed error. Appellant in its first six points contends that the trial court erred in rendering judgment based on the jury’s answers to Special Issues Nos. 6 and 8 for the following reasons: (1) that there is no evidence; (2) that the evidence is insufficient; (3) and that the jury’s findings to said issues are contrary to the overwhelming weight and preponderance of the evidence.

Special Issues Nos. 6 and 8 and the jury’s answers thereto are as follows:

“SPECIAL ISSUE NO. 6
“Do you find from a preponderance of the evidence that such total incapacity, if any, was or is permanent or temporary?
“Answer ‘Permanent’ or ‘Temporary’
“ANSWER: ‘Permanent’”
“SPECIAL ISSUE NO. 8
“Do you find from a preponderance of the evidence that Mr. Farley’s incapacity, if any, was or is partial for any length of time?
“Answer ‘Yes’ or ‘No’
“ANSWER: ‘No’”

The appellee presented the testimony of five lay witnesses who fully testified as to the injury and the extent thereof received by the appellee, which testimony was favorable to his claim of permanent total disability.

In addition to the lay testimony the ap-pellee also presented medical testimony of Doctors James Mann and Hascall H. Muntz to support his allegations of injury, the nature and extent thereof.

Dr. Mann, who had been appellee’s family doctor for about eight years, to whom the appellee immediately went after the injury and who thereafter continued to treat him for said injury, and Dr. Hascall H. Muntz, to whom the patient was referred by Dr. Mann, and who first saw him on April 27, 1965, both testified that the appellee is totally and permanently disabled. Their conclusions are predicated not on mere speculation, but on the extensive clinical findings and observations and on the fact that the appellee tried to return to his old job and could not do the work and that several months later attempted to work for an insurance company as a collection agent and likewise could not do the required amount of work. Predicated upon reasonable medical probability, Dr. Mann and Dr. Muntz also testified that the appellee was so disabled for life. It would serve no useful purpose to lengthen this opinion by detailing the testimony of these witnesses and the other evidence relied upon to support the findings of the jury to the Special Issues in question.

It suffices to say that consideration of appellant’s points has required us to examine the entire statement of facts and we have so conducted our examination of the record in the light of the rules announced by the Supreme Court in In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In determining the “no evidence” question, which is one of law, we may consider only that evidence, if any, which viewed in its most favorable light, supports the jury findings and we must disregard all evidence which would lead to a contrary result. Thomas v. Magnolia Chemical Company of Texas, Inc., 394 S.W.2d 50, (Tex.Civ.App.) 1965, writ ref., n. r. e.; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, (S.Ct.) 1957; and Dillard v. Griffin, Tex.Civ.App., 341 S.W.2d 696, writ ref., n. r. e. In determining the “insufficient evidence” question, which is one of fact, we consider and weigh all the evidence in the case to determine whether the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. We deem the evidence to be ample to support the jury’s findings to Special Issues Nos. 6 and 8, and that none of the answers made by the jury in response to said issues are so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust. See Adams v. Houston Belt & Terminal Railway Company, 405 S.W.2d 838, 843, (Tex.Civ.App.) 1966, n. w. h. Appellant’s points 1 through 6 are overruled.

There seems to be no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury that caused permanent total disability. The rule seems to be that where it can reasonably be inferred from the evidence that the plaintiff’s injuries are permanent and totally disable him from performing his usual tasks as a workman in such a way as to enable him to procure and retain employment, a verdict in his favor on the issue of total permanent incapacity will be affirmed. Traders & General Ins. Co. v. Daniel, (Tex.Civ.App.) 131 S.W.2d 276, dism., judg. cor.; Texas Employers Insurance Ass’n v. Smith, 374 S.W.2d 287, (Tex.Civ.App.) 1964, n. w. h.; Connecticut Indemnity Company v. Henson, Tex. Civ. App., 388 S.W.2d 300, n. w. h.

The duration and extent of disability resulting from an injury is at best an estimate which must be determined by a jury from all the pertinent facts before it. Texas Employers Insurance Ass’n v. Smith, supra; Angelina Casualty Company v. Spencer, 310 S.W.2d 682, (Tex.Civ.App.) 1958, writ ref., n. r. e. Other cases which we think support our holding are: Export Insurance Company v. Johnson, 401 S.W.2d 324, (Tex.Civ.App.) 1966, writ ref., n. r. e.; Davies v. Texas Employers’ Ins. Ass’n, 29 S.W.2d 987, (Tex.Com.App.) 1930.

Appellant by its seventh point of error contends that: “The trial court erred in entering judgment for plaintiff for doctor’s expenses and hospital expenses in the sum of Six Hundred and Forty-Five Dollars because there is no evidence that plaintiff ever requested defendant to furnish plaintiff with any such treatment or services, nor is there any evidence that defendant ever refused, failed or neglected to furnish plaintiff with any medical treatment or hospitalization.”

Dr. Mann’s charges for services for treating the appellee from the date of the injury, June 2, 1964, until May 1, 1965, was $445.00 and this bill was paid by • the appellant, Trinity Universal Insurance Company. However, as we understand the record, Dr. Mann’s charges for services subsequent to May 1, 1965, in the sum of $58.00, Dr. Muntz’s charges for his services since June 2, 1964, in the sum of $408.00 and the charge of $179.00 for the second period of hospitalization was not paid by the appellant.

In response to Special Issues Nos. 16, 18, 19, 21, 22 and 24, the jury found the medical expenses and hospital charges that are in dispute here to be reasonable charges; and said charges to be reasonably required to relieve appellee from the injury on the date alleged. The jury also found in response to Special Issues 17, 20 and 23 that appellant failed to furnish the charges for which such expenses were charged. In summary, the jury’s findings are that the medical and hospital expenses in the sum of $645.00, being the sum in dispute, were reasonable and necessary and that the defendant failed to furnish such services.

The appellant makes no contention that the services rendered to the appellee, for which the total charge therefor amounted to the sum of $645.00 in dispute here, were not necessary or reasonable nor were reasonably required to relieve the appellee from any of the effects naturally resulting from the injury. It seems to be undisputed that appellant was duly notified of the injury complained of. As we understand appellant’s position, its sole contention is because it was not shown that appellee at any time requested the appellant to furnish him with such treatment or services, nor that it ever refused, failed or neglected to furnish appellee with any medical treatment or hospitalization, that appellee is precluded from recovery for such medical services and the trial court erred in rendering judgment therefor.

Article 8306, Sec. 7, as amended in 1957, provides in part that:

“If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association.”

In the case of Travelers Insurance Company v. Hernandez, (5th Cir.) 1960, 276 F.2d 267, in construing Section 7 of Article 8306 of the Texas Workmen’s Compensation Act, the court said:

“ * * * The fact that no express demand was made upon the carrier to furnish additional medical services does not preclude recovery here. For, upon sufficient evidence, the jury found that such expenses were reasonable and were needed by the plaintiff for proper diagnosis and treatment, and the court, which had reserved the right to determine whether they were recoverable, determined that they were.”

We think this case is controlling on this point. See also: United States Fidelity and Guaranty Company v. Camp, Tex.Civ.App., 367 S.W.2d 952, 1963, writ ref., n. r. e.

We do not understand that Section 7 of Article 8306 of V.A.C.S. precludes recovery here under the facts because appellant was not requested to furnish such medical care. We think that the provisions of Section 7 and the decision construing it clearly shows that the intent of the law is that the carrier has the responsibility of furnishing all reasonable and necessary medical care for any compensable injury under the Texas Workmen’s Compensation law after proper notice thereof has been given. Appellant’s point No. 7 is overruled.

Appellant next contends by its remaining point that:

“The trial court erred in overruling paragraph four of defendant’s objections and exceptions to the court’s charge, which objection was:
“ ‘Defendant objects to Special Issue No. 6, wherein the court inquires if the plaintiff’s total incapacity was, or is, permanent or temporary, because in placing the term “permanent” and the term “temporary” in the same special issue and submitting such terms and inquiries in the disjunctive, the court is placing as much burden on the defendant to establish by a preponderance of the evidence that the plaintiff’s incapacity is not permanent but temporary as it places on the plaintiff to establish that it is not temporary but permanent.’ ”

We feel that the contention under its third point has been decided adversely to appellant in Texas Employers’ Ins. Ass’n. v. Tate, 214 S.W.2d 877, (Tex.Civ.App.) 1948, n. w. h., wherein the court stated:

“Submission of the issue of permanent or temporary disability in one question seems clearly authorized by that part of Rule 277, Texas Rules of Civil Procedure, which reads as follows: ‘ * * * the court may submit disjunctively in the same question two inconsistent issues where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. For example, the court may, in a workmen’s compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled.’ * * * We can find no error in the fact that the issues of permanent and temporary disability were submitted disjunctively in the same question, nor can we find any error, either under the present rules or under any decision under the former statutes, in submitting both inquiries conditionally on an affirmative answer to issue No. 5. * * *”

A special issue in the same or substantially the same form as the one in question here has been approved in this state by numerous cases, only a few of which we will cite: Texas Employers’ Ins. Ass’n. v. Pillow, 268 S.W.2d 716, (Tex.Civ.App.) 1954, writ ref., n. r. e.; Texas Employers’ Ins. Ass’n. v. Foreman, 236 S.W.2d 824, (Tex.Civ.App.) 1951. In the Foreman case the Supreme Court, 150 Tex. 468, 241 S.W.2d 977, in reversing the judgment of the Court of Civil Appeals on other grounds, expressly agreed with the approval of the Court of Civil Appeals of a special issue substantially in the same form as the one in question before us. This point is overruled.

