text:
    WEED EATER, INC., Appellant, v. Thomas W. DOWLING, Jr., Appellee.
    No. 17103.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.

      Kronzer, Abraham & Watkins, Michol O’Connor, Houston, for appellant.
    Soffar & Levit, William D. Soffar, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order denying a temporary injunction. Weed Eater, Inc., sued Thomas W. Dowling to enforce the provisions of an employment agreement containing a covenant not to compete and a covenant against the disclosure of trade secrets or confidential information. The trial court enjoined Dowling from revealing trade secrets or confidential information, but refused to enforce the covenant not to compete.

Thomas W. Dowling, Jr., was employed by Weed Eater, Inc., as vice president of manufacturing. While so employed, he designed and organized an assembly line for the production of a string line trimmer. He was included in all company meetings and was on the list of vice presidents who received confidential information. He had access to all trade secrets and confidential information including new product plans, market forecast, testing methods and results, market strategy, sales prices, performance specifications for components, and the confidential list of component vendors.

All employees were required to sign nondisclosure agreements. The company maintains a security system utilizing guards, employee badges, sign-in procedures, television monitors, restricted areas, and censor devices. Visitors are required to wear a special badge and to be escorted at all times by an employee.

About a year after Weed Eater, Inc., hired Dowling, Emerson Electric Company acquired Weed Eater, Inc., as a subsidiary. Shortly after the acquisition, Emerson presented all Weed Eater vice presidents with a new employment contract. Dowling signed such a contract on March 2, 1977. On October 21, 1977, Dowling resigned and went to work in California for Hawaiian Motor Company as its director of manufacturing.

For some time prior to that date, Hawaiian Motor Company had been purchasing from Weed Eater a flexible line trimmer “head” which it used in manufacturing a flexible line trimmer. Dowling’s employment with Hawaiian Motor Company would place him in control of the assembly line required to manufacture the Hawaiian Motor Company’s trimmer heads.

By his contract with Weed Eater, Dowl-ing agreed that he would not directly or indirectly use for himself or disclose to any party other than Emerson any secret or confidential information or data regarding the business of Emerson or any secret or confidential information or data regarding the cost, uses, methods, applications or customers, trade accounts, or suppliers of products made, produced or sold by Emerson or its subsidiaries, or regarding any secret or confidential apparatus, process, system, manufacturing or other method at any time used, developed or investigated by or for Emerson or its subsidiaries.

The agreement provided that for a period of one year following any termination of employment by Emerson or a subsidiary, the employee would not engage in or enter the employ of or have any interest in, directly or indirectly, any other person, firm, corporation or other entity engaged in activities relating to lawn and garden care and the contract specifically provided that the restriction would only be applicable with respect to the manufacturing and sales areas in which Emerson or its subsidiaries shall conduct business operations during Dowling’s employment by Emerson.

After an evidentiary hearing, the trial court entered an order reciting that Weed Eater was entitled to a temporary injunction “because the plaintiff has various proprietary and trade secret information which has been disclosed to defendant in confidence and because the defendant was employed by the plaintiff in a fiduciary relationship as vice president of manufacturing under an employment agreement which the defendant has threatened to breach by attempting to take employment with a competitor of plaintiff.” The order then enjoined Dowling from disclosing to any third party any confidential or secret information of plaintiff relating to new product development, layout and design of the assembly line for flexible line trimming devices, marketing strategy and forecasts, product specifications, performance specifications, testing equipment, testing procedures, vendor identity,.past proposed product design, proposed but unadopted product components and/or designs, and past assembly line modifications and refinements.

It is clear from the evidence that Dowl-ing was fully informed as to Weed Eater’s new product development, layout and design of the assembly line for flexible line trimming devices and all of the other matters mentioned in the trial court’s order. Dowling, however, testified that he knew of no confidential or secret information relating to these matters.

In reaching a decision on the issues presented by this case, we will apply certain well established general rules of law. The trial court has broad discretion in determining whether or not to issue a temporary injunction, and his judgment will not be overturned unless the record discloses a clear abuse of discretion. However, it is an abuse of discretion where the trial court makes an erroneous application of the law to undisputed facts. City of Spring Valley v. Southwestern Bell Telephone Co., 484 S.W.2d 579 (Tex.1972).

It is well settled that injunctive relief may be granted when one breaches his confidential relationship in order to unfairly use a trade secret. In the area of confidential relationship such as between employer and employee, the injured party is not required to rely upon an express agreement to hold the trade secret in confidence. Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958); Thermotics, Inc. v. Bat-Jac Tool Co., Inc., 541 S.W.2d 255 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ history).

Where an employee will acquire trade secrets by virtue of his employment, the law permits greater restrictions to be imposed on the employee than in other contracts of employment. 14 Williston on Contracts § 1643 (3rd edition, 1972).

Confidential business information is not given protection merely as a reward to its accumulator. The courts condemn the employment of improper means to procure trade secrets. The fact that a trade secret is of such a nature that it can be discovered by experimentation or other fair and lawful means does not deprive its owner of the right to protection from those who would secure possession of it by unfair means. An injunction to prevent one from making use of trade secrets acquired in a confidential relationship such as that of the employer and employee relationship does not run counter to a public policy which discourages contracts which tend to lessen competition. K and G Oil Tool and Service Company v. G and G Fishing Tool Service, 314 S.W.2d 782 (Tex.1958).

A covenant by an employee not to compete with his employer for a period of time after the termination of the employment will be enforced if the restraint placed upon the employee is necessary for the protection of the business or the good will of the employer, and the restraint on the employee is not unduly onerous.

The trial court found that Weed Eater disclosed to Thomas W. Dowling various proprietary and trade secret information in confidence. He was enjoined from disclosing to any third party, confidential or secret information with relation to a number of specific matters including the layout and design of an assembly line for flexible line trimming devices, and past assembly line modifications and refinements. He was not specifically enjoined from using such information in his employment as director of manufacturing for a company which proposed to compete directly with Weed Eater.

Since the trial court enjoined Dowl-ing from revealing to third parties information relating to the matters above set out, the court necessarily found that Dowling had received confidential information with respect to these matters as a result of his employment by Weed Eater. Dowling has been employed by Hawaiian Motor Company to supervise the production of a device which it formerly purchased from Weed Eater. He set up the assembly line by which the product was produced by Weed Eater. Even in the best of good faith, Dowling can hardly prevent his knowledge of his former employer’s confidential methods from showing up in his work. The only effective relief for Weed Eater is to restrain Dowling from working for Hawaiian Motor Company in any capacity related to the manufacture by Hawaiian Motor Company of a flexible line trimming device. Electronic Data Systems Corp. v. Powell, 524 S.W.2d 393 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); Grace v. Orkin Exterminating Co., 255 S.W.2d 279 (Tex.Civ.App.— Beaumont 1953, writ ref’d n. r. e.).

The contract between Dowling and Weed Eater provides for a contract not to compete during the period of one year from the date of termination of employment. The agreement is unrestricted as to area. The period of time during which the restraint is to last and the territory that is included are important factors to be considered in determining the reasonableness of the agreement. There is testimony that there are some 18 firms engaged in the manufacture of flexible line trimmers and 2 foreign corporations engaged in this business. The evidence establishes that it is a highly competitive business and that the devices manufactured by Weed Eater are sold in all parts of the United States. It is clear that Dowling’s experience gained by setting up Weed Eater’s assembly line and by observing it in operation for more than a year would enable Hawaiian Motor Company to set up an efficient assembly line immediately. As a result, that company would become more competitive in a shorter period of time than would likely be the case without the services of Mr. Dowling.

The enforcement of this covenant will restrict Dowling’s ability to work only in employment closely related to his field of activity as an employee of Weed Eater. The covenant is not unreasonable as to time or, under the circumstances, area. The evidence establishes that there is imminent danger of irreparable injury to Weed Eater’s business. Electronic Data Systems Corp. v. Powell, supra; Continental Group, Inc. v. Kinsley, 422 F.Supp. 838 (D.Conn.1976); Auto Club Affiliates, Inc. v. Donahey, 281 So.2d 239 (Fla.Ct.App.1973); World Wide Pharmacal Distributing Co. v. Kolkey, 125 N.E.2d 309 (Ill.Ct.App.1955).

The trial court abused its discretion in failing to include in the injunction order a provision restraining Thomas W. Dowling, Jr., from continuing in the employment of Hawaiian Motor Company so long as his duties include activities related to developing, manufacturing and marketing lawn and garden trimmers, lawnmowers and similar products. The order will be modified to include this additional restraint.

As thus modified, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Willard Elmer WYSICK, Appellant, v. ESTATE of Flarrie Zuelia Smith WYSICK, Deceased, Appellee.
    No. 1080.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 16, 1978.
    Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.
    William M. Holland, Rusk, for appellee.
   McKAY, Justice.

This is a will contest case where the appellant Willard Wysick contested the provisions of the will of his deceased wife, Flarrie Smith Wysick. The will left him no part of her estate.

The case was tried before a jury which found in two special issues that the decedent had testamentary capacity, and that the decedent had not been unduly influenced at the time she signed her will. The court accordingly entered judgment that the will be admitted to probate.

Appellant married decedent on October 13, 1937. No child was ever born to them or adopted by them at any time. Mrs. Wysick had one marriage prior to her marriage to appellant, and there was no child born to that union or adopted by them.

