author: ELLIS, Chief Justice.

text:
    CRAWFORD CHEVROLET, INC., Appellant, v. Donna ROWLAND, Appellee.
    No. 8525.
    Court of Civil Appeals of Texas, Amarillo.
    June 9, 1975.
    Rehearing Denied July 7, 1975.

      Shelton & Gilkerson, Dennis W. McGill and Dale Jones, Lubbock, for appellant.
    Maner & Nelson, Cliff Preslar, Lubbock, for appellee.
   ELLIS, Chief Justice.

The plaintiff, as purchaser of an automobile, brought suit against the defendant automobile dealer, the seller, for damages allegedly resulting from the purchaser’s reliance on the fraudulent statements made by agents and employees of the defendant concerning the condition of the automobile at the time of the purchase. On the basis of a jury verdict, the trial court entered judgment in favor of the plaintiff for $300 actual damages and $5,000 exemplary damages. By this appeal the defendant challenges the judgment on the grounds that the plaintiff failed to establish either the alleged fraudulent conduct on defendant’s part or her claim for damages resulting from such transaction. Reversed and remanded.

In her original petition, Donna Rowland, plaintiff-appellee herein sometimes called "Rowland,” alleged that the agents and servants of Crawford Chevrolet, Inc., defendant-appellant, herein sometimes called “Crawford Chevrolet,” had falsely and fraudulently, with intent to deceive and defraud her, represented that- the automobile in question had never been involved in a collision prior to her purchase, and the agents and servants of the defendant corporation then and there knew such representations to be false; and that she relied upon such representations and was induced thereby to purchase such vehicle which had been previously involved in a collision. She claimed actual and exemplary damages as a result of the alleged fraudulent statements made prior to her purchase.

The record shows that on May 18, 1973, Rowland went to the place of business of Crawford Chevrolet in Slaton, Lubbock County, Texas, in response to a newspaper advertisement concerning a particular automobile that the dealer had for sale. Upon arrival at Crawford Chevrolet, she discussed the automobile advertised in the newspaper with Miss Jan Todd, a sales representative of the dealer. Miss Todd showed Rowland a 1973 Oldsmobile Cutlass, identified by Rowland as the automobile included in the newspaper advertisement which specifically set out the purchase price for the vehicle. Rowland stated that there was no one else with Miss Todd when she first showed her the car. She looked at the automobile and observed that the “car was dirty, it had been raining and it was setting outside,” and she observed nothing about the car that would lead her to believe that it had been in a collision. Rowland testified that she informed Miss Todd that she was planning to buy a new automobile, and Miss Todd told her that this particular automobile “was like new, it had been traded in, it was owned by a lady here in Lubbock and purchased from Villa Olds (a Lubbock dealer) and was only driven a short way, so the car was in an excellent condition.” The automobile showed to have been driven about 2,300 miles. Rowland stated that she inquired of Miss Todd as to whether the car had ever been in a collision and was advised by Miss Todd that it had never been wrecked.

Later, Rowland talked with James For-son, a representative of Crawford Chevrolet. After some discussion, Rowland decided to purchase the car. It was determined that her trade-in allowance on her 1968 Chevrolet Camero would be $750. The sales price written in the contract for the car purchased was $3,788 which was $300 more than the price for which the car was advertised in the newspaper. Upon discussing the price of the vehicle, Miss Todd advised Rowland that the newspaper advertisement was incorrect, and that the true price of the vehicle was $300 more than the advertised price. Also, Miss Todd testified that she informed Rowland that the $300 mistake was a misprint and offered to have this matter verified by a representative of the newspaper. Mr. Forson stated that Rowland questioned him as to where the car came from and he told her that a man in Canyon had bought the car for his personal use. He later testified that he had obtained that information from Mr. Glenn Crawford, his employer, in a sales meeting. Also, he stated that at no time did he tell Rowland that the car came from Villa Olds, and that Rowland made no complaint regarding the price of the vehicle.

Miss Todd denied that she told Rowland that the car had been purchased from Villa Olds and declared that there was no discussion between her and Rowland as to whether the car had been wrecked. She stated that she advised Rowland that she would have to go to one of the local Oldsmobile dealers to get the warranty papers for the car.

About two weeks after Rowland purchased the automobile, she took it to Villa Olds in Lubbock to obtain a warranty and she was there advised that the car did not come from Villa Olds. Upon consulting Mr. Glenn Crawford, president and general manager of Crawford Chevrolet, concerning the warranty situation, he stated that he was still trying to locate the warranty papers, and that Crawford Chevrolet would give its own one year — 12,000 mile warranty. He also advised her that if she were to leave the vicinity of Lubbock and had any difficulty, Crawford Chevrolet would pay the repair bills covered by the warranty. In addition, she claims that Crawford told her on this occasion that the car had never been wrecked. On two or three occasions repairs were made on the car by Crawford Chevrolet at her request; however, she claimed that on one occasion she left the car for a week at Crawford Chevrolet because of a rattle in the back wheel, but the wheel was never repaired. Also, she testified that the window on the driver’s side would not roll up and down; the left door would not open and close properly and would “come open” when she turned a corner; and when the door panel was removed, it was discovered that the internal parts of the door were held together with tape. She indicated reluctance to take the car back for repairs after her experience concerning the repair of the wheel.

Shortly after the purchase of the car there was a discussion between Rowland and Crawford concerning a spot on the left quarterpanel “where the paint didn’t exactly match.” Rowland also stated that about three months after she purchased the car she discovered pieces of shattered glass under the front seat. She further testified that the automobile had not been involved in any wreck or collision since she had purchased it. She had driven the car about 12,000 miles during the period between the purchase and the trial.

Glenn Crawford, who represented that he had been in the automobile business for some 20 to 25 years, testified that he secured the automobile in Canyon from Eddie Knowles, a retail and wholesale car dealer. He had first seen the car at an auction in Amarillo and made a deal through Mr. Knowles who told him that his wife had driven the car. He stated that he had previously discussed with Rowland a small blemish on the quarterpanel and that he had told her that he would take care of that at that time. He testified that there was no visible damage that he could see underneath or from the side to indicate that the car had been wrecked. Further, the car had been taken to other dealers, Smith Ford and Modern Chevrolet, for examination in this regard; that he had personally checked with Smith Ford and that the plaintiff had told him that Modern Chevrolet had checked the car. He claimed that both places “said the car was in fine shape.” Rowland testified that Modern Chevrolet advised that they “couldn’t tell” whether the car had been in a wreck.

In response to the question, “It’s your testimony to this jury today that that car was never wrecked, other than the blemish you saw on the quarter panel?” Mr. Crawford answered, “Yes, sir.” When asked to characterize the condition of the vehicle as a used car to be put on his lot, his answer was: “Immaculate or a cream puff, it was a beautiful automobile.” Also, he stated that he had made some repairs on the car for Rowland and if she would “take that car out there today,” he would fix it.

David Morgan, an experienced body repairman, who examined the automobile in question, testified that the left quarterpa-nel had been replaced, the lock pillar, which is the front portion of the quarterpanel where the door closed against it, had been repaired and also repair work had been performed on the left door. Also, he testified that a person who had been in the automobile business 20 to 25 years would only have to open the door and look at the lock pillar, where the grinder marks were plainly visible, and open the trunk to see where the quarterpanel had obviously been “spliced in” to determine that the car had been wrecked. He stated that the price of the parts and labor with respect to obvious repairs would have run no less than $400 and in his opinion closer to $600.

Richard Hardesty, a former employee of Smith Ford, in Slaton, Texas, testified that he had examined the vehicle with a frame gauge. He only examined the frame to determine whether it was true and he did not examine any other portion of the automobile. He found that the frame was true, but he was unable to tell whether the frame had been straightened.

Rowland stated that when she decided to buy the car, she relied upon what she was told by the dealer’s representatives. She asserted that she would not have bought the car if she had known it had been in a collision or if she had known where it came from.

The cause was tried to a jury. After the plaintiff had rested her case, the defendant moved for instructed verdict on the grounds that the plaintiff had not established the existence of an issue concerning damages, or to substantiate loss by reason of a collision and had not borne the burden of proving her pleadings with respect to a cause of action. This motion was overruled. At the end of all the evidence the motion for instructed verdict was renewed by the defendant on the same grounds, and such motion was again overruled. The defendant then filed its exceptions and objections to the court’s charge which were overruled by the court.

The jury made the following findings based upon the issues submitted: (1) the agents and servants of the defendant represented to the plaintiff that the automobile in question had never been involved in a collision; (2) such representation was material to the transaction in question; (3) the automobile in question had been involved in a collision prior to May 18, 1973 (the date of the purchase); (4) the plaintiff relied upon such representation in agreeing to purchase the automobile in question; (5) the decrease in the market value of the vehicle purchased by the plaintiff caused by having been .in a collision prior to May 18, 1973, was $300; (6) that such representations were willfully made with intent to deceive the plaintiff; and (7) the sum of money, if paid now in cash, which would fairly and reasonably punish the defendant for such conduct, is $5,000. The defendant then filed its Motion for Judgment Non Obstante Veredicto, setting out as grounds therefor that there was no legally and properly admissible evidence to support any of the issues submitted, and particularly no evidence to support the jury’s answer to special issue no. 5 awarding actual damages to the plaintiff. This motion was overruled. The trial court entered judgment in favor of the plaintiff for $300 actual damages and $5,000 exemplary damages, plus interest and costs. The court overruled defendant’s Motion for New Trial which incorporated therein its assertions of error by the court in overruling; (1) its pre-judgment motions for instructed verdict; (2) its objections and exceptions to the court’s charge; (3) its objections to the submission of any special issues and in not disregarding the jury’s answers to the special issues because they were not supported by a preponderance of evidence properly admitted; and (4) its Motion for Judgment Non Obstante Veredicto. The defendant’s appeal is predicated upon seventeen points of error.

