text:
    NORTH SIDE BANK, Appellant, v. Margaret Elizabeth WACHENDORFER, Appellee.
    No. 17428.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 21, 1979.

      Schlanger, Cook, Cohn, Mills & Gross-berg, Craig S. Meredith, Houston, for appellant.
    Charles J. Brink, Houston, for appellee.
    Before EVANS, WARREN and WALLACE, JJ.
   WALLACE, Justice.

North Side Bank, appellant, appeals from an interlocutory order of the trial court appointing a receiver over real property on which appellant holds a lien. The original cause below was a divorce proceeding in which appellee Tom Wachendorfer was petitioner and cross-respondent and appellee Margaret Wachendorfer was respondent and cross-petitioner. On February 2, 1979, the trial court entered its decree of divorce awarding appellee Margaret Wachendorfer an undivided one-half interest in the property in question. Prior to that time appel-lee Tom Wachendorfer was the record legal title holder to the property and grantor in a deed of trust executed on behalf of appellant. This deed of trust secured Tom Wa-chendorfer’s guarantee of payment on a promissory note in the principal sum of $178,400.00, representing a loan made by appellant to a company known as Jagemen, Inc., of which appellee Tom Wachendorfer was the owner. The proceeds of this loan were expended on making improvements on the subject property. This deed of trust covers the land, building and fixtures over which the receiver was appointed.

Payments on the note were in default and appellant made demand for payment to the maker and all guarantors on November 30, 1978. No payments were made subsequent to the notification and the property was posted for a trustee’s sale to be conducted on February 6, 1979. On that same day, appellee Margaret Wachendorfer filed a petition for appointment of a receiver. After an ex parte hearing without notice to appellant, the trial court granted the motion and appointed a receiver and restrained the proposed foreclosure sale.

Appellant’s first point of error complains of the trial court’s appointing a receiver in the instant case with no notice to appellant. A trial court has the discretion to appoint a receiver ex parte and without notice under certain circumstances. There are stringent guidelines under which this action may be taken as set out in Best Investment Co. v. Whirley, 536 S.W.2d 578 (Tex.Civ.App. — Dallas 1976, no writ):

In recognition of the fact that appointment of a receiver without notice is one of the most drastic actions known to the law or equity and should be exercised with extreme caution and only where great emergency or imperative necessity requires it, our courts have uniformly been reluctant to grant such harsh relief. Morris v. North Fort Worth State Bank, 300 S.W.2d 314 (Tex.Civ.App. — Fort Worth, 1957, no writ). It has been held that appointment of receivers on ex parte application is to be made only in exceptional and extreme cases, Solomon v. Matthews, 238 S.W. 307 (Tex.Civ.App.— Amarillo, 1922, no writ); and that appointment of a receiver without notice to adverse party is one of the most drastic remedies known to the court and should be exercised only in extreme cases where right thereto is clearly shown and only then in exercise of great caution by the courts when the status of the property cannot be maintained and rights of applicants protected pending a hearing by a restraining order or temporary injunction or any less drastic remedy. Head v. Roberts, 291 S.W.2d 483 (Tex.Civ.App. — Fort Worth 1956, no writ); Marion v. Marion, 205 S.W.2d 426 (Tex.Civ.App. — San Antonio, 1947, no writ); Wilkenfeld v. State, 189 S.W.2d 80 (Tex.Civ.App. — Galveston 1945, no writ); Keep ’Em Eating Co. v. Hillings, 165 S.W.2d 211 (Tex.Civ.App.— Austin 1942, no writ); Hunt v. State, 48 S.W.2d 466 (Tex.Civ.App. — Austin 1932, no writ). A receiver may be appointed without notice or opportunity for adverse party to be heard only in extreme cases wherein there is great emergency and imperious necessity for immediate appointment; Johnson v. Williams, 109 S.W.2d 213 (Tex.Civ.App. — Dallas 1937, no writ); Life & Loan Ass’n v. Cremona, 66 S.W.2d 762 (Tex.Civ.App. — Dallas 1933, no writ).

Appellee’s petition for appointment of a receiver alleged that a trustee’s sale was scheduled on the same day and that “Respondent Margaret Elizabeth Wachendorfer has not been duly notified of this proposed trustee sale by the trustee in derogation of her rights in the community property. Her only knowledge of the sale was derived from a letter suggesting that such foreclosure might occur.”

Appellant contends that the appointment of a receiver ex parte in the instant case is violative of the provisions of Rule 695, T.R.C.P. which states:

“Except where otherwise provided by statute, no receiver shall be appointed without notice to take charge of property which is fixed and immovable. When an application for appointment of a receiver to take possession of property of this type is filed, the judge or court shall set the same down for hearing and notice of such hearing by serving notice thereof not less than three days prior to such hearing

Real Estate is “fixed and immovable property” within the meaning of Rule 695. Continental Homes Co. v. Hilltown Property Owners Association, Inc., 529 S.W.2d 293 (Tex.Civ.App. — Fort Worth 1975, no writ). We find no authority which would alleviate appellee’s obligation to give appellant notice of the right to be heard on her application before the receiver was appointed as required by Rule 695. Appointment of a receiver without notice is expressly forbidden where immovable property is involved. Marion v. Marion, 205 S.W.2d 426 (Tex.Civ. App. — San Antonio 1947, no writ).

Appellant’s point of error No. 1 is sustained.

Appellant’s second point of error complains of the trial court’s appointing a receiver without notice when the rights of appellees could have been protected with less drastic measures.

Appointment of a receiver is not proper where a less drastic remedy is available to protect the property. Associated Bankers Credit Company v. Meis, 456 S.W .2d 744 (Tex.Civ.App. — Corpus Christi 1970, no writ); Solomon v. Mathews, 238 S.W. 807 (Tex.Civ.App. — Amarillo 1922, no writ); 65 Am.Jur.2d Receivers § 98, (1973). The allegations set forth in appellee Margaret Waehendorfer’s application for appointment of a receiver complained that a trustee sale was imminent and that she had not been given proper notice thereof. A temporary restraining order would have effectively prevented the trustee’s sale until notice could have been given and a hearing conducted giving appellant an opportunity to be heard. This would have been a less drastic measure and yet would have afforded appellee all the relief prayed for in her application. City Nat. Bank v. Pigg, 63 S.W.2d 327 (Tex.Civ.App. — Amarillo 1933, no writ); Marion v. Marion, supra. Appellant’s second point of error is sustained.

By its point of error No. 11, appellant complained of the trial court’s appointing of a receiver of property on the application of the owner of that property.

It is appellant’s position that Article 2318, Tex.Rev. Civil Statutes Annotated, prohibits an appointment of a receiver on the application of the owner of the property. That Article provides in pertinent part:

“No receiver of a joint stock or incorporated company, co-partnership or private person shall ever be appointed on the petition of such joint stock or incorporated company, partnership or person . . ”

It would appear from a literal reading of the above quoted statute that Margaret Wachendorfer was a co-owner of the property in question and, therefore, Article 2318 would be applicable to this situation. Our courts have held that an application for a receiver made contrary to Article 2318 is voidable upon a timely direct attack notwithstanding that a joint interest in the property is established. Spence v. State National Bank of El Paso, 5 S.W.2d 754 (Tex.Comm’n App.1928, opinion adopted); Buck v. Johnson, 495 S.W.2d 291 (Tex.Civ. App. — Waco 1973, no writ). Article 1926a § 1.03(a) V.T.C.S. provides:

“A family district court has the jurisdiction and power provided for district courts by the laws of this state. Its jurisdiction is concurrent with that of other district courts in the country in which it is located.”

Article 2818 is, then equally binding on family district courts. Although Texas courts hearing a divorce action have the equitable power to grant a receivership over the marital estate where it is necessary, Article 2818 limits this power to appoint a receiver where it is sought by the owner of the marital property against a third party creditor. Appellant’s eleventh point of error is sustained.

Appellant’s points of error 6, 7, and 8 complain of the action of the trial court in issuing a temporary injunction without notice to the appellants, without giving appellant an opportunity for a hearing, and without requiring the filing of a bond by appel-lees. Appellees contend that the restraining language used in the court’s order does not constitute an injunction but is merely descriptive of the legal effect of the appointment of a receiver. The language in question is as follows:

“. . . Further that this appointment of a receiver of said properties shall have the effect of restraining Frank D. Jame-son, Trustee, acting on behalf of North Side Bank, its officers, agents, employees or attorneys from conducting the trustee sale on Tuesday, February 6, 1979, and further from employing any manner of self-help ordinarily utilized in same or similar circumstances;”

This language goes further than describing the legal effect of the appointment of a receiver. An injunction is defined as “a judicial order or process, operating upon the person to whom it is directed to do or refrain from doing some designated thing”. Lucas v. Lucas, 365 S.W.2d 372 (Tex.Civ. App. — Beaumont 1962, no writ). The above language meets this test and the trial court was thus required to follow the procedures for granting a temporary injunction before issuing this order. Since the restraining portion of the order set no time limit, it in effect was a temporary injunction as opposed to a temporary restraining order and was in violation of Rule 681 T.R.C.P. which states: “No temporary injunction shall be issued without notice to the adverse party”. City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866 (Tex.Civ.App.— Houston [14th Dist.] 1975, writ ref’d n. r. e.); Worman v. Thompson, 498 S.W.2d 507 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ).

