author: MURRAY, Justice.

text:
    Mildred L. McKIBBEN, Appellant, v. Edwin H. McKIBBEN, Appellee.
    No. 15997.
    Court of Civil Appeals of Texas, San Antonio.
    May 10, 1978.
    Don Krause, Bayne, Snell & Krause, San Antonio, for appellant.
    Wayne I. Fagan, Robert L. Knebel, Jr., Davis, Rigely & Fagan, San Antonio, for appellee.
   MURRAY, Justice.

This is a divorce suit. Edwin McKibben, plaintiff in the court below, instituted this suit against Mildred L. McKibben, defendant in the court below, seeking a divorce and a division of the property. After a trial before the court, sitting without a jury, judgment was rendered dissolving the marriage and dividing the property, and defendant has perfected appeal to this court on the ground that the division of the property by the court was unjust and unfair. We reverse and remand.'

Plaintiff and defendant were married on November 15, 1952, and separated in August of 1973. Plaintiff and defendant had no children, and plaintiff 'had retired from the military service after 21 years, all of which time he was married to defendant. The separation occurred when plaintiff left defendant in Grand Prairie, Texas, to move in with his girl friend in San Antonio, Texas. Plaintiff is an experienced jet aircraft mechanic, now employed by Dee Howard Aircraft Company where he earns $7,800.00 annually. At the time of the divorce, plaintiff was receiving military retirement of $566.00 per month. Defendant has no career field, and since the separation has earned $2,500.00 annually grooming poodles.

At the time of the separation, plaintiff had left a bank account in the amount of $13,300.00 which defendant used to bulldoze, acquire water, electricity, gas, a septic tank and driveway upon a six and one-half acre tract of her separate property and for her living expenses. He also left a 1967 Cadillac which defendant later sold for $650.00 and a Model A Ford which, according to. Mr. McKibben’s instructions, she gave to her great niece who had stored the car for eight or nine years. During the separation, the defendant had received some of the retirement checks, but the great majority of them had been received by plaintiff.

Of the community property existing at the time of the divorce, plaintiff was awarded his personal effects, a 1971 pickup truck which he valued at $1,200.00, and 90 per cent of the United States Air Force Military Retirement Benefits. Defendant was awarded the mobile home that cost $13,250.00 in 1974, furniture and fixtures worth $2,000.00, the poodle grooming business, the interest that the community might have in the wife’s separate property which amounted to something less than $13,000.00, ten per cent of the retirement benefits, and her personal effects. Other items that were awarded defendant were not in existence at the time of the divorce.

By far the most valuable asset of the community estate was the retirement benefits. At the time of the divorce decree, the net amount of the retirement benefits was $566.00 per month, and the gross amount was considerably more. At the time of the divorce, plaintiff was a man 43 years of age and had a life expectancy of 29.4 years according to the Department of Health, Education and Welfare application number (HRA) 74r-1147, U. S. Department of Health, Education and Welfare Life Tables, p. 5-11. We take judicial notice of this mortality table. 31A C.J.S. Evidence § 99 (1964); Morris v. Morris, 293 S.W.2d 243 (Ky.Ct.App.1956). At the continued rate of $566.00 per month, this retirement will amount to $199,648.80 in 29.4 years. The present value, discounted at five per cent, would be well in excess of $100,000.00.

It is the duty of the trial court to divide the estate of the parties in a fair, just and equitable manner. While it is true that the division of the property does not have to be equal, the discretion of the court is not unlimited, and there must be some reasonable basis for decreeing an unequal division of property. Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.—Dallas 1969, writ dism’d).

In Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ), the court discussed the application of the rule:

. Factors to be considered include the disparity of the earning power of the parties, as well as their business opportunities, capacities and abilities; [citation omitted] the physical condition of the parties, probable future need for support, and educational background, [citation omitted] The fault in breaking up the marriage and the benefits innocent spouse would have received from a continuation of the marriage are factors which the Court may consider, [citation omitted] These and other matters must be evaluated by the trial court in determining a just and fair division of the property.

All of these factors weigh heavily against plaintiff and in favor of defendant.

The unequal distribution of the community estate in this case is not justified by the record and for that reason we conclude that the trial court’s judgment herein must be reversed and the case remanded.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Mary BURKES, Appellant, v. KOPPERS COMPANY, INC., et al., Appellees.
    No. 1128.
    Court of Civil Appeals of Texas, Tyler.
    May 11, 1978.
    J. Leonard Gotsdiner, Ranseler 0. Wyatt, Houston, for appellant.
    Barclay A. Manley, Pulbright & Jawor-ski, Houston, for appellees.
   McKAY, Justice.

This appeal is from a take nothing judgment based on a jury verdict in a suit brought by appellant, Mary Burkes, for personal injuries she allegedly sustained as a result of a collision between her automobile and a locomotive belonging to appellee Kop-pers Company, such collision having occurred on January 31, 1973, in the City of Houston, Harris County, Texas. Appellant alleged that her automobile was negligently struck by a train operated by appellee’s employees on a spur track located near the intersection of Crosstimbers and Hardy Streets in Houston, and that as a result of such collision appellant sustained personal injuries. Koppers Company answered that the collision was the result of appellant’s own negligence, and an emergency or an unavoidable accident.

In response to the special issues, the jury found that (15) Mary Burkes failed to keep a proper lookout on the occasion in question and that (16) such failure was a proximate cause of the occurrence in question; (23) that after she stopped her vehicle within 50 feet, but not less than 15 feet, from the nearest railroad track on which the train was approaching, she then proceeded when a person using ordinary care would not have done so and that (24) such action was a proximate cause of the occurrence in question. The jury failed to find any negligence on the part of appellee.

Appellant contends, through four points of error, that the court erred in entering judgment for appellee because appellee was negligent per se by failing to comply with Tex.Rev.Civ.Stat.Ann., Articles 6370 and 6371. Appellant does not complain of the jury’s findings of her negligence or its failure to find appellee negligent.

In view of the jury’s answers to the special issues, we need not consider the merits of appellant’s points of error. The collision in question occurred on January 31, 1973, prior to the effective date of the comparative negligence statute, Tex.Rev. Civ.Stat.Ann., Article 2212a (Supp.1978). Therefore, on the date in question, contributory negligence proximately causing injury was a bar to recovery against a negligent defendant. Parrot v. Garcia, 436 S.W.2d 897, 901 (Tex.1969). Since the jury found appellant to be negligent on the occasion in question, and appellant does not complain of such finding in any manner, she is barred from any recovery. This would be so even if we were to assume appellee to be negligent or negligent per se.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    SHELDON INDEPENDENT SCHOOL DISTRICT, Appellant, v. M. L. HUDSON ELECTRIC COMPANY, Appellee.
    No. 1134.
    Court of Civil Appeals of Texas, Tyler.
    May 11, 1978.

      Marc Flatow, Houston, for appellant.
    M. L. Hudson, for appellee.
   DUNAGAN, Chief Justice.

This is a suit for damage to realty. The suit was originally instituted in the 127th Judicial District Court of Harris County on September 16, 1976, by Sheldon Independent School District, hereafter referred to as “Sheldon,” against Dickson, Dickson & Bullock Architects & Engineers, Dynamic Construction Corporation, M. L. Hudson Electric Company, Hudson Contractors, Inc., Way Engineering Co., Inc., Johnson Service Company, and Certain-Teed Corporation. On December 10, 1976, Sheldon filed its first amended original peiition upon which it went to trial.

In response to plaintiff Sheldon’s first amended original petition, defendant M. L. Hudson Electric Company, hereinafter referred to as “Hudson Electric,” on March 16, 1977, filed a plea in bar asserting that Sheldon’s cause of action against Hudson was barred by the two-year statute of limitations because plaintiff’s first amended original petition failed to state a cause of action against Hudson.

After reviewing the pleadings the trial court on May 31, 1977, granted Hudson’s plea in bar and dismissed the cause of action against Hudson Electric. Sheldon timely perfected this appeal.

On May 17, 1977, the cause of action alleged against defendant-appellee M. L. Hudson Electric Company was severed from the primary suit.

Sheldon in its first two points of error complains of the court’s granting Hudson Electric’s plea in bar, because Sheldon’s original and first amended original petition were sufficient to toll the running of the statute of limitations.

On September 17, 1974, Sheldon’s C. E. King Senior High School Auditorium was damaged by fire started by sparks from a wiring defect. Sheldon commenced action on September 16, 1976, against seven defendants, including Hudson Electric, all of whom were involved in the construction of the damaged auditorium.

Because the court’s ruling concerns the sufficiency of Sheldon’s first amended original petition a brief summary of that petition, insofar as Hudson Electric is concerned, is stated:

This suit is brought for fire - damage to Sheldon’s auditorium proximately caused by the alleged negligence of the defendants as hereinafter set forth. Sheldon contracted with Dynamic Construction Corporation to build the auditorium. Dynamic subcontracted with Hudson Electric, and another firm named Hudson, to do the electrical wiring pertinent to this lawsuit. Sheldon’s loss occurred on September 17, 1974, when a wiring defect caused sparks igniting the walls, ceilings and floor mats. Sheldon’s damages are $208,814.60, plus loss, of use. Plaintiff prayed for judgment against defendants jointly and severally.

As the appellee Hudson Electric has filed no brief, we accept as correct the statements contained in appellant Sheldon’s brief relating to the facts in the record. Rule 419, Tex.R.Civ.P.; Farley v. Farley, 503 S.W.2d 679 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Boucher v. City Paint & Supply, Inc., 398 S.W.2d 352, 357 (Tex.Civ.App.—Tyler 1966, n. w. h.); Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App.—San Antonio 1949, writ ref’d); Donnelly v. Donnelly, 220 S.W.2d 278 (Tex.Civ.App. — Forth Worth 1949, writ ref’d n. r. e.). This record is before us on transcript only.