By cross point appellee, Buford Farley, seeks to invoke Rule 438, Texas Rules of Civil Procedure, which provides that where the court finds an appeal to have been taken by a defendant for delay and that there was no sufficient cause for taking the appeal, such appellant shall pay ten per cent of the amount in dispute as damages. We have examined the record, and while, in our opinion, none of appellant’s assignments of error should be sustained, we cannot say that the points presented are so clearly without merit as to justify the conclusion that the appeal was not taken in good faith, but solely for the purpose of delaying the execution of the judgment of the court below. The right to appeal is a most sacred and valuable one and unless the record on appeal is such as to justify the conclusion that the appellant, at the time his appeal was perfected, had no reasonable ground to believe that the judgment should be reversed, he should not be penalized for availing himself of the right of appeal. We believe it-would be a reasonable assumption to say that the appeal was taken upon advice of appellant’s counsel. To say under this record that counsel did not have sufficient cause to take an appeal would be to deny its right to look at the case from the standpoint of an advocate. The points presented and the manner in which they are briefed indicate that the appeal was brought in good faith. In our opinion, some of the matters urged by appellant in this appeal are not so trivial and obviously devoid of merit as to warrant the conclusion that the appeal was not prosecuted in the hope of reversing the judgment, but frivolously perfected solely for the purpose of delay. The cross point is overruled. Jackson v. Hexter, 372 S.W.2d 570, (Tex.Civ.App.) 1963, n. w. h.; Ollok v. United Heat Treating Company, 318 S.W.2d 785, (Tex.Civ.App.) 1958, n. w. h.; Travelers Insurance Company v. Beisel, 382 S.W.2d 515, (Tex.Civ. App.) 1964, n. w. h.; Ferguson v. Chapman, 94 S.W.2d 593, (Tex.Civ.App.) 1936, writ dism.; Traders & General Ins. Co. v. Batson, 253 S.W.2d 488, (Tex.Civ.App.) 1952, writ ref., n. r. e.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Mrs. Ozella HAMILTON et al., Appellants, v. BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF TEXARKANA, Texas, Appellees.
    No. 7754.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 8, 1966.
    Rehearing Denied Nov. 29, 1966.

      Friberg & Parish, Wichita Falls, Atch-ley, Russell, Hutchinson & Waldrop, Texar-kana, for appellants.
    Sidney Lee, Texarkana, for appellees.
   DAVIS, Justice.

W. T. Hamilton, who had been previously employed by the Cities of Harlingen and Wichita Falls, Texas, as a fireman, and who had been given a 20 year Service Certificate as the result of having been a fireman in the two cities for 20 years, was employed by the City Manager of the City of Texarkana, Texas, on September 22, 1961, as the Fire Chief. Hamilton was 51 years old at that time. The Service Certificate, under Sec. 14, Art. 6243e, Vernon’s Ann.Rev.Civ.St., showed that Hamilton was qualified and entitled to retire at the age of 55 years.

The Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana, Texas, hereinafter referred to as the Board, refused to accept Hamilton as a participating member of the Firemen’s Relief and Retirement Fund of Texarkana, Texas, until Hamilton had been examined by a physician for the purpose of showing whether or not Hamilton was in sound health. Sec. 10, Art. 6243e, V.R.C.S. On December 11, 1961, Hamilton delivered to Mrs. Helen Talbert his personal check for the sum of $75.90. This check was sufficient to cover 6% of Hamilton’s salary from September 22, 1961, until December 1, 1961. Mrs. Talbert notified the Board about the check at a meeting held on January 11, 1962. The Board refused to accept the check because they required Hamilton to take a physical examination. Mrs. Talbert was instructed not to accept the $75.90 check, and not to cash it.

On February 10, 1962, Hamilton suffered an attack of acute heart failure which required 4 days hospitalization. On June 1, 1962, Hamilton suffered a coronary occlusion while waiting for some friends at a filling station in Texarkana and died instantly. Hamilton never did comply with the requirements of Board’s Trustees nor the provisions of Sec. 10B, Art. 6243e, V.R.C.S.

Ozella Hamilton, individually and as next friend of a minor daughter, Rosemary Hamilton, timely applied for the allowance of a widow’s and minor child’s pension as provided by Art. 6243e, V.R.C.S. The Board refused the application because Hamilton had failed and refused to submit to a physical examination.

Mrs. Hamilton appealed from the order of the Board to the Firemen’s Pension Commissioner who ruled that Mrs. Hamilton and minor daughter were entitled to pension benefits under Art. 6243e, Supra.

Within 20 days after the ruling of the Firemen’s Pension Commissioner, the Board filed a suit in the District Court of Travis County, contending that the decision of the Firemen’s Pension Commissioner was void because said commissioner had no power nor jurisdiction to render such decision or order, and had no power to entertain the appeal from the Board’s refusal to grant them a pension.

The District Court and the Court of Civil Appeals, with one dissenting opinion, Board of Firemen’s Relief and Retirement Fund, ■ Trustees v. Hamilton et al., 1964, Tex.Civ.App., 378 S.W.2d 361, affirmed the decision and order of the Firemen’s Pension Commissioner. The Supreme Court granted a writ of error (1965), 386 S.W.2d 754, and reversed the decision and order holding that the statute fails to provide for an administrative appeal in the situation; citing Hall v. Board of Firemen’s Relief, etc., Tex.Civ.App., 1961, 351 S.W.2d 342, N.W.H.

The case was remanded to the District Court. The Board filed a motion to take a non-suit. Mrs. Hamilton and daughter, hereinafter referred to as appellants, filed an amended pleading and cross-action on March 22, 1965. In this amended pleading and cross-action, appellants, for the first time, sought affirmative relief from the Board’s decision denying appellants’ pension benefits. The cross-action was filed more than 2 years after the Board’s denial of pension benefits. The Board filed a plea of privilege seeking to have the venue changed from Travis County to Bowie County as a result of the cross-action being filed in which the appellants sought affirmative relief. The District Court of Travis County granted the Board’s motion to take a non-suit and sustained its plea of privilege. The Board also filed special exceptions and an answer to the cross-action, subject to their plea of privilege, in which they pled the two year statute of limitation.

After the case was transferred to the District Court of Bowie County, the Board, hereinafter referred to as appellee, filed a motion for summary judgment. The District Court granted the motion for summary judgment and appellants have perfected their appeal and bring forward only one point of error.

The point of error brought forward by appellants reads as follows:

“The error of the Court in sustaining the Appellee’s Motion for Summary Judgment and entering a ‘take nothing’ Judgment herein.”

By carefully studying the appellants’ brief, it seems that they take the position that there were material issues of fact raised by the pleadings, affidavit, and depositions, and that appellee was estopped to deny its liability because the City Treasurer had deducted money from W. T. Hamilton’s salary and had deposited the same with the Pension Fund of the Board of Firemen’s Relief and Retirement Fund of Texarkana, Texas. It is an admitted fact that the appellee never had accepted W. T. Hamilton as a member of the Board of Firemen’s Relief and Retirement Fund because of his failure and refusal to take a physical examination. A physical examination by a physician of any fireman seeking to become a member of the Pension Fund is one of the prerequisites which the trustees can and may require. This they did and Hamilton never became a member. The last paragraph of Sec. 10B of Art. 6243e, supra, reads as follows:

“Any fireman who is a member of a department which had an existing Firemen’s Relief and Retirement Fund prior to the effective date of this amending Act and who has elected and does elect not to participate in such Fund, shall not be liable for any salary deduction provided by this Act; but each person who shall hereafter join a fully paid fire department which then has a Relief and Retirement Fund shall file a statement in writing, in the manner hereinabove provided by this section, upon joining such department and shall thereafter participate in the contributions to and benefits from such Fund, as provided by this Act, unless such new firemen shall he rejected or excused therefrom by the Board of Trustees upon a determination by the Board that such person is not of sound health. Boards of Firemen's Relief and Retirement Fund Trustees are hereby au-thorised to require complete or partial physical examinations of any person joining a fire department and filing the statement hereinabove required. The applicant shall pay the cost of any physical examination or examinations so required. If a Board of Trustees determines that an applicant is not of sound health, such Board shall reject the filed statement of such person and shall deny such person participation in the fund.” (Emphasis added.)