By points nos. 4 and 5, the appellant contends that the plaintiff presented no evidence or factually insufficient evidence that the automobile had ever been in a collision. Although appellee testified that the vehicle had not been in a collision since the date of purchase, the heretofore stated testimony of Morgan concerning the type of obvious body repairs that had been performed upon the automobile, Crawford’s reference to the blemish on the quarterpa-nel and Rowland’s testimony regarding her discovery of shattered glass under the seat, constituted evidence from which the jury could reasonably infer that the automobile had been involved in some sort of collision. It is our opinion that the evidence submitted and the reasonable inferences therefrom sufficiently support the finding that the automobile had been involved in a collision prior to the plaintiff’s purchase of the vehicle. Points 4 and 5 are overruled.

In further reference to the collision aspect of this case, appellant, by point no. 9, contends that special issue no. 3 was duplicitous in that the issue inquired as to whether the automobile was involved in a collision and then asked whether the collision happened prior to May 18, 1973, and insisted that such issue was prejudicial and improper. We find no merit in this contention. The issue merely inquired as to whether the automobile had been involved in a collision prior to a specific date and thus required only a single answer and did not involve the giving of one answer to two questions. Rule 277, Texas Rules of Civil Procedure, provides that it shall not be objectionable that a question includes a combination of elements or issues. Point no. 9 is overruled.

Also, regarding the representations allegedly made with respect to the collision, special issue no. 6 inquired as to whether the alleged representations that the automobile had never been involved in a collision were willfully made with intent to deceive the plaintiff. By point no. 11 the appellant asserts that the court erred in submitting such issue on the ground that the issue is not supported by the pleadings or evidence.

We have reviewed the pleadings and have determined that the petition contains allegations encompassing the elements of misconduct inquired about in special issue no. 6, i. e., whether the misrepresentations that the automobile had never been involved in a collision, as so found by the jury, were willfully made with intent to deceive the plaintiff. In this connection, it was alleged in the petition that the above mentioned representations were false and then and there known to be false by the agents and servants of the defendant.

The evidence likewise supports the submission of the issue. Although no witness directly testified that any false representations were willfully made with the intent to deceive the plaintiff, the elements of willfullness and intent may be inferred by the acts and conduct of the parties. See Tennessee Gas Transmission Company v. Moorhead, 405 S.W.2d 81 (Tex.Civ.App.— Beaumont 1966, writ ref’d n. r. e.); Export Insurance Company v. Herrera, 426 S.W.2d 895 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). Further, there was testimony by the appellee that she was told by defendant’s salesperson and Crawford that the car had never been wrecked. The testimony of Morgan, the body repairman, was to the effect that it was obvious on his inspection of the automobile that it had been wrecked. Also, he stated that there was repair work of such a nature as to be quite obvious to an experienced automobile dealer to reasonably indicate that the automobile had been involved in a collision. Also, Crawford testified that he was aware of the spot of non-matching paint on the quarterpanel which could reasonably indicate to an experienced automobile dealer that the vehicle had been involved in some sort of collision which resulted in the obviously replaced quarterpanel and repair work on the doorpost. It is our opinion that the pleadings and the evidence were legally sufficient to justify the court’s submission of the issue and that there was sufficient evidentiary support for the jury’s response to special issue no. 6. Appellant’s point no. 11 is overruled.

By her pleadings the plaintiff claimed damages as a result of the alleged fraudulent statements made to her by the agents and employees of the defendant corporation that the vehicle she purchased had never been in a collision. Since we have sustained the appellee’s contentions relating to the alleged fraudulent conduct on the part of the appellant in this transaction, we shall next consider the appellant’s contentions, set out in points of error nos. 1-3 that there is no evidence and lack of factually sufficient evidence to support the jury’s finding of $300 in actual damages; such finding is against the preponderance of the evidence; and that the plaintiff failed to meet her burden of proof of such damages.

The appellee contends that appellant’s point of error no. 1 to the effect that the trial court erred in rendering judgment on the jury finding of actual damages because there was no evidence to support this finding, does not assert as error the trial court’s overruling of any pre-judgment motion or objection, and therefore it does not assert error which would invoke the jurisdiction of the Court of Civil Appeals. We note that in appellant’s brief, immediately following appellant’s statement of points of error nos. 1, 2 and 3, reference is made to specific paragraphs contained in defendant’s Motion for New Trial, wherein appellant complains of the court’s rulings with respect to its pre-judgment motions, including its motions for instructed verdict, Rule 268, T.R.C.P., objections to submission of issues, including issue no. 5, Rule 272, as well as its Motion for Judgment Notwithstanding the Verdict, Rule 301. Since the Motion for New Trial encompassed definite complaints regarding the court’s rulings on pre-judgment motions and objections and other rulings recognized as a basis for legal sufficiency points, as well as complaints regarding the lack of preponderance of the evidence to support the finding, and in the view of the liberality accorded in the application of briefing rules, we shall consider appellant’s points of error nos. 1-3 as legal and factual sufficiency points with respect to the “actual damages” aspect of the case.

The appellant states in its brief that even if there was fraud in this case (which appellant denies) there is no evidence to support the jury’s finding of $300 actual damages. It is well established that the correct measure of damages in a fraud action is the difference between the amount actually paid by the purchaser and the fair market value of the property as delivered. Sobel v. Jenkins, 477 S.W.2d 863 (Tex.1972); Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889 (1938). Also, it has been held that if a buyer was induced by fraud to purchase the property, the measure of the buyer’s damages is the difference between the value of what the buyer parted with and the value of what he received. George v. Hesse, 100 Tex. 44, 93 S.W. 107 (1906); Massey-Ferguson, Inc. v. Easter-wood, 363 S.W.2d 897 (Tex.Civ.App.— Amarillo 1962, writ ref’d n. r. e.). Also, see Billy Baker Mobile Homes, Inc. v. Foster, 390 S.W .2d 385 (Tex.Civ.App. — Austin 1965, no writ).

In this case, the contract price or purchase price of the automobile purchased is not in dispute. It was established that $3,788 is the sales price which the plaintiff paid for the automobile, although there was some discussion between the salesperson and plaintiff relative to the newspaper advertisement setting out the price at $300 lesser amount which the seller’s employee contended was an error made by the newspaper in its printing of the advertisement. We note, however, that there was no evidence presented by the plaintiff as to the market value of the automobile on the date she purchased it from the defendant.

We recognize that the appellant gave testimony in answer to a hypothetical question to the effect that if an automobile of the type here involved had been wrecked seriously and had between $500 and $1,000 worth of damages to it and repaired it would probably have $200 to $300 less market value than an automobile of that type that hadn’t been wrecked. Also, he testified, in response to a hypothetical question, that if he had two automobiles for sale of the type here involved, and one of them has never been wrecked, and the other has had serious damage to it and had been repaired, and the purchaser knew one had been wrecked, the difference in price of the two automobiles would be about $200. However, it is apparent that Crawford’s testimony as to the price charged for the car was on the basis that it had never been involved in a collision.

It has been held that the difference between the actual value of a car at the time of sale and the value it would have had if it had been in the condition represented is not recognized as a proper measure of damages; it does not conform to the recognized rule of damages in a fraud ease as set out in Morriss-Buick Co. v. Pondrom, supra, which, as stated above, is the difference between the value of what the seller parted with and what he received under the transaction. See Sobel v. Jenkins, supra. The above testimony concerning the difference in the value of a ear which had been wrecked and repaired and a similar one which had not been wrecked does not meet the required test with respect to the Texas rule of damages in a fraud case as set out in Morriss-Buick Co. v. Pondrom, supra, and recognized in Sobel v. Jenkins, supra. Also, see George v. Hesse, supra.

It is contended by the appellant that the only testimony by any witness as to the market value of the automobile in question came from Mr. Crawford, who, during the course of the trial gave testimony to the effect that the automobile sold to the plaintiff was worth what he charged. However, it must be remembered that Crawford, who is an interested witness, also gave testimony to the effect that other than the small blemish he saw on the quarterpanel “that car was never wrecked.” The jury found that the automobile had been involved in a collision prior to the purchase. It does not appear that the testimony by Crawford that the car was worth what he charged, predicated on the premise that it had not been in a collision, would within itself, in view of the jury’s findings, be legally sufficient to establish the market price of the vehicle in its condition at the time of sale as being the same as the price paid by the plaintiff. Thus, we cannot agree with appellant’s contention that the evidence was legally sufficient to establish that the contract price was the actual market value of the automobile and that judgment should be rendered in favor of the defendant.

The issue submitted inquired as to the amount of decrease in market value, if any, of the vehicle purchased by the plaintiff as a result of having been in a collision prior to the date of the sale. The jury found that such decrease in market value by reason of the previous collision was $300.

From an examination of the evidence in the light most favorable to the finding as required in determining a legal sufficiency point, we do not believe that the evidence submitted was legally sufficient to support the jury finding of the $300 difference in the market value. In the absence of a clear-cut establishment of market value by the evidence, even though the sales price is undisputed, we hold that the jury’s finding as to the decrease in market value is without legal evidentiary support and must be set aside. Further, the issue as submitted did not afford the jury the opportunity of making the necessary findings to enable the court to make application of the recognized measure of damages in a fraud case, i. e., the difference between the market price determined on legally sufficient evidence as to the value of the automobile in the condition which the jury found it to be at the time of the sale and the price the plaintiff paid for the vehicle. Further, we find that the evidence is factually insufficient to support the judgment as to actual damages based upon the jury’s finding in response to special issue no. 5. Because of the lack of legal and factual sufficiency of the evidence to suppoit the finding and judgment, we sustain appellant’s points no. 1-3 to the extent that the judgment as to actual damages should be set aside.