Sheldon virtually concedes that its first amended original petition would be subject to properly framed special exceptions because it alleged no specific negligent acts or omission on the part of Hudson Electric. It has never been the rule, however, that a petition must state a cause of action in order to toll limitations. Texas Employers Insurance Association v. Humble Oil & Refining Co., 103 S.W.2d 818, 824 (Tex.Civ.App.—Galveston 1937, writ ref’d); Ford Motor Company v. Maddox Motor Company, 48 S.W.2d 735 (Tex.Civ.App.—Texarkana 1932, n. w. h.); Pullman Compa ny v. Kansas City Southern Railway Company, 267 S.W. 1045, 1047 (Tex.Civ.App.— Texarkana 1924, writ dism’d); Mann v. Mitchell, 241 S.W. 715, 717 (Tex.Civ.App.—Texarkana 1922, writ dism’d); Western Union Telegraph Co. v. Smith, 146 S.W. 332 (Tex.Civ.App.—Austin 1912, writ ref’d); Missouri, K. & T. Ry. Co. v. McFadden, 89 Tex. 138, 33 S.W. 853 (1896). All that is required to arrest the statute of limitations is a petition that advises a defendant of the nature of the cause of action against him, regardless of how defectively this is done. City of Houston v. Magness, 364 S.W.2d 702, 704-05 (Tex.Civ.App.—Houston 1963, writ ref’d); Globel Corporation v. Vincent, 156 Tex. 398, 295 S.W.2d 640 (1956); Gray v. Laketon Wheat Growers, Inc., 240 S.W.2d 353 (Tex.Civ.App.—Amarillo 1951, n. w. h.); Garcia v. Hernandez, 226 S.W. 1099, 1100-01 (Tex.Civ.App.—El Paso 1920, writ ref’d).

Sheldon’s first amended original petition (and its original petition insofar as Hudson Electric is concerned are substantially the same) fully apprises Hudson Electric of the nature of the cause of action, and more. The petition advises Hudson Electric of the date and time, location, the cause and the nature of plaintiff’s loss, and the amount of plaintiff’s damages. The petition reveals plaintiff’s legal theory of recovery, that the fire originated from a wiring defect, and that Hudson Electric along with another firm did the wiring pertinent to this lawsuit.

The rule established in Texas since the enactment of Article 5539b, Tex.Rev. Civ.Stat.Ann., is that the commencement of a suit by a party in whose favor a cause of action exists stays the running of the statute of limitations, regardless of how defectively the cause may be presented in the petition. The filing of the petition interrupts the running of the statute provided the filing is before the expiration of the statutory period of limitation and is based on a proper cause of action described with sufficient certainty to apprise the defendant of its nature. In such a case, the petition may be amended, and the amendment will relate back to the time of the filing of the original pleading. Olson v. Success Motivation Institute, 528 S.W.2d 111, 113 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.); Gray v. Laketon Wheat Growers, Inc., supra; Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.Civ.App.—Waco 1940, affirmed 138 Tex. 277, 158 S.W.2d 486); Curtis v. Speck, 130 S.W.2d 348, 351 (Tex.Civ.App.—Galveston 1939, writ ref’d); Schneider v. McClory, 83 S.W.2d 352, 354 (Tex.Civ.App.—Amarillo 1935, writ ref’d); Joy v. Quality Shirt Manufacturing Co., 73 S.W.2d 905, 907 (Tex.Civ.App.—Fort Worth 1934, writ dism’d); Southern Surety Co. of New York v. First State Bank of Marquez, 54 S.W.2d 888, 892 (Tex.Civ.App.—Waco 1932, writ ref’d); 37 Tex.Jur.2d Limitation of Action, secs. 102 and 126. Rule 45, Tex.R.Civ.P., provides that a claim for relief in an original petition shall contain a short statement of the cause of action sufficient to give fair notice of the claim involved and his demand for judgment for relief to which the party deems itself entitled.

Sheldon-plaintiff’s original petition was timely filed. Sheldon failed to state a cause of action in either of its pleadings only to the extent that it did not allege the specific acts or omission of negligence against appellee Hudson Electric.

In our opinion Sheldon’s pleadings were sufficient to advise Hudson Electric of the nature of the cause of action against it. Therefore, even though the pleadings were defective, tested by the above rules, we think the original petition filed before the action was barred was sufficient to stop the running of limitation on the cause of action on which recovery was sought. •

In view of our disposition of this appeal under points of error Nos. 1 and 2, we do not reach the other points of error brought forth by the appellant.

The judgment is reversed and the cause remanded to the trial court for proper disposition.


author: CORNELIUS, Chief Justice.

text:
    D. J. SPEARS, Appellant, v. Lonnie E. BROWN, Appellee.
    No. 8547.
    Court of Civil Appeals of Texas, Texarkana.
    May 16, 1978.
    Rehearing Denied June 13, 1978.
    Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
    Louis W. Conradt, Jr., Ramsey & Con-radt, Terrell, for appellee.
   CORNELIUS, Chief Justice.

Appellant, D. J. Spears, perfected this writ of error to secure review of a default judgment rendered against him in favor of Appellee, Lonnie E. Brown. His principal contention here is that the district court erred in refusing to grant him a new trial on the ground that his failure to answer was due to accident or mistake.

The action was instituted by Brown against Ray Bostick. The petition alleged that Brown and Bostick were partners in a club known as The Thirsty Twenties Club and that Bostick had wrongfully excluded Brown from the partnership and had refused to account to him for his share of the partnership profits. An accounting and unspecified damages were sought. Bostick answered by general denial. Interrogatories were later served upon Bostick and were promptly answered. Brown subsequently filed his first amended original petition which brought appellant Spears into the case as a defendant with Bostick. The amended petition simply alleged that Brown and the “defendants” (Bostick and Spears) were partners in The Thirsty Twenties Club and that the defendants had excluded Brown from the club and had refused to account to him for his share of the “partnership profits.” Spears, although served with personal citation, failed to file an answer to the amended petition or to appear at the trial. On January 19, 1977, Brown presented to the district court evidence on the amount of his claimed damages, and on January 21, default judgment for the sum of $15,000 was rendered against Spears only. On February 21, 1977, Brown dismissed, without prejudice, his suit against Bostick.

On February 18, 1977, appellant filed a motion asking that the default judgment rendered against him be set aside and a new trial granted. To excuse his failure to appear and answer the suit, Spears’ affidavit attached to his motion alleged, among other things, that:

“I didn’t file an Answer because I went with Ray Bostick to the law firm of Morgan, Shumpert, Huff, Mosley & Co., when Ray told them the Answers to Plaintiff’s Interrogatories. When I was served with the Plaintiff’s First Amended Original Petition and saw down at the bottom that Tommy Bastían, attorney of record for Ray Bostick, was given a copy of Plaintiff’s First Amended Original Petition, I just assumed Ray and I were both represented by the law firm of Morgan, Shum-pert, Huff, Mosley & Co., because we were both Defendants in the same suit. When I learned about the Abstract of Judgment I immediately called Mr. Shumpert and asked him what was happening. I was told the law firm never considered itself my attorney of record so I immediately retained them to help me fight the Default Judgment which I knew nothing about.”

The district court overruled the motion.

A proceeding by writ of error in the court of civil appeals is but another method of appeal. Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Ward v. Scarborough, 236 S.W. 441 (Tex.Com.App.1922, judgmt. adopted); 3 Tex.Jur.2d, Appeal and Error-Civil, Sec. 11, p. 284. It brings the entire case before the appellate court for review of all rulings of the trial court properly assigned as error. Ward v. Scarborough, supra; Riley v. Mead, 531 S.W.2d 670 (Tex.Civ.App. El Paso 1975, no writ); Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App. El Paso 1973, no writ); 3 Tex.Jur.2d, Appeal and Error-Civil, Sec. 9, p. 283. However, it is not available to a party who participated in the actual trial of the case in the lower court. Tex.Rev.Civ. Stat. art. 2249a.

On writ of error, in the review of fundamental errors or legal errors in the judgment itself or in the trial leading to the judgment, the appellant is not required to excuse his failure to appear at the trial, nor is he required to show a meritorious defense or cause of action. Stafford Const. Co., Inc. v. Martin, 531 S.W.2d 667 (Tex.Civ.App. El Paso 1975, no writ); Middlemas v. Wright, 493 S.W.2d 282 (Tex.Civ.App. El Paso 1973, no writ); see 4 McDonald’s, Texas Civil Practice, Sec. 18.10.3, Comment at Note 67, p. 270. But whether on appeal or writ of error, when the error relied upon for reversal is the trial court’s refusal to set aside a default judgment upon equitable grounds alleged in a motion for new trial filed while the trial court still retains jurisdiction over the judgment, the appellant must show that his failure to answer or attend the trial was not intentional or the result of conscious indifference on his part, but was due to an accident or mistake, and he must set up a meritorious defense to the cause of action which forms the basis of the judgment, i. e., allege in his motion facts which would constitute a defense and support them by affidavits or other evidence constituting prima facie proof of such defense. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); Pierson v. McClanahan, 531 S.W.2d 672 (Tex.Civ.App. Austin 1975, writ ref’d n. r. e.); 4 McDonald’s, Texas Civil Practice, Secs. 18.10.1, 18.10.2, 18.10.3, pp. 266-270. In addition, the motion must be filed at a time when no material delay or other prejudice to the opposite party would result. If those requirements are met, the movant need not show a good excuse for his .default, in the sense that he was free from negligence. Ward v. Nava, 488 S.W.2d 736 (Tex.1972); Hughes v. Jones, 543 S.W.2d 885 (Tex.Civ.App. El Paso 1976, no writ); Continental Airlines, Inc. v. Carter, 499 S.W.2d 673 (Tex.Civ.App. El Paso 1973, no writ); Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739 (Tex.Civ.App. Amarillo 1973, no writ); Texas Iron Metal Co., Inc. v. Utility Supply Co., 493 S.W.2d 545 (Tex.Civ.App. Houston-1st Dist. 1973, writ ref’d n. r. e.); In Re Williamson, 437 S.W.2d 913 (Tex.Civ.App. Beaumont 1969, writ ref’d n. r. e.); Black v. Johnson, 404 S.W.2d 382 (Tex.Civ.App. El Paso 1966, writ ref’d n.r.e.); Box v. Associates Investment Company, 352 S.W.2d 315 (Tex.Civ.App. Dallas 1961, no writ); Smith v. Hillsboro State Bank, 253 S.W.2d 897 (Tex.Civ.App. Galveston 1952, no writ); 4 McDonald’s, Texas Civil Practice, Sec. 18.10.2, p. 268. Only a slight excuse is required under those circumstances. Craddock v. Sunshine Bus Lines, supra; Beard v. McKinney, 456 S.W.2d 451 (Tex.Civ.App. Houston-1st Dist. 1970, no writ); Cadena v. Dicker, 383 S.W.2d 73 (Tex.Civ.App. Dallas 1964, no writ).