This is actually an administrative proceeding that originated before the ap-pellee. It is governed by the substantial evidence rule. For a definition of “substantial evidence” see 4 Davis, Administrative Law Treaties 118, Sec. 29.02, and the authorities cited therein. Under an administrative decision, the aggrieved party is not entitled to a trial de novo in a court of competent jurisdiction, but must assume the burden of satisfying the court that the administrative decision is illegal, arbitrary or capricious; that is, that it is not reasonably supported by substantial evidence. Board of Firemen’s Relief, etc. v. Marks (1951) 150 Tex. 433, 242 S.W.2d 181; Gulf Land Company v. Atlantic Refining Company (1939) 134 Tex. 59, 131 S.W.2d 73; Fire Department of City of Fort Worth v. City of Fort Worth (1949) 147 Tex. 505, 217 S.W.2d 664. It seems that the decision of the appellee is supported by substantial evidence. There was no pleading, or showing, in the district court that the administrative decision is not supported by substantial evidence.

The only question we must decide is whether or not the substantial evidence offered before the appellee reasonably supports the administrative decision. This is a question of law. Brenner v. Daly (Tex.Civ.App.1960) 337 S.W.2d 226, W.R., N.R.E., and the authorities therein cited.

In the event we are in error in the foregoing opinion, we have decided that the appellants’ cause of action is barred by the two year statute of limitation. Therefore, the trial court did not err in granting appellee’s motion for summary judgment. Appellants appealed from the administrative decision denying them a pension to the Firemen’s Pension Commissioner, who had no jurisdiction in the cause whatever. W. T. Hamilton died on June 1, 1962. On August 2, 1962, appellee denied appellants’ claim for pension benefits. Appellants did not seek any affirmative relief whatever in a court of competent jurisdiction until they filed their cross-action on March 22, 1965. Before filing the cross-action, appellants applied to the district court for leave to file it “in the nature of an original cause of action”. The filing of the cross-action, in which the appellants for the first time sought affirmative relief against the appellee, was filed more than 2 years and 7 months after the appellee refused appellants’ application for pension benefits. The pension benefits herein applied for is an obligation which is imposed by statute. Art. 6243e, supra. Obligations granted by statute are subject to bar by the two year statute of limitation. Green v. Wilkinson (5th Cir.Ct. of App. 1956) 234 F.2d 120; Cowart v. Russell (Tex.Com.App. 1940) 135 Tex. 562, 144 S.W.2d 249; Hodges v. Price (Tex.Civ.App.1942) 163 S.W.2d 868, W.R., W.M.; Payne v. City of Tyler (Tex.Civ.App.1964) 379 S.W.2d 373 W.R., N.R.E.; Tex., 383 S.W.2d 804; Brady v. City of San Antonio (Tex.Civ.App. 1958) 313 S.W.2d 355, W.R., N.R.E., 159 Tex. 42, 315 S.W.2d 597. The appellants’ cross-action was not filed within two years after the date the appellee denied their application for benefits, and it is barred by Sec. 4 of Art. 5526, V.R.C.S. The point of error is overruled.

Judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Albert SMITH, Appellant, v. Larry Lon PAINTER et ux., Appellees.
    No. 4115.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1966.
    Rehearing Denied Nov. 25, 1966.
    Clayton, Kolander, Moser & Templeton, J. M. Kolander, Amarillo, Crenshaw, Du-pree & Milam, Lubbock, for appellant.
    Miller, Sanders & Baker, Oth Miller, Amarillo, for appellees.
   WALTER, Justice.

To the marriage union of Larry Lon Painter and Patricia Ann Painter was born a male child, Larry Lynn Painter. Mrs. Painter died. Mr. Painter married Cora Painter and she adopted the five year old child, Larry Lynn. Albert Smith, the father of the deceased mother of Larry Lynn, filed this suit for a mandatory injunction ordering the defendants to permit Larry Lynn to communicate with and visit him at reasonable times and places and asking that the defendants be enjoined from interfering, prohibiting or preventing communications and visitations between Larry Lynn and his grandfather.

The court granted the defendants’ motion for a summary judgment and the plaintiff has appealed. His points are as follows:

“FIRST POINT
The Trial Court erred in holding that there was no evidence to go to a jury that it was to Larry’s welfare and best interests that he be permitted to continue his visits and his natural relationship with his grandfather.
SECOND POINT
The Trial Court erred in holding, if he did, that the record conclusively discloses that it is to the welfare and best interest of Larry that he not be permitted to visit or continue his natural relationship with his grandfather.
THIRD POINT
The Trial Court erred in holding, if he did, that the court did not have jurisdiction of the present suit.”

Appellant pleaded that the appellees had refused to allow him to communicate or visit with his grandchild, Larry, and thereby deprived him and his grandchild of their civil rights guaranteed by the Constitution of the United States.

In support of his motion for a summary judgment, the appellee filed an affidavit which, among other things, contained the following:

“Since this adoption was final we have refused to permit the Plaintiff ALBERT SMITH to visit with LARRY LYNN PAINTER, for the reason that his conduct toward LARRY LYNN PAINTER Has created grave disciplinary problems with the child and for the further reasons that it interrupted the family harmony of our other two children which in turn was affecting my present marriage union and prevented a wholesome atmosphere for myself, my wife and our three children.”

This is not a child custody case. It involves the legal right, if any, of the grandfather to visit and communicate with his grandchild. No Texas case has been cited and we have failed to find one which controls the disposition of this case. There is nothing in this case which indicates that the child is not being properly cared for by his parents.

“The parents, either or both of them, must provide, care for, protect, and nurture their offspring to the best of their ability, ' and along the lines that will be to the child’s interest physically, mentally, and morally. This is a legal duty as well as a moral or natural obligation, and it cannot be transferred to a third person except as authorized by law.” 44 Tex.Jur.2d, page 66, Section 43.

We consider Succession of Reiss, 46 La.Ann. 347, 15 So. 151, 25 L.R.A. 798, by the Supreme Court of Louisiana to be sound in principle. The court said:

“Without doubt it is desirable that the ties of affection that nature creates between the ascendants and their grandchildren be strengthened and unceasing, but, if there is a conflict, the father alone or the mother should be the judge. The law gives no right of action to the grandparents. The father may have good reasons to avoid all contact between his children and their grandparents, — either that he fears that they may inculcate bad principles, or that they will unsettle the respect and affection due him. He owes no account to any one for his motives. They may be so intimate that the honor of the family requires that they shall remain a secret. Shall we say that the judge shall be the arbitrator between the grandparent and the father? The court of Bordeaux replies that the intervention of the tribunals would, as a consequence, render -the dissensions of the family more pronounced by delivering them to the public.” * * *
“The ties of nature will prove more efficacious in restoring kindly family relations than the coercive measures which must follow judicial intervention.”

Based on the rationale of the above authorities, we overrule appellant’s points and affirm the judgment.


author: ARCHER, Chief Justice.

text:
    CONTINENTAL LEASING CORPORATION, Appellant, v. The STATE of Texas, Appellee.
    No. 11433.
    Court of Civil Appeals of Texas. Austin.
    Nov. 16, 1966.
    Rehearing Denied Dec. 6, 1966.

      Locke, Purnell, Boren, Laney & Neely, John D. Crawford and J. L. Shook, Daugherty, Bruner & Lastelick, Jerry Lastelick, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, 1st Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., H. Grady Chandler, Marietta McGregor Payne, Mario Obledo, Terry Reed Goodman, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

This is a venue suit. The State of Texas, acting by and through Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, brought suit against the defendants, U. S. Equipment Corporation and Earl W. Nunnally, for the purpose of collecting a debt for tax, penalty and interest owing to the State of Texas and joined in the appellant, alleging that it had acquired property from U. S. Equipment Corporation and Earl W. Nunnally by a purchase transaction and that appellant’s claim of right, title or interest in or to said property is subordinate to the State’s lien alleged to be first and prior to any and all liens or contracts, statutory, legal or equitable, regardless of the time such liens originated by virtue of the provisions of Articles 1.07, 1.07A and 1.07B, Chapter 1, Title 122A, Taxation-General, Revised Civil Statutes, V.A. T.S., as amended. Appellant’s amended plea of privilege which specifically pointed out to the trial court the unconstitutionality of the articles upon which the State relied was overruled and appellant has duly, timely and properly perfected its appeal.

The appeal is predicated on two points and are as follows:

“First Point: The trial court erred in overruling appellant’s plea of privilege for the reason that Article 20.09(G), Chapter 20, Title 122A, R.C.S., Acts of the 58th Legislature, Chap. 138, p. 371, H.B. No. 106, and the Act which it amended viz. Acts of the 57th Legislature, 1st Called Session, Chap. 24, p. 71, H.B. No. 20, and Article 1.04, Chap. I, Title 122A, Acts of the 56th Legislature, Third Called Session, Chap. 1, p. 187, H.B. No. 11 are unconstitutional in that the captions thereof fail to contain any reference to venue in Travis County or anywhere else and such failure to contain such reference of fixing venue in Travis County, Texas, in said captions is in violation of Art. 3, Sec. 35 of the Constitution of the State of Texas. Second Point: The trial court erred in overruling appellant’s plea of privilege for the reason that Article 1.07, Title 122A, Taxation-General, R.C.S., Acts of the 57th Legislature, First Called Session [Regular Session], 1961, Chapter 104, p. 201, H.B. No. 104 [122] is unconstitutional as to all provisions dealing with ‘liens’ on personal property because the caption thereof contains no reference to liens on personal property or the method of creating liens on personal property, or the sequence, priority or any other reference to liens on personal property, and such failure to contain such reference of creating a preferred lien on personal property in favor of the State was in violation of Article III, Section 35 of the Constitution of the State of Texas.”

