author: ROBINSON, Justice.

text:
    M. J. CHISHOLM, Appellant, v. Mary Inman HIPES, as Executrix of the Estate of J. S. Hipes, Deceased.
    No. 8693.
    Court of Civil Appeals of Texas, Amarillo.
    May 9, 1977.

      Sanders, Saunders, Brian, Finney & Thomas, Jerry K. Sawyer, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, Alan B. Jones, Amarillo, for appellee.
   ROBINSON, Justice.

This is a suit brought by a licensed real estate broker, M. J. Chisholm, to recover the balance of a commission allegedly due and owing him under a real estate contract and alternatively for the reformation of the contract to correct the description of the land to be conveyed. Defendant Mary In-man Hipes, as Executrix of the Estate of J. S. Hipes, deceased, answered that the action was barred by the Statute of Frauds Provision of the Texas Real Estate Act; that reformation was unavailable on the facts; and that plaintiff’s causes of action were barred by the statute of limitations. The trial court granted the defendant’s motion for summary judgment. Plaintiff appeals. Affirmed.

The facts are undisputed.

On June 18, 1970, J. S. Hipes, as vendor, entered into a contract with Jack H. Rich, as purchaser, whereby Hipes for $4,500 per acre, would sell Rich property described as follows:

Lying and situated in City of Amarillo, Potter County, Texas, Tract # 1 consisting of 24 acres more or less, out of the S.W. Vi of Section 6, Block 2, A.B.&M. Survey. For conveyance of title and exact purchase price a survey and metes and bounds description will be used.

The contract provided that Hipes would pay Chisholm a commission of 5% for negotiating the sale.

On October 14, 1971, the last of two contingencies, to which the contract was subject, was met.

On December 30,1971, Hipes conveyed to Rich a tract of land out of Section No. 106, Block 2, A.B.&M. Survey, Potter County, Texas, described by metes and bounds. The metes and bounds description covered 24.-128 acres of land in Section 106 as described in the field notes prepared on June 29,1970, of a survey made at the request of Chisholm. We note that the tract conveyed was in Section 106 rather than in Section 6 as provided in the contract and that the field notes had not been prepared at the time the contract in question was executed.

On May 5,1974, Hipes died, leaving a will naming his wife, Mary Inman Hipes, as Independent Executrix of his estate. Plaintiff, in an affidavit opposing summary judgment, stated that before his death Hipes paid him a total of $2,498.46 in partial payment of the commission due him.

On September 11,1974, the plaintiff filed a claim with the defendant’s estate for the unpaid balance in the amount of $2,852.00. The claim was denied by operation of law thirty days later.

On January 8, 1975, this suit was filed.

A summary judgment should be granted only if there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Rule 166-A, Texas Rules of Civil Procedure; Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972).

The defendant maintains that the contract is unenforceable because as a matter of law the property description in the written contract was insufficient under Tex. Rev.Civ.Stat.Ann. art. 6573a § 28 (1967) (now § 20(b)), and therefore summary judgment was proper.

Tex.Rev.Civ.Stat.Ann. art. 6573a § 20(b), which is the Statute of Frauds provision of the Real Estate License Act provides that:

An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by a party to be charged or signed by a person lawfully authorized by him to sign it.

The written memorandum required by § 20(b) must satisfy the same rules which govern the sufficiency of an instrument under the general Statute of Frauds. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949). Therefore, to be sufficient under § 20(b), a writing must meet a two-prong test whereby it furnishes within itself or by reference to some other existing writing the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945). In Parks v. Underwood, 280 S.W.2d 320 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.), a case in which a broker attempted to recover a commission under an insufficient oral listing contract, the court said:

. the description of the property covered by the contract must by its written terms alone furnish definite information which will, by following such information to its source, identify the real estate listed with the agent with such definiteness that it may be distinguished from all other tracts of land, in other words the language used must refer to only one tract of land, clear as to location and boundaries.

When a writing describes land only by quantity and as being part of a larger tract without further identification of the tract to be conveyed, it will not satisfy the statute of frauds. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935). Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946).

We overrule plaintiffs contention that because the contract provided for the conveyance of title by a survey and metes and bounds description, that the particular survey and metes and bounds description later used in the conveyance from Hipes to Rich may be considered as a part of the contract. The property description in the contract does not refer to any particular existing survey or metes and bounds description and, thus, does not furnish the essential element—something within the instrument itself to which the extrinsic evidence can be tied—which makes extrinsic evidence admissible. See Continental Supply Co. v. Missouri, K. & T. Ry. Co. of Texas, 268 S.W. 444, 446 (Tex.Com.App.1925, opinion adopted).

Cases such as LeBow v. Weiner, 454 S.W.2d 869 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.) cited by defendant do not control the case before us. In LeBow the court held that a subsequent survey could be resorted to for determination of the precise acreage to be conveyed where the property description used was sufficient for one familiar with the locality to identify the property with reasonable certainty. The court there found that:

. from a consideration of the instrument that the parties knew exactly what was to be conveyed by LeBow to Weiner. The only question in the minds of the parties was the precise acreage which would show up on a square footage measurement of the land after the survey. (Emphasis added).

However, plaintiff contends that, even if he may not recover on the contract as written, he is entitled to have the contract reformed so as to permit recovery. With regard to the cause of action for reformation, defendant contends, inter alia, that the cause is barred as a matter of law by limitations.

Tex.Rev.Civ.Stat.Ann. art. 5529 (1925) provides a four year statute of limitations for the reformation of instruments.

One who executes an instrument is charged with knowledge of its contents and therefore any cause of action for reformation runs from the date of execution. Ken nedy v. Brown, 113 S.W.2d 1018 (Tex.Civ.App.—Amarillo 1938, writ dism’d); LaNeve v. Hinkson, 271 S.W.2d 467 (Tex.Civ.App.—Eastland 1954, writ ref’d n. r. e.); Hendes v. Gale, 376 S.W.2d 922 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.).

In spite of this presumption of knowledge, a plaintiff is able to avoid the bar of limitations if he can show that his delay in discovering the mistake was due to something the defendant said or did which would lull the plaintiff into a sense of security in reference to the matter, Kennedy v. Brown, supra, at 1020; Hutchins v. Birdsong, 258 S.W.2d 218 (Tex.Civ.App.—Texarkana 1953, writ ref’d n. r. e.); Sheffield v. Lewis, 287 S.W.2d 531 (Tex.Civ.App.—Texarkana 1956, no writ); McKee v. Douglas, 362 S.W.2d 870 (Tex.Civ.App.—Texarkana 1962, writ ref’d n. r. e.).

The burden of adducing evidence on a question of limitations in a summary judgment is set out in Birdwell v. American Bonding Company, 337 S.W.2d 120 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n. r. e.), as follows:

. a defendant is entitled to prevail in his motion for summary judgment based upon demonstration that the claim is barred by the affirmative defense of limitation in the absence of plaintiff’s ability to explain and excuse his delay by discharging his correlative burden (shifted to him as the result of the proof by the defendant) of specifying some evidence which would change the result otherwise undoubtedly achieved by the defendant as the moving party.

The date of execution of the contract in question and the date of the filing of the cause of action for reformation before us are undisputed and it is established that there is no fact issue in that regard. Therefore, plaintiff has the burden of offering summary judgment evidence to raise a fact issue which would excuse the delay in filing the cause for reformation.

Plaintiff contends only that because the sale was consummated and approximately one-half of the commission paid, that he was lulled into inaction and excused for his delay in filing suit.

Plaintiff makes no allegation whatever that defendant or Hipes did or said anything to mislead plaintiff. Moreover, the law is well established in Texas that partial payments can be in no way considered as an acknowledgment of the justness of a debt. Meusebach v. Halff, 77 Tex. 185, 13 S.W. 979 (1890); Judkins v. Jamison, 83 S.W.2d 793 (Tex.Civ.App.—San Antonio 1935, writ dism’d). We conclude that plaintiff has failed to raise a fact issue which would excuse his delay in filing suit.

The foregoing holdings are dispositive of the cause before us. We do not reach appellant plaintiff’s remaining points of error or appellee defendant’s cross points. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    BUFKOR, INC., Appellant, v. STAR JEWELRY COMPANY, INC., Appellee.
    No. 7936.
    Court of Civil Appeals of Texas, Beaumont.
    May 12, 1977.
    Rehearing Denied June 9, 1977.

      Stephen Park Johnson, Houston, for appellant.
    Sam L. Stolbun, Houston, for appellee.
   DIES, Chief Justice.

On Motion for Rehearing, the prior opinion is withdrawn and this opinion substituted therefor.

On February 20, 1975, plaintiff below, Star Jewelry Company, Inc., delivered certain items of jewelry to “Tavenier [sic] 1704 S. Post Oak Houstn [sic], Texas”. The invoice contained these words: “Goods must be purchased or returned within 5 days of receipt or they may be automatically invoiced to your account.” On January 15, 1975, defendant below, Bufkor, Inc., obtained a judgment against James T. Dolleslan-ger, individually, and doing business as Tav-ernier Jewelers. Thereafter, on April 2, 1975, Bufkor, Inc., levied execution upon jewelry which Star had placed in Tavernier’s possession. On March 12, 1976, Star Jewelry, Inc., filed suit against Bufkor, Inc., styled “Right to the trial of property”, pursuant to Tex.R.Civ.P. 717, and contended that it owned the property because same had been delivered to Tavernier on consignment.

Trial was to the court, without a jury, and judgment was entered in favor of Star Jewelry Company, Inc., from which Bufkor perfects this appeal. The parties will be referred to herein by name.

Tavernier has since gone into bankruptcy, and Bufkor, Inc., seeks preferred status relying on its judgment. Star Jewelry contends title did not pass to Tavernier because of a consignment arrangement.

