author: McDONALD, Chief Justice.

text:
    Kennedy MONROE, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 5936.
    Court of Civil Appeals of Texas, Waco.
    Oct. 26, 1978.
    Bill Vannatta, Clark & Vannatta, Waco, for appellant.
    John B. McNamara, McNamara & McNamara, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from judgment against him for the unpaid balance of a retail installment contract, secured by a 1976 Chevrolet, and foreclosure of security interest of plaintiff in such automobile.

On October 26,1977 plaintiff GMAC, sued defendant Monroe on a retail installment contract executed by defendant in the credit purchase of a 1976 Chevrolet automobile; alleging plaintiff is owner of such contract; that defendant is in arrears in his payments; that plaintiff has declared the entire principal balance due as provided in the contract; and sought judgment for the balance of principal and interest due, attorney’s fees, and foreclosure of security interest in the automobile.

On the same date plaintiff filed the affidavit of its manager A. B. Rich for writ of sequestration of the automobile, and on such date the Judge of the 74th District Court issued writ of sequestration commanding the Sheriff to take possession of the automobile and keep same subject to further order of the court. On October 29, 1977 the Sheriff took possession of the automobile pursuant to the writ of sequestration.

On October 31, 1977 defendant filed Motion to Dissolve the Writ of Sequestration, and the trial court after hearing, on November 4, 1977 overruled same.

Trial on the merits was to a jury which found:

1) Plaintiff GMAC requested defendant Monroe to surrender possession of the 1976 Chevrolet.
2) The unpaid balance of the installment contract was $4,597.34.
3) It was necessary for GMAC to secure an attorney.
4) GMAC declared the entire principal balance of the installment contract due.
5) GMAC did not waive its right to accelerate maturity.
6)A. B. Rich made the sequestration affidavit at a time when he had reasonable knowledge to fear defendant would conceal, dispose of, ill treat, waste, destroy, or remove the 1976 Chevrolet from the jurisdiction of the court.

It was stipulated a reasonable attorney’s fee would be $1000.

The trial court rendered judgment on the verdict for plaintiff for $5,597.34 (unpaid balance of the installment contract plus $1000. attorney’s fee); and for foreclosure of security interest in the automobile.

Defendant appeals on 11 points which we summarize as 4 main contentions.

1) The trial court erred in issuing the writ of sequestration because plaintiff’s affidavit was insufficient as a matter of law in not setting forth:
a) specific facts as to the amount in controversy;
b) specific facts justifying issuance of the writ;
c) sufficient facts from which a reasonable conclusion may be drawn that defendant would conceal, dispose, ill treat, waste, destroy or remove the property during pendency of suit.
2) The trial court erred in overruling defendant’s motion to dissolve the writ because:
a) there was no evidence of any grounds and specific facts relied on by plaintiff for issuance of the writ as required by statute;
b) the evidence was insufficient to prove the grounds and specific facts relied on for issuance of the writ.
3) The trial court erred in not assessing attorney’s fees and damages against plaintiff.
4) The Sequestration Statute [Article 6840] is unconstitutional in that it fails to provide for notice and opportunity for a hearing at a meaningful time and in a meaningful manner before depriving a defendant of his property, thereby depriving the defendant of procedural due process.

Since the Sequestration Statute, Article 6840 is involved in all contentions we quote applicable portions as a footnote.

Contention 1 asserts plaintiff’s affidavit insufficient as a matter of law.

Section 2 Article 6840 requires the affidavit to state the nature of plaintiff’s claim, the amount in controversy, and the facts justifying the issuance.

Plaintiff’s affidavit for writ of sequestration filed herein states “Plaintiff sues for the title and possession of the hereinafter described property and for foreclosure of a security interest therein [describing the 1976 Chevrolet] of the value of $6,987.96; the said property is now in the possession of the defendant * * and the plaintiff fears that there is immediate danger that the defendant in possession thereof will conceal, dispose of, ill treat, waste or destroy such property, or remove the same out of the jurisdiction of this court during the penden-cy of this suit.”

We think the affidavit is in substantial and sufficient compliance with the statute to authorize the judge to issue the writ.

Contention 2 asserts the trial court erred in overruling defendant’s motion to dissolve the writ because there was no evidence or insufficient evidence of any grounds or specific facts to sustain issuance of the writ.

At the hearing on the motion to dissolve it was undisputed that defendant owed a debt (the installment contract), secured by a lien (security interest) on the automobile, and that defendant was delinquent 3 monthly payments of $166.38 each; that defendant had been in default before; that plaintiff’s agents had contacted defendant by telephone and personally urged him to pay up; that he said “he didn’t have the money and there was no way we could get the car at his place of business or at his home.” Defendant at other times agreed to pay up his delinquent payments by times certain, but failed to do so. An automobile is a rapid depreciation chattel, and in the hands of defendant who did not make his payments but was continuing to use the vehicle, we think the trial court authorized to overrule the motion to dissolve the writ, and that the evidence is ample to sustain such order.

Contention 3 asserts the trial court erred in not assessing damages and attorney’s fees against the plaintiff. Attorney’s fees and damages against the plaintiff are authorized only if the writ is dissolved.

Contention 4 asserts the sequestration statute is unconstitutional in that it does not provide for notice and hearing at a meaningful time and in a meaningful manner before depriving defendant of his property.

Defendant relies on Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, which held statutes in Florida and Pennsylvania invalid which permitted a creditor to obtain a prejudgment writ of replevin through summary process of ex parte application upon posting a bond. The court held that procedural due process requires an opportunity for a hearing before the State authorizes its agents to seize property from the party in possession.

The same court in Mitchell v. W. T. Grant Co., (1974) 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, held a Louisiana sequestration statute valid, which like the Texas statute provides that the debtor may immediately seek dissolution of the writ, which must be ordered unless the creditor proves grounds for issuance. The court held “it comports with due process to permit the initial seizure on sworn ex parte documents, followed by the early opportunity to put the creditor to his proof.”

And the court recognizes the distinction between Fuentes and Mitchell in the 1975 case of North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751.

All defendant’s points and contentions have been considered and are overruled.

AFFIRMED.

      . Article 6840. Grounds for issuance and dissolution.
      Section 1. (a) Judges of the district [court] * * * shall, at the commencement or during the progress of any civil suit, * * * have power to issue writs of sequestration * * * in the cases and upon the grounds provided for in Subsections (b) through (e) * * *.
      (b) When a person * * sues for the foreclosure * * [of] a security interest [in] personal property * * a writ of sequestration may be issued if a reasonable conclusion may be drawn that there is immediate danger that the defendant or party in possession will conceal, dispose of, ill-treat, waste, or destroy such property, or remove the same out of the limits of the county during pendency of the suit.
      (c), (d) and (e) relate to real estate. Sec. 2. The application for the issuance of the writ shall be made under oath and shall set forth specific facts stating the nature of the plaintiffs claim, the amount in controversy, if any, and the facts justifying the issuance.
      Sec. 3. (a) When a writ of sequestration has been issued as provided by this article and the rules of civil procedure, the defendant may seek a dissolution of the writ by written motion filed with the court.
      (b) A hearing on the motion to dissolve the writ shall be held and the issue determined not later than 10 days after the motion to dissolve is filed * *. At the hearing the writ shall be dissolved unless the party who secured the issuance of the writ proves the specific facts alleged and the grounds relied on for its issuance.
      (c) (d) Provide for attorney’s fees and damages for defendant if the writ is dissolved.
      (e) A motion to dissolve the writ is cumulative of the right of replevy, and the filing of the motion to dissolve shall stay any further proceedings * * until * * the issue is determined.
      Sec. 4. Requisites of Writ of Sequestration. There shall be prominently displayed on the face of the writ, * * the following:
      YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A “RE-PLEVY BOND.”
      YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.
      (See also Rules 696 through 716 TRCP which implement the sequestration procedure).


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Lucy G. RODRIGUEZ, Appellant, v. The STANDARD FIRE INSURANCE COMPANY, Appellee.
    No. 5959.
    Court of Civil Appeals of Texas, Waco.
    Oct. 26, 1978.
    Rehearing Denied Nov. 30, 1978.

      Richard D. Knutson, Carter, Callender, Knutson & Dougherty, San Antonio, for appellant.
    Joe Meador, Joe Meador, Inc., San Antonio, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Plaintiff-Appellant Lucy G. Rodriguez brought this suit in a District Court of Bexar County, Texas, against Defendant-Appellee Standard Fire Insurance Company for injuries allegedly sustained by her in the course of her employment with Foree Manufacturing Company.

Trial was had before the court without a jury, after which the trial court entered judgment that Plaintiff-Appellant Lucy G. Rodriguez take nothing, from which she appeals.

Plaintiff-Appellant timely filed the transcript herein; however, she has not been able to file a statement of facts; whereupon, on August 30,1978, she filed her Motion to Reverse and Remand, and in the alternative for an extension of time. This appeal was originally filed in the Fourth Court of Civil Appeals sitting at San Antonio, Texas, and was transferred by the Supreme Court of Texas to this Court effective September 25, 1978.

Prior to the time the cause was transferred to this Court, the San Antonio Court of Civil Appeals granted the motion for extension of time prayed for, and held the motion to reverse and remand in abeyance.

Appellant’s motion to reverse and remand is based upon the asserted fact that all of the exhibits, same being seventeen photographs, have been lost due to no fault of Appellant. Appellant’s motion is accompanied by affidavits of the clerk and of the official court reporter of the trial court, both of whom swear that said exhibits are lost and missing, and that they have been absolutely unable to find and locate same. Appellant has in all been granted two extensions of time by the San Antonio Court of Civil Appeals in an effort to enable the clerk and/or court reporter to find said exhibits; however, said exhibits continue to be lost.

