text:
    Foster C. WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 8184.
    Court of Civil Appeals of Texas, Beaumont.
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      Foster C. Wilson, Beaumont, for appellant.
    Linda A. Marchesseau, Austin, for appel-lee.
   DIES, Chief Justice.

Following a hearing before the Grievance Committee for District 3-A of the State Bar of Texas, the Committee instituted a disbarment suit against Foster C. Wilson in the District Court of Jefferson County. Trial was to a jury, which, on November 18, 1977, returned its verdict, finding that defendant below, Wilson, engaged in several acts of professional misconduct as set forth in Tex.Rev.Civ.Stat.Ann. art. 320a-l (Vernon 1973), and State Bar of Texas, Rules and Code of Professional Responsibility, art. XII (1970) (hereinafter State Bar of Texas Rules).

On February 16, 1978, after hearing motions by both parties, the court entered its judgment which ordered Wilson to be suspended for fifty (50) months. From this judgment, Wilson has perfected this appeal.

Appellant’s first point complains that the Grievance Committee is an agency subject to the Texas Administrative Procedure and Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Vernon Supp.1978), that the hearing before the Grievance Committee was not held in accordance with this act, and, therefore, the District Court had no jurisdiction to try the case de novo.

In Section 3(1) of that act, “agency” is defined as:

“ . . . any state board, commission, department, or offices having statewide jurisdiction, other than an agency wholly financed by federal funds, the legislature, the courts, the Industrial Accident Board, and institutions of higher education, that makes rules or determines contested cases.”

We have been unable to find any Texas case directly construing this contention; however, the Austin Court has noted that the courts are entirely exempt from the Texas Administrative Procedure and Register Act whether they are acting in an administrative or judicial capacity. Cameron v. Greenhill, 577 S.W.2d 389 (Tex.Civ.App.—Austin 1979). We hold that a Grievance Committee of the State Bar Association is not subject to this act for these reasons.

A Grievance Committee does not have statewide jurisdiction. It does not make rules; rules are promulgated by our Supreme Court. See Tex.Rev.Civ.Stat.Ann. art. 320a — 1, Sec. 4, Subdivision (a) (Vernon 1973). It does not decide “contested cases” as it may only dismiss a complaint or make a final determination with the accused attorney’s consent. See Tex. Rev. Ci v.Stat. Ann. art. 320a-l, Sec. 5 (Vernon 1973), and State Bar of Texas Rules, art. XII, § 16. See also Munson v. State, 576 S.W.2d 440 (Tex.Civ.App.—Austin 1978, writ filed).

These decisions from other states support this holding. Babineaux v. Judiciary Com mission, 341 So.2d 396, 401 (La.1976); Petition of Rhode Island Bar Association, 374 A.2d 802, 803 (R.I.1977); Mendicino v. Whitchurch, 565 P.2d 460, 475 (Wyo.1977). See also State v. Sewell, 487 S.W.2d 716, 718 (Tex.1972), where our Supreme Court has likened the preliminary investigation of the Grievance Committee to investigation by a grand jury. See also Galindo v. State, 535 S.W.2d 923, 927 (Tex.Civ.App.—Corpus Christi 1976, no writ), which speaks to the requirements of due process “in any proceeding which is to be accorded finality,” and the court notes that the Grievance Committee proceedings are not final except by consent. This point of error is overruled.

Appellant’s second point urges that the trial court erred in holding that counts 4-9 of petitioner’s Fourth Amended Complaint were not barred by the Statute of Limitations.

As noted in Galindo v. State, supra at 926, the State Bar of Texas Rules require a filing of a complaint before the Grievance Committee within four (4) years of the misconduct, art. XII, § 10, but the complaint may be verbal or in writing. Art. XII, § 7. Appellant attempts to measure the requisite time from the offense to the filing of the Fourth Amended Original Complaint, but the time is to be measured from the misconduct to the filing before the Grievance Committee. All of the offenses complained of here were presented to the Grievance Committee well within four years of their commitment. This point is overruled.

Appellant’s third point complains that the trial court erred in overruling his Fourth Motion for Continuance.

In November 1976 petitioner’s Second Amended Complaint alleged that appellant transferred to himself shares of stock in “Boston” corporation. Actually the name of the corporation appellant set up was “Burfin.” This was not corrected until the Fourth Amended Complaint which was filed on October 31, 1977, and the trial commenced on November 7, 1977. We do not believe appellant was misled or surprised. See Tex.R.Civ.P. 63; Harrington v. State, 385 S.W.2d 411, 418 (Tex.Civ.App.—Austin 1964) rev’d on other grounds, 407 S.W.2d 467 (Tex.1966).

Appellant’s Point 4 urges the trial court abused its discretion in overruling his special exceptions to the Committee’s pleadings. “A large measure of discretion” is given a trial judge in passing on exceptions to the pleadings, and his rulings will not be disturbed unless there is a showing of injury or abuse of discretion. Southern Underwriters v. Hodges, 141 S.W.2d 707 (Tex.Civ.App.—Waco 1940, writ ref’d). We find no abuse of discretion by the trial judge and overrule this point.

The next point urges the trial court erred in overruling appellant’s plea in abatement, complaining of the substitution of trial judges. Several judges were involved with preliminary work before the actual trial began. Judge King recused himself because of personal knowledge on October 10, 1977. The cause was then transferred to the 58th District Court, and Judge Brookshire began the proceedings and ruled on some motions. The actual trial was heard by Judge Cartwright of the 55th Judicial District who was appointed to serve by Judge Rogers, Presiding Judge of the Second Administrative Judicial District (the district in which Judge Cartwright serves) after Judge Brookshire had recused himself. This procedure was proper under Sec. 22, art. XII of the rules governing the State Bar of Texas.

Appellant claims Judge Brookshire did not recuse himself as there was no written notation of recusement in the transcript; at trial, Judge Cartwright stated that Judge Brookshire had called and recused himself, and appellant’s attorney stated: “Counsel for the defendant waives any further necessity of Judge Cartwright making any statement in face of the court’s statement in the record.” This point is overruled.

Appellant has no evidentiary points attacking the jury findings. However, there are several statements within the body of his brief which could so be construed. See Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). We have carefully considered all the testimony and find that each finding of the jury is supported by probative testimony.

Appellant does complain of the trial court’s failure to instruct a verdict for him. If the evidence is sufficient to raise an issue of fact, the case must go to the jury. Hamill v. Brashear, 513 S.W.2d 602, 609 (Tex.Civ.App.-Amarillo 1974, writ ref’d n. r. e.). A court cannot direct a verdict “unless the evidence was of such character that there is no room for reasonable minds to differ as to the conclusions to be drawn.” Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948). See Texas Employees Insurance Ass’n v. Page, 553 S.W.2d 98 (Tex.1977). Having already found the jury findings to be supported by probative testimony, we overrule this point.

Appellant contends the trial court was incorrect in making the judgment of suspension effective immediately. The State Bar of Texas Rules, art. XII, § 30 states:

“Either party to such proceeding shall have the right of appeal to the Court of Civil Appeals, but if the judgment appealed from be one suspending or disbarring the defendant, he shall not be entitled to practice law in any form while the appeal is pending, and he shall have no right to supersede the judgment by bond or otherwise.”

The legal effect of the judgment below was to suspend Wilson as an attorney at law “as of the time of the rendition of that decree, and . . . such disbarment continued in effect during the pendency of the appeal.” Phagan v. State, 510 S.W.2d 655, 659 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.). This point is overruled.

Appellant complains of the trial court’s failure to submit eleven special issues requested by him. Tex.R.Civ.P. 279 states:

“Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

Trial courts, as far as possible, should simplify special issues. See Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 489 (Tex.Comm’n App. 1942, opinion adopted). See also Braugh v. Phillips, 557 S.W.2d 155, 158 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Neyland v. Passano, 352 S.W.2d 367 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). It is only required that each controlling issue raised by the pleading and the evidence be submitted once simply and succinctly. Hodges, supra, 158 S.W.2d at 489.

The trial court is not required to follow the exact language of the pleading. Braugh, supra at 158. See also 3 R. McDonald, Texas Civil Practice § 12.092 at 299 (rev. 1970). The decision of which issues are controlling and which are evidentiary rests largely within the discretion of the trial court and will not be disturbed by an appellate court except in cases of probable harm. Stalder v. Bowen, 373 S.W.2d 824, 828 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). We believe the trial court in the case at bar fairly submitted all the controlling issues. These points are overruled.

Appellant has points concerning the taxing of certain costs which we think are good. Tex.R.Civ.P. 215c(b) provides the costs of non-stenographic recording shall not be taxed as costs “unless before the deposition is taken, the parties so agree, or the court so orders on motion and notice.” The order for the deposition of Ms. Gay does not mention costs or method. Accordingly the cost of this videotape should not be charged to appellant.

Proper notice of the deposition of Conde (Tex.R.Civ.P. 200) was not given, and appellant’s Motion in Limine was granted to keep it out of evidence. So, this cost should not be charged to appellant either.