It is well recognized that where the evidence was uncertain and inadequate to afford complete data for judgment, and the proper measure of damage was not applied, the interests of justice require a remand. White v. Watkins, 385 S.W.2d 267 (Tex.Civ. App. — Waco 1964, no writ). Also see Commercial Standard Ins. Co. v. Birchfiel, 383 S.W.2d 77 (Tex.Civ.App. — Amarillo 1964, no writ) and authorities cited therein. In view of the foregoing, and because of the lack of sufficient data to apply the recognized rule of damages, under the present status of the evidence, we hold that a rendition is not justified and a retrial would best serve the interests of justice.

Since we have determined that the finding on actual damages should be set aside, and since, in an action for fraud, exemplary damages are incident to and dependent upon the recovery of actual damages, Hughes v. Belman, 200 S.W.2d 431 (Tex.Civ.App. — Austin 1947, writ ref’d n. r. e.), the finding on exemplary damages will likewise be set aside. Further, aggravating circumstances arising from fraudulent conduct may authorize such exemplary damages, as in the fact finder’s opinion, the defendant’s conduct justifies, and the jury in its discretion may make an assessment of punitive damages from the entire record before it. See 26 Tex.Jur.2d Fraud and Deceit § 136, Exemplary Damages, and cases cited therein.

Our holding on the above matters preter-mits discussion of the remaining points of error. Further, it cannot be anticipated that the remaining matters assigned as error will arise in another trial of this cause.

For the reasons above stated, the judgment of the trial court is reversed and the entire cause is remanded for a new trial.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Jimmy L. GIFFORD et al., Appellants, v. The STATE of Texas ex rel. James L. LILLY et al., Appellees.
    No. 5408.
    Court of Civil Appeals of Texas, Waco.
    Feb. 13, 1975.

      Everett H. O’Dowd, Waco, for appellants.
    Lyndon Olson, W. Earl Bracken, Jr., City Atty., Waco, for appellees.
   HALL, Justice.

With the trial court’s permission, the Criminal District Attorney of McLennan County brought this quo warranto proceeding in the name of the State of Texas, upon the relation of James L. Lilly and others, seeking a declaration that the incorporation of the City of Gholson is void and an order ousting the mayor and councilmen of said city. Following a trial with a jury, judgment was rendered on the verdict granting the relief sought by the State and the rela-tors.

Neither the state’s information nor its petition on behalf of the relators, which were incorporated in a single instrument, was verified.

Appellants asserted on the trial, as they do here, that the trial court was without jurisdiction for these two reasons: (1) the information and petition were not sworn to, and (2) only the Attorney General of Texas is authorized by law to bring this suit. We overrule these contentions and affirm the judgment.

Article 6253, Vernon’s Ann.Tex.Civ.St., provides in part as follows: “If . any association of persons shall act within this State as a corporation without being legally incorporated . . . the Attorney General, or district or county attorney of the proper county or district, either of his own accord or at the instance of any individual relator, may present a petition to the district court of the proper county . for leave to file an information in the nature of a quo warranto in the name of the State of Texas. If such court or judge is satisfied that there is probable ground for the proceeding, he shall grant such leave and order the information to be filed and process to issue.” This statute was first enacted in our state as Section 1 of Acts 1879, S. S. p. 43, G.L.Vol. 9, p. 75, and has come to us without change since that time.

An action in quo warranto under Article 6253 is a proper procedure for contesting the validity of an incorporation of a city, town or village. Ellis v. State, (Tex.Civ.App. — Dallas, 1964, no writ hist.) 383 S.W.2d 635, 637. Indeed, it is the exclusive remedy by which the legality of the existence and organization of a de facto municipal corporation may be questioned. Wailing v. North Central Texas Mun. Water Auth., 162 Tex. 527, 348 S.W.2d 532, 533 (1961). As shown above, the statute expressly authorizes a district attorney of the proper county, as well as the Attorney General or a county attorney, to bring the action. It is provided in Article 326k-l, Vernon’s Ann.Tex.Civ.St., that the Criminal District Attorney of McLennan County shall have and exercise all powers, duties and privileges within such county that are by law conferred upon District and County Attorneys.

Article 6253 does not by its terms require that the petition or information filed thereunder bear an affidavit, a fact recognized by our Supreme Court in Hunnicutt v. State, 75 Tex. 233, 12 S.W. 106, 108 (1889). In the Hunnicutt ease, and in Matthews v. State, 82 Tex. 577, 18 S.W. 711, 712 (1891), the court stated by way of dictum that the unverified information of the state’s attorney is sufficient pleading upon which to base a case of this nature. However, in Hunnicutt and in City of East Dallas v. State, 73 Tex. 371, 11 S.W. 1030, 1031 (1889), there are statements, also by way of dictum, that the petition and information should be sworn to. Upon the basis of this dictum, some textwriters have said that it is “the better practice” to swear to the petition and information. Lowe, Remedies, 6A Texas Practice 110, Sec. 1241, Quo Warran-to (1973); 47 Tex.Jur.2d 584, Quo Warranto, Sec. 18. Form books recommend it. To do so would undoubtedly provide additional assurance to the trial court whose permission is being sought for the filing of the information that facts exist which make its filing necessary or proper, and for this reason verification might well be the better practice. But is it a jurisdictional requisite which cannot be waived by the trial court?

This suit is a civil proceeding governed by the rules applicable to all civil actions. Rule 781, Vernon’s Texas Rules of Civil Procedure. As we have said, Article 6253 does not require that the petition or information filed herein be sworn to. No other statute and no rule requires.it. We have not been cited a single authority, nor have we found one, which holds that such verification is jurisdictional. We hold that it is not.

Appellants’ points and contentions are overruled. The judgment is affirmed.


author: ROBINSON, Justice.

text:
    Priscilla H. CONNALLY, Appellant, v. The HOME INSURANCE COMPANY, Appellee.
    No. 8511.
    Court of Civil Appeals of Texas, Amarillo.
    May 30, 1975.
    Rehearing Denied July 14, 1975.

      Sanders, Scott, Saunders, Brian & Fin-ney, Joseph M. Pritchard, Amarillo, for appellant.
    Johnson, Guthrie, Billings & Nash, Robert Lee Guthrie and William F. Billings, Dallas, for appellee.
   ROBINSON, Justice.

After the expiration of the limitations period provided for in her insurance contract, plaintiff, Priscilla H. Connally, filed suit for hail damage to the roof of her home. The trial court entered an instructed verdict for defendant, Home Insurance Company. Plaintiff appealed contending that evidence that defendant’s adjuster, Mr. Romans, represented to her that the life of her roof was not affected by the hail storm and that she relied on his representation together with evidence that leaks more than three years later were caused by the hail storm in question raised issues that defendant was estopped to assert the limitations period. Affirmed.

The following elements must be proved in order to establish an estoppel: that the party to be estopped made (1) a false representation or concealment of material facts (2) with actual or constructive knowledge of the facts (S) to a party without knowledge or the means of obtaining knowledge of the real facts (4) with the intention that it be acted on (5) which was relied on or acted on by the party to whom it was made to his detriment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635 (Tex.1965); Lunsford v. Sage, Inc. of Dallas, 438 S.W.2d 615 (Tex.Civ.App. — Houston [1st Dist.] 1969, ref’d n. r. e.). The burden of proving the essential elements of estoppel is on the party asserting it. Concord Oil Co. v. Aleo Oil and Gas Corp., supra. Failure to prove one of the essential elements is fatal. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.1968).

In determining whether there is evidence to support the submission of issues to the jury, this court must look at every element of estoppel and determine whether there is any evidence to support that particular element. If there is no evidence to support any one element, then the appellant has failed to present enough evidence to raise fact issues of estoppel.

In determining whether the evidence raises an issue for submission to the jury, the evidence must be viewed in the light most favorable to the party against whom the verdict was instructed, disregarding contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Tripp v. West Texas Utilities Company, 461 S.W.2d 224 (Tex.Civ.App.—El Paso 1970, writ ref’d n. r. e.).

Plaintiff offered evidence as follows. Plaintiff’s home was in a severe hail storm on June 17,1969. She reported the possible damage to Jim Perkins, local recording agent for defendant, who sent an adjuster, Mr. Romans, to look at the roof. Romans told plaintiff that her cedar shake roof was not damaged except for pitting which would not affect the life of the roof. Plaintiff asked Perkins if she should have someone else check the roof. He told her that the adjustment bureau had a good reputation, but that he would have them send another adjuster. A second adjuster checked the roof and reported to Perkins that there was no loss. Perkins relayed this report to plaintiff.

On August 10, 1972, plaintiff discovered that her roof was leaking. She had the whole roof replaced and on January 19, 1973, filed suit against defendant for the cost of replacement less the $100.00 deductible provided for in the policy.

The roofer who replaced the roof testified that the shakes were dented and split, that the leaks were caused by two holes in the hot mopped roof under the cedar shakes, and that the damage had been caused by a hail storm. He further testified that he did not know the condition of the roof in 1969, that the splits in the shakes would not appear on the surface immediately, but might appear six months or a year or two later, and that holes in the hot mopped roof could not be seen without removing the shakes. Plaintiff offered evidence that there had been no hail storm of sufficient intensity to damage a shake roof between June 17, 1969, and the time the leaks appeared.

