text:
    William Bruner CAMPBELL, Appellant, v. Laura Fenner Williams CAMPBELL, Appellee.
    No. 18078.
    Court of Civil Appeals of Texas, Fort Worth.
    July 26, 1979.
    Rehearing Denied Sept. 13, 1979.

      Graves, Dougherty, Hearon, Moody & Garwood and Robert J. Hearon, Jr., Austin, for appellant.
    Minton, Burton & Fitzgerald and Roy Q. Minton, Austin, for appellee.
   OPINION

HUGHES, Justice.

William Campbell has appealed the judgment of the trial court which awarded his wife a divorce and one-half of his separate personal property, the bulk of which was promissory notes in the face amount of approximately $1,200,000.00.

We affirm.

The Campbells married in 1965. Campbell was 42. Mrs. Campbell was 27. They had two children, now ages 12 and 10 years. Mrs. Campbell sued for divorce in January, 1975. Trial court appointed her temporary managing conservator in March, 1975, and ordered that the children not be removed from its jurisdiction. Campbell disappeared with the children in September, 1975. In December, 1975, trial court made a temporary order that Mrs. Campbell have exclusive management of all the couple’s property, both separate and community.

The case was tried on the merits in June, 1976. At the time of trial the whereabouts of Campbell and the children were still unknown to the court, Mrs. Campbell and attorneys for both parties. Campbell’s attorneys filed a motion for continuance based on their inability to properly represent their client in the client’s absence, but it was refused. In August, 1976, the trial court granted the divorce, appointed Mrs. Campbell the children’s managing conservator, and divided the estate of the parties. Mrs. Campbell was awarded all of the community property, ordered to pay the community debts, and also awarded a 50% interest in a series of promissory notes payable to Campbell. The divorce decree stated that these notes were Campbell’s separate property.

The decree further provided that Campbell would have no rights to the children pending further court orders and that no child support was ordered subject to review by the court when he personally appeared before it. Campbell was found to be at fault in the break up of the marriage. Mrs. Campbell was ordered to pay both parties’ attorney fees, including those expended by either side on appeal.

An appeal by Campbell’s attorneys was attempted from this order but it was dismissed. The express postponement of the issues of visitation and child support for later judicial determination was held to have rendered the judgment interlocutory. Campbell v. Campbell, 550 S.W.2d 164, 166 (Tex.Civ.App.—Austin 1977, no writ).

A second hearing was held in July, 1977. Campbell appeared in person. He and the children were found in Scotland. A Scottish court in December, 1976, removed the children from him and returned them to Mrs. Campbell pursuant to the Texas court order.

Since the issues of child custody, property division and fault had been decided in his absence, Campbell requested that he be allowed to present his evidence on them at the second hearing. The trial court refused to reopen these issues and limited the hearing to the visitation and support questions left undecided by the August, 1976 divorce decree. After the hearing, the trial court entered a second divorce decree, which incorporated the original decree and dealt with visitation and support.

Campbell was appointed the children’s possessory conservator. His visitation rights were detailed. To enforce the return of the children to their mother after his periods of visitation, Campbell was required to post a bond in the amount of the face value of his separate property promissory notes and further secure the bond by the notes themselves. The bond and notes were to be furnished to Mrs. Campbell’s attorney prior to visitation. Child support was expressly not awarded in view of the partition of the property of the parties in the original divorce decree.

By his first three points of error Campbell attacks the property division. The court in the original decree divided the property as follows: Furniture and other items of personal property such as art works ácquired by either party before marriage were awarded to that party. Items of this type acquired after their marriage were awarded to Mrs. Campbell subject to her testimony that should Campbell have a “real need” for any of this property, she would convey it to him when he returned to the jurisdiction. Mrs. Campbell was awarded the family home in Austin, subject to a first mortgage of approximately $68,000.00 and an additional community debt attributable to it of approximately $46,000.00. The Austin house had been for sale for about a year prior to the first trial and one firm offer of approximately $90,000.00 had been received for it.

The court found that Campbell’s separate estate consisted in part of a series of promissory notes of substantial value. The decree stated the notes should be divided in an equitable manner, and awarded Mrs. Campbell an undivided 50% interest in them as her separate property. Campbell was awarded the other 50% interest as his separate property.

Mrs. Campbell was also awarded all funds on deposit of whatever nature such as checks, cash and bank deposits. Included were proceeds from the sale of a prior residence in Tennessee consisting of a check for $24,325.89 and a note in the principal amount of $30,000.00. The note was specifically awarded to Mrs. Campbell as her separate property.

Pursuant to the December, 1976 property management order Mrs. Campbell had maintained two separate bank accounts which at time of trial had balances of $532.01 and $77.81. She also tendered, at trial, payments and interest totaling $5,538.82 on Campbell’s promissory notes. The above amounts were included in the funds awarded to her. She was ordered to pay all community debts, estimated to total $11,000.00, out of the funds awarded to her. She was also ordered to pay attorney’s fees for both parties totaling $20,490.00 and all court costs.

The community estate had little net worth. There was evidence that not all of the bills had been discovered and that many of the community debts were incurred by Campbell. There was also evidence that Mrs. Campbell’s parents loaned her money to support herself and pay bills for the period of several months after Campbell left the country and before she obtained any funds as a result of the court order making her the temporary manager of the couple’s property.

Under the authority of Tex.Family Code Ann. § 3.63 (1975) (hereinafter cited as § 3.63), the trial court in a divorce case is required to divide the estate of the parties in a manner it deems just and right, having a due regard for the rights of each party and the children of the marriage.

In his first point of error Campbell argues that the trial court lacked both the statutory and constitutional authority to award his wife half of his separate promissory notes. The series of promissory notes was received by Campbell as consideration for the sale of shares of some stock he had acquired prior to his marriage, therefore, they were clearly his separate property and he complains that the court awarded Mrs. Campbell approximately $600,000.00 of his separate estate.

Campbell’s arguments present us with the issue of whether a trial court in a divorce action has the authority to divest one spouse of his separate personal property and award it to the other. He argues that the decision in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977) should be construed as holding that § 3.63 does not statutorily and could not constitutionally authorize a trial court to divest a spouse of any type of separate property in a divorce action. While he concedes that the only separate property before the court in Eggemeyer was realty, he argues that the opinion’s language, rationale and constitutional analysis are equally applicable to separate personalty. He concludes that since Eggemeyer, Texas trial courts are prohibited from divesting a spouse of any type of separate property in a divorce proceeding. In short, he wishes us to extend Eggemeyer’s holding to the divestiture of separate personalty.

All of the intermediate appellate courts which have directly or indirectly considered the question have refused to apply the Eggemeyer rationale to separate personalty. See e. g. Musslewhite v. Musslewhite, 555 S.W.2d 894 (Tex.Civ.App.—Tyler 1977, writ dism’d); Campbell v. Campbell, 554 S.W.2d 10 (Tex.Civ.App.—Fort Worth 1977, no writ); Muns v. Muns, 567 S.W.2d 563 (Tex.Civ.App.—Dallas 1978, no writ); Eichelberger v. Eichelberger, 557 S.W.2d 587 (Tex.Civ.App.—Waco 1977, rev’d on other grounds, 582 S.W.2d 395 (1979); York v. York, 579 S.W.2d 24 (Tex.Civ.App.—Beaumont 1979, no writ); Matter of Marriage of Trujillo, 580 S.W.2d 873 (Tex.Civ.App.—Texarkana 1979, no writ).

Further, Campbell’s interpretation of Eg-gemeyer would have us overrule a long line of cases allowing the discretionary division of separate personalty. The law prior to Eggemeyer was clear: Trial courts were vested with wide discretion in disposing of any and all of the parties’ personal property, separate or community. See e. g., Fitts v. Fitts, 14 Tex. 443 (Tex.1855); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ); Muns v. Muns, 567 S.W.2d 563 and cases cited therein at 564-65 (Tex.Civ.App.—Dallas 1978, no writ).

Of course, the court’s discretionary power to invade one spouse’s separate property for the benefit of the other spouse is not unlimited. The circumstances of the case must make such action necessary to reach a just and fair division of the parties’ property. Fuhrman v. Fuhrman, 302 S.W.2d 205 (Tex.Civ.App.—El Paso 1957, writ dism’d); Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Hedtke v. Hedtke, supra.

Hedtke is the leading authority cited in the more recent cases listed above as the basis for the rule that separate personalty may be invaded in a divorce property division. The holding in Hedtke was that a divorce decree may award the wife the right to occupy as a homestead during her life a tract of land owned by the husband as his separate property. Hedtke is discussed by the majority in Eggemeyer. It criticized the Hedtke court as being overbroad in stating that the husband owed family support obligations to his divorced wife as distinguished from those owed their children, but it went on to quote the following language from Hedtke showing that “the (Hedtke) court clearly recognized the limitations upon divesting title:

“ ‘For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents, or revenues of all real estate belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.’ ” 248 S.W. at 22, quoted in 554 S.W.2d at 141.

The majority in Eggemeyer also characterized as dictum Hedtke’s language that a divorce court may dispose of “any and all property of the parties, separate or community” in the exercise of a wide discretion which will be corrected only when it is abused. However, it also stated that while the quoted language was not essential to the decision in Hedtke, it was in general a “sound rule”. Nowhere does the majority in Eggemeyer discuss the different treatment long used in this state in a discretionary division of separate personal property.

Muns, supra, distinguished Eggemeyer at length from the line of cases based on the rule in Hedtke dealing with the discretionary division of separate personalty. Mrs. Muns had been awarded 25% of her husband’s military retirement benefits. The Dallas court held that a trial court has discretion under § 3.63 to invade the separate personal property of one spouse for the benefit of the other when necessary to a just and fair division. 567 S.W.2d at 564.