The Bill of Costs shows that the total of the Gay and Conde depositions was $590.34; this amount should be subtracted from the total trial court cost assessed against Wilson of $1,126.34, leaving $536.10 properly taxed against Foster C. Wilson. The judgment of the trial court is accordingly reformed as to the costs taxed against Wilson. All of appellant’s other points are overruled, and the judgment of the trial court, as reformed, is affirmed.

AFFIRMED.

CLAYTON, J., not participating.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Thomas O. BAILEY, Appellant, v. Mark D. MERRILL et al., Appellee.
    No. 8214.
    Court of Civil Appeals of Texas, Beaumont.
    April 5, 1979.
    Rehearing Denied April 26, 1979.
    Robert J. Hanley, R. M. Sharpe, Jr., Houston, for appellant.
    Stephen M. Rienstra, Beaumont, for ap-pellee.
   CLAYTON, Justice.

This is a suit for damages arising from personal injuries sustained in an automobile collision. Plaintiff below, Thomas 0. Bailey, while driving his automobile was struck from the rear by an automobile being driven by defendant, Mark D. Merrill. Prior to the trial, liability for all damages was stipulated. The parties also stipulated that plaintiff incurred property damage (to his automobile) in the amount of $1,835.32. Based upon such stipulations, the cause proceeded to trial solely upon the issue of damages sustained by plaintiff as the result of his personal injuries. In response to special issues, the jury assessed damages in the sum of $3,500 for past medical expenses and $1,500 for future medical expenses. The jury also awarded $2,500 for past physical pain and mental anguish and $1,000 for future physical pain and mental anguish. In response to Special Issue No. 3(e), the jury found that plaintiff sustained lost earnings in the past in the amount of $18,-000, and in 3(d) plaintiff sustained no loss of earning capacity in the future.

Defendant filed his motion to disregard the jury’s answer to Special Issue No. 3(c), and the trial court granted such motion. Judgment was entered awarding plaintiff the total sum of $10,335.32. Plaintiff has perfected his appeal from such judgment.

Plaintiff urges only one point of error. He complains of error by the trial court in granting the defendant’s motion to disregard the finding of the jury to Special Issue No. 3(c), for the reason that there was evidence of probative value in the record to raise and support such finding.

A contention on appeal that an answer to a special issue should not have been disregarded presents a “no evidence” point. Harbin v. Seale, 461 S.W.2d 591 (Tex.1970); Frost National Bank v. Nicholas & Barrera, 534 S.W.2d 927, 932 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.); Harper Building Systems, Inc. v. Upjohn Co., 564 S.W.2d 123 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.). In deciding a “no evidence” question, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126, 127 (1959).

Special Issue No. 3, submitted to the jury was the damage issue. Included in such issue was subdivision (c) which inquired of the jury the damages sustained by plaintiff resulting from “loss of earnings in the past.” It was this element of damages which was disregarded and set aside by the trial court.

The sole question before this court is whether there was any evidence of probative value to support the jury’s finding that plaintiff sustained a loss of earnings in the past in the amount of $18,000.

Defendant argues that the element of damages submitted to the jury, to wit: “loss of earnings in the past”, is not the proper measure of damages, and the proper measure of damages should have been submitted in terms of “diminished earning capacity.” We agree. See Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); Greyhound Lines, Inc. v. Duhon, 434 S.W.2d 406, 415 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ); Dallas Ry. & Terminal Co. v. Gutherie, 146 Tex. 585, 210 S.W.2d 550 (1948); Jones v. Martin, 481 S.W.2d 467 (Tex.Civ.App.-Texarkana 1972, no writ). However, defendant made no objections to the charge on such grounds, and he has therefore waived any such complaint on appeal. Davis v. Campbell, 572 S.W.2d 660 (Tex.1978); Pool v. Dickson, 512 S.W.2d 68 (Tex.Civ.App.—Tyler 1974, no writ); Wilson v. King, 311 S.W.2d 957 (Tex.Civ.App.—Austin 1958, writ ref’d). The question then before us is whether there is any evidence of probative value to support a jury finding of lost earnings from the date of his injuries to the date of trial and not any such evidence of diminished earning capacity. Plaintiff submitted his case to the jury with a special issue that asked the jury to find in dollars and cents his loss of earnings in the past, and, as to the future, the jury was asked to find the extent of his lost earning capacity. As to actual loss of earnings in the past, plaintiff may have assumed a greater burden of proof than would have been required in showing loss of diminished earning capacity. See Ryan v. Hardin, 495 S.W.2d 345, 349-50 (Tex.Civ.App.-Austin 1973, no writ).

Plaintiff, in his attempt to prove loss of earnings, relies solely upon his loss of profits from his construction business. Plaintiff was self-employed in the business of constructing homes, both custom and speculative, most of which sold for a price within the range of $60,000 to $70,000 in 1977 and 1978. At the time of his injuries he was essentially the only employee of the business. All actual construction work was done by subcontractors. He performed the on-site inspections of the houses under construction, coordinated the various work crews, obtained the needed materials, and did all the paper work. He did not receive any salary from the company. His income or earnings from such business enterprise came solely from the net profits derived therefrom.

Plaintiff testified that he had started construction on twenty-one houses in the eight-month period immediately preceding the date of his accident. Seventeen of these were still under construction at that time. Thus, four houses had been completed during this eight-month period.

The remaining seventeen were completed during the nine-month interval between the date of the accident and the time of the trial. In addition to these, plaintiff had begun construction of six new houses after the accident and had only one which had not been sold at such time. During this nine-month period he had finished the construction of twenty-two houses and had sold twenty-one of them. He had derived the profits from these houses before the date of trial; therefore, he could have sustained no loss therefrom. In addition to the construction of such houses, he had been engaged in the construction of an office building. This was his own building, valued at $340,000, to be used as an office building, and he did not propose to make a profit from any sale of the building. It appears from the evidence plaintiff had during this period, beginning eight months before the accident and the date of the trial, completed twenty-six houses in addition to the time spent on construction of the office building. This total of completed houses is approximately the same as the average number of houses he testified as having constructed each year in the past.

Plaintiff testified that he had turned down nine to eleven jobs following his accident because of his injuries. However, he offered no proof of the type of house, the cost or anticipated profit to be derived from any such “job” which was turned down.

Plaintiff’s burden in proving loss of earnings is greater than proving diminished earning capacity as indicated in Ryan v. Hardin, supra. In a case involving earning capacity, our Supreme Court in Bonney v. San Antonio Transit Co., 325 S.W.2d 117 (Tex.1959), states the rule that:

“[W]here a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. . . . The reason for this rule is that although the amount of damages resulting from impairment of a plaintiff’s earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer.”

Where a plaintiff seeks special damages for loss of earning capacity in a particular business or profession, the amount of his earnings or the value of his services must be shown with reasonable certainty. Rubner v. Kennedy, 417 S.W.2d 860 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.).

We find no evidence in this record by which the jury could have arrived at an intelligent verdict as to the extent and amount of plaintiff’s damages for loss of past earnings. The verdict in this respect is based on mere conjecture. We, therefore, hold that there is no evidence of probative value to support the findings of the jury as to his loss of earnings from the date of the accident to the date of trial.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: RAY, Justice.

text:
    MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Brenda Carlstead WOOD, Appellee.
    No. 8661.
    Court of Civil Appeals of Texas, Texarkana.
    April 10, 1979.
    J. Hawley Holman, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    Errol N. Friedman, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellee.
   RAY, Justice.

This is a venue case. Appellee (plaintiff), Brenda Carlstead Wood, brought suit against appellant (defendant), Members Mutual Insurance Company, seeking recovery under her uninsured motorist coverage of her own automobile insurance policy. Her claim arose out of an automobile collision in which she was injured as a passenger while riding in one of the vehicles involved. Appellant filed its plea of privilege asserting venue in Dallas County, and ap-pellee, after obtaining leave of court, filed her controverting affidavit three days late. Subsequently, the court overruled appellant’s plea of privilege. Members Mutual Insurance Company has perfected its appeal and submits two points of error for our consideration.

Appellant’s first point of error is as follows:

“THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE CONTROVERTING AFFIDAVIT WHICH WAS FILED OUTSIDE THE TEN (10) DAY PERIOD PROVIDED BY TEXAS RULES OF CIVIL PROCEDURE, RULE 86.”

Rule 86, Tex.R.Civ.P., requires that the controverting affidavit be filed within ten days after the adverse party or his attorney of record has received a copy of the plea of privilege. Rule 5, Tex.R.Civ.P., allows the ten day period to be enlarged if the adverse party pleads and proves good cause for failure to act within the ten day period prescribed by Rule 86, supra. Bond v. Lewis, 496 S.W.2d 181, 183 (Tex.Civ.App. Waco 1973, no writ). This Court stated in Eagle Life Insurance Company v. Owens, 549 S.W.2d 243 (Tex.Civ.App. Texarkana 1977, writ dism’d), the following:

“. . . For good cause to exist a plaintiff must free himself of any implication of negligence, and show that some mistake or overreaching or some actual or constructive fraud upon the part of the defendant or his attorney induced delay. See 1 McDonald’s, Texas Civil Practice, Sec. 4.48.”