Appellant raised the unconstitutionality of the various statutes involved in its amended plea of privilege.

Appellee takes the position that the question of the constitutionality of the lien established by the Acts could not be determined on a plea of privilege hearing, and that after the proper venue has been ascertained, a trial will determine the issue of the constitutionality of the lien on the trial on the merits.

The want of jurisdiction of the trial court is not to be considered in a plea of privilege hearing.

Downing v. Slattery, Tex.Civ.App., 144 S.W.2d 371, error dism.

Magnolia Petroleum Co. v. State, Tex.Civ.App., 190 S.W.2d 581, n. w. h.

We believe that the trial court properly overruled appellant’s plea of privilege and that the captions of H.B. 106, Acts of the 58th Legislature, Regular Session 1963; and H.B. No. 20, Acts of the 57th Legislature, First Called Session 1961; and H.B. No. 11, Acts of the 56th Legislature, Third Called Session 1959, complied with the provisions of Article III, Section 35, of the Vernon’s Ann.St. Texas Constitution and gave sufficient notice that the venue of the tax suits provided for therein is in Travis County.

Article 1.04, Chapter 1, Title 122A, Taxation-General, R.C.S., provides, without copying in full, that all taxes except ad valorem, shall be recovered by the Attorney General in a suit brought by him in the name of the State of Texas,— venue — of all suits — is conferred upon the courts of Travis County.

This Article was enacted as a part of H.B. 11, p. 187, Acts of the 56th Legislature, Third Called Session, 1959. The caption reads, in part:

“An Act revising and rearranging certain Statutes of Title 122 * * *; providing procedures for the administration and enforcement of such taxes and penalties for violations thereof; * * * providing for rules and regulations for administration; * * *"

Article 20.09(G) (1) Chapter 20, Title 122A, Taxation-General, Revised Civil Statutes of Texas, reads in part as follows:

“(G) Judgment for Taxes.
(1) Comptroller May Sue. * * * in a court of competent jurisdiction in Travis County, Texas, * * * ”

This Article was enacted as a part of H.B. No. 20, Chapter 24, p. 71, Acts of the 57th Legislature, First Called Session, 1961, the caption to which bill reads in part as follows:

“An Act to raise revenue * * * so as to impose a limited sales, * * * providing for the administration and enforcement of such tax * * * ”

The language of 20.09(G) (1) remained unchanged when the Legislature amended the Limited Sales, Excise and Use Tax Act by H.B. No. 106, Chapter 138, p. 371, Acts of the 58th Legislature, Regular Session 1963.

The generally accepted rules applicable to the sufficiency of title are stated in 53 Tex.Jur.2d 93-98, Statutes, Sec. 52, in the following language:

“Sec. 52. In general.

Under the constitutional provision that the one subject of a bill shall be expressed in its title, it is apparent that a title should express only one subject. But a title that indicates the general subject of an act and also refers to incidental matters properly contained in the law is not objectionable as containing more than one subject. Nor is a title that is essentially single in subject objectionable if it does not conceal or disguise the real purpose of the act, though the ends intended to be reached through the subject may be many.
As regards its sufficiency, the title of a statute should be such as to give fair indication and reasonable notice of the object, purpose, scope, and subject matter of the law, so as to prevent the mischiefs against which the constitution seeks to guard.
A title is sufficient to authorize the inclusion in the body of the act of any provision within its scope when the main subject or ultimate object of the act is clearly, definitely, fairly and fully, expressed, that is, expressed as well as can reasonably be expected in a brief and general statement. If the general and ultimate subject of an act, as a whole, is to be found within the wording of the title, it will support not only provisions that are components of the general subject, but also those that are reasonably connected, germane, incidental, and relevant to that subj ect.”

In Central Education Agency v. Independent School District, 152 Tex. 56, 254 S.W.2d 357 (1953), wherein the Supreme Court stated at page 361:

“ ‘The rule is universal that the courts will not declare an act of the Legislature unconstitutional, unless such infirmity and vice clearly appears. Indeed this rule is necessary, and evidences that respectful regard in which the judicial should hold the legislative department of our government’. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 277, 151 A.L.R. 1217; Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880; Cooley on Const. Lim., 8th Ed., pp. 371, 372; Smith v. Patterson, 111 Tex. 535, 242 S.W. 749, 750.
‘In order to strike down any provision of this Act the court must be able to point to some specific section of the Constitution which condemns it. The principle is so well established as to call for the citation of no authority that any bill not clearly inhibited by the State Constitution or the higher law of the Federal Constitution may be enacted into valid law by the Legislature’. Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 645(5).”

Continental Bus System, Inc. v. Carney, Tex.Civ.App., 310 S.W.2d 676, error ref.

Appellant cites in support of its assertion that the captions are insufficient in this case. Gulf Ins. Co. v. James, 143 Tex. 424, 185 S.W.2d 966.

The caption of Article 1.04 and the captions of the Limited Sales, Excise and Use Tax Act will reveal statements broad enough to sufficiently embrace venue and not contravene the Constitutional provision of Article III, Section 35. Although venue is not mentioned specifically in the captions, venue is clearly germane, incidental to, and a means of carrying into-effect the intention of the Legislature for the orderly plan of the State Government to “administer and enforce” the provisions of Title 122Á, Taxation-General, by filing-suit for State taxes other than ad valorem in Travis County.

The judgment of the trial court is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Agnes L. KING, Appellee.
    No. 11447.
    Court of Civil Appeals of Texas. Austin.
    Nov. 9, 1966.
    Rehearing Denied Dec. 7, 1966.

      Fred R. Disheroom, Dallas, for appellant.
    Gordon Wellborn & Rex Houston, Vaughan O. Stewart, Henderson, for ap-pellee.
   HUGHES, Justice.

This is a workmen’s compensation case. The case was tried to a jury and upon its verdict judgment was rendered for the employe, Agnes L. King, and against the insurance carrier, Hardware Dealers Mutual Fire Insurance Company.

The jury was asked, “Do you find from a preponderance of the evidence that Agnes King was not hired or retained by Musser Motors, Inc. as a domestic servant ? ” The term “domestic servant” was defined, in the charge, as “a person hired or employed primarily for the performance of household duties and chores, the maintenance of the home, and the care, comfort and convenience of members of the household.” The answer of the jury to the above issue was favorable to appellee. Appellant did not object to the submission of this issue.

Appellant’s first two points, jointly briefed, are that the jury’s answer to this issue was without any evidence to support it, and because there was “insufficient evidence” to support such answer.

These points, in our opinion, raise only a question of law, not a question of fact. The question of law is whether there is any evidence of probative value, more than a scintilla, to sustain the answer of the jury. That the answer of the jury may be against the overwhelming weight and preponderance of evidence as to be clearly wrong or manifestly unjust, a question of fact, is not before us and we express no opinion with reference to it. Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, Houston, writ ref., n. r. e.

In deciding the “no evidence” point it is our duty to view the evidence and inferences therefrom in a light most favorable to the verdict, disregarding all evidence to the contrary. See 38 Tex. Law Review 361, Chief Justice Calvert, “No Evidence” and “Insufficient Evidence.”

We will now recite evidence which, in our opinion, has probative force sufficient to support the finding of the jury.

Musser Motor Company is a family corporation, owned by Rufus Musser and his son and a brother. It is engaged in the sale of automobiles and their repair. Mr. Musser is president of the corporation and his wife works for the Company as a bookkeeper for which she receives no pay.

Agnes Louise King worked for the Musser Corporation for some ten or twelve years. She originally started to work for the Mussers in Graham, Texas, and then moved to Terrell when Mr. Musser moved his place of business there. Her salary ranged from $44.00 to $65.00 per week, based on pay of $1.00 per hour, during this twelve-year period. The services which she performed for her employer were mainly those of a general handy woman and included such things as cleaning up at the office, waxing floors, cleaning windows, working at company parties and doing about anything which the Mussers considered necessary in the furtherance of the company’s business. In addition to these services, Mrs. King was often sent to the homes of the various officers to clean up, cook and baby-sit. Mr. Musser testified that he felt that since the corporation officers were helping pay Mrs. King’s salary, she should work in their homes. No matter where Mrs. King was assigned to work, she was continuously carried on the company’s payroll and compensation premiums were paid on her just as they were paid on other company employees. The salary received by appellee was greatly in excess of the salaries received by domestic servants in the Terrell area.

On the day of the injury, appellee first went by the Musser office and then went to Rufus Musser’s home around 7:30 or 8:00 that morning. She spent most of the morning cooking and the injury occurred about 1:30 p. m. that afternoon. At the time of her injury, appellee was following the specific instructions of Mrs. Musser to move a cast iron lawn chair out of the Musser’s driveway and take it around the house to the front porch, so that some of the boys from the company could come out and pick it up.

Appellee testified that the chair which she was instructed to move weighed about 95 to 100 pounds; that she, contrary to instructions, moved the chair by herself, and that as she picked the chair up she felt a “catch” in her back.