Consistent with the principles recited above and considering the rather unusual circumstances and developments in this case, we believe Spears adequately excused his failure to answer the suit. Whatever their relationship, Bostick and Spears obviously had worked closely with each other and with Brown in connection with The Thirsty Twenties Club. Brown originally sued only Bostick, but when interrogatories were served, Spears went with Bostick to the office of his attorneys and assisted in furnishing the information for the answers. When Brown amended his petition, he sued Bostick and Spears together as partners of The Thirsty Twenties Club. The attorneys representing Bostick were shown on the amended petition as attorneys of record. We can understand how one unfamiliar with legal procedure could in those peculiar circumstances mistakenly conclude that the attorneys who were representing Bostick doing business as The Thirsty Twenties Club were also representing him as an alleged partner of Bostick in that business. When Spears discovered otherwise, he promptly filed his motion for new trial.

We have also concluded that Spears set up a meritorious defense sufficient to entitle him to an order setting aside the default judgment and granting him a new trial. Brown’s petition alleged that Bostick and Spears were partners with him in The Thirsty Twenties Club and that they had excluded him from the partnership and had refused to account to him for his share of the partnership profits. Spears’ sworn motion for new trial, however, referred to filed answers to interrogatories which showed that Spears was not a partner with anyone, but was the sole stockholder of The Thirsty Twenties Club which was a corporation. They further revealed that Spears was entitled to 100% of the profits from that business, that Brown was only an employee of Spears, and that he wanted to purchase an interest in the club and pay for it out of future profits, but that Spears would not agree to sell him an interest on that basis. If those statements are true they would constitute a complete defense to Brown’s action as pleaded.

We recognize that the interrogatory answers referred to in Spears’ motion were those made by Bostick, and that Tex.R. Civ.P. 168 provides that answers to interrogatories taken pursuant to that rule may be used only against the party making the answers, but we do not consider that Spears “used” those answers as that term is employed in the rule. In effect, he simply incorporated the statements made in those answers into his motion for new trial and adopted them as his personal sworn testimony in “setting up” his meritorious defense. Compare Beard v. McKinney, supra. As the answers pertained to Spears’ own actions and capacity, and he obviously had personal knowledge of their accuracy, he should not be prohibited from adopting them as his testimony any more than he would be forbidden to incorporate into his sworn motion or affidavit any other fact statement within his personal knowledge, and adopt it as his own testimony.

It follows that Spears sufficiently excused his failure to answer the suit, and his sworn motion for new trial, which was filed at a time when the trial court still retained jurisdiction of the judgment, set up a meritorious defense as required by the rules heretofore noted. There is no evidence or indication that the granting of the motion for new trial would have created any delay in bringing this case to trial or would have in any manner prejudiced the plaintiff’s cause of action. See Ward v. Nava, supra, at p. 738, and Leonard v. Leonard, 512 S.W.2d 771 (Tex.Civ.App. Corpus Christi 1974, writ dism’d). The requirements of Craddock having been met, the rule allowing equitable relief should be liberally applied, and the trial court should have granted Spears’ motion for new trial. 4 McDonald’s, Texas Civil Practice, Sec. 18.10.1, p. 266.

It is not necessary that we consider the other points of error. The judgment of the district court is reversed and the cause is remanded for a new trial.

      . In a Bill of Review filed after the judgment becomes final, the requirements pertaining to these two matters are more strict. There, the movant must establish that his failure to appear or answer was without any fault or negligence on his or his attorney’s part, and he must prove his meritorious defense. 4 McDonald’s, Texas Civil Practice, Sec. 18.27.1, p. 318.


author: SPURLOCK, Justice.

text:
    Roxie C. ALLEN et al., Appellants, v. AETNA CASUALTY & SURETY COMPANY et al., Appellees.
    No. 18006.
    Court of Civil Appeals of Texas, Fort Worth.
    May 18, 1978.
    Rehearing Denied June 15, 1978.

      Joe K. Longley, Austin, Wallace S. Craig, Hurst, for appellants.
    Harris & Harris, Jack E. Harris, Arlington, for Safeco Ins. Co. of America.
    Brown, Crowley, Simon & Peebles, George A. Crowley, Fort Worth, for United Services Auto. Ass’n.
    Thompson, Coe, Cousins & Irons, R. B. Cousins, Craig Eggleston, Dallas, for Members Mut. Ins. Co.; Sec. Nat. Ins. Co.; State Farm Mut. Auto. Ins. Co.; Trinity Universal Ins. Co.; American Gen. Fire & Cas. Co.; Allstate Ins. Co.; Hartford Cas. Ins. Co.; Government Emp. Ins. Co.; United States Fire Ins. Co.
    Touchstone, Bernays & Johnston, Jim E. Cowles, R. Brent Cooper, Dallas, for St. Paul Ins. Co.; Texas Farmers Ins. Co.
    Strasburger & Price, Royal H. Brin, Jr., Dallas, for Gulf Ins. Co.
    Greenberg & Bach, Robert M. Greenberg, Dallas, for Aetna Cas. & Sur. Co.; Standard Fire Ins. Co.; United States Fidelity & Guarantee Co.
    Cantey, Hanger, Gooch, Munn & Collins, William B. David, Fort Worth, for Emp. Cas. Co.
    McBryde, Bogle & Green, John McBryde, Fort Worth, for Travelers Indem. of Rhode Island.
    Watson, Kennedy & McCall, Keith W. Kennedy, Waco, for Southern Farm Bureau Cas.
   OPINION

SPURLOCK, Justice.

Roxie C. Allen, Connie D. Barker, John T. Goodin and Amos Howard, on behalf of themselves and “all other persons or entities similarly situated”, sued twenty insurance companies. By their fourth amended original petition, plaintiffs alleged that each defendant issues insurance policies containing a “personal injury protection” endorsement, but that each such policy is contrary to the statutory provisions of Tex. Ins.Code Ann. art. 5.06-3 (1963 to 1977 Pamphlet Supp.). Plaintiffs further alleged that each “personal injury protection” endorsement provides for compensation for 80% of loss of income, whereas Tex.Ins.Code Ann. art. 5.06-3 requires “payment of benefits for loss of income as the result of the accident . ..” Further, plaintiffs allege that the defendants have acted in “common concert and combination to procure and entice the promulgation of the existing form of the Texas Family Automobile Endorsement as approved by the Texas State Board of Insurance . . ..”

As recited in the court’s order of November 11, 1977, the court considered the motion of Travelers Indemnity of Rhode Island at a pre-trial hearing as to whether to require the joinder of the State Board of Insurance of the State of Texas as a party, pursuant to Tex.R.Civ.P. 39. Said motion was adopted by the other defendants. The trial court gave the plaintiffs an opportunity to join the State Board of Insurance, but upon the plaintiffs’ failure to do so after reasonable notice, the court dismissed the plaintiffs’ suit. From the trial court’s order of dismissal, the plaintiffs have perfected their appeal.

We affirm.

The sole point of error assigned by the plaintiffs is that “(T)he trial court erred in ruling that the Texas State Board of Insurance is a necessary and proper party . ..”

In considering this point, it is essential that Tex.R.Civ.P. 39 be studied very carefully. This rule became effective on January 1,1971, and although the caption is not controlling, the caption is “Joinder of Persons Needed for Just Adjudication.” The relevant portion of the rule to the case at bar is Tex.R.Civ.P. 39(a), which provides:

“(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. . . . ”

At the outset, we note that Rule 39(a) is not written in terms of “necessary” or “proper” or “indispensable” or “insistible” or “conditionally necessary” parties. Prior to the 1971 amendment of Rule 39, Texas courts used these terms in an effort to catalogue parties.

As our supreme court wrote in Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.1974):

“Contrary to our emphasis under Rule 39 before it was amended, today’s concern is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present. . . . ”

The basis of plaintiffs’ complaint is that the defendants’ insurance policies (through the “personal injury protection” endorsement) provide for the payment of 80% of lost wages rather than 100% of said lost wages.

Tex.Ins.Code Ann. art. 5.06-3(f) (1963 to 1977 Pamphlet Supp.) provides in part that:

“The State Board of Insurance is hereby authorized to prescribe the form, or forms, of insurance policies, including riders and endorsements, to provide, the coverage described in this article. The Board shall also prescribe the premium rates under the provisions of this Sub-chapter A, Chapter 5, Texas Insurance Code. ...”

Pursuant to this statutory authorization, the State Board of Insurance promulgated the “personal injury protection” endorsement used by the defendants herein.

Tex.Ins.Code Ann. art. 5.06 (1963) provided:

“In addition to the duty of approving classifications and rates, the Board shall prescribe policy forms for each kind of insurance uniform in all respects except as necessitated by the different plans on which the various kinds of insurers operate, and no insurer shall thereafter use any other form in writing automobile insurance in this State; provided, however, that any insurer may use any form of endorsement appropriate to its plan of operation, provided such endorsement shall be first submitted to and approved by the Board; and any contract or agreement not written into the application and policy shall be void and of no effect and in violation of the provisions of this sub-chapter, and shall be sufficient cause for revocation of license of such insurer to write automobile insurance within this State.” (Emphasis added.)

By their fourth amended original petition, plaintiffs seek (1) designation of the cause as a class action, (2) a permanent injunction against these insurers, (3) fifteen million dollars as damages with interest thereon at 9%, (4) a 12% penalty pursuant to Tex.Ins.Code Ann. art. 5.06-3(dX3), (5) recovery of treble damages under the Texas Deceptive Trade Practices Act and injunc-tive relief for plaintiffs in their individual capacities, and (6) attorney’s fees and costs.

If plaintiffs received the relief they seek without the joinder of the State Board of Insurance as a party, these defendants would in effect be required to issue policies in conflict with the personal injury protection endorsements promulgated by the State Board of Insurance. Additionally, as a result of issuing non-conforming policies, these twenty insurers would be subjected to revocation of their licenses to write automobile insurance within the State. Also, the defendants would be required to pay larger benefits than other insurance companies doing business in the State. Of course, if the State Board of Insurance is not a party to the litigation, it cannot be bound. It is obvious that complete relief would not be afforded by a decree issued in the absence of the State Board of Insurance as a party.

Plaintiffs do not dispute the fact that the State Board of Insurance is subject to service of process.

We hold that the trial court was correct in ordering the plaintiffs to join the State Board of Insurance as a party, since in its absence, complete relief cannot be afforded. Upon the plaintiffs’ refusal after reasonable notice to join the State Board of Insurance, the trial court’s order of dismissal was proper. We overrule appellants’ sole point of error.

The judgment of the trial court is affirmed.