Appellant has tendered for filing a document without any exhibits consisting of 57 pages certified by the official court reporter, and denominated “Statement of Facts”; however, counsel for the Appellee has not agreed that same constitutes a true and correct statement of facts. Appellee has filed a reply to Appellant’s Motion to Reverse and Remand wherein Appellee in effect states that Appellee refuses to sign such statement of facts. In such reply Ap-pellee invites the court’s attention to section (d) of Rule 377, Texas Rules of Civil Procedure, which provides in its pertinent parts that where a difference or disagreement arises between the parties concerning what the true facts are, that the matter shall be submitted to and settled by the trial court. However, we fail to see how Rule 377(d) may be made applicable in the case at bar, because we are dealing here with missing photographs.

Appellant asserts in her motion that said pictures depict the location of Appellant’s accident, and without which pictures the transcribed testimony is rendered meaningless and confusing. We have examined the above-described 57 page document labelled, “Statement of Facts” tendered by Appellant for filing, and have ascertained that without the missing photographs the questions and answers contained therein are without meaning and are confusing.

The trial court has not approved the “Statement of Facts” tendered for filing by Appellant; and in this connection, Appellant asserts the trial court suggested that new photographs be taken which would be similar to those originally received in evidence, and substituted in lieu of the missing pictures. We do not believe new pictures substituted for the missing photographs would properly effectuate a completion of the statement of facts.

It is well settled that an appealing party is entitled to a statement of facts in question and answer form, and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than by a retrial of the case. Victory v. Hamilton (Tex.Comm. App.1936) 127 Tex. 203, 91 S.W.2d 697 at p. 700, opinion adopted; Pacific Greyhound Lines, Inc. v. Burgess (Amarillo CA 1938) 118 S.W.2d 1100, writ refused; Waller v. O’Rear (Waco CA 1971) 472 S.W.2d 789, NRE. This same rule has been applied likewise where the Appellant after due diligence, and through no fault of his own, has been able to obtain only a partial statement of facts. Goodin v. Geller (Waco CA 1975) 521 S.W.2d 158, NRE.

In the case at bar, from the record before us it appears that the Appellant has exercised due diligence and through no fault of her own has been unable to secure a complete statement of facts; moreover, the provisions of Rule 377 T.R.C.P., afford no avenues of relief from Appellant’s dilemma. Without the photographs, the questions and answers of evidence certified by the court reporter have no meaning. Therefore, in our opinion, Appellant’s right to have the cause reviewed on appeal can be preserved to her in no other way than by a retrial of the case.

Accordingly, we grant Appellant’s motion, and reverse and remand said cause to the trial court for retrial on the merits.

REVERSED AND REMANDED.


author: REYNOLDS, Justice.

text:
    Sandra WOODARD, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
    No. 8953.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 30, 1978.
    Rehearing Denied Nov. 27, 1978.

      Walter P. Wolfram, Amarillo, for appellant.
    George N. Harwood, Asst. Potter County Atty., Miller & Miller (John H. Tull, Jr., Guardian Ad Litem for Children), Amarillo, for appellee.
   REYNOLDS, Justice.

Judgment terminating a parent-child relationship was rendered upon a jury’s findings of factual issues from a preponderance of the evidence as required by the Texas Family Code. The standard of proof is challenged as being fundamentally erroneous because a federal district court has declared that the Code-required standard of proof is unconstitutional and that the proof must be measured by the clear and convincing standard. We affirm under the Texas Supreme Court’s direction that in civil cases issues of fact are resolved from, and may not be submitted to the jury requiring a higher degree of proof than, a preponderance of the evidence.

As material to the appellate issue, this action was instituted by the Texas Department of Human Resources to terminate the parent-child relationship between Sandra Kay Bush Woodard and five of her natural children. The Department alleged that Sandra knowingly violated two of the conditions for which Tex.Fam.Code Ann. § 15.-02 (Vernon 1975) authorizes a termination of the parent-child relationship. Sandra demanded a jury trial.

The trial court, as required by Sec. 11.15 of the Code, charged the jury to make its findings on the special issues submitted from a preponderance of the evidence. No objection was made to the charge at any stage of the trial proceedings.

The jury found the existence of facts which statutorily authorize the termination of the parent-child relationship. Receiving the jury’s verdict, the trial court rendered its judgment terminating the parent-child relationship between Sandra and her five-named natural children.

Sandra appeals, contending that it was fundamental error for the court to charge the jury to make its findings from a preponderance of the evidence. Her contention is based on the decision in Sims v. State Department of Public Welfare, 438 F.Supp. 1179 (S.D.Tex.1977), appeal pending sub nom. Moore v. Sims,-U.S.-, 99 S.Ct. 306, 58 L.Ed.2d 317 (1978). In Sims, a three-judge federal district court held that in any suit affecting the parent-child relationship, the fundamental right to family integrity requires the state to prove its case by clear and convincing evidence, and expressly found that Sec. 11.15 of the Family Code is unconstitutional on its face because its preponderance standard of proof is violative of due process. 438 F.Supp. at 1194-95.

The error now alleged was not raised in the trial court, and it may not be raised for the first time on appeal unless it is truly fundamental. Newman v. King, 433 S.W.2d 420, 421 (Tex.1968). In this connection, it has been written that error which directly and adversely affects the interest of the public generally is fundamental, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983 (1947), and that the interest of the public is affected when the custody of a child is at issue. Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 (1948). See also Hollis v. Hollis, 508 S.W.2d 179, 182 n. 1 (Tex.Civ.App.—Amarillo 1974, no writ). Accordingly, if it was error to charge that the preponderance standard of proof applied, the error is fundamental.

Respectful consideration is due a lower federal court decision, and it is accorded the decision in Sims v. State Department of Public Welfare, supra; yet, as was held in United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir.1970), cert. denied 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971), in circumstances somewhat similar to those existing in the present appeal, state courts are not concluded by a lower federal court decision on an identical question of law which arises in a later unrelated cause. The rationale expressed is that while the state courts and lower federal courts are subject to the supervisory jurisdiction of the United States Supreme Court as the final arbiter on all questions of federal constitutional law, there is a parallelism, but not paramountcy, for both the state courts and the lower federal courts in passing on federal constitutional questions. 432 F.2d at 1075-76. Accord, Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965), which holds that states are not obliged to follow decisions of the federal circuit court whose circuit includes their state.

Conformably, Texas, and the majority of the states recorded in 147 A.L.R. 857, follow the rule that state courts are not bound by the decisions of the lower federal courts, even though a federal question is involved. Illustratively, Harrison v. Barngrover, 72 S.W.2d 971, 974 (Tex.Civ.App.—Beaumont 1934, writ ref’d), cert. denied, 294 U.S. 731, 55 S.Ct. 639, 79 L.Ed. 1260 (1935), declared: “It is true that this holding of the United States Circuit Court is not binding upon us here . . . .” The refusal of the writ of error was a holding by the Texas Supreme Court that “the principles of law declared in the opinion of the court [of civil appeals] were correctly determined.” Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 470 (1949). Accord, Texas Oil & Gas Corporation v. Vela, 405 S.W.2d 68, 73-74 (Tex.Civ.App.—San Antonio 1966), set aside on other grounds, 429 S.W.2d 866 (Tex.1968), with the holding that the decision of the Fifth Circuit Court of Appeals, although persuasive, was not controlling in its interpretation of Texas law. Cf. Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 268 (1936), where the Texas Supreme Court, in construing a federal statute, gave no controlling effect to decisions of lower federal courts construing the same statute. And in a like manner, the Texas Court of Criminal Appeals, the state’s court of last resort for criminal matters, has respectfully declined to be bound by the decisions of lower federal courts. Pruett v. State, 463 S.W.2d 191, 193 (Tex.Cr.App.1970); Andrade v. State, 470 S.W.2d 194, 197 (Tex.Cr.App.1971).

On the other hand and in the absence of a controlling decision by the United States Supreme Court, Texas courts of civil appeals are bound by the pronouncements of the Texas Supreme Court on the law. Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360, 368 (Tex.Civ.App.—Amarillo 1977), aff’d, 569 S.W.2d 480 (Tex.1978). “After a principle, rule or proposition of law has been squarely decided by the [Texas] Supreme Court . . . the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.” Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964). And, until the Supreme Court states to the contrary, its pronouncement is the law on an expressed issue. Powell v. Jackson, 320 S.W.2d 20, 24 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.).

The Supreme Court of Texas has specifically spoken on the Texas standard of proof in State v. Turner, 556 S.W.2d 563 (Tex. 1977), and its pronouncements there conflict with the holdings of the federal district court in Sims v. State Department of Public Welfare, supra. In Turner, the Supreme Court considered the question of the standard of proof required in proceedings for an indefinite commitment under the Texas Mental Health Code. The Court held that the proper measure of proof is by a preponderance of the evidence. In concluding that the preponderance standard is not vio-lative of the Due Process clause, the Court, generally speaking to the Texas standard of proof in civil cases, made this pronouncement at 565:

However, it has been held that it is error to instruct the jury that an issue requires a standard of proof greater than that of the preponderance of the evidence.

Commenting on the clear and convincing standard at 565-66, the Court said:

Some courts in other jurisdictions make a distinction between the standard of clear and convincing evidence and the usual civil standard of the preponderance of the evidence; however, Texas Courts review evidence by but two standards: factual sufficiency and legal sufficiency. The requirement of clear and convincing evidence is merely another method of requiring that a cause of action be supported by factually sufficient evidence.

