author: ELLIS, Chief Justice.

text:
    JON-T FARMS, INC., Appellant, v. GOODPASTURE, INC., Appellee.
    No. 8720.
    Court of Civil Appeals of Texas, Amarillo.
    June 13, 1977.
    Rehearing Denied Aug. 8, 1977.

      Prappas, Caldwell & Moncure, Brantly Harris, Houston, for appellant.
    Crenshaw, Dupree & Milam, Cecil Kuhne and William R. Moss, Lubbock, for appellee.
   ELLIS, Chief Justice.

Goodpasture, Inc., as plaintiff, instituted two consolidated breach of contract suits involving the purchase of grain from Jon-T Farms, Inc., the defendant. Jon-T Farms filed a counterclaim seeking recovery for grain delivered but not paid for. Judgment was rendered on a jury verdict favorable to the plaintiff. Goodpasture was awarded a total net recovery in the sum of $69,886.12, after deducting credits allowed on Jon-T’s counterclaim, on one of the contracts. Neither party was awarded any recovery on the other contract.

Jon-T’s appeal has raised various issues concerning: the nature of the alleged breach; alleged waiver of the breach; applicability of certain remedies for breach under the provisions of the Uniform Commercial Code; evidential support for damages awarded; manner of submission of special issues; and the counterclaimant’s plea for statutory attorney’s fees. We have concluded that the judgment of the trial court correctly disposed of the basic issues. Affirmed.

The first contract was dated January 17, 1973, and obligated Jon-T to sell Goodpas-ture 10,000,000 pounds of Number 2 yellow grain sorghum at $2.70 per hundredweight. Grades were to be “official” and the grain was to be shipped during October and November, 1973. Shipping terms were “FOB Cars West Texas TCP (Texas Common Point) Area.” Payment was to be by drafts at a Houston bank. The second contract, dated July 24, 1973, obligated Jon-T to sell 5,000,000 pounds at $4.35 per hundredweight. Goodpasture recovered on only the first ($2.70) contract and it is the only contract involved in this appeal. Throughout this opinion, it will be referred to as “the contract.”

In accordance with the contract terms, Jon-T began shipping the grain in October, 1973. By November 30 (the end of the stated delivery period), however, only 2,023,480 pounds of grain had been shipped. A shortage of rail cars had caused Jon-T’s failure to complete delivery on time. Jon-T continued to ship grain, however, and Good-pasture encouraged these late deliveries. On December 8, 9 and 10, Goodpasture used its own trucks to transport twenty-four (24) loads of grain from Seminole to the rail-head at Seagraves, Texas, where it was stored in Goodpasture’s warehouse.

The evidence is undisputed that the price of grain began to rise subsequent to the execution of the first contract on January 17,1973, and continued to rise until November of 1974, when it reached a price of $7.00 per hundredweight. On December 11 or 12, 1973, the market price was $4.48; in March of 1974, between $5.35 and $5.50; and in October or November, 1974, approximately $7.00 per hundredweight.

By a letter addressed to Goodpasture dated December 10,1973, Jon-T stated that the contract had expired and that Jon-T would extend the contract through December, 1973 at a 60 cent per hundredweight upc-harge. On December 13, Goodpasture suspended payments to Jon-T and (by Telex) ordered its employees to “Honor no more drafts on Jon-T until further advised.” On the same day (December 13), Goodpasture’s president visited with John Thomas of Jon-T. In that conversation, Jon-T was urged to honor the contract and was told that its drafts would be honored if discounts were allowed for non-conforming grain. One carload of non-conforming grain was released back to Jon-T on December 14.

This suit for breach of contract was instituted by Goodpasture on December 17, 1973. Jon-T attempted to draft on Good-pasture on December 19, but the draft was refused because discounts for non-conforming grain had not been allowed. Although it paid no drafts thereafter, Goodpasture accepted and unloaded six (6) carloads of grain between December 10 and December 21. As of this last date, Jon-T had delivered 4,167,550 pounds of the 10,000,000 it had contracted to deliver. Goodpasture had paid for 2,205,660 pounds.

This case was tried to a jury in November, 1975. The jury found that Jon-T had breached and/or repudiated the contract, causing Goodpasture to sustain $121,179.84 in damages. This amount included $2,558.69 of incidental damages. Jon-T was allowed a set-off of $51,293.72 and judgment in favor of Goodpasture was rendered on the verdict for $69,886.12. Jon-T has appealed on fourteen (14) points of error.

In its first four points of error, Jon-T has argued that Goodpasture waived any breach of contract by Jon-T. Both parties agree that the contract was extended past November 30 and continued in effect at least until December 10. Jon-T has attributed this extension to Goodpasture’s reinstatement of the contract after Jon-T breached the contract by failing to complete delivery on the contract by November 30. Goodpasture, on the other hand, has argued that there was no breach of the contract on December 1 because Goodpasture extended the time for delivery. Goodpasture was granted this option in the contract. It is our opinion that under the provisions of the contract, Goodpasture was entitled to extend time for delivery and that the evidence showed such an extension was given. Under either theory, however, the result is the same; the contract was in effect at least until December 10.

Goodpasture has argued that the letter sent by Jon-T on December 10 constituted a repudiation of the contract. According to comment 2 to section 2.610 of the Business and Commerce Code, repudiation occurs when one party declares his intention not to perform under the contract or declares that he will not perform except on conditions which go beyond the contract. Decisions rendered since the Code was enacted support this construction. See, e. g., Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). The letter in question stated:

You are aware that Contract 16811 for 10,000,000 pounds expired in November. We will extend this contract through December, 1973 at $0.60 per cwt upcharge.

When given the “fair reading” suggested by Code comment 2, supra, this letter communicated an intention not to be bound by the contract and a demand for performance going beyond the terms of the original contract. In our opinion, this was a repudiation of the contract and the jury finding to that effect is supported by ample evidence.

Jon-T, however, has argued that a repudiation of an installment contract can be waived and the contract reinstated under Tex. Bus. & Comm. Code Ann. § 2.612(c). That statute provides:

(c) Whenever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a nonconforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments.

It has been argued that Goodpasture’s conduct constituted a waiver of Jon-T’s repudiation as a matter of law.

We doubt that section 2.612(c) was intended to cover a repudiation such as this one. Comment 6 to that section states that this provision was not intended to cover true repudiation. Furthermore, Jon-T did not retract its repudiation as allowed by section 2.611.

In any event, Goodpasture’s actions would not have amounted to waiver as a matter of law as Jon-T has suggested. After receiving Jon-T’s December 10 letter of repudiation, Goodpasture refused to hon- or Jon-T’s drafts. Such a suspension of performance is authorized specifically by Tex. Bus. & Comm. Code Ann. § 2.610, which provides:

When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may

(1) for a commercially reasonable time await performance by the repudiating party; or
(2) resort to any remedy for breach (Section 2.703 or Section 2.711), even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
(3) in either case suspend his own performance or proceed in accordance with the provisions of this chapter on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2.704).

Goodpasture also demanded that Jon-T hon- or the contract. This, too, is authorized by section 2.610(2). Lastly, Goodpasture accepted six late shipments of grain. Accepting late performance does not constitute waiver of a breach as a matter of law. See, e. g., Commercial Credit Corporation v. Taylor, 448 S.W.2d 190 (Tex.Civ.App.—Tyler 1969, no writ). Furthermore, even if late acceptance raised a fact question as to waiver, no issue on waiver or reinstatement was requested and the argument cannot be asserted on appeal. Tex.R.Civ.P. 279; Roberts v. Holmes, 412 S.W.2d 947 (Tex.Civ.App.—Eastland 1966, no writ).

Jon-T has argued that Goodpasture waived its right to assert breach of contract because it accepted deliveries without reserving its rights under Tex. Bus. & Comm. Code Ann. § 1.207. That statute provides:

A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice”, “under protest” or the like are sufficient.

It is recognized that the statute provides machinery for reserving contractual rights, but failure to do so does not compromise a party’s position in later legal proceedings under the Code. The statute is permissive rather than mandatory. Tex. Bus. & Comm. Code Ann. § 1.207 comment 2.

We have concluded that the jury finding that Jon-T breached and/or repudiated the contract is supported by ample evidence and that Goodpasture did not waive the breach and/or repudiation as a matter of law. Points 1 through 4 are overruled.

In points 5 and 6, Jon-T has argued that two different types of grain inspection certificates which were admitted into evidence were incompetent as evidence that Jon-T delivered non-conforming grain to Goodpas-ture. The jury found that the grain delivered on December 8, 9 and 10 (i. e., the 24 truckloads hauled in Goodpasture trucks) was not all number 2 yellow grain sorghum as required by the contract. According to Jon-T, the inspections performed to grade the grain were not carried out according to the contract terms and the results of these inspections were incompetent as evidence under Tex. Bus. & Comm. Code Ann. § 2.513.