It refused to apply Eggemeyer to separate personalty and concluded that its holding is limited to real estate, the only kind of property mentioned in that opinion.

Ramirez, supra, was expressly approved by the majority in Eggemeyer. The holding in Ramirez was that the change in the statute (from art. 4638 to Family Code § 3.63) did not change the law with respect to divestment of title to separate real estate. However, Ramirez also restated the Hedtke rule that the restriction on divestment of either spouse’s separate property relates only to real estate, whereas courts have wide discretion in disposing of all of the parties’ personal property, separate or community. 524 S.W.2d at 769.

It has been held since Eggemeyer that in a proper case the trial court in divorce proceedings has the power to divest a spouse of title to his separate personalty. Eichelberger, supra. The trial court had awarded Mrs. Eichelberger a share of her husband’s expected disability and pension benefits under the federal Railroad Retirement Act of 1974, 45 U.S.C.S. § 231 et seq., which he had earned both before and during their marriage. Mr. Eichelberger had argued that Eggemeyer had abolished the Hedtke rule but the Waco court rejected this contention. The court noted that the only question resolved by Eggemeyer was the divestment of separate realty.

The Texas Supreme Court had at first refused to grant Eichelberger’s application for writ of error for “want of jurisdiction”. 582 S.W.2d 395. However, it granted his application upon motion for rehearing because the court of civil appeals decision conflicted with the recent decision of the United States Supreme Court forbidding recovery in a divorce situation by non-employee spouses of benefits under the Railroad Retirement System. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979).

In Hisquierdo the court held that benefits presently payable or expected in the future under the Act are not to be treated as “property” subject to division by a trial court in a divorce suit. It further held that state courts in community property states cannot “anticipate” such benefits by awarding the non-employee spouse other of the couple’s property to compensate them for the loss of benefits.

The Texas Supreme Court in Eichelber-ger held that it has jurisdiction to correct a Texas court of civil appeals decision which is contrary to a United States Supreme Court decision. 582 S.W.2d 395. It then concluded that the holding of the court of civil appeals affirming the trial court’s judgment which awarded Mrs. Eichelberger a portion of Eichelberger’s railroad retirement benefits was erroneous and reversed and rendered that portion of it. It affirmed the remainder of the trial court’s judgment. 582 S.W.2d 395. It also refused to grant alimony under these circumstances to compensate Mrs. Eichelberger for the loss of any property rights she had in the benefits because it would probably be viewed as an attempt to circumvent the proscription in the Act against “anticipation” of benefits, and further, because it is the legislature’s function to determine whether alimony should be authorized. The opinion does not mention the court of civil appeals discussion of Eggemeyer.

We conclude that the holding in Eggemeyer is limited to separate real estate, the only type of property before the court in that decision. Muns, supra. While some of the reasoning and language in Eg-gemeyer would also seem to be applicable to separate personal property, it must be construed in context with reference to the issues then before the court and the specific decision made by it. Ferguson v. Johnson, 57 S.W.2d 372 (Tex.Civ.App.—Austin 1933, writ dism’d). Therefore, we do not think it necessary or proper to give that decision a constitutional as opposed to a statutory foundation. We hold that a trial court has discretion under § 3.63 to invade a spouse’s separate personal property for the other spouse’s benefit when necessary to a just and fair division (except for railroad retirement benefits). Muns, Cooper, Musslewhite, Ramirez, supra. The award of separate personal property in this case neither violated the law nor Campbell’s constitutional guarantees.

Campbell’s second point of error contends that to allow divestiture of separate personalty, while prohibiting it for separate realty, constitutes a denial of equal protection under the law. He argues this creates a classification based on land ownership favoring those who own realty and that this discrimination is entirely arbitrary, bears no rational relationship to any legitimate governmental interest, and therefor violates both the Texas and United States Constitutions.

We overrule this point. The rationale for allowing divestiture of separate personalty in a proper case is to permit the court to do equity between the parties. Hedtke, supra. It serves much the same purpose as alimony in other states. Further, there is no constitutional requirement that each and every piece of property be treated precisely the same way. Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931). If there were, much of our tax structure would fall. Real property and personal property are not constitutionally required to bear the same burdens of ownership.

Since we have held that the trial court had discretion to include separate personalty in the property division, the issue is then whether, as alleged in Campbell’s third point of error, that discretion was abused. Campbell alternatively argues that there was no evidence to support this division or that it was against the great weight and preponderance of the evidence.

As previously discussed, an award of separate personalty or an unequal division of community property is justified only if supported by evidence showing circumstances which necessitated it in order to effect a fair and just property division. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

“Factors to be considered include the disparity of the earning power of the parties, as well as their business opportunities, capacities and abilities; In re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.—Amarillo 1973); the physical condition of the parties, probable future need for support, and educational background; Dobbs v. Dobbs, 449 S.W.2d 119 (Tex.Civ.App.—Tyler 1969). The fault in breaking up the marriage and the benefits innocent spouse would have received from a continuation of the marriage are factors which the court may consider. Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App.— Amarillo 1966). These and other matters must be evaluated by the trial court in determining a just and fair division of the property.” Id. at 233-34.

Other relevant factors which have been listed are the size of the community estate and the relative sizes of the separate estates. Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App.—San Antonio 1974, writ dism’d).

The trial court’s judgment as to the property division will not be disturbed without a showing by Campbell that it clearly abused its discretion. Further, this court must presume the trial court properly exercised its discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974).

In its findings of fact and conclusions of law on the property division the trial judge found that: Campbell was entirely at fault in the break up of the marriage; the community estate is very small in comparison with his separate estate and Mrs. Campbell has no substantial separate estate; Campbell’s ability to generate income is greater than Mrs. Campbell’s (he being a college professor and she a homemaker only with no real formal job training); Mrs. Campbell, but for Campbell’s fault, would have received great benefits in income from his separate estate and earning ability; that the division of the estate is just and right; and that “the division of the estate of the parties set forth in the judgment heretofore entered in this cause is proper and correct under the facts of this case and the law”.

It is plain from the evidence that the community estate had little net worth. Therefore, if the trial judge found that either of the spouses had little earning capacity or ability, or the children needed support, or there were other equities to adjust, the only resource available was separate personal property, which the record shows only Campbell possessed in any appreciable amount. See Fuhrman v. Fuhrman, supra.

As to Campbell’s contention that these notes were worth approximately $600,-000.00, the record shows this is only their face value and fails to show their real worth. We note the record shows that virtually every term of the notes can be varied except the principal amount.

There is ample evidence to support the findings. Therefore, we hold, under the circumstances of this case, that there was sufficient evidence to support the trial judge’s manner of dividing the property including the invasion of Campbell’s separate personalty. No abuse of discretion having been shown, we overrule Campbell’s third point of error.

By his fourth point of error Campbell alleges the trial court erred as a matter of law in awarding Mrs. Campbell the cash and note, secured by a mortgage which were the proceeds from the sale of their prior residence in Tennessee. Since it is well established that Texas trial courts lack jurisdiction over foreign real property, Campbell reasons that the proceeds from the sale of the Tennessee realty were also beyond the court’s jurisdiction.

We disagree. Even though the note was secured by real estate located outside the State of Texas, it is well settled that evidences of debt and money are personal property the situs of which is the owner’s domicile. Both parties pled that their domicile was Texas and the trial court found the parties’ marital domicile to be Texas, therefore it did not err in exercising jurisdiction over the money and note.

Campbell’s fifth and sixth points of error attack the overruling of his motion for a continuance. He first alleges that requiring the case to proceed to trial in his and the children’s absence violated his right to due process of law under the Texas and United States Constitutions since they were material witnesses.

The motion for continuance states that “there is evidence” that Campbell “apparently absented himself from the jurisdiction of the Court” but that “as a matter of right and justice” the case should not be tried without him and that his attorneys would be unable to represent him adequately without his presence. Campbell asserts in his brief that his motion was denied without evidence that his absence was the result of lack of diligence on his part. He further contends that there was no showing of any compelling reason for holding an immediate trial.

Motions for continuance for want of testimony are governed by Tex.R. Civ.P. 252. It includes those cases in which a party is to testify and is unable to appear. Panhandle Broadcasting Company v. Cercy, 363 S.W.2d 792 (Tex.Civ.App.—Amarillo 1962, no writ). Such a motion is addressed to the trial court’s sound discretion and an order granting or refusing it will not be disturbed on appeal unless such discretion was abused. J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

Mere absence of a party is not enough to entitle him to a continuance. It must be shown that the applicant has been diligent in his efforts to be present at trial or had a reasonable excuse for not being present. Erback v. Donald, 170 S.W.2d 289 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.). It was Campbell’s legal duty to keep himself posted as to the setting of the case for trial,’and to be present to testify and aid his counsel. Brooks v. Brooks, 561 S.W.2d 949 (Tex.Civ.App.—Tyler 1978, no writ); Turnbow v. Southern Engine & Pump Co., 237 S.W. 321 (Tex.Civ.App.—Galveston 1922, no writ). When the ground for a continuance is a party’s absence, good cause must be more clearly shown than in those cases where the ground is a witness’s absence. Goodwin v. American Nat. Bank, 236 S.W. 780 (Tex.Civ.App.—Beaumont 1921, no writ).