Mrs. Musser testified:

“Agnes King worked for Mr. Musser and me here in Terrell and when we lived in Graham, and performed about the same kind of duties at both places. She was carried on the company payroll at all times and made $1.00 per hour. She was an able-bodied employee before she got hurt and never complained of anything being wrong with her. She injured herself moving a lawn chair. I had intended to have her husband, who was also a company employee, come out and help her move the chair. She did all the jobs that either I or my husband assigned to her from time to time. She worked at the place of business or where-ever any of the stockholders wanted her to work. She worked at new-car showings and at company parties. She performed janitor work at the place of business whenever she was told to. At the time she was hurt, she was doing work I wanted her to do, except that I wanted someone to help her.”

Mr. Musser testified:

“I have known Agnes King and her husband about 10 or 12 years. They worked for me in the past. We employed her husband about 10 or 12 years ago' and then employed her right about the same time. Agnes occupied the same status the whole time she worked for us. We carried her on the payroll of Musser Motor Company from the time we first employed her until she last worked for us. My wife and I assigned various tasks to Agnes, just as we do any of our employees. At the time she got hurt, she was making $1.00 per hour and was still an employee of Musser Motor Company. She was hired to take care of our cabin we had in Graham, to work at shop parties, customer relations parties and to take care of the house. I cannot estimate what percentage of her work was performed at the shop and what percentage was performed elsewhere. I considered her available to work for Musser Motor Company at any time or place we needed her. She was paid about three times as much as domestic servants in the Terrell area. She was a general handy woman and performed every duty we assigned her. Agnes was sent to take care of the homes and children of the various corporate officers whenever they were busy with some corporate function. She was very responsible and was often sent to relieve the various corporate officers of their responsibilities. She was a valuable asset of Musser Motor Company. We all leaned on Agnes pretty heavy because she was a valuable part of the corporate picture. We paid workmen’s compensation premiums on her for years and years.
⅜ :Jc ⅜ ¡j< jf: ⅝
■Q Mr. Musser, your wife, Mrs. Inez Musser, works at the Musser Motor Company?
A Yes, sir.
Q What salary is she paid?
A None.
Q Was there any connection in her working at the motor company and your hiring Agnes King on the company payroll?
A Well, yes. We felt that the corporation would be better off by hiring someone to do the work out at the house and take care of a lot of the duties that a wife had to do, rather than to hire someone and her stay at home, and we felt like she would be more valuable to the company.
Q And when Agnes was hired by the corporation, it was — you were going to answer a while ago, it was with the understanding that her duties were to do what?
* ⅜ * * * *
Q What were her duties to be for the corporation ?
A Well, her duties for the corporation was to — well, one of them was — I have a son and brother that is an owner in the corporation, is to relieve some of their duties out at the house — well, like baby-sitting whenever we have a corporation meeting, and things like that, she was to, like we do a tremendous amount of entertaining, and she was to take care of our parties and things like that. That was understood. We paid her just like we did our regular employees that we had on our payroll, men or anybody else that we had on the job. We paid her hourly, and when she went into overtime, she got overtime just like anybody else.
Q The corporation parties and banquets, did you have many of those ?
A Oh, yes, we have quite a few.
Q Where do you have those?
A Here at home. We have been holding them in our home.”

Maryland Casualty Co. v. Levine, 67 F. 2d 816, 5th Circuit, opinion by Judge Hutcheson, is analogous. There a family corporation, owned by W. D. Haden and his two sons, employed a utility or handy man named Levine. The company owned a Chevrolet and a Packard which were kept at E. D. Haden’s home. Mrs. E. D. Haden was permitted to use this car as her personal car. Part of the duties of Levine was to wash and care for these cars. His other duties were very general in nature, he doing whatever he was told to do. He also, from- time to time, performed purely domestic work for Mrs. E. D. Haden. While enroute to the Haden home to wash the Packard and do other odd jobs for Mrs. Haden, Levine was accidentally killed. The Court held he was covered by our Workmen’s Compensation Act at the time of his death, the Court saying:

“The duty of a general utility man like Levine is performed when, under the instructions of his superior officer, he looks after company property. It is neither his duty nor his right to inquire into the use of that property which his superior officer intends to make. It is enough if what he does in regard to it is, as this was here under the evidence, within the scope of his recognized and established duties to the company.”

In Texas Employers Insurance Association v. Weber, Tex.Civ.App., 386 S.W.2d 835, writ ref., n. r. e., we held that ■“the nature of the business in which the employee is hired to work and the duties he regularly performs are the controlling tests and not the specific activity he is engaged in at the time of his injury.”

The employer’s business here was the automobile business. Appellee was employed by Musser Motors, Inc. to do anything necessary in the furtherance of the business or trade of Musser Motors.

Some of the work done by appellee was of a domestic nature. It was performed, however, in furtherance of the business of Musser Motors in that it relieved Mrs. Mus-ser of these duties in order that she could devote her time, or part of it, to working at the place of business without pay.

In addition, some of this work of a domestic nature was essential to the entertainment which Mr. Musser provided in his home for business purposes. In this enlightened age, it is not to be doubted that -public relations are a business concern, and that they are fostered in many ways, including entertainment in the home.

We have, as indicated, concluded that, as a matter of law, the evidence does not show appellee to have been a “domestic servant” at the time of her injury although some, if not a major part of her work was of a domestic nature.

Webster’s International Dictionary, 2nd Ed., unabridged, defines a “domestic” as “one who lives in the family of another as a hired household assistant; a house servant.”

Appellant cites Wiseman v. Phipps, 176 Mise. 964, 28 N.Y.S.2d 971, and In Re Johnson’s Estate, 156 Mise. 689, 282 N.Y.S. 806, as holding that a domestic servant is a person working within the house for the care, comfort, convenience and enjoyment of the home and its occupants.

We have no doubt that these authorities are sound. They are not controlling here because while some of the work performed by appellee was of a domestic nature it was not exclusively for the convenience and enjoyment of the home and its occupants; it also served to further the business of Mus-ser Motors.

Appellant’s third point is that the trial court erred in not submitting, as it requested, the following special issue and accompanying instruction:

“DO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE, THAT AT THE TIME AND ON THE OCCASION IN QUESTION, THE PLAINTIFF, AGNES L. KING, WAS NOT A DOMESTIC SERVANT?
Answer: ‘She was not a domestic servant,’ or 'She was a domestic servant.’
We, the Jury Answer:-
Domestic Servant as used in this charge means a person who primarily is employed in and about the maintenance of a home itself. Such a person is a household servant working within the house for the upkeep thereof, and the care, comfort and convenience of the occupants thereof.”

The principal difference between the special issue submitted by the court regarding appellee’s status as an employe and the requested issue is that the latter issue deletes the phrase “hired or retained” and limits the inquiry to the status of appellee to the “time and on the occasion in question.”

It seems to us that our opinion in Weber, supra, is decisive of this point. See also Holmes v. Travelers Insurance Company, Tex.Civ.App., 148 S.W.2d 270, Galveston, writ ref., where the Court stated that in determining whether a person was a farm or ranch laborer under Sec. 2 of Art. 8306, “the controlling consideration is the nature of the work the injured employee is hired to do on the employer’s premises.”

It is to be noted here the charge contained the customary issues of whether appellee was an employe of Musser Motors when she was injured and whether such injury was sustained in the course of such employment.

We are of the opinion that the evidence is undisputed that appellee was performing an act for Musser Motors when she was injured and that she was not at such time acting in the capacity of a domestic servant. Thus the case, in our opinion, is brought within the scope of the ruling in Levine, discussed above.

If this view is correct, then the charge given was more favorable to appellant than the requested charge.

We are also of the opinion that appellant by not objecting to the special issue submitted by the court as to the status of appellee has lost his right to complain of its form, and that this failure to object is not cured by the request of a special issue on the same subject even though it be correct. City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, Fort Worth, writ ref., n. r. e.

We overrule point three.

Point four is that the trial court erred in overruling portions of its motion in limine which requested the court to instruct appellee’s counsel not to mention before the jury the fact that insurance premiums had or had not been paid by Musser Motors on behalf of appellee.

It was not reversible error to overrule a motion in limine. Appellant did not object to the admission of this testimony when offered. This was its remedy. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331, Tex.Sup.

The judgment of the trial court is affirmed.

Affirmed.

      . “Domestic servants” are not covered by the Workmen’s Compensation Act. Article 8306, Sec. 2.


author: BARROW, Justice.

text:
    VETERANS’ LAND BOARD, Appellant, v. J. R. AKERS, Jr., et al., Appellees.
    No. 14529.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1966.

      Waggoner Carr, George C. Black, Jr., Hawthorne Phillips, T. B. Wright, J. Arthur Sandlin, Austin, for appellant.
    Steinle & Davis, Jourdanton, Tom Joseph, San Antonio, for appellees.
   BARROW, Justice.

This is a suit for damages for breach of a covenant of general warranty. Appellant, Veterans’ Land Board of the State of Texas, complains of the take-nothing judgment entered following a nonjury trial in the suit which it brought against appellees, J. R. Akers, Jr., and Florence Mae Akers.