OPINION ON MOTION TO DISMISS

Two of the appellees in this case, St. Paul Insurance Companies and Texas Farmers Insurance Company, have filed a motion to dismiss the appeal of three of the appellants (Connie D. Barker, John T. Goo-din, and Amos Howard) for lack of jurisdiction. (Several motions to adopt the motion to dismiss have been filed'by other appel-lees in the case.) These appellees assert that we should dismiss because no cost bond has been filed by these three appellants. We disagree.

The cost bond filed in this case makes it clear that all of the plaintiffs are appealing from the judgment of the trial court. The bond, in the amount of $500.00, is made payable to the clerk of the court. The sureties on the appeal bond are Roxie C. Allen, Wallace Craig, and Lawyers Surety Corporation. By construction, Allen is a principal and not a surety. These appellees’ motion to dismiss is based upon the premise that each of the appellants must execute the appeal bond in order for this court to acquire jurisdiction as to each appellant.

The requirements regarding appeal bonds are prescribed by the Texas Rules of Civil Procedure. Generally, appeal bonds are given a liberal construction by the Courts. 4 Tex.Jur.2d Rev. Part 1 App. & Err. — Civil Cases § 272 at 105 (1974). Jurisdiction is not defeated by the mere fact that only one of several appellants has signed the bond, if the bond itself shows that several appellants are participating in the appeal. 4 Tex.Jur.2d Rev. Part 1 App. & Err. — Civil Cases § 283 at 116 (1974); Cross v. Hancock’s Estate, 176 S.W.2d 586 (Tex.Civ.App. —Amarillo 1943, writ ref’d w.o.m.); Hodges Drilling Co. v. Tyler, 233 S.W. 548 (Tex.Civ. App.—Fort Worth 1921, writ dism’d). We consider these to be controlling, because (1) the appeal bond clearly shows that it is the intent of all the plaintiffs to appeal from the judgment of the trial court, (2) the bond is made payable to the clerk of the court in the amount of $500.00, and (3) the appeal bond is signed by Roxie C. Allen, Wallace Craig, and Lawyers Surety Corporation, and (4) even if this were a defect of substance or form in the appeal bond, then under Tex.R.Civ.P. 430, this court is authorized to allow the appellants to amend the appeal bond by filing a new bond on such terms as this court may prescribe. Also see Tex.R.Civ.P. 404.

The motion to dismiss the appeal of these three appellants is overruled.


author: MOORE, Justice.

text:
    A. Don CROWDER et ux., Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF DALLAS, Appellees.
    No. 1110.
    Court of Civil Appeals of Texas, Tyler.
    May 18, 1978.
    Rehearing Denied June 22, 1978.

      Michael Greenberg, Irving, for appellants.
    Michael W. McManus, Weinberg, Sando-loski & McManus, Dallas, for appellees.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiffs, A. Don Crowder and wife, executed two secondary mortgages on their homestead securing loans for the construction of a swimming pool and a tennis court. The mortgage instruments were then assigned to defendant, First Federal Savings & Loan Association of Dallas (First Federal). Plaintiffs, although not in default on the notes, brought suit against defendant, First Federal, alleging that the notes and the mortgage instruments securing the same were in violation of Tex.Rev. Civ.Stat.Ann. art. 5069-5.02(5), commonly known as the Consumer Credit Code (Code), in that the instruments provided for a payment of a 15% attorney’s fee in the event plaintiffs defaulted in the payment of the loan. Plaintiffs alleged that the charging of attorney’s fees was not authorized by the Code and sought judgment for the statutory penalties provided for under articles 5069-8.01 and 8.02. Both parties filed motions for summary judgment. After a hearing, the trial court granted First Federal’s motion for summary judgment, denied plaintiffs’ motion and entered a take-nothing judgment against them, from which adverse ruling plaintiffs perfected this appeal.

We affirm.

The question presented is whether a provision in a note and secondary mortgage contract in which the mortgagor agrees to pay a 15% attorney’s fee in the event of default constitutes a violation of article 5069-5.02(5), thereby entitling the mortgagor to the statutory penalties provided for in the act. The determination of the question calls for a construction of the Code as a whole.

The Consumer Credit Code is found in subtitle 2 of Title 79 in the Revised Civil Statutes of this state. Under the first subtitle, article 5069-1.02, the act provides as follows:

“Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious. All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle.”

The second subtitle provides that in certain types of consumer loans the lender may charge interest in excess of ten percent per annum but prohibits the lender from making additional charges. It also contains certain disclosure requirements. The loan in the present case is classified as a consumer loan and falls under chapter 5 of the second subtitle, and is regulated by the provisions of article 5069-5.01 et seq., titled “Secondary Mortgage Loans.” Chapter 8 (articles 5069-8.01 and 8.02) provides certain penalties applicable to violations of subtitle 2.

Section 5.01(1) of the article authorizes the taking of secondary liens on real property improved by a dwelling designed for occupancy by four families or less. Section 5.02 places limitations on the amount of add-on interest, interest for default and other fees which may be contracted for, charged or received. Section 5.02(5) reads as follows:

“In addition to the authorized charges provided in this Chapter no further or other charge[s] or amount whatsoever shall be directly, or indirectly, charged, contracted for, or received. This includes (but is not limited by) all charges such as fees, compensation, bonuses, commissions, brokerage, discounts, expenses and every other charge of any nature whatsoever, whether of the types listed herein or not. Without limitation of the foregoing, such charges may be any form of costs or compensation whether contracted for or not, received by the lender, or any other person, in connection with (a) the investigating, arranging, negotiation, procuring, guaranteeing, making, servicing, collecting or enforcing of a loan; or (b) for the forbearance of money, credit, goods or things in action; or (c) for any other service or services performed or offered. However, the prohibition set out herein shall not apply to amounts actually incurred by a lender as: . . .” (Emphasis supplied.)

Immediately following the foregoing section the statute lists a group of six charges which are not prohibited, including fees for appraisal and inspection; investigation of credit standing; filing, recording and construction permits; insurance; title examination; and legal fees to an attorney who is not a salaried employee of the lender for the preparation of documents in connection with the transaction, not to exceed $35. In short, in addition to expressly listing certain charges which are prohibited, the statute appears to prohibit “all charges whatsoever” in connection with the collecting or enforcing of a loan, except those few which are expressly permitted. It should be noted, however, that the statute does not specifically prohibit contracting for attorney’s fees in the event of default. It simply makes no reference to attorney’s fees in the event of default.

The undisputed summary judgment proof shows that, prior to the construction of the improvements on their home, plaintiffs made arrangements with First Federal on two different occasions for financing of the swimming pool and tennis court. The summary judgment proof further shows that First Federal prepared the notes and other instruments necessary to perfect the second mortgage lien. After being executed by plaintiffs the notes were simultaneously assigned to First Federal by the contractors. The two notes executed by the plaintiffs provide for attorney’s fees in the event of default in the following language:

“If this note is placed in the hands of an attorney for collection, or if it is collected through judicial proceedings, bankruptcy proceedings or through the probate court, then I, we, or either of us, agree to pay an additional 15% of the principal and interest then due as attorney’s fees . . . .”

Plaintiffs assert that because section 5.02(5) does not expressly set forth the right to contract for, charge or receive attorney’s fees upon default, the notes and mechanic’s lien contracts assigned to First Federal contain charges prohibited under section 5.02(5). They further argue that the agreement to pay a 15% attorney’s fee constitutes a contract obligating them to pay for the cost of collecting and enforcing the loan, which additional charge is specifically prohibited by the statute. Therefore they contend that such violation triggers the penalty provisions of the act, sections 8.01 and 8.02, and that they are entitled to recover for the amount of penalties specified therein. We are not in accord with this proposition.

In construing the meaning of a statute, the dominant consideration is to ascertain the intention of the legislature. Southwestern Investment Company v. Mannix, 557 S.W.2d 755 (Tex.1977); Flowers v. Dempsey-Tegeler & Company, 472 S.W.2d 112 (Tex.1971). In determining the legislative intent, the court must at all times keep in mind the old law, the evil and the remedy. Tex.Rev.Civ.Stat.Ann. art. 10, sec. 6; O. R. Mitchell Motors, Inc. v. Bell, 528 S.W.2d 856 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.). That is to say that the courts must consider the history of the subject matter involved, the end to be attained, the mischief to be remedied and the purpose to be accomplished. McDaniel v. Pettigrew, 536 S.W.2d 611 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

In construing the present statute we believe it particularly appropriate to examine the “Declaration of Legislative Intent” as set out at the beginning of the act. Among other things the Declaration of Intent recites that: (a) the regulation of credit abuses and the imposition of penalties are presently insufficient; (b) such abuses are especially prevalent in the area of consumer transactions; (c) these facts conclusively indicate a need for a comprehensive code to define interest and usury, to classify and regulate loans and lenders, to place limitations on charges imposed in connection with credit sales and services, to prohibit deceptive trade practices and to provide effective penalties for usury and other prohibited practices.

Thus, it is clear from a reading of the declaration that the Code’s primary purposes are to (1) regulate interest rates and (2) prohibit deceptive and abusive practices in connection with the lending of money.

Before the Consumer Credit Code was enacted in 1967, any loan with an effective rate of interest greater than 10% per annum was considered usurious. Under the Credit Code, lenders are now permitted to charge effective rates of interest greater than 10% per annum, provided they comply with the requirements under the Code. Thus, lenders may choose between charging up to 10% per annum free of restrictions (under subtitle 1), or charging an effective rate of interest greater than 10% and be subject to the relevant regulations under the Credit Code. See Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 252 (Tex. Civ.App. — San Antonio 1978). In furtherance of our inquiry into the intent of the legislature, we must look to the “old law” in order to determine the mischief to be remedied. This calls for an examination of the relevant pre-code case law that has developed under the usury statute prohibiting interest in excess of 10% per annum, currently art. 5069-1.02, supra.

Under what is now art. 5069-1.02, the basic usury statute, our courts have held that the inclusion of certain additional charges other than the interest charges shown on the face of the loan often amounted to a means by which a greater rate of interest was illegally exacted. Such charges were thus considered interest, and if they, in conjunction with the express rate of interest on the face of the loan, raised the effective rate of return to an amount greater than 10% per annum, the loan was usurious. Examples of such additional charges which the courts have condemned include brokerage fees, bonuses, commissions, expenses, discounting, and “fees” (i. e., for the use of lender’s credit). Under sec. 5.02(5) of the new.code, each of the foregoing charges are explicitly prohibited. Without doubt the legislature was aware of the fact that lenders had previously resorted to such means as a cover for charging usurious interest. Therefore, in passing the Consumer Credit Code, the legislature merely attempted to codify the case law by prohibiting the charging of or contracting for ádditional fees and services such as those previously enumerated.