It is true that any method of inspection or grading specified in the contract should be presumed exclusive. Tex. Bus. & Comm. Code Ann. § 2.513(d). The contract, however, states only that grades are to be “official,” with no further qualifications. In our opinion, the term “official” as used in the contract is ambiguous.

If a contract term has no one certain, definite meaning, it is ambiguous, and extrinsic evidence is admissible to determine the meaning that the parties intended it to have. See, e. g., Ownens v. Neches River Municipal Water Auth., 514 S.W.2d 58 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). In this case, extrinsic evidence was presented by both Jon-T and Goodpasture.

Jon-T argued that the only possible definition of the term “official” is the one found in the regulations promulgated under the United States Grain Standards Act, 7 U.S.C. § 71.

Official grade. The grade of grain as determined by official inspection personnel under the official grain standards. 7 C.F.R. § 26.1(bX24).

If a load of grain is inspected according to this provision, the grade is certified with a “white certificate.”

At trial, the “white certificates” were not produced to prove the grades of the 24 truckloads of grain shipped to Goodpasture. However, Goodpasture has contended that the method used to grade the grain resulted in an “official” grade within the meaning of that contract term.

To prove the grades of the 24 truckloads, Goodpasture produced “pink certificates.” As with the white certificates, the procedure followed to obtain a pink certificate is prescribed in the Grain Standards Act. The only difference between the procedure followed to obtain a white certificate and that followed to obtain a pink certificate comes at the sampling stage. To qualify for a white certificate, the grain sample must be taken by someone who is licensed under the Grain Standards Act; for a pink certificate, unlicensed personnel take the sample. In both procedures, the actual grading is done by licensed personnel. The evidence indicated that so long as the sample taken is representative of the entire load, the results would be valid under either procedure. The pink certificates are denominated “Official Certificate.” Three men involved in the grain trade (two Good-pasture employees and one inspector licensed under the Grain Standards Act) testified to the effect that both white certificates and pink certificates could be “official” grades.

In our opinion, there is ample evidence to support the trial court’s implied finding that the grading procedure followed was “official” within the meaning of that contract term. The pink certificates introduced were competent evidence that Jon-T delivered non-conforming grain to Goodpas-ture.

Corroborating the results indicated by the “pink certificates” admitted by the trial court were grain inspection certificates issued by an inspector licensed under the United States Warehouse Act, 7 U.S.C. § 241. This man took samples from each of the 24 truckloads and graded the samples. Jon-T has argued that the results of this grading were inadmissible because the grading did not conform to the United States Grain Standards Act.

As above stated, the contract provided only that the grading be “official” and that term is ambiguous. The contract terms do not require or suggest that inspections and grading be according to the Grain Standards Act. In our opinion, the evidence supports the trial court’s implied finding that these certificates represented “official” grading within the meaning of that contract term.

At trial, however, Jon-T produced evidence indicating that the inspector who graded the grain was not properly licensed when he did so. Goodpasture produced evidence that the inspector was actually licensed a short time before he graded the grain, but that he simply had not at that time received his written license. The trial court decided the issue favorably to Good-pasture and the evidence supports that finding.

We have concluded the evidence supports the trial court’s findings that both the “pink certificates” and the certificates issued under the Warehouse Act represented “official” grading within the meaning of that contract term. For this reason, admission of the certificates was not error and points 5 and 6 are overruled.

It is the contention of Jon-T under its points 7, 8 and 9 that there is no evidence to support the jury’s finding as to Goodpasture’s damages. Jon-T asserts that Goodpasture pleaded and proved an incorrect measure of damages because it had effected the remedy of “cover” under § 2.712 of the Business and Commerce Code and that its basic recovery should be the difference between the cost of cover and the contract price. Jon-T further argues that Goodpasture submitted no evidence as to the cost of cover and thus was not enti-tied to recover damages. Goodpasture contends that it was entitled under the provisions of § 2.713 of the Business and Commerce Code, to recover the difference between the contract price and the market price at the time it learned of the breach. It is undisputed that Goodpasture submitted evidence as to market value as of the time Goodpasture learned of the alleged breach.

Pertinent provisions of the Business and Commerce Code are:

§ 2.711. Buyer’s Remedies in General;
(a)Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2.612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(1) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or
(2) recover damages for non-delivery as provided in this chapter (Section 2.713).
* * * * * *
§ 2.712. “Cover”; Buyer’s Procurement of Substitute Goods
(a) After a breach within the preceding section the buyer may “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(b) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2.715), but less expenses saved in consequence of the seller’s breach.
(c) Failure of the buyer to effect cover within this section does not bar him from any other remedy. .
* * * * * *
§ 2.713. Buyer’s Damages for Non-Delivery or Repudiation
(a) Subject to the provisions of this chapter with respect to proof of market price (Section 2.723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this chapter (Section 2.715), but less expenses saved in consequence of the seller’s breach.
* * * * * *
§ 2.715. Buyer’s Incidental and Consequential Damages
(a) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
(b) Consequential damages resulting from the seller’s breach include
(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; . ******

Comment 3 following § 2.712 states that the “buyer is always free to choose between cover and damages for non-delivery under the next section.” (§ 2.713). Further, it is significant to note that comment 1 following § 2.713 states that “the general baseline adopted in this section uses as a yardstick the market in which the buyer would have obtained cover had he sought that relief.” Also, “the crucial time is the time at which the buyer learns of the breach.” In this connection, the Code presumes that the cost of cover will approximate the market price of the undelivered goods. Kiser v. Lemco Industries, Inc., 536 S.W.2d 585 (Tex.Civ.App.—Amarillo 1976, no writ).

Under § 2.712(c), upon seller’s breach the buyer is not required to cover as a means of minimizing damages, and his failure to effect cover does not bar him from any other remedy. Thus, on seller’s breach a buyer is free to choose between damages based upon the difference between the contract price and the cost of cover under § 2.712, and damages for non-delivery, consisting of the difference between the market price at the time when the buyer learns of the breach and the contract price under § 2.713(a). 64 A.L.R.3d 249; 67 Am.Jur.2d, Sales, 894.

Goodpasture pleaded and proved the measure of damages set forth in § 2.713. Jon-T has argued that testimony by William Long, a Goodpasture accountant, and Truitt Kennedy established that Goodpas-ture “covered” for the grain due from, but undelivered by, Jon-T.

The testimony of the plaintiff’s witnesses, Long and Truitt, was that Goodpasture normally bought sufficient grain in order to meet its contracts for sale. There is no evidence that in Goodpasture’s mode of operation it makes a specific purchase contract in order to meet the requirements of a specific sales contract. The company maintains “position” records as to its overall operation which disclose the total amount of grain it has contracted to sell and the total amount it has contracted to buy, and its “position” is maintained in order to fill its sales contracts. The contract entered into between Jon-T and Goodpasture cannot be said to have been entered into to fill any particular outstanding commitment. The grain purchased is commingled with other grain. Although in the overall operation Goodpasture may have bought some grain to compensate for the undelivered Jon-T grain to insure an adequate supply to meet its commitments, there is no testimony that Goodpasture went out and bought specific grain to make up for the specific amount of grain undelivered by Jon-T.

In fact, this record reveals that Goodpas-ture filed its suit within a week after learning of Jon-T’s breach and, as was its right, elected to seek the difference between the contract and market price, together with incidental and consequential damages. Goodpasture was not required to cover and there is no evidence of Goodpasture’s purchase of grain for the purpose of cover during that week.

Nevertheless, Jon-T insists in its brief that Goodpasture covered in March or April, 1974, for the Jon-T shortage; however, we do not find any evidence of such specific purchases for such alleged cover set out in the record. In any event, had Good-pasture covered in March or April as contended, and if the cost of cover was equal or comparable to market price at that time, (considerably higher than market price in December, 1973) such procedure would have been quite detrimental to Jon-T’s position in this matter.

In view of the foregoing, it is our opinion that the pleadings and evidence show that Goodpasture opted to pursue its remedy for damages, as it had the right to do, pursuant to § 2.713. Accordingly, points 7, 8 and 9 are overruled, and we hold that the proper measure of damages was applied in this case.