It is true that the term “consignment” was used in the dealings of the parties, but it is also true that Tavernier maintained a place of business for the purpose of selling jewelry merchandise, had authority to sell this merchandise, and Star did not seek return of the merchandise.

Transactions which once might have been regarded as consignments are now regarded as sales by the Uniform Commercial Code; 50 Tex.Jur.2d “Sales” § 22 p. 277 (Rev.1969). The purpose of this change was to permit people to deal with a debtor upon the assumption that all property in his possession is unencumbered, unless the contrary is indicated by their own knowledge or by public records. Columbia International Corporation v. Kempler, 46 Wis.2d 550, 175 N.W.2d 465, 469 (1970).

Chapter 9 of the Texas Uniform Commercial Code provides a method by which Star could have given notice of its lien, i. e., by filing a financing statement with the Secretary of State. Tavernier’s president Dolleslanger gave Star the form and suggested that such a statement be filed. This was not done by Star. Tex.Bus. & Comm.Code Ann. § 2.S26 (1968) provides:

“(a) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
* * * * * *
“(2) a ‘sale or return’ if the goods are delivered primarily for resale.
“(b) Except as provided in Subsection (c), goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.
“(c) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum’.”

See also Anderson’s Uniform Commercial Code, Vol. 1 § 2 — 326:4 p. 260. The intention of the parties is no longer determinative of the question of whether a transaction is a sale or a consignment. Collier v. B & B Parts Sales, Inc., 471 S.W.2d 151 (Tex.Civ.App. Tyler 1971, no writ).

Consequently, we hold that these goods should be held to have been delivered for “sale or return”, and thus, that neither the title nor the right to possession of these goods was retained by plaintiff Star Jewelry Company.

Star, having neither title nor right to possession, may not prevail in a trial of right of property. As was said by our Supreme Court in Garrity & Huey v. Thompson & Ohmstede, 64 Tex. 597, 598-599 (1855):

“The point is made here . . . that the interest of Garrity & Huey in the property levied on, if they have any, is not such as can be asserted by a claim under the statute regulating trials of the right of property.
“It has been so frequently decided by this court as to have become settled law, that a mortgagee out of possession cannot assert his claim to property levied on by attachment or execution, in the manner prescribed by that statute. Erwin v. Blanks, 60 Tex. 583; Wright v. Henderson, 12 Tex. 43; Wootton v. Wheeler, 22 Tex. 338; Belt v. Raguet, 27 Tex. 471; Adoue v. Seeligson, 54 Tex. 593.
******
“[T]he claimant by his affidavit and bond asserts an absolute title to the property, and is ‘estopped from attempting to hold it under a mere lien, for the law will not permit parties to claim and get possession of property on one ground, and then retain it upon another and different one, but they must stand upon the ground which they first elected.’ Adoue v. Seeligson, supra; citing Lucketts v. Townsend, 3 Tex. 119; Watts v. Johnson, 4 Tex. 311.”

And, in Bolin Tool Co. v. Jernigan, 50 S.W.2d 397, 398 (Tex.Civ.App. Eastland 1932, no writ), we find:

“Only one having possession of property or such title as would confer the right of possession at the time the writ is levied can maintain the action. Willis & Bro. v. Thompson, 85 Tex. 301, 20 S.W. 155; Laird v. Williams (Tex.Civ.App.) 13 S.W.2d 944; Casentini v. Ullman, 21 Tex.Civ.App. 582, 54 S.W. 420.”

Finally, in the recent case, Long v. Castaneda, 475 S.W.2d 578, 582 (Tex.Civ.App. Corpus Christi 1971, writ ref’d n.r.e.). Justice Nye, in discussing the availability of this remedy, stated:

“[A] trial of the right of property cannot determine the question of priority of liens.”

It is clear under the foregoing authorities that Star’s interest, if any, in the goods in question may not be asserted in a trial of the right to property, and that Star was not entitled to levy upon the goods in question pursuant to Tex.R.Civ.P. 717, et seq.

We, therefore, proceed to render the judgment that the trial court should have rendered: that plaintiff take nothing by reason of its suit and that the levy be vacated and the goods returned to defendant Bufkor, Inc.

REVERSED and RENDERED.


author: STEPHENSON, Justice.

text:
    James H. PAPPAS, as Independent Executor of the Estate of George H. Pappas, Deceased, Appellant, v. The ESTATE of Winfred E. LAUGHLIN, Deceased, et al., Appellees.
    No. 7941.
    Court of Civil Appeals of Texas.
    May 12, 1977.
    Rehearing Denied June 9, 1977.

      Robert J. Brill, Houston, for appellant.
    Jerry V. Pennington, Orange, for appel-lees.
   STEPHENSON, Justice.

This is an action for damages brought under the wrongful death statute. Trial was by jury, and judgment was rendered for plaintiffs upon the verdict.

Winfred Laughlin, the driver of one of the automobiles involved in this collision, was killed. His surviving wife, Individually and as Independent Administratrix of his estate, and his minor children brought this suit. George Pappas, the driver of another automobile involved in this collision, died during the pendency of this suit, and his estate was substituted as the party defendant.

The uncontradicted evidence shows the following: Pappas was driving one of the automobiles in a westerly direction on Interstate 10 when he had a blowout on the right rear tire. He was on the bridge crossing the Old and Lost River and brought the automobile to a stop in the right hand lane. Immediately after Pappas stopped there was a collision in the left lane between two other automobiles, about two or three car lengths ahead of where the Pappas car was stopped. One of those cars was later driven into the right-hand lane ahead of the Pap-pas car, but the second car in the first collision remained in the left-hand lane. Traffic continued to weave around the three automobiles. About fifteen or twenty minutes passed when a truck arrived at this scene and came to a stop in the left lane, behind two automobiles which came to a stop in front of him. There were at least two cars which had come to a stop in the right lane behind the Pappas car. In a few minutes the driver began to move the truck forward when the Laughlin pickup collided with the rear end of the truck, killing Winfred Laughlin.

The jury found Pappas was negligent in failing to drive his automobile off the bridge within a reasonable time and that such negligence was a proximate cause of the collision between the truck and the Laughlin pickup. The jury failed to find Laughlin negligent in any respect.

Defendant’s first points of error are that there is no evidence and insufficient evidence to support the jury finding that Pappas’ negligence was a proximate cause of the collision between the truck and the Laughlin pickup and that such finding is contrary to the great weight and preponderance of the evidence. In passing upon the no-evidence point, we consider only the evidence favorable to such finding, and we consider all of the evidence in passing upon the two remaining points of error.

In considering these points of error, the factual situation must be viewed in the proper perspective. The negligence in the case before us was the failure by Pappas to move his car off of the bridge in a reasonable time. This negligence began when a reasonable time elapsed and continued through the time Laughlin’s pickup was driven into the rear end of the truck. The situation in our case is not one in which a defendant’s negligence caused a first collision and had come to an end before a second collision occurred. Pappas testified by deposition before his death that he could have driven his automobile off of the bridge even though he had a flat tire. He also testified that he did, in fact, finally drive his car off of the bridge without changing the tire.

It is too elementary to require citation to state that we have the two elements in proximate cause, foreseeability and cause in fact. Measuring the factual situation to each of those standards, we find that there is evidence that Pappas could have foreseen that a collision would occur if he did not move his car off of the bridge and that his failure was a cause in fact of the collision which followed. These points are overruled.

Defendant’s next series of points attack, in the same manner, the failure on the part of the jury to find Laughlin guilty of negligence. We apply the same rules as stated above in passing upon these points. The issues referred to inquired about speed, proper control, brakes, safe distance, proper lookout and turning.

There is little evidence in this record as to the allegations of contributory negligence. The witnesses agree that this incident occurred between 8:30 and 9:00 p.m. C.D.T., August 8,1971. The weather conditions were heavy mist and rain, and the highway was damp. Winfred Laughlin was alone in his pickup truck, and the driver of the truck which was run in to, did not see the Laughlin pickup before the collision. The investigating officer testified he measured the skidmarks left by the pickup to be 46 feet in length, and thereby estimated its speed to be between 35 and 40 miles per hour at impact. Most of the testimony came from an expert witness in accident reconstruction. He estimated Laughlin’s speed to be between 42 to 46 miles per hour when it began to skid. He testified as to headlight distances and reaction time, and concluded that, at speeds of 45, 50, and 55 with the visibility existing, there was no way Laughlin could have stopped his car. Defendant relies primarily upon the fact that Laughlin’s pickup did not stop or turn before striking the truck as evidence that Laughlin must have been guilty of negligence in one or more of the manners alleged. It is well established law in this state that the mere fact that a collision occurs is not in itself proof of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199 (Tex.Com.App. 1937, jdgmt adopted). These points of error are overruled.

It is next contended that this jury was guilty of misconduct in that the foreman of the jury was in the insurance business and convinced the other jurors because of his knowledge and expertise in such business. It is also contended that a discussion by the jury of insurance and financial ability constituted jury misconduct. One juror testified, on a hearing of defendant’s motion for a new trial, that the foreman made the statement that since he was in the insurance business he thought the widow of the deceased had lost about $150,000. Several of the jurors testified that the foreman had been asked to suggest an amount for the widow to recover.

There are no findings of fact or conclusions of law, and none were requested. A study of the statement of facts shows that the evidence is conflicting, and the foreman of the jury denied the misconduct occurred. It is settled law in this state that where there is such a conflict in the evidence and no findings and conclusions, the overruling of the motion for a new trial is an implied finding that the misconduct did not occur. Brawley v. Bowen, 387 S.W.2d 383 (Tex. 1965). These points are overruled.

The jury awarded $10,000 to one minor child and $20,000 each to the other two minor children. The final point of error is that there is no evidence to support the two $20,000 awards.