On the other hand, the courts of this state have not been prone to classify attorney’s fees as an additional charge causing a contract to be usurious. Our courts have consistently upheld the right of the parties to contract for attorney’s fees in the event of default, and have further held that such fees are not to be considered as interest so as to make a contract usurious. Stuart v. Tenison Bros. Saddlery Co., 21 Tex.Civ.App. 530, 53 S.W. 83 (1899), writ ref’d; Childs v. Juenger, 162 S.W. 474 (Tex.Civ.App.—San Antonio 1913, writ ref’d). See Moss v. Metropolitan Nat. Bank of Houston, 533 S.W.2d 397 (Tex.Civ.App. — Houston [1st Dist.] 1976, no writ history); Houston Furniture Distributors, Inc. v. Bank of Woodlake, 562 S.W.2d 880 (Tex.Civ.App.—Houston [1st Dist.] 1978).

Thus, under the pre-code law, attorney’s fees in the event of default, unlike other charges, have always been viewed as appropriate, and the contracting for such fees has never been considered an evil in need of remedying. It is inconceivable that the legislature would have concluded that the contracting for attorney’s fees in the event of default amounted to a deceptive or abusive practice, when such practice has never been considered deceptive or abusive or potentially usurious by the courts. Clearly, then, the legislature did not intend to view the contracting for or charging of attorney’s fees in the event of default as an evil which needed remedying under the “new law,” the Consumer Credit Code. Had it so intended it could easily have prohibited such fees in explicit language.

In Southwestern Investment Co. v. Mannix, supra, the court stated that a fundamental rule of statutory construction is that the intention of the legislature must be ascertained from the entire act and not from isolated portions thereof. With this rule of construction in mind, we note that in every type of loan or credit sale regulated by the act, with the exception of secondary mortgage loans, the act specifically recognizes the right to contract for attorney’s fees in the event of default. In chapters 3 and 4 the legislature specifically provided that the general prohibition against the charging of or contracting for additional fees did not apply to attorney’s fees. For example, both sec. 3.15 dealing with regulated loans and sec. 4.01 dealing with installment loans prohibit the lender from contracting for additional charges in the collecting or enforcing of a loan. However, despite such prohibition, the legislature specifically provided that the prohibition against additional charges in those sections did not apply to amounts actually incurred as attorney’s fees assessed by a court. In addition, sec. 6.03 dealing with retail installment sales and sec. 7.03 dealing with vehicle installment sales both permit contracting for a reasonable attorney’s fee where the contract is referred for collection to an attorney not a salaried employee of the holder of the contract.

After a review of subtitle 2 as a whole, it is apparent that contracting for attorney’s fees upon default was not one of the evils sought to be corrected by the legislature. The legislature apparently viewed such fees as a legitimate charge to be imposed on the defaulting buyer who gives rise to the expense, rather than as a cost of doing business to be borne by the lender.

We see no valid reason why secondary mortgage loans should be singled out by the legislature as the only type of transaction in which attorney’s fees would be prohibited. On the contrary, we think that by failing to address itself explicitly to the question of attorney’s fees, the legislature intended to leave the parties free to contract for attorney’s fees as in the other sections of the Code. Not only does lending money secured only by a second mortgage loan involve great risks, but the enforcement of a second mortgage loan is often a complicated affair requiring much time and effort on the part of an attorney. Thus, viewing the act as a whole as opposed to isolated portions thereof, we do not believe that the legislature purposely intended to single out secondary mortgage lenders and prohibit them from contracting for or charging attorney’s fees on default.

Although the sweeping language of sec. 5.02(5) seems to prohibit “all charges whatsoever” in connection with the collecting or enforcing of a loan except for those few which are explicitly allowed, we do not believe that it was the legislative intent, as gathered from the Declaration of Legislative Intent, the history of the subject matter, the purpose to be accomplished and the act as a whole, to declare that the contracting for attorney’s fees in secondary mortgage loans constituted a usurious practice or amounted to an abusive Or deceptive practice which the act was designed to prohibit. It was not necessary for the legislature specifically to grant the lender the right to contract for attorney’s fees on default, since such right has traditionally been recognized by the courts of this state. We hold that the conduct of appellee in contracting for attorney’s fees does not constitute a violation of art. 5069-5.02(5) of the Consumer Credit Code. It therefore follows that appellee would not be subject to the penalty provisions provided in the act.

The judgment of the trial court is affirmed.

      . Although these provisions were revised and enlarged in 1977, plaintiffs brought suit to recover under the original penalty provisions enacted in 1967.


author: HALL, Justice.

text:
    Gail COOPER, Appellant, v. Bradford BOYAR and Ted Simerson, Appellees.
    No. 5871.
    Court of Civil Appeals of Texas, Waco.
    May 18, 1978.
    First Rehearing Denied June 15, 1978.
    Second Rehearing Denied July 6, 1978.

      Jerry N. Jordan, Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellant.
    Charles W. Rowland, DeSoto, for appel-lees.
   HALL, Justice.

Appellees Bradford Boyar and Ted Sim-erson brought this suit against appellant Gail Cooper for actual and exemplary damages alleging that Cooper willfully and maliciously committed an assault upon them with a pistol. Cooper answered with a general denial, a plea of self-defense of his person, and a counterclaim against Boyar and Simerson for actual and exemplary damages based upon pleadings that Boyar and Simerson assaulted him.

The evidence shows without contradiction that at the time in question Boyar and Simerson were employees of Dallas Flight Center. Cooper was president of American Hatch Corporation. In payment of Dallas Flight Center’s fee for aircraft charter service furnished to Cooper, Cooper gave Dallas Flight Service a check for $3,185.00 executed by Deborah Shirley which was drawn on a checking account styled “Deborah Shirley, Petty Cash Account for A.H.C.” Deborah Shirley was Cooper’s secretary, and she was also his fiancée. Dallas Flight Center deposited the check for collection, but it was returned marked “insufficient funds.” Subsequently, a dispute arose between Cooper and Dallas Flight Center over the Center’s charter service fee, and Cooper determined that the check should not be paid. On the occasion in question, Boyar and Simerson went to see Cooper at his Company office to try to collect on the check. An argument resulted, Cooper withdrew a pistol from his desk, and in the ensuing altercation Cooper struck Boyer on the head with the gun causing a bleeding cut which required several stitches for closing.

The case was tried to a jury who made the following answers to the special issues:

1. Found that Cooper committed an assault and battery upon Boyar.
2. Found that the assault and battery was the proximate cause of “the injury, if any,” suffered by Boyar.
3. Found that the assault and battery upon Boyar was committed with malice.
4. Awarded Boyar $2,500.00 actual damages for his injuries.
5. Awarded Boyar $5,000.00 exemplary damages.
6. Found that Cooper was not acting in self-defense when he committed the assault and battery upon Boyar.
7. Found that Cooper committed an assault upon Simerson.
8. Found that the assault was the proximate cause of “the injury, if any,” suffered by Simerson.
9. Found that the assault upon Simerson was committed with malice.
10. Awarded Simerson $1,500.00 actual damages for his injuries.
11. Awarded Simerson $5,000.00 exemplary damages.
12. Found that Cooper was not acting in self-defense when he committed the assault upon Simerson.
13. Failed to find that Boyar committed an assault and battery upon Cooper.
18. Failed to find that Simerson committed an assault upon Cooper.

Judgment was rendered on the verdict awarding Boyar a recovery of $7,500.00 and awarding Simerson a recovery of $6,500.00. Cooper appeals.

The four special issues relating to the questions of assaults upon the plaintiffs and whether they were injured were worded as follows:

SPECIAL ISSUE NO. 1:
Do you find from a preponderance of the evidence that at the time and on the occasion in question Gail E. Cooper committed an assault and battery upon Bradford Boyar?
SPECIAL ISSUE NO. 2:
Do you find from a preponderance of the evidence that the assault and battery, if you have so found that an assault and battery was committed, was the proximate cause of the injury, if any, suffered by Bradford Boyar at the time and on the occasion in question?
SPECIAL ISSUE NO. 7:
Do you find from a preponderance of the evidence that at the time and on the occasion in question Gail E. Cooper committed an assault upon Ted Simerson? SPECIAL ISSUE NO. 8:
Do you find from a preponderance of the evidence that the assault, if you have so found that an assault was committed, was the proximate cause of the injury, if any, suffered by Ted Simerson at the time and on the occasion in question?

Issues 2 and 8 were conditionally submitted upon affirmative answers to issues 1 and 7 respectively. As we have already shown, all four issues were answered in plaintiffs’ favor.

Cooper objected to the failure of the court to submit by separate special issues the “controlling issues” as to whether each plaintiff was in fact injured. He suggested to the court that a special issue reading as follows relating to each plaintiff should be submitted to the jury:

“Do you find from a preponderance of the evidence that the plaintiff [Boyar, and then Simerson] sustained injuries, if any, as a result of the action of Defendant Gail E. Cooper directed to the said [plaintiff] on the occasion in question? Answer ‘Yes’ or ‘No.’ ”

The objections were overruled. Cooper assigns error to these rulings, and cites Great Western Loan & Trust Company v. Rodriguez, 290 S.W.2d 551 (Tex.Civ.App.—Waco 1956, no writ) in support of his assignments.

The Rodriguez case was an assault and battery action, tried to a jury, in which the question of injury to the plaintiff was a disputed issue. The jury was first asked whether the defendant assaulted the plaintiff. Then, conditioned upon an affirmative answer to that issue, the jury was asked, as in our case, whether “the assault and battery was the proximate cause of the injuries, if any, suffered by [the plaintiff].” The defendant objected to the failure of the court to submit an issue inquiring whether the plaintiff sustained any injuries, and suggested an issue to that effect like Cooper has done in the case before us. The objection was overruled, the submitted issues were answered in plaintiff’s favor, and judgment was rendered on the verdict for plaintiff. This court reversed the judgment, holding that the trial court should have submitted the disputed issue of the injury to the jury.

As we have stated, the evidence shows without contradiction that Cooper inflicted actual physical injury upon Boyar when he struck Boyar with the gun. This fact negated any need of asking the jury whether Boyar was injured. However, whether Simerson was injured was a disputed issue in the case. Nevertheless, we hold the ruling in Rodriguez is no longer controlling. When that case was decided, Rule 277, Vernon’s Tex.Rules Civ.Proc., required the court to submit the issues to the jury “distinctly and separately.” Since that decision, Rule 277 has been amended and now provides, as it did when our case was tried, as follows: “It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues.”