The Court then quoted with approval this language from Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950):

In certain types of cases courts have frequently pointed out that the facts must be established by clear and convincing evidence. That rule, as said in Carl v. Settegast, Tex.Com.App., 237 S.W. 238, arose at a time when such suits were cognizable only in courts of chancery where matters of fact, as well as of law, were tried by the chancellor. Verdicts of juries in those courts were advisory only. In our blended system the field in which that rule operates is very narrow. In practical effect it is but an admonition to the judge to exercise great caution in weighing the evidence. No doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence, and special issues requiring a higher degree of proof than a preponderance of the evidence may not be submitted to a jury. Carl v. Settegast, supra; McCormick and Ray on Evidence, Section 30. In ordinary civil cases trial courts and Courts of Civil Appeals may set aside jury verdicts and grant new trials when, in their opinion, those findings, though based upon some evidence, are against the great weight and preponderance of the evidence, but they may not render judgment contrary to such findings. In those cases in which the “clear and convincing” rule is applicable if, in the opinion of the trial judge, the evidence in support of the verdict does not meet the test of that rule, he may set it aside and order a new trial; but he should not render judgment contrary thereto.

Thus, under the present state of the law, Texas courts are bound to instruct the jury in a civil case that all factual issues are to be determined by the preponderance of the evidence standard. The trial court so instructed the jury in this cause and, consequently, there is no error. Sandra’s single point of error is overruled.

The judgment of the trial court is affirmed.

      . The court also decreed that any parent-child relationships between the alleged natural fathers and the children were terminated or nonexistent and, because this portion of the judgment has not been questioned in this appeal, it is not further noticed.

      . The 27 September 1977 opinion in Turner antedates by fifteen days the 12 October 1977 opinion in Sims, but fourteen days after the Sims opinion a motion for rehearing in Turner was denied on 26 October 1977.

      . In State v. Addington, 557 S.W.2d 511 (Tex. 1977), which involves the same question presented in and controlled by the holding of Turner, the U.S. Supreme Court has granted motion for leave to file in forma pauperis and noted probable jurisdiction, sub nom. Adding-ton v. State (1978). 435 U.S. 967, 98 S.Ct. 1604, 56 L.Ed.2d 58.


author: HALL, Justice.

text:
    Frances A. BARKOUSKIE, Appellant, v. Dorothy Ferguson LAHRMANN et al., Appellees.
    No. 5931.
    Court of Civil Appeals of Texas, Waco.
    Nov. 2, 1978.
    Rehearing Denied Nov. 30, 1978.
    Roy Simmons, III, Simmons & Simmons, Mexia, for appellant.
    Holloway J. Martin, Holloway Martin, P. C., Mexia, for appellees.
   HALL, Justice.

Plaintiff-appellant Mrs. Frances A. Bar-kouskie filed this suit on March 30, 1978, in the District Court of Freestone County against defendants-appellees Dorothy Ferguson Lahrmann, Bernadette Stone, Louise Horn, and Marion Barkouskie, seeking inter alia to set aside an alleged order of the County Court of Limestone County, dated August 11, 1975, appointing defendants Dorothy Ferguson Lahrmann and Bernadette Stone, joint guardians of both plaintiff’s person and plaintiff’s estate. Plaintiff alleged that the order appointing joint guardians was void because it violated V.A. T.S. Probate Code, § 116, which provides (with exceptions not applicable here) that, “only one person can be appointed as guardian of the person or estate.” Plaintiff also pleaded for a temporary restraining order and a temporary injunction pending trial to prevent defendants Lahrmann and Stone from interfering with her person or estate “or in any way performing so-called guardianship duties affecting the Plaintiff.”

The court issued the restraining order on plaintiff’s pleadings until her plea for a temporary injunction pending trial could be heard. After a hearing on April 12, 1978, plaintiff’s plea for the temporary injunction was denied. Plaintiff brought this appeal. We affirm the court’s ruling.

Defendants Lahrmann and Stone are plaintiff’s daughters. Plaintiff’s plea for the temporary injunction was based upon assertions that those defendants were purporting to act as her guardian under an allegedly void order of appointment. Although plaintiff pleaded the order of appointment about which she complained and attached a copy of it to her petition, the order was not proved up at the hearing for the temporary injunction, and it is not a part of the statement of facts before us. Under those circumstances we cannot hold the court abused its discretion in denying the temporary injunction. See, Davis v. Huey, 571 S.W.2d 859 (Tex.1978).

The judgment is affirmed.


text:
    John R. WILSON, Appellant, v. Alton HOOSER d/b/a Alton Hooser Auto Sales, Appellee.
    No. 5933.
    Court of Civil Appeals of Texas, Waco.
    Nov. 2, 1978.
    Rehearing Denied Nov. 30, 1978.
    Frank Beard, Beard & Kultgen, Waco, for appellant.
    Dick Clark, Clark & Clark, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Wilson (bailor) from judgment he take nothing in his suit for damages against defendant Hooser (bailee) for loss of bailed property.

Plaintiff sued defendant alleging the parties agreed defendant would secure a 1977 Ford pickup truck for plaintiff, and plaintiff would purchase same; that as part of the agreement defendant would sell plaintiff’s 1972 Ford pickup truck at no additional charge to plaintiff; that plaintiff received and paid for the 1977 pickup, and delivered the 1972 pickup to defendant; that the 1972 pickup was placed on defendant’s automobile lot where it was offered for sale; that on the night of June 20 or morning of June 21, 1977 it was stolen; that defendant had delivered the key to parties unknown to plaintiff who thereafter returned a key to defendant; that defendant found the key did not operate the lock on the pickup; that defendant thereafter closed his business leaving the pickup unlocked and unprotected; that during the night the pickup was stolen; that defendant as bailee of the pickup had the duty to return it or its value to plaintiff; that defendant was negligent in safeguarding the pickup in a number of particulars which proximately caused loss of the pickup and damage to plaintiff. Plaintiff sought judgment for $2050. the alleged value of the pickup.

Defendant answered that the bailment of the 1972 pickup was wholly gratuitous and for the sole benefit of plaintiff; and that he committed no negligence causing the loss of the pickup.

Trial was to a jury which found:
1) Defendant’s possession of plaintiff’s pickup was for the sole benefit of plaintiff.
2) Defendant was not negligent.

The trial court rendered judgment on the verdict that plaintiff take nothing.

Plaintiff appeals on 11 points which we summarize as 2 main contentions.

1) The trial court erred in rendering judgment plaintiff take nothing because a bailment for the mutual benefit of the parties was established as a matter of law.

2) The trial court erred in rendering judgment plaintiff take nothing because the jury verdict that defendant was not negligent was against the overwhelming weight and preponderance of the evidence.

Contention 1 asserts a bailment for mutual benefit was established as a matter of law.

Defendant testified he is self employed in the used car business, and additionally orders new cars for customers through dealers at $100. above invoice; that plaintiff wanted a new Ford pickup; plaintiff owned a 1972 Ford pickup; that he offered to order a new 1977 pickup for plaintiff from Pippin Ford Sales at Mart for $100. and that the dealer would receive $100. over invoice; that at the time the new pickup deal was discussed he told plaintiff “if he didn’t sell [the 1972 pickup] bring it down and I’d help him sell it”. Plaintiff bought the 1977 pickup through defendant, paid for it, received delivery, and brought the 1972 pickup to defendant’s lot; that he didn’t state he would charge plaintiff anything for selling the pickup; that he did not intend to charge him anything, but that he thought if he should sell it for around $2,000. “if plaintiff insisted upon paying me a little bit for my trouble I’d take the money”.

Plaintiff testified he wanted a new 1977 Ford pickup, that he talked with defendant about it, who told him he could get him a 1977 Ford pickup for cost plus $100. for defendant plus $100. to the dealer. “And along with that was our discussion about [defendant’s] selling my pickup for me”. Defendant told plaintiff his 1972 pickup was worth “roughly $2000.”; that if he, defendant, sold my pickup it would cost me in totality about $3000.; that was the reason plaintiff “went for the deal”; that he placed his order for the 1977 pickup; when notified it was ready went to Mart, paid $5959.37 for it and brought it home; and thereafter delivered the 1972 pickup to defendant at his car lot; gave defendant a key to the 1972 pickup; that the deal was that defendant would sell the 1972 pickup for him; that he did not feel obligated to pay defendant anything for selling it if he had sold it.

The rule is that a bailment is for the mutual benefit of the bailor and bailee, although nothing is paid directly by the bailor, where the property of the bailor is delivered by the bailor, and accepted by the bailee, as an incident of a business in which the bailee makes a profit. In such situation the bailee receives his compensation in the profits of the business in which the bailment is an incident. Bill Bell, Inc. v. Ramsey, CCA (Waco) NWH, 284 S.W.2d 244; Citizens National Bank v. Ratcliff & Lanier, Com.Appls. (judgment adopted S.Ct.) 253 S.W. 253.

We think the bailment of the 1972 pickup was a bailment for mutual benefit as a matter of law.

Contention 2 asserts the jury’s finding that defendant was not negligent was against the great weight and preponderance of the evidence.