The evidence is in dispute as to the circumstances of the Wysicks’ marriage. However, some facts are undisputed. The couple lived apart during much of the marriage. Decedent had returned to the Ponta, Texas area around 1947 in order to, along with her sister, Laura Smith Davis, care for her parents. Beginning in 1946 appellant maintained his residence in New Orleans, with intermittent visits to the Ponta area. The decedent’s parents died in 1957 and 1958.

The will in question was dated July 23, 1974, and was executed by the decedent while in her hospital bed, seriously ill, in Jacksonville. The decedent died on January 16, 1975, less than six months after the execution of her will. Through her will the decedent devised the principal portion of her estate to her two nephews, the children of Laura Smith Davis, with the balance bequeathed to that same sister and a brother.

Appellant’s sole point of error complains of the trial court’s failure to submit an explanatory instruction as to the meaning of the phrase “her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them.”

The trial court’s instruction to the jury on testamentary capacity, in pertinent part, is as follows:

“By the term ‘testamentary capacity’ as used herein is meant that the person making the will must, at the time she signed the will, have sufficient mental capacity to understand the effect of making a will, to know the general nature and extent of her property, to know her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them. . . . ”

Appellant requested the jury be additionally instructed as follows:

“You are instructed that the term ‘her next of kin and the natural objects of her bounty’ means her descendants, if any, her parents, if any, and her surviving spouse, if any. Her nephews, nieces, brothers, and sisters and all other collateral heirs are not natural or normal objects of her bounty because of such relationship alone, and further that ordinarily the ‘natural objects of Testatrix’s bounty’ are those who, in the absence of a will, would inherit her property, but the question of who comes within the range of Testatrix’s bounty depends upon the facts and circumstances surrounding the Testatrix.”

The court refused to give appellant’s requested instruction.

After the jury had deliberated 2 hours and 5 minutes, they requested, by a note, the court to explain the term “natural objects of her bounty and their claims upon her reasonable judgment.” The court refused to give any further instructions, despite another request by appellant to submit that instruction which had been previously requested and refused.

Appellant contends that the phrase as used in the court’s charge is not one of ordinary meaning that a jury can understand and uniformly apply in responding to the special issue submitted to them, and refusal to submit the requested instruction was such a denial of the rights of the contestant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. We disagree.

We are of the opinion that the definition of testamentary capacity as given in the court’s charge is substantially the same as has been previously approved in the courts of this state. See Prather v. McClelland, 76 Tex. 574, 13 S.W. 543, 547 (1890); Rutherford v. Robbins, 298 S.W. 549 (Tex.Comm.App.1927, holding approved); Nass v. Nass, 224 S.W.2d 280, 283 (Tex.Civ.App.-Galveston 1949), and cases there cited, affirmed, 149 Tex. 41, 228 S.W.2d 130; Reding v. Eaton, 551 S.W.2d 491 (Tex.Civ.App.-Austin 1977, no writ); Bettis v. Bettis, 518 S.W.2d 396 (Tex.Civ.App.-Austin 1975, writ ref’d n. r. e.); Montgomery v. Willbanks, 202 S.W.2d 851, 854 (Tex.Civ.App.-Fort Worth 1947, writ ref’d n. r. e.). Therefore, in our opinion the trial court committed no error in failing to submit appellant’s additional requested instruction. Appellant’s point of error is overruled.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Ann P. MILLER, Appellant, v. David Andrew WHITTLESEY, Appellee.
    No. 1084.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 16, 1978.
    Rehearing Denied March 23, 1978.

      Ronald L. Wilkinson, Johannes, Robertson & Wilkinson, Dallas, for appellant.
    Lancaster Smith, Harvey L. Davis, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a final order granting defendant’s motion for summary judgment. Ann P. Miller (plaintiff) sued David Whittlesey (defendant) for damages, alleging that defendant’s negligent acts or omissions had been the proximate cause of personal injuries to plaintiff’s husband, Stewart R. Miller, thereby depriving the plaintiff of her husband’s consortium. The injuries to Mr. Miller were received in an automobile accident involving himself and the defendant.

The controlling issue of law as set out in defendant’s motion for summary judgment is stated as follows:

“Can a Texas wife recover damages for loss of consortium for the alleged negligent injury to her husband?”

The trial court gave a negative answer to the question and rendered judgment as a matter of law for the defendant.

We reverse and remand the summary judgment.

Black’s Law Dictionary defines consortium as “conjugal fellowship of husband and wife, and the right of each to the company, co-operation, affection, and aid of the other in every conjugal relation.” Consortium has been defined in Texas as “. . . the right to the affection, society, comfort and assistance of the spouse.” Whitley v. Whitley, 436 S.W.2d 607, 609 (Tex.Civ.App.—Houston 1968, n. w. h.); see also Smith v. Smith, 225 S.W.2d 1001, 1006 (Tex.Civ.App.—Amarillo 1949, n. w. h.). The common law has long recognized that a husband has a cause of action for damages for loss of consortium due to the negligent injury of his wife by a third party. 21 A.L.R. 1519; 41 C.J.S. Husband and Wife § 401c(3), pp. 890, 897; Rickman, The Negligent Impairment of Consortium — A Time For Recognition As A Cause Of Action In Texas, 7 St. Mary’s L.J. 864, 865 (1976); Restatement of the Law of Torts 2d sec. 693 at p. 496. A wife had no such cause of action at common law.

Tex.Rev.Civ.Stat.Ann. art. 1, states as follows:

“The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or appealed by the Legislature.” See also Texas Constitution, Article 16, sec. 48.

The Texas Supreme Court has held that we are bound to follow the common law as it was adopted in Article 1. Felsenthal v. McMillian, 493 S.W.2d 729 (Tex.1973). Since the common law recognizes this cause of action brought by the husband, and our legislature has not changed this law, this has been and is still the law in Texas.

The appellee relies upon the case of Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). In that case, a wife was denied recovery for damages for the loss of consortium she suffered when her husband was negligently injured by his employer. We feel this case was correctly decided since the opinion was delivered in 1954, prior to the passage of the Texas Equal Rights Amendment. Tex.Const. art. I, sec. 3a. The ap-pellee asserts that Garrett also stands for the proposition that a husband has no cause of action in Texas for the negligent impairment of his consortium. We do not find any such statements in Garrett. Even if such statements could be found in the opinion (which they are not), they would be dicta and not necessary to a holding on the facts of the case.

We have found no Texas cases stating whether or not a husband has a cause of action for negligent injury to his spouse resulting in a loss of consortium. See McKnight, Matrimonial Property, 26 Sw. L.J. 31, 49; Simpkins, Texas Family Law, sec. 8:3; Rickman, supra, at page 865. We are bound to follow the common law until such time as the legislature sees fit to change it. It is not within the authority of this court to gauge the wisdom of such a cause of action. We must follow the law as it exists.

The law as it exists at the present time allows a husband a cause of action for the negligent injury to his wife resulting in a loss of consortium. In 1972, Article 1, sec. 3a of the Texas Constitution was adopted and has become known as the Texas Equal Rights Amendment. This amendment to our Constitution has modified the common law to such an extent that it would be improper to deny a cause of action based upon the sex of the party bringing the action. Since the husband was allowed a cause of action at common law based on the legal question presented to us, we hold that in Texas a wife presently possesses such a cause of action for the negligent impairment of consortium.

The judgment of the trial court is reversed and the cause is remanded.


author: MOORE, Justice.

text:
    The CITY OF SULPHUR SPRINGS, Appellant, v. Durwood STEED et ux., Appellees.
    No. 1045.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 16, 1978.

      W. T. Allison, II, Ramey & Allison, Sul-phur Springs, for appellant.
    Coy Johnson, Smith, Johnson & McDowell, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellees.
   MOORE, Justice.

This is an eminent domain proceeding. Condemnor, City of Sulphur Springs, instituted the proceedings to condemn a twenty-foot wide sewer easement some 1,672 feet in length consisting of approximately three-fourths of an acre across condemnee’s 102.5-acre dairy farm. Condemnee, not being satisfied with the award of the special commissioners, appealed therefrom and trial was had before the court and jury in the District Court of Hopkins County, Texas. It was stipulated that the value of the three-fourths acre easement taken was $836.50. In response to Special Issue No. 1, the jury found that the average per acre value of the remaining 101.75 acres before the condemnation was $1,200 per acre, and in response to Special Issue No. 2 found that the average per acre value after the taking of the sewer easement was $1,000 per acre. Judgment was rendered in favor of the condemnee for the sum of $21,186.50, from which judgment the city perfected this appeal.

We affirm.

In its statement in condemnation the city sought (1) to condemn the fee title to the three-fourths acre tract; (2) the right to construct, alter, maintain and operate and replace at any time, now or in the future, sewer lines of any kind, number or size, in, on, under and across the easement; (3) the right of free ingress and egress over and across all of the remainder of the con-demnee’s property adjacent thereto; and (4) the right to keep the surface and subsurface of said easement clear at all times of all improvements, and all other obstructions or hindrances in any way affecting the city’s rights thereunder.

The city seeks a reversal by three points of error, urging that there is no evidence to support the jury’s finding on Special Issue No. 2 that the average per acre value of the 101.75-acre tract after the taking of the sewer was $1,000 per acre. Alternatively, the city contends that such finding is against the overwhelming weight and preponderance of the evidence.