Campbell contends there was no need for an immediate trial. We hold the trial judge was under no compulsion to continue the case until some vague future time when Campbell perhaps would decide to return to the jurisdiction. The motion alleges no facts that could be construed as a reasonable expectation of even locating Campbell and the children. Rainwater v. Haddox, 544 S.W.2d 729 (Tex.Civ.App.—Amarillo 1976, no writ). As for Campbell’s contention that there was no evidence that his absence was the result of a lack of diligence on his part, we hold there was evidence that he voluntarily absented himself. This shows his lack of personal diligence in seeing that his testimony was available. See Ray v. Ray, 542 S.W.2d 209 (Tex.Civ.App.—Tyler 1976, no writ). Where, as here, the continuance motion neither stated that due diligence had been used to procure testimony nor alleged facts showing what diligence was used, the denial of such motion is proper. J. C. Penney Company v. Duran, supra.

Further, the motion did not conform to Tex.R.Civ.P. 252’s requirement of setting forth the substance of Campbell’s purported testimony. It states that he is a “necessary and essential witness on all issues involved in this case, including questions of child custody as well as property rights”, and that his attorneys are “in serious danger of being unable to establish many relevant facts which could be established through the testimony of William B. Campbell”. These are only generalized statements as to what his testimony would be if he were present. Tex.R.Civ.P. 252 requires that the substance of the testimony be more specifically stated than here. For this reason alone the trial court did not abuse its discretion in overruling the motion for continuance. Panhandle Broadcasting Company v. Cercy, supra; Emmco Insurance Company v. Burrows, 419 S.W.2d 665 (Tex.Civ.App.—Tyler 1967, no writ).

It is uncontroverted that Campbell voluntarily absented both himself and the children. In its findings of fact the trial court stated that Campbell “was made aware of the fact that this cause was set for trial on its merits on June 14, 1976, and voluntarily absented himself from Travis County at such time.” Both he and his counsel admit he left with the children in defiance of a court order. We also note that the case went to trial approximately 17 months after the original petition was filed. In view of the principles of law stated above, the clear state of the evidence and the court’s finding, we conclude there was no error in the overruling of the motion for continuance due to the children’s and Campbell’s absence. Johnson v. Johnson, 296 S.W.2d 615 (Tex.Civ.App.—Waco 1956, no writ).

We hold the trial court’s denial of the motion for continuance under these facts was not arbitrary and therefore did not violate due process of law. The court did not deprive Campbell of the benefits of his and the children’s testimony, his own actions did so. This contention is overruled.

Campbell also argues the trial court abused its discretion in not granting a continuance after allowing Mrs. Campbell to amend her pleadings within seven days of trial. The alternative ground for the motion was the amendment of Mrs. Campbell’s pleadings. Campbell’s attorneys claimed in the motion that they came as a “complete surprise” and “particularly in view of respondent’s (Campbell’s) absence, but not solely because of it,” they were unable to be prepared on these issues by trial time.

The amendments in question added cruel treatment as a ground for the divorce, requested that Mrs. Campbell be awarded all of the parties’ property, both separate and community, and requested that Campbell be enjoined from removing the children from Mrs. Campbell’s custody should she be appointed managing conservator. He alleges these amendments raised new matters that were material to the case, had significant impact on the nature of the case, operated as a surprise and dictated additional preparation and evidence on his part.

Whether or not a continuance is granted on the basis of an amendment to pleadings rests in the sound discretion of the trial judge. He is to consider all of the circumstances in the case and unless his discretion has been abused, an appellate court will not reverse. International & G. N. R. Co. v. Howell, 101 Tex. 603, 111 S.W. 142 (1908). Campbell had the burden of convincing the trial court that he was entitled to the continuance either by making a satisfactory showing or making it otherwise apparent that because of the amendment, he was not ready for trial. When reviewing the denial of a motion for continuance, this court must presume the trial court’s judgment was correct. 12 Tex.Jur.2d Continuance § 33 (1960).

As is apparent from our previous discussion of the record in this case, the amendments were not the source of Campbell’s problems, his deliberate absence was. We hold under these circumstances there was no abuse of discretion by the trial court in denying his motion for continuance on the basis of the amendments. His sixth point of error is therefore overruled.

Campbell’s seventh and eighth points of error attack the trial court’s action in trying the issues of conservatorship and fault in his absence. He argues that the trial court had an opportunity to hear his and the children’s personal testimony on these issues in the hearing held after the dismissal of his first appeal. He argues the court decided these issues without hearing and considering all of the available evidence.

He contends that the appointment of a managing conservator without a meaningful consideration of the qualifications of both parents violates Tex. Family Code Ann. §§ 14.01(b) (1975) and 14.07(b) (1977) and therefore constitutes a reversible abuse of discretion. Since the trial judge had the opportunity to question Campbell and evaluate his suitability to serve as managing conservator in the second hearing but refused to do so, Campbell reasons the trial court chose to exercise its discretion in appointing a managing conservator on only a portion of the available evidence. He claims his qualifications were not even considered.

As to the fault issue, Campbell argues he had no opportunity to prepare for it before the first hearing and was denied the opportunity to address it at the second.

These contentions are overruled. At the risk of becoming repetitious we once again note these problems all were caused not by any error on the part of the trial court but by Campbell’s deliberate absence. There was a full hearing held on these issues after due notice had been given all the parties. Instead of coming forward and presenting all of the evidence available to him, Campbell voluntarily chose to withhold it. The court’s actions did not deprive Campbell of his opportunity to be heard, he deprived himself.

Under these circumstances we hold it was not error for the court to refuse to reopen these issues that had already been litigated simply because Campbell decided the outcome might be more favorable to him if he and the children appeared after all. The court had before it sufficient evidence on which to base a determination of these issues, whether or not it had before it all possible evidence.

All points of error having been reviewed, they are all overruled. Therefore, judgment is affirmed.

       § 14.01(b) provides that the trial court “shall consider the qualifications of the respective parents without regard to the sex of the parent.”
      § 14.07 sets forth the requirement that the paramount consideration is the child’s best interest and (b) provides that in determining this, “the court shall consider the circumstances of the parents.”


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Martha J. FREEMAN et al., Appellants, v. TEXAS COMPENSATION INSURANCE COMPANY, Appellee.
    No. 18112.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 2, 1979.
    Rehearing Denied Sept. 13, 1979.

      Norman & Bates and Roger M. Norman, Fort Worth, for appellants.
    Morgan, Gambill & Owen and Judge Gambill, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Beneficiaries under the worker’s compensation law appeal a judgment rendered that they take nothing on their suit for death benefits. They claim the trial court erred in granting "the insurance company’s motion for judgment notwithstanding the jury’s verdict and in rendering the take nothing judgment. They claim there is evidence to support the jury’s verdict that the worker died from injuries sustained in the scope of his employment.

ON APPELLEE’S MOTION TO CORRECT RECORD

Texas Compensation Insurance Company filed a motion to correct the transcript in this case asking this court to strike an item in it.. The item complained. of is styled “Plaintiffs’ Bill of Exception Number One”. The compensation carrier contends that this item is not a proper bill of exception because it was signed only by the plaintiffs’ counsel. It also complains that the item is not an instrument authorized to be filed among the papers of the trial court nor brought up in the transcript on appeal.

While we agree that when the bill of exception is not properly certified by the trial court it has no efficacy and will not be considered nor affect the decision on appeal, we must deny appellee’s request that it be stricken from the transcript. The district clerk is required to file among the papers of the trial court all instruments presented for filing. The efficacy of the instruments presented for filing is not a question with which the district clerk need be concerned.

It is also the duty of the district clerk to include in the transcript all instruments on file in the case in the trial court which are requested to be included by the party requesting the preparation of the transcript for appeal. Again the efficacy of the instrument as a part of the transcript is not a question with which either the district clerk or the clerk of the court of civil appeals need be concerned. The instrument of which appellee complains is properly included in transcript. However, as we have indicated, the bill of exception is not properly certified by the trial court. Therefore, we have not considered it nor does it have any affect on our decision below.

Appellee’s motion is overruled.

ON THE MERITS

We reverse and render in part and remand in part.

Martha Freeman is the widow of a former Southwestern Bell Telephone Company employee, Jimmy Bolding. She remarried after Bolding’s death. She and Bolding had two children. Bolding was killed on Saturday, September 14, 1974 when his car hit a concrete embankment on a freeway in Fort Worth. Mrs. Freeman filed suit individually and as next friend of her two minor children as beneficiaries under the Worker’s Compensation Act for death benefits. She claims her husband was killed while in the scope of his employment.

Southwestern Bell’s compensation carrier denied liability contending that Bolding either was not on the job at the time of the collision or that he committed suicide by intentionally crashing into the embankment. The case was tried before a jury. Only one special issue was submitted. It inquired whether Bolding’s death resulted from injuries sustained in the scope of his employment. The jury found that he was in the scope of his employment. The trial court granted the insurance company’s motion for judgment n. o. v. The court concluded that there was no evidence supporting the verdict and rendered a judgment that the beneficiaries take nothing.

The beneficiaries claim there is evidence supporting the jury verdict. In reviewing the record in this case and deciding this question we are guided by the rule that all evidence must be considered in the light most favorable to the jury verdict, and every reasonable inference deductible from the evidence is to be indulged in favor of the verdict. Only the evidence and inferences that support the verdict should be considered and all contrary evidence and inferences should be disregarded. Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979).

The record reflects that Bolding was a PBX installation foreman. He supervised a crew of workers who installed certain equipment. Prior to this assignment he was a repair foreman in charge of a repair crew. We find that it was established that even though Saturday, September 14, 1974, was not a regular work day for Bolding, he went to work that morning. He was seen by a number of Bell employees at the Cock-rell Street office where he picked up work orders and gave them to his crew. He was then seen at the Walnut Exchange Test Center where he was given a report of trouble with equipment at the Nurses’ Training Center at Texas Christian University.