The 1972 pickup truck was delivered to defendant’s car lot and remained there until it was stolen on the night of June 20, 1977. Defendant testified that he had gone somewhere on June 20th and got back to the lot just before closing time; that his father who worked for him had all the cars locked up when he got there except plaintiff’s pickup, that his father said; “I can’t get this pickup locked”; that defendant told his father that “evidently the lock is froze up like it froze up on the ignition; bring the key in and I’ll see if I can get the lock fixed tomorrow”; the key was brought to the office and locked up with the keys to the other cars; that the next morning the pickup was discovered missing and he called the police and reported the pickup stolen; that he has no security service that serves the car lot; and does not check the lot at night himself. That he had a shed with a lock on it with two stalls that he can lock and put a car in; that he had a car in one of the stalls and equipment in the other; that the pickup was not locked on the evening on which it was stolen; that he did not attempt to render the vehicle incapable of moving on its own power; and did not try to move the pickup to a new location.

Officer Griggs testified he responded to a call to defendant’s car lot on June 21st; that he talked with defendant; that defendant told him that the day before two negro males came to the lot and “tried a pickup out; he let them have the key to the pickup and they drove off in the pickup and tried it out for a while; they then brought the pickup back * * *; they left in their car and when he returned the following morning this pickup was gone; * * * that one of the keys were not the keys that were on the ring that morning. So in other words he told me that they had evidently switched the keys and came back that night to pick up the pickup”.

Plaintiff testified he gave defendant a key to the pickup when he delivered it to him; and kept a spare key; that defendant called plaintiff’s wife the pickup was stolen; that she relayed the message to him; and he proceeded to defendant’s car lot; that defendant gave him a key and said, “This is all that’s left of your pickup”; that he compared his spare key to the key handed him by defendant; saw they were different; that defendant then said the key he delivered to him “was stolen”.

In a bailment for mutual benefit, a rebuttable presumption of negligence and a prima facie case of liability is established by a bailor against a bailee upon proof that the bailed chattel was not returned; but when the bailee rebuts the presumption of negligence by some evidence, the burden of proof on the case including the issue of negligence remains with the bailor. Trammell v. Whitlock, S.Ct., 242 S.W.2d 157; Buchanan v. Byrd, S.Ct., 519 S.W.2d 841.

Here plaintiff proved that he delivered the 1972 pickup to defendant; that it was not returned or sold, but that it was stolen. Plaintiff alleged defendant negligent and the evidence reflects defendant left the pickup on the lot unlocked; that he had no security service that serves the lot; that he does not cheek the lot at night himself; that defendant did not put the pickup in one of his lock sheds, move it to another location, or attempt to render the vehicle incapable of moving on its own power.

We think the jury’s finding that defendant was not negligent is against the great weight and preponderance of the evidence. In re Kings Estate, S.Ct., 244 S.W.2d 660.

Contentions 1 and 2 are sustained.

The judgment that plaintiff take nothing is reversed and the cause remanded. That part of the judgment decreeing defendant recovery of $47.36 against plaintiff is affirmed.

REVERSED & REMANDED IN PART; AFFIRMED IN PART.

      . Issues inquiring if such negligence was a proximate cause of the loss of the pickup, and the value of the pickup were submitted conditioned on a finding defendant was negligent and were accordingly not answered.

      . The judgment further by agreement of the parties decreed defendant recover $47.36 from plaintiff, which is not appealed from.

      . “ ‘The presumption on which the bailor may rely is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it, but it does no more; once he has done so, it disappears from the case. Thus, it can never concern the jury’ See D & D Associates v. Sierra Plastics, CCA (Waco) NWH, 570 S.W.2d 205.


author: BROWN, Justice.

text:
    H. G. BRELSFORD & ASSOCIATES, Appellant, v. BANKSTON RENTALS, INC., Appellees.
    No. 5206.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 2, 1978.
    Charles H. Clark, Tyler, for appellant.
    Fred Weldon, Law Office of Marvin R. Thomas, Dallas, for appellees.
   BROWN, Justice.

This is a summary judgment case. H. G. Brelsford & Associates seeks damages against Bankston Rentals, Inc. and Mercedes-Benz of North America, Inc., for violations of the Texas Motor Vehicle Installment Sales Act. After granting plaintiff’s motion for a nonsuit as to Mercedes-Benz, the trial court granted Bankston’s motion for summary judgment. Brelsford appeals. We reverse and remand.

The issue for determination is the construction of instruments entered into between Brelsford and Bankston which provided for the leasing and subsequent right of acquisition of one 1975 Mercedes-Benz automobile by Brelsford from Bankston.

After nine monthly rental payments had been made, the car was extensively damaged by fire. Bankston repossessed it after Brelsford allegedly defaulted on the rental and took no action toward repair of the car or collection of the insurance claim. The car was sold for salvage for $8,350 after the insurance carrier paid $6,922.14. Brelsford was credited with the total amount received and under the terms of the lease agreement was mailed a check from Bankston for $3,972.66 which Brelsford did not cash. Bankston contends it has discharged its responsibility under the terms of the agreement, it being only a lease.

Brelsford disagrees contending that the agreement of the parties consisted of more than one instrument and was subject to the Texas Motor Vehicle Installment Sales Act. He argues that the time price differential charged exceeded that authorized by the Act and thus he was entitled to twice the time price differential charged plus reasonable attorney’s fees.

The Texas Motor Vehicle Installment Sales Act, art. 5069-7.01 et seq. provides in part:

“Retail Installment Contract” or “Contract” means a contract entered into in this State evidencing a retail installment transaction. The term includes a chattel mortgage, conditional sale contract, security agreement and a contract in the form of a bailment or a lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the value of the motor vehicle sold and it is agreed that the bailee or lessee is bound to become, or, for no further or a merely nominal consideration, has the option of becoming, the owner of the motor vehicle upon full compliance with the provisions of the bailment or lease . . . . (Emphasis ours)

The trial court, in its judgment, recites in part:

Specifically, the court finds and concludes that the lease agreement dated January 10, 1975, upon which plaintiff’s causes of action are based is a lease and not a sale and that the statutes, both federal and state, upon which plaintiff relies, apply only to sales of goods and not to leases

Brelsford urges that the court erred in granting the summary judgment because there was a genuine issue of fact as to whether the contract between the parties was a sale or lease.

The court in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970) considering the matter of rendering or affirming a summary judgment in favor of a defendant said:

In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. .

The parties concede, and the summary judgment proof establishes, that the original instrument executed between the parties was a standard open end leasing agreement. However, Brelsford signed an instrument on the date he signed the “lease” which provided, “Said lease agreement obligated the lessee to purchase said vehicle at the expiration of the lease and the agreed cost to the lessee (excluding finance, lease and other non-taxable charges) is $3520.” Three days later Brelsford signed another instrument which was accepted by J. O. Davis, lease manager for Bankston, which provided:

I agree to purchase the 1975 Mercedes Benz from Bankston Rentals, Inc. for $3,520.00 at the end of the lease.
After 24 months and 24 payments, I have the option to purchase the car and terminate the lease for $6,212.00.

The court in Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 (1951) said:

It is a generally accepted rule of contracts that “Where several instruments, executed contemporaneously or at different times, pertain to the same transaction, they will be read together although they do not expressly refer to each other.” 17 C.J.S. Contracts § 298, p. 714. The rule is followed by the courts of this state. Miles v. Briggs et al., Tex.Civ.App., 18 S.W.2d 850 (writ dism.); Veal et al. v. Thomason, 138 Tex. 341, 472; 10 Tex.Jur., p. 286, sec. 166.

We hold the inconsistent language of the instruments creates a question of fact as to the intention of the parties concerning whether Brelsford is obligated to purchase the Mercedes-Benz automobile and whether or not he had agreed to pay as compensation for it a sum substantially equivalent to or in excess of the value of the vehicle. Bankston has, therefore, failed to discharge its summary judgment burden.

The judgment is reversed and the cause remanded.


author: DICKENSON, Justice.

text:
    MOTIOGRAPH, INC., Appellant, v. CHECK-OUT SYSTEMS, INC., Appellee.
    No. 5213.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 2, 1978.
    Lanny E. Perkins, Fiedler & Fortescue, Richardson, for appellant.
    Byron L. Falk, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
   DICKENSON, Justice.

The plaintiff, Motiograph, Inc., appeals from a judgment dismissing its lawsuit for lack of jurisdiction over the defendant, Check-Out Systems, Inc. Plaintiff is a Texas corporation, and defendant is a South Carolina corporation which was served under the “Long Arm” Statute, Article 2031b, Tex.Rev.Civ.Stat.Ann. (1964). Defendant filed a special appearance under Rule 120a, T.R.C.P., and the trial court dismissed the lawsuit after holding that the assumption of jurisdiction by a Texas court would offend traditional notions of fair play and would deprive defendant of due process of law. We reverse and remand.

The material facts are not disputed. In 1974, the plaintiff advertised its equipment in a nationally published trade magazine. Defendant wrote a letter of inquiry to Texas, asking about the possibility of becoming a dealer in South Carolina of the equipment which was being manufactured in Texas. At that time, plaintiff was not interested in allowing defendant to become its dealer, but it did send some literature describing the equipment. In 1975, defendant made a second inquiry after seeing another advertisement of plaintiff’s equipment in a nationally published trade magazine. This time plaintiff became interested in making a dealership arrangement with defendant, and the parties talked to each other several times on the telephone. Plaintiff’s sales manager made a trip to South Carolina to talk with defendant’s president. The equipment was demonstrated to defendant’s president in Chicago at a meeting of the National Restaurant Association. A dealer contract was prepared, but it was never executed. Defendant’s corporate officer testified that defendant “proceeded to represent” plaintiff in South Carolina even though the contract was not signed. Defendant sent its sales manager and a service man to Texas for one week of training. Defendant purchased the equipment involved in this lawsuit, and the equipment was shipped from Texas to South Carolina where it was installed in three restaurants. Defendant mailed two payments from South Carolina to plaintiff’s office in Texas. Payment was stopped on the second check, because problems had developed in the operation of the equipment. After the problems developed, the South Carolina corporation sent a third employee to Texas. He came for technical training on the equipment. The Texas corporation had sent employees to South Carolina to assist in the sale and installation of the equipment, and it also sent employees to South Carolina on several occasions to attempt to solve the problems which developed. The problems were not resolved, defendant refused to pay, and plaintiff filed suit on a sworn account for the value of the equipment.