Rule 693a permits the court in a divorce court to dispense with a bond in a ease where an injunction is sought in behalf of one spouse against the other. However, Couch Mtg. Co. v. Hughes, 536 S.W.2d 70 (Tex.Civ.App. — Houston [1st Dist.] 1976, no writ) holds that Rule 693a is not applicable except in cases where the injunction is sought in a divorce action in behalf of one spouse against the other. Rule 684 is thus applicable to the present case and required that a bond be executed as a condition precedent to the issuance of a temporary injunction. In the absence of such bond the injunction is void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970). Appellant’s points of error 6, 7, and 8 are sustained.

Judgment of the trial court is reversed, and judgment is here rendered dissolving the receivership and temporary injunction.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. Loyd BURNETT, Appellee.
    No. 8685.
    Court of Civil Appeals of Texas, Texarkana.
    June 26, 1979.

      Lancaster Smith, Harvey L. Davis, Dallas, for appellant.
    Thomas A. Blakeley, Jr., Grady, Johnson, Blakeley, Johnson & Smith, Dallas, for ap-pellee.
   CORNELIUS, Chief Justice.

In this worker’s compensation suit Loyd Burnett recovered judgment for $7,571.20, representing benefits for partial incapacity. The judgment was based upon jury findings that, after a period of total incapacity for which benefits had already been paid, Burnett continued to suffer partial incapacity from January 16, 1976, until January 81, 1978, and that his average weekly wage earning capacity during such period was reduced from $276.46 to $75.00. American Home argues that those jury findings cannot be sustained on appeal because the undisputed evidence showed that Burnett worked for the same employer during nearly all of the period of claimed disability making a higher wage than he did before his injury, and all the testimony from medical experts agreed that no objective indication of injury or disability was found in Burnett during the time in question.

Although the worker’s compensation act speaks in terms of incapacity, it is designed, as far as general injuries are concerned, to compensate a worker for his loss in wage earning capacity, not for actual loss of wages. Employers Reinsurance Corporation v. Holland, 162 Tex. 894, 347 S.W.2d 605 (1961); Electric Mutual Liability Ins. Co. v. White, 579 S.W.2d 946 (Tex.Civ.App. Houston-1st Dist. 1979, no writ). Indeed, the approved definition of “wage earning capacity” and the definition given by the trial court in this cause, is that

“ ‘EARNING CAPACITY’ means ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed. It does not necessarily mean the actual wages, income, or other benefits received during the period inquired about." See Texas Pattern Jury Charges, Vol. 2, P. 62 (1970).

The fact, then, that a worker continues to work during the claimed period of incapacity and earns as much or even more money than before his injury does not, as a matter of law, mean that he has not suffered a reduction in earning capacity. It is but a circumstance to be considered by the fact finder in determining whether a loss in earning capacity has occurred. Electric Mutual Liability Ins. Co. v. White, supra; Texas Employers’ Ins. Ass’n. v. Armstrong, 572 S.W.2d 565 (Tex.Civ.App. Eastland 1978, no writ); Texas General Indemnity Company v. Hope, 461 S.W.2d 481 (Tex.Civ. App. Eastland 1970, writ ref’d n. r. e.); Travelers Insurance Company v. Walkovak, 390 S.W.2d 75 (Tex.Civ.App. Houston 1965, writ ref’d n. r. e.); American General Insurance Company v. Bailey, 287 S.W.2d 290 (Tex.Civ.App. Galveston 1956, writ ref’d n. r. e.); Trinity Universal Ins. Co. v. Rose, 217 S.W.2d 425 (Tex.Civ.App. Eastland 1949, writ ref’d n. r. e.); Great American Indemnity Company v. Segal, 229 F.2d 845 (5th Cir. 1956). American Home recognizes the correctness of the foregoing proposition but insists that the evidence of Burnett’s working during the entire period of claimed partial incapacity at higher wages than he previously earned, together with the lack of objective findings of physical disability, or any evidence of Burnett’s inability to obtain and hold employment, render the jury findings of partial incapacity and reduced earning capacity without any support in the evidence, or at least against the great weight and preponderance of the evidence. We cannot agree.

Burnett testified that he injured his back while lifting boxes of hams for his employer, Decker & Company. He reported the injury and immediately went to the hospital. He remained off work for sixteen weeks after the injury and was treated by three physicians. He stated that, although he was not well and was still suffering pain, he returned to work on January 16, 1976, because he could not afford to stay off longer. He testified that after returning to work he could not, without pain, do the lifting work that he previously did and that he was in pain much of the time. He was hospitalized again in November of 1976 and missed two weeks of work. He continued to see Dr. Selby. In the summer of 1977 he lost another five weeks of work. Since then he has not lost any significant time from work but has called in sick on those times when the pain was so bad that he could not go to work. He testified that during the claimed period of partial disability, he missed several opportunities for overtime work because he was not able to do it. He has seniority at Decker and he stated that if he were to get laid off there the best he could do would be light work at $2.00 or $3.00 per hour as compared to the $7.31 per hour he makes at Decker. Although none of the doctors could find any objective indication of disability in Burnett during the period in question, Dr. Selby estimated that he had suffered a permanent 10% disability. He recommended a rhizotomy which kills the pain and the nerves in the affected area of the body, but Burnett would not take that treatment because he was afraid it would paralyze him. One of Burnett’s coworkers testified that he had observed Burnett having difficulty on the job bending and straightening up as if his back was hurting him, and Mrs. Burnett corroborated her husband’s testimony about his pain and inability to do any lifting.

Direct evidence of disability resulting in a reduction of earning capacity is not required, but the fact may be established by circumstantial evidence and upon the testimony of lay witnesses alone, even though it is contradicted by the testimony of medical experts. Rowland v. Standard Fire Insurance Company, 489 S.W.2d 151 (Tex.Civ.App. Houston-14th Dist. 1972, writ ref’d n. r. e.); Commercial Insurance Co. of Newark, N. J. v. Lane, 480 S.W.2d 781 (Tex.Civ.App. Dallas 1972, writ ref’d n. r. e.); Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App. Dallas 1963, writ ref’d n. r. e.). Likewise, direct evidence of the extent of the reduction of earning capacity is not absolutely necessary. Because of the uncertain nature of the damages suffered, the jury is allowed great latitude in arriving at the compensation to be awarded. Commercial Insurance Co. of Newark, N. J. v. Lane, supra. And the same evidence which will allow a jury to estimate a percentage of disability may also be considered in estimating the extent of a reduction in earning capacity. Fidelity & Casualty Co. of New York v. Read, 433 S.W.2d 797 (Tex.Civ.App. Waco 1968, writ ref’d n. r. e.).

In addition to general evidence of disability, there was in this case some evidence from which it could be inferred that, except for his relationship and position of seniority with his employer, Decker & Company, Burnett would have been able to earn during the period in question only $2.00 or $3.00 per hour. The jury could reasonably deduce from all of that evidence that he had suffered a reduction in his earning capacity to the figure of $75.00 per week. We cannot say that such a finding is without any support in the evidence or that it is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The judgment is affirmed.


author: WARD, Justice.

text:
    Robert E. HAUSMANN et ux., Appellants, v. TEXAS SAVINGS & LOAN ASSOCIATION et al., Appellees.
    No. 6778.
    Court of Civil Appeals of Texas, El Paso.
    June 27, 1979.
    Rehearing Denied Aug. 22, 1979.

      Key, Car, Evans & Fouts, Donald M. Hunt, Lubbock, for appellants.
    John R. Lee, Kermit, L. Holt Magee, Monahans, for appellees.
   OPINION

WARD, Justice.

Robert Hausmann and his wife, Lois Hausmann, as homeowners, sued to set aside a sale of property made under the power in a Deed of Trust. The Defendants were Texas Savings & Loan Association of Monahans, the noteholder; L. Holt Magee, the Trustee; and Carlton Woodson III, the purchaser at the foreclosure sale. Trial was to a jury, which found that both Haus-manns had actual notice of the sale and that the consideration paid by Woodson was not grossly inadequate. The trial Court then entered judgment determining that the Trustee’s sale was valid, that the Plaintiffs take nothing, and that the purchaser at the sale recover possession of the property and rents from the Plaintiffs. The Plaintiffs appeal, and we affirm.

Alfred and Sadie Brown acquired the property in 1967 and at that time executed the note in question, it being in the principal amount of $25,000.00, payable to Texas Savings & Loan Association of Monahans in monthly installments of $176.70 each, and providing for acceleration of maturity upon failure to pay any installment when due, or the failure to perform any of the agreements contained in the Deed of Trust.