There was no evidence that Romans knew that the roof was damaged nor was there evidence of deliberate false representation or concealment of any fact on his part. Plaintiff’s evidence shows that she knew that nearby roofs were being replaced because of the hail storm and knew that she could have a third party check the roof to give her his opinion concerning damage. There was no evidence that plaintiff did not have the means to acquire knowledge of whatever facts were capable of ascertainment at the time Romans inspected the roof.

One of the requirements of estoppel is that the party claiming the estoppel was without knowledge or the means of acquiring knowledge of the facts which the party to be estopped is alleged to have represented by his acts, conduct or silence. Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255 (1944); Page v. Arnim, 29 Tex. 53 (1867); Hunt v. W.O.W. Life Ins. Soc., 153 S.W.2d 857 (Tex. Civ.App.—Port Worth 1941, writ ref’d). Before an estoppel can be raised there .must be certainty to every intent and the facts alleged to constitute it are not to be taken by argument or inference. Gulbenkian v. Penn, supra. Plaintiff has, therefore, failed to meet his burden to offer evidence on each and every element of estoppel.

Plaintiff’s contention that she was entitled to have the question of estoppel submitted to the jury is overruled. We do not reach appellee’s cross points. The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Janice Carolyn ROSETTA, Appellant, v. Peter Franklin ROSETTA, Appellee.
    No. 831.
    Court of Civil Appeals of Texas, Tyler.
    July 10, 1975.
    Rehearing Denied July 31, 1975.

      Bader, Wilson, Menaker, Cox & Branson, Bertrán T. Bader, III, Horsley &'Wincorn, Gregory C. Horsley, Dallas, for appellant.
    Anderson, Henley, Shields, Bradford & Pritchard, W. A. Pritchard, Dallas, for ap-pellee.
   McKAY, Justice.

Peter Franklin Rosetta, appellee, brought this suit for divorce from Janice Carolyn Rosetta, appellant, alleging they had a common law marriage as of July 1, 1970, and asking that he be granted a divorce and be appointed managing conservator of their minor child, Theresa Angelique Rosetta (hereinafter called Angie). The trial court heard the case without a jury, and on July 17, 1974, rendered judgment that the parties had a common law marriage, that ap-pellee be granted a divorce, and that appellant be appointed managing conservator of the minor child with appellee granted specific visitation rights.

On July 23, 1974, appellee filed what is titled “Petitioner’s Motion for New Trial, Contempt, Etc.,” in which he alleged that “prior to and since the trial” appellant caused Angie to be emotionally disturbed, endeavored to alienate Angie’s affection for her father and that since trial appellant had totally refused to permit visitation as the Court had ordered. Appellee asked the court to grant him a new trial to the extent that the court appoint him managing conservator of Angie, and alternatively requested that appellant be held in contempt for moving or threatening to move without advising appellee of her new address. The prayer on the motion was “Wherefore, Petitioner prays that upon hearing that the Court award him all of the relief above requested, all costs herein and such other and further relief to which he may be entitled.”

The court set the motion for hearing on August 9, 1974, but the record does not reveal that there was any hearing. However, on the setting day, August 9,1974, the trial court set aside its judgment of July 17, 1974, and rendered a new judgment granting a divorce to appellee and appointing him managing conservator of the minor child, Angie, with an order for appellant to immediately deliver Angie to appellee, and setting out specific visitation rights to appellant. It is from this second judgment that appellant brings this appeal.

Appellant filed a motion to set aside the judgment, and later a Motion for New Trial, both of which were overruled. Findings of fact and conclusions of law were requested and filed by the trial court.

We are met at the outset with a motion by appellee to dismiss the appeal based upon findings numbered 19 and 20 made by the trial court, and also upon an affidavit made by appellee. We overrule the Motion to Dismiss.

Findings Nos. 19 and 20 are as follows: “19. Since the date of the Judgment herein on August 9, 1974, Respondent’s attorney had advised the court that Respondent took the minor child to Padu-cah, Kentucky, and left her with her mother, where the Court understands said child is at this date.
“20. As of this date, Respondent has completely ignored the terms of this Court’s judgment concerning delivery of the minor child to Petitioner and has refused to allow Petitioner to- visit with her.”

Appellee argues that since findings 19 and 20 of the trial court are not challenged on any point on appeal, they are binding upon the parties and must be accepted by the Court of Civil Appeals citing Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App. — Amarillo, 1968, writ ref’d, n. r. e.) and cases there cited. We do not disagree with this rule; however, the two findings upon which appellee relies are obviously not based upon evidence presented during the trial of the case, but they are, as so found and stated by the trial court, based upon information presented to the judge by one of the attorneys after the trial. Under such circumstances we are not bound by the rule stated in Curtis. Findings of facts which occurred after the case was heard by the trial court, and which are not supported by the record, are not binding upon this court even though unchallenged. We are without jurisdiction to determine or pass upon questions or irregularities which may have occurred subsequent to the judgment appealed from and not shown in the record. Brown County Life Ins. Co. v. Hagins, 110 S.W.2d 1162 (Tex.Civ.App. — Amarillo, 1937, no writ). Moreover, these findings have nothing to do with the power of this court to ascertain the status of its jurisdiction of the case. Ragland v. Cone, 118 S.W.2d 1098 (Tex.Civ.App. — Amarillo, 1988, no writ).

Appellee attached to his Motion to Dismiss his own affidavit concerning the acts of appellant after the judgment appealed from was rendered. The only matters which we are authorized to consider upon affidavits are those which involve the exercise of our jurisdiction. Art. 1822, Vernon’s Ann.R.Civ.St., Brown County Life Ins. Co. v. Hagins, supra. Appellee’s affidavit does not concern our jurisdiction and is therefore not considered.

In appellant’s first two points complaint is made that the trial court erred in finding there was a-common law marriage because there is no evidence, or insufficient evidence, (1) that there was a contract between the parties to be married, and (2) that the parties held themselves out or represented to others that they were husband and wife.

In passing upon a no evidence point we must consider only the evidence and the inferences therefrom tending to support the findings of the trier of the facts and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

When it is contended that the evidence is insufficient to support a fact finding a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the findings of a vital fact. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361, 366 (1960).

Appellant and appellee were married in a ceremonial marriage in Paducah, Kentucky, on December 27, 1965. Angie Rosetta, the minor child, was born to the parties on April 15, 1967. Appellant and appellee were divorced by judgment of Domestic Relations Court No. 3, Dallas County, on November 21, 1969, and appellant was awarded the house in which they had lived and custody of the minor child.

Appellee testified that he and appellant began to live together again about July 1, 197,0, in the house formerly occupied by them. He further testified that they lived together there approximately three years, that they agreed to resume living together as man and wife, and that they slept in the same bed. He said “We just agreed to move back together and resume the relationship.” He also testified during this period he introduced appellant as his wife and she introduced him as her husband. They separated May 15,1973, by appellee leaving the house. On August 11, 1973, appellant was ceremonially married to Jim Woods.

Appellee testified that during the time they lived together they continued to use a joint bank account used before the divorce by each of them writing checks on it; that appellant paid most of the bills and that she filled out their income tax returns for 1970, 1971,1972 and 1973, but they were not joint returns, but separate individual returns. He further said that he was not aware that their conduct constituted a common law marriage until his lawyer told him, and that he and appellant talked about remarriage a few times to the effect that they would remarry sometime in the future. These questions and answers appear in the record:

“Q. Okay. But, you did talk about sometime in the future remarrying, isn’t that right?
A. Yes.
* ⅜ * * * *
Q. Didn’t have any agreement between you in July of 1970 to be man and wife, did you?
A. Well, I considered myself to still be married to her.”

Appellee later testified:

“Q. Didn’t you all have an agreement, one time, when you got ready to move back in the house that you asked her for a trial living together so that you might marry sometime if it worked out?
A. Back when we first, just before, we moved in together, we discussed the possibility of a trial situation between the two of us.
Q. So to see if some day you might marry in the future, isn’t that right?
A. Yes, go through a ceremony.
* * * * * *
Q. Did you not tell me on — during cross-examination two days ago that you entered this household under an agreement to marry in the future? Isn’t that what you told me, right there?
A. I said that we might have an agreement to marry in the future.
Q. That’s right. An agreement to marry in the future and I asked you specifically that and you said, yes, that is right. Then, just a few minutes ago, you told me that you agreed to be married when you entered into the house.
A. As far as I was concerned, we were still married.
Q. That’s the point. Isn’t it a fact you always thought you were still married, isn’t that right?
A. That is right.
* * * * * *
Q. If you didn’t consider yourself divorced, why would you enter into an agreement to marry?
A. Just for the ceremony.
* * * * * *
Q. But, you had no intent to presently be husband and wife? You were going to marry in the future, isn’t that right?
A. We had intent to be husband and wife.
Q. Then, why would you make an agreement to marry in the future?
A. She said we might.
Q. Might marry in the future, right?
A. Yes.
r. * * * * * ⅝
Q. Okay, you also agreed to be married in the future, ceremonial, is that correct?
A. I didn’t agree to it.
Q. But, that was Janice’s condition, wasn’t it?
A. Not a condition, no.
Q. What was it, then?
A. It was a maybe.
Q. A maybe you would marry in the future?
A. Yes.
Q. With reference to this business about marrying in the future, explain what that term meant? I mean, what were you talking about?
A. Marrying in the future?
Q. This — let’s get our time frame right. Before you commenced living together again, on or about July 1st, 1970, and you said you had this conversation when she said, maybe we’ll marry in the future?
A. Yes.
Q. Did she say the statement that she would be your wife?
A. No. It was a little while later.
Q. What was she talking about? I
" mean was she talking about going before a preacher or—
A. Yes, a preacher, going before the preacher.
Q. Is that what you understood it to mean?
A. That is what I understood it to be.”