The issue is whether the Texas courts can acquire in personam jurisdiction over the nonresident defendant. This requires a two-fold inquiry. We must first determine whether the nonresident defendant is amenable to process under the “Long Arm” Statute, Article 2031b, supra. Then, we must decide whether the exercise of personal jurisdiction is consistent with the requirements of due process of law under the United States Constitution. Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.), and authorities cited therein.

The Texas “Long Arm” Statute, Article 2031b, supra, provides that any nonresident person or corporation that engages in business in this state without maintaining a regular place of business in the state or a designated agent upon whom service may be made is deemed to have appointed the Secretary of State as agent for service of process in any suit arising out of such business. The Supreme Court of Texas has stated that Article 2031b reaches as far as the federal constitutional requirements of due process will permit. U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex. 1977). We hold that Check-Out Systems, Inc., was doing business in Texas within the meaning of Article 2031b, and we will now discuss the constitutional limitations which are placed on that statute.

The Fifth Circuit discussed the “due process” limitations which are placed on the Texas “Long Arm” Statute, Article 2031b, supra, in the case of Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974). In that case, Judge Goldberg pointed out that:

the decisions “set up a dual test for determining whether a court may take jurisdiction without depriving a defendant of due process of law.” First, “there must be some minimum contact with the state which results from an affirmative act of the defendant.” Secondly, “it must be fair and reasonable to require the defendant to come into the state and defend the action.”

This language was quoted with approval by our Supreme Court in U-Anchor, supra.

We hold that Check-Out Systems, Inc. conducted business within this state by virtue of its affirmative acts in “representing” a Texas corporation and in sending its employees to Texas to learn how to sell and service the equipment. We also note that defendant ordered the equipment from Texas and sent payments for the equipment to Texas. We hold that it would be fair and reasonable to require Check-Out Systems, Inc. to defend the action in this state.

O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966), stated that three basic elements must exist to sustain jurisdiction over a nonresident:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

We hold that those three elements are present in this case and that Check-Out Systems, Inc. is subject to the jurisdiction of the Texas courts in connection with the cause of action asserted in this case.

Hanson v. Denckh, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), explains the requirements of due process, notes that the application of the rule will vary with the quality and nature of the defendant’s activity, and states that: “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State . . . .” In the present case, the contacts were more than minimal and fortuitous. Check-out Systems, Inc. “purposefully” conducted activities within the State of Texas. The exercise of jurisdiction by Texas courts would not offend traditional notions of fair play and substantial justice. U-Anchor Advertising, Inc. v. Burt, supra.

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


text:
    Dorothy L. WINSLAR, Appellant, v. Donald BARTLETT, Appellee.
    No. 5935.
    Court of Civil Appeals of Texas, Waco.
    Nov. 9, 1978.
    Rehearing Denied Nov. 30, 1978.

      Andy J. McMullen, Steve Johnson, McMullen, Connally, Robertson, Jordan, Holliman & Campbell, Inc., Hamilton, for appellant.
    Robert F. Salter, Gatesville, for appellee.
   OPINION

JAMES, Justice.

This is a suit by a landlord against his tenant for damages caused by the tenant to a rented apartment. Trial court judgment was in favor of the plaintiff landlord against the defendant tenant for $2239.00 plus interest and costs, from which the tenant appeals. We affirm.

Plaintiff-Appellee Donald Bartlett (the landlord) brought this suit against Defendant-Appellant Dorothy L. Winslar (the tenant) for damages to the apartment together with the furniture therein, allegedly caused by the wilful acts of defendant tenant.

At the trial before the court without a jury, Plaintiff Bartlett testified that he was the owner of an apartment located at 405 Main Street in the City of Gatesville, Cor-yell County, Texas; that at times material to this controversy Defendant Mrs. Winslar was the tenant who rented and was in possession of said apartment; that on October 3, 1977, while Defendant Mrs. Winslar was the occupant of said apartment, Plaintiff personally went with law enforcement officers to acquire control over the Defendant; that the peace officers had requested Plaintiff to accompany them; whereupon, when Plaintiff and the officers first knocked on the front door and then went to the back door, Defendant Mrs. Winslar shot through the back door of said apartment, wounding a policeman; that after Defendant had done such shooting, the officers threw tear gas into the apartment, and then entered the apartment and thereupon took possession of the person of the Defendant for the purpose of transporting her to the Austin State Hospital. Plaintiff further testified concerning the amounts spent by him in repairs and replacements, including amounts spent on new furniture, repainting the apartment, replacing all the carpeting in the apartment, and the expense of cleaning the air conditioner therein. The damages to the apartment were caused by the tear gas, plus the expense to repair the back door and lock caused by Defendant’s shooting.

Mr. Barlettt testified that the actions of the police officers appeared logical to him, including the use of tear gas, in their efforts to get Mrs. Winslar out of the apartment, especially in view of Mrs. Winslar having shot through the door and having wounded the policeman.

With reference to the damages, Plaintiff Barlett showed an estimate from Dixon Lumber Company for $1850.00 for the materials necessary to put the apartment in substantially the condition it was in before such damage occurred; that he actually spent said amount for such materials and personally performed the labor himself; that in addition thereto he paid $674.00 for new furniture to replace the damaged furniture, against which he was allowed a credit for $264.00 for the damaged furniture as salvage, making a net cash outlay by him of $410.00 for the new furniture used to replace the damaged furniture. From this testimony we see that Barlett’s proof showed he suffered out-of-pocket expense of $2260.00 with no claim having been asserted by him for his own labor, for which the trial court awarded him judgment for $2239.00.

Mrs. Winslar did not dispute any of the expense testified to by Plaintiff, nor the necessity therefor nor the reasonableness thereof. She did testify that any damage to Plaintiff’s apartment had taken place at a time prior to her taking occupancy of said apartment. She testified that she had passed by said apartment sometime prior to her moving in and had witnessed a scene which was apparently exactly like the incident for which she was being sued. Plaintiff Bartlett then denied that any such incident had taken place prior to the time Defendant first occupied the apartment.

Defendant-Appellant asserts error of the trial court in proceeding to trial after granting Defendant-Appellant’s Attorney’s Motion to Withdraw and asserts the trial court was put on notice of such facts as should have caused the court to inquire into Defendant-Appellant’s mental competency. We overrule these contentions.

This case was originally filed by Plaintiff Bartlett on November 2, 1977. Thereafter, on December 2, 1977, Defendant Mrs. Winslar filed an answer by and through her attorney, to wit, John D. Wooddell. Said attorney represented Mrs. Winslar in this cause until some time prior to March 17, 1978. At some time prior to March 17, 1978, Mrs. Winslar filed a complaint with the State Bar Grievance Committee of Travis County, Texas, concerning Mr. Wooddell and his representation of her, which complaint prompted Mr. Wooddell to file a Motion to Withdraw as her Counsel in the ease at bar.

The trial court set a hearing on the merits as well as to consider Mr. Wooddell’s Motion to Withdraw as Counsel for March 17, 1978, and Defendant-Appellant Mrs. Winslar was notified of such setting and appeared in her own behalf. At said hearing she announced to the court that she had previously made complaint to the State Bar Grievance Committee against Lawyer Wooddell; whereupon the trial court determined not to grant the Motion to Withdraw until the court had communication with Mr. Wooddell; and in addition, the trial court reset the case for trial for March 31, 1978, stating that the court would dispose of the Motion to Withdraw at that time. The case was again called for trial on March 31,1978, at which time Defendant-Appellant Mrs. Winslar again appeared pro se; and at said hearing the trial court announced to her that it was granting Lawyer Wooddell’s Motion to Withdraw and on said occasion the court asked Mrs. Winslar if she understood that she was representing herself before the court in this case, to which question she answered, “Yes, sir.” The court then proceeded to try the case on the merits.

Said appearance before the trial court on March 31, 1978, was the second pro se appearance by the Defendant-Appellant. Since she had filed a complaint against her lawyer with the Grievance Committee prior to March 17, 1978, and her lawyer had already filed his Motion to Withdraw prior to March 17, 1978, Defendant-Appellant Mrs. Winslar either knew or should have known at the hearing on March 17, 1978, that if she wanted a lawyer to represent her that she needed to get busy and hire another lawyer. The trial court gave her two additional weeks to enable her to secure other counsel by resetting the case to March 31, 1978. At the trial hearing on March 31, 1978, there was no statement or suggestion by Mrs. Winslar that she needed additional time to secure another lawyer or to make additional preparation for trial. In other words, it was Defendant-Appellant's own action, to wit, the filing of the complaint against her lawyer, that forced an end to her erstwhile attorney-client relationship. In this state of the record we cannot say the trial court abused its discretion in proceeding to trial on the merits on March 31, 1978.