The evidence supporting those awards is as follows: Winfred Laughlin was a good provider and took care of his family; he was a dedicated family man and interested in the welfare of his family; he kept his family clothed and adequately fed; he spent his money on his children; he was kind-hearted and loved by his family. The point is overruled. Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.).

AFFIRMED.


author: BISSETT, Justice.

text:
    Ronnie DeWitt ALLEN and J. H. Marks Trucking Company, Inc., Appellants, v. Louis KNIPPA, Sr., Individually and as next friend of his minor son, Dennis Knippa, Appellees.
    No. 1195.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 12, 1977.
    Rehearing Denied June 23, 1977.

      Harry F. Maddin, Maddin, White & Brin, Corpus Christi, for appellants.
    Joseph A. Cohn, Jr., Nicolas & Morris, William R. Edwards, Law Offices of William R. Edwards, Corpus Christi, for appel-lees.
   OPINION

BISSETT, Justice.

This is a venue case. Suit was filed in San Patricio County, Texas, by Louis Knip-pa, Sr., individually and as next friend of his minor son, Dennis Knippa, for injuries sustained by the minor when the motorcycle then being ridden by him collided with a truck-semi-trailer combination (truck-trailer) owned by the defendant Jimmy Allen, operated by the defendant Ronnie DeWitt Allen, and under lease to the defendant J. H. Marks Trucking Company, Inc. Jimmy Allen was nonsuited. Pleas of privilege were filed by the defendants Ronnie DeW-itt Allen and J. H. Marks Trucking Company, Inc. The plaintiffs controverted the pleas and sought to maintain venue in San Patricio County, Texas under Tex.Rev.Civ. StatAnn. art. 1995, §§ 9a, 23 and 29 (1964). The pleas of privilege were overruled. The defendants have appealed.

It was stipulated that at all times in question: Louis Knippa, Sr. and Dennis Knippa (Dennis) were residents of San Pa-tricio County, Texas; Ronnie DeWitt Allen (Allen) was a resident of Midland County, Texas; J. H. Marks Trucking Company, Inc. (Marks) is a Texas Corporation and was a resident of Ector County, Texas; at and immediately prior to the occurrence of the accident or collision upon which this suit is based, Allen was an employee of Marks, and was acting within the scope of his employment at the time and place of the accident.

It being undisputed that Allen was an employee of Marks and that he was acting within the scope of his employment at the time of the occurrence in question, the remaining venue facts under Tex.Rev. Civ.Stat.Ann. art. 1995, § 9a (1964) which plaintiffs were required to prove in order to maintain venue in San Patricio County, Texas, were: 1) that Allen was guilty of an act of negligence which occurred in San Patricio County, Texas; and 2) that such act was a proximate cause of the accident. Mobil Oil Co. v Dodd, 515 S.W.2d 351 (Tex.Civ.App.—Corpus Christi 1974, no writ); Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App.—Tyler 1966, no writ; Shelburne v. Christie-Hickman Drilling Company, 295 S.W.2d 476 (Tex.Civ.App.—Amarillo 1956, no writ).

Venue facts must be proved by a preponderance of the evidence. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). The occurrence of a collision between two motor vehicles is not of itself evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195 (Tex.Comm’n App.1937, opinion adopted). Venue cannot be established by implication. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950). Failure to perform a duty required by law is never presumed as a fact, but must be proved by competent evidence of probative value. Jones v. Nafco Oil and Gas, Inc., 380 S.W.2d 570 (Tex.Sup.1964). Proof of acts constituting negligence may be made by circumstantial evidence. Big Three Welding Equipment Company v. Reeh, 301 S.W.2d 504 (Tex.Civ.App.—San Antonio 1957, no writ); Williams v. Rearick, 218 S.W.2d 225 (Tex.Civ.App.—Amarillo 1949, no writ).

The accident in question occurred on January 22, 1975, at about 6:20 p. m., in the corporate limits of the City of Ingleside, San Patricio County, Texas, when Dennis, while riding a motorcycle, ran into the rear of defendants’ truck-trailer which was then parked on a portion of the outside southbound lane of Highway 1069. It had been raining most, if not all, of the day, and was misting rain at the time of the collision. Allen testified that it was “just getting dark” at that time; all of the other witnesses testified that it was “dark” at that time. It was stipulated that “the official sundown on January 22, 1975, was at 6:02 p. m.”

Allen testified that he had been driving in misty rain for about two hours when he parked his truck on Highway 1069 in Ingle-side. All of the lights on his truck-trailer were in working order, and he had been driving with his lights on up until the time he stopped, when he cut all lights off. He did not see the collision. After the accident occurred, he turned his “emergency flashers on.” The rear, of the trailer was equipped with two reflectors. He also carried fuses and reflectors in the truck but did not put them out when he parked the truck-trailer.

Dennis was rendered unconscious as a result of the collision and did not regain consciousness until several days afterwards. He testified that for some fifteen or twenty minutes before the accident he had been in a service station that was about a block away from the point of impact; that it was misting rain; and that it was dark at the time. He further testified that he turned the headlight of his motorcycle on when he left the station. He did not remember anything after he got “on the roadway.”

Donald Hahn, who was in a vehicle which was stopped at an intersection near the scene where the accident occurred, testified that he saw Dennis “out on the highway, coming down the road” in the right-hand lane “closest to the curb”; that “it was real dark”; that both he and Dennis had their headlights on; and that as Dennis passed the intersection where he (Donald) was waiting, he “saw the tail-light of Dennis’ bike.” He then turned onto the highway and proceeded in the direction that Dennis had been travelling. He came up to the scene of the accident and saw “Dennis laying down on the ground, partly straddling his bike.” He was asked if he saw the truck when he turned on to the highway. He answered:

“I didn’t notice the truck right off until I got right up on it pretty close.”

He was not an eye-witness to the collision itself.

Mr. Allen W. Elledge, a patrolman for the City of Ingleside, who arrived at the scene of the collision within five minutes after the happening of the occurrence, investigated the accident. He said that “it had been raining heavily” but at the time of his arrival “it was a slight drizzle,” and “it was dark.” It was established by his testimony (which was not disputed) that the southbound portion of the highway consisted of thirty-two feet of pavement between the center stripe and the edge of the roadway; the southbound portion was divided into two lanes; the center lane is twelve feet wide and the outside lane (curb lane) is twenty feet in width. He found the truck parked in the outside lane; it did not have any lights burning at that time. Several photographs which were taken at the scene shortly after the collision occurred were introduced in evidence. Those photographs and Elledge’s testimony show that the truck-trailer was parked in the outside lane near the edge of the pavement, and all of the rear wheels of the trailer were on the pavement. Such evidence further shows that part of the cargo in the truck-trailer consisted of some seven or eight cylinders with tubes on one end. These tubes protruded out from the rear edge of the bed of the trailer. Elledge testified that the protrusion of the tubes was less than 3 feet. This is the only evidence with reference to such protrusion. There were no red signal lamps or red signal flags affixed to any of the tubes. Elledge, in response to the inquiry “how far could you see with your headlights on, objects in the road ahead of you, at 6:26,” replied:

“Between seventy-five to a hundred feet at the time.”

The trial court filed fifty-four findings of fact. The defendants, in twenty-five points of error, attack several of those findings on the grounds that there is “no evidence” to support the particular findings, and in the alternative, that the findings “are against the great weight and preponderance of the evidence” as to be clearly wrong. All of the defendants’ points deal with some act or omission by Allen which the trial court found was the result of his failure to warn motorists approaching the rear of his parked truck-trailer of the presence of his vehicle on a portion of the improved roadway. We have reviewed, considered and weighed all of the evidence in accordance with the well established rules which govern the disposition of “no evidence” and “against the great weight and preponderance of the evidence” points.

Tex.Rev.Civ.Stat.Ann. art. 6701d, § 120 (1977), among other provisions, provides that at any time from a half hour after sunset to a half hour before sunrise, subject to certain exceptions that are not here pertinent, red lamps and red reflectors shall be displayed at the extreme rear end of the load on the vehicle where the load extends “four (4) feet or more beyond the bed or body of such vehicle.” The trial court found that the failure to mark the tubes which protruded from the rear end of the truck was in violation of Section 120, which constituted negligence per se and common law negligence, and which was a proximate cause of the accident. We agree with the defendants in their contention that there is no evidence to support those particular findings. It is undisputed that the tubes protruded less than three feet from the rear edge of the trailer. There was no violation of Section 120. There is no evidence that will support a finding that the conditions present required an ordinary prudent person to display any flag, light or device on the end of the tubes. Points 1, 2 and 3 are sustained.

Points 4 to 9 deal with reflectors located on the rear of the trailer. The trial court found that the reflectors were in such condition that they failed to give adequate warning of the presence of the truck-trailer on the highway to Dennis, and that they did not comply with the requirements for equipment under Tex.Rev.Civ.Stat.Ann. art. 6701d, § 112 (1977).

The only evidence which relates in any way to the findings concerning the reflectors is found in the testimony of Elledge when he was asked to comment on two photographs, which were marked plaintiffs’ exhibits “P-4” and “P-5.” Concerning “P-5,” a closeup black and white photograph of the back of the trailer, the questions asked of Elledge and his answers thereto were:

“Q All right. Now, with regard to the taillights shown, do they depict the taillights or reflectors or whatever they are, as they were at the time of the collision?
A Yes, sir, it does.
Q What was the condition of those taillights insofar as road film was concerned?
A Okay. As for the — by the picture it shows road film on it. At the actual time of the accident I can’t recall, you know, from memory myself.”

Elledge was then handed plaintiffs’ exhibit P — 4, which was also a picture of the back of the trailer. He testified in response to questions asked him, as follows:

“Q And what are these white-appearing things in the picture on either side?
A Reflectors, I believe.
Q All right. It appears that they are reflecting the light from whatever source was used to take this picture.
A That’s right.”