The landowner admitted the city’s right to take the easement. Thus, the issue in dispute is whether the evidence supports the finding that the taking of the easement resulted in a $200 per acre diminution in the value of the remainder.

The landowner offered four witnesses who testified as to the “before” and “after” value of the remainder of the land.

Wayne McGrady, a licensed real estate agent, testified that the value of the remainder of the land was $1,200 per acre before the condemnation and $1,000 after the taking of the easement. His reason for the diminution in value was based on the following conclusions: (1) the taking would vest all right, title and interest in the twenty-foot strip in the city and would therefore have the effect of dividing the land in two tracts; (2) since the city had the right to install any size pipe above the ground, the installation of such pipes above the ground would materially interfere with the use of the land as a whole; (3) the installation of the sewer line would result in a loss of privacy; (4) the four manholes which the city proposed to construct on the easement would depreciate the value of the remainder of the land; and (5) under the terms of the petition in condemnation the city would have the right of ingress and egress over the entire remainder of the land, as distinguished from ingress and egress over the easement, thereby resulting in interference with the use of the remainder.

Jimmy Ross, a dairy farmer, testified that in his opinion the average per acre value of the remainder was $1,200 to $1,300 before the taking and $1,000 to $1,100 per average acre after the taking. His reason for the diminished value was based on the fact that the city would have a right to ingress and egress over the entire remainder, and also on the fact that the city would have a right to place any number of sewer lines of any size on the twenty-foot strip above the surface, thereby resulting in inconvenience in the use of the remainder.

Jack Gooding, another dairy farmer, testified that the before and after value of the remainder was $1,200 and $900 per average acre, respectively. The only reasons he gave for the diminished value after the taking was the fact that the construction of the sewer line would decrease the value of the improvements and that the city’s right of ingress and egress over the entire remainder would interfere with the use of the land.

Bill Tate, who owned six dairy farms and leased two more, testified that the average value per acre before the taking was $1,200 and that the average per acre value after the taking was $1,000. He was not asked by either party as to “why” or “how” he reached his conclusion.

After the landowner had rested, the city called A. D. Nance, a real estate broker, who testified that in his opinion there was no diminution in the value of the remainder because the easement was situated on the least desirable part of the land.

At this point, the city requested, and was granted, the right to amend its pleadings. By its amended pleadings, the city relinquished its request for the fee title, the right to lay a sewer line or lines above the ground, the right to lay other sewer lines in the future, the right to keep the subsurface of the easement clear at all times, and the right of ingress and egress over the remaining land. In substance the amended petition sought judgment only for a twenty-foot easement for the purpose of constructing an underground sewer line, together with ingress and egress thereon. Counsel for the city was allowed to read and explain to the jury the contents and the purposes of the amended petition.

Thereafter, the city called another value witness who testified that he was of the opinion that the average per acre value before and after the taking of the easement remained the same and that no diminution in value resulted to the remainder.

The city’s contention that there is no evidence to support the jury’s finding is based on the assumption that the jury took into consideration all of the elements of damages testified to by the witnesses as if they were a direct result of all the rights and privileges claimed by the city in its original statement in condemnation. It is argued that the verdict shows that the jury awarded the landowner the amount of damages testified to by the witnesses, just as if the city had not relinquished any of its rights. The city argues that, since it relinquished all of its rights except for an easement to lay one sewer line below the surface of the ground, the damages would necessarily be much less than the $200 per acre estimated by the witnesses who based their testimony on the easement rights originally claimed by the city. The city therefore argues that since the landowner did not recall his witnesses and offer any proof as to what the damages were in light of the city’s reduced claim, nor offer other witnesses to testify as to the amount of damages based on the amount of the reduced claim, the proof does not constitute any evidence of what damages resulted to the remainder based solely on its reduced claim. The city contends that to allow recovery on the basis of the value estimated by the witnesses would be to ignore the fact that it relinquished some of its rights, and would allow the landowner a recovery for easement rights which had been abandoned. We are not in accord with this proposition.

All of the landowner’s witnesses testified that the taking of the twenty-foot strip and the construction of the sewer line would diminish the market value of the remaining property. Three of the witnesses were of the opinion that the market value of the remainder would be diminished in the amount of $200 per acre. Jack Good-ing testified, however, that in his opinion the damages resulting to the remainder would amount to the sum of $300 per acre. Contrary to his opinion, the jury found, in effect, that the market value of the remainder would be diminished by the sum of $200 per acre. Under his testimony, the jury would have been authorized to find that the difference in the before and after value of the remainder was $300 per acre. Conceivably, the jury could have concluded that the market value of the remainder was diminished by the sum of $300 per acre, but, in view of the fact that the city had relinquished some of its rights, the remainder would suffer damages only to the extent of $200 per acre. In other words, the jury could have concluded that the city was entitled to a reduction in the amount of $100 per acre due to the fact that the city had relinquished some of its easement rights. Thus, when viewed in a light most favorable to the jury’s findings and the judgment based thereon, we are of the opinion that there is evidence of probative force to support the judgment. The city’s “no evidence” point of error is overruled.

Even though the court was not requested to limit or qualify any of the testimony of the landowner’s witnesses in the charge to the jury, the court nevertheless properly charged the jury on the rights of the parties and the purposes of the easement as follows:

“In connection with the following special issues, you are instructed that the easement and related rights acquired by condemnation by the City of Sulphur Springs in the easement in question and the specific purposes for which they are to be used are the right to construct, alter, maintain, operate and replace at any time, now or in the future, a sewer line in and under the said easement, together with the free right of ingress and egress over and across such easement for any of the purposes aforesaid, and the further right to keep the surface of said easement clear at all times of all improvements, trees, shrubs, or other growth of any kind and of all other obstructions or hindrances in any way affecting the City of Sulphur Springs’ rights hereunder.”

Had the city desired fully to protect itself against the possibility that the jury might have become confused as to what testimony they could or could not consider, the city would have been authorized to request the court to instruct the jury not to consider any testimony or assess any damages for any of the easement rights which it had abandoned and relinquished. City of Beaumont v. Marks, 443 S.W.2d 253, 256 (Tex.1969); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201 (1936). In addition to this, the city could have requested permission to recall the landowner’s witnesses and re-examine them in light of its amended petition wherein it relinquished some of its rights. The city adopted neither course, and thus waived its right to complain of the testimony relating to items of damages given before it filed its amended petition.

After reviewing the record as a whole and after weighing and balancing all of the evidence, we are of the opinion that this is not a situation where it could be said that the verdict or judgment is against the overwhelming weight and preponderance of the evidence or that the evidence is insufficient to support the judgment. Accordingly, the city’s two “insufficiency” points are overruled.

Finally, the city requests a remitti-tur. Nowhere has the city challenged by a point of error that the judgment is excessive. The request for remittitur is found only under the conclusion and prayer in the brief. Points of error constitute an indispensable part of a brief on appeal and an alleged error not contained in any point of error should not be considered. Cruse v. Daniels, 293 S.W.2d 616 (Tex.Civ.App—Amarillo 1956, writ ref’d n. r. e.); Wagley v. Fambrough, 163 S.W.2d 1072 (Tex.Civ.App.—Eastland 1942), affirmed, 140 Tex. 577, 169 S.W.2d 478 (1943); Rule 418, Tex. R.Civ.P. In any event the city will be held to have waived the matter since the matter of remittitur was neither briefed nor argued. Bifano v. Econo Builders, Inc., 401 S.W.2d 670 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.); St. Paul Mercury Ins. Co. v. Sugarland Industries, Inc., 406 S.W.2d 778 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.).

The judgment is affirmed.


author: DODSON, Justice.

text:
    Ilse KLEIN et vir., Elgin Klein, Appellants, v. BROWN-GRIFFIN TEXACO DISTRIBUTORS, INC., B. R. Griffin and Joe Dale Clary, Appellees.
    No. 8831.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 21, 1978.
    Rehearing Denied March 20, 1978.
    Mark Smith & Associates, Mark Smith, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellees.
   DODSON, Justice.

This is a common law negligence action for personal injury damages. Ilse Klein and husband Elgin Klein, plaintiffs-appellants, brought suit against Brown-Griffin Texaco Distributors, Inc., and Joe Dale Clary, defendants-appellees. The Kleins alleged that Mrs. Klein sustained personal injuries when her car was struck from the rear by a truck owned by the defendant corporation and driven by defendant Clary. The case was tried to a jury which found neither Mrs. Klein nor the defendants guilty of any negligence. On the jury’s verdict, the trial court entered a take-nothing judgment. From this adverse judgment, the Kleins appeal to this court. We affirm.

The collision occurred on the afternoon of May 9, 1972, as Mrs. Klein and defendant Clary were westbound on 34th Street in Lubbock, Texas. Mrs. Klein was in the outside (right) traffic lane traveling about 15 m. p. h. two or three car lengths behind another vehicle that had been signaling a right turn for several blocks with several opportunities to turn. Defendant Clary was traveling about 20 to 25 m. p. h. in the outside (right) traffic lane behind the Klein vehicle. The lead car’s speed decreased almost to a stop as it very slowly made a right turn. The lead car’s action surprised Mrs. Klein and she stopped her vehicle as quickly as she could to avoid colliding with it. Clary testified he saw the car in front of Mrs. Klein begin to turn and the brake lights on Mrs. Klein’s car came on. He immediately applied his brakes and tried to stop. The truck skidded into the rear of Mrs. Klein’s car and moved it a few feet after impact.