Defendant-Appellant further contends the trial court was put on notice of facts that should have caused the court to institute an inquiry into the competency of the Defendant-Appellant to conduct a pro se representation in these proceedings. We overrule this contention. Appellant arguts that since Plaintiff’s Original Petition alleged that Defendant Mrs. Winslar “may be served with citation in this cause at the Austin State Hospital, Austin, Travis County, Texas,” that the trial court was put on notice that Mrs. Winslar might be mentally incompetent; moreover, that on the occasion wherein the damages sued for occurred, the law enforcement officers were attempting to gain control over her person to take her to the Austin State Hospital.

Appellant further contends the trial court erred in not taking judicial notice of any mental incompetency proceedings wherein Mrs. Winslar may have been committed as a patient to the Austin State Hospital. The record is silent as to any such proceedings; however, if there were any such proceedings, they would not be on file in the District Court of Coryell County, which is the trial court in the case at bar. Such mental illness proceedings, if any there were, would have been of necessity on file in a county court as opposed to a district court. In this state of the record, the trial court was not empowered to take judicial notice of proceedings on file in a court other than its own. Culver v. Pickens (Tex.1943) 142 Tex. 87, 176 S.W.2d 167, 171; also see 23 Tex.Jur.2d “Evidence,” par. 26, pp. 45, 46, and the cases therein cited.

As stated, there is nothing in the record concerning any mental incompetency proceedings dealing with Mrs. Winslar. It is true that Mrs. Winslar was served with citation (in the case at bar) while she was in the Austin State Hospital; however, it is clear that at the times of the trial court’s hearings on March 17, 1978, and March 31, 1978, Mrs. Winslar was free from any control by the Austin State Hospital. She made voluntary appearances before the trial court on both occasions. Article 5547— 81(b), Vernon’s Texas Civil Statutes, a part of the Mental Health Code, provides:

“The discharge of a patient who has been found to be mentally incompetent terminates the presumption that he is mentally incompetent.”

At the trial on the merits, Mrs. Winslar answered the questions propounded to her, and made statements to the court, in a coherent manner. Under the record before us, we consider it far-fetched to say that the trial court erred in not conducting an inquiry into the mental competency of Mrs. Winslar. Appellant’s points of error in this regard are accordingly overruled.

Defendant-Appellant further contends, that the evidence is legally and factually insufficient to support the trial court’s judgment, and the wrong measure of damages was employed concerning Plaintiff-Ap-pellee’s furniture, carpeting, wall paint, and air conditioner. We overrule these contentions.

Plaintiff Bartlett testified that after the damage occurred, he replaced the back door of the apartment, repainted the entire apartment, had the air conditioning unit cleaned, and replaced all of the furniture and carpeting in the apartment. His testimony further showed his out-of-pocket expense in restoring the apartment substantially to its condition immediately prior to the time the damages occurred, with no recovery being asserted or allowed for his own labor. The trial court’s judgment allowed Plaintiff recovery based upon the reasonable and necessary costs of such replacements and repairs to restore the apartment and the furniture contained therein to its condition immediately prior to the time the damages occurred. This being so, the Plaintiff’s proof and the trial court’s judgment were based upon a proper measure of damages. See Pasadena State Bank v. Isaac (Tex.1950) 149 Tex. 47, 228 S.W.2d 127, 128, dealing with damage to personal property; Stafford v. Thornton (Amarillo CA 1967) 420 S.W.2d 153, 160, NRE, dealing with repairable injury to a building; 17 Tex.Jur.2d, “Damages,” par. 69, pp. 144 et seq. and the cases therein cited, dealing with repairable injury to real estate. Moreover, we find the evidence to be both legally and factually sufficient to support the trial court’s implied findings which underlie the trial court’s judgment.

Appellant has other points and contentions, all of which we have carefully considered, and have overruled all of the same as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: EVANS, Justice.

text:
    George A. ADAMS, Appellant, v. TEXAS COMPENSATION INSURANCE COMPANY, Appellee.
    No. 17208.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 9, 1978.
    Thomas J. Pearson, Bellaire, for appellant.
    Weitinger, Steelhammer & Tucker, Jack W. Tucker, Jr., Houston, for appellee.
   EVANS, Justice.

This is an appeal by George Adams, the claimant in a worker’s compensation case, from a judgment entered in favor of Texas Compensation Insurance Company setting aside an award of the Texas Industrial Accident Board.

The appellant did not file a Statement of Pacts with this court.

In appellant’s one point of error he contends that the trial court erred in ruling that there was no showing of good cause excusing his failure to give notice of his injury within thirty days as required by the Worker’s Compensation Act.

“Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury ., and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury . For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.” Tex.Rev.Civ.Stat.Ann. Article 8307, Section 4a (1967).

In response to special issues the jury found that the plaintiff has been injured in the course of his employment and had thereby suffered a partial incapacity. It further found that within six months from the date of such injury he believed his injury to be trivial and that such belief caused him to delay filing his claim for compensation. The jury failed to find, however, that the appellant’s employer had notice of the injury within 30 days after its occurrence. On the basis of the jury’s verdict the trial court entered judgment setting aside the award of the Texas Industrial Accident Board and decreeing that Adams take nothing on his claim against Texas Compensation Insurance Company.

The appellant had the burden of proving that good cause existed for his failure to give notice within the required thirty day period. Hawkins v. Safety Cas. Co., 146 Tex. 381, 207 S.W.2d 370 (1948); Hartford Accident & Indemnity Co. v. Hardin,

252 S.W.2d 752 (Tex.Civ.App.—Fort Worth, writ ref’d.). It is his contention that the jury’s finding that he believed his injury to be trivial “within six (6) months from the date of such injury” established the element of good cause, excusing him from giving the 30 day notice.

A belief that an injury is trivial may constitute proof that good cause existed for not giving a required notification. Aetna Casualty & Surety Company v. Brown, 463 S.W.2d 473 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.). Thus, in the case at bar it is possible that evidence in support of the jury’s finding of good cause with respect to the failure of appellant to file his claim within the six month period would also have supported a finding of good cause with respect to his failure to give the 30 day notice.

The difficulty with appellant’s position is that the finding of good cause with respect to his failure to file the claim within the six month period does not necessarily constitute a finding of good cause with respect to his failure to give the 30 day notice. It is conceivable that the jury could have found from the evidence that good cause existed with respect to the appellant’s failure to file the claim within six months but not with respect to his failure to give the notice within thirty days of the date of injury. Since the appellant did not request a special issue concerning his claim that good cause existed for his failure to give the required 30 day notice and failed to ask the court to make a written finding on such issue prior to the entry of the judgment, it must be deemed that the issue was found by the court in such manner as to support the judgment. Rule 279, Texas Rules of Civil Procedure; Texas Employers’ Ins. Ass’n. v. Hudgins, 294 S.W.2d 446 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.).

There is a rebuttable presumption that omitted special issues have been established as a matter of law, and in the absence of a statement of facts, this presumption cannot be overcome. Manning & Sons, Inc. v. Ken-Tex Oil Corp., 418 S.W.2d 324 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.); Tunnell v. Prior, 494 S.W.2d 237 (Tex.Civ.App.—Texarkana 1978, no writ).

The trial court’s judgment is affirmed.


author: RAY, Justice.

text:
    C. B. LIDE, D.D.S., Appellant, v. Weldon MILLER and Wilburn Whittington, Jr., Appellees.
    No. 8573.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 14, 1978.
    Randall J. Shafer, Bruce Love, Elliott & Shafer, Dallas, for appellant.
    Bascom T. Perkins, Perkins & Perkins, Bird Old, Jr., Old & Old, Mount Pleasant, for appellees.
   RAY, Justice.

This is a summary judgment case. Appellant (plaintiff), Dr. C. B. Lide, filed suit against appellees, Weldon Miller and Wilburn Whittington, Jr., the elders of the North Jefferson Street Church of Christ located in Mt. Pleasant, claiming that Miller and Whittington had read a statement of Lide’s alleged misconduct before the congregation of assembled members of the church and nonmembers. Appellant’s action was for libel and slander and alternatively for interference with appellant’s business relations. Appellees answered claiming privilege and truth as defenses and filed their motion for summary judgment. The motion for summary judgment was granted on the entire case, including the count asserting interference with business relations. Appellant has perfected his appeal and submits three points of error for our consideration.

The judgment of the trial court will be reversed and the cause remanded for trial., upon the merits.

Appellant’s first point of error is controlling and is as follows:

“The Honorable District Court erred in granting a summary judgment on the entire case when the pleadings,- evidence and exhibits went to only one of the two counts plead.”

In his petition, appellant has alleged that he suffered damages by reason of libel and slander, or, in the alternative, that he has suffered damages as the result of the tor-tious interference by appellees with his business. The motion for summary judgment and the summary judgment proof were related only to the question of whether the alleged libelous and slanderous communications were privileged and were not related to the alternative claim for damages for the alleged tortious interference with appellant’s business. The burden of the appellees, as movants in this case, was to come forward with summary judgment proof which established as a matter of law that no genuine issue of fact exists as to one or more of the essential elements in each of appellant’s causes of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). This applies to each independent cause of action including those separated by “in the alternative.” The non-movant has no burden in response to a summary judgment motion unless the mov-ant has conclusively established his defense to each and every cause of action. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970); Marshall v. Garcia, 514 S.W.2d 513 (Tex.Civ.App. Corpus Christi 1974, writ ref’d n. r. e.). Since appellant asserted more than one cause of action and appellees’ summary judgment proof did not establish that they were entitled to a judgment as a matter of law on all causes of action, then appellees should have been denied a summary judgment. In such a case, a summary judgment is proper only if the non-movant could not succeed on any theory pleaded by him for recovery. There was no summary judgment proof that appellant could not recover on his alternative cause of action for the tortious interference with his business. Appellant’s first point of error is sustained.