Witnesses Jim Leonard and Wm. C. Henderson, Jr. testified appellant introduced appellee as her ex-husband. Joyce Thomas, appellant’s sister, testified she lived in the house with appellee and appellant from July, 1972, until appellee moved out in May, 1973, and that appellant had dates with other men during this period, and when appellant married Jim Woods in a ceremonial marriage on August 11, 1973, appellee baby-sat with Angie. She further testified she never heard either appellee or appellant introduce the other as wife or husband.

Appellant testified that after the divorce from appellee in 1969, she moved out of the house in April, 1970, and that appellee moved in the following June, and that she gave her permission. She also testified that appellee attempted suicide in August, 1970, and told her he could not go on living without her and Angie, that he loved her and did not consider their divorce valid and that she moved back into the house. She said appellee asked her to remarry him and things would be better, but she told him she could not remarry him, and that there was no agreement between them to be husband and wife or to live together as husband and wife, but that she told appellee if he would get medical help or marriage counselor help and get straightened out and take care of himself she would consider remarrying him. She further testified they had separate bedrooms until July, 1972, when her sister moved in, and that she had sexual relations with appellee only twice while they were living in the house.

Appellant also testified she was not covered by appellee’s hospitalization policy when she was in the hospital as the result of an automobile accident for one month in 1973, and that appellee did not pay any of her bill. She further said appellee told a caseworker for Buckners in 1971 that they were not married, but might remarry if their problems were resolved, and that she told her own lawyer who represented her on her accident case that she was single.

Bee. 1.91 of our Family Code, Y.A.C.S., provides:

<!(a) In any judicial, administrative, or other proceedings, the marriage of a man and woman may be proved by evidence that:
(1) * * *
(2) they agreed to be married, and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
“(b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.”

Sec. 2.01, Family Code, Y.A.C.S., provides in part:

“ * * * When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves its validity.”

In finding No. 12 the trial court found that after May 15, 1973, appellant “thereafter began to live with a man by the name of Jim Woods and she was living with him at the time of trial, together with the minor child of the parties,” but the trial court failed to find that appellant had a ceremonial marriage with Jim Woods on August 11, 1973, which fact is undisputed in the record.

It is noted that it is provided by the Family Code that there is a presumption in favor of the most recent marriage when there is an allegation of two marriages to different spouses. We are of the opinion that the evidence in the record is factually insufficient to overcome the presumption in favor of appellant’s August 11, 1973 marriage to Jim Woods, and therefore is insufficient to establish a common law marriage between appellee and appellant.

Appellee maintains that where there is evidence of probative value to support the findings and judgment of the trial court, they are controlling on this Court, citing Waters v. Waters, 498 S.W.2d 236 (Tex.Civ.App. — Tyler, 1973, writ ref’d, n. r. e.). The Waters case does indicate that in a non-jury case where the evidence is conflicting, but where there is evidence of probative force, the findings of the trial court will not be disturbed. However, the findings of fact in a case tried without a jury are not conclusive on appeal when a statement of facts is in the record as in this case even though such findings are not excepted to by appellant. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950); Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. —Corpus Christi, 1973, no writ); Barnwell v. Fox & Jacobs Const. Co., 469 S.W.2d 199 (Tex.Civ.App. — Dallas, 1971, no writ); Forbes v. Forbes, 430 S.W.2d 947 (Tex.Civ.App. — Amarillo, 1968, no writ); Kroger Co. v. Warren, 420 S.W.2d 218 (Tex.Civ.App.— Houston (1st), 1967, no writ); Intercoast Jobbers & Brokers v. Barber, 410 S.W.2d 249 (Tex.Civ.App. — El Paso, 1967, reversed on other grounds, 417 S.W.2d 154); Rule 373, Texas Rules of Civil Procedure.

Long before the presumption of the validity of the most recent marriage, when two marriages of a person to different spouses is alleged, was enacted by the Legislature in the Family Code, appellate courts in Texas were indulging such presumption. In a similar case but one where the evidence was much stronger on the elements of a common law marriage, the court in Hodge v. Hicks, 229 S.W.2d 893 (Tex.Civ.App. — Dallas, 1950, affirmed, 149 Tex. 390, 233 S.W.2d 557) held:

“We are not unmindful of the presumption of marriage from cohabitation and reputation and, as in this case, the legitimacy of a child as a result of that relationship. But that presumption is overcome by proof of a subsequent ceremonial marriage, since the presumption of the validity of such ceremonial marriage is stronger than the presumption of the previous marriage by cohabitation and reputation.”

Long before Hodge v. Hicks, supra, the Supreme Court approved the opinion of the Commission of Appeals in Walton v. Walton, 228 S.W. 921 (1921) wherein it is said:

“Nor does the evidence showing a living together as husband and wife, and common reputation, conclusively establish the fact of marriage, where there is also evidence that later there was a separation between the parties, and one of them was thereafter actually married by ceremonial marriage to another person. The presumption of marriage based on habit and reputation is in such case, overcome by proof of the ceremonial marriage.”

In Schacht v. Schacht, 435 S.W.2d 197 (Tex.Civ.App. — Dallas, 1968, no writ) it is said “A ceremonial marriage entered into in accordance with legal form will raise the presumption, or inference of its legality. One of the strongest presumptions of law is that a marriage, once being shown, is valid.” (Emphasis added.)

In Middlebrook v. Wideman, 203 S.W.2d 686 (Tex.Civ.App. — Texarkana, 1947, no writ) it was held that where it is claimed a common law marriage existed the act of the woman in marrying another effectively rebutted any inference that might have been drawn of a common law marriage, and quoted 18 R.C.L., p. 434: “ ‘An inference of marriage will be overcome where the parties separate and one of them, while the other is known to be alive, marries or cohabits with a third person.’ ”

“The presumption in favor of validity of the second marriage, notwithstanding the prior common-law marriage, ‘is one of the strongest, if, indeed, not the strongest, known to law' and may even outweigh positive evidence to the contrary.” (Emphasis added.) Mullinax v. Mullinax, 447 S.W.2d 428 (Tex.Civ.App. — Waco, 1969, no writ); Texas Employers Ins. Assn. v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955); Pacific Employers Indemnity Co. vs. Aguirre, 431 S.W.2d 33 (Tex.Civ.App. — Waco, 1968, writ ref’d, n. r. e.).

We therefore conclude that appellant’s ceremonial marriage to Jim Woods in August, 1973, must be presumed valid as against her earlier alleged common law marriage to appellee. Because the presumption of validity of a ceremonial marriage is stronger than that of a previous common law marriage, appellee had the onerous burden of providing sufficient evidence to support his allegation of the formation of a common law marriage.

From the entire record the most that can be said is that there may have been an agreement that after some trial period, if things worked out, or if appellee got medical help or counseling, then the appellant and the appellee might remarry. Present agreement to be married is a necessary element of common law marriage, and it is not sufficient to agree on present cohabitation and future marriage. Gary v. Gary, 490 S.W.2d 929 (Tex.Civ.App. — Tyler, 1973, writ ref’d, n. r. e.).

Consequently, we feel that the no evidence points should be overruled, but that the evidence presented in the record is factually insufficient to prove the existence of a previous marriage by common law and the insufficient evidence points are sustained.

It might be pointed out that appellee filed a motion to modify the visitation order on February 20,1974, alleging that the parties were divorced on November 21, 1969, and asking the court to set specific visitation rights. In response to such motion appellant filed motions for increase in child support and for contempt for failure of appellee to pay child support payments totaling $2800.00, and then, appellee, for the first time, alleged there existed a common law marriage by filing what he called “Respondent’s Reply to Petitioner’s Motion for Contempt” on April 1, 1974, seemingly as a defense or an excuse of failure to pay child support as ordered in the divorce decree. One week later, on April 8, 1974, appellee, in the same case, filed petition for divorce based on a common law marriage. Appel-lee also testified he did not know there was a common law marriage until his lawyer told him.

In view of our holding that the evidence is insufficient to overcome the presumption of the validity of the ceremonial marriage of appellant and Jim Woods we do not reach appellant’s other points having to do with custody of the minor and the alleged abuse of discretion of the trial court. We feel constrained to point out, however, that the findings by the trial court of events which took place after the trial and which were not in the record and which were reported to him by some one after the trial should not have been made and it was not proper to include them in the findings. The trial court found in finding No. 17: “Since the trial of this case and the announcement of the Court’s judgment of divorce herein, Petitioner (appellee) and Charlotte Deruska have married, both of whom have normal personalities and are in good health,” and found in No. 18 “That Petitioner and his wife can provide a more stable home for the minor child than Respondent and it would be in her best interest to award the custody to Petitioner.”

Judgment of the trial court is reversed and the cause is remanded.


author: Tunks, Chief Justice.

text:
    James C. CALAWAY, Appellant, v. Herman L. GARDNER, Appellee.
    No. 1184.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    July 2, 1975.

      Lynn N. Hughes, Roy L. Wardell, Howard & Hughes, Houston, for appellant.
    Ewing Werlein, Jr., Donald P. Butler, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellee.
   Tunks, Chief Justice.

On July 31, 1972, James C. Calaway, appellant herein, filed suit, in the 21st District Court of Washington County against Herman L. Gardner, appellee herein, seeking judgment for specific performance of an alleged contract to sell realty. The trial court set for September 3, 1974, at 2:00 P.M., a pre-trial hearing in the case. Both parties were given notice of said hearing. At the time for the pre-trial hearing, appel-lee’s counsel timely appeared but appellant’s counsel did not. The trial court waited thirty minutes for appellant and his counsel to appear and, when they did not, granted appellee’s motion to dismiss the case for want of prosecution. The written order dismissing the case recites that it was signed on September 3, 1974.