Later, at about 10:30 that morning Bold-ing was given a polygraph examination at an office in the Commerce Building in downtown Fort Worth. This examination was in the course of Bell’s investigation of a criminal complaint filed against Bolding with the Fort Worth Police Department. Although there is a dispute as to whether Bolding or Bell requested the examination, we conclude that Bolding was in the scope of his employment with Bell while being examined because it was in the course of Bell’s investigation of the incident. The examination ended shortly before 2:00 p. m.

Although there is some doubt as to the exact time of his death, Bolding died shortly after 2:00 p. m. on a Fort Worth -freeway a few miles from downtown. There is no direct evidence of where Bold-ing was going when he left the Commerce Building. Even though it was established that he was in the scope of his employment on Saturday until around 2:00 p. m., there is no direct evidence of whether he continued in the scope of his employment or whether he had quit working and was going home or on some personal mission. However, an ultimate fact may be established by circumstantial evidence. Gregory v. Texas Emp. Ins. Ass’n., 530 S.W.2d 105 (Tex.1975). Thus we must decide whether there is any circumstantial evidence from which the jury could have properly inferred that Bold-ing was in the scope of his employment at the time of his death.

There is evidence in the record that it is Bell’s policy to have a foreman on duty whenever there is a crew in the field. It was established that Bolding’s crew was in the field at the time of Bolding’s death. Bell’s crews were scattered at various locations from Forest Hill to Benbrook. Part of a foreman’s responsibility was to drive from job to job to supervise and also to pre-survey future jobs. Bolding had been given a service order to be completed as soon as possible. This job was, in fact, completed by his crew at 4:00 p. m. on the day he died. Bolding died within the district to which he was assigned. There were several locations of Bell crew personnel and offices along the route which Bolding was traveling at the time of the collision.

Mrs. Freeman contends that she is entitled to the benefit of a presumption based on the evidence outlined above. She claims there is a presumption that when an employee is found dead where the worker might properly have been in the performance of his duties, the death arose out of and in the scope of his employment. Scott v. Millers Mutual Fire Insurance Co. of Texas, 524 S.W.2d 285 (Tex.1975). We need not rule on the applicability of any presumption in this case because of the presence of evidence in the record from which the jury could have found that Bolding was going home and/or committed suicide. Thus any such presumption would have been rebutted.

However, as stated in Scott, supra : “Although any presumption of course of employment has been dispelled by the introduction of evidence to the contrary, the facts upon which petitioner would base the presumption have not disappeared. They remain in evidence and will support any inferences that may properly be drawn therefrom.” 524 S.W.2d 288. Thus, even though we decide that any presumption would have been rebutted, we cannot say that there is no evidence from which the jury would infer that Bolding was on the job at the time of the fatal collision. We conclude that there is evidence in the record which supports the inference made by the jury.

Our decision in this regard is again guided by Scott. There a workman was seen at a place where employees typically gathered before punching in on a time clock and going to work. There was no evidence that the worker punched in and actually began work. The worker was found dead at a place where his duties did not normally require him to be. He was found between some paper bales and some barrels. However, the supreme court decided that evidence that his duties as a metal sorter required that he occasionally climb up on the bales to count them and the fact that he was found at a place where he might reasonably have been in the performance of his duties was some evidence when viewed in the light most favorable to the worker that would entitle the jury to reasonably conclude he was injured in the scope of his employment.

In our case it was established that Bolding was in the scope of his employment until the time he left the Commerce Building downtown. He was found dead within his area of responsibility. Part of his job was to travel from location to location. He had a job which he was responsible to have completed as soon as possible. There were employees and offices of Bell along the route he was traveling. Thus we conclude that there is evidence in the record from which the jury could properly infer that Bolding was in the scope of his employment when he died.

The insurance company, in contending that the trial court did not err in rendering its judgment n. o. v., details evidence in the record from which the jury could have inferred that Bolding either was on his way home after leaving the Commerce Building in downtown Fort Worth or committed suicide by colliding with the concrete embankment. However, in considering the question of whether there is any evidence to support the jury verdict we disregard all evidence contrary thereto. “It was the jury’s province to weigh all of the evidence and to decide what credence should be given to the whole or to any part of the testimony of each witness. ‘The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.’ ” Dodd v. Texas Farm Products Co., 576 S.W.2d 812, 815 (Tex.1979). We hold that the inferences drawn by the jury in this case were not improper. The evidence upon which the insurance company relies is not so conclusive as to establish as a matter of law that Bolding was not in the scope of his employment at the time of his death either because he was going home or committed suicide.

The compensation carrier also claims that the evidence was insufficient to support the verdict because it required the jury to speculate where among several possible places Bolding was going at the time of his death. The insurance company relies on the general rule that a jury cannot properly reach a verdict on mere speculation and surmise. Had the jury been required to answer a special issue inquiring about exactly where Bolding was going at the time of his death this may have called for speculation and conjecture. However, this was not the case. The jury was not called upon to speculate about which of several places Bolding was going at the time where there was no evidence which made any particular destination more or less likely.

In this case the jury was asked to draw an inference from the circumstantial evidence whether Bolding was on the job or not at the time of his death. We distinguish this from cases where mere conjecture is required. We hold that this was a case properly decided by drawing a reasonable inference from circumstantial evidence. The trial court erred in rendering judgment not withstanding the jury verdict.

The compensation carrier has several cross-points of error presented in complaint of evidentiary rulings of the trial court. Several of these points complain of the exclusion of testimony of four defense witnesses regarding alleged conversations with Bolding about suicide. The trial court excluded this evidence holding that the conversations were too remote. From the insurance company’s bills of exception it appears that Bolding had conversations with three fellow Bell employees while they lived in Wichita Falls and another conversation with another Bell employee after' Bolding had moved to Fort Worth. The witnesses who testified about the alleged conversations in Wichita Falls stated they could not remember the dates the conversations took place. However, the fact that they took place while Bolding lived in Wichita Falls indicates that they took place between one and four years before Bolding’s death.

The insurance company cites Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App.—Eastland 1958, no writ), as authority for the rule that questions concerning remoteness are within the sound discretion of the trial court. We do not conclude that the exclusion of the testimony of the witnesses concerning the alleged conversations in Wichita Falls was an abuse of the trial court’s discretion. The trial court is in the best position to make this determination. We note that there is no evidence in the record which indicates any similarity between the conditions in Wichita Falls and the conditions in which Bolding lived after moving to Fort Worth. It is our opinion that the compensation carrier as the offeror of the evidence had the burden to show relevancy. One way might have been to show that the conditions had not changed. No such showing was made. Therefore, we conclude the trial court properly excluded the evidence.

In complaining of the exclusion of the testimony of the Bell employee who allegedly had a conversation with Bolding after he moved to Fort Worth, the insurance company contends the testimony was relevant. From the compensation carrier’s bill of exception it appears that Bolding told the Bell employee, William Crossley, of an attempt he had made to commit suicide but aborted. The problem is that Crossley was unable to state when the alleged suicide attempt took place, because Bolding had not told him exactly when it took place. Crossley stated that it was possible that the attempt took place ten years before Bold-ing’s death. Therefore we conclude that the insurance company failed to sustain its burden to show that the offered testimony was relevant to whether Bolding committed suicide on the day he died. It was not error to exclude Crossley’s testimony.

The compensation carrier further complains of the admission of the testimony of a Bell employee. The employee had given Bolding the report of trouble with equipment at the Nurses’ Training Center at Texas Christian University. The employee testified that Bolding said he would take care of the trouble. Over objection, evidence was admitted that the employee had the impression that Bolding would take care of the trouble on the day he died. Thus it was relevant to whether or not Bolding was in the scope of his employment at the time of his death. Because there was other evidence in the record sufficient to support the jury verdict we need not consider whether the admission of this testimony was error because error, if any in this regard, would be harmless under Tex.R.Civ.P. 434.

Also by a cross-point of error the insurance company contends that even if there is some evidence to support the jury verdict, the verdict is against the great weight and preponderance of the evidence. After carefully reviewing all the evidence in this case, we find there is ample evidence which would have supported a jury verdict that Bolding was not in the scope of his employment because he was either going home or committed suicide. This is a case in which reasonable minds can certainly differ and this court may have reached a different verdict had it been the trier of fact. However, it is not enough that reasonable minds could differ or that we may have reached a different result. The rule applicable to this case is well settled: To constitute reversible error sufficient to prevent rendition of judgment on the verdict, it must be so against the great weight and preponderance of the evidence to be manifestly wrong and unjust. Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361 (1960). We do not conclude that the verdict is so against the preponderance of evidence to be manifestly wrong or unjust.

Having overruled each of the compensation carrier’s crosspoints of error, we must now consider Mrs. Freeman’s other points. Two of these points of error call upon us to construe the death benefits provisions of Tex.Rev.Civ.Stat.Ann. art. 8306 § 8 (Supp.1978). Section (a) of art. 8306 § 8 provides for payment of death benefits not to exceed $70.00 per week. It was stipulated that Bolding’s wage rate would entitle his beneficiaries to the maximum $70.00 per week should they recover. Subsection (b) of art. 8306 § 8 provides that, upon remarriage of a surviving spouse, a lump sum payment equal to the benefits due for a period of two years shall be paid. Mrs. Freeman claims that the benefits due for a two year period should be calculated using the maximum amount of benefits, here $70.00 per week. The compensation carrier contends that since Bolding was also survived by children entitled to a portion of the benefits, that the lump sum payment should be calculated using the amount of Mrs. Freeman’s share of the benefits. This amount would be $35.00 per week. It is our opinion that the plain reading of the statute indicates that the proper calculation of the lump sum payment is made by using the amount payable to the surviving spouse. Here it will be $35.00 per week.