Since this case will have to be tried on the merits, we believe that it would be helpful to the trial court if we pointed out that while ordinarily the civil courts have no jurisdiction over and no concern with, purely ecclesiastical questions and controversies, they do have jurisdiction as to civil, contract and property rights even though such rights are involved in, or arise from, a church controversy. 76 C.J.S. Religious Societies § 86, pp. 873-874 (1952). See Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Presbytery of Covenant v. First Presbyterian Church of Paris, 552 S.W.2d 865 (Tex.Civ.App. Texarkana 1977, no writ); Gray v. Saint Matthews Cathedral Endowment Fund, 544 S.W.2d 488, 492 (Tex.Civ. App. Texarkana 1976, writ ref’d n. r. e.).

In Bear v. Reformed Mennonite Church, 462 Pa. 330, 341 A.2d 105 (1975), a suit for alienation of affections and the tortious interference with a business relationship was alleged. Appellant had been excommunicated from the Amish Church for his criticism of the teachings of both the church and its bishops. As part of the excommunication, the church ordered that all members of the church must “shun” the appellant in all business and social matters. Appellant alleged that this shunning, or boycotting, of his business was causing its failure, and in addition, his family life was in a state of collapse because his wife and children would not speak to him or have any social or physical contact with him. A demurrer to the complaint was sustained by the trial court on the ground that the “free exercise” clause of the first amendment to the U. S. Constitution was a complete defense. The Pennsylvania Supreme Court reversed and recognized that while there is a prohibition against courts resolving religious disputes, certain overt acts, such as interference with the family relationship, alienation of affection, and the tortious interference with business, may be areas of paramount state concern that the courts have authority to regulate. See 20 A.L.R.2d 421 (1951).

We have examined the language contained in the alleged libelous and slanderous communication and believe that it is ambiguous and subject to more than one construction.

We are also of the opinion that several material fact issues exist which require determination by the trier of fact.

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

HUTCHINSON, BUN L., Associate Justice, not participating.


author: SHANNON, Justice.

text:
    FORD MOTOR CREDIT COMPANY v. Sammy Lee WASHINGTON.
    No. 12794.
    Court of Civil Appeals of Texas, Austin.
    Nov. 15, 1978.
    Rehearing Denied Dec. 5, 1978.

      Barry K. Bishop, Roy C. Snodgrass, III, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John F. Campbell, Lawrence J. Morgan, Campbell & Davidson, Austin, for appellee.
   SHANNON, Justice.

Sammy Lee Washington sued Ford Motor Credit Company and Leif Johnson Ford, Inc., for conversion of his 1972 automobile. After trial to a jury, the district court entered a joint and several judgment against the Credit Company and Leif Johnson for $1,000.00 in actual damages, and judgment against the Credit Company for $5,000.00 punitive damages. Only the Credit Company has taken an appeal from the judgment.

In April, 1974, Washington entered into a retail installment contract for the purchase of a used car from Leif Johnson. Leif Johnson assigned the contract to the Credit Company. The installment contract provided that Washington make monthly payments of $89.95 on the twentieth day of each month. Washington missed a payment in the beginning months and his account was never current thereafter except for a short time. In July, 1976, the Credit Company’s agent repossessed the car. At the time of repossession, Washington was in default on the June, 1976, payment.

The case was submitted to the jury by seven special issues. The jury answered that the Credit Company waived its right to repossess the car by its actions in servicing Washington’s account. The jury answered in addition that the Credit Company acted with malice in repossessing the car and assessed exemplary damages in the sum of $5,000. The market value of the car at the time of repossession was found to be $1,000.00.

Points of error one and two complain that there was no evidence, or alternatively, insufficient evidence to support the jury’s answer that the Credit Company waived its right to repossess the car.

The district court defined waiver to mean an “ . . . intentional relinquishment of a known right or intentional conduct inconsistent with claiming such right.” The Credit Company did not object to the court’s definition.

Washington missed an installment payment soon after he purchased the car. On cross-examination he admitted that thereafter he was never current in the payments except for one time. On occasion, he was behind by several payments. The evidence was that the employees of the Credit Company spent considerable time “servicing” Washington’s account. Most of the time the Credit Company employees called Mrs. Washington in an effort to prompt payment of overdue installments. At times an employee of the Credit Company visited Washington or his wife to discuss with them the condition of the account and what they might do to bring the account current. Washington continued to make payments, although seldom on time and rarely in sufficient amounts to bring current the account.

In July of 1975, a Credit Company employee, Terry L. Carey, went to Washington’s house and discussed the account with Washington. Washington agreed that the account was overdue, and he also agreed that Carey could repossess the car. In the meantime, Washington’s wife overheard their conversation and then hastened to drive the car away and hide it so thoroughly that a joint search by Washington and Carey could not discover it. Another attempt by the Credit Company to repossess the car was thwarted by Washington’s mother who blocked the car in the driveway by parking her car behind it. Carey testified that he or another employee tried to repossess the car on several later occasions. A collection agency was finally successful in taking the car from Washington’s driveway at about three o’clock in the morning of July 16, 1976. The Credit Company never refused to receive any of Washington’s late payments.

The Credit Company’s conduct in allowing Washington to fall behind in the payments without repossession and in consistently accepting late payments after ineffective attempts to repossess was sufficient to justify the jury’s finding of waiver.

The Credit Company claims another reason why, as a matter of law, it did not waive the right to take the car. The Credit Company’s claim rests upon the terms of the following form letter:

“Dear
Once again I am writing with regard to the payments that have not been made on your account. The past due condition of your account now is serious.
Our next step must be to repossess the vehicle. We hate to do this and we are sure you do not relish it either. Repossession will not do your credit reputation any good. If it is necessary, after we sell the car and apply the proceeds to your account, there may still be an amount owing. We will be asking you to pay any balance.
Your bringing the account current immediately will make all of this unnecessary. Please send your check for the past due payments or call me today. Repossession would be a serious and unfortunate matter for both of us.
Sincerely,
Account Representative”

The Credit Company’s employee testified that the letter was mailed in May of 1976, to Washington in Bastrop. Washington’s account file showed his address to be 611 Mesquite. The evidence was that in April, 1976, Washington moved to 2019 Pecan. In any event, Washington testified that he never received the letter or that he did not remember receiving it.

The Credit Company’s position, assuming arguendo that prior to the letter of May, 1976, Washington was justified in believing that his delinquencies were to be disregarded for purposes of repossession, is that such belief could not remain justified in light of the May letter. The Credit Company relies upon the rule that a party, having once waived by its conduct strict compliance with the terms of a contract, can assert its right to strict compliance in the future by notifying the other party of its intent to do so and by allowing a reasonable time for the other party to comply. A. L. Carter Lumber Co. v. Saide, 140 Tex. 528, 168 S.W.2d 629 (1943).

This Court, of course, recognizes the rule in Saide, but finds the rule inapplicable to this appeal. The Credit Company’s evidence was that it mailed the letter, but Washington’s testimony was that he did not receive it. Assuming that the terms of the form letter would have put Washington on notice that the Credit Company was going to insist on strict compliance, still we cannot say, as a matter of law, that the letter was a defense to waiver in view of the conflicting testimony as to whether Washington received it.

Points of error three and four are that there was no evidence, or alternatively, insufficient evidence to support the jury’s answer imputing malice to the Credit Company. We sustain point three.

The fact that an act is unlawful is not of itself ground for an award of exemplary damages. That act must not only be unlawful but also must be of a wanton and malicious nature, or, as sometimes stated, of a criminal or wanton nature. An act will not be deemed malicious, so as to warrant punitive damages, merely because it was unlawful or wrongful. Ogle v. Craig, 464 S.W.2d 95 (Tex.1971); Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966); Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943).

The repossession was committed in the belief that the Credit Company had the right to take the car. It was stipulated that Washington was in default, and the contract and Tex.Bus. & Comm. Code Ann. § 9.503 (Supp.1978), gave the Credit Company the right to repossess the car upon default. It is true that the right to repossess was waived, but it was waived by reason of the Credit Company’s conduct and not because the Credit Company voluntarily relinquished that right. Such facts are not evidence of a “wanton and malicious” intent on the part of the Credit Company.

That part of the judgment awarding punitive damages is reversed and judgment is here rendered that Washington recover no punitive damages. In all other respects, the judgment is affirmed.


text:
    PEOPLES STATE BANK OF SHEPHERD v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al.
    No. 12831.
    Court of Civil Appeals of Texas, Austin.
    Nov. 15, 1978.
    Rehearing Denied Dec. 5, 1978.
    Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Austin, for W. Sale Lewis.
    Thomas H. Lee, Gary C. Johnson, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for Livingston Savings and Loan Association.
   SHANNON, Justice.

Livingston Savings and Loan filed an application with the Savings and Loan Commissioner of Texas to establish a branch office in Shepherd, San Jacinto County, Texas. The Commissioner, after hearing, entered an order approving the branch office.

Appellant, Peoples State Bank of Shepherd, Texas, one of two protestants before the Commissioner, filed suit in the district court of Travis County to set aside the order of the Commissioner. The other protestant, Trinity Valley Savings and Loan Association, filed an answer in the district court disclaiming any further interest in the proceeding. After trial, the district court rendered judgment affirming the Commissioner’s order. We will affirm the judgment of the district court.