An examination of exhibits “P-4” and “P-5” clearly shows that the trailer was equipped with the proper reflectors as required by Section 112 of the statute. There is no evidence which will support even an inference that the reflectors did not meet the standard imposed by Section 112. El-ledge’s testimony does not constitute any evidence of probative value that supports the challenged findings. “P-5” does not itself establish that the reflectors did not give adequate warning of the presence of defendants’ vehicle on the road. Elledge did not qualify as an expert in the field of photography or in interpreting photographs. His answer “the picture it shows a road film on it” was limited in extent to the taillights, and did not encompass the reflectors. Furthermore, Elledge’s answers were an opinion and nothing more. Points 4 to 9, both inclusive, are sustained.

Some of the findings of fact are not attacked by a point of error. Included therein are the findings:

“11. At the time and place in question, the weather was cloudy and raining lightly-
12. At the time of the collision it was dark out.
13. At the time of the collision the truck-semi-trailer combination in question had no lighted lights.”
“15. At the time and place in question, because of darkness, cloud cover and rain, persons and vehicles on the highway were not clearly discernible at a distance of 1000 feet ahead.”
******
“29. At the time and place in question, the unlighted truck-semi-trailer combination was parked on the roadway, that is, on a portion of the highway improved, designed and usually used for vehicular traffic.”

There are other findings of fact, which, though challenged, do have support in the evidence. They are summarized, as follows:

1. The truck-trailer failed to have any lights or other visible signals to apprise the driver of a vehicle approaching it from the rear of its presence and position on the street before reaching too close to avoid striking it, which was negligence that proximately caused the occurrence in question;
2. In parking the truck-trailer on the roadway and extinguishing all lights thereon, under the circumstances then existing, Allen posed a source of danger to other motorists on the highway, which constituted negligence that proximately caused the accident;
3. Allen’s failure to flag or otherwise warn oncoming traffic of the presence of the truck-trailer on the roadway, was negligence that proximately caused the collision;
4. The failure of Allen, upon stopping the truck-trailer at the time and place in question, to immediately actuate vehicular hazard warning signal lamps which met the requirements of - Tex.Rev.Civ. Stat.Ann. art. 6701d, § 125 (1977) was in violation of Section 138 of said statute, constituted negligence per se and common law negligence, each of which was a proximate cause of the accident;
5. Allen’s failure to display tail lamps which emitted a red light plainly visible from a distance of one thousand feet to the rear at a time, when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway were not clearly discernible at a distance of one thousand feet, was in violation of Tex.Rev.Civ.Stat.Ann. art. 6701d, §§ 109 and 111 (1977), constituted negligence per se and common law negligence, each of which was a proximate cause of the collision.

It is undisputed that Allen had been driving with his lights on just preceding the accident, and that he turned all lights off when he parked his truck-trailer and did not put out any flares, reflectors, flags or anything which would warn approaching motor traffic of the presence of the parked vehicle on a paved portion of the highway. It is further undisputed that Allen parked in an area, though not prohibited, was not commonly used for parking. It is also undisputed that it had been raining “heavily” during the day and was misting at the moment of impact. It was dark at the time in question. The testimony of Hahn and that of Elledge will support the findings of common law negligence, i. e., that the failure of Allen to have lights or other visible signals to the rear of the truck-trailer to apprise approaching vehicular traffic from the rear of the vehicle’s presence on the roadway was negligence; that in parking the truck-trailer on the roadway and extinguishing all lights thereon was negligence under the circumstances then existing; and the failure to flag or otherwise warn oncoming traffic of the truck-trailer’s presence on the roadway was negligence. Such testimony also lends support to the findings that each of the aforesaid failures or omissions were a proximate cause of the accident.

We hold that under the facts here presented, Allen, the driver of the truck-trailer, created a dangerous condition when he parked his vehicle on the pavement of Highway 1069 and extinguished all lights, headlights and tail-lights on the truck-trailer. He was under a duty to warn motorists who might approach the parked truck-trailer from the rear of the presence of the vehicle on the roadway and an ordinary prudent person in the exercise of ordinary care should have foreseen that in the absence of such a warning a collision, such as the one that did occur, might occur. See Lofton v. Norman, 508 S.W.2d 915 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Rodgerson v. LaFollette, 424 S.W.2d 280 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.).

Tex.Rev.Civ.Stat.Ann. art. 6701d, §§ 109 and 111 (1977), provides that every vehicle upon a highway in this State between a half hour after sunset and a half hour before sunrise and at any other time when due to insufficient light or unfavorable atmospheric conditions, persons and vehicles are not clearly discernible at a distance of one thousand feet ahead shall display lighted lamps and illuminating devices, subject to certain exceptions that do not apply to the case at bar. Clearly under the evidence, the insufficient light and unfavorable atmospheric conditions made it mandatory that Allen display lighted lamps or illuminating devices upon his parking the truck-trailer upon Highway 1069. The testimony of Hahn and that of Elledge shows that the truck-trailer was not clearly discernible for a distance of one thousand feet. Such failure was a violation of a statutory standard and constituted negligence per se.

Tex.Rev.Civ.Stat.Ann. art. 6701d, § 138 (1977), insofar as it is pertinent to this case, provides:

“(a) Whenever any truck trailer ... is stopped upon a roadway or adjacent shoulder, the driver shall immediately actuate vehicular hazard warning signal lamps . . . Such lights need not be displayed by a vehicle parked lawfully in an urban district,

The term “urban district” is defined in Tex. Rev.Civ.Stat.Ann. art. 6701d, § 9(d) (1977), as follows:

“(d) Urban District. The territory contiguous to and including any highway or street which is built up with structures devoted to business, industry or dwelling houses situated at intervals of less than one hundred (100) feet for a distance of one-quarter (¼) of a mile or more on either side except in incorporated cities.” Emphasis supplied)

The undisputed evidence in this case is that Allen parked the truck-trailer in the city limits of Ingleside, and that Ingleside is an incorporated city. Even though there was no restriction against parking the vehicle in the place that it parked, as a matter of law it was not parked in an urban district as that term is defined in the statute. There is neither direct nor circumstantial evidence that will support the defendants’ contention that the vehicle was parked in an urban district.

The failure of Allen to actuate the hazard lamps when he parked the truck-trailer was a violation of Section 138(a) of the statute, which constituted negligence per se. See East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949).

There is ample evidence to support the findings that Allen failed to display lighted lamps or other visible signals that would have given a warning to vehicles approaching the rear of the parked truck-trailer of its presence on the roadway; that the parking of the truck-trailer on the roadway and the extinguishing of all lights thereon posed a source of danger to overtaking motorists; and that Allen failed to flag or otherwise warn the drivers of vehicles that the truck-trailer was parked on the highway; that such omissions constituted common law negligence; and that Allen’s omissions also constituted statutory violations which amounted to negligence per se. It is established by the evidence that the defendant Allen committed acts of negligence in San Patricio County, Texas, and that such acts were each a proximate cause of the accident in question. Those findings are not against the great weight and preponderance of the evidence. The trial court properly concluded that the plaintiffs alleged and proved a cause of action against the defendants Allen and Marks under Tex.Rev.Civ.Stat.Ann. art. 1995, § 9a (1964). Venue as to the defendants is maintainable in San Patricio County, Texas. Points 10 to 25, both inclusive, being all of the defendants’ remaining points of error, are overruled.

The judgment of the trial court is AFFIRMED.


text:
    WORLEY HOSPITAL, INC., Appellant, v. Sylvia CALDWELL et vir., Appellees.
    No. 8500.
    Court of Civil Appeals of Texas, Amarillo.
    May 16, 1977.

      Anderson, Henley, Shields, Bradford & Pritchard; L. W. Anderson, Dallas, for appellant.
    Buzzard, Comer & Buzzard, Ross N. Buzzard, Maguire & Vanderpool, Pampa, Stokes, Carnahan & Fields, Thomas D. Far-ris, Amarillo, for appellees.
   ROBINSON, Justice.

This is a medical malpractice case in which the jury found that the operating room nurses were negligent in failing to make a correct sponge count. The case has been remanded by the Supreme Court so that this court may rule on the question of whether the jury’s refusal to find that the nurses were borrowed employees of the surgeon, Dr. C. F. Sparger, was against the great and overwhelming weight of the evidence.

The relevant evidence is undisputed and reveals the common situation in which the nurses are employed by the hospital and instructed by a hospital manual covering the manner in which they are to perform their duties. The nurses testified that they were to follow the doctor’s orders and the doctor testified that he was in charge, medically speaking, of the nurses.

The facts are set out more fully in the original opinion of this court, Worley Hospital, Inc. v. Caldwell, et vir, 529 S.W.2d 639 (Tex.Civ.App.—Amarillo 1975), and in the opinion of the Supreme Court, Sparger v. Worley Hospital, Inc. et al., 547 S.W.2d 582 (Tex.1977). Dr. Sparger’s testimony concerning his relationship with the nurses as well as the nurses’ testimony in that regard is set out verbatim in Justice Johnson’s opinion, dissenting from the opinion of the Supreme Court, 547 S.W.2d at 587-88.

The Supreme Court held that the facts do not show that, as a matter of law, the nurses were the borrowed servants of Dr. Sparger, and stated as follows:

Reasonable minds might differ as to the facts which presented the borrowed servant issue.

We have, therefore, reviewed the evidence in the light of the opinion of the Supreme Court.

We are mindful that the answer to the special issue before us involves a refusal or a failure to find a fact rather than an affirmative finding. Thus, no evidence was required to support the negative finding. The burden of proof on the issue was not on the defendant, Dr. Sparger. Further, the Supreme Court in effect has held that the testimony of Dr. Sparger, concerning his right to control the nurses in regard to medical aspects, is not a judicial admission that would as a matter of law make the nurses his borrowed servants “in watching after the lap packs.”