Our decision is based on the conclusion that subsection (a) provides for a maximum benefit to which the beneficiaries are entitled. We construe subsection (b) to provide that the share of the benefits, as determined by subsection (a), attributable to the surviving spouse shall continue until the spouse’s death or remarriage. Upon remarriage the benefit to which the spouse was entitled, here $35.00 rather than $70.00 weekly for two years, shall be paid in a lump sum. We reason that this construction is consistent with the ceiling on benefits provided in subsection (a).

Mrs. Freeman also contends that, upon remarriage, each of her two children who survived Bolding are entitled to share $70.00 per week, the maximum benefit under subsection (a) of art. 8306 § 8. Subsection (b) provides that the benefits payable to the children shall continue after the remarriage of the surviving spouse. As above we construe the benefits payable to the children as their share of the benefits payable the beneficiaries under subsection (a). Here their share of the $70.00 per week maximum benefit is $35.00 per week. We hold it is their $35.00 share which continued after Mrs. Freeman’s remarriage.

By a point of error Mrs. Freeman would have this court make a determination of attorney’s fees under art. 8306 § 7d. This we cannot do because the section provides that the attorney’s fee be fixed and allowed by the trial court. We therefore must remand the issue of attorney’s fees to the trial court for its consideration and action.

Having found that the trial court erred in rendering judgment notwithstanding the verdict and having overruled each of appel-lees cross-points of error, we reverse the judgment of the trial court. We render judgment that appellants recover from ap-pellee the statutory benefits and interest as provided in the Worker’s Compensation Act. We remand this case to the trial court with instructions to render judgment for appellants consistent with, the jury verdict, Worker’s Compensation Act, and our opinion in this case. We also remand the issue of attorney’s fees.

So ordered.


text:
    John PERDUE et ux. v. CITY OF AZLE, Texas.
    No. 18123.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 2, 1979.
    Rehearing Denied Sept. 13, 1979.

      Wilbur T. Knape, Hurst, for appellants.
    Kenneth N. Price, City Atty., Azle, Can-tey, Hanger, Gooch, Munn & Collins, and S. G. Johndroe, Jr., Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

This appeal is from an order denying John and Mary Perdue a temporary injunction against a condemnation proceeding instituted by the City of Azle to obtain a temporary construction easement to reconstruct and enlarge a sanitary sewer lift station. The lift station had been operating since 1967 on an easement the Perdues had granted originally to the Tarrant County Water Supply Corporation in 1967. Azle had purchased this easement, among others, in 1971.

We affirm.

The Perdues had obtained a temporary restraining order forbidding Azle from continuing or proceeding further with the condemnation action. It was dissolved by the trial court in this suit and the writ of possession in the condemnation suit was reaffirmed.

The condemnation proceedings had been filed in district court and the judge had appointed commissioners to hear evidence of damages. They had made their award and that amount had been paid into the registry of the court. The Perdues were appealing. They had also intervened in a quo warranto proceeding involving Azle.

By several points of error the Per-dues attack the trial court’s refusal to grant them a temporary injunction. However, most of these points, including the question of Azle’s authority to condemn and the propriety of the preliminary negotiations and other alleged irregularities, go to the merits of the underlying case. Therefore, they are not before us on appeal and cannot be reviewed by us at this time. Hence, these points are overruled. Brooks v. Expo Chemical Co., Inc., 576 S.W.2d 369 (Tex.1979).

In granting or refusing a temporary injunction, the trial court is vested with broad discretion in determining the only issue: whether the party requesting the temporary relief is entitled to preservation of the status quo of the subject matter pending trial on the merits. Brooks, supra; Davis v. Huey, 571 S.W.2d 859 (Tex.1978). On appeal the standard of review is whether the record clearly shows the trial court abused its discretion in making its determination. Brooks, Davis, supra; Texas Foundries v. International Moulders & F. Wkrs, 151 Tex. 239, 248 S.W.2d 460 (1952).

The Perdues sought the temporary injunction on the grounds that the lift station as operated, and after the proposed expansion, is both a public and private nuisance. The evidence showed that there had been one complaint in the last two and one-half years that the manhole connected with the system had overflowed. It further shows that the complaint was promptly dealt with. The city manager testified that the sewer system was at all times operated within the standards of all of the concerned federal and state agencies and that regular maintenance was performed daily on the system. He further testified, as did an engineer who designed the proposed reconstruction of the lift station, that the enlargement met all state and federal standards. The federal government was paying for the expansion. There was testimony that by the reconstruction of the lift station and the enlargement of the sewer system, Azle would eliminate the health hazard of approximately 300 septic tanks. Approximately 150 of those tanks, when they overflowed, drained into a slough behind the Perdue’s property and from there into Eagle Mountain Lake, Azle’s water supply. There had been several reported cases of hepatitis in the area of septic tanks to be eliminated. There was also testimony that the soil in the area was primarily rock and clay, material incapable of good absorption, therefore the septic tanks were inefficient. Neighbors of the Perdues testified as to the lack of odor from the lift station and the inefficiency and disadvantages of septic tanks in general. The record clearly shows that Azle has three easements on the Per-due property for the express purpose of constructing, reconstructing and maintaining the sanitary sewer line and lift station. In view of the evidence presented at the hearing, there is a question as to the Per-due’s right to prevail in the main suit. It does not appear that a temporary injunction to preserve the status quo is required to prevent irreparable injury to the Perdues. The exercise by the trial court of its discretion in denying the temporary restraint will not be disturbed.

While we have not expressly discussed each of the Perdue’s points of error, they have all been considered and are overruled. We feel it would be improper at this point to discuss them further as to do so would be to intrude upon the merits of the underlying cause of action and constitute a premature review. Brooks, supra.

Affirmed.


author: DODSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. R. W. BOOTH, Appellee.
    No. 9000.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 8, 1979.
    Rehearing Denied Aug. 29, 1979.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellant.
    Splawn Law Offices, Inc., John Simpson, Lubbock, for appellee.
   DODSON, Justice.

In this worker’s compensation case, Texas Employers’ Insurance Association appeals from the trial court’s judgment awarding R. W. Booth benefits under the Texas Worker’s Compensation Act. We affirm.

Mr. Booth brought this action seeking compensation benefits for an alleged occupational disease under section 20 of the act. The Insurance Company filed a general denial and affirmatively plead aggravation by a prior or subsequent disease or injury. In support of his allegations of disability from an occupational disease, Mr. Booth presented evidence of job related anxiety, tensions, pressure, overwork, mental and physical stress and strain, and repetitious physical and emotional traumatic activities extending over a period of time which culminated in a heart attack on the morning of 3 February 1977.

The evidence alone shows that Mr. Booth was 60 years of age; that he has been employed by Bell Dairy Products for several years; that he was foreman of the ice cream department; that the department had taken on additional work over the past several years; that in September of 1976, two men in his department resigned or quit and were never replaced; that his department was short two men from September 1976 through 3 February 1977; that as a result of the loss of these workers, he had to do extra work; that the extra work began to affect his health; that starting around Christmas of 1976, he went home very tired in the evenings and that he became nervous and worried about his work.

Mr. Booth testified that on 3 February 1977 he was hurting when he got up from bed and that he thought the pain would go away. He said that he shaved, dressed, ate about one-half of his breakfast and went to work. At work, he found that another worker in his department had called in sick, and as a result of this information, he became upset, nervous, and “about half way mad” because the person had not come to work. He said the pain got worse, so he called for a relief person and went to the restroom and sat down. Booth stated that the heart attack occurred at this time.

The evidence further shows that Mr. Booth left work, went to his home, called his wife and then went to see Dr. Cobb. Dr. Cobb placed him in the hospital where he remained for approximately twenty days. While in the hospital, he also was treated by Dr. Shepard. Dr. Shepard testified that his “diagnosis was arteriosclerotic heart disease, with recent acute myocardial infarction.”

The case was tried before a jury. The jury found that R. W. Booth sustained or suffered an occupational disease to his body which manifested on or about 3 February 1977; that he sustained or incurred the occupational disease while in the course of his employment; that the occupational disease was a producing cause of total incapacity; that the total incapacity is temporary; that the total incapacity began on 3 February 1977 and ended on 5 May 1977; that the occupational disease produced partial incapacity which is permanent. The Insurance Company does not attack these jury findings.

The jury further found that Mr. Booth sustained or suffered incapacity as a result of arteriosclerosis; that the arteriosclerosis had aggravated, prolonged, accelerated or contributed to Mr. Booth’s incapacity which resulted from his occupational disease; and that the incapacity suffered by arteriosclerosis contributed fifty (50) percent to the occupational disease incapacity. Mr. Booth filed a motion to disregard these issues and the jury’s answers thereto. The trial granted Mr. Booth’s motion and entered judgment in his favor on the jury’s answers to the other issues.

In its first point of error, the Insurance Company contends that the trial court erred in disregarding the jury’s answers to the aggravation and contribution issues. In this connection, the company maintains that under the jury’s answers to the disregarded issues Mr. Booth was entitled to only one-half of the amount of the judgment rendered by the trial court.

In support of its position, the company relies on the provisions of Tex.Rev.Civ.Stat. Ann. art. 8306 § 22 (Vernon 1967). This section provides:

Where an occupational disease is aggravated by any other non-compensable disease or infirmity, or where incapacity or death from any other non-compensable cause, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the number of weeks of compensation payable by the Association shall be reduced and limited to such proportion only of the total number of weeks of compensation that would be payable if the occupational disease were the sole cause of the incapacity or death, as such occupational disease, as a causative factor, bears to all the causes of such incapacity or death, such reduction in compensation to be effected by reducing the number of weekly payments of . compensation for which the Association is liable (emphasis added).