The Deed of Trust executed by the Browns was to L. Holt Magee as Trustee, the Browns therein making the following pertinent covenants and agreements:

6. Should grantor fail or refuse to make prompt payment of the above described note as the same shall become due and payable . . . Association shall be entitled, without being under legal obligation to do so, to exercise the option of:
(b) Declaring the whole of the note immediately due and payable, with or without notice to GRANTOR and without presenting for payment any matured part of the indebtedness secured by this DEED OF TRUST, and cause trustee sale to be made.
7. Should ASSOCIATION elect to exercise the option of enforcing this trust by trustee’s sale as above provided, it shall be the duty of TRUSTEE . to sell the above described property, . first giving twenty-one (21) days public notice of the time, terms, and place of said sale and of the property to be sold, by notice given in the manner at such date required by the laws of the State of Texas for sale of real estate under deeds of trust . . . It is agreed that the recitals in the conveyance to the purchaser, or purchasers, shall be in full and conclusive evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyances shall be conclusive against GRANTOR, his heirs and assigns.

On February 12, 1973, the Browns sold the property to Mr. and Mrs! Hausmann by general warranty deed, the property being conveyed subject to the unpaid balance owed on the note and the Deed of Trust securing the same.

The Hausmanns moved into the property, which was located at 1502 South Eric in Monahans, and occupied it as their home. They were often delinquent in payments and by November, 1976, they were behind a total of four monthly payments; and according to the Defendants’ testimony, a letter was written to Mr. Hausmann on October 26th advising him of delinquencies and requesting payments before November 10th. No payments were forthcoming, and on November 15th the file was turned over to the Trustee and it was decided to proceed with foreclosure. At that same time, Mr. Hughes, the President of the Association, went to see Mr. Hausmann at his office and, finding him gone, talked with his assistant and left an adding machine tape showing the amount necessary to bring the loan current and requesting that Hausmann call him upon his return. Also on that date, the Trustee Magee wrote a letter to Mr. and Mrs. Hausmann at the 1502 South Eric address in Monahans, advising them that he had posted notice of foreclosure that day, the foreclosure to be had on December 7th. The letter was sent by certified mail and copy of notice of foreclosure was enclosed. According to the terms of an affidavit executed in compliance with Art. 3810, Tex. Rev.Civ.Stat.Ann. (Supp. 1978-1979), the letter was mailed on November 15th, although the envelope shows it was not postmarked until November 17th. That letter was eventually returned to the Association unclaimed. According to the Defendant’s testimony, on November 18th Mr. Haus-mann called Mr. Hughes, who advised him that the file had been turned over to Magee with instructions to post notice of foreclosure; that making up back payments would not be enough, and that the total balance that was due on the matured note would have to be paid, and Hausmann was advised of that amount. Thereafter, the Trustee conducted the sale on December 7th, and the property was sold to the Defendant Carlton Woodson III, for a cash consideration of $30,500.00.

In answer to the special issues submitted, the jury determined that both Mr. and Mrs. Hausmann were given proper written notice of the Trustee’s sale; that both Mr. and Mrs. Hausmann received actual notice of the date of the Trustee’s sale on November 17, 1976; that the consideration received for the sale of the real estate was not grossly inadequate; and that the reasonable monthly rental value of the real estate for the period commencing December 7th was $350.00 per month.

The Plaintiffs’ first point is to the effect that the Court erred in failing to set aside the foreclosure because the Association failed to give notice of election to accelerate the maturity of the note, that being a condition precedent without which the attempted foreclosure was wholly void. Regardless of whether or not an adequate notice was either given or required, this is the first time that the complaint concerning the improper acceleration of maturity has been urged. At no time during the trial was that complaint either presented or ruled upon, and it was not presented in the motion for new trial. Rule 324, Tex.R. Civ.P., effective January 1, 1978, abolishes the necessity of the motion for new trial as a prerequisite to the-right to complain on appeal, but it makes the following exception:

Notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.

This case was tried after the amended rule became effective. The point has not been preserved for review, and is overruled.

The second point tacitly recognizes what we have said about the new rule. It is to the effect that if we should overrule the first point, then this ease should be reversed because the facts have not been fully developed and the case was tried on the wrong theory, and it should be remanded for new trial in the interest of justice. Regardless, we are not authorized to reverse solely because the facts were not fully developed or because the case was tried on an erroneous theory. Henderson v. Gunter, 160 Tex. 267, 328 S.W.2d 868 (1959); Barnum v. Lopez, 471 S.W.2d 567 (Tex.1971). Those complaints can cause remand only in the event of reversible error. The point is overruled.

The next six points of error present the contention that there was no evidence or insufficient evidence to support the jury finding to Special Issue No. 2 that proper written notice was given to both Mr. and Mrs. Hausmann. These points contend that the notice was not sent to the most recent address, that the notice was not mailed twenty-one days before the foreclosure, and that separate letters should have been sent to the man and to his wife. In connection with the issue, the Court defined proper written notice by tracking the statutory language of Article 3810, Tex.Rev.Civ.Stat. Ann. (Supp. 1978-1979), which provides as follows:

Service of such [written] notice shall be completed upon the deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such debtor at the most recent address as shown by the records of the holder of the debt, in a post office

As has previously been noted, the general purpose of the statute was to provide a minimum level of protection for the debtor. Armenta v. Nussbaum, 519 S.W.2d 673 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.). See Forestier v. San Antonio Savings Association, 564 S.W.2d 160 (Tex.Civ.App. — El Paso 1978, writ ref’d n. r. e.). At the same time, the amended statute continues to be one which affords only constructive notice as opposed to actual notice of the foreclosure. The statute states that “the holder of the debt . shall at least 21 days preceding the date of sale serve written notice of the proposed sale by certified mail on each debtor obligated to pay such debt . . . ” Under the very terms of the statute, we are compelled to overrule the six points. The proof shows that Mr. and Mrs. Hausmann were not obligated to pay the debt. On the contrary, the proof establishes that by their deed of purchase the property was conveyed subject to the unpaid balance on the note and the Deed of Trust. The Hausmanns protected themselves in their purchase to the extent that they at no time would become personally liable to pay the obligation. By so doing, however, they did not bring themselves personally within the terms of the statute. The Hausmanns as purchasers of the real estate from the mortgagors and makers of the note were proper parties and could dispute the sale. 39 Tex.Jur.2d MORTGAGES AND TRUST DEEDS Section 157 at 211. The affidavit executed by the Trustee and which was filed in the deed records for the purpose of gaining the presumption set forth in Article 3810, Tex.Rev. Civ.Stat.Ann. (Supp. 1978-1979), recites that the notice of foreclosure was also mailed to Mr. and Mrs. Alfred L. Brown at their last known address on November 15, 1976, but no attack has been or is made on that recitation. The debtors obligated to pay the debt were served in compliance with the statute.

Regardless, we hold that the notice to the Hausmanns complied with the requirements of the statute as if they had qualified as “debtors obligated to pay the debt.”

The letter advising the Hausmanns that the property had been posted for foreclosure was sent to 1502 S. Eric, the street address of the property and where the Hausmanns actually lived on the date of the letter. The Trustee testified that this was the address in the tax records and he knew that they were living there because he drove by their home each day. Evidence was also presented that the Savings and Loan Association sent Mr. Hausmann at least two letters at this address which were not returned, the last one being the one sent on October 26 advising of the delinquency. The Savings and Loan Association also had two other addresses in their file, both of which were post office boxes, Numbers 1968 and 1541. Computer generated envelopes sent to the Hausmanns by the Savings and Loan Association from 1974 to 1977 were addressed to Box 1968. Hughes testified that the Savings and Loan Association had all three addresses on file, mailed letters to the Hausmanns at all three addresses though Box 1968 was probably the last one that they had. Hausmann testified that letters addressed to his house were not delivered there as there was no mail box and that the post office usually put them into his Box 1968. He and his wife denied knowing anything about the notice. His employee testified that she was directed by him to pick up all his mail at the post office but never to pick up any registered or certified mail but only to deliver the post office notices regarding the same to him, which she always did.

The Plaintiffs argue that the one letter addressed to them at their home address did not meet the statutory requirements because there were not two letters addressed to each one of them separately, and that mailing the letter to the home address failed to meet the statutory requirements of the most recent address. We hold that the one letter addressed to both Mr. and Mrs. Hausmann at their home address where they both actually resided met the statutory requirements. The evidence shows a good faith attempt to notify the Plaintiffs of the Trustee’s sale at an address that was effective. The reasonable inferences arising from the evidence is that the Plaintiffs knew of the letter, knew it was from the Trustee, surmised that it related to the sale and refused to pick it up.