Nevertheless, the question for our determination is not one of law, but a fact question of the weight and preponderance of all of the evidence to be tested by the standard set out in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). After considering all of the evidence including that contrary to the verdict as well as that supporting the verdict, we are of the opinion that the jury finding that the nurses were not the borrowed servants of Dr. Sparger is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is accordingly affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Terry Joel ADAM et al., Relators, v. Honorable Wells STEWART, et al., Respondents.
    No. 1638.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 18, 1977.
    Rachel Johnson, Pasadena, Richard E. Anderson, Houston, for relators.
    Harry L. Tindall, Houston, for respondents.
   J. CURTISS BROWN, Chief Justice.

Mary Adam (respondent or Mrs. Adam) filed for divorce in July, 1975. In August of that year Terry Adam (relator or Mr. Adam) cross-acted for divorce and for managing conservatorship of the children of the marriage. A jury fee was paid by Mrs. Adam shortly thereafter. An attorney ad litem was appointed for the minor children, a social study ordered, and temporary orders entered relating to custody, alimony and support.

Over the objection of respondent the court conducted an abbreviated hearing on April 19, 1976 concerning what the court termed a “divisible divorce.” He purported to act on the basis of Tex.R.Civ.P. 174(b) on his own motion. The court ruled: “All right, grant the divorce.” This hearing on the “divisible divorce” was conducted without a jury despite the fact that one had been demanded.

A jury trial was conducted thereafter in another separate trial relating to custody on September 1,1976. During the course of it the court instructed the jury as follows:

I believe in divisible divorce. I have tried the logical components. Some judges think you should divide the property before you grant a divorce.
I have heard evidence about irreconcilable differences back in April 1976. At that time, I granted them a divorce. That means they can go any place, after I sign a Decree, and get married; or whatever they want to do. They are divorced, as far as that goes.
I feel the logical components are the first issue as to whether or not there should be a divorce.
The second issue is who should be made managing conservator. That affects the issue of property.
Property is usually 97 percent for the Judge to decide.
He decides the divorce. You decide the conservatorship. I decide the property. Then, child support becomes relevant.
Counsel is correct. What I maintain is that I am also correct. They have been divorced.
One further thing. To completely reflect what happened. For some unknown reason, there has not been an Order for me to sign.
If I divorce somebody back in January, and I do not physically sign the piece of paper — they don’t bring it to me for eight months — the law is that they still got divorced back in January. The record I did was adminsterally (sic) act.
As far as I am concerned, you cannot answer, “We were divorced” without saying everything I have just said. I want the jury to be instructed on that.
They can go out and get married again. They are divorced to that extent .

As the above statement by the court indicates no written judgment reflecting the “divisible divorce” was entered at the time of the jury trial of custody issues. The state of affairs continued until April 11, 1977 when the court entered its “Interlocutory Decree Of Divorce” which included the recitation: “This order signed on the 11th day of April 1977, but effective from April 19, 1976.” [Emphasis added.]

There is an indication that many formal hearings have been held. A master has been appointed to hear evidence in connection with a division of the property. The case has, in effect, proceeded on a piecemeal basis including: (1) hearing and issuance of temporary orders on custody, support and maintenance; (2) some discovery proceedings; (3) the separate hearing on divorce issues as set forth above; (4) hearing on custody issues; (5) appointment of a master to hear evidence on property matters; and (6) other incidental proceedings before the court.

Relator has instituted this original proceeding under Tex.Rev.Civ.Stat.Ann. art. 1824 (1964) for a writ of mandamus to compel the trial court to set aside the divorce purportedly granted on April 19,1976, and to proceed to jury trial and judgment on the entire case.

Article 3.63 of the Family Code provides: “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” [Emphasis added.] We agree with the San Antonio Court of Civil Appeals in Reed v. Williams, 545 S.W.2d 33 (Tex.Civ.App.—San Antonio 1976, no writ) that this provision is mandatory. When the jurisdiction of the divorce court is invoked by the pleadings of either spouse the court must decree a division of the property. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302 (1960). The trial court may not sever the property division from the divorce action. Reed v. Williams, 545 S.W.2d at 34; Angerstein v. Angerstein, 389 S.W.2d 519, 520-21 (Tex.Civ.App.—Corpus Christi 1965, no writ).

To permit the granting of a valid “interlocutory” divorce before entry of final judgment in a divorce case would create chaos and many problems. For example, after a “divorce”, does a trial court still have discretion to order a division of the estate as the court may deem “just and right”, or must it divide equally the community property of the parties held as tenants in common? After a “divorce”, may the court continue to impose upon the husband a requirement to pay temporary alimony? In the event of a remarriage of either or both of the parties following such a “divorce”, does the accumulation of property in the interim between the divorce and the final adjudication accrue to the benefit of the estate of the parties in litigation or to the community estate of the current marriage? In the event a spouse remarries following such a “divorce” and the subsequent marriage results in the institution of a suit for divorce in a different jurisdiction, which court has dominant jurisdiction? Many other similar problems would be presented.

While we readily conclude that the court’s action in granting an “interlocutory divorce” purportedly authorizing the parties to remarry before the entry of a final judgment is error, it is not so clear that relator is entitled to the issuance of a writ of mandamus. In Williams v. Stewart, 525 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ) the trial court dismissed a suit against the natural father of a minor child seeking support for an illegitimate child. The United States Supreme Court had previously held in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) that Texas could not discriminate between legitimate and illegitimate children with respect to the issue of support. It was clear that the court had erroneously dismissed the suit; however, we declined to issue the writ of mandamus. We had the power under Tex.Rev.Civ.Stat.Ann. art. 1824 (1964) to order the trial court to proceed to trial and judgment, but we could not require the trial court to exercise discretion in any particular manner. When the case reached us on direct appeal, we concluded that the domestic relations court clearly had jurisdiction to hear cases in which illegitimate children sought support under Gomez v. Perez, supra, Tex.Rev.Civ. Stat.Ann. art. 2338-5 § 3 (1971), and the Texas Family Code. Therefore, we reversed and remanded the judgment of dismissal. Williams v. Shields, 531 S.W.2d 383 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). In Boswell, O’Toole, Davis & Pickering v. Stewart, 531 S.W.2d 380 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), the relator sought a petition for mandamus under the provisions of article 1824 in a cause in which relator had been seeking to recover attorney’s fees for services rendered the wife from both parties to a divorce case. We held that by refusing to act on the merits of the action over which it had taken jurisdiction, the trial court had effectively refused to proceed to trial and judgment. Therefore, we found that the order of the court amounted to a refusal to proceed to final judgment in a case in which it had taken jurisdiction and was subject to the issuance of a writ of mandamus. Cf. Jefferson County v. Farris, 476 S.W.2d 457 (Tex.Civ.App.—Beaumont 1972, no writ).

Thus, the fine line is drawn as to whether the trial court’s action here amounts to a refusal to proceed within the meaning of Boswell, O’Tolle, Davis & Pickering v. Stewart, supra, or whether the court has acted, although erroneously, as in Williams v. Stewart, supra. This court, unlike the Supreme Court of Texas, does not have the authority to issue writs of mandamus other than as may be authorized by statute. See Standley v. Stewart, 539 S.W.2d 882 (Tex.Sup.1976).

Although proceeding piecemeal, improperly and tortuously, the respondent judge has not refused to proceed. On the contrary, like the man on horseback, the court has ridden off in all directions. We are not authorized under the provisions of article 1824 to direct him to do otherwise. We are not unmindful that the San Antonio court in Reed v. Williams, supra, in a case somewhat similar to the one at hand, issued a writ of mandamus in a case in which the trial court had severed the property division from the divorce judgment and had postponed division of the community estate. By contrast, in this case the respondent judge has not declined to divide the community property but has appointed a master to begin the process of such division. Our doubts concerning the wisdom of this step and the resulting protracted litigation does not authorize us to order otherwise.

Petition denied.


text:
    Sally ALVARADO, Appellant, v. Richard GONZALES, Appellee.
    No. 1183.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 19, 1977.

      Richard D. Hatch, Sinton, Lewis F. Boyd, Texas Dept, of Public Welfare, Austin, for appellant.
    Reynaldo S. Cantu, Jr., Kingsville, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment of the 156th District Court of San Patricio County, Texas, wherein the court sustained the ap-pellee’s plea of limitation to the action to establish paternity and for support of an illegitimate child and dismissed the suit.

Sally Alvarado, in her petition, alleged that she is the mother of the child, Carlos Anthony Alvarado, who was born September 22,1974; that the child was born out of wedlock; that Richard Gonzales is the father of the child; that she was without sufficient financial resources to provide for the support of the child; and that Richard Gonzales is financially able to contribute to the support of the child. She prayed that Richard Gonzales be declared to be the father of the child and that he be ordered to contribute to the support of the child. Richard Gonzales, in his original answer, denied the allegations made by Sally Alvarado in her petition, and pled the one-year statute of limitations as a bar to the action. The trial court sustained the plea of limitations under the authority of the Texas Family Code Ann. § 13.01 (1975), and dismissed the action. Sally Alvarado has duly and timely perfected an appeal from that judgment to this Court.

The appellant, in effect, contends that the trial court erred in rendering the aforesaid judgment because the statute of limitations involved: 1) applies only prospectively and not retroactively; 2) as applied in this case, violates the State Constitutional prohibition of retroactive legislation; 3) invidiously discriminates between illegitimate and legitimate children and thereby violates the Fourteenth Amendment of the United States Constitution; and 4) as here applied, has the effect of invidiously discriminating on the basis of sex.