The jury did not find Clary negligent in failing to turn left, failing to keep a proper lookout or following too closely. Clary’s failure to turn left was the only causation issue answered favorably to the Kleins. By eight points of error, they complain of the absence of favorable findings on the other issues.

The Kleins contend in point of error one “the evidence proves conclusively as a matter of law that defendant Clary was negligent in failing to turn to the left immediately before the occurrence” (special issue two) and in point of error two “the jury’s finding . . . that defendant Clary’s failure to turn to the left was not negligence is so against the great weight and preponderance of the evidence as to be manifestly unjust.”

Their contentions are based in part on Clary’s testimony when called as an adverse witness. Asked if there was “any way at all that you could have stopped in time to avoid her when you saw her stop,” Clary replied, “Not unless I pulled to the left or pulled to the right.” When asked why he did not pull to the left Clary responded, “Well . . . you just don’t think that quick.” When repeatedly asked if there was traffic in the lane to his left, Clary at first answered that the lane was open before reiterating that he did not think to look if it was open. The trial court granted the Kleins request for a trial amendment to their pleadings to include an allegation that Clary was negligent in failing to turn to the left.

Clary’s testimony shows that the moment Mrs. Klein’s brake lights came on he immediately stepped on his brakes to avoid the collision, and further indicates that he did not have time to see if he could turn left safely. He reacted immediately to attempt to avoid the collision. At best, he could have had but one of two choices: either to apply his brakes or turn his vehicle. The evidence does not establish that his reaction was wrong. The Kleins did not conclusively establish that the left lane was clear and open and that the collision could have been avoided by Clary turning to the left. Moreover, even if the left lane had been shown to be clear, Clary was not required to make a so-called correct choice between two equally reasonable alternatives for avoiding the collision. See Flores v. Anaya, 348 S.W.2d 410, 413 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.).

We do not agree that the Kleins have conclusively established as a matter of law that Clary was negligent in failing to turn to the left to avoid the collision as contended in point of error one. In like manner, we cannot agree with their second contention that the jury’s failure to find that Clary was negligent in failing to turn left was against the great weight and preponderance of the evidence. It was uniquely within the jury’s province to determine whether plaintiff succeeded in proving negligence by a preponderance of the evidence. City of Beaumont v. Graham, 441 S.W.2d 829, 835 (Tex.1969). From these facts we cannot say the absence of a finding is manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973). Points of error one and two are overruled.

In points three and five, respectively, the Kleins say they conclusively established as a matter of law that Clary negligently failed to keep a proper lookout and that this failure was a proximate cause of the collision. Also, they contend in points four and six that the jury’s failure to find in their favor on these issues was so against the great weight and preponderance of the evidence as to be manifestly unjust.

The duty to maintain a proper lookout is determined by the circumstances of each case. Hatcher v. Mewbourn, 457 S.W.2d 151, 152-53 (Tex.Civ.App.—Texarkana 1970, writ ref’d n. r. e.). The Kleins assert that under the facts of this case they satisfied the burden of proving Clary’s negligence in failing to maintain a proper lookout. They reason that by placing himself in a position where he could not stop without a collision, and by not determining whether an escape route was clear to his left, Clary did not keep a proper lookout.

Clary testified that he was watching straight ahead and saw both cars, saw the car in front of Mrs. Klein begin to turn, saw the brake lights on Mrs. Klein’s car come on and as soon as the brake lights came on, he immediately applied his brakes and tried to stop. This uncontradicted testimony is more than ample evidence to justify the jury’s answer that Clary did not fail to keep a proper lookout. We conclude the Kleins failed to conclusively establish Clary’s negligence as a matter of law. In addition, it is clear that the jury’s adverse answer was not against the great weight of the evidence.

Neither are we persuaded that the Kleins succeeded in establishing Clary’s negligence in failing to look to determine if the left lane was clear and thus avoid Mrs. Klein’s car. The testimony of Mrs. Klein reveals that there was traffic to her left. Clary did not know if there was traffic to his left although he had been checking his side and rear view mirrors frequently. It is not readily apparent whether a reasonably prudent driver in Clary’s position would have been aware of both the danger immediately ahead of him and the status of traffic to his left at that moment. These facts create a jury question of whether there existed a duty to look to the left. Compare, Hatcher v. Mewbourn, supra, at 153, with Oakley v. C. E. Duke’s Wrecker Service, 557 S.W.2d 810, 813 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). Therefore, the Kleins have not established Clary’s negligence in failing to maintain a proper lookout to his left as a matter of law and the jury’s adverse finding was not against the great weight and preponderance of the evidence. Points of error three and four are overruled and, absent negligence, we need not reach the questions of causation presented in points of error five and six.

In their final two points, the Kleins contend the jury’s failure to find that Clary was negligent in following too closely (point seven) and that such negligence was a proximate cause of the collision (point eight) is, in each instance, so against the great weight and preponderance of the evidence as to be manifestly unjust.

Clary testified that when he saw Mrs. Klein’s brake lights come on he was approximately 60 or 75 feet behind the car. His testimony established that his truck made 60 feet of skid marks before it hit Mrs. Klein’s car. The Klein vehicle moved only a few feet after being struck by the Clary truck. The collision occurred approximately 20 feet east of the intersection where the lead vehicle turned right. Mrs. Klein testified she had to stop suddenly and quickly to avoid colliding with the slow turning lead vehicle. On cross-examination of Mrs. Klein, her previous deposition testimony was introduced into evidence. She was asked:

All right. And I take it from what you have told me if this man in front of you hadn’t stopped and required you to stop, then in your opinion the accident probably wouldn’t have happened — .
And what did you answer?
[She replied] I guess so.

The fact that a rear-end collision occurred does not establish negligence on the part of the driver of the following vehicle. O’Neill v. Craig, 493 S.W.2d 898, 901 (Tex.Civ.App.—Corpus Christi 1973, cert. denied, 415 U.S. 919, 94 S.Ct. 1418, 39 L.Ed.2d 474 (1974)). Here, the occurrence of the collision presents no more than an issue of negligence for the trier of the facts. Clary’s acts or omissions, if any, are tested by what a reasonable prudent person would have done or not done under the same or similar circumstances. The issue was properly for the jury.

The jury was not compelled to find negligence on the part of Clary. Under these facts we cannot say the jury’s failure to find negligence was so against the great weight and preponderance of the evidence as to be manifestly wrong. The Kleins’ seventh point of error is overruled, and in the absence of a negligence finding, we do not reach the causation point presented in the eighth point of error.

In conclusion, we have examined and considered all the evidence in this case, and we conclude that it does not conclusively establish, as a matter of law, that Joe Dale Clary was negligent in failing to turn his vehicle to the left immediately before the occurrence in question or in failing to keep a proper lookout.

Also, we have considered all the evidence, including that opposing as well as that favorable to the jury’s verdict, to determine if each challenged answer is against the great weight and preponderance of the evidence. When so considered, we conclude the failure of the jury to find that Joe Dale Clary was negligent in failing to turn his vehicle to the left immediately before the occurrence in question, or its failure to find that Clary was negligent in failing to keep a proper lookout on the occasion in question, or its failure to find Clary was negligent in following too closely, in each instance, is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Points of error one, two, three, four and seven are overruled.

Accordingly, the judgment of the trial court is affirmed.


author: ROBINSON, Chief Justice.

text:
    In the Matter of P. A. C.
    No. 8847.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 21, 1978.

      Russell C. Busby, Amarillo, for appellant.
    Kerry Knorpp, County Atty., Diana Dowd Ulrich, Asst. County Atty., Amarillo, for appellee.
   ROBINSON, Chief Justice.

In this juvenile certification hearing the juvenile court waived its jurisdiction and transferred appellant to a district court for criminal proceedings. Appellant challenges, inter alia, the admissibility of her confession and certain affidavits, the legal and factual sufficiency of the evidence, and the failure to appoint a guardian ad litem. Affirmed.

Appellant was 15 years old at the time of the alleged offense and 16 years old at the time of the hearing. The offense charged is the murder of a 74 year old man who died of multiple stab wounds. A police investigation of the murder showed that the deceased’s automobile was missing. The automobile was found, burned, in Arkansas. Not long afterward appellant and four others, all suspects in the case, were apprehended on the Arkansas River where they were camping. The arrest was made shortly before midnight on September 14, 1976. An Arkansas police officer testified that appellant was given Miranda warnings by officers after the arrest. Her confession was signed at 6:25 a. m. on the morning of September 15, 1976. Accompanying her statement was a signed waiver of Miranda rights. Appellant was not taken before a magistrate until the following day, when officers from the Amarillo Police Department arrived in Arkansas. On September 16, 1976, at 5:50 p. m., appellant signed a second waiver of her constitutional rights, this time before a magistrate. The magistrate certified that appellant knowingly and voluntarily waived her rights, was competent to make a confession, and that the statement given by her the previous morning was valid and made without any form of coercion. Appellant and the other suspects were returned to Potter County, Texas.