In its tenth point of error, Jon-T has argued that the trial court erred in submitting special issue # 1 too broadly. The issue was submitted in the following form:

1. Did Jon-T Farms, Inc., breach and/or repudiate Contract No. 16,811 ($2.70)? (Answer “Yes” or “No”)

Tex.R.Civ.P. 277 vests the trial court with considerable discretion in submitting issues, and it is our opinion that the rule specifically authorizes this use of submission. Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.). Furthermore, broad submission of issues in non-negligence cases has always been permitted. Union Mutual Life Insurance Company V. Meyer, 502 S.W.2d 676 (Tex.1973). Under Rule 279, it is specifically provided that the trial court is to submit only controlling issues and “ . . . the case shall not be reversed because of the failure to submit various phases or different shades of the same issue.” In this connection see: Holmes v. J. C. Penney Company, 382 S.W.2d 472 (Tex.1964); McPherson v. Billington, 399 S.W.2d 186 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). It is our opinion that the trial court submitted the ultimate and controlling issue as to whether the defendant breached and/or repudiated the contract and other phases or shades of such issue were not necessary or proper. We find no error in the form in which the issues were submitted here. Point 10 is overruled.

Jon-T’s eleventh point attacks the trial court’s judgment because the verdict lacked a finding that the breach and/or repudiation by Jon-T went to the whole of the contract. The gist of this argument is that Tex. Bus. & Comm. Code Ann. § 2.711 authorizes damages for breach only as to goods involved or as to the whole contract if the breach goes to the whole contract. The issues submitted to and answered by the jury did not inquire whether the breach went to the whole. Jon-T made a request for such an issue, but the request was denied.

Although Jon-T requested the issue, it did not object to its omission. Under Tex.R.Civ.P. 273, 274, 276 and 279, a party must object to the failure to submit an issue relied upon by the other party. Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.). A request will not substitute for an objection and for this reason, Jon-T cannot raise the issue on appeal.

Furthermore, when Jon-T requested the issue, it was included among 67 other requested issues and 23 requested instructions. Many of these issues and instructions were shades of the ones actually submitted by the trial court. Our rules of civil procedure specifically declare as untenable the practice of a party obscuring or concealing a meritorious request for an issue with a large number of unfounded objections, minute differentiations or numerous unnecessary requests. See, Tex.R.Civ.P. 274. We hold that for this reason, Jon-T waived its right to raise the issue. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941); Metal Structures Corp. v. Plains Textile, Inc., 470 S.W.2d 93 (Tex.Civ App.—Amarillo 1971, writ ref’d n. r. e.).

Even assuming Jon-T had not waived this argument it is our opinion that the trial court’s failure to submit the issue requested was not error. It is clear that Jon-T’s repudiation went to the whole of the contract and the matter was not issuable. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956).

In points 12 and 13, Jon-T has argued that there is no evidence to support the jury’s award of $2,558.69 in special damages to Goodpasture. This amount represented expenses incurred by Goodpasture in transporting 24 truckloads of grain from Jon-T’s elevator in Seminole, Texas, to Goodpas-ture’s warehouse at Seagraves, Texas. The terms of the contract were “FOB West Texas TCP Area.” Under these terms, Jon-T was obligated to pay all expenses involved in loading the grain on rail cars for shipment.

After it became apparent that the rail car shortage would impede grain shipments, the parties entered into an oral “arrangement” under which some of the grain would be transported in Goodpasture trucks. This arrangement is the type of substitute performance contemplated by Tex.Bus. & Comm.Code Ann. § 2.614. That statute obligates a seller to use and a buyer to accept delivery by commercially reasonable means if the agreed method of transportation becomes impracticable. This was done by the parties, but the substitute transportation involved extra expense and the statute does not settle the question as to who should bear this expense.

We have concluded that Jon-T should bear the extra expense in this case. Under the terms of the contract, Jon-T would have had to bear the expense of transporting the grain from its elevator to a railhead for loading. Goodpasture was required to transport the grain to a nearby railhead for storage and the expenses incurred would not have been incurred by Goodpasture if Jon-T had performed according to the contract terms.

The appellant makes reference to the testimony of Mr. Goughnour, a Goodpasture employee, who testified concerning the making of arrangements for some trucks and stated that certain trucks were made available “at our expense.” Apparently, this testimony was construed to mean that Goodpasture initially incurred the expense, but not to mean that Jon-T was relieved from his obligation to bear the transportation expenses as agreed under the terms of the contract. Certainly, the written contract did not obligate Goodpasture to bear this expense.

It is our opinion that there is ample evidence to support the $2,558.69 award for special damages. Points 12 and 13 are overruled.

In its last point of error, Jon-T has complained of the trial court’s action in sustaining a special exception to Jon-T’s claim for attorney’s fees and has prayed that the issue of attorney’s fees be severed and remanded. Jon-T’s claim for attorney’s fees is founded upon Article 2226, V.A.C.S. (Supp.1976), which provides:

Any . . corporation having a valid claim against a . corporation for . . . material furnished ... or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.

Goodpasture’s special exception sustained by the trial court set out that “such attorney’s fees and such claims are not recoverable as a claim for an account and attorney’s fees are not recoverable, such sums being alleged to be due under a special contract, or contracts, are not covered and not within the purview of Art. 2226.” Jon-T has argued that its claim was for “materials furnished” within the meaning of the statute and that it is entitled to attorney’s fees even though the basis of its claim is contractual.

It has been established that a suit for statutory attorney’s fees as a separate action under Article 2226 cannot be maintained, and before recovery of attorney’s fees may be had thereunder, the claimant must prevail in its underlying action against the adverse party, and that severance of the claim for attorney’s fees is error. National Surety Corporation v. Standard Concrete Pipe Sales Company, 366 S.W.2d 103 (Tex.Civ.App.—Houston 1963, no writ). See also, Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493; Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.); National Homes Corporation v. C. J. Builders, Inc., 393 S.W.2d 949 (Tex.Civ.App.—Houston 1965, writ dism’d). In the light of the foregoing, it is our opinion that since judgment in favor of Goodpasture in the net sum of $69,886.12 has been sustained in this case against Jon-T, the issue as to attorney’s fees may not be severed and remanded as prayed for by the appellant.

Furthermore, it has been held that where both litigants have presented claims for damages, i. e., one party brought suit on its claim and the other party counterclaimed, the party recovering the lesser amount is not entitled to recover attorney’s fees under Article 2226. L Q Motor Inns, Inc. v. Boysen, 503 S.W.2d 411 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.). As noted above, the trial court’s judgment awarded Jon-T no net recovery from Good-pasture because the amount awarded to Goodpasture exceeded that awarded to Jon-T. Our holding sustaining the award of damages would preclude the awarding of attorney’s fees to Jon-T under Article 2226 and is dispositive of that issue in this case. We therefore do not here pass upon the various contentions of the parties relevant to the special exception concerning attorney’s fees referred to in the fourteenth point.

For the reasons above stated, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

We have carefully reviewed and considered the various matters raised in appellant’s motion for rehearing as well as its brief submitted in support of such motion. We have determined that our opinion, as previously issued, reflected our views with respect to the appellant’s various challenges of the trial court’s legal conclusions as well as the evidential support for the jury’s findings regarding those legal and factual determinations deemed basic or controlling in the disposition of this appeal.

As a part of the appellant’s motion for rehearing, the appellant requested this court to make and file supplemental findings of fact. We have examined such requests and have determined that our conclusions on controlling issues of fact were sufficiently stated in our opinion heretofore issued, and that certain findings requested were evidentiary or argumentative in nature and involve original findings which we are unauthorized to make. See City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969). A court of civil appeals is authorized only to “unfind” facts. Id. 833. The appellant’s requests for supplemental findings of fact are denied.

After considering all matters set out in appellant’s motion for rehearing, we adhere to our former disposition of the case. Accordingly, appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    William P. GOODE, Appellant, v. CITY OF DALLAS, Appellee.
    No. 19187.
    Court of Civil Appeals of Texas, Dallas.
    June 15, 1977.

      Tom S. McCorkle, Jr., McCorkle & West-erburg, Dallas, for appellant.
    Richard Sacks, Asst. City Atty., Dallas, for appellee.
   GUITTARD, Chief Justice.

The principal question on this appeal is the validity of the comprehensive zoning ordinance of the City of Dallas insofar as it prohibits storage of motor vehicles on property within a residential district when that storage is not incidental to the use of the property as a residence. The landowner, William P. Goode, sued the City for a judicial declaration that the ordinance is unconstitutional and for an injunction restraining its enforcement by criminal and civil proceedings. The City counterclaimed for a permanent injunction restraining violation of the ordinance. After trial without a jury, the district court upheld the ordinance, denied the landowner’s claim for declaratory and injunctive relief, and issued the injunction sought by the City. We affirm.