The record reflects that appellee’s counsel requested a copy of the automobile insurance policy from his client, from the lienholder and from opposing counsel in order to file a comprehensive controverting affidavit. As it turned out, none of those individuals had or were able to produce a copy of the policy before the time had elapsed for filing the controverting affidavit. Appellee’s counsel testified that he needed the policy in order to be accurate and to provide a truthful controverting plea. Verification of the controverting affidavit requires full knowledge of the facts set out in the plea. An affidavit based purely on information and belief is insufficient. Our review of the testimony and evidence in this case leads us to conclude that the trial court had good reason to grant the extension of time within which to file the controverting affidavit and that the trial court did not abuse its discretion by enlarging the time for filing the controverting plea. Appellant’s first point of error is overruled.

It is contended in appellant’s second point of error that the trial court erred in overruling the plea of privilege of Members Mutual Insurance Company. Appellee contends that she was entitled to bring suit in Bowie County under Subdivision 23, Art. 1995, Tex.Rev.Civ.Stat.Ann. Subdivision 23 provides in pertinent part the following:

“Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; . . . ”

It must be kept in mind that appellee Wood was suing her own insurance company to recover damages for her injuries which were inflicted by an uninsured motorist. Members Mutual Insurance Company argues that appellee had the burden of proving both the contract of insurance and its breach.

At the plea of privilege hearing, appellee proved that Members Mutual Insurance Company had an insurance policy in which she was the named insured and that the policy provided uninsured motorist coverage.

Appellant contends that in order to satisfy the requirements of Subdivision 23, supra, appellee had to establish the following:

“(1) That she had in force and effect a policy of insurance issued by the insurance company providing for the uninsured motorist coverage;
(2) That the other driver was an uninsured motorist within the terms of the policy;
(3) That the accident occurred in the county of the suit;
(4) That the uninsured motorist was negligent;
(5) That such negligence was the proximate cause of the accident; and
(6) That plaintiff sustained injuries or damages.”

We have concluded that appellee has met her burden of proof with respect to each of the above listed six requirements. However, appellant insists there is a seventh requirement and that appellee must also prove that the insurance carrier has failed and refused to pay the claim asserted by the insured. We agree.

Under Subdivision 23, supra, proof of the entire cause of action has always been considered one of the venue facts. Employers Casualty Company v. Clark, 491 S.W.2d 661, 662 (Tex.1973). In Trinity Universal Insurance Co. v. Varnado, 557 S.W.2d 374, 376 (Tex.Civ.App. Austin 1977, writ dism’d), the court stated:

“Appellee did prove the contract of insurance and his compliance therewith, but appellee failed to prove appellant refused to pay the claim. To prove a ‘cause of action,’ appellee had to establish the contract and its breach. Employers Casualty Co. v. Clark, supra.

It was essential to proving appellee’s cause of action that appellee show at least a right and a breach by appellant of the corresponding duty. In this case there is no evidence that appellee has filed a claim with the insurer that has been rejected. Since appellee did not prove a breach of the contract, the trial court should have sustained the plea of privilege.

The judgment of the trial court is reversed and judgment is here rendered transferring the cause to one of the district courts of Dallas County, to be assigned and docketed by the district clerk in accordance with Article 2093f, Tex.Rev.Civ.Stat.Ann. (Supp. 1978-1979). Employers Casualty Company v. Clark, supra.

HUTCHINSON, J., not participating.


author: KEITH, Justice. DIES, Chief Justice,

text:
    CITY OF HOUSTON, Appellant, v. George L. CALDWELL, Appellee.
    No. 8188.
    Court of Civil Appeals of Texas, Beaumont.
    April 12, 1979.

      Robert M. Collie, Jr., Harriet E. Hubacker, John R. Whittington, Jr., Houston, for appellant.
    William G. Nedd, Houston, for appellee.
   KEITH, Justice.

We withdraw our prior opinion and substitute this in lieu thereof.

Plaintiff alleged that he was an arson investigator and a member of the Fire Department of the City of Houston; that while on duty with the Fire Department on December 21, 1972, he was stricken with a serious heart attack which rendered him unable to perform his duties, and that he retired from the Fire Department “solely for medical disability to perform his duties.” He remained on the payroll at full pay of the department through July 25, 1973, when his retirement was approved, effective March 15, 1973.

City charged his salary to accrued sick leave time and, when plaintiff demanded the payment of his sick leave after he had retired, it was denied to him by an administrative decision of the Civil Service Commission’s Sick and Injury Leave Committee. It was from this decision that plaintiff appealed to the District Court where the cause was submitted to a jury.

Judgment was entered upon jury findings and a stipulation of counsel in the sum of $5,655.10, with lawful interest and costs, and City has appealed. We reverse for the reasons now to be stated.

City contended in the trial court, and renews the contention on appeal, that the trial court did not have jurisdiction to hear and decide the cause. It admits, as indeed it must, that, notwithstanding the statute is silent as to the right of an appeal, where a vested property right is involved, the denial of such an appeal would be in contravention of a constitutional right. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951); reaffirmed in Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237, 239 (Tex.1974).

Plaintiff had a right to sick and injury benefits only because of the provisions of Tex.Rev.Civ.Stat.Ann. art. 1269m, § 26 (1963), the material provisions being set out in the margin. There is no definition in the statute of the words “in line of duty,” but it is obvious that a claimant of benefits thereunder would have the burden of showing that his disability was caused by “injuries received while in line of duty.”

Plaintiff had a right to receive his full pay while he was suffering from disability caused by an injury received in line of duty; and, if he established such fact, the city erred in charging the pay which he received to his accumulated sick leave. City of Austin v. Phipps, 337 S.W.2d 427 (Tex.Civ.App.—Austin 1960), affirmed, 162 Tex. 112, 344 S.W.2d 673 (1961).

Plaintiff was not required to seek any additional administrative review of City’s action in charging his pay to his sick leave rather than paying for a disability caused by an injury received in line of duty. Phipps, supra, 344 S.W.2d 675.

In Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 161 (1961), the Court included a lengthy quotation from the California Supreme Court decision in French v. Cook, 173 Cal. 126, 160 P. 411, 413 (1916), which included this language:

“ ‘The party having a vested right in the performance of the act, if the facts are as claimed by him, has also the right to have his claim as to the facts judicially determined.’ ” (emphasis supplied)

Thus, we hold that plaintiff could prosecute his suit only if he had a vested right and that right was contingent upon his establishing as a matter of fact that he had sustained an injury resulting in disability in line of duty. And, under Phipps, supra, 344 S.W.2d at 676, he was entitled to have the fact issues determined by a jury.

City’s first points challenging the jurisdiction of the court to hear plaintiff’s claim have no merit and are overruled.

An examination of Special Issue No. 1 makes it certain that the trial court couched the liability issue under the test of compen-sable injury as set out in the Workers’ Compensation Act. The phrase “producing cause” was defined in the precise language found in 2 State Bar of Texas, Texas Pattern Jury Charges PJC 22.01 (1970).

In its fourth point, City contends that this was error because such definition “is not applicable to this case.” Finally, City contends that “the jury findings establish as a matter of law that plaintiff did not suffer a compensable injury.”

In urging these points, City readily admits that our courts have been liberal in construing the words “accidental” and “injury” in workers’ compensation cases involving heart attacks. See, e. g., Olson v. Hartford Accident and Indemnity Co., 477 S.W.2d 859, 860 (Tex.1972).

But, it also points to other language found in Olson,

“For there to be an accidental injury, or an industrial accident, there must be an undesigned, untoward event traceable to a definite time, place, and cause. [477 S.W.2d at 859]
[and]
“[E]xcept in the case of the occupational diseases designated by the Legislature, it [the Supreme Court] has adhered to the requirement that there be an accidental injury traceable to a definite time, place, and cause. This element is lacking here.” (Id. at 860)

City also calls to our attention language found in Baird v. Texas Employers’ Ins. Ass’n, 495 S.W.2d 207, 211 (Tex.1973), that “a heart attack caused by strain or over-exertion is an accidental injury to the physical structure of the body within the meaning of the Workmen’s Compensation Act.” Language in Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976), indicates the importance of such a holding. Making it very plain that “[t]he workmen’s compensation law does not provide for health insurance,” the court noted that the mere fact that an employee dies while on the premises of his employer during working hours is not sufficient to create liability. The burden is upon the claimant to show an accidental injury causing or contributing to the death.

In a very recent case, Transportation Insurance Co. v. Maksyn, 580 S.W.2d 334 (Tex.1979) [not yet reported except in 22 Tex.Sup.Ct.J. 237, 240 (February 28, 1979)], the Court held:

“It appears that the Texas Legislature drew its line for compensability for occupational diseases by limiting coverage to those cases in which physical activities cause harm or injury and by denying coverage when mental activities cause the harm or injury. The legislature very well reasoned that physical activities are identifiable and traceable whereas such factors as worry, anxiety, tension, pressure, and overwork are not. In the case of mental activities, there must be the more reliable proof of an ascertainable time, place, and event.”

Having stated the rule with reference to the recovery under the compensation law, we turn now to an examination of plaintiff’s own testimony concerning the cause of his heart attack.