The State of Texas filed a petition requesting the juvenile court to waive its original jurisdiction and transfer appellant to a district court for criminal proceedings. As required by Section 54.02(d), Tex.Family Code Ann., the juvenile court ordered and obtained diagnostic studies, a social evaluation, and full investigation of the child. At the certification hearing the State offered the testimony of the employee of the Potter County Juvenile Probation Department who prepared the social case history; five witnesses from the Amarillo Police Department, who testified concerning the investigation of the crime itself; one witness from the Pulaski County, Arkansas, Sheriff’s Office who testified concerning the circumstances under which appellant made her written confession; and a psychiatrist and a clinical psychologist, who testified concerning appellant’s sophistication and maturity. Appellant’s confession and certain affidavits taken by police, which linked appellant to the crime, were admitted by the trial court for the limited purpose of determining whether there was evidence on which a grand jury could be expected to return an indictment. Appellant offered the testimony of a clinical psychologist and of an employee of the Department of Public Welfare. At the conclusion of the hearing the trial court granted the State’s petition and transferred the child to the 181st District Court.

The child appeals, contending that the affidavits of witnesses were inadmissible hearsay. She further contends that her confession was inadmissible in the certification hearing because it was taken under circumstances which rendered it inadmissible in an adjudication hearing. See Tex. Family Code Ann. § 51.09.

We overrule each of these contentions. A juvenile certification hearing is not a trial on the merits. See B. L. C. v. State, 543 S.W.2d 151 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.). At the hearing the court does not consider guilt or innocence, but whether the juvenile’s and society’s best interest would be served by maintaining custody of the child in the juvenile system or by a transfer to a district court for trial as an adult. In the Matter of Honsaker, 539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.)

Tex.Family Code Ann. § 54.02(f) provides that in making the determination whether to waive its exclusive original jurisdiction, the juvenile court shall consider, among other matters, the following:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Although appellant contends that the affidavits were hearsay, she concedes that the affidavits in question were admitted for the sole purpose of establishing that the statements had been made to the police and not for the purpose of proving the truth of any assertion in the statements. The statements, thus, could not be hearsay. In Matter of Honsaker, 539 S.W.2d at 201, the court stated:

Hearsay has been defined as: ‘Testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value on the credibility of the out of court asserter.’ McCormick on Evidence § 246, at 284 (1972). In Irving Lumber Co. v. Alltex Mortgage Co., 446 S.W.2d 64, 71 (Tex.Civ.App.—Dallas 1969), affirmed 468 S.W.2d 341 (Tex.1971), we stated that written evidence of an out-of-court statement is not ‘hearsay’ unless it is offered as proof of a fact asserted.

The affidavits were properly admitted because they were relevant to the question of whether there was evidence on which a grand jury might be expected to return an indictment. For the same reason, the purported confession given by the child was admissible. A grand jury is not required to follow the rules of evidence in determining whether to return an indictment. In the Matter of D. W. M., 556 S.W.2d 390, 392 (Tex.Civ.App.—Waco 1977, no writ). Thus, it was not necessary for the trial judge to determine if the confession was admissible in a trial of guilt or innocence, before admitting it in the certification hearing.

Appellant contends that there is no evidence to support a finding by the trial court that the alleged offense was committed in an aggressive and premeditated manner. She contends that there is insufficient evidence to support a finding that she was of sufficient sophistication and maturity to be tried as an adult and a finding that there was evidence upon which a grand jury could be expected to return an indictment. Appellant also contends that the trial court abused its discretion by failing to find that there was a likelihood that appellant could be rehabilitated by use of the procedures, services and facilities available to the trial court.

In reviewing evidence points, the role of this court is clear:

The rule is well established in this State that an appellate court will not disturb the findings of the trier of the facts on conflicting evidence where there is some evidence to support such finding and verdict, unless such finding and verdict is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.
The trial court saw and heard the defendant and the witnesses, and had an opportunity to observe their appearance, conduct, and demeanor to evaluate the respective qualifications of the witnesses, and to pass on their credibility. This Court cannot substitute its opinion as to the credibility of the witnesses and the weight to be given their testimony for that of the trial court, as this is the sole province of the trier of the facts.

R. K. M. v. State, 535 S.W.2d 676, 680 (Tex.Civ.App.—San Antonio 1976, no writ). In addition to other evidence, the juvenile court heard testimony on factors listed in § 54.02(f) from a psychiatrist, clinical psychologists, and juvenile case workers familiar with appellant. There was testimony that appellant had a normal I.Q. and good judgment, and that adequate rehabilitation of the child could probably not be provided by the juvenile system.

After considering the evidence in the light most favorable to the trial court’s finding we conclude that there is evidence that the crime was committed in an aggressive and premeditated manner. After considering all of the evidence including that which is unfavorable to the trial court’s judgment as well as that which supports it, we do not find that the trial court abused its discretion in failing to find that there was a likelihood of the rehabilitation of appellant by the use of procedures, services, and facilities currently available to the juvenile court. Likewise we conclude that each of the challenged findings and the judgment are not so against the preponderance of the evidence as to be manifestly unjust.

Appellant contends that the court erred in failing to appoint a guardian ad litem for her when it became apparent that her natural mother had not been notified of the hearing. The provision for appointment of guardian ad litem is made in Tex. Family Code Ann. § 51.11. The relevant portion of § 51.11 states:

(a) If a child appears before the juvenile court without a parent or guardian, the court shall appoint a guardian ad litem to protect the interests of the child. The juvenile court need not appoint a guardian ad litem if a parent or guardian appears with the child.
(b) In any case in which it appears to the juvenile court that the child’s parent or guardian is incapable or unwilling to make decisions in the best interest of the child with respect to proceedings under this title, the court may appoint a guardian ad litem to protect the interests of the child in the proceedings.

In the case before us, appellant’s mother could not be found before the hearing and did not appear. Her father was present and seated at the counsel table. The State introduced an affidavit given by the father, which considered with other affidavits, tended to implicate appellant as a participant in the crime. However, an examination of the affidavit reveals nothing which would require the court to view the father’s position as adverse to appellant or cause the court to believe that he was unwilling to make decisions in the best interest of the child. We do not find that the trial court erred in failing to appoint a guardian ad litem for appellant.

By her final point of error, appellant contends that § 54.02 Tex.Family Code Ann. is unconstitutional because it violates the due process clause and the equal protection clause of the United States Constitution. She cites no authority supporting this contention and we find none. The point of error is overruled.

We conclude that the juvenile court did not abuse its discretion by waiving its jurisdiction and transferring appellant to district court for criminal proceedings. Each of appellant’s points of error is overruled.

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    TEXAS CRUSHED STONE COMPANY et al., Appellants, v. NATIONAL HOUSING INDUSTRIES, INC., et al., Appellees.
    No. 12694.
    Court of Civil Appeals of Texas, Austin.
    Feb. 22, 1978.

      Forest D. Cook, James K. Presnal, Inc., Austin, for Texas Industries, Inc.
    Karl H. Moeller, Hooper, Robinson & Moeller, Austin, for Texas Crushed Stone Co.
    Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellees.
   SHANNON, Justice.

The issue is whether the lienholder, Glenn Hayden, was an artisan or mechanic under the terms of Tex.Rev.Civ.Stat.Ann. art. 5469, and was, therefore, entitled to a preference in a fund retained by appellees, National Housing Industries, Inc., NHI of Texas, Inc., and Equity Investors, Inc. The district court of Travis County resolved the issue in favor of Hayden and entered judgment for $5,878.10, the full amount of his claim. The judgment divided ratably the balance in the retainage fund, $836.84, between appellants Texas Crushed Stone Company and Texas Industries, Inc., the remaining lienholders. We will affirm the judgment of the district court.

Appellees contracted with WCE Construction, Inc., for excavation and paving work in the development of a real estate project in Austin, known as “The Village Square.” WCE Construction, Inc., contracted with a number of subcontractors to perform specific tasks on the project. WCE Construction, Inc., later abandoned the project without paying three subcontractors: Hayden and appellants. The subcontractors filed mechanics’ and materialmen’s lien affidavits against the project and sought a foreclosure in the amount of their claims. The lien claimants sought the full value of their respective liens: Hayden, $5,878.10; Texas Industries, Inc., $6,867.36; and Texas Crushed Stone Company, $8,655.35. The total amount in the retain-age fund was $6,714.94.

After trial to the court, judgment was entered as written above. No party requested the district court to prepare findings of fact and conclusions of law, and none were prepared or filed. As a result, it is assumed on appeal that the district court found every fact necessary to sustain the judgment if such factual proposition were raised by the pleadings and supported by the evidence, Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950), and the judgment will be affirmed on any theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

Article 5469 creates a preference in the retainage fund for complying artisans and mechanics “who perform labor or services” on the job. All such artisans and mechanics under the statute share ratably in the retainage fund to the extent of their claims, and the balance in the fund is divided ratably among all other participating claimants.

By entering the judgment, the district court necessarily concluded that there was evidence that Hayden was an artisan or mechanic who performed labor or services on the job. Appellants attack that finding by a single point of error: the court erred in awarding Hayden a preference in the retainage fund “ . . . for the reason that there was no evidence that Hayden was entitled to a preference on any theory of law.” In determining whether there is any evidence to support the judgment, it is proper to consider only that evidence most favorable to the finding and disregard entirely that which is opposed to it or is contradictory in its nature. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Renfro Drug Co. v. Lewis, supra.