1. Validity of Ordinance

The landowner contends that the ordinance fails to define an offense and that it is so vague that a person of ordinary intelligence cannot determine when it has been violated. The particular provision now in question is section 24-202, as follows:

In all single-family, duplex, townhouse, multiple-family and mobile home districts no open accessory storage or display outside a building of materials or commodities for sale at wholesale or retail or for storage purposes shall be permitted nor shall any motor vehicle or machinery storage other than that which is incidental to the use of a premises as herein provided for be permitted, except that one (1) panel delivery or pick-up truck not exceeding one and one-half (lVfe) ton capacity may be stored by the owner of a premises when such vehicle storage is incidental to the main use of such premises [emphasis added].

The penal provision of the ordinance is section 35-100, as follows:

Any person or corporation who shall violate any of the provisions of this ordinance or fail to comply therewith or with any of the requirements thereof, or who shall build or alter any building or use in violation of any detailed statement or plan submitted and approved hereunder, shall be guilty of a misdemeanor and shall be liable to a fine of not more than two hundred dollars ($200.00) and each day such violation shall be permitted to exist shall constitute a separate offense. The owner or owners of any building or premises or part thereof, where anything in violation of this ordinance shall be placed or shall exist, . . . shall be guilty of a separate offense and upon conviction shall be fined as herein provided. The City, likewise shall have the power to enforce the provisions of this ordinance through civil court action as provided by State Law.

The landowner argues that section 35-100 is not sufficient in itself to define an offense and is insufficient also when taken together with section 24-202 because that section merely states that the conduct referred to is not permitted without expressly stating that a person who commits such conduct is guilty of an offense.

We do not agree. In our opinion, section 35-100, when taken together with section 24r-202, is sufficient to advise anyone of ordinary intelligence that a person who engages in the conduct that is not permitted is guilty of an offense. Section 24-202 provides, in effect, that no storage of vehicles, with certain exceptions, shall be permitted in a residential district, and section 35-100 provides that any person who violates any provision of the ordinance shall be guilty of a misdemeanor and subject to a fine. The statement in section 24-202 that the conduct therein described is not permitted necessarily means that the conduct not permitted is a violation of the ordinance and that any person who violates the ordinance is guilty of an offense and subject to the penalties provided.

The landowner contends further that section 24-202 is unconstitutionally vague because of uncertainty of the language “other than that which is incidental to the use of a premises as herein provided for.” He argues that a person of ordinary intelligence is unable to determine when storage of a vehicle is “incidental” to the permitted residential use and when it is not.

We conclude that the ordinance in question is not impermissibly vague in the light of the authorities concerning the certainty required of penal statutes. The recognized test is that formulated in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926):

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

A more recent statement of this test is found in Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367 (1952), as follows:

A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.

In accordance with these statements, the Supreme Court has held that lack of precision is not in itself offensive to the requirement of due process since all that is required is a warning marking the boundaries of the proscribed conduct with sufficient distinctness for judges and juries fairly to administer the law. Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957). Neither is a penal provision invalid because a person affected by it must make an estimate of some matter of degree. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913).

Mr. Justice Holmes put it in United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 169 (1930), as follows:

Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk.

Since any statement of the test in general terms is necessarily somewhat vague, a more precise understanding may be attained only by examining its application to actual cases. Accordingly, we have reviewed a number of cases in which penal statutes have been attacked for vagueness in the Supreme Court of the United States. Statutes which have been upheld as against such attacks, in chronological order, include the following: a statute restricting hours of work of railroad workers “except in case of emergency,” the Sherman Anti-Trust Act construed as forbidding only unreasonable restriction of competition, a statute restricting solicitation of funds “for any political purpose,” the Internal Revenue Act permitting deduction of “a reasonable allowance for salaries or other compensation for personal services actually rendered,” imposition of the death penalty for kidnapping unless “the kidnapped person has been liberated unharmed,” a statute forbidding coercion to employ persons “in excess of the number of employees needed,” a regulation requiring drivers of motor vehicles transporting explosives to “avoid so far as practicable and where feasible, driving into or through congested thoroughfares,” mailing of material that is “obscene, lewd, lascivious, or filthy . or other publications of an indecent character,” a statute describing an offense as “the crime against nature,” a statute requiring disclosure of contributions and expenditures “for the purpose of influencing the nomination or election of candidates for federal office.”

Texas courts have applied the same test in upholding the following statutes: a statute limiting hours of work “except in case of emergency,” a statute describing an offense as “rudely displaying any pistol or any other deadly weapon, so as to disturb the inhabitants of the place, in the prosecution of their lawful business,” a “negligent homicide” statute; a statute forbidding operation of vehicle with a defective muffler “causing excessive and unusual noise,” a statute applying to persons “who customarily engage in the business of obtaining motor vehicles for scrap disposal or resale of parts therefrom or any other form of salvage,” a statute forbidding use of a telephone with intent to harass “except if such call be for a lawful business purpose.”

We recognize that this test has not always been consistently applied by Texas courts. Thus a “reckless driving” statute and a similar ordinance have been held too indefinite, while a “negligent homicide” statute has been upheld. Sometimes statutes held void for vagueness appear to have been struck down on the ground that they are so broad as to include conduct which cannot constitutionally be prohibited, such as statutes against loitering and vagrancy. Many of the cases holding statutes void for vagueness had concerned enactments that infringed other constitutional guaranties, such as the right of free speech. In the absence of such additional considerations, statutes defining an offense in broad or general language have usually been upheld as against attacks for vagueness unless they are so ambiguous as to leave determination of the legislative intent a matter of guesswork.

Our review of the authorities has convinced us that the phrase “incidental to the use” in the ordinance now in question falls well within the bounds of reasonable certainty. A “motor vehicle” is a means of transportation, and if it is stored on a residential lot in order to provide transportation for the residents, such storage is “incidental” to the use of the property as a residence. Temporary inoperability of the vehicle would not establish that the storage is not “incidental” to the residential use and neither would the ownership of other vehicles providing alternative means of transportation, so long as the occupant of the premises intends to use the vehicles in question for transportation.

Moreover, we need not consider the applicability of the ordinance in hypothetical extreme situations if its applicability to the case at hand is reasonably clear. Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957); United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947); State v. Spartan’s Industries, 447 S.W.2d 407, 413 (Tex.1969). This principle appears to be the rationale for E. S. G. v. State, 447 S.W.2d 225, 226 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.) appeal dism’d and cert. den., 398 U.S. 956, 90 S.Ct. 2171, 26 L.Ed.2d 540 (1970), in which the definition of a delinquent child as one who “habitually so deports himself as to injure or endanger the morals or health of himself or others” was held validly applied to a fourteen-year-old girl who unquestionably understood that her conduct was injurious to her morals.

We hold this principle to be applicable in the light of the evidence in this record. The landowner testified that he owns thirteen automobiles and two motorcycles, which he keeps on the premises as a hobby. He works on them and runs the motors from time to time, but he does not drive most of them on the streets. Some of them do not have current inspection stickers or license plates; some have not been moved for several years. This evidence justified the trial court’s finding that the vehicles were stored on the premises and that such storage was not incidental to the permitted residential use. We conclude that a person of ordinary intelligence would have had no difficulty in determining that such storage of motor vehicles was a violation of the ordinance. Consequently, we hold that the ordinance is constitutional in its application to the facts of this case.

2. Validity of Statute

Another argument advanced by the landowner in support of his claim for injunction is that Texas Revised Civil Statutes Annotated article lOllh (Vernon 1963) is invalid. This statute provides:

The local legislative body may provide by ordinance for the enforcement of this Act and of any ordinance or regulation made thereunder. A violation of this Act or of such ordinance or regulation is hereby declared to be a misdemeanor, and such local legislative body may provide for the punishment thereof by fine or imprisonment or both. It is also empowered to provide civil penalties for such violation. .

The landowner attacks this statute on two grounds: first, that it is too vague in that a person of ordinary intelligence cannot determine when it has been violated; and second, that it attempts to empower a city to assess imprisonment as well as a fine for violation.

The vagueness argument is not well taken because, although the statute declares that any violation of a zoning ordinance is a misdemeanor, it should not be viewed as an attempt within itself to define all the elements of the offense. It is rather an enabling act which empowers a city to adopt a zoning ordinance and to define violations of such an ordinance as an offense. Although no conviction may be based on article lOllh alone, a conviction may be based on an ordinance authorized by article lOllh if such a violation is sufficiently described in the ordinance. Consequently, we hold that article lOllh is not subject to attack for vagueness.

Neither is the statute subject to attack here on the ground that the legislature cannot authorize municipal courts to impose the penalty of imprisonment. We need not consider whether a municipal court can be so authorized under the Texas Constitution because the ordinance in question does not attempt to impose that penalty. Section 35-100 makes no provision for imprisonment. The statute does not require the local legislative body to provide for both fine and imprisonment, but only authorizes imposition of punishment for violation of the ordinance “by fine or imprisonment or both.” We hold that the provision in article lOllh for imprisonment is severable from the other provisions of the statute and, therefore, any constitutional problem in this connection would have no bearing on the validity of the provisions of the statute which empower cities to adopt zoning ordinances, define the violation of such an ordinance as a misdemeanor, and impose a fine as punishment.