The Trustee Magee’s statutory affidavit which stated that the notice letter was mailed on November 15th was introduced into evidence as an exhibit. Neither Magee nor any other witness testified that the letter was mailed on November 15th. As previously noted, the postmark was November 17. Plaintiffs contend that the evidence fails to support the finding that the statutory notice was timely mailed and argue that the date of mailing and the date of sale must be excluded in counting twenty-one complete days; that to meet that deadline the letter would have to have been mailed on November 15th; that the prima facie evidence arising from the affidavit and created by the statute and the contracted for prima facie evidence arising from the recitals in the trustee deed disappear in the face of the real evidence as shown by the postmark. Valley Forge Life Insurance Company v. Republic National Life Insurance Company, 579 S.W.2d 271 (Tex.Civ. App. — Dallas 1978, no writ). We overrule the argument as the date of the postmark is just that — the date of the postmark and not evidence of the date of mailing. Further, we note that the deadline for mailing was November 16th, not the day before as contended by the Hausmanns. Hutson v. Sadler, 501 S.W.2d 728 (Tex.Civ.App. — Tyler 1973, no writ). In this cited case, it was held where notice of sale of real estate under deed of trust was posted for twenty-one days exclusive of day of sale but inclusive of day of posting that the notice met the requirements that it be posted for twenty-one days prior to date of sale. We apply the same rule to the date of mailing of the written notice of the proposed sale by certified mail.

After having considered only the evidence and inferences arising which support the jury finding to Special Issue No. 2, the issues attacking the legal sufficiency of the evidence as to the proper written notice are overruled. After considering all of the evidence, the issues attacking the factual sufficiency of the evidence supporting the finding are likewise overruled.

The Plaintiffs next complain that the finding by the jury that the Hausmanns received actual notice of the sale on November 17 would not validate the sale. They argue that actual notice to be a substitute for the statutory notice must likewise be given at least twenty-one days preceding the date of sale. See Forestier v. San Antonio Savings Association, supra. While the validity of that argument can be recognized, we have held that the constructive notice given met the statutory requirements. The point is overruled.

Plaintiffs complain that the trial Court failed to submit a definition of the word “each,” in connection with Special Issue No. 2. We fail to see where a definition was required since the term is a commonly used adjective which does not require legal definition. The point is overruled.

The Plaintiffs’ final points attack the jury finding that the consideration received at the Trustee’s sale was not grossly inadequate. They present both legal and factual insufficiency points. Since the rule is well established that mere inadequacy of consideration is not grounds alone for setting aside a trustee’s sale if the sale was legally and fairly made, the points are overruled. The points have become immaterial. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965).

We have considered all of the Plaintiffs’ points and they are all overruled. The judgment of the trial Court is affirmed.


author: DOYLE, Justice.

text:
    Roy Breg DAVIS, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.
    No. 17399.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 28, 1979.

      Helm, Pletcher, Hogan & Burrow, J. Donald Bowen, Houston, for appellant.
    Baker & Botts, Philip J. John, Jr., Houston, for appellee.
   DOYLE, Justice.

This is an appeal from a take nothing judgment in a personal injury suit filed by Roy Breg Davis (appellant) against Southern Pacific Transportation Company (appel-lee), pursuant to the provisions of the Federal Employers’ Liability Act. We affirm.

Appellant began work for appellee on August 1, 1974, as a part of a three-man welding crew working on a railroad siding west of Alpine, Texas. On August 7, 1974, the crew was welding rails together with Boutet welds. This is a process in which a mold is constructed around the gap between the ends of two rails, and a liquid substance is ignited and poured into the mold. After it sets up and hardens, the mold is removed and the excess metal, or “slag,” is chipped away with a hammer and.chisel. A grinding machine is then run over the weld-to grind it smooth.

The welding crew consisted of two helpers, appellant and Ron Gillespie, and a foreman, Mike Thorman. At the time of the accident, Thorman and Gillespie were chipping excess slag off the weld with a sledge hammer and chisel, and appellant was waiting to operate the grinding machine when they were^ finished. Appellant testified that none of the crew were wearing safety glasses, but this was disputed. It is undisputed that Mr. Davis himself was not wearing safety glasses at that time and was standing some “15 or 20 feet back behind the grinder.”

When Mr. Gillespie, holding the hammer, struck the chisel being held by Mr. Thor-man, a steel chip flew from the hammer and entered Mr. Davis’ left eye. As a result of this injury, it was later necessary for Mr. Davis’ left eye to be removed entirely. A prosthetic device was installed in the socket for cosmetic purposes.

Davis brought suit against appellee alleging its negligence in that it failed to provide safe working conditions and that it used defective equipment, including a sledge hammer and chisel, in its operations. Appellant prayed for $680,000 in damages. At the trial, the hammer was introduced into evidence by appellee but the chisel was not. Consequently, the absent chisel became a central issue in this case. Appellee had both the chisel and hammer in its possession. Appellant contends that this accident could have been avoided if the chisel in question had been equipped with a rubber housing around the head to prevent steel chips from flying off when it was hit with the sledge hammer. Appellee counters that there was a rubber covering on the chisel and that the incident was a “freak accident.” There is much disputed testimony concerning the rubber housing on the chisel.

Sixteen special issues were submitted to the jury, which found all issues in favor of appellee. Upon receiving the jury’s verdict, the trial judge granted the take nothing judgment.

During the closing jury argument when appellant’s attorney commented on the failure of appellee to introduce the chisel into evidence, the appellee’s attorney interrupted and offered “to go get it now and bring it over here.” Appellant made no objection to the sidebar remark, nor made a motion for mistrial. The record before us includes a motion for new trial and an amended motion for new trial, but no order thereon. Hence we deem the motion to have been overruled by operation of law. Rule 329b, T.R.C.P. The record on appeal includes the transcript, statement of facts, jury arguments and the exhibits.

The appellant brings three points of error, the first of which alleges that the trial court erred in failing to grant plaintiff a new trial because of the sidebar outburst of appellee’s counsel during plaintiff’s jury argument. The sidebar remarks in question are here noted. Appellant’s attorney (Mr. Bowen) during his closing argument to the jury stated:

“Why isn’t that chisel here? It is not here because it doesn’t have one ounce, one strip of rubber on it and it never did have and that is why this accident happened. Doggone it. That is why it happened.
Now, it was a violation of the rules to use that chisel without rubber on the striking head. Why? Because that is where you get the chips. That chisel didn’t have any rubber on it. If it would have we would have seen it here. We would have seen that chisel with a big bunch of rubber around it, Mr. John would have brought that chisel in here and where is it?
Mr. John: I’ll be happy to get it not and bring it over here.
Mr. Bowen: You know the case is over with.
Mr. John: You had a chance to get it yourself.

Appellant argues that the foregoing interruption was calculated to cause and did cause the rendition of an improper verdict in this case. While we do not agree that the interruption had the effect as argued by appellant, we do think it appropriate to point out that appellee’s counsel’s conduct in making the sidebar remark was clearly improper and reprehensible and should not be condoned.

At the time the outburst occurred, no objection was made to the court, thereby depriving the trial judge of the opportunity to admonish or instruct the jury to disregard such outburst if it were deemed prejudicial. Generally, when an objection to improper argument or sidebar comments is not timely made, it is waived and cannot entitle one to a new trial or a reversal of the case on appeal. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977); Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546 (1959); Texas Employers' Inc. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954).

Appellant contends, however, that this remark was so prejudicial that his failure to timely object did not waive his right to complain of this error on appeal. He cites the case of Gulf, C. & S.F. Ry. Co. v. Dooley, 62 Tex.Civ.App. 345,131 S.W. 831 (1910, no writ). This case is clearly not applicable. In Dooley, defendant’s counsel objected to each of some 21 allegedly improper sidebar remarks and requested the trial court to instruct the jury to disregard each of them. All of the objections were overruled. Clearly the remarks made in the Dooley case included direct appeals to passion and prejudice, which the trial judge in effect, approved. The court, in reversing and remanding the case, stated:

“We are not authorized to speculate upon the resultant effect of this conduct, because it if appears to us that it was reasonably calculated to influence the jury, then it becomes our duty to set aside the verdict; and since we feel that it probably had this effect, we sustain these assignments.”

In our case there was only one sidebar remark by appellee’s counsel to which no objection was made. Nor can we conclude, after looking at the entire record before us, that such remark was an appeal to passion and prejudice and was of such a nature that it could not have been cured by proper instruction. Since there was adequate testimony in the record from which the jury could draw its own conclusions about any fact pertaining to the subject chisel, the trial judge could have instructed the jury to disregard appellee’s counsel’s remarks and look to the evidence. Under the test and authorities cited in Texas Employers’ Inc. Ass’n v. Haywood, supra, and McNeil v. Current, 484 S.W.2d 394 (Tex.Civ. App.-Houston [1st Dist.] 1972, ref’d n.r.e.), we hold that the sidebar remark under consideration was not so prejudicial that its' harmful effect could not have been cured by an instruction to the jury by the trial judge and was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment. Rule 434, T.R.C.P. We overrule this point of error.