In Texas Employers’ Insurance Association v. Etheredge, 154 Tex. 1, 272 S.W.2d 869, 875 (1954) the Supreme Court determined that section 22 was applicable when the employee’s incapacity was caused by silicosis, an occupational disease and tuberculosis, a non-compensable disease. Columbia Casualty Company v. Grigsby, 376 S.W.2d 51, 55 (Tex.Civ.App.—Austin 1964, writ ref’d n. r. e.) is to same effect. The applicability of section 22 presupposes the presence of an occupational disease and a non-compensable disease. In essence, the Insurance Company maintains that the heart attack constitutes one disease and that arteriosclerosis is another disease which is non-compensable. However, the evidence does not support or direct an inference in support of this contention.

The evidence shows that Mr. Booth had only one disease, which the medical experts diagnosed as “arteriosclerotic heart disease with recent acute myocardial infarction.” The medical evidence reveals that arteriosclerosis is a hardening or closing of the arteries leading to the heart which precedes the heart attack, and that in the usual situation a blood clot forms in the arteries which closes off the flow of blood to the heart and results in a heart attack. The Insurance Company does not attempt to establish by medical evidence that the diagnosed condition is in fact two diseases.

The jury found from evidence presented at the trial, that Mr. Booth sustained or suffered an occupational disease to his body which he incurred in the course of his employment. These findings are unchallenged. Under the circumstances, we must conclude that the trial court did not err by disregarding the aggravation issues and the jury’s answers thereto.

In summary, we overrule the Insurance Company’s first point of error. This holding is dispositive of the appeal. Accordingly, the judgment of the trial court is affirmed.

COUNTISS, J., not participating.


author: WARD, Justice.

text:
    PECOS COUNTY STATE BANK, Appellant, v. EL PASO LIVESTOCK AUCTION CO., INC., Appellee.
    No. 6832.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 8, 1979.
    Rehearing Denied Sept. 5, 1979.

      Stubbeman, McRae, Sealy, Laughlin & Browder, Rodney W. Satterwhite, Al W. Schorre, Jr., Midland, for appellant.
    Peticolas, Luscombe, Stephens & Windle, E. K. Peticolas, El Paso, Vial, Hamilton, Koch, Tubb, Knox & Stradley, James A. Knox, Dallas, Shafer, Gilliland, Davis, Bun-ton & McCollum, Inc., Lucius D. Bunton, Odessa, for appellee.
   OPINION

WARD, Justice.

The Plaintiff as payee on a sight draft recovered summary judgment against Pecos County State Bank on the grounds that the Bank was payor and held the demand item beyond its midnight deadline. Sec. 4.302, Tex.Bus. & Comm.Code Ann. Judgment was in the face amount of the draft together with prejudgment interest at the rate of 9%. The Bank appeals on points claiming it was only a collecting bank; that an excusable delay was not disproven; and that it was liable only for 6% interest. We affirm except as to the amount of prejudgment interest.

The summary judgment proof consisted of affidavits filed, answers to interrogatories, and three depositions. The proof showed that Mesa Packing Company, Inc. was engaged in the business of buying cattle for slaughter at its plant in Fort Stockton in Pecos County. The Packing Company maintained it’s bank account at Pecos County State Bank. The Packing Company used the services of Buster Cox, an independent cattle buyer, to purchase cattle on the open market for its slaughtering business. On December 20, 1977, Buster Cox purchased cattle on behalf of the Packing Company from El Paso Livestock Auction Co., Inc., in El Paso, and wrote the subject draft as payment for the cattle. The draft is dated December 20, 1977, is payable to the order of El Paso Livestock Auction Co., Inc. for $23,439.08, and is signed by Buster Cox. It contains the following:

Value Received and Charged to Account of
Mesa Packing Company Pecos County State Bank Fort Stockton, Texas

Mr. and Mrs. Robert Elliott were the stockholders and operators of Mesa Packing Company, and authorized Buster Cox to purchase cattle for them and to pay for them by draft drawn against their account at the Bank. Mr. Gillette was Senior Vice President of the Bank and handled drafts for that account from 1975 until he left the Bank on December 30, 1977. For a period of time during the latter part of 1977, he ordered that drafts on Mesa Packing account be held without return or notice of dishonor until the Elliotts would deposit funds, to cover the drafts. He stated that Buster Cox was authorized to draw drafts on the Mesa Packing Company account and he honored the Cox drafts whenever sufficient funds were in the account although Cox was not authorized to draw on that account, according to the Bank’s signature card.

The draft in question was forwarded by El Paso National Bank to the Pecos County State Bank where it was received on December 23, 1977. Because the account was insufficient, Gillette contacted the Elliotts and was informed that funds would be available shortly to cover the draft and, because of the information received, he ordered that the draft be held. On December 30, he left the Bank’s employ and on January 4, 1978, the draft was returned as a dishonored item by the Bank. Mesa Packing Company went bankrupt and was shut down on January 9, 1978.

El Paso Livestock Auction Co., Inc. then filed its suit against the Bank and alleged that it was strictly liable under the provisions of Sec. 4.302(1), Tex.Bus. & Comm. Code Ann., for failing to return the draft before the midnight deadline, and it was on this basis that its motion for summary judgment was thereafter filed. By its answer to the motion for summary judgment, the Bank alleged that it was not liable for two reasons: first, that a genuine issue as to a material fact existed that the Bank was not a payor bank but was a collecting bank and therefore not liable for retaining the draft past the midnight deadline, and second, the Defendant Bank had received verbal authorization from the El Paso National Bank to hold the draft for an additional period of time past the midnight deadline. After hearing, summary judgment was granted in favor of the Plaintiff in the sum of $23,-439.08, which was the amount of the draft, plus interest at the rate of 9% per annum from and after December 26, 1977, and the Bank appeals.

The Bank’s first two points raise the assertion that it was a collecting bank instead of a payor bank and therefore not liable for retaining the draft past the midnight deadline. It recognizes that it will be held strictly liable for the full amount of the draft if it is considered under the Code as a “payor” bank. The Bank relies on the statutes in force before the enactment of the Texas Uniform Commercial Code and on cases construing those statutes when the distinction was made between a collecting and a drawee bank. Thus, we have the draft

To Shaw Pkg Co. Tyler State Bank & Tr. Co. Tyler, Tex.,

which was considered in Tyler Bank & Trust Company v. Saunders, 159 Tex. 158, 317 S.W.2d 37 (1958), and the draft

To Julius Caesar Cattle Account
First National Bank
Hallettsville, Texas.,

considered in San Antonio Livestock Market Institute v. First National Bank of Hallettsville, 431 S.W.2d 408 (Tex.Civ.App.—Corpus Christi 1968, no writ). In each of those instances, the bank was held to be a collecting as opposed to a drawee bank under the Texas Bank Collection Code and the Negotiable Instruments Law.

Under the plan as provided in the Texas Uniform Commercial Code, one main distinction is now made between a payor and a collecting bank. The definition of payor bank was considered in New Ulm State Bank v. Brown, 558 S.W.2d 20 at 25 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ):

A “payor” bank is defined as “a bank by which an item is payable as drawn or accepted.” Tex.Bus. & Comm.Code Ann. § 4.105(2). The payor bank includes a “drawee” bank and also a bank “at which” an item is payable if the item constitutes an order on the bank to pay. See, Official Comment 2, § 4.105(2).

There, New Ulm State Bank was held to be the payor bank and “[t]here being no evidence that [it] acted in a capacity other than a payor bank, its liability is measured by the provisions of Tex.Bus. & Comm.Code Ann. § 4.302.” The court stated the following:

Each draft in question constituted an order on New Ulm State Bank, as the drawee bank, to pay the face amount of the draft. Although the draft did not, of itself, operate as an assignment of funds in the bank’s hands available for payment, and did not subject the bank to liability under the instrument until acceptance, the bank did have the obligation to handle the draft in a timely manner. Tex.Bus. & Comm.Code Ann. § 3.409, Official Comment No. 2. Its liability for the late return of an item resulted from the responsibilities imposed upon it under the statute, and a recovery based upon its failure to perform its statutory duty was not dependent upon a showing that the instrument was enforceable against it. 2 Bender, Uniform Commercial Code Service, 7-31 § 7.15(2).

It has been previously pointed out that the role of the payor bank in the collecting process is crucial since it knows whether or not the drawer has funds available to pay the item. In the present case, the evidence conclusively shows that Pecos County State Bank deliberately aligned itself with its customer to protect the customer’s credit and consciously disregarded the duty imposed upon it. The strict liability imposed by Sec. 4.302, Tex.Bus. & Comm.Code Ann., was made to fit the present situation. See Continental National Bank v. Sanders, 581 S.W.2d 293 (Tex.Civ.App.—El Paso, 1979, no writ); Annotation, 18 ALR 3d 1376.

Under similar circumstances where the statute has been construed, the bank in question has been held to be a payor bank. In Farmers Cooperative Livestock Market, Inc. v. Second National Bank of London, 427 S.W.2d 247 (Ky.1968), the following was stated:

The further significant consideration with respect to handling this item is whether the appellee was the “payor” bank. The statute we have above quoted, KRS 355.4-302, makes only a payor bank accountable when it fails to process the item within the deadline limit. KRS 355.4-105(b) defines a payor bank as “a bank by which an item is payable as drawn or accepted.” This draft was drawn on appellee bank and was payable by it. The fact that it was chargeable to Martin’s account is not significant. All checks are chargeable to someone’s account. Appellee was the payor bank.
We are at loss to discern how appellee was, as it contends, a “collecting bank”. Such is defined in KRS 355.4-105(d) as “any bank handling the item for collection except the payor bank”. (Emphasis added.)