3. Opportunity for Administrative Relief

In his attack on the injunction granted to the City, the landowner contends that by filing a criminal complaint against him and also by filing the counterclaim for injunctive relief the City has prevented him from obtaining administrative relief from the Board of Adjustment by way of a variance from the requirements of the ordinance. He argues that since the Board has no criminal jurisdiction, a variance would not remove the criminal charges against him, and he insists that he should be permitted to pursue his administrative remedy before he is subjected either to criminal prosecution or to an injunction as sought by the City. We find no basis for this contention. The record shows that the City gave him ample notice and sufficient time to pursue any administrative remedy available. He testified that on May 14, 1976, he found a notice on his door from a city inspector. He telephoned the inspector, who advised him that he should have the cars moved. On June 11 he received a formal notice from the inspector stating: “You are hereby notified to discontinue the open storage of vehicles and vehicle parts. This use is not permitted in a residential area.” Apparently he took no action in response to this notice. The next communication from the City was a “citation” dated July 7, 1976, which he received in the mail. It stated that a complaint would be filed charging him with the offense of “storage of vehicles on a residential lot,” and notified him to appear for a hearing in municipal court on August 4. There is no evidence that such a criminal complaint was ever filed or that he was ever tried for the offense. His petition, which was filed on August 31, alleges that a trial in municipal court was then set for September 1.

From the landowner’s own testimony, it appears to us that he had ample time to pursue any available administrative remedy before the criminal complaint was filed. Moreover, even after the filing of the complaint, if one was filed, he still would not have been precluded from seeking administrative relief. Of course, a variance granted by the Board of Adjustment would not exempt him from criminal penalties for past violations, but, if valid, it would protect him from prosecution on subsequent charges and might also be available as a defense to any civil action brought by the City. On the present record we hold that the City is not precluded from injunctive relief by any action that prevented the landowner from seeking relief from the Board of Adjustment.

Affirmed.

ROBERTSON, J., not sitting.

      . Baltimore & O. R. v. Interstate Commerce Comm’n, 221 U.S. 612, 31 S.Ct. 621, 625-26, 55 L.Ed. 878 (1911).

      . Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913).

      . United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 169 (1930).

      . United States v. Ragen, 314 U.S. 513, 517, 62 S.Ct. 374, 375, 86 L.Ed. 383 (1942).

      . Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668-69, 89 L.Ed. 944 (1945).

      . United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1540-41, 91 L.Ed. 1877 (1947).

      . Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952).

      . Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957).

      . Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

      . Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 622, 46 L.Ed.2d 659 (1976).

      . Bradford v. State, 78 Tex.Cr. 285, 180 S.W. 702, 705 (1915).

      . Ex parte Slawson, 139 Tex.Cr. 607, 141 S.W.2d 609, 610 (1940).

      . Pehl v. State, 153 Tex.Cr. 553, 223 S.W.2d 238, 239 (1949).

      . Ex parte Trafton, 160 Tex.Cr. 407, 271 S.W.2d 814, 816-17 (1954); Department of Public Safety v. Buck, 256 S.W.2d 642, 646 (Tex.Civ.App.—Austin 1953, writ ref’d).

      . Ex parte Rubin, 362 S.W.2d 331, 332 (Tex.Cr.App.1962).

      . Alobaidi v. State, 433 S.W.2d 440, 441 (Tex.Cr.App.1968).

      . Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673, 674 (1949).

      . Ex parte Meadows, 133 Tex.Cr.R. 292, 109 S.W.2d 1061 (1937).

      . Dunn v. State, 390 S.W.2d 775, 777 (Tex.Cr.App.1965); Pehl v. State, 153 Tex.Cr. 553, 223 S.W.2d 238, 239 (1949).

      . Ex parte Mittelstaedt, 164 Tex.Cr. 115, 297 S.W.2d 153, 155 (1957).

      . Baker v. State, 478 S.W.2d 445, 449 (Tex.Cr.App.1972).

      . Note, 109 U.Pa.L.Rev. 67, 75 (1960).

      . See, e. g., Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).


author: CADENA, Justice.

text:
    C. Hunter McSHAN, Appellant, v. Anthony PITTS, Appellee.
    No. 15637.
    Court of Civil Appeals of Texas, San Antonio.
    June 15, 1977.
    Rehearing Denied July 13, 1977.

      William H. Ervine, Jr., Kerrville, for appellant.
    Charlie Strauss, Kerrville, for appellee.
   CADENA, Justice.

In this trespass to try title suit plaintiff, C. Hunter, McShan, appeals from a judgment, following a nonjury trial, that he take nothing. The judgment is based on the conclusion that defendant, Anthony Pitts, held title acquired by adverse possession under our ten-year Statute of Limitations, Art. 5510, Tex.Rev.Civ.Stat.Ann. (1958).

The land in question is a tract of approximately .9 of an acre which abuts on the eastern edge of the right-of-way of Harper Road in Kerr County, and is bounded on the north, east, and south by land to which defendant has the record title. Plaintiff owns several acres, title to which is not in dispute here, which lie adjacent to the western edge of the Harper right-of-way. This land Is separated from the tract in dispute by the highway. For many years the land in dispute, as well as defendant’s land lying north and south of the disputed strip, has been separated from the highway by a fence, but there is no fence separating the strip in dispute from the land to which defendant has the record title. The parties agree that record title to the .9-acre strip is in plaintiff.

Until approximately 1939, the land on both sides of New Harper Road was owned by E. C. Fisk, including the land on the west side of the road now occupied by plaintiff, the land on the east side of the road to which defendant holds the record title, and the disputed strip. At that time the land on the east side of the highway was separated from the right-of-way by a fence without gates.

Fisk’s daughter lived with him in a house on the west side of the highway from about 1920 to 1946. After her father conveyed some of the land on the east side of the highway to a man named Hartman in about 1939, no further use was made by her father of the strip in question. Sometimes she crossed the highway and went wading in the creek. Since there was a fence along the eastern edge of the New Harper Road right-of-way, she walked down the Old Harper Road, which adjoins what is now defendant’s property on the north, to the creek. She did not know whether her father, after he conveyed land on the west side of New Harper Road to Hartman in 1939, claimed any land east of such highway.

In 1961 Fisk executed a conveyance to plaintiff’s mother, Mrs. McShan. The description in the deed includes the land on the west side of New Harper Road as well as the disputed strip on the east side of that highway. After 1961 plaintiff, who lived in New York at that time, visited his mother, who lived in a house on the land west of the highway, at least once a year. While staying at his mother’s house, plaintiff would occasionally cross the highway and go on the land in question. Sometimes, friends from New York would visit him and his mother, and these friends, with their children, would occasionally go on the land across the street. The children would play in the creek and the adults apparently liked the scenery. No other use of the disputed strip was made by plaintiff other than these occasional entries. There is no evidence that Mrs. McShan made any use of the disputed strip.

Mrs. McShan died in mid-1973, leaving plaintiff and his brother, who lives in Houston, as her sole heirs. Plaintiff purchased his brother’s interest in the property shortly thereafter and established his residence on the land west of the highway.

In the fall of 1973 plaintiff noticed that the fence on the east side of New Harper Road had been removed. At that time he talked to defendant about the strip in question, informing defendant that he owned the .9-acre tract. Defendant, nevertheless, continued with the work and constructed a deer-proof fence, eight feet high, in place of the old fence which he had removed.

Plaintiff filed this suit on June 20, 1975.

As far as the tract of land east of the highway is concerned, the record contains no evidence of its use between approximately 1939, when Fisk conveyed to Hartman, and 1950, other than the testimony of Fisk’s daughter summarized above.

On August 31, 1950, G. C. McCoy conveyed what is now defendant’s land to T. A. Black and wife, Eyvonne Black. Mrs. Black testified that at the time they purchased the property it was all enclosed by a fence, including the tract in dispute, with no cross-fences separating the ,9-acre tract from the rest of the land east of the highway. The creek often flooded, and they repaired the fencing many times. They knew Mr. Fisk and visited him often, but the question of title to the tract in dispute was never mentioned. They claimed everything within the fence and used the property “just like it was ours.” Fisk made no effort to use the tract in question, and they assumed, and claimed, that everything within the fence belonged to them.