Cooper has not shown how he was harmed by the inclusion of the elements of injury and causation in a single issue. He simply argues that he was entitled to have them separately submitted. Under the provisions of Rule 277, he was not. No objections were made to special issues 2 and 8. If they assume the fact of injury as Cooper seems to infer, that complaint was waived.

Cooper asserts the court erred by failing to instruct the jury, over his objection, “that an assault does not occur if a person uses no more force than is reasonably necessary under the attending circumstances to eject an intruder from such person’s premises where he has lawful possession of such premises.” The contention is overruled. Cooper did not plead defense of property. This was an affirmative defense to plaintiffs’ actions on assault. Affirmative defenses must be pleaded, else they are waived. Rule 94, Vernon’s Tex.Rules Civ. Proc.; Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex.Sup.1967).

Two other complaints by Cooper are also based upon rulings on his objections to the charge. Neither presents reversible error and both are overruled.

Contentions are made that the jury’s answer to special issue 7 finding that Cooper assaulted Simerson is either without any support in the evidence or it is against the great weight and preponderance of the evidence. Particularly it is asserted there is no evidence that any actions of Cooper were directed to Simerson. Those contentions are overruled.

There is evidence that after Boyar and Simerson' entered Cooper’s office a discussion arose over Cooper’s refusal to pay the check, and Cooper stated to Boyar and Sim-erson that he did not intend to pay it. Boyar told Cooper that if the check was mot made good that he and Simerson would be forced to take legal action against Deborah Shirley (Cooper’s secretary and fiance) who had made and signed the check, and “would have to file on her.” Cooper became very excited on Boyar’s threat of legal action, and three times stated, “don’t you file on that girl.” He then said, “I’ll take care of that,” and withdrew the pistol from a drawer and struck Boyar on the head with it. At this time Cooper’s face was red, he was “almost wild-eyed” and was glaring at Bo-yar. He cocked the hammer on the pistol, waved it around, and told Boyer and Simer-son, “If you don’t get out of here I’m going to kill you.” Boyar testified that Simerson was “right at my side” and that “at any time [Cooper] was holding the gun, if it had gone off, it would have hit us.” He said that he looked down the barrel of the gun, and that he did not think he would leave the office alive. Simerson testified that he “looked down the end of a loaded gun . and . . . could actually see the lead bullets in the cylinder of that gun with the hammer cocked”; that Cooper was angry, irate and shaking, and “waving [the gun] around both of us”; and that “I thought my days had come to an end.”

Of course, Cooper’s version of the confrontation between the parties differs substantially from Boyar’s and Simerson’s testimony, and under Cooper’s testimony an assault was not committed on Simerson. Nevertheless, the evidence we have recited supports the jury’s finding of the assault. It would serve no useful purpose to set forth all the proof on the question, but in the light of it we hold that the finding is not against the great weight and preponderance of the evidence.

Finally, it is asserted by Cooper that the jury’s awards of damages to both Boyar and Simerson are excessive. A review of the entire record convinces us those contentions are without merit. They are overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

Among other complaints in his motion for rehearing, appellant Cooper asserts we erred in holding that in an assault action defense of property is an affirmative defense under Rule 94 which must be affirmatively pleaded by the defendant before the court is required to submit it to the jury. Cooper says the defense is an inferential rebuttal issue, citing Foster v. H. E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex.Civ. App.—San Antonio 1977, writ ref’d n. r. e.) which held that it was.

An inferential rebuttal issue is one which disproves the existence of an essential element submitted in another issue. Wirtz v. Orr, 533 S.W.2d 468, 472 (Tex.Civ. App.—Eastland 1976, writ ref’d n. r. e.). So, it has been held that the defense of self-defense in a suit arising under our wrongful death statute (Article 4671, Vernon’s Tex.Civ.St.) is inferential rebuttal rather than affirmative defense because the plaintiff has the burden of pleading and proving that the killing of the deceased was “wrongful.” Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). On the other hand, in an assault action, the plaintiff need only plead and prove that the assault was committed “intentionally” or “knowingly.” V.T.C.A., Penal Code § 22.01. The defenses of self-defense and defense of property do not seek to disprove those elements of intent; rather, they admit that the assault was committed intentionally or knowingly and seek to justify it. See Cameron Compress Co. v. Kubecka, 283 S.W. 285, 287 (Tex.Civ.App.—Austin 1926, writ ref’d). Accordingly we remain convinced that they are affirmative defenses under Rule 94 which, if raised by pleading and proof, should be handled by special issue rather than simply by explanatory instruction as an inferential rebuttal issue.

In any event, if the issues of self-defense and defense of property in an assault case be classed as inferential rebuttal they still must be pleaded before their submission to the jury is required. Rule 279, Vernon’s Tex.Rules Civ.Proc.; Hodges, Special Issue Submission In Texas (1959), p. 47, Inferential Rebuttal Issues, § 17.

Appellant’s motion for rehearing is overruled. The judgment is affirmed.


author: ROBINSON, Chief Justice.

text:
    JON-T FARMS, INC., Appellant, v. PERRYTON EQUITY EXCHANGE, Appellee.
    No. 8860.
    Court of Civil Appeals of Texas, Amarillo.
    May 22, 1978.
    Rehearing Denied June 19, 1978.
    Prappas, Moncure, Harris & Termini (B. Edward Williamson), Houston, for appellant.
    Lemon, Close, Atkinson, Shearer & McCutcheon (Otis C. Shearer), Booker, for appellee.
   ROBINSON, Chief Justice.

Seller Perryton Equity Exchange sued buyer Jon-T Farms alleging a breach of Jon-T Farm’s agreement to purchase milo. The trial court entered judgment on the verdict for plaintiff. Defendant Jon-T appeals. Affirmed.

On September 23, 1974, the parties made an oral contract for the sale of milo. The oral contract was reduced to writing in Confirmation of Sale No. 4407, which provided in part:

The Buyer understands and agrees that this instrument is a contract of sale and that Buyer is obligated to purchase and take delivery of the amount of grain herein specified for the price and upon the terms herein specified and that Equity is obligated to deliver such grain on the date, or dates, indicated and upon the terms herein specified and that the failure of Buyer to take delivery of such grain and to pay the agreed price for same shall constitute a breach of this contract.

The contract did not specify a delivery date; however, the contract provided for a carrying charge after January 1,1975, and stated that the milo was not to be carried past April 1, 1975.

On January 13, 1975, Leroy Carter, Assistant General Manager of Perryton Equity, called Dale Wiley, who executed the contract for Jon-T, to ask if Jon-T was ready for delivery on the contract. Carter testified that Wiley said that they were not ready and that Jon-T would notify Perryton Equity when they would be ready to pick the grain up. Carter also testified that he notified Wiley at that time that the grain was available. It is undisputed that no further contact between the parties concerning Contract No. 4407 occurred between January 13, 1975, and April 1, 1975. After April 1, 1975, Perryton Equity Exchange gave notice to Jon-T and sold the milo to other buyers, sustaining a loss because of a decline in the market price.

Perryton Equity Exchange instituted this action to recover the difference between the contract price and the resale price, alleging that Jon-T breached the contract by failing to take delivery of the grain by April 1, 1975, and by failing to pay the agreed price.

Jon-T answered, alleging, inter alia, that Perryton Equity had not tendered delivery of the grain.

Perryton Equity replied by supplemental petition. It alleged that the written confirmation of sale was supplemented by a course of dealing under prior contracts by which Jon-T would communicate to Perry-ton Equity that Jon-T wanted to start picking up grain on a particular contract on a certain date. Perryton Equity would then load the trucks free on board at its elevators. Perryton Equity also alleged an agreement by Jon-T in January 1975 that Jon-T would get back in touch with Perry-ton Equity when it wanted to start taking delivery under Confirmation of Sale 4407. Perryton Equity alleged that Jon-T never communicated to Perryton Equity that it would take delivery or pay the agreed price and that Perryton Equity was thus entitled to suspend its own performance and was not required to go through the useless act of tendering delivery.

Jon-T then affirmatively pleaded that the course of dealing and the January 1975 agreement, alleged by Perryton Equity, violate Sections 2.201, 2.202 and 2.209 of the Texas Business and Commerce Code. Jon-T has raised no question on appeal related to this affirmative plea.

The case was tried to a jury which made the following findings to correspondingly numbered issues:

1(a). Jon-T and Perryton Equity Exchange agreed on January 13, 1975, that Jon-T would notify Per-ryton Equity Exchange when Jon-T would take delivery under the contract.
1(c). Jon-T failed to notify Perryton Equity Exchange when Jon-T would take delivery under the contract.
1(d). By such failure to notify, Jon-T committed an anticipatory repudiation of the contract.
1(e). Such anticipatory repudiation impaired the value of the contract to Perryton Equity Exchange.
1(f). When Jon-T repudiated the contract, Perryton Equity Exchange' was ready, willing and able to perform the contract.

■ Special Issue No. 1(b) inquired if there was a course of dealing between the parties that amounted to an agreement that Jon-T would notify Perryton Exchange of the time that it would take delivery under the contract in question. This issue was not answered by the jury because the duty of the jury to answer was conditioned on a failure to find the agreement to notify inquired about in Special Issue No. 1(a).

The trial court entered judgment on the verdict. On appeal Jon-T challenges the judgment only on the grounds of the legal and factual insufficiency of the'evidence to support the jury answer to Special Issue 1(d). Jon-T asserts that a failure to notify cannot be an anticipatory breach as a matter of law. Jon-T does not challenge the other jury findings, including findings that it agreed to notify Perryton Equity when it would take delivery under the contract and that it failed to do so.

Perryton Equity contends that the judgment is supported by the unchallenged jury findings. If Perryton Equity is correct in its contention, the answer to Special Issue 1(d) is immaterial and we will not reach Jon-T’s points of error with regard to it in determining this appeal. Therefore, we first consider whether under the unchallenged findings, considered with the uncon-troverted facts, Jon-T breached the contract by failing to take delivery of the grain by April 1, 1975, and by failing to pay the agreed price.