First, we note that plaintiff did not even attempt to show any exertion. He was unable to state what work, if any, he did on the date he was stricken. He reported for work at four in the afternoon and had his attack four and a half hours later. Departmental records reveal that he did not have an assignment that day. When questioned, plaintiff could not recall any specific strain or exertion, emotional shock, accident, startling experience, or exciting mental stimulation. He readily admitted that if he had had the attack five hours earlier, he would not have claimed entitlement to an injury leave. He made no effort to show that his job was the cause of his heart attack; on the contrary, he asserts that he is entitled to injury leave status and pay solely because he was on duty at the time of the heart attack.

Plaintiff offered the testimony of Dr. John B. Stavinoha, a general practitioner who had treated him after his heart attack. This witness testified in detail as to the cause of heart attacks, as is shown by this short excerpt from his testimony. He answered a question with a question:

“A. What causes a heart attack?
THE COURT: What caused this one? THE WITNESS: Okay. This one was caused by arteriosclerosis in a blood vessel that is leading to the heart and a shortage of the blood flow in that blood vessel and then the tissues distal to it dies.”

The witness testified that in his opinion the plaintiff “was under a considerable amount of stress.” Finally, in answer to a lengthy hypothetical question, and over City’s objection, Dr. Stavinoha testified that the stress of the work being done by plaintiff “did contribute to his heart attack.” It is to be noted that the hypothetical question did not contain any reference to any physical injury traceable to a definite time, place, and cause.

While our courts have been extremely liberal in allowing recovery for heart attacks under the compensation act — a statute entitled to and always given a liberal interpretation — plaintiff would not have made a submissible case even under that statute. Olson, supra, and Maksyn, supra.

The very statute which created the right plaintiff seeks to enforce spoke to his entitlement to accumulated sick leave pay. He could accrue fifteen working days of sick leave in one calendar year; and, he was entitled to payment of all accumulated sick leave, not to exceed ninety working days, when he left the service. Sec. 26, Art. 1269m. But, he was entitled to full pay during an injury leave of absence only because of disability from “injuries received while in line of duty.”

Our dissenting brother, relying upon a series of out-of-state cases arising under different statutory provisions, equates disability with injury. Our statute requires proof of an injury as a condition precedent to a recovery.

The New York cases cited are not even persuasive, much less controlling in the disposition of this appeal. The applicable New York statute, a portion of which is quoted in Sullivan v. Delphi Falls Fire Company, 29 A.D.2d 584, 285 N.Y.S.2d 682, 683 (1967), provides for the recovery of death benefits as defined in the statute and their courts have held that “[tjhere is no requirement that there must be an ‘accidental injury arising out of and in the course of employment’ . .

An examination of each of the New York cases cited, and others, reveals that in each instance, there was some unusual stress, strain, or physical activity which brought on the heart attack.

In each of the cases mentioned, the review was under the substantial evidence rule of procedure and, in each instance, the claimant had produced sufficient evidence to convince the Board that the heart attack resulted from stress and physical activity. No such proof is present here where plaintiff had the burden of proving an injury received in line of duty by a preponderance of the evidence.

Nor do we find the dictum in Creighan v. Firemen’s Relief and Pension Fund Bd., 397 Pa. 419, 155 A.2d 844, 848 (1959), persuasive. There, the fireman inhaled smoke while in line of duty fighting a fire and contracted tuberculosis as a consequence thereof. The Supreme Court of Pennsylvania simply held that so long as there was proof that the “injury arose out of performance of duty and the resulting disability became a continuing one,” the statute authorized a recovery.

The Wisconsin court in State v. Board of Trustees of Policemen’s Pension Fund, 138 Wis. 133, 119 N.W. 806, 807 (1909), was engaged in construing its own statute. In so doing, it used this language:

“[T]he word ‘injury’ is used in this statute in a sense broad enough to include the contracting of a disease, provided, of course, that such injury is suffered in the course of and by reason of the performance of the distinctive duties imposed upon the sufferer as a policeman . . .” (emphasis supplied)

We have noted earlier the complete absence of any evidence that anything happened to plaintiff while on duty which could have precipitated the heart attack. In all of the cases cited in the dissent there was some untoward event which contributed to cause the incapacity. Our statute provided for Caldwell to be paid if he became sick and unable to work for any reason; the same statute provided that he would be paid for an injury received while in line of duty. The mere fact that “Caldwell’s heart attack occurred while he was on duty” did not establish that he received an injury in line of duty entitling him to the pay which he sought in this case.

Plaintiff labored under the burden of showing that his heart attack was caused by an injury received while in line of duty with the Fire Department. Insofar as shown by this record, plaintiff did not exert as much energy as it would take to wind his watch on the day in question. Considering the evidence from the standpoint most favorable to his contention and position — indeed, considering his own testimony alone— we find no evidence of probative force showing or tending to show that he sustained an injury in line of duty which was the producing cause of his heart attack. The evidence is simply nonexistent and does not even create a surmise or suspicion of the existence of any accidental injury. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970).

The judgment of the trial court is reversed and the judgment now rendered that plaintiff take nothing. It is so ordered.

DIES, Chief Justice,

dissenting.

With respect, I dissent. The majority opinion deals entirely with the failure of Caldwell’s proof to establish a compensable injury under the Texas Worker’s Compensation Act. But here we are dealing with an entirely different act which compensates Caldwell for “injuries received while in the line of duty.” Tex.Rev.Civ.Stat.Ann. art. 1269m, § 26 (Vernon 1963). We must take a statute as we find it and find its intent in the language of the statute and not elsewhere. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920); Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.1968). In determining the meaning of a statute, the dominant consideration is to ascertain the intention of the Legislature, and this is to be found in the language of the statute itself. Jones v. Del Anderson & Associates, 539 S.W.2d 348 (Tex.1976).

If the Legislature had wished to define injury in this statute as it did in the worker’s compensation act (which is what the majority holds), it certainly would have done so.

“It should first be noted that the term ‘injury’ as used in the Volunteer Firemen’s Benefit Law as a predicate to the recovery of benefits requires only a disablement resulting from services ‘in the line of duty’ and not an ‘accidental injury arising out of and in the course of employment’ (i. e., an industrial accident) as required in the Workmen’s Compensation Law (Matter of Sullivan v. Delphi Falls Fire Co., 29 A.D.2d 584, 285 N.Y.S.2d 682). The activities of the decedent were clearly within this narrow legislative definition of coverage . . . .”

Rigali v. Town of Colonie, Verdoy Fire Dist., 47 A.D.2d 507, 367 N.Y.S.2d 570, 572-3 (1975).

In Sullivan v. Delphi Falls Fire Co., 29 A.D.2d 584, 285 N.Y.S.2d 682 (1967), a heart attack of a fireman in a Memorial Day parade was held ‘in the line of duty.’ See also Lynch v. Tobriner, 237 F.Supp. 313, 316 (U.S.D.C.1965). “The word ‘injury’ is not limited to injuries caused by violence or physical force. It must be given a broader and more liberal meaning.” See also State ex rel. McManus v. Board of Trustees of Policemen’s Pension Fund, 138 Wis. 133, 119 N.W. 806, 807 (1909) (where a policeman caught pneumonia while on a trip to make an arrest). “Therefore there is nothing inherent in the word [injury] to limit the injuries to which this statute applies to those from physical or external violence.” See also Creighan v. Firemen’s Relief and Pension Fund Board of City of Pittsburgh, 397 Pa. 419, 155 A.2d 844 (1959), where a fireman contracted tuberculosis.

Tex.Rev.Civ.Stat.Ann. art. 10 (Vernon 1969) requires “The ordinary signification shall be applied to words . . . .” Caldwell’s heart attack occurred while he was on duty and thus to this writer clearly “in the line of duty.” I would affirm the judgment of the trial court.

      . Two special issues were submitted:

        Special Issue No. 1

      “Do you find from a preponderance of the evidence that the Plaintiff’s employment with the Fire Department of the City of Houston, Texas, was a producing cause of a myocardial infarction suffered by the Plaintiff on December 21, 1972?”
      To which the jury answered: “We do.”
      “ ‘Producing Cause’ means an injury or condition which, either independently or together with one or more other injuries or conditions, results in incapacity, and without which such incapacity would not have occurred when it did.”

        Special Issue No. 2

      “Do you find from a preponderance of the evidence that Plaintiffs Myocardial Infarction on December 21, 1972 was the result of an undesigned, untoward event traceable to a definite time, place and cause?”
      To which the jury answered: “We do not.”

      . The forepart of the cited Section 26 spells out how sick leave is accumulated. The last full paragraph is the one applicable to the case at bar and it reads:
      “Provided that all such cities coming under the provisions of this Act shall provide injury leaves of absence with full pay for periods of time commensurate with the nature of injuries received while in line of duty for at least one (1) year. . . . ” (emphasis supplied)

      . See, e. g., Fish v. Smithville Volunteer Fire Co., 12 A.D.2d 573, 206 N.Y.S.2d 822 (1960); Morrison v. Canterbury Fire Dist., 13 A.D.2d 861, 214 N.Y.S.2d 518 (1961).