On September 25, 1954, the Blacks conveyed to W. T. Tomlin, in whom the title rested until January 20, 1955. Tomlin apparently purchased the land for investment purposes and made no use of it himself. However, L. B. Hough, Jr. testified that his father leased the land from Tomlin and grazed livestock on it. The property was completely fenced, with no gate in the fence along the New Harper Road. He and his father maintained the “fences.” This witness did not know whether the arrangement between his father and Tomlin was evidenced by an instrument in writing or not.

Tomlin conveyed to Walter Helmke and wife, Irma Helmke, on January 20, 1955. Helmke testified that he cleared the land, dammed up the creek, and built a lake. He operated a fish hatchery in the creek and lake and operated a bait stand, in addition to “running” sheep and cattle on the land. He claimed all the land enclosed by the fences, which he maintained. At the time he purchased the land he cleared it, including the tract in dispute, with a bulldozer. He claimed all the land within the fences.

The Helmkes conveyed to Glen Daniel and wife, Gladys, on February 3,1961. According to Helmke, he claimed all land within the fence and that is what he sold to Daniel. At that time, the Daniels lived in Oregon, but they purchased the land for the purpose of making it their home. They returned to Oregon approximately in March 1961, but Mr. Daniel returned to Kerrville shortly thereafter, with Mrs. Daniel remaining in Oregon to sell the property they owned there. Mr. Daniel was killed in an automobile accident near Kerrville on July 31,1961. Mrs. Daniel then returned to Texas and began living on the tract she and her husband had purchased. She “ran sheep” on the land. In 1967 she built a new house on the land and, except for an area around the new house where she lived, she leased the remainder of the land to tenants who kept horses and cattle on the land. She kept the dam repaired and always maintained the fences, with the help of neighbors. She married Morris Morgan in 1971, and sold the land to defendant on August 2, 1972.

Morris Morgan, who joined his wife in the execution of the deed to defendant, testified that he learned, shortly before the conveyance to defendant, of a possible “discrepancy on the acreage . . ., as to somebody claiming something.” He told defendant there “may be a discrepancy on the Harper Road edge of this,” but he told defendant not to worry about it because, “for forty years I know that fence has been there.” He told defendant he and his wife would not have the land surveyed, and defendant agreed to purchase the land “as is.” He told defendant the “discrepancy” concerned “something about the State paying for this right of way down there.”

The trial court’s “conclusions of law” include the following: (a) The possessions of Black, Tomlin, Helmke, Daniel, and defendant of the disputed strip “was continuous, exclusive, open, notorious, and obvious and the land was put to such use under a claim of right as to constitute adverse possession.” (b) The use made by all adverse claimants “was sufficient to give notice to the record owners of the adverse claim.” (c) The “tacking” of the possessions of Black, Tomlin, and Helmke “from 1950 to 1960 was sufficient to mature title by limitations under the ten year statute.”

Plaintiff’s first point challenges the conclusion that defendant had proved title under the ten-year statute.

The form of plaintiff’s first point suggests that plaintiff is entitled to recover the land unless defendant succeeds in proving that he has acquired a title superior to plaintiff’s record title. This is not true. Since plaintiff was not in possession of the land in question he must, in order to prevail, rely on the strength of his own title. Under these circumstances, proof of a legal title outstanding in a third person constitutes a defense to plaintiff’s suit, even though defendant cannot connect himself with such outstanding legal title. 56 Tex.Jur.2d Trespass to Try Title § 47, at 152-3 (1964). Therefore, if the court correctly concluded that the title of plaintiff’s predecessor was lost under the ten-year statute in 1960 is correct, it necessarily follows that plaintiff has failed to prove a superior title in himself and the judgment that he take nothing by his suit must be affirmed. Whether such limitation title has effectively been acquired by defendant is irrelevant. Defendant did not, by specifically pleading limitations as a defense, waive his plea of “not guilty” and the defenses available to him under such plea. Mortgage Land & Inv. Co. v. Spears, 162 S.W.2d 1015, 1016 (Tex.Civ.App.—San Antonio 1942, writ ref’d).

Under his first point, plaintiff presents two contentions concerning the sufficiency of the possession by Black, Tomlin, and Helmke during the period 1950-1960.

First, plaintiff argues that there was a break in the continuity of possession during such ten-year period since Tomlin, who purchased what is now defendant’s land in 1954, never lived on it during the period of almost four months intervening between the time he purchased it and the time he conveyed to Helmke on January 20, 1955.

The evidence is undisputed that Helmke never lived on the land, since he had purchased it for investment purposes. However, the evidence supports the conclusion that Helmke leased the land to Hough. Since possession by a tenant is considered to be the possession of the landlord for purposes of the statute of limitations, there was no break in the continuity of the possession. 2 Tex.Jur.2d Adverse Possession § 66 (1959).

Plaintiff’s second challenge is directed to the sufficiency of the possession of plaintiff and of all of his predecessors in title to satisfy the requirements of the statute. This challenge is based on the rule, apparently consistently applied in Texas, that an adverse claimant who relies upon grazing only of his adverse use and possession must show as part of his case that the land in dispute was designedly fenced. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).

In this case the evidence shows that the fence enclosing defendant’s tract and the land in dispute was in existence in 1939 when all of the land on both sides of the highway was owned by Fisk. The fences were there when the Blacks purchased the land in 1950. While the evidence does not disclose the identity of the person who built the fences, it does establish conclusively that none of the persons who claimed the land beginning in 1950 built the fences.

As the Supreme Court said in Orsborn, 267 S.W.2d at 785:

When the use relied upon to support the statute is grazing, there must be also at the same time sufficient enclosure, such as to give evidence that the land was designedly enclosed and to show the assertion of claim hostile to the true owner. Vineyard v. Brundrett, 17 Tex.Civ.App. 147, 42 S.W. 232, 235. The ordinary case for the acquisition of title by adverse possession, when the use is grazing, is one in which the person claiming title under the statute has built a fence or fences enclosing the land and has maintained the enclosure and continuously used the land for grazing during the statutory period. Such construction of fences and use of the land for grazing afford evidence of hostile claim.

The “designedly enclosed” rule was applied by the Supreme Court in McDonnold v. Weinacht, 465 S.W.2d 136, 141-42 (1971).

In his concurring opinion in McDon-nold, Justice Pope persuasively argues against a rule which compels the conclusion that “grazing only in a completely enclosed tract can never support a claim of adverse possession where the tract was not enclosed by the claimant.” 465 S.W.2d at 144. While agreeing that “mere,” “occasional,” or “casual” grazing is insufficient, he points out that “active and total use to the limits of a pasture’s capacity and to the exclusion of all others, with a claimant’s livestock continuously present and visible,” will give the required notice of the hostile claim. Id. In the case before us there is no evidence of such “active and total use to the limits of a pasture’s capacity * * *, with a claimant’s livestock continuously present and visible.” The evidence in this case does no more than support a conclusion of “occasional” grazing on the disputed strip, and some of that grazing was by deer, as distinguished from cattle or other domesticated animals. Even under the view expressed in the dissenting opinion of Justice Reavley in McDonnold, “in a society where unenclosed land is considered open range and commons for the livestock of others, the mere presence of these animals will not be considered as adverse to the ownership of the land.” 465 S.W.2d at 146.

Under the rule applied in McDonnold and prior decisions, the use of the disputed strip by defendant and his predecessors in title, including the use by Black, Tomlin, and Helmke from 1950, was not sufficient to support a claim of title by adverse possession.

The judgment of the trial court is reversed and judgment is here rendered in favor of plaintiff for title and possession of the land in dispute.


author: PEDEN, Justice.

text:
    BROWN & ROOT, INC., et al., Appellants, v. Warner L. DeSAUTELL, Appellee.
    No. 16874.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 16, 1977.
    Rehearing Denied July 21, 1977.

      Vinson & Elkins, William R. Eckhardt, Houston, for appellants.
    Watrous & Conner, Ira D. Watrous, Houston, for appellee.
   PEDEN, Justice.

Brown & Root, Inc. and Taylor Diving & Salvage Co., Inc. appeal from a judgment rendered in favor of plaintiff, Warner L. DeSautell, under the Jones Act and general maritime law for an injury incurred when he slipped and fell while working in a submerged diving bell at sea. Appellants raise questions concerning the duty of seaworthiness, the evidence supporting the findings of unseaworthiness and negligence, and the computation of damages.

When injured, DeSautell was working as a diver for Taylor Diving from Brown & Root’s barge “Hugh W. Gordon” in the North Sea on the construction of a petroleum pipeline. Taylor Diving provided the complete portable diving unit on board, including a decompression chamber and the SDC-7 diving bell in which DeSautell was injured. He and another diver had been lowered in the bell for a saturation dive to work on the pipeline, and while he was assisting his partner with his mask, DeSau-tell’s foot slipped off the rim of the open lower hatch and he fell partially through the hatch, injuring his back.