Ruben Trevino, appellees’ project manager on the job, testified that Hayden’s charges were for labor only and did not include charges for materials:

Question by Mr. Robinson:
“Q. Right. So, if you add all of these up, it shows the total amount of work that Mr. Hayden had done up until the time of this . . . ”
Answer by Mr. Trevino:
“A. Well, not necessarily, because Hayden, as I understand, just supplied the labor and WCE bought the concrete separately . . . ”

Trevino’s testimony is some evidence to support the court’s finding that Hayden was an artisan or mechanic “who performed labor or services” on the job.

Appellant’s point is overruled and the judgment is affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    Francis NELSON, Appellant, v. The STATE of Texas, Appellee.
    No. 12741.
    Court of Civil Appeals of Texas, Austin.
    Feb. 22, 1978.
    Stephen L. McCleery, Berwick & McCleery, Austin, for appellant.
    James L. McMurtry, County Atty., Patrick M. Kelly, Asst. County Atty., Austin, for appellee.
   O’QUINN, Justice.

Appeal in this case is from judgment of the County Court of Travis County, entered upon findings of a jury, committing appellant as a patient for observation and treatment in Austin State Hospital for an indefinite time.

The attorney ad litem appointed by the trial court represented appellant at the hearing and brings this appeal. The brief in behalf of appellant fails to include any point of error upon which appellant relies on appeal. Both appellant and appellee through counsel in the briefs request this Court to “review the record herein in the interests of justice.”

By joint motion, granted by this Court from the bench on the date set for oral argument and submission, the parties waived oral argument.

Rule 418(d), Texas Rules of Civil Procedure, requires of the brief for appellant: “A statement of the points upon which the appeal is predicated shall be stated in short form without argument and be separately numbered.” (As amended, effective January 1, 1978).

It is settled that a point of error is an indispensable part of a brief on appeal. When the brief for appellant does not embrace any point of error, and no fundamental error appears in the record, the brief presents nothing for the appellate court to review, and the appeal is not entitled to consideration. Braswell Motor Freight Lines, Inc. v. Tetens, 538 S.W.2d 224, 225 (Tex.Civ.App.Austin 1976, no writ) and authorities there cited.

We have examined the record and find no fundamental error and no ground for reversal or modification of the trial court’s judgment. We deem it proper to affirm the judgment.

Judgment of the trial court, committing appellant as a patient for observation and treatment in Austin State Hospital for an indefinite period, is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Monica Erika GRIFFIN et vir, Appellants, v. Clifton STANLEY, Appellee.
    No. 5869.
    Court of Civil Appeals of Texas, Waco.
    Feb. 23, 1978.
    Rehearing Denied March 23, 1978.
    Joshua W. E. Taylor, Gillis, Rogers & Taylor, Dallas, for appellants.
    Thomas P. Earls, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

Appellants Monica Erika Griffin and Joseph Michael Griffin appealed from judgment in Habeas Corpus proceeding which found appellants illegally confining and restraining the minor child Kristen Dione Stanley from her father, and which ordered appellants to deliver and return such child to her father appellee Clifton Stanley on Wednesday at 8 o’clock p. m. on November 23, 1977.

Appellants appealed from such order but did not supersede the judgment.

While such appeal is pending, it has been made to appear by motion and affidavit that appellants did not comply with the trial court’s order to deliver the child on November 23,1977; and have fled the State of Texas with the child to the State of Colorado and appellee has filed motion for dismissal of appeal. Appellants answered such motion to dismiss appeal asserting that after going to Colorado they had invoked the jurisdiction of the Colorado Courts and obtained an order awarding them custody with stipulation that the child should under no circumstances be removed from the State of Colorado without prior order of the Colorado Court.

In the case at bar appellants invoked the jurisdiction of the Court of Civil Appeals to correct errors they assert were committed by the trial court. Appellants then by their own act removed from the jurisdiction of this Court the very subject matter of the appeal. Such act of removing the child from the jurisdiction of the court renders ineffectual the judgment of this Court if it should find in favor of appellee.

This identical situation was before the courts in Burckhalter v. Conyer, Tex.Com.App. 7 S.W.2d 73. In Burckhalter the case involved the custody of a child. There as here, while appeal was pending, appellant removed the child from the State. The Court dismissed the appeal.

In an identical situation the Fort Worth Court dismissed appeal in Hays v. Brandon, Tex.Civ.App. (Fort Worth) NWH, 245 S.W.2d 381; as did this Court in Suhren v. Suhren, Tex.Civ.App. (Waco) NRE, 289 S.W.2d 663. To the same effect are: Smith v. Ansley, Tex.Civ.App. (Waco) NRE, 257 S.W.2d 156; Meyer v. Meyer, Tex.Civ.App. (Austin) Er.Dismd., 361 S.W.2d 935; Meeks v. Meeks, Tex.Civ.App. (Amarillo) NWH, 371 S.W.2d 123; Sikes v. Keenan, Tex.Civ.App. (Eastland) NWH, 394 S.W.2d 859; Bourland v. Walker, Tex.Civ.App. (Waco) NWH, 368 S.W.2d 950; Strange v. Strange Tex.Civ.App. (Fort Worth) 464 S.W.2d 216.

Motion to dismiss appeal granted.

APPEAL DISMISSED.


text:
    Samuel W. ROBERTS, Appellant, v. J. O. TIPTON, Appellee.
    No. 5875.
    Court of Civil Appeals of Texas, Waco.
    Feb. 23, 1978.
    Rehearing Denied March 23, 1978.

      R. L. Middleton, Jr., Dan W. Shieder, Jr., Roger D. Bush, Dallas, for appellant.
    Paul E. Lokey, Paul E. Lokey & Co., Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

Defendant and cross-plaintiff Roberts appeals from $78,400. judgment in favor of plaintiff and cross-defendant Tipton.

Plaintiff Tipton sued defendant Roberts for a balance of $158,400. allegedly due on a written contract of sale of an insurance agency by Tipton to Roberts. Roberts answered that the contract was void because it was induced by Tipton’s fraud; and filed cross action for damages alleging Tipton and Roy Williams were joint sellers of the insurance agency; that Williams was Tip-ton’s agent in making the sale; that Williams made false representations as to: 1) the value of the insurance agency, 2) the annual commissions produced, and the number of active files in the agency; all of which were material misrepresentations inducing defendant to sign the contract. Roberts plead for damages of $55,000. he had paid on the contract; $50,000. loss of income; plus exemplary damages.

Trial was to a jury which found:

1) Prior to the time Roberts signed the contract Williams represented to Roberts the agency had an actual value of $175,000.
2) Such representation was material.
3) Was false when made.
4) Was made for the purpose of inducing Roberts to purchase the agency.
5) Roberts relied on such representation in the purchase of the agency.
6) The actual value of the agency was $100,000.

Tipton moved for judgment on the verdict for $153,400.; Roberts moved for judgment on the verdict for $55,000.

The trial court rendered judgment for plaintiff Tipton for $78,400. ($153,400. less offset of $75,000. as found by the jury).

Roberts appeals on 2 points:

1) The trial court erred in failing to rescind and cancel the contract because of the fraudulent representations of Tipton’s agent and co-seller.
2) The trial court erred in applying a measure of damages for fraud which was outside the scope of the pleadings.

Tipton and Williams owned “Roy Williams Insurance Agency” which was operated by Tipton’s son-in-law Williams. Tipton and Williams on June 12, 1974 entered a written contract of sale with Roberts contracting to sell Roberts the Insurance Agency to include the land and building, furniture and fixtures, good will, all records, files and clients’ ledgers, for $235,000., payable $30,000. at execution of the contract, $20,000. within 45 days, and $2500. per month until total payment be made. Roberts paid a total of $55,000. but did not pay the $2500. payment due November 15,1974, and on December 6, 1974 Tipton came to Roberts and told him he was “shutting the agency down,” and selling the building to other parties. Tipton contacted Insurance Companies the agency wrote policies for which picked up files pertaining to policies written in their companies; and Tipton did not permit Roberts to remove remaining files to another location, and permitted Roberts to take away only the contents of his desk and personal effects.

Williams, prior to the signing of the contract represented to Roberts the agency was worth $175,000., had an annual income of over $100,000., and 1200 to 1300 active insurance files. Four months after the purchase Roberts employed an expert to value the agency, who testified it was worth only $75,000. The agency had monthly income of from $2000. to $5000.; and there were only 800 active files.

The jury convicted Tipton of fraud in the inducement and no complaint made of the jury’s findings.

Point 1 asserts the trial court erred in failing to rescind and cancel the contract because of fraud.

One who is induced by fraud to enter into a contract has his choice of remedies. He may stand to his bargain and recover damages, or he may rescind. Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233; Russell v. Industrial Transp. Co., 113 Tex. 449, 258 S.W. 462.

Roberts earnestly contends he plead for rescission and that the trial court should have accorded him this remedy. A careful reading of Roberts’ pleadings convinces us that he did not plead rescission. In his answer he defended the suit on the contract on the ground of fraud in the inducement; and in his cross action he plead for damages by reason of such fraud in the inducement.

Point 2 contends the trial court erred in applying a measure of damage for fraud which was outside the scope of the pleadings.

The trial court reduced the $153,400. balance due on the contract plaintiff sued for by $75,000., based on the jury’s answer to Issue 6 finding the actual value of the agency to be $100,000. rather than the $175,000., Tipton’s agent represented.