The trial court excluded the testimony of appellant’s witness, Mildred Davis, which was offered concerning the allegedly res gestae statements of Mike Thorman. Appellant sets forth this exclusion as his point of error number two. We have carefully considered the testimony tending to bring the conversation between Mildred Davis and Mike Thorman within the exception of res gestae. At best the excluded testimony seems to be no more than an explanation of the circumstances and events surrounding appellant’s accident and subsequent visit to the doctor. None of the requisites of a res gestae exception to the hearsay rule as set forth in 1 C. McCormick and R. Ray, Texas Law of Evidence Sec. 913 (Texas Practice 2 ed. 1956) p. 683, is met by the excluded testimony. No error was committed by the trial court in refusing to admit such testimony. We overrule this point of error.

We find no merit to appellant’s third point of error contending that there was no evidence to support the jury’s answer to special issue no. 1. On this issue the jury was asked for a finding on whether the defendant railroad “used a chisel without a protective rubber covering around the striking head on the occasion in question.” We find no exception to the wording of the issue which the jury found in favor of ap-pellee. Michael Thorman, foreman of appellant’s crew and present at the time of the accident stated on direct examination:

Q. Was the chisel you were using at the time of the accident equipped with a rubber housing just described.
A. Yes.

On cross-examination by appellant, Thor-man again stated:

Q. And you are telling us this particular chisel had rubber around it.
A. Yes, sir.

J. R. Pitts, also present at the accident testified:

A. It was a chisel about that long (indicating). It has an edge each side like an axe maybe with a piece of rubber on the end.

It is now the well settled law of this state that in reviewing “no evidence” points, only the evidence in support of the finding will be considered. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). We find that there was evidence upon which the jury could base its answer. Accordingly, we overrule appellant’s third point of error.

The judgment of the trial court is affirmed.


author: WALLACE, Justice. EVANS, Justice,

text:
    Valerie T. BAILEY et al., Appellants, v. BOATLAND OF HOUSTON, INC., Appellee.
    No. 17323.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 28, 1979.
    Rehearing Denied Aug. 16, 1979.

      Kronzer, Abraham & Watkins, James E. Robinson, Houston, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Donald B. McFall, Richard E. Gray, III, Houston, for appellee.
   WALLACE, Justice.

This is an appeal from a judgment denying recovery on a wrongful death action brought by the surviving widow and two adult children of Samuel Bailey, who was killed in a boating accident on May 27,1978, on Lake Livingston. The action was based on strict products liability in tort against the seller of the bass boat deceased was operating at the time of his death.

The jury answered adversely to appellants special issues inquiring whether:

(1) The boat in question was defective,
(2) Decedent misused the boat in question,
(8) Decedent failed to follow proper warnings and instructions,
(4) Decedent assumed the risk of his death.

Based upon these answers the trial court entered judgment for defendant. On appeal, appellants contend that the evidence was such that the boat’s defective condition at the time it was sold by appellee was established as a matter of law, or the jury’s findings of “no defect” are against the great weight and preponderance of the evidence; that the trial court erred in admitting “state of the art” evidence; and that the evidence was insufficient to raise the defensive issues of assumption of the risk, misuse, and failure to follow warnings.

Appellants’ first point of error is directed to the trial court’s exclusion of a part of the testimony of the witness Jim Buller. The location of the accident was shown by other testimony, so that part of Buller’s testimony which was excluded would have been cumulative on this point, and it is overruled.

In appellants’ points of error numbers two and three, they contend that the boat in question was defective as a matter of law. Further, they contend that the evidence of defect was so overwhelming that the jury finding to the contrary was manifestly wrong and unjust. A review of the record reveals evidence that the boat in question was not defective. The testimony of the three experts called by appellee was factually sufficient to support the issue. These points are overruled.

Appellants’ fourth point of error is directed to the admissibility of evidence establishing the existing state of technological advancement in the boating industry in regards to certain safety features, the absence of which appellants assert render the boat in question defectively designed so as to be “unreasonably dangerous,” primarily because there were no devices installed which would automatically kill the engine in the event the operator was thrown from the boat. Appellants’ pretrial motion to exclude any evidence which would suggest the unavailability of kill switches at the time of the manufacture and sale of the boat in question was overruled. Appellants were granted a running objection to such state of the art evidence. By point of error number four, appellants assert the trial court erred in overruling their objection and allowing appellee to introduce evidence of the unavailability of kill switches. Such evidence is relevant only to the issue of care by appellee, which is not a defense in a strict tort liability action. We agree with appellants and this point is sustained.

Testimony was elicited by appellants from the inventor of kill switches that such a device was a relatively simple mechanical one that would significantly increase the safety of boats and would probably have prevented the accident. Appellants also inquired into the date of the development of the kill switch (November 1972) and the date the inventor applied for a patent on the device (January 1973). The date of the accident in question was May 27,1973. Additionally, the inventor testified that the concept of kill switches was not new and that the National Outboard Association had been using various types of kill switches for thirty years on racing boats.

Appellee elicited testimony from the inventor that no one knew of the specifics of his invention prior to his obtaining a patent and manufacturing the switch. Additionally, the inventor testified that his switch was not marketed until August of 1974 and his investigation prior to this time revealed no other such devices were marketed although he knew of individuals who made “homemade” kill switches.

Appellee introduced testimony from its expert witnesses to the effect that kill switches as a concept existed and various kinds were in limited use prior to the manufacture of the boat in question. However, none were commercially available at the time. Further, it was not the accepted industrial practice to place kill switches on bass boats because they were not available.

It is the admissibility of this evidence that appellants strenuously objected to at the time of trial and of which they now complain on appeal as reversible error. Appellants’ position is that the “unavailability” evidence admitted in this case is immaterial in a strict liability action. They assert such evidence could only be relevant to establish “care” on the part of the manufacturer in designing the boat, and that is not in issue.

An extensive review of products liability caselaw reveals the question of the admissibility and relevancy of state of the art evidence has not been addressed in Texas and the holdings in other jurisdictions are not in agreement. Two divergent philosophies have developed leading to opposite conclusions.

The argument advanced in favor of the admissibility of state of the art evidence is that it is relevant to show a product is not defective as defined by the Restatement. Murray, The State of the Art Defense in Strict Products Liability, 57 Marq. L.Rev. 649 (1974); Fromer & Friedman, Products Liability, § 16A(4)(i). The Restatement provides that in order to impose strict liability:

“The article must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common in the community as to its characteristics.” Restatement (2nd) of Torts § 402A, comment I at 352-53 (1965).

Thus, to establish liability under § 402A the plaintiff must show the product was dangerous beyond the expectation of the ordinary consumer. Proponents of the admissibility of state of the art evidence argue:

“Since whether or not a product is defective depends upon whether or not the danger involved in its use would be apparent to a reasonable consumer, state of the art evidence can be useful in establishing that the product involved is similar to all other products of that type and therefore an ordinary consumer . with the ordinary knowledge common to the community as to its characteristics would have realized the potential danger Since the machine represented the highest degree of safety attainable at the time, as evidenced by other manufacturers’ products, while still being functional it was not defective because it didn’t present a danger which would not be anticipated by a reasonable consumer.” Murray, supra at p. 654, 655.

See also Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976). We do not feel, however, that the intent and purpose of strict tort liability would be satisfied by the expectations of consumers being defined by the actions of manufacturers and suppliers whose products may be defective. This philosophy presupposes that the expectation of an ordinary consumer as to the safety of a product is determined by generally accepted trade practices within the industry. That line of reasoning requires the presumption that an ordinary consumer is aware of all the technical expertise of the manufacturers, who are charged with having expert knowledge in the field. The expectation of the ordinary consumer should be based on experience with the product itself, not the expert technological knowledge of the manufacturers within the industry.

Several jurisdictions and commentators have reached the conclusion that state of the art evidence is not relevant to a strict liability action. Foglio v. Western Auto Supply, 56 Cal.App.3d 470, 128 Cal. Rptr. 545 (1976); Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970); Mathews v. Stewart Warner Corp., 20 Ill.App.3d 470, 314 N.E.2d 683 (1974); McKasson v. Zimmer Mfg. Co., 12 Ill.App.3d 429, 299 N.E.2d 38 (1973); Scarzafava, An Analysis of Products Liability Defenses, 9 St. Mary’s L.J. 261 (1977); Ka-rasik, “State of the Art or Science”: It is a Defense to Products Liability? 60 Ill.B.J. 348 (1972). The argument advanced for this position is that the express provisions of the Restatement provide strict tort liability for a dangerously defective product will be imposed notwithstanding “the seller has exercised all possible care in the preparation and sale of his product.” Restatement of Torts (2d) § 402A. Therefore, evidence pertaining to the existing state of the art addresses the irrelevant issue of care. To allow a defense to strict liability on the basis a product was made in accordance with the best available practices and existing technology in the industry at the time of production, it is argued, would emasculate the doctrine of strict tort liability and “signal a return to a negligence theory.” Cunningham v. MacNeal Memorial Hospital, supra, 266 N.E.2d at p. 902. We agree.

In McKisson v. Sales Affiliate, Inc., 416 S.W.2d 787 (Tex.1967), the court adapted the rule of strict liability in Texas as stated in Section 402A of the Restatement (2nd) of Torts. The Supreme Court has since recognized that that decision represented “our yield to the irrefutable logic that the rule of strict liability is the only practical vehicle for protecting the public against harm caused by a defective product. Pittsburg Coca Cola Bottling Works of Pittsburg v. Ponder, 443 S.W.2d 546 (Tex.1969).