The appellant’s counsel was forthwith, given notice that the court had dismissed the case. On September 11, 1974, he prepared a motion to reinstate the case and mailed it to the clerk of the trial court. Apparently, it was received by the clerk and filed on September 12. The trial court first set a hearing on the motion to reinstate for December 2, 1974, and then reset it for January 6, 1975, on which latter date a hearing was held. On January 23, 1975, the trial court signed an order denying the motion for reinstatement. The appellant filed notice of appeal on February 3, 1975, and made a cash deposit in lieu of an appeal bond on February 24,1975. Both February 3, 1975 and February 24, 1975 were Mondays.

After the hearing on January 6,1975, the trial judge made findings of fact and conclusions of law. In the findings of fact it is recited that “ . . . when given full opportunity, the plaintiff did not call any witness to testify and did not introduce nor offer any evidence in support of his Motion for Reinstatement.” The trial court concluded as a matter of law that it had no jurisdiction to grant the motion for reinstatement, and, alternatively, that the motion for reinstatement should not be granted because of plaintiff’s failure to prove grounds for reinstatement.

Texas Rules of Civil Procedure, rule 165a provides that “[a] case may be dismissed for want of prosecution on failure of any party seeking affirmative relief for his. attorney to appear for any hearing, trial or docket call of which he had notice ..” It was in keeping with this language that the trial court dismissed this case on the failure of plaintiff or his counsel to appear for the pre-trial hearing on September 3, 1974.

Rule 165a also provides:
Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.

In this case the plaintiff’s attorney admittedly had notice of the dismissal within twenty days, so that the first sentence of the above quoted paragraph controlled. Under the plain language of that sentence, if the court is to reinstate a dismissed case, it must do so “[wjithin thirty days after the signing of the order of dismissal . . ..” The trial judge correctly concluded that at the time of the hearing on January 6, 1975, he was without authority to reinstate the case. Cosper v. Aetna Life & Casualty Company, 513 S.W.2d 121 (Tex.Civ.App.-Dallas 1974, no writ).

The attorney for the appellant contends that the trial judge’s refusal to reinstate the case because of the expiration of more than thirty days should be reversed because it was the duty of the judge to set the motion for hearing within the thirty day period. The rule provides that “[t]he court shall set the motion for hearing as soon as practicable . . ..” That language does not relieve the movant of the duty to procure a setting within the time allowed for reinstatement. The record does not show that the movant here ever requested a setting within such time. If such a request had been made and called to the judge’s attention, and if the judge had failed to set the case within the time limit, such failure would have been erroneous and reviewable. Failure of the judge to set a hearing on the motion within the thirty day period, when he was not asked to make such a setting, is not ground for reversal of his order denying the reinstatement.

Plaintiff’s motion for reinstatement states in conclusionary terms that his failure to appear at the pre-trial hearing “ . . . was not intentional nor was it the result of conscious indifference” and that it “was due to accident or mistake.” The motion was verified by plaintiff’s attorney. The timely filing of a motion for reinstatement setting forth grounds for reinstatement does not automatically entitle the movant to reinstatement. Rule 165a clearly contemplates that there shall be a hearing on the motion. At that hearing the movant has the burden of proving grounds for reinstatement. Finley v. Finley, 410 S.W.2d 818 (Tex.Civ.App.-Tyler 1966, writ ref’d n.r.e.). The failure of the plaintiff to offer proof of his grounds for reinstatement justified the court’s denial of his motion, even if the court had authority to grant it.

The trial court’s order of September 3, 1974 dismissed the plaintiff’s ease “with prejudice.” In this respect the dismissal was erroneous. Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.-San Antonio 1963, writ ref’d n.r.e.). Appellant asserts that error by point of error in his brief. That matter cannot, however, be effectively raised in this appeal. This is not an appeal from the judgment of September 3, 1974. No notice of appeal from such judgment was ever given. The notice of appeal filed by appellant on February 3, 1975, stated that he was appealing “ . from the judgment rendered against him in said cause on January 24, 1975. . . . ” We have no jurisdiction to reform the trial court’s judgment of dismissal.

The judgment of the trial court refusing to reinstate the case is affirmed.


author: CADENA, Justice.

text:
    Gus PREISSMAN et al., Appellants, v. ALLIED BANK OF TEXAS, Appellee.
    No. 15464.
    Court of Civil Appeals of Texas, San Antonio.
    June 30, 1975.
    James R. Warncke, Collins B. Cook, John Oliver, San Antonio, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Eugene A. Cook,- Nancy B. Hogan, Houston, for appellee.
   CADENA, Justice.

Plaintiffs, Gus Preissman and wife, Thelma, Ben Katz, John Oliver and James R. Warncke, appeal from an order of a district court of Bexar County dismissing their application for a temporary injunction for want of jurisdiction.

This suit was originally filed in Bexar County by plaintiffs against Bank and other defendants to recover on a promissory note and to foreclose the lien securing such note. The controversy between plaintiffs and Bank concerns priority of liens, with plaintiffs seeking to set aside an agreement, executed by them, subordinating their lien, which is first in time, to the lien claimed by Bank.

Bank, a resident of Harris County for venue purposes, timely asserted its privilege to be sued in its domiciliary county. The Bexar County court, after a hearing, entered an order sustaining the plea of privilege and ordering that portion of the case involving the dispute between plaintiffs and Bank transferred to Harris County.

Plaintiffs appealed from the order sustaining the plea of privilege and on April 23, 1975, in our cause No. 15400, we affirmed the order sustaining Bank’s plea of privilege. On May 1, 1975, plaintiffs filed their third amended original petition in the Bexar County district court. In this pleading plaintiffs sought a temporary injunction restraining Bank from foreclosing its lien by trustee’s sale. On May 7,1975, plaintiffs filed in this Court their motion for rehearing in cause No. 15400, the venue case.

On May 9, 1975, in answer to plaintiffs’ application for temporary injunction, Bank filed in the Bexar County court a pleading captioned “Motion to Quash and Plea to the Jurisdiction,” reciting the previous order of that court sustaining Bank’s plea of privilege and the affirmance of such action by this Court. Bank then asserted that, because of such circumstances, the Bexar County court lacked “jurisdiction” to enter any order other than one transferring the plaintiffs’ suit against Bank to Harris County.

On the same date, May 9, 1975, while plaintiffs’ motion for rehearing was still pending in this Court in the venue case, the Bexar County court entered an order reciting that it lacked jurisdiction to entertain plaintiffs’ application for temporary injunction and dismissing such application.

On June 4, 1975, we overruled plaintiffs’ motion for rehearing in the venue case but, at the same time, modified the opinion previously delivered. On June 16, 1975, plaintiffs filed their second motion for rehearing in the venue case. See Rule 468, Texas Rules of Civil Procedure (1967); Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966). That motion is still pending in this Court.

Plaintiffs perfected their appeal from the order dismissing their application for temporary injunction on May 15, 1975, and on May 30, 1975, we granted plaintiffs’ application for injunction preventing the holding of the trustee’s sale while plaintiffs’ appeal from the trial court’s order dismissing its application for temporary injunction was pending in this Court. On that same day we set such appeal for oral argument on June 18, 1975.

Under the express provision of Rule 385(c), Tex.R.Civ.P. (1967), the perfection of the appeal from the order sustaining Bank’s plea of privilege suspended “transfer of the venue and trial upon the merits . pending the appeal.” There can be no doubt that plaintiffs’ appeal from the order sustaining the plea of privilege is still “pending.”

The filing of a plea of privilege does not deprive the trial court of power to enter interlocutory orders which it deems necessary to preserve the status quo and the subject matter of the suit, and this power includes “the granting of temporary injunctions.” Parr v. First State Bank of San Diego, 507 S.W.2d 579, 581 (Tex.Civ.App. — San Antonio, no writ). This power, which, of course, does not include the power to enter judgment on the merits, continues until the trial court has, by what the Supreme Court has termed “affirmative action,” surrendering “jurisdiction.” Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, 981 (1932).

Bank, while conceding that the trial court has such power where, as in Parr, there has been no disposition of the plea of privilege by the trial court, insists that the power to make such interlocutory orders is lost when, as here, the trial court has entered an order sustaining the plea of privilege.

The entry of an order sustaining a plea of privilege is, of course, “affirmative action” by the trial court. But it is clear that the mere entry of the order does not divest the trial court of all “jurisdiction.” For example, the trial court may, within 30 days after entry of the order, vacate, modify or set aside such order. Rule 329b, Tex.R.Civ.P. (1967); O’Neal v. Texas Bank & Trust Co., 118 Tex. 133, 11 S.W.2d 791 (1929).

Because of the appeal and the rule precluding transfer of the venue while the appeal is pending, there is no presently effective affirmative action by the trial court surrendering “jurisdiction.” While the appeal is pending, Harris County courts have no basis for taking any action in the case. To contend that action may be taken by a court in Harris County is to say that, despite the clear language of Rule 385(c), “transfer of the venue” has in fact taken place. The compelled conclusion is that, except for the venue question which is still before us, the case is still in the Bexar County court, although such court may not, because of the language of the applicable rule, make any determination on the merits. It is, then, the Bexar County court which retains the power to enter such interlocutory orders as may be necessary for the protection of the parties and the preservation of the subject matter of the suit.