The appellee asserts: 1) the statute expressly and by implication provides for retroactive application; 2) the constitutional prohibition against retroactive laws has no application to the statute; 3) the application of the statute to the facts of this case does not discriminate invidiously against illegitimate children; and 4) the statute does not place the burden of support on the mother and, therefore, is not invidiously discriminative on the basis of sex.

The right of an illegitimate child to obtain support from his or her natural father has been recognized since the United States Supreme Court decision of Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). In that case, the mother filed suit in the District Court of Bexar County, Texas, wherein she sought to have the defendant declared to be the father of the child, which was born out of wedlock, and to require him to support the child. The trial court decreed that the defendant was the father of the child, but further decreed that there was no civil liability on his part to support the child. The judgment of the trial court was affirmed on appeal. See L_G_, Z_G_ v. F_O.P_, 466 S.W.2d 41 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). The United States Supreme Court, however, reversed the judgments of both courts and held that once a state posits a judicially enforceable right on behalf of children to needed support from their natural fathers, there is no constitutionally sufficient justification for denying that right to a child simply because the natural father has not married the child’s mother. The court also noted that the problems of proof of paternity may not be made into an “impenetrable barrier that works to shield otherwise invidious discrimination.”

Another case which bears on the issue here presented is In Interest of R_V_M_, 530 S.W.2d 921 (Tex.Civ.App.—Waco 1975, no writ). In that case, which was a paternity suit coupled with an action against the alleged father of an illegitimate child for the support of the child, the child was born on November 16, 1973. Suit was filed on June 25, 1974 and judgment declaring the defendant to be the natural father of the child and requiring him to contribute to the child’s support was rendered on May 23, 1975. The judgment was affirmed. The Waco Court of Civil Appeals noted that at the time suit was filed and when the judgment by the trial court was rendered, the statutes of this State required the father of a legitimate child to support the child; but they did not require the father to support his illegitimate child. Following the decision of the United States Supreme Court in Gomez, which was made on January 17,1973, it was stated by the court in its opinion that the rule announced in Gomez “became the law of Texas at that time on the constitutional question involved,” and further said:

“. . . When the Legislature later provided judicial relief against the father on behalf of a legitimate child for support, it necessarily provided the same relief on behalf of an illegitimate child. Stated another way, having provided judicial recourse on behalf of a legitimate child against its father for support, the State may not now deny that same action on behalf of an illegitimate child.”

Title 2, consisting of Sections 11.01 to 35.03, was added to the Texas Family Code by Acts 1973, 63rd Leg., p. 1411, ch. 543 § 1, effective January 1, 1974. Section 4 thereof provides:

“(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid.”
“(b) Any action or suit commenced after January 1,1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.”

Title 2, as originally enacted, in Chapter 13 thereof, established procedures for the voluntary legitimation of an illegitimate child, it did not provide for involuntary legitimation. Chapter 13 was revised and amended by Acts 1975, 64th Leg., p. 1261, ch. 476, § 24, to read “Determination of Paternity.” The amendments, which became effective on September 1,1975, established procedures for involuntary legitimation of a child, and further provided for a time limitation period within which to establish paternity by suit. Section 13.01, as amended, provides:

“A suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child’s natural father by proof of paternity must be brought before the child is one year old, or the suit is barred.”

The illegitimate child in this case was born prior to the effective date of the statute of limitations pertaining to paternity suits. Since the statute was interpreted to be operative on a past event, i. e., the birth of the child, its application by the trial court is retroactive. See 59 A.L.R.3d 685, 719-20 (1974).

Statutes of limitation rest upon reasons of sound public policy in that they tend to promote the peace and welfare of society, safeguard against fraud and oppression and compel the settlement of claims within a reasonable time after their origin and while the evidence remains fresh in the minds of the witnesses. Statutes of limitation are devices intended to protect the courts from stale claims and to keep an individual from being put to defense after his memory has faded, witnesses have disappeared and the evidence has been lost. As such, limitation statutes are employed to prevent fraud, perjury and mistake even though the operation of such statutes in some instances is arbitrary and the result may be harsh. Chase Securities Corporation v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945).

Generally, statutes of limitation go to matters of remedy and not to matters of fundamental rights unless the limitation period set is so manifestly unjust that it constitutes a denial of justice or it amounts to a practical denial of the right itself. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447, 454 (1922); 37 Tex.Jur.2d, Limitation of Actions, § 2 (1962). The legislature may without violating constitutional guarantees enact statutes which limit the time within which actions to enforce demands may be brought even though there existed no previous period of limitation; provided that such statute allows a reasonable time within which to bring suit. Wright v. Hardie, 88 Tex. 653, 32 S.W. 885, 886 (1895); Hartely v. Langdon & Company, 347 S.W.2d 749, 754 (Tex.Civ.App.—Houston 1961, no writ); 37 Tex.Jur.2d, Limitation of Actions, § 6 (1962). The determination of what constitutes a reasonable time is reviewable by the courts. In reviewing the reasonableness of a statute of limitation, the court should consider all relevant circumstances under which the statute is to apply. 32 Am. Jur.2d, Limitation of Actions, § 32 (1970).

A statute should not be given retroactive effect unless such construction is required by explicit language or by necessary construction. Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952); National Carloading Corporation v. Phoenix-El Paso Express, Inc., 142 Tex. 141, 176 S.W.2d 564, 568 (Tex.Sup.1943), cert. denied, 322 U.S. 747, 64 S.Ct. 1156, 88 L.Ed. 1578 (1944); Aetna Insurance Company v. Richardelle, 528 S.W.2d 280, 283-4 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). In determining legislative intent a statute should, where possible, be given a reasonable interpretation, so as to avoid injustice or absurd consequences. Gulf Ins. Co. v. James, 143 Tex. 424, 185 S.W.2d 966, 969 (1945); State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 936 (1942), and, of course, a statute under constitutional attack is construed to be valid if reasonably possible. County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162, 165 (1959); Texas State Board of Public Accountancy v. W. L. Fulcher, 515 S.W.2d 950, 953 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

Title 2 of the Texas Family Code as originally enacted expressly applied to all proceedings brought after January 1,1974, the date on which it took effect. The extensive revisions of Title 2 in 1975, effective September 1, 1975, however, did not contain a similar clause.

Retroactive application of the limitation statute would not allow illegitimate children born before the statute took effect, or parties acting in their interest, a reasonable time to bring a paternity suit. Additionally, the limitation period applied retroactively operates as an “impenetrable barrier” upon the right of an illegitimate child to obtain support from his natural father. Furthermore, retroactive application of the limitation statute to this case would, in effect, give this appellant only 21 days, and no more, in which to file suit to establish paternity and to enforce support. As a practical matter, this is too short a period of time, and imposes more obstructions to the system of justice than it seeks to alleviate. The statute, if applied retroactively, would not give this appellant a fair opportunity to file suit to establish paternity and obtain support for the child before the bar took effect. 51 Am.Jur.2d, Limitation of Actions, § 31 (1970). The rights of the mother of an illegitimate child must have substance if they are to be meaningful. They may not be so restricted by procedural steps leading to such enforcement that they are stripped of meaning even while the rights themselves may technically exist. It is difficult, if not impossible, to perceive why paternity suits, the necessary step in procu-ration of support for the illegitimate child, should be so restricted. It is apparent that such procedure operates in a manner which is “illogical and unjust” and denied those illegitimate children the substantial benefits accorded children generally.

We conclude that the Legislature intended Section 13.01 of the Texas Family Code, as amended and revised in 1975, to apply only to those suits to establish the paternity of illegitimate children born after September 1, 1975, the effective date of statute. We hold that the statute may not be applied retroactively. It does not bar appellant’s action.

The judgment of the trial court is REVERSED and the cause is REMANDED to that court for trial on the merits.


author: NYE, Chief Justice.

text:
    DAIRY QUEEN STORES, INC., Appellant, v. Ricarlo SILVA and Sylvia Silva, Appellees.
    No. 1145.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 20, 1977.

      Ferriel C. Hamby, Jr., Adams, Graham, Lewis, Jenkins, Jones & Graham, Harlin-gen, for appellant.
    Randall P. Crane, Chavez, Barnard & Crane, Harlingen, for appellees.
   OPINION

NYE, Chief Justice.

This is a venue case. Ricardo and Sylvia Silva brought suit in Cameron County against Dairy Queen Stores, Inc. for damages allegedly sustained as a result of the consumption of contaminated food sold to the Silvas by the appellant’s San Benito store. Dairy Queen Stores, Inc. filed its plea of privilege to be sued in Dallas County, Texas, where it allegedly has its domicile and principal place of business in Texas. The Silvas controverted the plea and sought to maintain venue in Cameron County under the provisions of Subdivisions 9a, 23 and 31, Article 1995, Vernon’s Rev.Civ.Stat.Ann. (Sup.1976). Following a non-jury hearing, the plea of privilege was overruled. Dairy Queen Stores, Inc. has perfected appeal from this action by the trial court to this Court.

The facts surrounding this controversy are as follows. On the morning of April 19, 1975, the Silvas awoke and spent the morning watching television and cleaning house. At approximately 1:30 p. m., the Silvas and their daughter left their house to do some local shopping. At approximately 3:30 that afternoon, they stopped at the Dairy Queen Store in San Benito and ordered a hamburger. After picking up their purchase, they drove to a local park where Mrs. Silva consumed almost the entire hamburger except for one bite which she gave to Mr. Silva. The Silvas returned home at approximately 4:30 p. m. and fell asleep. At approximately 6:00 p. m., Mr. Silva awoke experiencing discomfort which included diarrhea. Shortly thereafter, his wife also awoke complaining she was dizzy, had cramps, nausea and diarrhea. These symptoms persisted to such an extent that Mr. Silva took his wife to a local hospital where she was admitted and remained for four days. Both of the Silvas testified the only food they consumed between the time they awoke and the onset of the illness was the hamburger purchased from appellant’s store.