      . This holding would not be in conflict with the rule governing claims under the Texas Workers’ Compensation Act. See, e. g., Highlands Ins. Co. v. Clements, 422 S.W.2d 218, 219 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.).


author: WARD, Justice.

text:
    CARR WELL SERVICE, INC., Appellant, v. SKYTOP RIG COMPANY, Appellee.
    No. 6760.
    Court of Civil Appeals of Texas, El Paso.
    April 18, 1979.
    Rehearing Denied June 13, 1979.

      Law Offices of Bill Alexander, Bill Alexander, Larry Myrick, John L. Barnhill, Odessa, for appellant.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Lucius D. Bunton, Fred M. “Mickey” Jones, Jim Moseley, Odessa, for appel-lee.
   OPINION

WARD, Justice.

Skytop Rig Company recovered judgment in a jury tried case against Carr Well Service, Inc., upon a sworn account for labor and materials expended in rebuilding a well servicing unit. The Defendant appeals, and we affirm in part, reverse in part and remand with instructions.

Skytop’s petition alleged that, as shown by attached invoices made a part of the petition, the Plaintiff sold to the Defendant goods and parts along with labor and services in the usual and ordinary course of its business, the invoices having been systematically kept. It further alleged that the Defendant promised to pay for the goods and services at the prices shown on the invoices or, in the alternative, that the Defendant agreed to pay the usual customary and reasonable prices of the items in Ector County, and that the prices as shown were such usual and customary prices for the items and services. The Plaintiff also alleged that there was due and owing on the invoices interest at the rate of 1½% per month from the due date of the invoices until paid. Attached to the petition was a sworn account affidavit complying with the terms of Rule 185, Tex.R.Civ.P. Defendant filed a verified denial of account, denying that the Plaintiff was suing on an account, as the cause of action, if any, rested on a special contract, and that the interest charged by the Plaintiff was usurious. In addition, the Defendant filed a cross-action based on the usury charge claiming that the Defendant was entitled to recover under the terms of Article 5069-1.06(1), Tex.Rev. Civ.Stat.Ann., twice the amount of interest charged and reasonable attorney fees.

Since the Plaintiff was faced with the verified denial of the correctness of the Plaintiff’s sworn account, the Plaintiff felt that it was obliged to prove the correctness of its account by competent evidence. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941). The evidence introduced was to the effect that the Plaintiff and Defendant had been dealing with each other on a credit basis for fourteen years, during which time the Plaintiff had built and rebuilt several rigs for the Defendant.' In August, 1974, a well servicing rig owned by the Defendant was damaged while on location, and George Montgomery, the President of Carr Well Service, requested that the Plaintiff’s manager go to the site of the damaged rig to survey the extent of the damage and obtain an estimate as to the cost of repairing the rig. This was done, and on August 15, 1974, the damaged rig was delivered to the Skytop Rig yard in Odessa to be rebuilt. The rebuilt rig was delivered to Carr Well Service in early December, 1974 and on or about December 10th the Plaintiff sent to the Defendant a bill in the amount of $40,561.47 for materials and labor, and charging interest at the rate of 1½% per month on the account.

The Defendant offered evidence that at one time there was a contract to repair the rig for $20,000.00, and that the reasonable charge for the labor and materials furnished in Ector County was in the amount of $30,000.00. Additional proof was offered that the repair work on the rig was unreasonably delayed, and that as a consequence the Defendant was damaged from not being able to use the rig within a reasonable time. The Defendant’s president further testified that the rig was satisfactorily repaired and delivered to his company; that nothing had been paid on the account or bill; and that money was due and owing though the amount was in dispute.

By its answers to the special issues submitted, the jury determined that the reasonable charge in Ector County for repairing and rebuilding the well servicing rig was $30,000.00; that the Plaintiff unreasonably delayed the completion of the rig during the period in question, and that the damages sustained by the Defendant by reason of the delay was the sum of $3,600.00. Judgment was thereafter entered for the Plaintiff based upon the verdict of the jury in the sum of $26,400.00.

The Defendant’s first point was that the Court erred in submitting Special Issue No. 1 which inquired as to the reasonable charge in Ector County of repairing and rebuilding the well servicing rig for the reason that there was no evidence of an account as alleged by the Plaintiff but that the evidence established a special contract. Under the point, the Defendant argues that the repair of a well servicing rig was an isolated transaction as opposed to the continuing course of dealing normally associated with an account, and that, as a special account, recovery could not be had under the pleadings alleging a sworn account in accordance with Rule 185, Tex.R.Civ.P. The point is overruled. Rule 185, Tex.R. Civ.P., can apply to contracts between parties resting upon special contracts so long as the transaction concerns one of those provided for in the Rule. Here, the transaction to repair the rig was for labor done or for labor or materials furnished by the Plaintiff, and the Plaintiff’s pleadings and proof offered were consistent with that transaction. We recognized that pleadings and proof of a case covering a special contract between parties for items of liability not covered by Rule 185, Tex.R.Civ.P., can at times be fatal. That type of case is well illustrated by Hollingsworth v. Northwestern National Insurance Company, 522 S.W.2d 242 (Tex.Civ.App.—Texarkana 1975, no writ). There, the special contract established was without the terms of Rule 185, Tex.R.Civ.P., and the Plaintiff failed as his proof was foreign to his pleadings which were within the terms of Rule 185. See Larcon Petroleum, Inc. v. Autotronic Systems, Inc., 576 S.W.2d 873, 975 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ).

Defendant’s next two points are to the effect that the trial Court erred in failing to submit a complete series of issues necessary to justify a recovery upon an account. The one special issue submitted inquired of the jury as to what they found from a preponderance of the evidence “to be the reasonable charge in Ector County, Texas of repairing and building the well servicing rig in question in the fall of 1974.” The Defendant asserts that the essential elements of a cause of action on an account are (1) sale and delivery of the merchandise; (2) that the prices were usual, customary or reasonable; and (3) that the account was due, owing and unpaid. Dockrey v. Higginbotham Bartlett Company, 493 S.W.2d 254 (Tex.Civ.App.—Eastland 1973, no writ); Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App.—Waco 1971, no writ). Mr. Montgomery, the Defendant’s president, testified that the rig as rebuilt was done in accordance with his instructions; that he had received the rig; that he was satisfied with its performance; and that he had not paid anything for the construction. The Defendant’s additional testimony was that the reasonable, usual and customary charges for the parts and labor on the rig in Odessa in November, 1974 was $30,000.00. There was no need to submit issues on which admissions had been made. The controlling issue raised by the pleadings and the evidence in this case was fairly submitted. Tex.R.Civ.P. 279. Under the objections as presented and the argument made, the points are overruled.

In this connection, the Plaintiff now argues that the written denial under oath filed by the Defendant was defective as made in a form not contemplated by Rule 185, Tex.R.Civ.P. No exception was lodged against this defect in the trial Court, or objection to the testimony ever made by the Plaintiff. Under the state of the record, the burden of proof was cast upon the Plaintiff to prove and submit its case as at common law. Dockrey v. Higginbotham Bartlett Company, supra. The Defendant’s failure to properly verify its answer was a defect in pleadings. That defect was waived by the Plaintiff’s failure to bring the defect, commission, omission or fault of the pleadings to the attention of the Court before rendition of the judgment. Rule 93(k), Tex.R.Civ.P.; Robinson v. Faulkner, 422 S.W.2d 209, 213 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). Regardless, there was a fair submission of the Plaintiff’s theory of the case, and the Defendant’s two points are overruled.

The Defendant’s final point is that the Court failed to allow to the Defendant either recovery against the Plaintiff or an offset to the judgment for twice the amount of interest charged and reasonable attorney fees, as the interest charged by Skytop Rig Company was usurious. Sky-top’s own pleading charged interest on the account at 1½% per month from the due date of the account until it was paid. The proof offered on behalf of the Plaintiff was to the effect that the charge was made and that the charging was neither accidental nor erroneous. Article 5069-1.06, Tex.Rev. Civ.Stat.Ann., provides in the first paragraph as follows:

(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.

The language “contracts for, charges or receives interest” is in the disjunctive and only one such condition need occur to trigger the penalties. Windhorst v. Adcock Pipe and Supply, 547 S.W.2d 260 (Tex.1977). Article 5069-1.02, Tex.Rev.Civ.Stat.Ann., provides: “A greater rate of interest than ten percent per annum unless authorized by law shall be deemed usurious.” It is the contention of the Plaintiff that the transaction here is one of those that is exempted from the 10% ceiling, as the Defendant is a corporation and the principal amount upon which the Plaintiff charged interest is in excess of $5,000.00. The Plaintiff therefore asserts that Article 1302-2.09, Tex.R.Civ.P. (Vol. 3, Supp. 1963-1978), applies. That statute provides:

Notwithstanding any other provision of law, corporations, domestic or foreign, may agree to and stipulate for any rate of interest as such corporation may determine, not to exceed one and one-half percent (1½%) per month, on any . debt, ... of such corporation under which the original principal amount is Five Thousand Dollars ($5,000) or more,

The statute is not applicable since the statutory language is to the effect that the debtor corporation must agree to the higher rate of interest. Here, this debtor never agreed to the terms of this exception.