Our conclusion is not without support in the decisions of this state. In Boyd v. Crabb, 205 S.W.2d 606, 607 (1947, no writ), the Fort Worth Court of Civil Appeals said: “There is a general rule to the effect that the trial court may not, after sustaining a plea of privilege, make or enter further orders in the case. . . . But the general rule is not without its exceptions. In Pacific Mid-Continent Corporation v. Tunstill, Tex.Civ.App., 159 S.W.2d 908, we held that in such a case the court was not without authority to issue a temporary injunction for the purpose of preserving the property involved in the litigation . . . .” Concededly, Crabb does not involve a set of facts identical to those here before us, since there the interlocutory order was included in the order sustaining the plea of privilege. And, in the Tunstill case referred to in the excerpt quoted above from the Crabb opinion, the temporary injunction was issued prior to the date on which the trial court sustained the plea of privilege. But we believe that the decision of the Waco Court of Civil Appeals in Shell Petroleum Corp. v. Grays, 87 S.W.2d 289 (1935), writ dism’d, 131 Tex. 515, 114 S.W.2d 869 (1938), is highly persuasive. There, the trial court, after overruling defendant’s plea of privilege, appointed a receiver. Eventually, on appeal, it was held that the plea of privilege had been erroneously overruled, the trial court discharged the receiver but allowed him a fee of $7,500.00. On appeal from the order allowing the receiver such fee, it was urged that the district court of McLennan County, in which the suit was originally filed, had no authority to enter such order in view of the prior holding, on appeal, that venue properly lay in Gregg County. It was squarely held that the McLennan County court had authority to make such orders.

Our conclusion is simply that the trial court did not lack power to entertain the application for a temporary injunction. The question of whether, under the facts and circumstances of this case, such injunc-tive relief is required in order to protect the rights of the parties or preserve the subject matter of the suit is a question of the propriety of granting such relief, as distinguished for the question of power to grant such relief. The only question before us is a question of power.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.


author: McDONALD, Chief Justice.

text:
    Reba D. ROBERTS, Appellant, v. A. T. ROBERTS, Appellee.
    No. 5462.
    Court of Civil Appeals of Texas, Waco.
    June 19, 1975.
    Rehearing Denied July 24, 1975.
    Wynne & Wynne, Gordon R. Wynne, Wills Point, for appellant.
    Levin, Weinberg & Levin, Shirley R. Le-vin, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This cause is before us on petition for writ of error to a default judgment for divorce and property division rendered against petitioner.

Petitioner Reba Roberts filed suit for divorce and property division against A. T. Roberts on March 26, 1974. Mrs. Roberts’ petition for divorce was signed by Honorable R. B. Pool of Terrell, Texas as attorney.

A. T. Roberts filed an answer on May 5, 1974. Mr. Roberts’ answer was signed by Honorable Kurt Philipps of Kaufman as attorney.

On July 25,1974, A. T. Roberts filed cross action against Reba Roberts for divorce and property division. Such cross action was signed by Honorable Kurt Philipps as Attorney for cross petitioner.

Service on such cross petition was issued by the District Clerk on July 25,1974, to the Sheriff of Kaufman County. The Sheriff’s return recites that service was executed at Terrell, Kaufman County “at 11:00 o’clock A.M. on the 6 day of August 1974, by delivering to the within named Reba D. Roberts, in person a true copy of the citation together with the accompaning copy of the petition”.

The record before us further reflects that Reba D. Roberts paid a jury fee in the cause on August 9, 1974.

On August 27, 1974, the trial court rendered default judgment for A. T. Roberts for divorce and property division on his cross action, reciting that “no jury having been demanded by either of the parties”, and further that “Reba D. Roberts * * * although duly cited by personal service, did not appear.”

On August 29, 1974, Reba D. Roberts filed a motion to set aside such judgment alleging that the case had been placed on the jury docket with jury fee paid, and further that Mr. Kurt Philipps attorney for A. T. Roberts had agreed with counsel for Reba D. Roberts for trial of the case on October 7, 1974; and that counsel for Reba D. Roberts did not learn that the divorce had been granted until August 28, 1974.

Such motion was sworn to by Reba Roberts and signed by Reba D. Roberts and also by Honorable W. H. Prank Barnes as attorney.

The above motion was never acted on by the trial court.

On February 3, 1975, Petitioner Reba D. Roberts filed petition for writ of error to the August 27, 1974, divorce judgment, alleging among other matters that A. T. Roberts died on November 16, 1974, “and left surviving as his sole and only surviving heir at law and by will, his daughter, Mrs. Willie (Donna) Esporza, 204 Sonett Drive, De Soto, Dallas County, Tex; that A. T. Roberts was represented by Honorable Kurt Philipps, who is one of the members of the firm of Morgan and Shumpert, whose address is Kaufman, Texas, 75142.” Such petition further alleged that Honorable W. H. Barnes of Terrell, Texas was ill and incapacitated and had requested the firm of Wynne & Wynne, Wills Point, Texas to represent the petitioner. The petition for writ of error was signed by Honorable Gordon R. Wynne as attorney for petitioner.

Service on such petition for writ of error was perfected on both attorney Kurt Phi-lipps at Kaufman, Texas, and Mrs. Willie Esporza at De Soto, Texas.

Petitioner asserts in her brief that the trial court erred in entering default judgment for divorce upon A. T. Roberts’ cross action because: 1) The case was on the jury docket with jury fee paid by petitioners; 2) The record affirmatively showed that date of judgment was premature and prior to return date upon which petitioner was cited to appear and answer.

Mrs. Willie Esporza has filed motion to dismiss Petition for Writ of Error asserting 1) that Rule 360 Texas Rules of Civil Procedure requires that all parties adversely interested must be named in a Petition for Writ of Error; that her father A. T. Roberts is dead and left four surviving children and heirs; that only she Mrs. Esporza was cited; that the interest of all four heirs are adverse to petitioners; that Rule 360 is mandatory and jurisdictional. 2) That petitioner participated in the trial.

We will first notice the motion to dismiss the Petition for Writ of Error. Such petition recites that divorce was granted to A. T. Roberts, that petitioner did not participate in the trial, that there is error in the judgment; that A. T. Roberts is dead; and that petitioner desires the judgment removed to the Court of Civil Appeals for revision and correction.

Rule 369a TRCP (effective December 31, 1943) provides that if a party in a cause dies after rendition of judgment, and before the cause has been finally disposed on appeal, that the appeal may be perfected to the Court of Civil Appeals or Supreme Court, and such Courts shall proceed to adjudicate such cause and render judgment as if all the parties were living, and such judgment shall have the same force and effect as if rendered in the lifetime of the parties thereto.

Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 429 expressly holds that Rule 369a is applicable to petition for writ of error as well as appeals where a party to a suit has died.

Since Rule 369a was promulgated (December 31,1943), and after Rule 360 (which was promulgated September 1, 1941, and was a carry forward unchanged of Article 2257, Vernon’s Ann.Civ.St.), if any conflict exists, Rule 369a must control.

The fact that petitioner in addition to stating that A. T. Roberts was dead; that there was error in the judgment; and she wanted the judgment corrected; only partially recited who A. T. Roberts’ heirs were, does not in our view, require a dismissal of the petition.

Petitioner did not participate in the trial and the trial court’s judgment so reflects.

Respondent Esporza’s motion to dismiss is overruled.

We revert to petitioner’s contention that the trial court erred in rendering the default judgment against her where the record affirmatively showed that the date of trial and judgment was premature and prior to the return date upon which petitioner was cited to appear and answer.

As noted the Sheriff’s return reflects that petitioner was served on August 6, 1974. Such Citation required petitioner to appear and answer to the cross petition “on or before 10 o’clock A.M. on the Monday next after the expiration of 20 days after the date of service hereof”.

Petitioner was thus not required to answer until September 2, 1974.

A judgment rendered before appearance day upon which a party is required to appear and answer is erroneous and voidable. O’Boyle v. Bevil, 5th Cir., 259 F.2d 506, 512; Sneed v. Box, Tex.Civ.App., 166 S.W.2d 951, 954; Andrus v. Andrus, Tex. Civ.App., 168 S.W.2d 891; Davenport v. Rutledge, Tex.Civ.App., 187 S.W. 988, 989; Oden v. Vaughn Grocery Co., 34 Tex.Civ. App. 115, 77 S.W. 967.

O’Boyle, supra, Sneed, supra, and Oden, supra hold such judgment void.

Petitioner not having been in default in appearing for answer could not have waived the right of trial by jury under Rule 220 TRCP. Rule 220 and Gallagher v. Joyce, Tex.Civ.App., 459 S.W.2d 221, 222 have no application where trial is held and judgment is rendered by default against a party, unknown to the party, and before appearance day upon which the party is required to answer.

Petitioner’s points (and assertions) 1 and 2 are sustained.

Reversed and remanded.

      . See Files v. Buie, 131 Tex. 19, 112 S.W.2d 714; and Files v. Buie, Tex.Civ.App., 113 S.W.2d 698, for interpretation of Article 2257.


author: STEPHENSON, Justice.

text:
    Jo Carol McCLELLAND, Appellant, v. UNITED SERVICES ASSOCIATION, Appellee.
    No. 7711.
    Court of Civil Appeals of Texas, Beaumont.
    June 19, 1975.
    Rehearing Denied July 24, 1975.
    Mark Z. Levbarg, Levbarg & Weeks, Austin, for appellant.
    Michael A. Wash, McKay & Wash, Austin, for appellee.
   STEPHENSON, Justice.

This is an appeal from a take nothing judgment in an action by a minor child against her mother’s automobile insurance carrier. Other plaintiffs are the minor’s mother and stepfather, also a named insured in the policy sued upon. The plaintiffs will be referred to here by name, and the defendant, United Services Automobile Association, as U.S.A.A. Trial was before the court upon stipulations.

The stipulations are, in substance, as follows:

1. Plaintiff, Jo Carol McClelland, was injured while riding as a passenger in the Charles Coulter automobile.

2. The Coulter automobile was in collision with an automobile driven by an uninsured motorist, whose negligence was a proximate cause of the collision.