Plaintiff plead for the $55,000. he had paid on the contract plus $50,000. loss of income plus exemplary damages. Moreover, Tipton sold the building and land to Roberts, then sold it to another before executing deed to Roberts. The building and land are worth $25,000. according to the evidence; and Tipton sold the fixtures and furniture to Roberts, but “shut the agency down” and permitted Roberts to remove only his personal effects. Under any judgment against Roberts on the contract Roberts is entitled to the building, land, fixtures and files. A case for rescission is actually made under the evidence but Roberts did not plead for rescission.

The trial court applied a measure of damages outside the pleadings and for the wrong party. Point 2 is sustained.

Roberts was entitled to judgment Tipton take nothing on Tipton’s suit on the contract, because fraud in the inducement is fatal to a contract and a good defense against enforcement of such contract. Central Motor Co. v. Thompson, Tex.Civ.App. (Waco) NWH, 465 S.W.2d 405; Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Advance-Rumely Thresher Co., Inc., v. Higgins, Tex.Civ.App. (Amarillo) Er.Dismd., 279 S.W. 531; Crayton v. Munger, 9 Tex. 285; Drinkard v. Ingram, 21 Tex. 650; Bates v. First National Bank of Waco, Tex.Civ.App. (Waco) NWH, 502 S.W.2d 181; George v. Birchfield, Tex.Civ.App. (Galveston) NWH, 264 S.W. 632.

Roberts was entitled damages on his cross action.

We reverse and remand the case in the interest of justice. Accordingly, the case is remanded to the trial court in its entirety, so the parties may if they wish, amend their pleadings and retry the case. Morrow v. Shotwell, Tex., 477 S.W.2d 538; Scott v. Liebman, Tex., 404 S.W.2d 288; Adams v. Herd, Tex.Civ.App. (Waco) NWH, 526 S.W.2d 295.

REVERSED AND REMANDED.


author: SPURLOCK, Justice.

text:
    Maurice J. COHN, Appellant, v. MANSFIELD STATE BANK, Appellee.
    No. 17938.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 23, 1978.
    Rehearing Denied March 16, 1978.

      Strother, Davis, Stanton & Levy, and Linda S. Aland, Dallas, for appellant.
    Day & Day, and Lewis D. Wall, III, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

Mansfield State Bank filed suit against Maurice J. Cohn (petitioner here) and two corporations for non-payment ,of a promissory note executed by one of these corporations and guaranteed by the other corporation. The bank sought damages against petitioner (who was president of both corporations and who had executed on their behalf the promissory note and guaranty) on the ground that such corporations had forfeited their charters prior to the execution of such instruments. The trial court granted the bank’s motion for partial summary judgment on its claim against the two corporations. Petitioner’s attorney requested and was granted permission by the court to withdraw as attorney of record. The bank’s attorney sent a letter to the clerk of the court requesting a non-jury setting during the week of December 27, 1976. Petitioner received a copy of this request for setting, but he did not appear for trial on that date. At the trial, the trial court rendered judgment for the bank against petitioner in the amount of $52,833.15, attorney’s fees in the amount of $5,000.00, plus interest and costs. From this judgment, petitioner has reached this court by writ of error.

We reverse and remand.

Petitioner has assigned three points of error. We will discuss them out of order. By his second point of error, petitioner contends that the trial court erred in entering judgment for $5,000.00 attorney’s fees in that there was no evidence presented by the bank at the trial to support such an award. Petitioner’s third point of error presents the same basic complaint in the form of an insufficient evidence point of error.

The note introduced in evidence provided that: “(I)t is hereby especially agreed that if this note is placed in the hands of attorney for collection, . . . or in probate or bankruptcy proceedings, then each of the undersigned promises to pay the amounts actually incurred by holder as court cost and attorney’s fees assessed by a court.”

The only reference at the trial concerning attorney’s fees is contained in the following exchange between the court and the bank’s attorney. The trial judge said: “The Court will render judgment against the Defendant Cohn in favor of the Plaintiff Mansfield State Bank in the amount of $47,000.00. Do you recall, Counsel, what we set as reasonable attorney’s fees?” The bank’s attorney responded: “Five thousand Dollars, Your Honor.”

To support an award of an attorney’s fee, evidence is required as to what a reasonable attorney’s fee would be, Kaiser v. Northwest Shopping Ctr., Inc., 544 S.W.2d 785 (Tex.Civ.App.—Dallas 1976, no writ). Also, the promissory note refers to recovery of attorney’s fees that have been “incurred”. Because of this, the bank was required to present evidence of the attorney’s fees it had incurred, and this it did not do. Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex.Civ.App.—Houston (14th Dist.) 1973, no writ). See also Tex.R.Civ.P. 243.

There is no evidence in the record to support the award of $5,000.00 attorney’s fee. Petitioner’s second and third points of error are sustained.

By his first point of error, petitioner contends that the trial court erred in entering judgment for the bank and against him when he failed to appear for trial on December 27,1976, in that he had not received notice sufficient to apprise him of the fact that a trial would occur on that date.

In his brief, petitioner admits that he received a copy of a letter written by the bank’s counsel to the clerk of the court requesting that the case be set for trial the week of December 27, 1976. He contends that he thought that the letter he received was merely a request for a setting of the case for trial and he had assumed that he would receive notification of the actual trial setting from the bank’s lawyer after the clerk had responded to the letter. On January 5,1977, petitioner received a copy of the judgment at his office in New York. He then retained counsel who filed a motion to set aside the judgment, but such motion was overruled. Petitioner then sought review by writ of error.

Rule 1 of the Local Rules of Practice in Civil Cases in the District Courts of Tarrant County, Texas, provides for the setting of non-jury cases by means of such a letter. However, this court recognizes that persons unrepresented by counsel may not realize that the letter requesting a setting in a non-jury case is their only notice that the case is actually being set for trial. Such failure to receive notice of the actual trial date is a denial of due process for a litigant not represented by counsel.

Tex.R.Civ.P. 1 provides in part that: “The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” As lawyers and officers of the court, we must never allow ourselves to deviate from this fundamental objective.

The judgment of the trial court is reversed and the cause is remanded. Costs are taxed one-half against the petitioner and one-half against the respondent bank.


text:
    E. D. DICKSON, Individually and as Community Survivor, Appellant, v. The MINNESOTA MUTUAL LIFE INSURANCE COMPANY, Appellee.
    No. 1079.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 23, 1978.
    Rehearing Denied March 23, 1978.

      Samuel M. George, Weldon McFarland, law office of Weldon McFarland, Tyler, for appellant.
    Mike Hatched, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellee.
   MOORE, Justice.

This is a suit for the recovery of proceeds of a credit life insurance policy. Plaintiff, E. D. Dickson, individually and as community survivor of the estate of his wife, Joyce Dickson, brought suit upon an insurance policy against defendant, Minnesota Mutual Life Insurance Co., pursuant to the terms of a group insurance policy in effect for members of the Cooperative Teachers Credit Union of which deceased, Mrs. Dickson, was a member. The insurance company denied liability on the ground that Mrs. Dickson did not qualify for coverage because on January 30, 1973, the date she applied for the loan and the date the loan was made, Mrs. Dickson was suffering from terminal cancer.

The cause was submitted to the jury on one special issue inquiring whether Joyce Dickson on January 30,1973, was physically able to perform, or may have been expected within a reasonable time to resume, her duties as a schoolteacher. The jury answered the issue in favor of the plaintiff. Defendant moved for judgment non obstante veredicto on the ground that there was no probative evidence to support the verdict. The trial court granted the motion and rendered judgment for defendant, from which ruling plaintiff duly perfected this appeal.

We affirm.

The following facts are not in dispute. Mrs. Dickson was a junior high school teacher in the Winona Public School System. In October of 1972, Mrs. Dickson was examined by a Dallas physician, Dr. R. J. Rowe, who diagnosed her gastrointestinal complaint as a cancerous colon. Shortly thereafter she underwent exploratory surgery at which time it was confirmed she had cancer of the colon. At this time Dr. Rowe was of the opinion that Mrs. Dickson’s condition was terminal, but advised her that she would be able to return to work. From October of 1972 till her death in February of 1973 Mrs. Dickson was on temporary leave of absence from her teaching duties and was undergoing radiation treatment in Dallas under the supervision of Dr. R. E. Collier.

In November of 1972 Mr. and Mrs. Dickson ordered a new Lincoln Continental automobile with the intention of financing the same with the Cooperative Teachers Credit Union in Tyler. The amount of the loan was $7,006.90. Under the agreement with the insurance company, when a member borrowed from the Credit Union the member was automatically covered by insurance for the unpaid balance, provided certain eligibility requirements were met. The eligibility clause of the credit life insurance policy provided as follows:

“All members under age 70 who become indebted to the Credit Union subsequent to the date of the issue of this policy, and who are physically able to perform, or within a reasonable time may be expected to resume, the usual duties of their livelihood, shall become eligible for insurance on the date of their indebtedness.”

On January 30, 1973, the date the loan was made, Mrs. Dickson filled out and signed on that same day the required loan application form from the Credit Union, which was mailed later in the day. Immediately after dropping the application in the mail Mr. and Mrs. Dickson drove to Dallas so that, among other things, she might be examined for relief of a “nausea experience” resulting from radiation treatments. Mrs. Dickson was examined by Dr. Rowe on February 1st, at which time he discovered that she had recurrent cancer in the form of a large tumorous mass, the size of a football, which obstructed her colon. Her pain was so severe that morphine was required to relieve her suffering. Dr. Rowe informed Mr. Dickson that his wife would not live very long, and a few days later, on February 7th, she died.