It is undisputed that Jon-T did not take delivery or pay for the grain. Nevertheless, the general rule is that tender of delivery is a condition to the duty to accept the goods. Tex. Bus. & Comm. Code Ann. § 2.301 (Tex. U.C.C.1968). The question for determination in the case before us is whether tender of delivery was excused by Jon-T’s failure to notify Perryton Equity that it was ready to receive the grain. Section 2.311 of the Business and Commerce Code addresses the problem which occurs when the contract leaves particulars of the performance to be specified by one of the parties and the specification is not made. The Code provides:

§ 2.311. Options and Cooperation Respecting Performance

‡ ‡ ⅜ ⅛ ⅜ ⅜
(c) Where such specification would materially affect the other party’s performance but is not seasonably made or where one party’s cooperation is necessary to the agreed performance of the other but is not seasonably forthcoming, the other party in addition to all other remedies
(1) is excused for any resulting delay in his own performance;, and
(2) may also either proceed to perform in any reasonable manner or after the time for a material part of his own performance treat the failure to specify or to cooperate as a breach by failure to deliver or accept the goods.

This provision of the Code is consistent with the general rule in 77 C.J.S. Sales § 138 as follows:

Compliance with a provision in a contract of sale for notice of the buyer’s readiness to receive the goods is a condition precedent to delivery. If the contract provides for the giving of directions in respect of the manufacture of the goods, or requires shipping directions to be given by the buyer, such conditions must be complied with unless waived; and failure to order or give shipping directions is a breach of the contract on the part of the buyer.

The duty of the buyer where he is to fix the time of delivery is discussed in 67 Am. Jur.2d Sales § 326 as follows:

Where the buyer is given an option to fix the time or place of delivery, he must give due notice to the seller of his exercise of this option, and the seller is under no obligation to tender the goods in order to hold the buyer liable for a breach of the contract, although he must have the goods in readiness for delivery in order to hold the buyer so liable.

The general rule was applied by the court in Bell v. Hatfield, 121 Ky. 560, 89 S.W. 544 (Ky.Ct.App., 1905). In that case a contract for the sale of cattle required delivery on a certain day or a few days thereafter, the buyer to notify the seller of the day when he would receive the cattle. The court held that a tender by the seller was not a condition precedent to an action for breach of contract, the buyer not having designated any day. Among other cases applying the rule are L. Grauman Soda Fountain Co., Inc., v. Etter, 41 Ariz. 151, 16 P.2d 417, 419 (1932) and Internatio-Rotterdam, Inc., v. River Brand Rice Mills, Inc., 259 F.2d 137, 140 (2d Cir.1958). See also Fortson Grocery Co. v. Pritchard Rice Milling Co., 220 S.W. 1116 (Tex.Civ.App.—Texarkana 1920, writ ref’d).

Applying the foregoing authorities to the case before us, we are of the opinion Perry-ton Equity was not required to tender delivery until Jon-T notified Perryton Equity that it was ready for delivery and that the uncontroverted facts together with the unchallenged findings of the jury support the judgment of the trial court. The judgment is accordingly affirmed.


author: GUITTARD, Chief Justice.

text:
    Robert Ray MUNS, Appellant, v. Doris Lee MUNS, Appellee.
    No. 19439.
    Court of Civil Appeals of Texas, Dallas.
    May 23, 1978.

      Charles E. Tobin, Dallas, for appellant.
    Paul M. Rothermel, Jr., Dallas, for appel-lee.
   GUITTARD, Chief Justice.

Robert Muns appeals from the property division in a divorce decree. He contends that the trial court erred in awarding Doris Muns twenty-five percent of his military retirement benefits which, he asserts, are his separate property because of the parties’ residence in common-law property states during most of the period of his military service. We affirm on the ground that under section 3.63 of the Texas Family Code (Vernon 1975), the trial court had authority to award the wife a substantial interest in the retirement benefits, even though they may have been mostly separate property.

Before considering the property question, we note that in a supplemental brief filed after oral argument, appellant Robert Muns complains of the trial court’s failure, to file findings of fact, notwithstanding his timely request and reminder as provided by rules 296 and 297 of the Texas Rules of Civil Procedure. After this supplemental brief was filed, counsel for appel-lee obtained from the trial judge findings and conclusions, which were filed in the trial court and were presented here in a supplemental transcript. Over appellant’s objections, we permitted the supplemental transcript to be filed under authority of rules 428 and 429 of the Texas Rules of Civil Procedure. Appellant does not suggest that he has been prejudiced by the late filing of the findings and conclusions, and neither has he requested rebriefing or rear-gument. Consequently, we hold that no reversible error is shown in this respect. Layton v. Layton, 538 S.W.2d 642, 643 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.).

Among the trial court’s conclusions is a statement that the divorce decree “divided the estate of the parties in a manner that is just and right, having due regard to the rights of each party based upon the assets of the parties, less the liabilities, without regard to whether the property so divided was community, separate or mixed.” Appellant Robert Muns contends that the court erred in awarding twenty-five percent of the retirement benefits to Doris because the parties had resided in common-law states for fourteen of the fifteen years of their marriage and the right to receive such benefits had vested when they were living in a common-law state. This argument assumes that the court’s discretion in dividing the property did not extend to awarding to Doris any part of Robert’s separate property.

We conclude that the court has discretion under section 3.63 of the Family Code to invade the separate property of one spouse for the benefit of the other when necessary to a just and fair division. This rule has been applied in a number of cases under the Code. Trader v. Trader, 531 S.W.2d 189, 190 (Tex.Civ.App. — San Antonio 1975, writ dism’d); Zaruba v. Zaruba, 498 S.W.2d 695, 699 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229, 232 (Tex.Civ.App.—Houston [1st Dist.] 1974). The rule Is stated also in Eichelberger v. Eichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App.—Waco 1977, writ dism’d); Musslewhite v. Musslewhite, 555 S.W.2d 894, 897 (Tex.Civ.App.— Tyler 1977, writ dism’d); and Ramirez v. Ramirez, 524 S.W.2d 767, 768-69 (Tex.Civ. App.—Corpus Christi 1975, no writ). The same rule was followed under former article 4638 of the Texas Revised Civil Statutes of 1925. Goldberg v. Goldberg, 392 S.W.2d 168, 170 (Tex.Civ.App.—Fort Worth 1965, no writ); Grant v. Grant, 351 S.W.2d 897, 898 (Tex.Civ.App.—Waco 1961, writ dism’d). Other authorities so construing the former statute are Bryant v. Bryant, 478 S.W.2d 602, 605 (Tex.Civ.App.—Waco 1972, no writ); Dorfman v. Dorfman, 457 S.W.2d 91,95 (Tex.Civ.App.—Waco 1970, no writ); and Dillingham v. Dillingham, 434 S.W.2d 459, 461 (Tex.Civ.App.—Fort Worth 1968, writ dism’d).

The leading authority cited in the above cases in support of the rule that separate personal property may be invaded in the division of property on divorce is Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). The actual holding in that case was that a divorce decree may award the wife the right to occupy as a homestead during her life a tract of land owned by the husband as his separate property. In explaining that decision, the supreme court discussed in detail the statutory language now contained in section 3.63 of the Family Code and gave that language an interpretation that has long been regarded as authoritative. The court said that the estate subject to division between divorcing spouses includes “all property of the parties, whether community or separate property” and that although neither party can be divested of the title to real estate because of the express prohibition in the statute (not found in present section 3.63), the court “may award all the personal property to either spouse, and may subject the income, rent, or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.” Id. at 22. Commenting further on the statute, the court said:

Its language ought, to be given the meaning uniformly ascribed to it by this court, and that is, that the court pronouncing a decree of divorce is invested with wide discretion in disposing of any and all property of the parties, separate or community, and that its action, in the exercise of such discretion, should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair.

Id. at 23.

The Hedtke interpretation was reaffirmed in Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939), in which the supreme court stated that a trust may be imposed on the husband’s separate real estate for the benefit of the wife. Under such an arrangement, of course, the former wife would have the benefit of the rents, to which she would have no community-property claim after divorce.

The Family Code contains no language indicating an intention to restrict the broad range of discretion allowed under the earlier statute, as interpreted in Hedtke and the decisions based on Hedtke. The only change from former article 4638 in section 3.63 was elimination of the express prohibition of divestment of title to the real estate. Whether this change has the effect of permitting divestment of title to separate real .estate was decided by the supreme court in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). A majority of the court held that in this respect the Code did not change the law. Although some of the court’s reasoning, particularly its treatment of the issue of constitutional restrictions on divestment of property rights and its characterization of a portion of the Hedtke opinion as “dictum,” would seem to apply also to separate personal property, the court did not mention the different treatment historically given to separate personal property. Acceptance of the view that a different rule applies to personal property is suggested by the court’s express approval of Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ), in which the Corpus Christi Court of Civil Appeals stated that the restriction on divestment of either spouse’s separate property relates only to separate real property, whereas courts have wide discretion in disposing of any and all personal property of the parties, separate or community. Id. at 769. The intent of the reference to Ramirez in the Eggemeyer opinion is not clear, however, since the supreme court limited its express approval to the actual decision in Ramirez, which was that the change in the statute did not change the law with respect to divestment of title to real estate.

The problem of invading separate personal property was discussed in Eichelberger v. Eichelberger, supra, in which the wife was awarded a share in disability and pension benefits. The Waco Court of Civil Appeals, though recognizing that such benefits were subject to division as community property, actually applied the rule that the court “may award all or a part of either’s separate personal property to the other,” citing Hedtke. The court rejected the contention that this rule had been abolished in Eggem-eyer and noted that the supreme court in Eggemeyer had agreed with the Ramirez decision, which had restated the rule announced in the Hedtke opinion relating to division of the parties’ separate property.

A ease more nearly in point, though decided before Eggemeyer, is Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex.Civ.App.—Austin 1975, no writ). That case, like the present, involved retirement pay of a husband who had lived with his wife in both community-property and common-law states. The opinion does not show where they lived when he became eligible for retirement. Affirming an award to the wife of one-half of the benefits, the Austin court held that “a portion of the husband’s separate property may be awarded to the wife where circumstances make such an award necessary for a fair and just division of the property.” Id. at 798. We have found no case authority to the contrary.

This statement from Whittenburg represents the established rule as we understand it from the authorities above cited unless all those authorities must be considered to have been inferentially disapproved in Eggemeyer. We conclude, as did the Eichelberger court, that the holding in Eggemeyer is limited to separate real estate, which was the only kind of property mentioned in the Eggemeyer opinion. The whole force of the majority opinion in Eg-gemeyer is directed to a demonstration that the legislature did not intend to change the law concerning division of property in divorce cases by omitting from section 3.63 of the Family Code the express prohibition of divestment of separate real estate in former article 4638. Although the majority opinion expressly disapproves a number of decisions of the courts of civil appeals concerning real estate, it does not mention those cited in the Ramirez opinion that follow the Hedtke interpretation with respect to separate personal property. It seems to us unlikely that the supreme court intended to disapprove that entire line of cases.