Appellant’s point of error is that the district court erred in rendering judgment affirming the Commissioner’s order for the reason that the order was not supported by substantial evidence. Although appellant does not particularize by point of error which of the ultimate issues were not supported by substantial evidence, an examination of appellant’s brief indicates an attack on the Commissioner’s finding (g): that there existed a public need for a branch savings and loan office in Shepherd. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

Appellant’s brief is a measured criticism of Livingston’s presentation of its case before the Commissioner. Contrary to the usual practice, Livingston did not employ an economist to collect economic data bearing upon the ultimate issues to be determined. Instead, Livingston’s case consisted primarily of testimony of its president, Bob Belt; the manager of a title company, Jackie Manuel; and two real estate and insurance men, James Sewell and J. A. McDaniel. These witnesses appeared at the hearing armed more with opinion than with fact, and more than once, Livingston’s case nearly foundered when appellant’s objections to unsupported opinion testimony were sustained. Nevertheless, an examination of the entire record shows that Livingston managed to place into the record substantial evidence in support of the need for the branch.

Examination of Bob Belt showed that very little factual basis existed for some of his conclusions. This was particularly true with respect to his conclusions about the definition and population of the community to be served. Nonetheless, the Commissioner accepted, as was his right, Belt’s testimony concerning the location of the community to be served by the proposed branch office. Most of San Jacinto County and a part of Polk County are included in the community. The towns in the community are Goodrich, Shepherd, and Coldspring. The only probative evidence of population growth in the community to be served is a United States Census Estimate which showed that the population of San Jacinto County grew from 6,702 on April 1, 1970 to 8,400 on July 1, 1975. Belt’s testimony was that persons residing in the community could patronize the branch office.

Belt testified that Livingston made loans and had depository customers in the community in question. Livingston’s loan activity in the community in question is described as follows: in 1973, six loans for a total of $94,000; in 1974, nine loans for a total of $173,000; in 1975, nine loans totaling $223,000; in 1976, thirteen loans for a total of $424,000; and in the two months of 1977 prior to the hearing, five loans totaling $152,000. At the time of the hearing Livingston had fourteen loan commitments in the area aggregating $292,000. The total amount of savings deposits with Livingston from the community in question on February 11, 1977 was $659,000.

Livingston views San Jacinto County as a “loan outlet.” Belt testified that Livingston’s deposits increased by $4,000,000 and Livingston was able to lend approximately $2,000,000. Livingston’s intention is to lend its excess funds in the proposed community. The proposal appears feasible because there are no lending institutions actively soliciting long-term home mortgage loans in San Jacinto County. The lack of interest in the loan market of the area may be explained partially by the fact that there are no savings and loan associations or branches in San Jacinto County or in the community to be served by the proposed branch. There are two banks in that community: one in Coldspring and the other in Shepherd.

Jackie Manuel, the manager of a title company in Coldspring, testified that the number of real estate transactions was increasing in San Jacinto County. Her observation was that most of the long-term loans were handled by financial institutions outside San Jacinto County.

James Sewell was permitted to testify, over objection, that based upon his past experience with financial institutions and his residence in San Jacinto County, there was a need for a branch office of a savings and loan association in Shepherd.

J. A. McDaniel testified that in the fifteen to eighteen months preceding the hearing, there had been approximately forty-five “. . . starts and completes [sic ] of new housing units in the immediate and surrounding area of Shepherd.” Qualified owners have difficulty in obtaining long-term loans for building those houses from area savings and loan associations, with the result that a large part of McDaniel’s time is consumed in obtaining long-term financing for the construction of homes on tracts which he sells.

An appeal from an order of the Savings and Loan Commissioner is governed by the substantial evidence rule. A statement of the law relating to judicial review of the Commissioner’s order is found in a recent opinion of this Court, Mutual Building and Loan Association v. Lewis, 572 S.W.2d 771 (Tex.Civ.App., 1978), and need not be repeated.

We agree with appellant that there is not much evidence supporting public need for the branch office. Appellees, on the other hand, remind this Court that the Supreme Court has held that “. . .it has not taken much evidence under our decisions to qualify as substantial.” Lewis v. Metropolitan Savings and Loan Association, 550 S.W.2d 11, 13 (Tex.1977). Under the facts of this case, this Court would have probably reached a different result from that of the Commissioner. Even so, there is substantial evidence supporting the Commissioner’s order, and it therefore follows that the Commissioner’s order should be given effect.

The judgment is affirmed.


author: REED, Justice.

text:
    Larry EDWARDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 10, 1978.
    Thomas E. Clay, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Reid C. James, Asst. Atty. Gen., Frankfort, for ap-pellee.
   REED, Justice.

The appellant, Larry Edwards, was convicted of murder and sentenced to confinement for life in the penitentiary. His code-fendant, George Hurst, was indicted but the charges were dismissed when he testified for the Commonwealth against Edwards. The evidence against Edwards is sufficient to support the verdict. We have concluded that Edwards received a fair trial and accordingly affirm the judgment.

Edwards asserts that the trial court erred in admitting into evidence some 45 caliber bullets which were procured as a result of a search of the apartment where Edwards lived. The search was authorized by a search warrant. Edwards attacks the affidavit on which the warrant was based on two principal grounds, first, he argues that the information contained in the affidavit was stale and, second, he contends that the integrity and reliability of the named informant, Janet Slack, was not demonstrated by the terms of the affidavit. He argues that there is all the more reason to require a showing of integrity and reliability on the part of the informant because this affidavit is based on hearsay. We have previously held that “hearsay on hearsay” is not defective where the totality of the circumstances is such that the magistrate can make an independent judgment as in any other affidavit for search warrant. Commonwealth v. Eilers, Ky., 503 S.W.2d 724 (1974). The affidavit in this case is based upon information furnished by Janet Slack, the girl friend of George Hurst, to a police officer who then relayed the information to a detective who made an independent investigation.

In the total circumstances, we conclude there was a sufficient showing of probable cause. In Embry v. Commonwealth, Ky., 492 S.W.2d 929 (1973), we held that where the affidavit for a search warrant disclosed the identity of the informant and his information was spelled out, the inquiry should be directed to the circumstances which existed when the warrant was issued. The general rule has long been that an affidavit for a search warrant based on information furnished by a named individual is ordinarily sufficient to support the warrant. In Embry, supra, we pointed out that the United States Supreme Court had taken the position that warrantless searches are per se unreasonable unless they can be validated under carefully delimited exceptions to the requirement of a warrant. We observed in Embry that in the interest of law enforcement the securing of warrants should be encouraged and not discouraged by hypertechnical mousetracking of the language of the affidavit on which the warrant was based. We therefore hold that this search warrant was sufficient and the court properly admitted the evidence.

Edwards also complains that the trial court erred in leaving the issue of whether George Hurst was his accomplice to the jury for its determination under the instructions. Edwards argues that the jury should have been instructed that Hurst was his accomplice as a matter of law. We think the evidence is sufficiently equivocal concerning the activities of Hurst at the time of the killing, that the issue of whether Hurst was an accomplice on the occasion in question was properly left to the determination of the jury. See Mouser v. Commonwealth, Ky., 491 S.W.2d 821 (1973).

Edwards next assignment of error is that the trial court improperly refused to allow his counsel to cross-examine Hurst about certain inconsistent statements made by Hurst during the course of a polygraph test. The courts of this state have yet to admit into evidence the result of polygraph tests. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974), Conley v. Commonwealth, Ky., 382 S.W.2d 865 (1964), Colbert v. Commonwealth, Ky., 306 S.W.2d 825 (1957).

The credibility of any witness may be impeached by showing that he has made statements inconsistent with his present testimony. Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). In certain circumstances, these out-of-court statements may be considered as substantive evidence. Caldwell v. Commonwealth, Ky., 550 S.W.2d 533 (1977).

The Commonwealth argues that when admission of prior inconsistent statements violates another rule of evidence, such as the prohibition against admission of polygraph results, the better practice is to deny its admission. The Commonwealth further argues that even if there was error in excluding the inconsistent statements made during the polygraph test the error was harmless since Hurst admitted during direct examination that he had originally made other statements inconsistent with his testimony at trial. More specifically, Hurst admitted denying any knowledge of the murder when investigating officers initially questioned him. Thus the jury did receive evidence impeaching the credibility of the witness Hurst.

In Henderson v. Commonwealth, Ky., 507 S.W.2d 454, 460 (1974), we said:

Unquestionably the polygraph report itself was inadmissible, but there was no reason Gillingham [the Kentucky State Police officer who administered the polygraph test] could not have testified in person on the limited subject of Henderson’s mental capacity and state of mind at the time of his interview. There having been no attempt to develop such testimony by avowal, we do not know what the man would have said, and therefore cannot make the threshold determination of prejudice, (footnote omitted).

We do not share the alarm of the Commonwealth that in the laying of the foundation for introduction of prior inconsistent statements the fact that a polygraph test was involved is an insurmountable obstacle. We are of the opinion that prior inconsistent statements elicited during the polygraph test are admissible if no mention is made that the statements were uttered during a polygraph examination and no reference is made to the fact that a polygraph examination was conducted. Nevertheless, we are in agreement with the Commonwealth that the error here was not prejudicial because the prior inconsistent statements of Hurst at times other than during the polygraph examination were introduced into evidence for the jury’s consideration.

Although Edwards complains that he was entitled to an instruction on the presumption of innocence and the Commonwealth replies that he was not so entitled, it appears to us that both Edwards and the Commonwealth apparently overlooked the instruction which the trial judge actually gave. That instruction reads:

The defendant is presumed to be innocent of the charge herein until his guilt has been established by the proof beyond a reasonable doubt .

This instruction appears in substantial compliance with Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) and Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978).

The judgment is affirmed.

All concur.