On February 21, 1950, appellees conveyed to appellant by general warranty deeds two tracts of land out of the S. B. Hethcock Survey No. 76, Atascosa County, Texas. One tract, consisting of 41 acres, was sold by appellant to Nerice Lee Wright under a contract of sale entered into under the Texas Veterans’ Land Program. The other, consisting of 20.5 acres, was sold under a similar contract to Nolan R. Wright. The Wright brothers were joined as parties defendant in this suit by appellant, who sought to reform the contracts of sale by having any recovery set over to these parties in fulfillment of the contracts of sale.

It is urged that there is a breach in the covenant of warranty in that a total of 10.18 acres of tjie land conveyed by ap-pellees is vacant unsurveyed land belonging to the Permanent School Fund of the State of Texas by reason of the following facts: In 1927 C. J. Lawson filed an inquiry with the General Land Office concerning purchase of a tract of land pursuant to Art. 5323, Vernon’s Ann.Civ.St. Repealed. Acts 1931, 42nd Leg., p. 452, ch. 271, § 13. On January 19, 1928, he filed an application for a survey of this tract by Delaney W. Cobb, an authorized surveyor in Atascosa County. On February 7, 1928, Cobb filed field notes of a survey of 27.85 acres of land made for Lawson pursuant to said application, and these field notes were duly recorded in the Surveyor’s Office of Atas-cosa County. The Land Commissioner made a finding that the land was vacant, unsurveyed school land and filed the survey in the records of maps of the General Land Office as Survey No. 76½. The land was valued at $5.00 an acre and was offered for sale to Lawson^-however, neither he nor any other person ever purchased same.

The evidence offered at the trial is not conclusive as to whether a vacancy actually exists, in that the only surveyor who testified admitted that he did not locate any of the original monuments. Appellant urges, however, that the action of the General Land Commissioner in 1928, approving the field notes and declaring the vacancy, is presumed to be valid unless clearly proved erroneous by appellees.

The Cobb survey found that the vacancy occurred because the southern boundary line of the S. B. Hethcock Patent No. 76 was some 135 varas north of the John Sherman No. 1117. It is significant that the Hethcock No. 76 is a junior patent to the Sherman No. 1117, and the description' of the Hethcock Patent calls for adjoinder to the Sherman Patent. See Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801, 807 (1937); Magnolia Petroleum Co. v. Biel, Tex.Civ.App., 285 S.W.2d 858, wr. ref. n. r. e.; 14 TexJur.2d, Boundaries, § 30.

It is unnecessary for us to determine ownership of the 10.18 acres in controversy, since appellant wholly failed to show an eviction. It is fundamental that a cause of action for breach of covenant of warranty does not arise until there has been an eviction. Schneider v. Lipscomb County Nat. Farm Loan Ass’n, 146 Tex. 66, 202 S.W.2d 832, 172 A.L.R. 1 (1947); Schell v. Black, Tex.Civ.App., 321 S.W.2d 373, no wr. hist.; 15 Tex.Jur.2d, Covenants, §§ 34, 35.

This question was discussed at length in Schneider, supra, where the Supreme Court, under somewhat analogous facts, said in part: “Formerly, actual eviction was required before suit could be brought, but now suit may be brought after constructive eviction or ouster in pais, as when the paramount title has been positively asserted against the covenantee and he has yielded to it by surrendering possession or by purchasing the title.” Two elements were held necessary to establish a constructive eviction: (1) a positive assertion of a paramount title, and (2) a yielding to that assertion of title.

The General Land Office had not only found part of the tract purchased by Schneider to be vacant unsurveyed school land, but had awarded same to one Sansing after he purchased it in accordance with the statute. The Court of Texas Civil Appeals (196 S.W.2d 954) held that the issuance or making of the award had the ^effect of a constructive eviction. The Supreme Court reversed this holding and determined that since Schneider did not yield to the award, but remained in possession and contested it by suit, there was no eviction, either actual or constructive, until after Schneider lost the suit he filed against Sansing over ownership of the land. The Supreme Court observed that a determination by the Land Commissioner that land is unsurveyed vacant land, belonging to the State, is ordinarily regarded as tentative and is almost invariably followed by a suit to develop the facts fully and to obtain an authoritative and final decision of the question.

Here there was no actual award in that the offer to Lawson was forfeited when he failed to complete the purchase. Appellant urges, however, that there was a constructive eviction in that in 1929, and again in 1955, the General Land Office issued a permit to applicants to prospect for metallic minerals and precious stones on Survey No. 76½. It has been held that an oil and gas lease amounts to only a cloud on the title. See Schell v. Black, supra.

In any event there was no evidence that anything was done on the land in controversy by either permit holder. To the contrary, the uncontradicted evidence establishes that the two tracts were surveyed by the Veterans’ Land Board prior to the purchase in 1950 and presumably contained the described 61.5 acres. The Wright brothers have continuously claimed all the land sold to them under the contracts of sale without any challenge by anyone to their ownership and they have not yielded or recognized any other party’s rights to part of the land.

Appellant wholly failed to establish that there has been an eviction, either actual or constructive. Therefore, the trial court did not err in entering a take-nothing judgment in this suit for breach of appellees’ covenant of general warranty.

The judgment is affirmed.


text:
    Norton BRYAN, Individually, and d/b/a State Engine Sales, Appellant, v. Robert L. WILLIAMS, Appellee.
    No. 14533.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 16, 1966.
    James N. Castleberry, Jr., John Peace, J. B. Langham, San Antonio, Irion, Cain, Cocke & Magee, Houston, for appellant.
    Crites, Ellington, Peterson & Studer, Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellee.
   BARROW, Justice.

This is a venue action involving Subd. 5, Art. 1995, Vernon’s Ann.Civ.St. Appellee, Robert L. Williams, brought this suit in the County Court at Law No. 3 of Bexar County, to recover his damages from Norton Bryan, a resident of Harris County, for breach of warranty contained in a written invoice whereby appellee authorized appellant to exchange and install a new or rebuilt engine in appellee’s 1938 Ford automobile. The trial court overruled the plea of privilege after a non-jury trial.

It is fundamental that in order to maintain venue in Bexar County under this exception appellee-plaintiff was required to establish by a preponderance of the evidence that appellant-defendant contracted in writing to perform in Bexar County the particular obligation which is the basis of the suit. McDonald, Texas Civil Practice, § 4.11.5; Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Williams v. Blalack, Tex.Civ.App., 349 S.W.2d 274.

On November 30, 1965, plaintiff took his 1938 Ford automobile to the premises of State Engine Sales located in San Antonio (it was stipulated that this is one of defendant’s places of business) and contracted for defendant to install another engine in same, as well as other new parts. An invoice was filled out by defendant’s employee, listing the parts to be replaced and the charge for same. This invoice was signed by plaintiff, who thereby agreed to pay for same in San Antonio and to give defendant a lien to secure the payment. The San Antonio address of defendant is printed on this form. Also printed in large letters is the warranty which is the basis of this suit, to-wit: “12,000 Miles or 90 Days Guarantee.” Plaintiff testified that he delivered the car to defendant’s premises in San Antonio, paid for the work there, and picked up the car there about two weeks later, upon completion of the work. He admitted, however, that he did not know if the work was performed in Bexar County.

Venue is not maintainable in Bexar County under this exception in that defendant did not expressly agree in writing to perform the obligation sued upon in Bexar County or at any particular place therein. The place of performance of the guarantee is not designated nor did defendant even agree to make the repairs in Bexar County. Certainly, it can be implied that the work would be performed there, however, the Supreme Court in Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948), held that the 1935 amendment to this subdivision prohibits venue being determined by implication:

“The intention of the Legislature in adding this amendment is obvious. Under Subsection 5 as it stood at the time of the amendment one might become a party to a contract which by implication obligated him to perform in a particular county, although the contract did not expressly name the county of performance and obligate the defendant to perform therein. By amendment the language of the subdivision was made so plain as to admit of no construction that would fix venue by implication. In order to sustain venue in Harris County in this case the contract must have expressly named that county or some definite place therein where relator was obligated to perform.”

Plaintiff urges that the terms of the agreement as viewed from its four corners authorized defendant to perform the repairs in San Antonio, since there was no hint in defendant’s invoice that such repairs would be made elsewhere. Plaintiff cites Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942); Tyson v. Seaport Grain, Inc., Tex.Civ.App., 388 S.W.2d 731, error dism.; and McKenzie Construction Co. v. Pittman, Tex.Civ.App., 288 S.W.2d 527, error dismissed.

The rule set forth in these cases will not sustain venue in our case. These cases hold that where the place of defendant’s performance is expressly named in writing, the obligation sued upon may be implied. It is seen that in each of the cited cases the contract could only be performed in the county where the suit was brought, i. e., in Steffens, an offset well was required to be drilled in Jones County, and in Tyson and McKenzie, a building was required to be erected in Nueces County.

In our case defendant did not agree to perform any obligation in Bexar County. The repairs to plaintiff’s automobile could have been made at any of defendant’s places of business, and certainly the warranty sued upon could have been performed anywhere. In fact, the most logical and satisfactory place of performance of the warranty would have been in Tennessee where the car was actually repaired.