The appellant brings three points of error to this Court. Appellant’s first point is that there was no evidence of any negligence by them in Cameron County as required by Subdivision 9a of Article 1995. Appellant’s second point is that there is insufficient evidence of a cause of action in Cameron County or that appellant had an agent or representative in Cameron County and finally, that there was insufficient evidence of a breach of warranty by appellant.

In order to sustain venue under Subdivision 9a of Article 1995, the plaintiff must establish: 1) that an act or omission of negligence occurred in the county where suit was filed; 2) such act or omission was that of defendant, or his servant, agent or representative acting within the scope of his employment; and 8) such negligence was a proximate cause of defendant’s injury. Heldt v. McCreary, 399 S.W.2d 181 (Tex.Civ.App.—Corpus Christi 1966, no writ); Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App.—Tyler 1966, no writ); Shelburne v. Christi-Hickman Drilling Company, 295 S.W.2d 476 (Tex.Civ.App.—Amarillo 1956, no writ).

Appellee contends that negligence was proven under the doctrine of res ipsa loquitur. Res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred upon proof of certain factors. These factors are: 1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and 2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.Sup.1974); Owen v. Brown, 447 S.W.2d 883 (Tex.Sup.1969); Bond v. Otis Elevator Company, 388 S.W.2d 681 (Tex.Sup.1965); Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ). The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party. See Bond v. Otis Elevator Company, supra. The following quote from Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913) has been quoted with approval by many of the courts of this State:

“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.”

See Mobil Chemical Company v. Bell, supra. The effect of successfully invoking the res ipsa doctrine is that the plaintiff can overcome “no-evidence” procedural challenges. He has, by successfully invoking the doctrine, produced some evidence of the defendant’s negligence. Mobil Chemical Company v. Bell, supra. The plaintiff, however, is still in the same position as any other plaintiff who has made out a case for the finder of fact. No presumption of the defendant’s negligence arises; the finder of fact is merely free to infer negligence. See Sudduth v. Commonwealth County Mutual Insurance Company, 454 S.W.2d 196 (Tex.Sup.1970).

In order to rely on the res ipsa doctrine, the plaintiff must produce some evidence from which the finder of fact can conclude by a preponderance of the evidence, that both the “type of accident” and “control” factors are present. This is not so much a rule of law as it is a rule of logic. Unless these factors are present, the finder of fact cannot reasonably infer from the circumstances of the occurrence that the defendant was negligent. In a great many cases, the plaintiff can rely upon general knowledge to prove that the occurrence in question is the type of occurrence which does not ordinarily happen in the absence of negligence. Mobil Chemical Company v. Bell, supra. Marrs, Res Ipsa Loquitur in Texas, 26 Texas L.Rev. 260-263 (1948); Owen v. Brown, supra. Mere proof of an injury, in the absence of proof of the manner in which it was received and the circumstances attending the occurrence thereof, is insufficient to warrant an inference of negligence on the part of the defendant so as to invoke the doctrine. Patrol Valve Company v. Farrell, 316 S.W.2d 92 (Tex.Civ.App.—Amarillo 1958, writ ref’d n.r.e.); Alley v. Texas Electric Service Co., 134 S.W.2d 762 (Tex.Civ.App.—Eastland 1939, no writ).

The question presented then, under appellant’s first point of error, is whether or not Dairy Queen’s negligence was the proximate cause of the Silvas’ injuries. We hold that the evidence is clearly sufficient to establish the necessary elements of Subdivision 9a, that is: that the act occurred in Cameron County; that the act was that of Dairy Queen or its servants, agents or employees acting within the scope of their employment; and that Dairy Queen’s negligence was the proximate cause of the Sil-vas’ injuries. The direct testimony of both Mr. and Mrs. Silva that the offending instrumentality, the hamburger, was under the exclusive care and control of Dairy Queen prior to the time it was sold to the Silvas; that there was no misuse or alteration of the hamburger prior to its consumption by the Silvas; together with their testimony that they had not eaten anything else prior to the onset of their illness was sufficient to show that the character of the occurrence was such that it would not have ordinarily occurred in the absence of negligence.

Both of the Silvas testified they were in good health prior to eating the hamburger and became ill shortly after its consumption. They both testified that the hamburger was the only food consumed by them prior to the onset of their illness. From this evidence, it was entirely reasonable for the finder of fact to infer from the circumstances of the occurrence that Dairy Queen was negligent. The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the finder of fact can reasonably find by a preponderance of the evidence that the defendant was negligent. Mobil Chemical Company v. Bell, supra. We think that the evidence is sufficient to have allowed the trial court to reasonably find that Dairy Queen was negligent and that this negligence was the proximate cause of the Silvas’ injuries. Appellant’s first point of error is overruled.

Venue as to a corporation under Subdivision 23, Article 1995, is proper in a county where plaintiff’s cause of action is established by facts which show: 1) plaintiff’s primary right; and 2) defendant’s act or omission which violates that right. Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ). 1 McDonald, Texas Civil Practice § 4.30.2 (1965). Under Subdivision 23, plaintiff was required to prove all of the elements of a cause of action against Dairy Queen, Inc. and that the cause of action arose in Cameron County. Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., supra, and cases cited therein. It is established by the record that Dairy Queen, Inc. is a corporation which is a resident of Dallas County, Texas. Plaintiff alleged and proved all the elements of a cause of action in negligence against Dairy Queen, Inc. Therefore, the trial court was also justified in sustaining venue under Subdivision 23 of Article 1995. Appellant’s second point of error is also overruled.

In his order overruling appellant’s plea of privilege, the trial court did not recite which venue exception it held applicable in overruling the plea. Nor did the trial court make any findings of fact or conclusions of law. Where the trial court does not make findings, it is this Court’s duty to affirm the order of the trial court if it can be sustained on any reasonable theory suggested by evidence and authorized by law. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Mobile County Mutual Insurance Company v. Jacobs, 531 S.W.2d 436 (Tex.Civ.App.—Corpus Christi 1975, no writ); Loyd W. Richardson Construction Corporation v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, no writ); Pearson v. Stevens, 446 S.W.2d 381 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.—Dallas 1940, writ ref’d). We, therefore, hold that the trial court correctly overruled the plea under both Subdivisions 9a and 23 of Article 1995. It is not necessary that we consider appellant’s third point of error.

The judgment of the trial court is AFFIRMED.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    Grady L. FOX et al., Appellants, v. AMARILLO NATIONAL BANK et al., Appellees.
    No. 8771.
    Court of Civil Appeals of Texas, Amarillo.
    May 23, 1977.
    Rehearing Denied June 20, 1977.

      Clayton & Stubblefield, Cleo G. Clayton, Jr., Amarillo, for appellants.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, W. M. Sutton and Alan B. Jones, Amarillo, Stokes, Carnahan & Fields, Barry D. Peterson, Amarillo, Stone, Stone & Chambers, R. A. Stone, Amarillo, Wither-spoon, Aikin & Langley, Richard E. Green, Hereford, Ñaman, Howell, Smith & Chase, Jerry P. Campbell, Waco, for appellees.
   REYNOLDS, Justice.

Admitted to probate was the latest dated will of the decedent. As contestants of that will and proponents of an earlier will, the appellants contend that the trial court committed errors of such a substantive nature as to require reversal. We do not find that error has been presented. Affirmed.

Norah B. Craig, a widow whose two sons predeceased her, died 12 March 1976 at the age of 93. She had executed a will on 14 November 1974 and one on 24 May 1975 revoking, by each, all prior wills made by her. Each will established a trust for the benefit of her employee, Estella F. Billing-ton, for her lifetime, and provided for the distribution of assets for religious, charitable and educational purposes.

Grady L. Fox was named the independent executor of the 14 November 1974 will, and he applied for its admission to probate. Amarillo National Bank was designated as independent executor of the 24 May 1975 will, and the bank offered that will for probate.

Fox, joined by Billington, opposed the bank’s application for probate of the 1975 will on the grounds that Mrs. Craig lacked the requisite mental capacity to execute the latest will and that its execution was the result of undue influence. The bank, joined by Boys Ranch Foundation, Presbyterian Home for Children, King’s Manor Methodist Home, Inc., and the Methodist Home, opposed the probate of the 1974 will. These latter entities, referred to as charitable organizations, also joined the bank in proposing probate of the 1975 will.1 Because the contests pertained to probate of wills providing for charitable purposes, the Attorney General of Texas was served and entered his appearance as a necessary party pursuant to Vernon’s Ann.Civ.St. art. 4412a(2)(d) (1976).

The proceedings were consolidated in the district court. The court, hearing the matters sans jury, rendered judgment admitting the 1975 will to probate and denying the application for probate of the 1974 will. Fox and Billington have appealed, advancing twenty-six points of error grouped into three categories.

The first two points are the complaints of appellants Fox and Billington that the court erred in holding the charitable organizations had such interests under the 1975 will as to entitle them to propose it for probate and to oppose the 1974 will. Thereunder, it is argued that none of the charitable organizations possessed the degree of interest required by the various sections of the Texas Probate Code (1956) to propose or oppose the respective wills, and that their presence “in this lawsuit as parties serves no purpose other than to bolster the position of Amarillo National Bank of Amarillo, Texas and jeopardize the position and rights of” Fox and Billington. The record does not show that the complaints were preserved for appellate review, but, in any event, error is not presented.

Appellants do not identify the portion of the record giving rise to these complaints; therefore, we assume they have reference to their pretrial written motion, which is included in the transcript, requesting the court to require all appellees to establish in limine such an interest under the 1975 will as to entitle them, and each of them, to oppose the 1974 will and to propose the 1975 will for probate. However, the transcript, which is certified to contain true and correct copies of all proceedings as directed by counsel, one of whom requested inclusion of “all . . . orders,” does not show any ruling endorsed on the motion or any order entered with respect to the motion.