Section 402A of the Restatement (2nd) of Torts provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user .
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product . . ”

The rationale for the doctrine of strict liability is stated in comment C to Restatement, Section 402A, which provides:

On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed special responsibility toward any member of the consuming public who may be injured by it; that the public has a right to and does expect, in the care of products for which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by the products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum protection at the hands of someone, and the proper persons, to afford it are those who market the products.” (at p. 349-50).

In the recent case of Turner v. General Motors, 584 S.W.2d 844, 1979), the court expressly held that a definition of unreasonably dangerous should not be submitted to the jury. The court stated:

“We are persuaded to this conclusion by the inconclusiveness of the idea that jurors would know what ordinary consumers would expect in the consumption or use of a product, or that jurors would or could apply any standard or test outside that of their experiences and expectations. . . *. The stated reason for the alternative test of the prudent manufacturer does not justify its continued use.” (at p. 851)

Nonetheless, the majority suggested the trial court committed error, although harmless, in failing to submit the prudent manufacturer element of the disjunctive test of an “unreasonably dangerous” product. The prudent manufacturer element is not included in the Restatement definition of “unreasonably dangerous.” Justice Campbell, in a concurring opinion, states:

“In overruling this court’s prior decisions by discarding the Restatement’s definition of unreasonably dangerous, the majority opinion fails to give due cognizance to the underlying policy and purpose of strict liability in tort, merges strict liability into negligence liability, and for all practical purposes abolishes strict liability in tort as to defective design. Liability for negligence is imposed for violation of a legal duty to exercise the care of an ordinary prudent person under the same or similar circumstances. Strict liability in tort of a manufacturer who places a defective product in the stream of commerce is imposed, not for violation of a duty to exercise due care, but because public policy favors imposition of the burden of a defective product upon the manufacturer instead of the consumer. The public interest in human safety requires the maximum possible protection for the user of the product; the manufacturer is in a better position to know the potential dangers in the product and test for and guard against same while the consumer generally must and does rely on the manufacturer’s skill, knowledge and warnings of unexpected dangers; and, generally the manufacturer is in a better position to bear the loss from a faultless but dangerous product than is the consumer. James, General Products — Should Manufacturers Be Liable Without Negligence? 24 Tenn.L.Rev. 923 (1957); Prosser, The Pall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966); Keeton, Products Liability — Some Observations About Allocation Risks, 64 Mich. L.Rev. 1329 (1966).” (at p. 853).

This position is consistent with prior Supreme Court decisions. In Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867, 871 (Tex.1978) the court took the position that a distinction must be drawn between strict liability and negligence actions. The court stated:

“ . . . The care taken by the supplier of a product in its preparation, manufacture, or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.”

In General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.1977) our supreme court said:

“[Liability of a supplier does not rest] upon what he knew or should have known when he manufactured or sold the product; it rests upon his placing into the stream of commerce a product which is demonstrated at the trial to have been dangerous.”

Similarly, Professor Green in his article entitled Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Tex. L.Rev. 1185, 1210 (1976), states:

“The violation of the seller’s duty involves only a specific product — the thing. Its measurement has no similarity to the measurement of the conduct of the defendant in a negligence case by the conduct of the ordinary prudent man. In products liability, the measure is the dangerously defective quality of the specific product in the litigation — not the average of products of the same kind.”

The trial court erred in admitting evidence of the unavailability of kill switches at the time of the manufacturing and selling of the boat in question. The focus in a strict liability case is on the product not the reasoning behind the manufacturer’s adoption of the design or the care exercised by the manufacturer in making such decision.

This holding is not unduly harsh on defendants in strict liability cases. The court in Turner expressly held that while the jury is not to be instructed to balance specifically enumerated factors to weigh the risk against the utility of the product, “evidence upon the factors of risk and utility such as those enumerated by the Court of Civil Appeals, as well as upon the expectations of the ordinary consumer, may be admissible in the trial of such cases.” Those factors include: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use: (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; and (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions, (at p. 846). The manufacturer is free to introduce all available evidence of the engineering and design features of the product in order to show that it is not unreasonably dangerous. However, this does not permit him to bolster his testimony by the cliche “But everyone else is doing it.” .

The admission of the evidence of the unavailability of kill switches was erroneous. It did not address the “utility” of the product or establish the process by which the design was adopted but rather emphasized the care exercised by the manufacturer, and other manufacturers, in designing the boat in question. The care exercised by appellee is not in issue.

Appellants’ sixth and seventh points of error are directed to the submission of the “misuse” issue to the jury. Appellants correctly contend that misuse can be based only on actions by appellants’ deceased not reasonably foreseeable by appellee. General Motors Corp. v. Hopkins, supra Magic Chef v. Sibley, 546 S.W.2d 851 (Tex.Civ. App.-San Antonio 1977, writ ref’d n. r. e.). Misuse is a defensive theory and the burden of proof was on appellee. The acts alleged by appellee to constitute misuse were (1) unsafe speed, (2) improper lookout, (3) permitting passengers to stand in the boat, (4) not having the motor in tilt position.

Appellee called as expert witnesses Mr. Hudson, who was founder of the company which designed and manufactured the bass boat in question. Mr. Cornelius, an officer of the company that bought the boat from Mr. Hudson’s company and sold it to appel-lees, and Mr. Nessmith, founder and president of appellee corporation. Mr. Nessmith testified that when he sold the bass boat in question he was aware that it would be used in areas where there were submerged trees, brush and stumps; he was aware that people are thrown from boats; he was aware that if a person were thrown forward out of the boat in question, with stick steering and stick throttle controls, it would be likely that the controls would be pushed forward, increasing the speed of the boat and causing it to circle sharply to the right; and that he could anticipate the boat being operated with passengers standing. Mr. Nessmith further testified that he gave Mr. Bailey, the deceased, an instruction booklet warning him to operate the boat with the motor in tilt position while in an area of submerged objects. The warning was to the effect that the motor and boat might be damaged if an object was struck with the motor extended all the way down. This suggests that the appellee could reasonably anticipate that the boat might be operated with the motor down, rather than in a tilt position. The testimony of Mr. Hudson and Mr. Cornelius conformed with that of Mr. Nessmith on these points. All the acts alleged by appellee as “misuse” on the part of the deceased were reasonably anticipated by appellee. The misuse issue should not have been submitted.

Appellants’ ninth, tenth and eleventh points of error are directed to the submission of the warnings issue. Warnings and instructions issues in a strict liability case must be directed to the defects alleged to have caused the plaintiff’s injury. Appellee states in its brief that it does not contend that warnings was a defense in this case. If it was not a defense, the issue should not have been submitted.

Appellants’ twelfth and thirteenth points of error are directed to the submission of the assumption of the risk issue. This was a defensive issue and it was incumbent on appellee to provide evidence that the deceased was aware of the dangers resulting from the defects complained of, and further, that he voluntarily assumed the risk produced by such danger. Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974). The record is completely silent as to any such knowledge on the part of the deceased. Appellee produced evidence only to show that the deceased was a fisherman who was familiar with the area where the accident occurred, was familiar with the operation of boats, and was familiar with the weather conditions on the date of the accident. This evidence did not touch on the essentials of “assumption of the risk”: that the deceased was aware of the defects made the basis of this suit and that with full knowledge of those defects and the dangers arising therefrom, he voluntarily assumed such risk. Appellants’ twelfth and thirteenth points are sustained.

This brings us to the question of whether the effect of the admission of the evidence as to the unavailability of kill switches plus the submission of the defensive issues of misuse, assumption of the risk and failure to obey warnings, when combined, were sufficient to prejudice the appellants in the presentation of their case and influence the jury in determining whether the boat in question was defective. We find that they did.

Appellants Paula Cherry and Jerry Bailey, adult children of the decedent, failed to assign error to the jury finding that they suffered no pecuniary loss as a result of their father’s death, so any error on the liability issue is harmless as to these appellants. Mitchell v. Chaparral Chrysler-Plymouth, 572 S.W.2d 359 (Tex.Civ.App.-Fort Worth 1978, writ ref’d n. r. e.). The judgment of the trial court as to these appellants is therefore affirmed.

The judgment of the trial court as to appellant Valerie Bailey is severed and reversed, and as to her the cause is remanded for a new trial.

EVANS, Justice,

dissenting.

I cannot agree with the majority of the court that evidence as to the availability of the kill-switch was inadmissible. As I read the Texas Supreme Court’s decision in Turner, it holds that the jury is no longer to be instructed on the definition of “unreasonably dangerous”. It does not hold that evidence as to the availability of a safety feature should not be considered by the jury, and, to the contrary, the court’s opinion strongly suggests that such evidence is relevant to the jury’s consideration of the design process.