Plaintiff failed to establish by a preponderance of the evidence that his suit is based upon an obligation contained in a written contract which defendant expressly agreed to perform in Bexar County or at a definite place therein. The trial court therefore erred m not sustaining defendant’s plea of privilege.

The judgment of the trial court is reversed and the cause remanded with instructions to transfer same to the County-Court of Harris County, Texas.


author: COLEMAN, Justice.

text:
    PIPER, STILES & LADD et al., Appellants, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 14902.
    Court of Civil Appeals of Texas. Houston.
    Nov. 17, 1966.
    Rehearing Denied Dec. 8, 1966.
    W. Pat Camp, J. Mack Ausburn, San Antonio, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, Houston, for ap-pellee.
   COLEMAN, Justice.

This is an appeal from an order overruling appellants’ plea of privilege. Ap-pellee sued appellants (an insurance agency and the partners in such agency) alleging that appellants were indebted to it. All appellants filed pleas of privilege, asserting residence in Bexar County, Texas. Ap-pellee filed its controverting affidavit relying on Subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ.St.

The question for decision is whether the contract provides for payment in Harris County, or a definite place therein.

The indebtedness sued on grew out of an agency contract, the material parts of which read:

“This Agreement, made this 1st day of January, 1962, by and between the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, of the City of Baltimore, State of Maryland, hereinafter called the ‘Company,’ and Piper, Stiles and Ladd, Address 1207 National Bank of Commerce Bldg., Town San Antonio County Bexar State Texas, hereinafter called the ‘Agent,’ WITNESSETH:

« ‡ * *

“SIXTH — The Agent shall be responsible for the payment of original premiums upon all bonds and policies written and of all annual, renewal and continuation premiums on all cancelable bonds and policies written through the Agent or any of the sub-agents or brokers of the Agent, and shall remit for the same to the Houston Branch Office Office of the Company as hereinafter provided. * * *

“SEVENTH — The Agent shall, on or before the 10th day of each month, send the Company a statement together with a check for the balance shown to be due the Company * *

The address of the “Company” is stated to be Baltimore, Maryland. In paragraph Seventh the agent agrees to send the company a statement together with a check for the balance due on or before the 10th day of each month. The agent agrees to remit for the premiums due on policies written by him or his sub-agents or brokers to the Houston Branch Office “of the Company”. There is evidence that the Company had only one “Houston Branch Office”, which was located in Houston, Harris County, Texas.

The question arises over the fact that appellants agreed to “remit” the payments “to” the Houston Branch Office rather than to make payments at the Houston Branch Office. Subdivision S of Article 1995, R. C.S., provides:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:

(( * * *

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

Appellants agreed in writing to make the payments due the company to the Houston Branch Office of the company. The only reason for including this provision in the contract was to provide the place at which the payments were to be made. Proof of the location of the Houston Branch Office was properly admitted, and it established that the payments were to be made in Harris County. Smith v. Crockett Production Credit Ass’n., 372 S.W.2d 954 (Tex.Civ.App., Houston, 1963); Butler, Williams & Jones v. Goodrich, 288 S.W.2d 887 (Tex.Civ.App., Galveston, 1956, ref., n. r. e.); Harrison v. Nueces Royalty Co., 163 S.W.2d 244 (Tex.Civ.App., San Antonio, 1942, writ dism.); Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115 (Tex.Com.App., 1930, opinion adopted).

The agreement specifies the particular office of the company to which the payments were to be sent. They were not to be sent to the Baltimore office, or some other office, but were to be sent to the Houston office. Whether the words “Houston Office” were used as the name of a division of the company, or whether the word “office” was used in its ordinary sense as “a place for the regular transaction of business” with the word “Houston” used to give its geographical location, is immaterial since the evidence establishes that the Houston Office of the Company was located in Houston, Harris County, Texas. This portion of the agreement specifies where the money was to be sent rather than to whom the money was due. The agreement to send money to a particular office, the location of which is definitely fixed, distinguishes this case from such cases as Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948); Petroleum Engineering & Tool Co. v. Brandon Co., 232 S.W.2d 247 (Tex.Civ.App., El Paso, 1950, no writ); Tatum v. Home Improvement Loan Co., 300 S.W.2d 215 (Tex.Civ.App., Waco, 1957, no writ), and Thomas v. Oil Belt Supply Company, 375 S.W.2d 527 (Tex.Civ.App., Eastland, 1964, no writ).

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Elsie ARSENEAU, Appellant, v. The TARRANT COUNTY HOSPITAL DISTRICT, Appellee.
    No. 16769.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 28, 1966.
    Rehearing Denied Dec. 9, 1966.
    Bryan & Amidei, and Maurice Amidei, Fort Worth, for appellant.
    Fred Fick, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

Based upon the pleadings and the stipulations of the parties, the trial court determined that plaintiff could not recover damages from The Tarrant County Hospital District for personal injuries sustained by her by reason of alleged negligence of the defendant.

Plaintiff alleged that while employed by defendant as a LVN nurse she, while performing her regular duties at Elmwood Sanitarium, sat down in a chair at the charting desk. A leg of the chair collapsed causing plaintiff to fall. She sustained painful and substantial personal injuries. Numerous acts of negligence were charged against the defendant.

In a single point of error plaintiff contends the court erred in holding the defendant was engaged in a governmental function rather than a proprietary function and therefore immune to tort liability to its employee.

She is supported by Hernandez v. County of Yuma, 91 Ariz. 35, 369 P.2d 271 (1962); Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965). The above cited cases represent the minority rule.

As a general rule a hospital operated by a governmental unit which accepts charity patients is held to he operated in the performance of a governmental function, even though charges to cover the cost of maintenance are exacted from patients who are able to pay. 25 A.L.R.2d 207, 210-211, §§ 2 and 3, and cases cited.

The Tarrant County Hospital District was created under the provisions of Article 4494n, Vernon’s Ann.Texas Rev.Civ.St, and Article 9, § 4 of the Constitution of the State of Texas. It was created as, and is, a lawfully constituted county-wide Hospital District in Tarrant County, and owns and operates a public hospital system for the purpose of furnishing medical aid and hospital care to indigent and needy persons residing in the Hospital District. Elmwood Sanitarium is owned and operated by the Hospital District.

It was stipulated by the parties that the District’s boundaries are co-extensive with the boundaries of Tarrant County and that indigent patients make up a total of 92 per cent of all patients accepted.

In opinions adopted by the Supreme Court, the Commission of Appeals has held that cities are exercising a governmental function when they establish, maintain and operate hospitals for the benefit of the public, to take care of the sick and afflicted, and not for the purpose of profit or revenue to the City, and are not liable for torts. Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (1937); City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937).

It is settled law in Texas that sanitation for the public health of a city is a governmental function, and that, when a city is exercising such power, it is not liable for injuries inflicted through the negligence of its officers and employees. City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965 (1932).

Navigation districts, irrigation districts and levee improvement districts, created under the constitutional provisions and statutory enactments in pursuance thereof, are political subdivisions of the state, performing governmental functions, and stand upon the same footing as counties, precincts, and other political subdivisions established by law, and are not liable in actions sounding in tort. Smith v. Harris County-Houston Ship Channel Nav. Dist., 330 S.W.2d 672 (Tex.Civ.App., 1959, no writ hist.) ; Willacy County Water Control and Improvement Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936 (1944); Hodge v. Lower Colorado River Authority, 163 S.W.2d 855 (Tex.Civ.App., 1942, dism.); Jones v. Jefferson County Drainage Dist. No. 6, 139 S.W.2d 861 (Tex.Civ.App., 1940, ref.); Peters v. Matagorda County Drainage Dist. No. 1, 146 S.W.2d 779 (Tex.Civ.App., 1940, ref.); Karling v. Lower Colorado River Authority, 303 S.W.2d 495 (Tex.Civ.App., 1957, ref., n. r. e.) ; Bexar Metropolitan Water District v. Kuntscher, 274 S.W.2d 121 (Tex.Civ.App., 1954, no writ hist.); Bennett v. Brown County Water Imp. Dist. No. 1, 153 Tex. 599, 272 S.W.2d 498 (1954).

Since the law is settled that cities in operating hospitals for the public welfare are performing a governmental function and are immune to tort actions, that sanitation for public health is a governmental function immune to tort actions, and navigation and kindred districts perform governmental functions and are immune to tort actions, surely a County Hospital District, created under Constitutional and statutory authority for the purpose of furnishing medical aid and hospital care to indigent and needy persons residing in the Hospital District, is performing a governmental function and is not liable in tort actions.

It is conceded the defendant District was created under the Constitutional and statutory provisions heretofore mentioned and carries out the purpose of its creation.

We hold that in operating Elmwood Sanitarium The Tarrant County Hospital District was performing a governmental function and was immune to plaintiff’s negligence suit.

Judgment affirmed.


text:
    Kenneth R. SMITH, Appellant, v. TEXAS DISCOUNT COMPANY, Appellee.
    No. 11444.
    Court of Civil Appeals of Texas. Austin.
    Nov. 2, 1966.
    Rehearing Denied Nov. 23, 1966.
    Second Motion for Rehearing Denied Dec. 7, 1966.