The Defendant at all times has limited its recovery or offset to the penalties set forth by Article 5069-1.06(1), Tex.Rev. Civ.Stat.Ann., and the heavier penalty called for by paragraph (2) of that Article is not before us. Houston Sash and Door Company, Inc. v. Heaner, 577 S.W.2d 217 (Tex.1979). We limit the recovery to the penalty provided by Article 5069-1.06(1), Tex.Rev.Civ.Stat.Ann., in accordance with the Defendant’s request.

While the Defendant was entitled to attorney fees to be fixed by the trial Court, no evidence was either introduced nor offered to be introduced by the Defendant on its claim for said attorney fees. Since no basis exists for the attorney fees, that part of the Defendant’s claim will be denied.

That portion of the trial Court’s judgment ordering that the Plaintiff have judgment against the Defendant in the sum of $26,400.00 is affirmed; that portion of the judgment awarding interest on said sum from January 1, 1975 is reversed and here rendered that the Plaintiff recover no interest on said sum during said period of time to the date of entry of judgment on July 11, 1977. To the extent only that the trial Court denied all relief to Carr Well Service, Inc., on its claim for usury, that portion of the judgment is hereby reversed; and the entire cause is now remanded to the trial Court with instructions that the trial Court enter judgment in favor of Carr Well Service, Inc., for twice the amount of interest charged on the account from January 1, 1975 until July 11, 1977, the date of judgment, and that said sum as determined be entered as a credit or offset against the Plaintiff’s judgment.


author: WARREN, Justice.

text:
    Howard OTTO, Appellant, v. RAU PETROLEUM PRODUCTS, Appellee.
    No. 17425.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 19, 1979.
    Woody S. Monica, Jr., Houston, for appellant.
    H. F. Halcom, Columbus, for appellee.
   WARREN, Justice.

Appellee has filed a motion praying for dismissal of this cause on appeal alleging that the appellant has fully paid, satisfied and discharged the money judgment rendered in the trial court and that a full and complete release of said judgment and liens existing by reason thereof has been executed and delivered. Appellant does not dispute the facts alleged in appellee’s motion.

Appellate courts will not decide moot cases or abstractions. Cain, Brogden & Cain, Inc. v. Int’i Brotherhood of Teamsters 155 Tex. 304, 285 S.W.2d 942 (1956). Where a defendant has voluntarily paid the judgment rendered in the trial court, questions involved in the appeal become moot Travis County v. Matthews, 221 S.W.2d 347 (Tex. Civ.App. — Austin 1949, no writ).

When a cause becomes moot upon a defendant paying the judgment pending appeal, the judgment will be set aside and the cause, not merely the appeal, will be dismissed. Travis County v. Matthews, supra ; Red Ball Motor Freight, Inc. v. Southern Conference of Teamsters, 358 S.W.2d 955 (Tex.Civ.App.—Waco 1958, no writ).

It being undisputed that the controversy between the parties no longer exists, it is ordered that the judgment of the trial court be reversed and the cause dismissed.

EVANS and WALLACE, JJ., sitting.


author: DOYLE, Justice.

text:
    CITY OF NASSAU BAY, Appellant, v. Dr. Eugene WINOGRAD, Trustee, Appellee.
    No. 17396.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 26, 1979.
    Rehearing Denied May 24, 1979.
    MeConnico, Gregg & Kennamer, Dick H. Gregg, Jr., Houston, for appellant.
    Stolbun & Shaw, Sam L. Stolbun, Bel-laire, for appellee.
    Before COLEMAN, C. J., and DOYLE and PEDEN, JJ.
   DOYLE, Justice.

In a proceeding pursuant to the Uniform Declaratory Judgment Act, the appellee, Dr. Eugene Winograd, Trustee, (Dr. Wino-grad) sought a construction of Articles 1183-1187, V.A.C.S., and of Ordinance 77-194 of the City of Nassau Bay, appellant, (Nassau Bay) as they applied to certain property owned by Dr. Winograd. From an adverse summary judgment, Nassau Bay appeals.

The material facts are undisputed. On or about December 7, 1976, Dr. Winograd acquired 65 acres of land in the Clear Lake area of Harris County, Texas, for the purpose of development, including apartments, shopping centers and office buildings. On June 13, 1977, Nassau Bay, through its city council, enacted Ordinance 77-194, which purported to annex an area of land lying on both sides of Cow Bayou under the authority of Articles 1183-1187, V.A.C.S. The major portion of Dr. Winograd’s 65 acre tract is included within the boundaries of the annexed area. Dr. Winograd had undertaken and completed some building projects in the subject area at the time Nassau Bay passed Ordinance 77-194. Controversy arose when Nassau Bay began to require that Dr. Winograd comply with all of its general regulatory ordinances, including ordinances on zoning, building codes, subdivisions, safety regulations and swimming pools. Nassau Bay contends that it has the right of general regulatory control over Dr. Winograd’s tract of land by virtue of the language of Article 1186, V.A.C.S., and that the district court did not have jurisdiction to hear and determine the cause. Dr. Win-ograd argues that Articles 1183 through 1187, V.A.C.S., are for the limited purpose of annexation to promote and regulate navigation and wharfage and do not require him to comply with the general regulatory control of Nassau Bay’s Ordinance 77-194.

The statutes in question read as follows:

Art. 1183. Extension of limits
The city council of all cities situated along or upon navigable streams in this State, and acting under special charters, may extend the limits of said city for the limited purposes named in the four succeeding articles, so as to include in said city the said navigable streams and land lying on both sides thereof for a distance of twenty-five hundred feet from the thread of said stream to a distance of twenty miles or less in an air line from the ordinary boundaries of said city, or both, by the passage of an ordinance extending the boundaries of said city to include the territory aforesaid, being a strip five thousand feet wide, and twenty miles, more or less, in length, or so much thereof as the city council may consider advisable to add to the limits of said city. Acts 1913, p. 47.
Art. 1184. Powers
The city council of said city shall have the right, power, and authority to secure land within the territory so added to said city by purchase, condemnation or gift, for the improvement of the navigation of said navigable streams or waters either by the United States or by said city, or by any navigation or other improvement district, and for the purpose of establishing and maintaining wharves, docks, railway terminals, side tracks, warehouses or any other facilities or aids whatsoever to either navigation or wharves. In all condemnation proceedings under this law the same procedure shall apply that now applies in condemnation of land by cities for the purchase of streets. Id.

Art. 1185. Status of territory

For the purposes specified, the corporate limits of said cities shall, upon passage of said ordinance, be extended from the existing limits so as to include all the land added to said city by said ordinance. Such city shall have no right to tax the property over which such boundaries are extended, unless such property is within the line and within the limits of the general city boundaries or limits. Id.
Art. 1186. Regulation
After the passage of the ordinance adding such territory to said city, said city shall have and exercise the fullest and most complete power of regulation of navigation and of wharfage and of wharfage rates and of all facilities, conveniences and aids to wharfage or navigation consistent with the Constitution of this State, and shall further have authority by criminal ordinances or otherwise, to police the navigation of said waters and the use of said wharves and facilities and aids to wharfage and navigation. Id.
Art. 1187. Restrictions
The power granted in the four preceding articles shall not authorize the extension of the territory of any city for the limited purposes named so as to include any land which is already part of any other city or town corporation whether incorporated under the general laws or under special law, or any land at the time belonging to any other city or town. Id.

Pursuant to the foregoing articles, the City Council of Nassau Bay passed, approved and adopted on June 13, 1977, Ordinance 77-194 which took effect on such date. In summary the ordinance followed the exact procedure outlined by the articles for the annexation of land along both sides of the navigable stream of Cow Bayou, sometimes known as Carlton Lagoon, not exceeding a distance of 2500 feet from the thread of said stream and not exceeding a distance of 20 miles in an air line from the ordinary boundaries of said city, either above or below the boundaries of said City, or both. The ordinance sought to bind all lands so annexed and inhabitants thereof by this provision:

Section 2: The following described navigable stream and lands lying on both sides thereof be and the same are hereby annexed to the City of Nassau Bay, Texas, and the boundary limits of the City of Nassau Bay be, and the same are hereby extended to include the following described navigable stream and lands lying on both sides thereof, within the City Limits of the City of Nassau Bay, and the same shall hereafter be included within the territorial limits of said City, and the inhabitants thereof shall hereafter be entitled to all the rights and privileges of other citizens of the City of Nassau Bay, and they shall be bound by the acts, ordinances, resolutions and regulations of said City to the full extent permitted by law, including but not limited to Articles 1183 to 1187 V.A.C.S.

Attached to the ordinance is a metes and bounds description of the land annexed which included the major portion of Dr. Winograd’s 65 acre tract.

There is no contention by either party that the statutes or ordinance in question are unconstitutional or irregular in any manner.

Nassau Bay, by point of error one, complains that the trial court erred in sustaining Dr. Winograd’s motion for summary judgment for the reason that it had no jurisdiction. It is Nassau Bay’s contention that jurisdiction to determine the validity of penal statutes and ordinances where irreparable injury to vested property rights is not involved, is vested exclusively in the criminal courts, and the legislature did not intend to enact a Declaratory Judgment Act, Article 2524-1, V.A.C.S., in conflict with such constitutional interpretations. Article 2524-1, V.A.C.S., provides:

Section 1. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed .
Section 2. Any person interested . or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
Section 12. This Act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.