Plaintiff alleged that under the terms of the policy his wife was eligible for coverage. The cause was submitted to the jury upon the following special issue, which was answered in favor of plaintiff:

“Do you find from a preponderance of the evidence that on January 30, 1973, Mrs. Joyce A. Dickson was physically able to perform, or within a reasonable time, may have been expected to resume the usual duties of her livelihood, namely as a school teacher?”

On appeal plaintiff urges that the court erred in granting defendant’s motion for judgment n. o. v., because the testimony given by the lay witnesses as to her condition was of sufficient probative force to support the jury’s verdict.

A judgment n. o. v. is proper only where there is no evidence of probative value to support the submission of a special issue. Harbin v. Seale, 461 S.W.2d 591 (Tex.1970). In acting upon a motion for judgment n. o. v., all testimony must be considered in the light most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

The evidence presented at the trial consisted of both medical and lay testimony. The medical evidence consisted primarily of the deposition testimony of Dr. Rowe. Dr. Rowe testified that when he examined Mrs. Dickson on February 1st, she had a protrusion in her abdomen, revealing a football-size hard mass, which meant to him that she had recurrent cancer] He further testified that she was having nausea, had been vomiting, had not been able to eat, and was in severe pain requiring morphine every four to six hours. When asked of his opinion as to her general state of health during the week prior to February 1st, he testified that he was sure that she had been in poor condition for several days before the February 1st diagnosis. He stated that “she was obviously fatigued, pale, and that doesn’t occur just overnight.” Dr. Rowe also testified that he received a copy of a letter dated January 29th from Dr. Collier, the physician who was administering her radiation treatments. Dr. Collier wrote that Mrs. Dickson’s tumor was not responding to treatment and that it was spreading outside the treated area. He further wrote that because of increasing pain which Darvon was not relieving she was given a prescription for Demerol, a narcotic-type drug used for extreme pain. Dr. Rowe testified that, based on his knowledge of her condition and on the letter received from Dr. Collier dated January 29th, he was of the opinion that Mrs. Dickson’s physical condition was such that she could not have performed her usual duties as a schoolteacher on January 30, 1973, and that she could not have been expected within a reasonable period of time, or in fact ever, to resume such duties.

Other relevant evidence presented at trial consisted of the testimony of Mr. Jimmy Fox, Superintendent of the Winona School System, and Mrs. Mamie Jones, a secretary at the Winona Elementary School, who testified that Mrs. Dickson appeared in good health and that they expected her to return to work. Mr. Fox testified that around the middle or first part of January Mrs. Dickson visited with him in his office, and that “she seemed to be like any other time that I could see.” He further testified that he expected her to return to her classroom duties shortly. He testified that a few days later he and his wife visited the Dicksons at their home and had dinner with them at a restaurant, and that at that time she appeared to be normal. Mrs. Jones testified that Mrs. Dickson visited the school sometime in January and that at such time “she was looking fine and excited about coming back.” She further testified that during the latter part of January she visited Mrs. Dickson at her home, and that at that time she was conducting her usual household duties and looked better than she did when she previously saw her at school. She testified that at no time did she observe anything about her which led her to believe that she would not be able to return to work.

Plaintiff, E. D. Dickson, testified that in his opinion his wife had been making continual improvement. He testified that based upon his observations of her he knew that she would return to work. He further testified that on January 30th Mrs. Dickson was feeling fine. He testified that on that date she vacuumed the carpets and drove part of the way on their trip to Dallas.

Plaintiff takes the position that, despite the testimony of Dr. Rowe, the foregoing lay testimony is of sufficient probative force to create an issue of fact as to whether Mrs. Dickson was physically able to perform her duties of a schoolteacher on January 30, 1973, or within a reasonable time might be expected to resume the usual duties of a schoolteacher. He therefore argues that the jury’s finding must be sustained. We do not agree.

At the outset we hasten to point out that we have found no Texas case involving an eligibility clause similar to the one presented here. However, there are numerous Texas cases involving the proof necessary to establish eligibility for life insurance coverage under a typical “good health” or “sound health” provision. These cases generally hold that the requisites of a “good health” provision in a life insurance policy are not met if the applicant is suffering from a serious kind of illness which continues and eventually causes his death. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966).

While we are aware of the fact that the eligibility clause involved in the instant case is not the same as a “good health” or “sound health” provision in an ordinary life insurance policy, we think the clause bears some similarity in that it contemplates that an applicant’s health be good enough to enable her to perform the usual duties of her occupation, or good enough such that she might be expected to resume such duties within a reasonable time. While the clause here does not require an applicant to be in perfect or even good health in order to be eligible for insurance, an applicant’s eligibility perforce turns to a large degree on the status of her health. As applied to the instant case we believe the clause contemplates that Mrs. Dickson be in good enough health to teach school on the date of her loan, or that her health be such that she could reasonably be expected to do so within a reasonable time. Consequently, since the eligibility clause here is inherently concerned with the applicant’s health, we think the principles of law applicable in cases involving “good health” provisions are equally applicable to the instant situation.

In cases involving insurance provisions requiring “good health,” it is held that lay testimony as to one’s impressions of the applicant’s appearance and health during a specified period of time is admissible to show the state of deceased’s health at the time of the issuance of the policy, and that such testimony may in some instances be sufficient to create an issue of fact, even when contrary to uneontroverted opinions and inferences of medical experts, particularly when the situation is such that reasonable minds might differ as to the existence or extent of a disease at the time of the issuance of the policy. Coxson v. Atlanta Life Insurance Co., 142 Tex. 544, 179 S.W.2d 943 (1944). This is not to say, however, that in every case lay testimony may create an issue of fact as to a person’s good health despite uncontroverted medical testimony to the contrary. For example, in Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957), the court stated that, despite lay testimony of deceased’s generally healthy appearance and activity, the medical testimony conclusively established the existence of epilepsy in its worst form at the time of the issuance of the policy. The court indicated that in light of such medical testimony there was no other choice but to hold, as a matter of law, that deceased was not in “good health” at the time of the issuance of the policy. We quote from that opinion:

“There is no doubt that at the time the policy was issued, the insured was afflicted with a disease that produced and had been producing, the same sort of seizures or convulsions from which he died some nine months later. . . . The generally ‘normal’ appearance and behavior of the insured and the even robust character of his general physique lose all of their significance as evidence of good health or against bad health, once it is made clear, as it is, that, at the critical time, he actually had the disease and in its worst form. ... An individual may appear quite robust to his employer, family and friends and be himself conscious of no serious ailment and yet turn out- to have had beyond doubt a dangerous disease that no insurer would care to risk. To say that such testimony of apparent good health is admissible is not necessarily to say that it creates a fact issue regardless of all other evidence in the case.” 307 S.W.2d at 246.

In Reliable Life Insurance Co. v. Williams, 514 S.W.2d 768 (Tex.Civ.App.—Beaumont 1974, no writ), the jury found, based upon lay testimony that the deceased appeared in good health, that deceased was in fact in good health on the date of the issuance of a life insurance policy. The uncontroverted medical testimony established that the deceased was admitted to the hospital on November 17th for treatment for a chest lesion; that on March 12th, the very date the insurance policy became effective, he was again admitted to the hospital and diagnosed as having lung cancer, from which he died three weeks later. The physician testified that in his opinion he had lung cancer before March 12th and was not in good health on that date. The court reversed and rendered the case holding that the evidence showed as a matter of law that the insured was not in good health at the time the policy became effective.

In Reliable Life Insurance Co. v. Gray, 464 S.W.2d 412 (Tex.Civ.App.—Texarkana 1971, writ ref’d n. r. e.), the jury found, based upon lay testimony as to deceased’s generally healthy appearance and performance of household activities, that deceased was in good health at the time of the issuance of the policy. Medical testimony demonstrated that, at the time of the issuance of the policy on May 13th, the applicant was suffering from cancer, from which she died a month later. The court stated that the testimony showing the appearance of good health and the performance of household duties did not exclude the existence of the cancerous condition on May 13th. The court held that the medical evidence conclusively established that the deceased was not in good health on May 13th and that no issue of fact was presented for jury determination. Also see Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App.—Austin), writ ref’d n. r. e., 160 Tex. 182, 328 S.W.2d 434 (1959); Lincoln Income Life Insurance Co. v. Mayberry, 162 Tex. 492, 347 S.W.2d 598 (1961).

It is undisputed that Mrs. Dickson had been suffering from cancer four months before her death, and that her death was caused by cancer. Furthermore, it is undisputed that she was on leave of absence from her classroom duties as a result of her condition and was regularly taking radiation treatment as well as pain-relieving medication. In light of these facts we do not believe that the lay testimony, based solely on observations of physical appearance and light activity, to the effect that Mrs. Dickson was in good enough health to perform the usual duties of schoolteaching or could be expected to return to such duties within a reasonable time, was of sufficient probative force to support the jury’s finding.

This leaves only the medical testimony, showing that Mrs. Dickson was in such a serious state of health as a result of recurrent cancer that she was not physically able to perform the usual duties of a schoolteacher and could not have been expected to do so within a reasonable time. As we view the record, this is not a situation where reasonable minds might differ as to Mrs. Dickson’s present or future capability to perform her usual work as a schoolteacher. Accordingly, we find no error in the ruling made by the trial court.

The judgment of the trial court is affirmed.