The ultimate effect of the majority holding, if allowed to stand, is to impose absolute liability upon the manufacturer of any product which is not “unreasonably dangerous” at the time it is marketed, but which becomes so by reason of the subsequent invention and marketing of a safety feature making the product less dangerous to the consumer. If the consumer is permitted to offer evidence showing the applicability of a safety feature in the design process, the manufacturer should be allowed to offer evidence showing the relative cost and availability of the safety feature at the time the product is marketed. Unless the seller is permitted to show these circumstances, the jury is afforded only a partial view of the design process and, thus, does not have facts essential to an informed determination of whether the product was unreasonably dangerous.

Where a product is not unreasonably dangerous at the time it is marketed and becomes so only when some later invention makes it function with greater safety, evidence regarding the availability of the new invention should, in my opinion, be admitted for the jury’s consideration. Contrary to the majority’s statement that evidence of availability is relevant only to the question of the manufacturer’s “care”, such evidence is essential to any reasonable understanding of the process under and by which the particular design was adopted. If the jury is not allowed to consider such evidence, it may impose liability upon the manufacturer even though the safety item was not reasonably available at the time the product was marketed.

The absolute character of liability imposed by the majority is not, in my opinion, justified by Turner and constitutes a dangerous extension of the strict liability doctrine.

I would affirm the judgment of the trial court.


author: SPURLOCK, Justice. HUGHES, Justice,

text:
    FIRST NATIONAL BANK OF GRAPEVINE, Texas, Appellant, v. NU-WAY TRANSPORTS, INC., Appellee.
    No. 18121.
    Court of Civil Appeals of Texas, Fort Worth.
    June 28, 1979.
    Rehearing Denied Aug. 2, 1979.
    Second Motion for Rehearing Overruled Sept. 13, 1979.

      Barlow, Gardner, Tucker & Garsek, and James B. Barlow, Port Worth, for appellant.
    Wilbur T. Knape, Hurst, for appellee.
   OPINION

SPURLOCK, Justice.

A bank appeals a judgment against it based on a jury verdict. The bank was found to have converted assets held by it in a corporation’s checking account and also to have unreasonably informed a judgment creditor that the corporation was jointly operated with a judgment debtor resulting in the corporation being involved in garnishment actions and being damaged thereby. The question is whether the corporation’s recovery is barred by the two year statute of limitation.

We reverse and render.

On February 29, 1964, R. Otis LaGrone and wife obtained a judgment against G. W. Smith in a wrongful death action. G. W. Smith operated trucks and one of his trucks was involved in the accident which precipitated the suit and judgment. G. W. Smith’s son, Kenneth Smith, is the president of Nu-Way Transports, Inc. Nu-Way is engaged in the trucking business but is not connected with the trucking operations of G. W. Smith. However, both Nu-Way and G. W. Smith have accounts at the First National Bank of Grapevine.

To enforce the judgment against G. W. Smith, the LaGrones caused a writ of garnishment to be issued against the bank on October 29, 1965, in cause number 10,007. Nu-Way was neither mentioned in the La-Grones’ application for the writ nor named as a judgment-debtor or otherwise in the writ of garnishment. Even though Nu-Way was not involved, the bank impounded Nu-Way’s funds. Nu-Way alleged and the jury found that this was a conversion of Nu-Way’s funds by the bank on October 29, 1965. The bank was apparently of the opinion that G. W. Smith and Kenneth Smith were operating Nu-Way Transports jointly.

Nu-Way also alleged that the bank maliciously advised the LaGrones that G. W. and Kenneth Smith were operating Nu-Way jointly and that the bank continued to attempt to implicate Nu-Way in the enforcement of the LaGrones’ judgment resulting in the issuance of two other writs of garnishment against debtors of Nu-Way. One of these writs was issued against Wes-co-Wamix, Inc. on December 18, 1965 in cause number 10,037. The other writ was issued against Lone Star Cement Corporation on April 23, 1970 in cause number 10,926. The jury found that the bank advised the LaGrones that Nu-Way was being operated jointly with G. W. Smith; that this advice was unreasonable; and that such action was a proximate cause of damage to Nu-Way.

Nu-Way first filed suit against the bank on October 27, 1967. Although its pleadings in the 1967 suit are not in the record, we presume two causes of action were alleged, conversion on October 29, 1965 and tortious conduct in advising the LaGrones that G. W. Smith and Nu-Way were operating jointly resulting in the writ of garnishment against Wesco-Wamix, Inc. on December 18,1965. Nu-Way alleges that the bank filed a plea in abatement seeking to abate the action until the LaGrones’ garnishment against the bank was litigated. However, no such plea appears in the record. It appears, although not in the record, that Nu-Way’s suit was dismissed for want of prosecution on June 24, 1969. Nu-Way filed the suit upon which this appeal is based on October 22, 1971.

The bank filed a plea of limitation in this action which was carried along by the trial court. The bank again asserted limitation in a motion for judgment n. o. v. The trial court overruled the bank’s motion. On appeal the bank claims that all acts complained of occurred on or about October 29, 1965. It therefore concludes that Nu-Way’s action, filed in 1971, is barred by either the two or four year statute of limitation. Thus we are directed to review Nu-Way’s allegations to determine when the causes of action arose and when the applicable statute of limitation began to run.

Nu-Way alleged that the bank converted its funds by wrongfully impounding them on October 29, 1965. The two year statute of limitation governs actions for conversion. A cause of action for conversion usually accrues when the act of conversion is complete. 14 Tex.Jur.2d Conversion § 76 at 64-65 (1960). Thus we hold that the two year statute of limitation began to run on October 29, 1965. Nu-Way filed its first suit on October 27, 1967, two' days before it would have been barred by the two year statute. Nu-Way claims that the plea in abatement sought to have that suit abated until the garnishment action against the bank in cause number 10,007 was litigated to a final judgment. No such plea appears in the record and therefore cannot affect the decision in this case. However, even if the bank did file such a plea seeking to have the suit abated until the garnishment action in cause number 10,007 was finally litigated and Nu-Way is correct in its allegation that this estops the bank from asserting limitation, this would still not afford Nu-Way any relief. We note that Nu-Way’s first action for conversion was filed on October 27,1967, two days before it would have been barred. The record reflects that a final judgment was rendered in the garnishment action in cause number 10,007 on April 29, 1971. Thus, assuming again the bank was estopped from asserting limitation during the pend-ency of the garnishment action, Nu-Way would have had two days to file its present action. See Berry v. Humble Oil & Refining Co., 205 S.W.2d 376 (Tex.Civ.App.— Waco 1947, writ ref’d n. r. e.). Nu-Way did not file its present action until October 22, 1971. Even assuming the bank was es-topped from asserting limitation during the pendency of the garnishment action, the present action for conversion would be barred.

Nu-Way also claims that the garnishment action against the bank in cause number 10,007 tolled the statute because it prevented Nu-Way from asserting its legal right or remedy. Nu-Way correctly states the general rule that a statute of limitation will not bar an action where the pendency of another legal proceeding prevented the assertion of a legal right or remedy. We note however, that Nu-Way alleged a cause of action for conversion. It did not assert a cause of action to recover for wrongful payment under a garnishment proceeding, cause number 10,007. Thus the rule in Meeks v. Hudgins, 22 S.W.2d 764 (Tex.Civ. App. — Austin 1929, no writ), that a cause of action for wrongful payment under a garnishment proceeding does not accrue until a final judgment is rendered in the garnishment case, would not apply to Nu-Way’s ease.

Further, we fail to discern how Nu-Way was prevented from asserting its cause of action for conversion. The record reflects that Nu-Way intervened in the garnishment action in which the bank was the defendant. By its intervention Nu-Way had a position as a defendant. We know of no reason why Nu-Way could not have cross-claimed against the bank for conversion and litigated this issue as part of the garnishment action. Already at issue in the garnishment action was the question of whether Nu-Way and G. W. Smith were operating jointly. This is probative of whether the impounding of Nu-Way’s funds by the bank was wrongful.

For the proposition that Nu-Way was prevented from exercising its legal remedies it cites a line of cases involving injunctions. We distinguish this case from cases where an injunction prevents the exercise of a legal right or remedy. There was no injunction in this case. We conclude that the garnishment action in no way prevented Nu-Way from seeking to exercise its legal remedies. Therefore we hold that the two year statute barred Nu-Way’s action against the bank for conversion.

In addition to conversion the jury, by its verdict, found that the bank had unreasonably advised the LaGrones that Nu-Way and G. W. Smith were operating jointly and that this was a proximate cause of damages. On this theory of recovery Nu-Way pled that the bank was guilty of continuing acts of advising the LaGrones and of precipitating and implicating Nu-Way in two other garnishment actions. One of these actions resulted from a writ of garnishment being issued against Wesco-Wamix in cause number 10,037 on December 18, 1965. The other resulted from a writ of garnishment being issued against Lone Star Cement Corporation in cause number 10,926 on April 23, 1970.