Texas courts have continually held that where a “justiciable controversy” is present, the district court may adjudicate the rights of the parties. Clark v. City of Dallas, 228 S.W.2d 946 (Tex.Civ.App.—Waco 1950, no writ); City of Wichita Falls v. Evans, 410 S.W.2d 311 (Tex.Civ.App.—Fort Worth 1966, no writ). The courts have also allowed declaratory judgments to determine the construction of statutes and ordinances. Couch v. City of Fort Worth, 287 S.W.2d 255 (Tex.Civ.App.—Fort Worth 1956, no writ); Humble Oil & Refining Co. v. Daniel, 259 S.W.2d 580 (Tex.Civ.App.—Beaumont 1953, writ ref’d n. r. e.) cert. den. 347 U.S. 936, 74 S.Ct. 631, 98 L.Ed. 1086 (1954). In the case at bar there is a present controversy and Dr. Winograd does have the right to “relief from uncertainty and insecurity”. Nassau Bay’s first point of error is overruled.

By its second point of error Nassau Bay contends that the trial court erred in sustaining Dr. Winograd’s motion for summary judgment and declaring that Articles 1183— 1187, V.A.C.S., do not authorize Nassau Bay, pursuant to its annexation ordinance 77-194, to exercise general regulatory control over Dr. Winograd’s tract of land and specifically do not authorize Nassau Bay to require Dr. Winograd to comply with its zoning laws, building codes, subdivision rules or ordinances, safety regulations and swimming pool regulations, and Nassau Bay is not entitled, pursuant to Articles 1183-1187, V.A.C.S., to require compliance with these ordinances, codes or regulations. This point of error involves the judicial interpretation and construction of the statutes and ordinance set out above. Do these articles limit Nassau Bay’s annexation power to navigation and wharfage purposes only, or once the land is annexed, can Nassau Bay exercise general regulatory powers over the subject land?

We have examined the few cases in Texas that have had the occasion to render decisions involving Articles 1183-1187. While the cases of City of Orange v. Rector, 205 S.W. 503 (Tex.Civ.App.-Beaumont 1918, no writ); Tod v. City of Houston, 276 S.W. 419 (Comm.App.—1925, judgment adopted); City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex.Civ.App.—Galveston 1939, writ ref’d); City of Houston v. Houston Endowment, Inc., 428 S.W.2d 706 (Tex.Civ.App.—Houston [1st Dist.] 1968, motion denied 438 S.W.2d 935, writ ref’d n. r. e.); City of Pasadena v. State of Texas Ex. Rel. City of Houston, 442 S.W.2d 325 (Tex.1969) and Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.), all discuss Articles 1183-1187 and the annexation of land pursuant thereto, each case describes and recognized them as limited or special purpose articles enacted to deal with navigation and wharfage. None of these cases is definitive of the rights of the parties herein, since they do not discuss the powers, control, and authority a city derives from annexation under the subject articles. Therefore, the answer to the question before this court must be found by looking to the legislative intent revealed by these articles and the application of established rules of statutory construction.

Where the legislature has not defined a term employed in a statute such words are ordinarily given their plain meaning. Clements v. City of Corpus Christi, 471 S.W.2d 83 (Tex.Civ.App.-Corpus Christi 1971, writ ref’d n. r. e.); Brantley v. City of Dallas, 545 S.W.2d 284 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.).

To determine what the legislative intent is in a given article or group of articles, we must look to the articles themselves. It is the intent of the legislature that must guide the court when it construes a statute. Our Texas Supreme Court stated the rule thusly in Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1038-9 (1916):

The intention of a law is the essence of the law, and from this it follows that the primary rule of construction is to ascertain and give effect to that intention.

Dr. Winograd has cited several authorities supporting this rule of statutory construction. The intention of the legislature in enacting a statute must be determined from the language of the statute as therein set out. Courts must not look elsewhere than to the language of the statute to ascertain its intent. Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961); Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937); Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968) quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920). As stated in Sabine Pilots Association, et al. v. Dykes Brothers Steamship, Inc., et al., 346 S.W.2d 166, 169 (Tex.Civ.App.—Austin 1961, no writ):

There is nothing indefinite or misleading in these provisions, and the remaining language of the statutes does not confuse this meaning. In this situation there is no occasion to look elsewhere than to the words of the statute to determine its meaning and the words of the statute is the best evidence of the legislative intent.

Articles 1183 through 1187 are models of simplicity in revealing the legislative intent. That intent is to allow cities on navigable streams to extend their city limits within certain boundaries for the limited purposes of aiding navigation and wharves.

We have carefully considered the argument and the cases cited by Nassau Bay to the effect that the articles under consideration should be given a liberal, rather than strict construction so as to reach the true objective of enactment and thereby give effect to the legislative intent. This court cannot give a liberal construction where the law is expressed in plain and unambiguous language. To construe Articles 1183 through 1187 in such a manner as would allow Nassau Bay to exercise general regulatory control over lands annexed thereunder would clearly be a judicial extension of the articles beyond the expressed legislative intent. Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 158 (1960); Second Injury Fund v. Keaton, supra. We overrule Nassau Bay’s second point of error.

The judgment of the trial court is affirmed.


author: DIES, Chief Justice.

text:
    Ray YATES et al., Appellants, v. MOBILE AMERICA SALES CORPORATION et al., Appellees.
    No. 8257.
    Court of Civil Appeals of Texas, Beaumont.
    April 26, 1979.
    Rehearing Denied May 31, 1979.
    Jon B. Burmeister, Port Arthur, for appellants.
    Frank M. Lamson, Port Arthur, F. Walter Conrad, Jr., Houston, J. B. Whittenburg, Beaumont, David B. Bonham, Nederland, for appellees.
   DIES, Chief Justice.

This case stems from the purchase of a repossessed 1974 Holiday Mobile home from Mobile America Sales Corp. on February 12, 1977. Credit on the sale was carried by Ford Motor Credit Co. Ray Yates and wife had not established good credit; so, Mrs. Yates’s father, James Humble, signed the contract. The purchase price was $10,-836.49, and the Yateses made a down payment of $1,200.

Appellants, plaintiffs below, James Humble, Hilda and Ray Yates, brought an action to recover money damages against appel-lees Mobile America Sales Corp. (Mobile America) and Ford Motor Credit Co. (Ford) for violations of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.01 et seq. (Vernon 1971), and a violation of the Truth in Lending Act, Federal Consumer Credit Protection Act, 15 U.S.C.A. §§ 1601 et seq. (1974) and Regulation Z, 12 C.F.R. §§ 226.1 et seq.

An additional cause of action for alleged violations of the Consumer Protection Act was severed prior to trial, and appellants were awarded $10,000.

On September 1, 1978, the parties proceeded to a non jury trial on the other issues, and a final judgment was entered that the plaintiffs take nothing. It is from this judgment plaintiffs appeal. Findings of Fact and Conclusions of Law were filed.

Appellants have numerous eviden-tiary points attacking Findings of Fact and Conclusions of Law which take this case out of the Consumer Credit Act, Tex.Rev.Civ.Stat.Ann. art. 5069-7.01(a) (Vernon 1971). Article 5069-7.01(a) of that Act provides:

“ ‘Motor vehicle’ means and is limited to any automobile mobile home, truck, truck tractor, trailer, semi-trailer and bus designed and used primarily to transport persons or property on a public highway, excepting however . . . any . machinery not designed primarily for highway transportation, but which may incidentally transport persons or property on a public highway.”

Plaintiffs testified that no persons were ever transported in this mobile home. Ms. Howard, accountant for Mobile America, testified that this was a residence, and not a camper trailer, and that it would take a truck to move it from place to place. We hold that this mobile home is excluded from the above statutory definition and therefore overrule all points directed to the court’s Findings of Fact and Conclusions of Law concerning whether appellants had a cause of action under the Texas Consumer Act, Tex.Rev.Civ.Stat.Ann. art. 5069-7.01 et seq. (Vernon 1971).

Appellants also complain of stipulation 19 on the back of the contract where there was no signature line (it being on the front of the contract), citing us Chapman v. Miller, 575 S.W.2d 581 (Tex.Civ.App.—Beaumont 1978, writ filed January 18, 1979).

Paragraph 19 on the back of this contract reads:

“19. Default . . . Seller shall have the right to declare all amounts due or to become due hereunder to be immediately due and payable and seller shall have the right to repossess the property wherever the same may be found with free right of entry and to recondition and sell the same at public or private sale. . . . Any personalty in or attached to the property when repossessed may be held by seller without liability and buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon seller within twenty-four hours after repossession. Buyer agrees to pay . . other expenses incurred by seller in effecting collection, repossession or sale hereunder.”

Regulation Z is violated unless all required truth-in-lending disclosures appear above the buyer’s signature on the contract. In Chapman v. Miller, supra, the signature line was on the front page, but the required disclosures of retained security interest were on the back. In the case at bar, the information on the back of the contract does not constitute “meaningful information with respect to the cost of credit” (Regulation Z), and therefore it is not one of the disclosures required by the Truth in Lending Act. This, as well as all of appellants’ points, is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.


author: KEITH, Justice.

text:
    Sandra BAGLEY, Appellant, v. David Alan SCOTT, Appellee.
    No. 8249.
    Court of Civil Appeals of Texas, Beaumont.
    April 26, 1979.
    Price Daniels, Jr., Liberty, for appellant.
    Dennis Beck, Houston, for appellee.
   KEITH, Justice.