See also Engine Parts, Inc. v. Citizens Bank of Clovis, 582 P.2d 809 (Sup.Ct.N.M.1978). Based on the reasoning contained in the above quoted cases, and without adding further detail, the first two points are overruled.

Points of error three and four are that the trial Court erred in granting the motion for summary judgment as there was a genuine issue as to the damages incurred for holding the draft past the midnight deadline as there was a good faith attempt to collect the same, and there was no evidence as to the balance in the account of Mesa Packing Company during the period the draft was in the possession of the Pecos County State Bank. Since the Bank was a payor bank and the draft was held past the midnight deadline without paying or returning the item or sending notice of dishonor, strict liability attached.

The fifth point is to the effect that a material fact was presented that the Appellant received a verbal authorization from the El Paso National Bank to hold the draft for an additional period of time past the midnight deadline. Summary judgment proof was presented that on January 3, 1978, the Appellant was advised to hold the item one more day. Strict liability for the face amount of the draft had attached long before the conversation in question. No defense is presented. Continental National Bank v. Sanders, supra.

The sixth point asserts that there was no evidence that the delay in giving notice of the dishonor was not excusable. Sec. 4.108(b), Tex.Bus. & Comm.Code Ann., provides for excusable delays for a payor bank beyond the time limits prescribed, and points out in Comment 4 that such delays are affirmative defenses. No defense has been presented, either in the pleadings or in the Appellant’s answer to the motion for summary judgment. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Rule 166-A, Tex.R.Civ.P. (Supp.1979).

By its final point, Appellant attacks the judgment awarding 9% pre judgment interest rather than 6% interest — the Appellant in effect conceding that the Ap-pellee is entitled to prejudgment interest under either the statute or at common law as an element of damages. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 at 116 (Tex.1978). The problem arises because in 1975 the Legislature amended Article 5069-1.05, Tex.Rev.Civ.Stat.Ann., and fixed the usual rate of interest on judgments in this State at the rate of 9% per annum while leaving Article 5069-1.03 unamended at 6%. The latter statute applies to recoveries on written contracts and on open accounts. As we understand it, the recovery of pre judgment interest where sought at common law as an element of damages was fixed at 6% because the courts by analogy adopted the legal rate of interest fixed by the statute as the standard by which to be governed in assessing those damages for the detention of money. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897). That was the statutory predecessor to Article 5069-1.03 which is still at 6%. By Article 5069-1.01(b) “[l]egal interest” is still defined as that interest which is allowed by law when the parties to a contract have not agreed on any particular rate, and that is still the 6% as determined by Article 5069— 1.03. Under this reasoning, the Appellant’s last point is sustained, and the judgment will be so changed that El Paso Livestock Auction Co., Inc. recover from the Defendant, the Pecos County State Bank, the total sum of $23,439.08 plus interest thereon at the rate of 6% per annum from and after December 26, 1977, until September 7,1978, the date of the trial Court’s judgment, and thereafter at the rate of 9% per annum.

In all other respects, the judgment of the trial Court is affirmed.


author: OSBORNE, Justice.

text:
    PAN AMERICAN FIRE & CASUALTY COMPANY, Appellant, v. Mack HILL, Appellee.
    No. 6854.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 8, 1979.
    Rehearing Denied Sept. 5, 1979.

      Thompson & Thomas, George L. Thompson, III, Lubbock, for appellant.
    Townes & Corbin, Vernon A. Townes, Denver City, Don E. Williams, Law Offices of Bobby R. Bearden, Allen R. McFall, Midland, for appellee.
   OPINION

OSBORNE, Justice.

This is a workers’ compensation case which involves the issue of good cause for the late filing of a claim with the Industrial Accident Board and the issue of the claimant’s wage rate. We reverse and remand.

The Appellee, Mack Hill, has owned and operated Mack Hill Oil Company, Inc., an independent gasoline and oil distributing company in Seagraves, Texas, since 1959. The Company has operated with three or four employees and Mr. Hill, as President, not only provided the management for the Company, but he did much of the actual work in driving trucks to deliver gas and oil to customers in Gaines County. In 1969, Mr. Hill became eligible for social security benefits and at that time he quit drawing his $500.00 a month salary from the Company although his work continued as usual. At the time of trial, his social security was not affected by his wages and his salary was $30,000.00 per year.

On May 16,1971, Mr. Hill slipped and fell and broke his left hip. He was hospitalized in Lubbock, and a pin and plate were placed in his hip to repair the fracture. The injury resulted in the left leg being 2½ inches shorter than the right one. Mr. Hill has continued to operate and manage the business but he cannot do the manual labor which he did before the fall.

While he was in the hospital, the claims adjuster for the compensation carrier had Mr. Hill sign the “Employer’s First Report of Injury” which was filed with the Board on May 21, 1971. The report reflected that Mr. Hill, age 71 and President of the Company, sustained a broken hip when he slipped in some oil and fell on May 16,1971. The report reflected the name and address of a witness to the accident, the treating doctor and the hospital where Mr. Hill was being treated.

The compensation carrier paid all the medical expense and compensation benefits of $19.20 per week from May, 1971 until January, 1972. At that time, Mr. Hill was told by the adjuster that payments would be stopped until the final settlement was made. On February 3, 1972, the Board mailed a letter to Mr. Hill with a “Notice of Injury and Claim for Compensation” form and advised him that it was necessary for a claim to be filed within six months from the date of injury. Mr. Hill testified at the trial that he did not remember ever getting that letter.

On March 15, 1972, Mr. Hill and the adjuster signed an instrument designated “Employee’s Wage Agreement.” It states:

The undersigned, who is an executive officer of the Mack Hill Oil Company, and who is not paid a salary and does draw social security, joined by the undersigned carrier, insuror of Mack Hill Oil Company, Seagraves, Texas, do hereby stipulate that a fair and just weekly wage upon which to base the weekly compensation rate in this claim before the Industrial Accident Board of Texas is $32.00 per week.
The undersigned employee and insurance company further stipulate that a fair and just weekly compensation rate to apply in this case before the Industrial Accident Board shall be the sum of $19.20 per week.

On April 17, 1973, the Board sent another letter and “Notice of Injury and Claim for Compensation” form to Mr. Hill. It was received and the form promptly completed and filed with the Board on April 30, 1973.

In answer to the issues submitted, the jury found Mr. Hill was injured on May 16, 1971, in the course of his employment, and that the injury was a producing cause of total and permanent incapacity. It also found that within six months of the date of injury, he believed his notice of injury and claim for compensation had been filed, that such belief caused him to delay filing a claim until it was filed, and that such belief was good cause for the delay in filing. It also found that Mr. Hill worked 210 days in the year preceding his accident and his average daily wage during such time was $25.00. Based upon those findings, the Court entered judgment for 401 weeks of compensation benefits with a compensation rate of $49.00 per week after allowing a credit of $672.00 for payments previously made.

The Appellant presents six points of error attacking the legal and factual sufficiency of the evidence to support the jury’s answers to the issues on good cause for late filing of the claim. We decide these points under the rules established in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Mr. Hill testified that the adjuster, whom he had known since 1958, visited him in the hospital and told him everything would be taken care of. Thereafter, his medical bills were paid and compensation began. Even when it was stopped, the adjuster acknowledged that a final settlement was to be made. Subsequently, the adjuster obtained the wage agreement. Finally, when the 1973 letter was received from the Board, the claim form was promptly completed and filed.

In Moronko v. Consolidated Mutual Insurance Company, 435 S.W.2d 846 (Tex.1968), the court considered the issue of good cause for late filing of a claim where the agent of the compensation carrier advised the injured employee “everything is taken care of.” In that case, the employee relied upon that representation and the weekly payments as proof that her claim had been filed. The court held the evidence was sufficient to support jury findings in favor of the claimant on the good cause issue.

In Travelers Insurance Company v. Echols, 508 S.W.2d 422 (Tex.Civ.App.—Texarkana 1974, no writ), the claimant was assured by the adjuster that “he would take care of everything, * * *The court in that case affirmed a judgment for the workman and noted that no real distinction could be drawn between promises of what had already been done and ones of what was going to be done. Citing numerous authorities, the court said: “A number of other cases have sustained findings of good cause where similar representations were made by using the words ‘will’ or ‘would,’ rather than the words ‘have’ or ‘had.’ ”

There are other cases in which good cause has been found to exist based upon representations by an agent of the compensation carrier that everything would be taken care of by the agent. Texas Employers’ Insurance Association v. Stateler, 449 S.W.2d 533 (Tex.Civ.App.—Dallas 1969, no writ); Travelers Insurance Company v. Strech, 416 S.W.2d 591 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.). Similar results have been reached where the representations were made by an agent of the employer. Texas Employers’ Insurance Association v. Herron, 569 S.W.2d 549 (Tex.Civ.App.—Corpus Christi 1978, no writ); Charter Oak Fire Insurance Company v. Dewett, 460 S.W.2d 468 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Texas General Indemnity Company v. Youngblood, 466 S.W.2d 329 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.).

While most of those cases do not involve a delay of nearly two years from the time of the accident until the claim was filed, it must be remembered that Mr. Hill was paid weekly compensation benefits for eight months. When those benefits were stopped, the adjuster acknowledged that there would be a settlement of future benefits. Even later, the wage agreement was signed. If the employee did not have a claim pending, why would a wage agreement be necessary, particularly when weekly benefits had stopped? We cannot say that there is no evidence to support the jury findings. We believe the payment of all medical expense, eight months of weekly benefits and a promise by a claims agent who Mr. Hill had known for fifteen years that everything would be taken care of was sufficient evidence to support the jury findings on good cause. Points of Error One through Six are overruled.