3. All plaintiffs were damaged in the amount of $19,000.

4. The Coulter automobile was covered by a policy of insurance containing an uninsured motorist provision and written by Allstate Insurace Company.

5. All plaintiffs settled their claims with Allstate for $9,000 and gave full releases.

6. Such settlement was made without written consent from U.S.A.A.

7. Jo Carol McClelland’s mother was one of the named insureds in an automobile policy written by U.S.A.A. containing an uninsured motorist provision.

8. Both the Allstate and U.S.A.A. polices had coverage referred to as the standard uninsured motorist coverage in the amount of $10,000/$20,000.

9. Jo Carol McClelland was insured under the uninsured motorist clause of both policies of insurance.

Plaintiffs’ two points of error are that uninsured motorist coverage under the two policies of insurance is joint and several to the extent of plaintiffs’ actual damages and that the policy provision in question is unauthorized by statute. These points are overruled.

U.S.A.A.’s defense in the trial court and here is that this claim is excluded by the provision in the policy sued upon, that the policy did not cover losses where a settlement had been made without its written consent. The statutory provision [Vernon’s Tex.Ins.Code Ann. art. 5.06-1(3)] is as follows:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury, sickness or disease, or death for which such payment is made.”

The provision in the policy reads as follows:

“Exclusions. This policy does not apply under Part IV:
“(b) [T]o bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.”

This case is controlled by Grissom v. Southern Farm Bureau Casualty Ins. Co., 476 S.W.2d 448 (Tex.Civ.App. — Waco 1972, writ ref’d n. r. e.). In the Grissom case, as in the case before us, the plaintiff was a passenger in an automobile which was in a collision with an uninsured motorist. There, also, plaintiff settled with the driver and the driver’s insurance carrier, without the written consent of the carrier of the insurance upon plaintiffs own automobile. In Grissom, the trial court entered judgment for the insurance carrier, and on appeal the identical questions were raised as those facing this court. In a well-reasoned opinion, the appellate court held these provisions in the policy are plain and unambiguous and must be enforced as written.

In the case before us plaintiff made a settlement, without U.S.A.A.’s consent, with-the driver of the automobile in which she was riding and his insurance carrier. Such settlement was with a “person or organization who may be legally liable.”

The stipulation in the case before us was to the effect that the negligence of the driver of the uninsured motorist was a proximate cause of this collision. However, there is no stipulation that the driver of the car in which plaintiff was riding was not also negligent and his negligence a proximate cause of this collision. U.S.A.A. lost the right of subrogation against such driver, and we cannot say that was not a valuable right. See also Jessie v. Security Mutual Casualty Company, 488 S.W.2d 140 (Tex. Civ.App. — Ft. Worth 1972, writ ref’d n. r. e.).

Plaintiffs cite Stephens v. State Farm Mut. Auto Ins. Co., 508 F.2d 1363 (5th Cir. 1975), in support of their position. In that case a similar situation existed as in the case before us, except an issue of waiver was before that court. That court turned its case solely on the issue of waiver, as indicated as follows:

“It is his [plaintiff’s] contention (1) that his [plaintiff’s] settlement with Royal at the full recovery limit of its policy did nothing to impair the subrogation rights of State Farm and therefore cannot be considered a settlement within the meaning of the clause as interpreted by the Texas courts and (2) that, at any rate, State Farm waived the consent requirement by denying liability prior to his settlement with Royal. Since we are of the opinion that the consent requirement was waived, we do not pass upon the alternate ground.”

Affirmed.


author: SHANNON, Justice.

text:
    Jan WHITE, Appellant,v. Gerald CHAMBERLAIN, Appellee.
    No. 12302.
    Court of Civil Appeals of Texas, Austin.
    June 25, 1975.
    E. B. Fuller, Austin, for appellant.
    Barbara Anne Kazen, Friday & Kazen, Austin, for appellee.
   SHANNON, Justice.

Appellee, Gerald Chamberlain, filed suit in the district court of Travis County seeking access to his son, Geoffrey Earl Chamberlain, aged six, pursuant to Tex.Family Code, Y.T.C.A. § 14.03(c). In response to that suit, appellant, Jan Chamberlain White, the mother of the child and formerly appellee’s wife, answered and filed a cross-action praying for a termination of the parent-child relationship between the child and appellee, as authorized by Tex.Family Code § 15.02. Upon trial to the court, judgment was entered granting appellee access to the child and denying appellant’s cross-action for termination of appellee’s parental rights. We will affirm that judgment.

Appellee alleged that he and appellant were married in February of 1968, and during that marriage their son was born in June of 1969. Appellant obtained a divorce in Hunt County in 1971. By the terms of the divorce decree, appellee was awarded visitation rights, and was ordered to pay support payments. Appellee pleaded further that appellant secreted herself and the child, and for a period of time he had been unable to locate them. By way of relief, appellee sought to enforce the visitation rights awarded him in the divorce decree, and in that connection, he pleaded affirmatively in the terms of § 14.03(c) that his access to the child would not “endanger the physical or emotional welfare” of the child.

Appellant pleaded generally that appellee had known of the whereabouts of the child, and had not evidenced any interest in visiting him up until the time suit was filed. As grounds for termination of the parent-child relationship appellant averred that appellee “. . . voluntarily left the child in possession of Cross-Petitioner [appellant] without expressing any intent to return and did so without providing for the adequate support of the child and remained away until this time.” Appellant pleaded additionally that appellee failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition.

After trial, judgment was entered, reciting that “. . . the best interest of the child will be served by granting petitioner’s [appellee’s] prayer for access to said child under Section 14.03c (sic) of the Texas Family Code.” The judgment provided further that the cross-action for termination of the parental rights of appellee be denied.

In a single point of error appellant maintains that the court erred in granting visitation rights and in denying termination of appellee’s parental rights for the reason that “. . . such ruling is against the great weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust.”

Tex.Family Code § 14.03(c) provides:
“(c) The court may not deny possession of or access to a child to either or both parents unless it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.”

Tex.Family Code § 15.02 empowers the court to grant a petition terminating the parent-child relationship of a non-requesting parent upon the finding that:

“(1) the parent has:
sf: * * ⅜ ⅜; *
“(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or
* * * * * *
“(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
sfc ⅝: ⅝ ‡ ⅜ ⅝
“(I) * * * and
“(2) termination is in the best interest of the child.” (Emphasis supplied)

A reading of Tex.Family Code § 14.03(c) demonstrates that the trial court may not deny access unless it is not in “the best interest of the child” and that such access would “endanger the physical or emotional welfare of the child.”

With respect to her cross-action for termination of appellee’s parental rights under § 15.02 appellant had the burden of demonstrating facts in compliance with (1)(B) or (1)(E) and (2) that termination was in the best interest of the child. An examination of the pleadings shows that appellant did not plead facts to come within (1)(B). That pleading, as above stated, was that appellee . . voluntarily left the child in possession of Cross-Petitioner [appellant] without expressing any intent to return . . With respect to (1)(E) appellant’s evidence was that appellee had contributed only fifty dollars to the support of the child since the time of the entry of the divorce order. By way of excuse appel-lee testified that during a part of that time he had been financially unable to make support payments and that for at least some time he had been unable to locate the child. For purposes of this opinion, however, we will assume that appellant’s proof met the requirements of § 15.02(1)(E). The requirement of § 15.02(2), that termination of the parent-child relationship is in the best interest of the child, is similar to that of § 14.03(c). The determination by the district court that the best interest of the minor child was served by the allowance of access and the non-termination of appellee’s parental rights is the basis for appellant’s complaint on appeal.

Much of the record is concerned with the private lives of appellant and appellee in times past. Much of that testimony had no bearing upon the entry of a proper judgment.

Of relevance is the fact that appellee was formerly a user of drugs. His testimony was that he had entered upon a drug control program and that he had not taken drugs for several years. Appellee testified of his love for the child, of his past attempts to see the child, and of what he might offer the child as a parent if the court permitted access.

Though her testimony was that appellee never made any efforts to visit the child, appellant admitted that she had not wanted appellee to do so mainly for the reason that it would have upset her. Appellant testified further that at the present time she thought it unwise for appellee to see the child because it was not good “. for a child to have two fathers.” Appellant then testified concerning the child’s love for her present husband.

Both appellee and appellant placed into evidence the testimony of expert witnesses concerning whether access to the child by appellee would serve the child’s best interest. Appellee called Frank C. Richardson, a professor in educational psychology at the University of Texas. Richardson testified that he had met the appellee. His impression was that the appellee had “coped” with his drug problem successfully, and that ap-pellee seemed to present a “fairly stable and secure picture for the future.” He was of the further opinion that a limited but “meaningful” contact with the child by ap-pellee would be a “positive thing.” His view that it would be advantageous for the child to know his natural father and not to shield him unnecessarily from the happenings of the past.

Appellant called George Willeford, a physician with a subspecialty in pediatrics known as “child development and behavior,” and Thomas M. David, a physician specializing in adult psychiatry. Their testimony was contrary to that of Richardson. Dr. Willeford had visited with the child and his mother and her present husband. Dr. Willeford was of the view that the introduction of the natural father to the child at his age-level would shake the child’s “stability and consistency,” and that by such introduction the child would have “nothing to gain and a great deal to lose.”

In a non jury case the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936). Likewise, wherein there is conflicting expert testimony, the court in a nonjury case is free to adopt part or all of an expert’s evaluation or theory and reject the other expert testimony. Hood v. Texas Indemnity Insurance Co., 146 Tex. 522, 209 S.W.2d 345 (1948). We have reviewed the statement of facts and have concluded that the judgment is supported by probative evidence and is not contrary to the great weight and preponderance of the evidence.

The judgment is affirmed.