The appeal is from an order changing the custody of a minor child. In the divorce decree entered in Harris County, the mother was awarded the custody of the child now under the age of fourteen years. Later, the father instituted this suit to change the custodial status of such child and obtained favorable answers from the jury to the requisite special issues. The judgment appointed the father managing conservator of the child and the mother was appointed possessory conservator.

The sufficiency of the evidence is not challenged and the single point of error complains of the trial court’s refusal to admit into evidence before the jury three social studies and reports filed pursuant to direction of the court. We have been favored with excellent briefs by each party and now affirm for the reasons to be stated.

After filing his suit to change the custody, the father filed two motions for social studies pursuant to Tex. Family Code Ann. § 11.12 (1975), as amended (Supp.1978-79), and three separate reports appear in our transcript. The authors of the several reports appeared at the trial and testified in detail concerning their findings and the results of examinations by experts of the child involved. Each of these witnesses testified that it would be to the best interest of the minor child that her status not be changed. The jury disagreed with all of them.

At the conclusion of the evidence, the mother proffered the several reports in evidence before the jury. Father’s counsel objected upon the grounds of hearsay and prejudice, and the court sustained the objection.

At the outset of our discussion we put to one side, as lacking merit, that portion. of the objection to the effect that the reports had not been introduced into evidence properly and that no proper predicate had been laid. The statute authorized the trial court to obtain such reports and required that the reports be filed and made a part of the record. Subject to the conditions relating to admissibility found in the statute, such reports constituted governmental records under the provisions of Tex. Rev.Civ.Stat.Ann. art. 3731a (Supp.1978-79).

Moreover, the objection that no proper predicate had been laid for the introduction of the reports was “so broad and indefinite that it must be considered a general objection.” Plyler v. City of Pearland, 489 S.W.2d 459, 461 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n.r.e.).

However, these findings do not dispose of the question presented on this appeal because the statute authorizing the receipt and filing of such reports contains this language:

“The agency or person making the social study shall file its findings and conclusions with the court on a date set by the court. The report shall be made a part of the record of the suit; however, the disclosure of its contents to the jury is subject to the rules of evidence.” [§ 11.12(c), emphasis supplied]

This being a case tried to a jury, we must now determine the admissibility of the reports in the light of the objection urged.

We note, preliminarily, that each of the authors of the several reports testified at length and in great detail in the presence of the jury; and, after considering such reports, we are led ineluctably to the conclusion that the substance of each report was presented to the jury by direct testimony. Ordinarily, under such circumstances, the exclusion of such documentary evidence is harmless. See Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281, 286 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r.e.), and authorities therein cited. See also V. Mueller & Co. v. Corley, 570 S.W.2d 140, 146 (Tex.Civ.App.—Houston [51st Dist.] 1978, writ ref’d n.r.e.), where in a similar instance, no abuse of the trial court’s discretion was shown by the exclusion of cumulative evidence.

The mother proved the authenticity of the records under the provisions of Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1978-79) by the testimony of the deputy clerk of the court. But, having established the authenticity of the reports, she still labored under the burden of establishing the admissibility of the contents of the reports under the ordinary rules of evidence.

The appealing mother relies primarily upon three cases cited in the margin to support her contention that the trial court committed reversible error in excluding the written reports. We disagree. In each instance cited, the cause was tried non-jury. In such cases, it will be presumed that the trial judge disregarded and did not consider any evidence which was inadmissible. See Alexander v. Clower, 486 S.W.2d 189, 191 (Tex.Civ.App.—Tyler 1972, no writ), and authorities therein cited.

Having reviewed the entire record, we find no error on the part of the trial court in excluding the written reports. Consequently, the judgment is affirmed.

      . The complete objection was: “Petitioner objects upon the grounds of hearsay and prejudice, and the fact that they have not properly been introduced into evidence, and the proper predicate has not been laid for their introduction.”

      . These are the cases cited by appellant: Magallon v. State, 523 S.W.2d 477 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ); Fletcher v. Travis County Child Welfare Dept., 539 S.W.2d 184 (Tex.Civ.App.—Austin 1976, no writ); D_F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ).


author: GUITTARD, Chief Justice.

text:
    Jerald O. PAGE, Appellant, v. Phil BURK, Appellee.
    No. 19902.
    Court of Civil Appeals of Texas, Dallas.
    June 14, 1979.
    Rehearing Denied July 11, 1979.

      Michael V. Killough, Dallas, for appellant.
    Paul Brauchle, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

This case involves the adequacy of a payment made to redeem a city lot from a tax foreclosure and sale. Plaintiff claims under the purchaser at the sheriff’s sale, and defendant claims under the former owners. Plaintiff prays that the deed to defendants from the former owner, and also any certificate of redemption, be declared void and removed as a cloud on plaintiff’s title. After a trial without a jury, the court denied recovery, and plaintiff appeals, contending that defendant’s attempted redemption was ineffective as a matter of law because of the inadequacy of the amount paid by defendant to the tax collector. We affirm.

The payment was made more than a year but less than two years after recording of the purchaser’s deed. The statute governing the amount required for redemption is section 12(2) of article 7345b, Tex.Rev.Civ. Stat.Ann. (Vernon 1960), which provides that land sold under judgment in a suit for taxes may be redeemed within the second year of the redemption period “upon the payment of the amount bid for the property at such sale, including a One Dollar ($1) tax deed recording fee, and all taxes, penalties, interest and costs thereafter paid thereon, plus fifty percent of the aggregate total.”

A stipulation of the parties establishes that the purchaser at the sale paid $2,180 to the sheriff and that plaintiff later “paid the total sum of $973.24 in taxes, penalties and interest on the property.” These sums, together with the one-dollar recording fee, plus fifty percent of the total, aggregate $4,731.36. The stipulation further states that defendant had deposited with the tax collector of Dallas County the total sum of $4,685.29 for the purpose of redeeming the property. The difference between these sums is $46.07.

Defendant contends that he did everything he knew how to determine the amount necessary for redemption. He testified that he first contacted plaintiff, who refused to name the amount he would accept for redemption of the property. Defendant then went to the city tax office and obtained a written statement covering the amount of city taxes due. He took this information from the city to the county tax collector’s office, where the amount of county taxes due was figured. Employees in the county tax office then calculated for him the amount to be paid, including the fifty-percent additional, and he paid that amount.

The record does not contain any details of the calculations made at the county tax office. Consequently, we cannot determine how the discrepancy arose. The judge filed findings of fact stating that defendant had contacted plaintiff in an attempt to comply with the statute, that defendant had requested the tax collector of Dallas County to ascertain the total amount of taxes, penalty, and interest that had been paid on the property and to give him the amount necessary to redeem the property, and that the tax collector had notified him that the sum of $4,685.29 was the proper amount. Plaintiff attacks the sufficiency of the evidence to support these findings, but our examination of the record convinces us that the judge was justified in drawing these inferences from the stipulation and testimony before him.

Plaintiff argues that defendant cannot rely on the tax collector’s advice and points to defendant’s testimony that the calculations were based on information supplied by defendant concerning the amount of the city taxes paid. The written statements defendant obtained from the city tax office are in evidence. Plaintiff suggests that these statements may have erroneously failed to state the full amount paid by plaintiff, including penalties and interest on the payment of the city tax for 1974, which appears to have been paid late. Counsel theorizes that defendant failed to ask for the correct information at the city hall, in view of defendant’s testimony that he inquired “what the total amount of the city taxes were,” and was given information “as to how much the taxes were due on the property.”

We are unable to determine that this penalty and interest, plus fifty percent, would account for the discrepancy of $46.07. It is possible that the error was made in the county tax office, rather than in the information which defendant obtained from the city. Nevertheless, defendant’s testimony, which the judge apparently believed, tends to show that defendant made a good-faith attempt to get accurate information from the tax authorities and that he paid on the basis of the information he received. Under these circumstances, and in view of plaintiff’s failure to specify the amount he would accept, we hold that defendant substantially complied with the statute and that the inadvertent discrepancy of less than one percent of the property amount is within the maxim, de minimis non curat lex. Cf. Thornhill v. Sharpstown Dodge Sales, Inc., 546 S.W.2d 151 (Tex.Civ.App.-Beaumont 1976, no writ) (calculation of amount of interest in usury case); Love v. Spur Ind. School Dist., 143 S.W.2d 793, 796 (Tex.Civ.App.-Amarillo 1940, no writ) (judgment for taxes and penalties excessive by $1.97); and Lewis v. Lewis, 125 S.W.2d 375 (Tex.Civ.App.-Fort Worth 1939, writ ref’d) ($28 error in judgment when amount in controversy exceeded $6,000). Admittedly, plaintiff had no duty to supply any information to defendant, but if he had told defendant how much he would accept, or even how much taxes, penalty and interest he had paid, a different question would be presented with respect to application of the de minimis rule.

Our former opinion is withdrawn, the motion for rehearing is overruled and the judgment is affirmed.