      Fritz, Vinson & Turley, Edward C. Fritz, Dallas, for appellant.
    Wayne A. Melton, Dallas, for appellee.
   HUGHES, Justice.

Kenneth R. Smith has appealed, by writ of error, from a default judgment, rendered December 29, 1965, in favor of Texas Discount Company for $274.00, plus $26.40 attorney’s fees, interest and costs.

Appellee’s suit was on a promissory note executed by appellant. No answer to this suit was filed by or on behalf of appellant and he did not participate in the trial.

Appellant’s first six points are jointly briefed. These points question the validity of the service had upon him, and his inability to procure bills of exceptions from the Trial Judge. Appellant’s last two points are that a reversal should be ordered because he was unable to obtain a statement of facts, and that the court erred in rendering judgment for attorney’s fees without evidence.

Appellee made a motion, under Rule 106, Texas Rules of Civil Procedure, for an order authorizing service upon appellant by leaving a copy of the citation at his residence in Dallas, Dallas County. This motion recited that appellant was “ * * * a transient person who absents and secrets himself from service, refuses to answer the door and has apparently instructed the other residents at this address to state they do not know when he will return. * * * ” Attached to the motion was an affidavit of the officer who attempted to procure personal service on appellant from which we quote: “I am a Deputy Sheriff, employed by BILL DECKER, SHERIFF of Dallas County, Texas. On the 12th day of November, A.D., 1965, I was assigned a citation in Case No. 51993-C, styled TEXAS DISCOUNT CO. VS. KENNETH R. SMITH and was instructed to attempt service on KENNETH R. SMITH at 6637 Putting Green Drive, Dallas in Dallas County, Texas and made the following listed efforts to serve said citation to no avail. I have in my possession three (3) citations to be served on above named subject at the address given and I have made over 20 different calls at the home of Kenneth R. Smith and his wife always tells me that he is out of town and she doesn’t know when he will be back. On at least one occasion I have talked with subject’s son who has told me his Father was in the house in bed, however, when the mother comes to the door, she then advises me that he is out of town. I have requested Rule 106 orders to serve these other hereinabove process on subject as I definitely believe subject is avoiding service of all process. This information is furnished to the attorney in order that he may obtain a Rule 106 for service.”

This motion was granted by the court. Service was obtained upon appellant, according to the officer’s return, by leaving a copy of the citation and a copy of appel-lee’s original petition with Mrs. Kenneth R. Smith, a person over sixteen years of age, at the residence of appellant.

On March 15, 1966, appellant filed with the clerk of the court a bill of exceptions to the effect that the trial court entered the order for service on appellant in the manner above shown without hearing evidence and that the default judgment against him was entered without hearing evidence.

Appellant also sought approval of a second bill of exceptions which relates to the procedure employed to obtain his first bill of exceptions. We set out in the footnotes part of an opinion by the Dallas Court of Civil Appeals, rendered when this case was before that Court on a petition for writ of mandamus to compel the trial court to act on his tendered bills of exception, which recites the history of the bill of exception proceedings.

For the purpose of this opinion, we consider as approved appellant’s bill of exception to the effect that no evidence was heard by the Court before entering the order for substituted service and before entering judgment by default.

The motion for substituted service under Rule 106 contemplates an ex parte proceeding since there are no adversary parties before the Court. The Rule does not specify in what manner the facts justifying issuance of an order for substituted service shall be made known to the Court. The general rule is that motions may be supported by affidavit. This is true even where adversary parties are before the Court. Certainly, it should be proper in an ex parte proceeding, as here, where no right of cross examination is involved.

We hold that affidavits are proper to invoke the authority of the Court under Rule 106 to enter an order for substituted service. See Motions and Orders, 39 Tex. Jur.2d, Sec. 9, 2 Tex.Jur.2d, Affidavits, Sec. 2, Texas Law of Evidence, McCormick and Ray 2nd ed., Sec. 787.

We also hold that the affidavit attached to appellee’s motion, copied above, was sufficient to support the order of the Court entered pursuant to such motion.

We also hold that reversible error was not committed in rendering judgment by default against appellant without the introduction of any evidence, if, in fact, no evidence was introduced.

Rule 241, T.R.C.P., provides that when a default judgment is rendered against a defendant and the claim is liquidated and proved by an instrument in writing the damages shall be assessed by the Court or under its direction and final judgment rendered therefor, unless a jury is demanded by a defendant entitled to it.

There was no demand for a jury trial.

Appellee’s suit was upon a promissory note executed by appellant on which a balance due of $274.00 was alleged. It was also alleged that the note was placed in the hands of an attorney for collection after demand for payment was made thus entitling appellee to recover 10% of the amount due as attorney’s fees.

All allegations of a pleading are to be taken as admitted, except as to damages, when default is made. 33 Tex.Jur.2d, Judgments, Sec. 116.

A copy of the note declared upon was not attached to appellee’s petition, nor was it alleged that the note provided for the payment of attorney’s fees.

The reasonableness of attorney’s fees, in the absence of a contract therefor, is a question of fact and is an unliquidated demand as to which the Court should have heard evidence. Rule 243, T.R.C.P.

We have assumed that no evidence was heard by the trial court before rendering judgment.

If evidence was heard in support of the reasonableness of attorney’s fees, then appellant was entitled to a statement of facts unless he waived its procurement.

We will not pursue this matter because we have concluded that the difference between the fee of $26.40 which the Court allowed as a reasonable fee for prosecuting and obtaining a judgment of $274.00 and the amount of a lesser fee which appellant may be able to establish as a reasonable fee for such services is not worthy of judicial attention under the doctrine of de minimis non curat lex.

The stay order heretofore issued by the Dallas Court of Civil Appeals is dissolved and appellant’s petition for mandamus is dismissed.

The judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

Appellant complains that we did not discuss Spencer v. Texas Factors, Inc., Tex.Civ.App., Dallas, 366 S.W.2d 699, writ ref., n. r. e., in disposing of his contention that substituted service was not authorized because no evidence was heard on the motion filed under Rule 106, T.R.C.P. In that case the Court held that appellant was entitled to a statement of facts in order to have reviewed “the evidence, if any” to sustain an order for substituted service made under Rule 106.

We are convinced of the soundness of the opinion in Spencer, and have no disposition but to follow it.

We have assumed that no evidence was heard by the trial court before entering the order under Rule 106. We have held, however, that the affidavit attached to the motion may be considered by the trial court in determining whether it should make an order under Rule 106. Spencer does not show that the motion there was supported by affidavit. In fact, the opinion implies the contrary when it states that evidence of probative value should be heard before an order for substituted service is made, “Otherwise, defendants and the Courts would be exposed to possible fraudulent allegations of impracticality which could not be supported by proof, resulting in great injustices.” (Italics ours.)

Affidavits do not fall within the category of mere allegations.

The motion is overruled.

Motion overruled.

      . “On April 21, 1966 we issued an order staying a trial court from proceeding with a hearing on a motion to strike a bystanders’ bill of exceptions. The immediate question before us is whether our stay order should be continued in effect pending our determination of the main controversy which is pending before us on writ of error.
      On April 18, 1966 Kenneth R. Smith filed his petition for writ of error together with a cash bond in the above cause pursuant to Rules 359-363, Vernon’s Texas Rules of Civil Procedure. Petitioner seeks to have us review a default judgment rendered against him on December 29, 1965. He alleges that he was never served with a citation and knew nothing of the judgment rendered against him by default until February 7, 1966 when a deputy sheriff sought to •execute an order of sale issued to enforce the judgment. Respondent claims petitioner was served in accordance with Rule 106, T.R.C.P.
      On March 22, 1966 petitioner filed a motion in the trial court seeking approval of a bill of exceptions and reciting that "his remedy was a petition for writ of error to the Court of Civil Appeals, necessitating a record on appeal.
      On March 29, 1966 petitioner again presented a bill of exceptions to the trial •court. In this bill petitioner requested that the trial court ‘act upon same, either by signing the endorsement below it, or by correcting same and signing the endorsement as corrected, or by endorsing his refusal thereon, ahd preparing, signing and filing with the Clerk such Bill of Exceptions as will, in his opinion, present the foregoing matters as they actually occurred.’ Rule 372, Subdivisions (g), (h) and (i), T.R.C.P.
      The trial court refused to act on the bill of exceptions on the ground that the court no longer had jurisdiction over the matter.
      * * ⅜ * ⅜
      On March 29, 1966 following the above hearing, petitioner prepared and filed a bystanders’ bill of exceptions. This bill is supported by the affidavits of three persons who swear that they were present in court on March 29, 1966, saw and heard the proceedings in question and that the bill of exceptions presented by petitioner and the things stated therein are true and correct.
      On April 7, 1966 respondent Texas Discount Company filed a motion in the trial court praying that the trial court strike petitioner’s bystanders’ bill from the record. In support of its motion respondent presented three controverting affidavits, one by the trial judge himself, one by the court reporter and one by the bailiff of the court.”
      The Dallas Court of Civil Appeals stayed hearing on appellee’s motion to strike appellant’s bystanders’ bill of exceptions pending hearing of this appeal on its merits, and it has not granted leave to file the petition for mandamus.

      . See Rules 109, 111, 113, T.R.C.P.