In determining when the statute of limitation began to run on Nu-Way’s cause of action, we are guided by the general rule that limitations begin to run on causes of action for torts from the time the duty owed to the plaintiff was breached or the wrongful act was committed and the plaintiff was damaged. The fact that damage may continue to occur for an extended period of time such that it is not fully realized at the time of suit will not prevent limitation .from starting to run. Limitation commences when the wrongful act occurs resulting in some damage to the plaintiff. See 37 Tex.Jur.2d Limitation of Actions § 93 at 241 (1962) and cases therein cited.

To apply this rule of limitation to this case we have carefully reviewed the evidence. The jury found that the bank had advised the LaGrones that Nu-Way was being operated jointly with G. W. Smith. There is evidence in the record which supports this finding. However, the only evidence supporting this finding reflects that the bank gave the advice on or about October 29, 1965. There is no evidence in the record that Nu-Way was damaged by the action of the bank until the writ of garnishment was issued against Wesco-Wamix on December 18, 1965. Thus we conclude that the two year statute of limitation began to run on December 18, 1965.

It is true that another writ of garnishment was issued against Lone Star Cement on April 23, 1970 and this incident was within two years of October 22, 1971, the date Nu-Way filed this suit. However, there is no evidence that the bank advised the LaGrones to garnish Lone Star Cement or gave any advice independent of the advice given on or about October 29, 1965. We conclude that under the evidence in this case, any damages caused by the garnishment action against Lone Star Cement resulted from the acts of the bank in 1965. Therefore we hold that the two year statute of limitation bars the recovery awarded Nu-Way by the trial court’s judgment.

The bank has numerous points of error in addition to those asserting limitation. Because we have held that recovery in this case is barred by limitation we need not discuss these other points. However, we have severally considered each point of error presented in complaint of the trial court’s judgment. Except as to those relating to limitation, we overrule each of the bank’s other points.

The judgment of the trial court is reversed. Judgment is rendered that Nu-Way take nothing.

HUGHES, Justice,

concurring.

But for the fact that there is no evidence in the record of the sustaining of the plea in abatement referred to in plaintiff’s supplemental petition, I would respectfully dissent. Whether the plaintiff was prevented from pursuing its remedy by injunction or by abatement would not make any difference, one would be as effective as the other.

I concur in the results.


text:
    Phillip L. DAMSTRA, Appellant, v. Janice Lynn Damstra STARR, Appellee.
    No. 8682.
    Court of Civil Appeals of Texas, Texarkana.
    July 3, 1979.
    Rehearing Denied July 24, 1979.

      Larry S. Parnass, Parnass & Bond, Irving, for appellant.
    Gerald Livingston, Bean, Francis, Ford, Wills & Livingston, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Appellant Phillip Damstra brought this suit against his former wife, appellee Janice Starr, to cancel a promissory note he had given her and to recover the amounts he had previously paid on the note. Appellee answered by general denial and also filed a counter-claim to collect the balance due on the note. In a jury trial, the district court directed a verdict against appellant on his suit for cancellation, and in favor of appel-lee on her counter-claim. The question of attorney’s fees on the counter-claim was submitted to the jury which found that $1,350.00 was a reasonable amount for such fees as provided by the note. Judgment was rendered in appellee’s favor for the sum of $8,536.92 as the unpaid balance of the note, together with $956.96 interest and $1,350.00 attorney’s fees.

The note was in the principal sum of $11,294.75 and was given to appellee by appellant as part of a property settlement approved by the court and the parties in their divorce. The note represented payment for appellee’s community interest in the value of appellant’s partnership share of a medical practice he had with another physician. Appellant’s suit contended that the note should be cancelled and the payments previously made thereon should be returned because, when he executed the property settlement agreement and the promissory note, he did not know that the goodwill of his medical practice was not legally divisible as a community asset, and he did not know that the note payments could not be deducted from his income tax. In support of his cause of action he alleged that he was not represented by an attorney when the settlement agreement was effected, but relied upon the advice of appellee’s attorney.

The district court properly directed a verdict against appellant on his cause of action because no evidence was adduced to support the actionable allegations of the petition. Even if appellant’s misconception of the nature of the goodwill of his medical practice could constitute grounds for cancellation, the undisputed evidence, even from appellant himself, established that the amount of the promissory note represented one-half of appellant’s interest in the amount of cash on hand and the outstanding accounts receivable of the medical practice, and that goodwill constituted no part of the evaluation on which the property settlement agreement was based. Nevertheless, appellant contends here that he should have cancellation of the note because he was only able to collect approximately one-half of the accounts receivable which were included in the evaluation. We do not agree. Such a development is not a legitimate ground for rescission. A person cannot rescind a contract merely because, in the light of subsequent developments, a provision thereof operated to his disadvantage. Neither is an error in predicting a future fact the kind of mistake which will relieve a party from his contract. City of Austin v. Cotten, 509 S.W.2d 554 (Tex. 1974); Restatement of Contracts, Sec. 502, Comment f (1932).

If appellant was mistaken concerning the deductibility of the note payments, it was a mistake of law, and ordinarily mistakes of that nature are not grounds for cancellation of a contract. See 17 C.J.S. Contracts § 145 (1963). It is possible for a unilateral mistake of law to be ground for cancellation, but only if the mistake is chargeable to the inequitable conduct of the other party, such as the making of misleading or incorrect representations by one possessed of superior knowledge and in whom trust and confidence have properly been reposed. 10 Tex.Jur.2d Cancellation of Instruments, Sec. 39, pp. 362, 363. Those elements are not present here. Indeed, appellant himself testified that appellee’s attorney told him that the note payments were not deductible from income tax.

It is further contended that the note is void because it amounts to alimony which, after a divorce has become final, is prohibited by Texas law. The contention is without merit. See Francis v. Francis, 412 S.W.2d 29 (Tex.1967).

Appellant next urges that the district court erred in refusing to allow him to file a trial amendment in order to plead additional payments that he made on the note subsequent to the filing of the suit but before the trial. We agree. In appellant’s answer to the counter-claim for collection of the note, he pleaded that eighteen payments had been made, but at the trial of the case some five months later, the trial court allowed appellant to introduce evidence that, up to that time, he had made a total of twenty-three, rather than eighteen, payments. At the close of the evidence, however, judgment was rendered for appel-lee on the note allowing credit for only eighteen payments because that was all that had been pleaded, and the court refused appellant’s request to file a trial amendment including the additional payments. In this we believe the court erred. Tex.R. Civ.P. 66 provides that

“. . . the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits.

Here the information sought to be covered by the trial amendment was already in evidence and there was no showing or attempt to show that allowance of the amendment would prejudice appellee in the presentation of the merits of her cause of action. As in Aubin v. Hunsucker, 481 S.W.2d 952 (Tex. Civ.App. Austin 1972, writ ref’d n. r. e.), the trial amendment sought only to assert a defense in law to facts already established and did not seek to change the factual basis of the lawsuit. In those circumstances, the trial amendment should have been allowed so that the pleadings would comport with the proof as well as the true rights and obligations of the litigants.

Finally, it is argued that the attorney’s fees awarded are excessive because they necessarily include time and services incurred by appellee’s attorney in defending appellant’s original suit for cancellation and not simply those incurred in collecting the note. We disagree. The same facts necessary for appellee to prove her right to collect the note served to defeat appellant’s suit for cancellation. In that situation, all the attorney’s fees incurred can properly be said to have been incurred in the collection of the note through legal proceedings, and are therefore recoverable. See Miller v. Patterson, 587 S.W.2d 860 (Tex.Civ.App. Fort Worth 1976, no writ).

Because of the failure to allow appellant’s trial amendment, the judgment in favor of appellee on her counter-claim for collection of the note is reversed and is remanded to the trial court for a new trial and calculation of the proper amount of payments made toward the note. That portion of the judgment denying appellant any recovery on his suit for cancellation and for recovery of payments previously made upon the note is affirmed.

ON MOTION FOR REHEARING

Both parties have filed motions for rehearing. Appellee’s motion argues that-we should not have taxed the costs in this Court and in the trial court one-half to each party because the property settlement agreement provided that all court costs incurred by a party seeking to enforce the agreement (appellee) should be borne by the party in default (appellant). On further consideration of the matter, we have concluded that we should modify our judgment in this respect, and that only one-half of the costs on appeal should be taxed against appellee, with the remainder being taxed against appellant.

In his motion, appellant complains of our failure to discuss his Point of Error No. 7 which asserted that the trial court erred in failing to file findings of fact and conclusions of law. The point is overruled. Findings of fact are not necessary or proper in a case where the trial court directs a verdict. Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219 (1958); Hooker v. Roberts, 330 S.W.2d 493 (Tex.Civ.App. Eastland 1959, no writ). Conclusions of law were not proper because in a case such as this, the direction of a verdict is simply a finding by the trial judge that the plaintiff did not support by evidence one or more of the essential elements of the cause of action he pleaded.

Our judgment will be modified to tax one-half of the costs on appeal to appellee and the remainder to appellant. Except as to that extent, both motions for rehearing are overruled.

      . See Nail v. Nail, 486 S.W.2d 761 (Tex. 1972).