Although different legal treatment of real and personal property may seem obsolete in an industrial society, this distinction has deep roots in our agrarian heritage and has been prominent from earliest timos in both the English common law and the Spanish civil law. There is good reason to continue the distinction with respect to the discretion of the court in making a division of property in a divorce decree, particularly in the case of retirement benefits. The principle may be illustrated by an extreme but not improbable example. Suppose the husband and wife have lived in a common-law state until the husband became eligible for retirement, and then they establish a residence for their declining years in the more benign environment of Texas. Difficulties develop here, and the wife seeks a divorce, but she has little earning capacity and no property. Back in the home state a divorce court could have done equity by granting alimony, but no such remedy is available in Texas, where it is assumed that property accumulated during marriage belongs to both spouses. If the Texas court cannot reach the husband’s separate property, it has no choice but to leave the wife with no means of support. Certainly, there is no Texas case actually holding that the court would not be able to do what it deems just and right in such a situation, and we see no reason why such a restriction should be imposed now.

Of course, the example given is not the present case, but the difference is one of degree. If the court has discretion in any case to include separate personal property in the division, the question is whether that discretion has been abused. We conclude that it has not been abused here. Robert’s earnings exceed $11,000 per year, while Doris earns only $7,665. On the other hand, Robert has custody of three of the children and the full obligation to support them without contributions from Doris, while Doris has the custody of one child soon to turn eighteen. The divorce decree divides other property, including a residence, a mobile-trailer home, several vehicles, and insurance policies. No findings were made concerning values, but Robert does not complain that the division was unequal or disproportionate. The retirement benefits of $422 per month, or $5,062 per year, were divided seventy-five percent to Robert and twenty-five percent to Doris. His greater share of these benefits seems reasonable in view of his greater obligation to support the children, but we cannot say that the trial judge abused his discretion, if discretion he had, in failing to award them all to him. Since, for reasons above stated, we conclude that the judge did have such discretion, even though such benefits may have been separate property, we hold that no abuse of discretion is shown.

We recognize that in the main the wife must look to the community property for her share of the material gains incident to an ill-starred marriage. McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 724 (1961). Consequently, the separate property of each spouse should be restored to the respective owner in absence of circumstances justifying an invasion of one spouse’s separate personal property. Fuhrman v. Fuhrman, 302 S.W.2d 205, 213 (Tex.Civ.App.—El Paso 1957, error dismissed).. Nevertheless, where the trial judge has made the finding that the estate of the parties has been divided in a manner that is fair, just, and equitable, the fact that he may have erred in concluding that certain property was community rather than separate will not necessarily result in reversal. Cooper v. Cooper, 513 S.W.2d 229, 233 (Tex.Civ.App. — Houston [1st Dist.] 1974); Dillingham v. Dillingham, 434 S.W.2d 459, 461 (Tex.Civ.App.—Fort Worth 1968, writ dism’d).

Invasion of separate personal property is proper only when necessary to a division that is “just and right” under the circumstances. Trader v. Trader, 531 S.W.2d 189, 190 (Tex.Civ.App. — San Antonio 1975, writ dism’d). Consequently, in some cases, the court’s discretion may be abused if the record shows that such an invasion is not necessary to such a division. The better practice is for the court first to characterize any property claimed as separate and then to determine whether extraordinary circumstances exist justifying invasion of the separate property of one spouse for the benefit of the other. On appeal, however, the appellant has the burden of establishing an abuse of discretion, and, therefore, must show that the court’s failure to characterize the property resulted in a division that is not “just and right.” See Musslewhite v. Musslewhite, 555 S.W.2d 894, 897 (Tex.Civ.App.—Tyler 1977, writ dism’d); cf. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974) (failure to determine wife’s community claim for appreciation of stock awarded to husband not reversible). Here the judge did not determine whether the retirement benefits were separate or community, and made no express finding that invasion of the husband’s separate property was necessary to a division that is just and right. The judge did state his conclusion, however, that the division made in the decree was “just and right .■ . . without regard to whether the property so divided was community, separate or mixed.” We interpret this conclusion as a finding that an award of twenty-five percent of the retirement benefits to the wife is necessary to a division that is “just and right” under all the circumstances, even if such benefits are considered as the husband’s separate property. In view of the circumstances discussed above, we hold that no abuse of discretion is shown.

Affirmed.

      . Section 3.63 is as follows: “In a decree of divorce or annulment the court shall order a division of the.estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”


author: CADENA, Chief Justice.

text:
    I. S., INC., d/b/a International System, Appellant, v. I. C. O., INC., et al., Appellees.
    No. 16048.
    Court of Civil Appeals of Texas, San Antonio.
    May 24, 1978.
    Rehearing Denied June 21, 1978.
    Thomas Rocha, Jr., Louis T. Rosenberg, San Antonio, for appellant.
    Les Mendelsohn, San Antonio, for appel-lees.
   CADENA, Chief Justice.

Appellees have moved to dismiss appellant’s appeal on the ground that appellant failed to file an appeal bond within 30 days after appellant’s motion for new trial had been overruled by operation of law, as required by Rule 356(a), Tex.R.Civ.P. (1977).

Appellant was plaintiff below. A judgment that plaintiff take nothing was signed and entered on November 29,1977. Appellant filed its motion for new trial on December 2, 1977, and a hearing on such motion was held on January 6,1978. An order overruling the motion for new trial was signed and entered on February 6, 1978. However, in the absence of the written agreement provided for in paragraph 3 of Rule 329b postponing decision on the motion to a date certain specifically set out in such agreement, the motion for new trial, under the provisions of paragraph 4 of Rule 329b, was overruled by operation of law on January 16,1978, 45 days after it was filed. If the date for determining the time within which the various steps necessary to invoke the appellate jurisdiction of this Court is January 16, 1978, it is clear that the appeal bond filed by appellant on February 27, 1978, was not filed within the time prescribed by Rule 356(a).

Appellant contends that the appeal bond was timely filed because on February 6, 1978, the trial court entered a judgment nunc pro tunc, so that the times within which the appellate steps were required to be taken must be calculated from February 6, 1978.

The judgment entered on November 29, 1977, after reciting that all parties had appeared in court personally and by their attorneys on October 10,1977, had announced ready; and had waived trial by jury, states that the court, after reading the pleadings and hearing the evidence and argument of counsel, “finds the following”. This is followed by a recital of ten findings of fact. After the recital of the findings of fact, the judgment continues: “It is, therefore, ordered, adjudged and decreed by the Court that Plaintiff I. S. Inc., d/b/a International Systems, take nothing by this suit against Defendants, I.C.O., INC., d/b/a Industrial Construction Concepts in Planning and Design, La Quinta Motor Inns, Inc., Sepp Firn-kas, Individually, and Sepp Firnkas, Inc.; that Defendants be dismissed; that court costs be taxed against Defendant I.C.O., INC., and execution shall issue if not timely paid.”

The judgment entered on February 6, 1978, recites that on January 9, 1978, plaintiff and defendants filed a joint motion that “judgment be amended nunc pro tunc, as to the date of entry thereof * * *.” This is followed by a recital that the judgment entered on November 29, 1977, “is not in conformity with the judgment as rendered herein on October 10, 1977, and that the entry of the judgment should be reformed; * * * yy

The February 6, 1978, judgment then orders, adjudges and decrees “that the joint motion of the parties that the judgment herein be amended nunc pro tunc as of the date of entry thereof and the same is hereby granted, and that the judgment entered herein on November 29, 1977, be amended nunc pro tunc to read as follows * * * The “amended” judgment is then set out, enclosed in quotation marks. The amended judgment refers to the appearances of the parties in person and by attorneys. It states that after the parties had announced ready and had waived trial by jury, the court, after reading the pleadings and hearing the evidence and arguments of counsel, “is of the opinion that the following judgment should be rendered; it is, therefore, ordered, adjudged and decreed by the Court that Plaintiff, I. S. Inc., d/b/a International Systems, take nothing by this suit against Defendants, I.C.O., Inc. d/b/a Industrial Construction Concepts in Planning and Design, La Quinta Motor Inns, Inc., Sepp Firn-kas, individually, and Sepp Firnkas, Inc.; that Defendants be dismissed; that court costs be taxed against Defendant I.C.O., INC., and execution shall issue if not timely paid.”

It is clear that the operative effect of the “amended” judgment is identical to the operative effect of the first judgment. ' The judgment of November 29,1977, was to the effect that plaintiff take nothing against defendants, that defendants be “dismissed,” and that costs be taxed against defendant, I.C.O. Inc., with provision for execution if costs be not' timely paid. The “amended” judgment is to the effect that plaintiff take nothing against defendants, that defendants be dismissed, and that costs be taxed against defendant, I.C.O., Inc., with provision for execution if costs be not timely paid. The party named as plaintiff, against whom judgment was rendered, is the same in both judgments. The parties named as successful defendants are the same in both judgments. The party against whom costs were assessed is the same in both judgments.

The only difference in the two judgments is that the second judgment omits the ten specific findings which were set out in the first judgment. The deletion of the fact-finding recitals in the second judgment is irrelevant, since, even without such recitals, we would be compelled to presume that the trial court found every fact in such manner as to support the judgment if such findings find support in the evidence. Neill v. Kimbrough, 291 S.W.2d 777, 779 (Tex.Civ.App.—Eastland 1956, writ ref’d, n.r.e.). See also Rules 296 and 306, Tex.R.Civ.P. (1977); Roberson Farm Equipment Compa ny v. Hill, 514 S.W.2d 796, 801-02 (Tex.Civ.App.—Texarkana 1973, writ ref’d, n.r.e.); Forrester v. State, 459 S.W.2d 698, 700 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d, n.r.e.).

Since the second judgment had no material effect on the first judgment which it purported to “amend,” and did not affect the rights of the parties under the first judgment, it did not operate to enlarge the period during which the necessary appellate steps were required to be taken. The controlling date remained January 16, 1978, and the appeal bond was not filed within thirty days from that date. Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Talmadge Tinsley Co., Inc., v. Kerr, 541 S.W.2d 207 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.).

The appeal is dismissed.