It is axiomatic that in order to complain of a ruling made by the trial court, it is necessary to demonstrate that the ruling was made. Absent a showing of the pretrial ruling, it cannot be contended on appeal that the trial court erred in this respect, 3 Tex.Jur.2d, Rev., App & Err — Civil Cases § 99, for the record on appeal is binding. Ray v. Gage, 269 S.W.2d 411, 414 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.).

Even crediting appellees’ statement, which also is not referenced to any portion of the record, that the court, after a pretrial hearing, overruled appellants’ motion and held the charitable organizations to be proper parties, we would not be able to declare that the ruling is erroneous. The appellate record does not contain a report of the evidence heard by the trial court and, in the absence of that evidence, we are not in a position to determine the propriety of the court’s ruling. Spring Branch Independent School District v. Lilly White Church, 505 S.W.2d 620, 622 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ).

Beyond that, although Mrs. Craig’s 1975 will does not designate the appellee charitable organizations by name, the will provides that her property, including that remaining from the trust for the lifetime of Estella F. Billington, shall pass and vest under the provisions of one of her deceased son’s probated will. These provisions of the son’s will create a foundation, with Gertrude Craig as primary trustee, for religious, charitable and educational purposes, and three of the four appellee charitable organizations are specifically named as beneficiaries. In matters of joinder and misjoinder of parties, the trial court has broad discretion, particularly if the situation admits of doubt. Royal Petroleum Corporation v. Dennis, 160 Tex. 392, 332 S.W.2d 313, 317 (1960). Thus, in the trial before the court, we cannot say, from the bare charge that the presence of the charitable organizations as parties bolstered the bank's position and jeopardized the rights of appellants, that the court abused its discretion.

Moreover, the mere charge is not sufficient, without more, to show that the court’s ruling, if actually made, was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434. Accordingly, the first two points do not present error.

The 24 May 1975 will, which was not self-proved by affidavits of the form and contents provided in V.A.T.S. Probate Code, § 59 (Supp.1976), was before the court. The name Norah B. Craig is signed thereto. Appearing immediately thereafter, over the signatures and addresses of the attesting witnesses, Billie Dormiré and Gertrude Craig, is this attestation clause:

The above instrument was now here published as her Last Will and signed and subscribed by NORAH B. CRAIG, the testatrix, in our presence, and we, at her request, in her presence and in the presence of each other, sign and subscribe our names as attesting witnesses.

Both of the attesting witnesses, each of whom was over fourteen years of age, and other witnesses testified.

By their points of error three through eighteen, inclusive, appellants attack the evidentiary bases for the findings necessary to admit the 1975 will to probate. Referring to the requirements of § 88 that an applicant must prove to the satisfaction of the court “that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will,” appellants initially contend that the legislature established these requisites to be the components of the self-proving affidavit it prescribed in § 59. Therefore, appellants say, all of the details in the affidavit form must be specifically established before a will may be admitted to probate. We do not subscribe to such a broad proposition.

The only purpose of the form and contents of the § 59 affidavits is to admit a will to probate without, and as an alternative to resorting to, the testimony of a subscribing witness. Boren v. Boren, 402 S.W.2d 728, 729 (Tex.1966). The Probate Code qualifies the typewritten 1975 will for probate if the issues of competency, execution and witnessing of the unrevoked will are proved; and, if these issues are favorably resolved, the admission of the will to probate is required. Cf. Nesbett v. Nesbett, 428 S.W.2d 663, 664 (Tex.1968).

Aside from their general proposition, more specific are appellants’ contentions that certain elements requisite to probate were not established. These are that neither of the attesting witnesses testified (1) that the 24 May 1975 will “bore the signature of Norah B. Craig or that the signature thereon was the signature of Norah B. Craig and the signature witnessed by them at the time they signed the will; ” or (2) that “they subscribed their names to the will as witnesses after Norah B. Craig had signed and acknowledged it.”

First, it is obvious that the recitations appearing in the attestation clause of the will are in contradiction of appellants’ contentions. The attestation clause is pri-ma facie evidence of the facts stated therein even where, although not here, an attesting witness contradicts those recitations. Wilson v. Paulus, 15 S.W.2d 571, 573 (Tex.Com.App.1929, holding approved); Reese v. Franzheim, 381 S.W.2d 329, 330 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.).

Second, the recorded testimony does not bear out appellants’ assertions. The following is taken from the examination of the attesting witness, Gertrude Craig:

Q Now, on the same day that this exhibit dated May 24, 1975 was signed, were you there?
A Yes, sir.
Q Who else was present?
A Billie Dormiré and her daughter.
Q Where was this instrument signed?
A In Mrs. Craig’s home.
Q And were you present and did you see Mrs. Craig sign this?
A Yes, I did.
Q And also was Mrs. Dormiré present at the same time?
A Yes.
* * * * * *
Q And I believe you previously testified for the record that you were both present and saw Mrs. Craig sign this will dated May 24, ’75?
A Yes.
* * * * * %
Q Mrs. Craig, you have testified that you signed as a witness in the presence of Mrs. Craig on this will of May 24, 1975?
A Yes.
Q And you have testified that Mrs. Dor-miré did the same?
A Yes.
Q Did you and Mrs. Dormiré sign in the presence of each other and in the presence of Mrs. Craig?
A All three of us at the same time.

The examination of the attesting witness, Billie Dormiré, reveals the following:

Q Did you witness Mrs. Norah B. Craig signing the will?
A Yes.
Q Who else was there when you saw her sign it?
A Just Gertrude Craig and Norah B. Craig.
Q Did you sign as a witness on that will?
A Yes, I did, sir.
Q And at the time you signed it, Gertrude Craig was present?
A Yes, sir.
Q So your signatures were exchanged in the presence of each other.
A Right.

Applying the standards of evidential review required by the points attacking the implied findings entitling the 1975 will to probate, we are of the opinion that there is some evidence of probative force to support the trial court’s findings, that the evidence in support of the findings is not so weak, or the contrary evidence is not so overwhelming, as to warrant the setting aside of the findings, and that the findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Points three through eighteen, inclusive, are overruled.

Appellants employ the nineteenth and twentieth points to submit that the court erred in admitting the testimony of Gertrude Craig concerning transactions with the deceased testatrix contrary to the provisions of Vernon’s Ann.Civ.St. art. 3716, the so-called Dead Man’s Statute, and in holding that appellants had waived their right to object to the admission of such testimony. Despite the interesting theory underlying the presentation of the points, appellants have waived the objections now made on appeal.

The testimony of Gertrude Craig was offered and received without objection. The objectionable nature now claimed was then apparent; but it was only after she had completed her testimony and was excused and appellees, together with the Attorney General, had rested that appellants inquired, “Your Honor, may we take up the question of the Dead Man’s Statute application to this case before we (appellants) start?”' Receiving the court’s approval, appellants merely mentioned that Gertrude Craig is an interested party by reason of her status as a trustee and a beneficiary of the foundation created under the son’s will, and that her testimony went into transactions with the deceased. There was not then, nor later, voiced any objection to the receipt of the testimony and no motion to strike the testimony was made. The theory of inadmissibility advanced on appeal was not raised in the trial court.

Testimony otherwise excluded by operation of V.A.C.S. art. 3716 is admissible and has probative force when it is received, as it was here, without objection at the proper time and for the proper reason. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 409 (1943). Appellants may not complain on appeal that the court below was not more vigilant for them than they were for themselves. Shumard v. Johnson, 66 Tex. 70, 17 S.W. 398, 399 (1886). Points nineteen and twenty are overruled.

Appellants’ last six points are challenges to the legal and factual sufficiency of the evidence to support the court’s implied finding that Mrs. Norah B. Craig possessed testamentary capacity when she executed her 24 May 1975 will. As developed, the points present no error.

Although acknowledging that three witnesses testified the testatrix was mentally competent, appellants do not develop their points with any statement of the evidence or any particulars illustrating why there is no evidence of testamentary capacity or why the evidence thereof is insufficient. Instead, there are only general statements, representative of which is this one: “(I)t is respectfully urged that the testimony of these witnesses failed to establish by any evidence or by sufficient evidence that No-rah B. Craig possessed testamentary capacity on the day she signed the instrument dated May 24, 1975.” Appellants conclude by stating that this testimony wants greatly in weight and credibility when compared to the detailed testimony of the witness who stated the testatrix was confused, did not indicate she had signed a will, or would have understood what she signed if she had signed a will on the date of the 1975 will.

Rule 418 places upon appellants the duty to show, by reference to pages in the record, the facts in support of their contentions. Appellants have not done so, and this Court has no duty to independently search through the 334 pages of the statement of facts and many pages of exhibits in a speculative attempt to validate appellants’ points. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 201 (1955).

Nevertheless, because we reviewed all of the evidence in considering preceding points, we state that there is some evidence that the testatrix possessed testamentary capacity when she executed her 24 May 1975 will, and that the implied finding that she possessed testamentary capacity is not against the great weight and preponderance of the evidence. Although one witness testified in effect that the testatrix lacked testamentary capacity, three witnesses, two of whom were the attesting witnesses, testified that the testatrix possessed the mental capacity to understand the nature and extent of her property and the disposition thereof by will on 24 May 1975. Another witness expressed the opinion that the testatrix was mentally alert and seemed to understand what she was doing in July of 1974, on 30 May 1975 and on 6 June 1975. Points twenty-one through twenty-six, inclusive, are overruled.

The judgment is affirmed.

      . Rules cited are the Texas Rules of Civil Procedure.

      . Subsequent references to section numbers are to those sections of the Texas Probate Code (1956).