A trial to the court resulted in a joint and several judgment against Brown & Root on a finding of unseaworthiness and against Taylor Diving on a finding of Jones Act negligence.

Appellants’ first point of error asserts that Brown & Root owed him no warranty of seaworthiness since he was an employee of an independent contractor. The United States Supreme Court resolved this question in Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), aff’g per curiam 205 F.2d 478 (9th Cir. 1953), holding that a vessel owner owed the absolute duty of seaworthiness to an employee of an independent contractor who, while working on a ship, was injured by an unseaworthy appliance, even though it was supplied by an independent contractor.

Appellants’ second point, urged for Brown & Root, is that the trial court erred in finding that DeSautell was a member of the crew of the Hugh W. Gordon since he was an employee of ah independent contractor who neither owned nor operated the vessel and his work as a diver was not traditionally done by members of the crew of the vessel. The appellants present both no evidence and insufficient evidence arguments under this point.

In addition to finding that DeSautell was a member of the crew of the Hugh W. Gordon the trial court found that he was a seaman under the general maritime law and the Jones Act, a finding that is not disputed by appellants. “Seamen”, as used in the Jones Act, and “members of the crew” are equivalent terms. Travelers Insurance Co. v. Belair, 412 F.2d 297 (1st Cir. 1969).

“. . . the difference between the two terms ‘seaman’ and ‘member of the crew of any vessel’ is so slight as to be virtually indiscernable and, for all practical purposes, may be disregarded.” Boatel, Inc. v. Delamore, 379 F.2d 850, 859 (5th Cir. 1967).

Either finding, that DeSautell was a member of the crew or that he was a seaman, would make him eligible to recover under the Jones Act.

“[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel . . . or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission . . . Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959).

It is clear that DeSautell’s work was being performed on the vessel or attached to it by life-supporting lines. Marine divers are held to be seamen. Smith v. Brown & Root Marine Operators, Inc., 243 F.Supp. 130 (D.C.La.1965), aff’d, 376 F.2d 862 (5th Cir. 1967). Although the appellants denied that DeSautell was a member of its crew, they admitted that his “job function did contribute to the mission of the Hugh W. Gordon on the date in question.” We hold that the trial court had adequate support for its finding that DeSautell was a member of the crew of the vessel.

Appellant next asserts that any recovery by the plaintiff against Taylor Diving must be based on negligence because Taylor diving owes the plaintiff no duty of seaworthiness. We agree, and the trial court’s judgment against Taylor Diving was based on findings of negligence.

Appellants’ fourth and fifth points of error are no evidence and great weight points as to the trial court’s twelfth finding, that the Hugh W. Gordon and the diving bell were unseaworthy because of the following conditions:

1. There was no safety screen or covering for the open hatch of the diving bell to protect the divers from an unreasonably dangerous condition confronting them as they were getting ready to make their dive.
2. The rim of the hatch was constructed of smooth stainless steel which, when the hatch cover was open, became extremely slippery and resulted in an unreasonably dangerous condition.
3. No provision had been made to prevent slipping when the ring of the hatch had become slick and dangerous.
4. The diving bell had no safety straps, railings, bars or handholds for divers to grasp in an effort to prevent falling on the wet and dangerous surface on which divers had to stand.

The owner of a vessel is not obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The appellants have raised great weight points as well as no evidence points, so we have carefully examined the entire record.

The first condition found by the trial court to cause unseaworthiness was the absence of a safety screen or covering for the open hatch. Appellant initially argues that a finding of unseaworthiness cannot be predicated on an unknown and untested device. However, the fact that the device used is customary in the trade is not the legal measure of the duty of seaworthiness. Little v. Green, 428 F.2d 1061, 1066 (5th Cir. 1970); Davis v. Associated Pipe Line Contractors, Inc., 305 F.Supp. 1345, 1349 (D.C.W.D.La.1968), aff’d per curiam, 418 F.2d 920 (5th Cir. 1969).

The diving bell lowers divers to the sea bottom, but their work is done outside it. It also serves as a refuge for them when they are working. The diameter of the diving bell was some 61V8 inches. The open hatch was 25 inches in diameter and had a 2V2 inch wide stainless steel rim around it. It has to be very smooth if it is to effect a seal with the hatch cover. This rim, or ring, located in the middle of the bell’s floor, was surrounded by a circular, nonskid deck plate only about I5V2 inches wide. Various tools, belts, lines, pipes, some 300 feet of hose, other equipment used by the divers, and a scrubber (pump) were usually on the wall or the floor, leaving little room to stand or move in. When the diver pulled down a hinged seat and sat on it while putting on his diving gear, still less room was left for the one helping him, as DeSau-tell was when he was injured.

When the crew above would turn on the hot water hose that was to be attached to the diver’s suit, the water would run onto the floor of the bell and out through the hatch. There was evidence that even when there was no water flowing or standing on the rim it was always wet when the hatch was open. The bell was kept in motion by wave action of the sea. When it was lowered to the depth of more than 200 feet, where the diver was to work outside the bell, the pressure in the bell would customarily be reduced by those controlling it on board the vessel, and the hatch would pop open. The divers would secure it and then the “tender” (the diver acting as helper) would usually seat the diver in front of him, stand facing him with one foot on each side of the open hatch rim, and help him hook up his hot water hose, safety latch, rubber webbing, and diving mask. The trial court heard lengthy testimony on the feasibility of a covering for the open hatch. Appel-lee’s witness, Ron Martinez, who has done no design work but is an experienced deep sea diver, described and drew a blackboard sketch of a temporary safety grating of metal covered by plastic he said could be designed to give the helper a better place to stand while assisting the diver. Mr. Robert McArdle, Senior Vice President of Taylor Diving, after having testified that he thought the proposed grating “would be a little on the dangerous side, because the divers’ lines must exit the diving bell through the open hatch and because a diver’s tender (helper) might need to quickly go out through the hatch in case of an emergency,” admitted that a covering would be possible.

Mr. W. R. Bryant, an engineer who designs diving bells, testified that stainless steel is the best material for the rim surface, that he was not aware of any non-skid surface or even of any less slippery surface that would allow a seal to be effected. There is a piece of rubber that goes around the hatch, is inserted in a groove in the hatch, and seals the gap between the hatch and the rim when the hatch is closed and pressure is applied to it. This seal must be tight if the bell is to be used. If the pressure in the bell got low enough, the hatch would pop open. Mr. Bryant also stated that he has never seen a temporary cover over the hatch opening of a diving bell and also thinks it might be harmful because it might slow the helper in his efforts to leave the bell to help the diver if an emergency arose.

We hold that the trial court had sufficient evidence to support its finding that the lack of a covering for the hatch constituted an unseaworthy condition. We have examined other evidence on this subject appearing throughout the record, but we think no useful purpose would be served by reviewing all of it.

The second and third conditions found unseaworthy, the smooth stainless steel construction of the hatch rim, which became slippery when wet, and the lack of a provision to prevent slipping when the ring of the hatch had become slick and dangerous, are related findings. The smooth, stainless steel ring does not rust and thus appears to be about the only surface on which the hatch can achieve an adequate seal. The ring appears to be “reasonably fit for its intended use” as required by Mitchell v. Trawler Racer, Inc., supra, unless it was unreasonably dangerous. Appellee adduced evidence that under the general conditions that exist when the work is being done, the deck was sometimes covered with water and such substances as a silicone lubricant, soapy build-up from showers, grease, and diesel oil. There was testimony that a soapy film was deposited on the rim from the showers taken by the divers inside the bell after each dive; when the bell was subsequently lowered into the water, the soap would float up from the bilges onto the inner deck and the rim. Diesel oil and grease were said to be brought into the bell after the divers had worked on a leaky pipe or after they had lubricated their equipment. DeSautell did not see any of these substances on the hatch rim when he slipped; he assumed that they were present at that time.

We hold that the evidence concerning the slippery wet surface was sufficient to uphold the court’s findings on the unreasonably dangerous condition of the rim surface. We overrule the appellants’ fourth and fifth points of error without reaching the last condition listed under Finding No. 12.

Points of error six and seven challenge the evidentiary support for the trial judge’s thirteenth finding of fact, that Taylor Diving was guilty of negligence under Jones Act standards:

1. In failing to provide a safety screen or covering for the open hatch to protect divers from an unreasonably dangerous condition confronting them as they were outfitting themselves preparatory to making their dive.
2. In failing to provide a non-skid surface over the stainless steel rim of the hatch to protect against slipping when the hatch cover had been opened and the rim had become wet.
3. The failure to provide any type of safety strap, railing, bar or handhold for divers within the bell to grasp to protect them from falling should they slip on the slippery surface where they had to stand in making preparation to make their dive.