The next two points attack the legal and factual sufficiency of the evidence to support the jury finding that Mr. Hill’s average daily wage which he earned during the days that he actually worked in the year preceding his injury was “$25.00.” The wage rate question was submitted only under Subdivision (1) of Sec. 1, Art. 8309, Tex.Rev.Civ.Stat.Ann. The jury found that Mr. Hill did work 210 days of the year preceding his injury. The evidence supports that finding and there is no attack on that finding. If Subdivision (1) of the wage rate statute is applicable, then Subdivision (2) as to another employee and Subdivision (3) as to a wage that is “just and fair” have no application. Aetna Insurance Company v. Giddens, 476 S.W.2d 664 (Tex.1972); Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960); Garcia v. Aetna Casualty & Surety Company, 542 S.W.2d 477 (Tex.Civ.App.—Tyler 1976, no writ). In this case, the testimony of Mr. Hill is clear and uncontradicted that he had no salary and drew no wages during the year preceding his injury. He had not been paid a salary since he became eligible for social security in 1969. He testified that during this period the corporation was making $100.00 a week and this sum was being retained by the Company as profit. Subdivision (4) of Sec. 1, Art. 8309, Tex.Rev.Civ. Stat.Ann., provides:

Said wages shall include the market value of board, lodging, laundry, fuel and other advantage which can be estimated in money which the employee receives from the employer as a part of his remuneration.

The Appellee now asserts that the $100.00 per week profit of the Company constitutes “other advantage” as set forth in Subdivision (4) of the wage rate statute. That provision in the Compensation Act provides that such board, lodging, laundry, fuel and other advantage is to be that “which the employee receives from the employer as a part of his remuneration” and we believe must necessarily be received during the year preceding the injury, just as actual wages, in order to be used in calculating a proper wage rate. Also, we do not believe profit of a corporation can necessarily be equated to an earned salary of the president, particularly when payment is deferred beyond the time the profit is earned.

Where there is insufficient evidence to sustain a proper finding on wage rate, the court may enter judgment for the minimum amount provided by the statute. Garrard v. Texas Employers Insurance Association, 423 S.W.2d 93 (Tex.Civ.App.—Amarillo 1967, no writ); Sonnier v. Texas Employers Insurance Association, 417 S.W.2d 433 (Tex.Civ.App.—Houston 1967, no writ). But, where the parties have entered into a stipulation in order to eliminate the necessity of making proof of average weekly wages, the judgment may be based upon the stipulation just the same as it could any other evidence. In this case, the stipulation was offered by the Appellee and received in evidence without objection from Appellant. While we recognize that the stipulation recites a wage rate to be used by the Industrial Accident Board, the rate before the Board should necessarily be the same before the court, and in this case the stipulation was offered not only to the Board but also in the Court. The carrier agrees to the entry of a judgment based upon that stipulation, if a judgment is to be entered in favor of Appellee.

We sustain Appellant’s Points of Error Seven and Eight, and reverse the judgment of the trial Court and remand the case to that Court for entry of judgment based upon the stipulation of the parties as to the applicable weekly compensation rate.


author: McCLOUD, Chief Justice.

text:
    LONE STAR INDUSTRIES, INC., Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.
    No. 5334.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 9, 1979.
    Rehearing Denied Aug. 30, 1979.
    William B. Dawson, Carrington, Coleman, Sloman & Blumenthal, Dallas, for appellant.
    Alfred Sallinger and H. Louis Nichols, Saner, Jack, Sallinger & Nichols, M. J. Van-den Eykel, Dallas, for appellee.
   McCLOUD, Chief Justice.

The issue is whether real property, in the name of the individual partners, was effectively mortgaged when listed in a deed of trust executed in the name of the partnership, and signed by each of the partners.

Lomas & Nettleton, plaintiff, sued the partnership, Paseo Apartment Development Co., and the partners individually, seeking recovery on a promissory note in the original principal sum of $2,870,000. Plaintiff also sought foreclosure of a deed of trust securing the note. Several other lien claimants, including Lone Star Industries, Inc., were joined as defendants by plaintiff who alleged that its deed of trust was superior to all claims being asserted. The trial court entered judgment for plaintiff on the note; ordered a foreclosure of plaintiff’s deed of trust; and ruled that plaintiff’s deed of trust lien was superior to any lien asserted by any of the defendants. Lone Star Industries, Inc. appeals. We affirm.

The deed of trust in question was executed by “Paseo Apartment Development Co.,” a partnership, on October 20, 1972, and filed for record on November 3, 1972. Each of the partners, including J. Larry Morris, signed the instrument. On July 23, 1975, Lone Star filed an abstract of judgment against Morris.

Lone Star argues that record title to one of the tracts listed in the deed of trust was in the name of the individual partners, as opposed to the partnership, and the deed of trust executed by the partnership did not affect its abstract of judgment. We disagree.

Section 10 of Tex.Rev.Civ.Stat.Ann., Texas Uniform Partnership Act (1970) provides:

(4) Where the title to real property is in the name of one or more or all the partners, or in a third person in trust for the partnership, a conveyance executed by a partner in the partnership name, or in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of paragraph (1) of Section 9.
(5) Where the title to real property is in the names of all the partners a conveyance executed by all the partners passes all their rights in such property.

We think the partnership deed of trust dated October 20, 1972, signed by Morris, effectively mortgaged his individual interest in the property. Plaintiff’s deed of trust lien is superior to the judgment lien asserted by Lone Star.

The judgment of the trial court is affirmed.


author: DICKENSON, Justice.

text:
    Gordon W. SPEER, Appellant, v. CONTINENTAL OIL COMPANY et al., Appellee.
    No. 5288.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 9, 1979.

      Joe B. Brack, Baytown, Darral K. Sperry, Martin, Sperry & LeBoeuf, Houston, for appellant.
    Ann Lents and John Snodgrass, Vinson & Elkins, Robert A. Hall, Woodard, Hall & Primm, Houston, for appellee.
   DICKENSON, Justice.

Gordon W. Speer appeals a summary judgment granted to Continental Oil Company (Conoco) and two of its employees. The issue is whether Speer’s claims against these defendants are barred by Section 20 of the Real Estate License Act, Tex.Rev. Civ.Stat.Ann. art. 6573a (Supp.1978). We hold that these claims are barred. Speer also appeals the judgment rendered on a jury verdict against him in connection with his claims against two other defendants for their alleged tortious interference and alleged conspiracy. The issue is whether he can show reversible error in connection with the selection of the jury. He failed to show that he was required to take an objectionable juror after using all of his peremptory challenges. We affirm.

In connection with his appeal of the summary judgment, Speer relies upon Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). The Supreme Court stated in Herring that:

This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings, as here, fail to state a cause of action.

It should be noted that the Supreme Court also states in Herring that:

It is recognized that a party may plead himself out of court; e. g., the plaintiff may plead facts which affirmatively negate his cause of action. ... In such instance it is proper to grant the defendant’s motion for summary judgment.

Speer’s pleadings show that he was attempting to recover a commission for Co-noco’s purchase of real estate and that Co-noco had not signed any written agreement obligating it to pay the commission. For summary judgment purposes, we must assume that Conoco, through its employees, had orally agreed to pay Speer’s commission if Conoco bought the property. Even so, the oral agreement could not be enforced in view of the explicit provisions of Section 20, Article 6573a, supra. See Miller v. Treo Enterprises, 585 S.W.2d 674 (Tex.1979); Coastal Plains Development Corporation v. Micrea, Inc., 572 S.W.2d 285 (Tex.1978); Jones v. Del Andersen and Associates, 539 S.W.2d 348 (Tex.1976); Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953); Collins v. McCombs, 511 S.W.2d 745 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.).

We recognize the rule stated in Clements v. Withers, 437 S.W.2d 818 (Tex.1969), that the unenforceability of a contract as between the parties is no defense to a third party in an action for tortious interference with its performance. Conoco was a party to the contract, and its employees were not “third parties” within the meaning of Clements.

Our Supreme Court pointed out in Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.1976):

An important element in a right of recovery for contract interference is that the interference must be without right or justification. Interference with contractual relations is privileged where it results from the exercise of a party’s own rights or where the party possesses an equal or superior interest to that of the plaintiff in the subject matter.

See also Maxey v. Citizens National Bank of Lubbock, 507 S.W.2d 722 (Tex.1974); Terry v. Zachry, 272 S.W.2d 157 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). We hold that Speer’s pleadings show that Article 6573a, supra, precludes any recovery from Conoco or its employees. The trial court properly granted the summary judgment. This point of error is overruled.

Speer’s other point of error charges the trial court with error in refusing to allow him to challenge two members of the jury panel for cause. That point is also overruled. The trial court found that those prospective jurors were not disqualified and the appellate courts are required to consider the evidence in the light most favorable to that ruling. Compton v. Henrie, 364 S.W.2d 179 (Tex.1963). The trial court was in a better position than an appellate court to evaluate the prospective jurors’ sincerity and their capacity for fairness and impartiality. The court’s finding that those prospective jurors were not biased or prejudiced should not be disturbed. Swap Shop v. Fortune, 365 S.W.2d 151 (Tex.1963). Moreover, there was no showing that Speer was required to take an objectionable juror. Neither of the challenged persons served on the jury. In order to preserve his complaint, Speer would have been required to advise the trial judge, pri- or to exercising his peremptory challenges, that he wanted to challenge a particular juror who was not acceptable to him in addition to those he had peremptorily challenged. Tex.R.Civ.P. 434; Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964); West Texas Utilities Company v. Bergstrom, 458 S.W.2d 548 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.); Hammon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.), cert. denied, 382 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76 (1965).

The judgment of the trial court is affirmed.