The sufficiency of the evidence on the failure to provide a safety screen and the failure to provide a non-skid surface over the rim of the hatch have been discussed under the finding as to seaworthiness. The trial judge’s negligence finding as to the slippery rim is worded more specifically than the similar finding as to seaworthiness. We hold that the evidence amply supports the finding of negligence in the failure of Taylor Diving to provide a safety screen, a covering, or a non-skid surface over the rim.

Points eight and nine are no evidence and great weight points complaining about the trial judge’s Finding # 14, that the three stated acts of negligence were the direct and proximate cause of DeSautell’s injuries. The proximate cause standard under Jones Act negligence was stated in Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). The test is “. . . whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” We overrule these points. There was sufficient evidence that failure to provide a screen, or a covering, or a non-skid surface over the rim of the hatch played at least a slight part in producing the appellee’s injury.

Point ten contends that the trial court erred in failing to find, from undisputed evidence, that DeSautelPs negligence in failing to keep a proper lookout on where he was placing his feet was a proximate cause of the accident. DeSautell testified that he wasn’t watching his foot when he slipped, but he also testified that the fact that the floor was slippery was what caused it to slip. The trial court was entitled to conclude that he was not negligent in failing to look at his feet while assisting his partner with his mask. The appellants also contend that DeSautell was standing in a dangerous position. They suggest that he should have stood on one side of the rim or straddled it and remained on the non-skid surface. The trial court could properly have concluded from the evidence that appellee’s method of straddling the rim was not negligent since others testified that this was customary in view of the constraining size of the bell and the equipment it contained. We cannot say the trial judge was compelled to find DeSautell negligent as a matter of law.

In their eleventh point of error the appellants assert that the trial court erred in computing the amount of damages because (1) the court used a 5% wage growth rate, an inflationary trend which is a part of the wage price inflationary spiral, and (2) the court used a discount rate of only 4% per annum whereas, under the evidence, a discount rate of at least 5.93% per annum should have been used. Appellants’ twelfth point is a great weight point directed to the same computations.

The trial judge’s eighteenth finding of fact includes this statement: “Plaintiff’s lost wages were computed based on an annualized earning of $34,000 in the year 1973, with a growth rate thereafter of 5% per year. The court found that Plaintiff could have dived for nine more years, from the date of injury in August of 1973 through the year 1982, and that those lost wages discounted at 4% to present day value were $321,065.” Lost wages from 1982 through 2000 were found, when discounted at 4%, to have a present day value of $71,-023.

The amount of damages sustained by an injured person is a question of fact, and we will not tamper with the district court’s determination unless it is clearly erroneous. Neal v. Saga Shipping Co., 407 F.2d 481 (5th Cir. 1969), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969).

Dr. Roy F. Gilbert, an economist called by the plaintiff, testified that in calculating plaintiff’s lost future earnings he excluded any consideration of an inflation factor. He allowed for future increases in earnings a growth rate of 7.3% per annum for one period; this is a rate he based on the average rate of compensation of all non-farm workers in the United States over the past ten years. For another period, he used a growth rate of 6.01%, the average rate of increase in the Federal minimum wage from 1938 to date. He used a discount rate of 5.93%. Dr. Gilbert testified on cross-examination:

“Q Now you have used a growth rate which is higher than the discount rate?
A That’s correct.
Q It is your opinion that that is economically correct to use a growth rate higher than the discount rate?
A Yes, sir. If you look at the average difference between the rate of increase in wages over the last 30 years and the rate of interest, you find that the average difference is about 1.4% per annum; that the average rate of increase in wages in the United States has averaged about 1.4% above the rate of interest on U. S. securities and, well, the difference between my growth rate of 7.3% and the 5.93% is just about 1.4%. It’s not quite, but — this 5.93 is based on current level of interest rate and there is some current fluctuation from year to year and month to month.
Q Not being an economist, I’m a little bit puzzled as to why the growth rate doesn’t reflect inflation. Can you explain to me why it doesn’t or whether it does?
A I don’t know what you mean by inflation. What do you mean by “reflect inflation”? During this period of.
Q (Interrupting) Isn’t the growth rate at least in part caused by inflation?
A No, sir.
Q Well now, if you had included inflation in this calculation, what would you have put in there that you didn’t put in?
A I might have added in additional cost of living factor based on what I might have estimated to be the future rate of inflation. I personally don’t think that an appropriate thing to do because, in fact, very few workers in the economy today are guaranteed that their real wages will stay constant and by adding in this inflationary factor, that would be, in fact, guaranteeing Mr. DeSau-tell something that he hadn’t had and wouldn’t have been expected to have had, so I wouldn’t have considered that to be an appropriate thing to do.
But, if I were to have added it in, an inflationary factor, I would have added in some percentage based on some forecast of future rate of inflation.
Q It is your testimony that in no way does the growth rate that you have used tie in to inflation?
A This growth rate is not due to the rate of inflation. I have not considered the rate of inflation and I have not added in any additional factor for the amount of increase in wages due to inflation.

Mr. Richard Camus, a consulting actuary, was called as an expert witness by the defendants. He calculated the wages which it was anticipated that DeSautell would lose as a result of his injury, applying no growth factor “because there is some question as to what is inflation and what is not. . Okay. Let’s do another calculation at 5% growth. . . . ” He later said that it is debatable whether wage increases contain inflation factors. Further, that two types of wage increases are operating on an individual, those that are economy-wide and those that apply to one’s position, occupation and age. As to the former, he used a 27-year period and found the average rate increase to be 5.09% a year, using the most widely-based index that he knows of. “So we felt that 5% was reasonable”, pointing out that based on past history the average is likely to return to normal because we are looking at 27 years.

We hold that under the evidence in this case the trial judge was entitled to conclude that a 5% annual growth rate should reasonably be applied in calculating DeSautell’s loss of ability to earn money in the future. We hold that the testimony we have recited makes inapplicable the holdings in Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir. 1975), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 and in Davis v. Hill Engineering, 549 F.2d 314 (5th Cir. 1977). In those cases the evidence showed that the growth rate was based on inflation. Further, the expert witnesses in our ease may be considered to be in agreement that an annual growth rate of at least 5% is now predictable.

We also overrule appellants’ complaint as to the 4% discount rate. The ascertained future benefits ought to be discounted in making up the award. The discount should be based on the yield paid by investments in safe securities, without expecting the beneficiary to exercise financial experience and skill. Chesapeake & Ohio Railway v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916); Johnson v. Penrod Drilling Co., supra.

In our case, DeSautell was not shown to possess any skill as an investor. Dr. Gilbert testified that he selected a discount rate of 5.93% because he thought an individual without any expert financial ability could reasonably be expected to earn that amount over a period of 25 years in the future. Further, that this rate is based on the current rate of various high yield, but he also testified that he did not know of any insurance company that would guarantee, a 4% return on an annuity for 24 years in the future.

The defendants’ expert witness testified that a discount rate of 7%, based on the yield of long-term government bonds, would be reasonable.

We hold that the eminent trial judge, former Chief Justice Spurgeon E. Bell, was not bound to accept the opinion evidence and was entitled to conclude that a discount rate of 4% should be applied. Opinion evidence is but evidentiary and is seldom binding on the trier of facts, who can exercise considerable judgment of his own about how far the opinions are to be relied on. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958).

Appellants contend in their last point of error that the trial court’s award of $125,000 for pain and suffering and for future medical expense is excessive by at least $100,000. After examining all the evidence we cannot say the trial judge erred in failing to order a larger remittitur than that he has already required.

DeSautell has filed a motion to dismiss this appeal for want of jurisdiction, attacking the adequacy of appellants’ cost bond and supersedeas bond. He contends that they are ineffective to perfect appeal or stay execution because the surety, Highlands Insurance Company, is a wholly-owned subsidiary of Halliburton Co. (as are both of the appellants) and is the liability insurer of both of them. DeSautell says these relationships render Highlands’ position as surety untenable because the bonds give him no additional security other than the solvency of the original obligors and therefore are not “good and sufficient” bonds as required by § (a) of Rule 364, Texas Rules of Civil Procedure.

We deny the motion. The surety in this case is a separate legal entity, is not a party to the suit, its solvency is not questioned, and the bond was approved by the clerk in keeping with Rule 364. The requirements for a good and sufficient bond were met. Universal Automobile Insurance Co. v. Culberson, 51 S.W.2d 1071 (Tex.Civ.App.1932, no writ); Universal Transport & Distributing Co. v. Cantu, 75 S.W.2d 697 (Tex.Civ.App.1934, no writ). In any event, if appeal bonds are found defective, the appellants may be allowed to amend them. Rule 430.

The judgment of the trial court is affirmed.