author:
HARBISON, Justice.
      HENRY, Justice Mr. Justice Fones

text:
    DALLAS GLASS OF HENDERSONVILLE, INC. and Trans-Units, Inc., Petitioners-Plaintiffs, v. BITUMINOUS FIRE & MARINE INSURANCE COMPANY, Respondent-Defendant.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    Rehearing Denied Nov. 15, 1976.
    F. Dulin Kelley, Hendersonville, for petitioners-plaintiffs.
    Ed R. Davies, Nashville, for respondent-defendant.
   OPINION

HARBISON, Justice.

This ease involves a question of coverage under the provisions of a cargo insurance policy issued to the petitioners by respondent.

Petitioner Trans-Units, Inc. manufactures aluminum and glass prefabricated motel fronts. Petitioner Dallas Glass of Hendersonville, Inc. supplies trailers used to transport the cargoes shipped by Trans-Units, Inc. Petitioners purchased cargo insurance from respondent insurance company through an insurance agency in Hender-sonville, Tennessee, known as Newman, Hayes and Hogin, Inc.

Among other policies of insurance purchased through this agency, petitioners were issued a multi-peril insurance policy from respondent. By endorsement, this policy provided:

“This policy covers on lawful goods and merchandise consisting of . the property of the Insured or sold by them and in course of delivery . . . within a radius of 500 miles of Hendersonville, Tennessee.” (Emphasis supplied).

While the policy was in effect, a tractor-trailer unit, transporting cargo consigned to a Holiday Inn in Bangor, Maine, was involved in an accident at the site of an overpass in the vicinity of Wells, Maine, some twelve hundred miles from Hender-sonville. Respondent denied liability under the policy, contending that there was contact only between the cargo and the structure of the overpass, with no part of the tractor-trailer unit being involved. This presented a question of coverage, since the policy indemnified for loss “caused by collision of the vehicle”. In addition, respondent relied upon the mileage limitation contained in the endorsement quoted above.

The trial court allowed recovery for the cargo loss, in the amount of $9,900.00. The Court of Appeals reversed and dismissed the suit. That court pretermitted the question of whether there was a loss caused by “collision” within the meaning of the policy. It held that the mileage limitation “is a part of the insuring portion of the insurance policy,” and that the coverage of the policy could not be changed through application of principles of waiver or estoppel.

Petitioners have insisted throughout the litigation that they desired to purchase complete coverage on their cargoes while in transit and that the mileage limitation had never been called to their attention. The insured had for a period of some four years made monthly reports to the insurance carrier, through the agency, showing the destination and value of each cargo shipped. Over ninety percent of the shipments exceeded the five hundred mile policy limitation. Representatives of the insured testified that full cargo coverage had been requested, and that in order to obtain it the insured went on a “monthly reporting” basis, with respect to its cargo coverage. Under this procedure, the insured paid an initial estimated premium, but submitted monthly reports concerning its shipments, these reports usually being filled out by a member of the insurance agency itself. The insured was subject to annual audit and adjustment of its premium. A representative of the petitioners testified as follows:

“Q. What do you mean by liability exposure and cargo coverage?
“A. Cargo coverage on a reporting basis is based on your exposure by amount of dollars, by amount of miles you travel.
“Q. Is that your understanding?
“A. Yes, sir, that was my understanding, because our exposure was much greater from here to New York than it would be from here to Nashville.
“THE COURT: On liability?
“THE WITNESS: On liability, and the exposure of the cargo insurance. This is why it went to a reporting type basis.
“Q. Is this the reason an audit was made every year?
“A. Yes, sir.
“Q. Did you pay additional premium or did you receive reduced premiums?
“A. We received additional premiums or received credit, depending on the exposure for that period of time.”

Two representatives of the insurance agency were called as witnesses by the insurer. They testified that they had full knowledge of the fact that the insured’s shipments were exceeding the five hundred mile limitation. Both of them testified, under examination by counsel for the insurance carrier, that they did not agree with the respondent’s reliance on the policy limitation in this case. They based their conclusions, in part at least, upon the monthly reporting system which had been instituted, showing the value and destination of each cargo which was insured.

The representatives of the insurance agency testified that they felt that the insurance carrier had full knowledge of the operations of the insured from these monthly reports and also from inspections made of the insured’s premises and vehicles by engineering personnel of the insurance carrier. One of them testified that the company required monthly reports in order that it might set the premiums. In addition, he stated that this information enabled the company to determine whether “they don’t want the coverage any more . . . .”

There is no testimony indicating that any representative of the insurance carrier had called to the attention of the insured the mileage limitation over the period of years during which monthly reports had been filed. An underwriter from the Nashville office of the insurance carrier testified that the company only charged the insured premiums based upon the five hundred mile limitation. She testified that the company did write coverage for distances up to fifteen hundred miles, but at substantially increased rates.

The Court of Appeals held that while principles of waiver or estoppel might be invoked by an insured to prevent an insurance carrier from relying upon exclusionary provisions of an insurance policy, those principles were not available to prevent reliance by the carrier upon the actual insuring clauses of the insurance contract. The Court cited and relied principally upon the cases of E. K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn.App. 644, 410 S.W.2d 729 (1966), and Bituminous Fire & Marine Ins. Co. v. Izzy Rosen’s Inc., 493 F.2d 257 (6th Cir. 1974).

It is indeed a recognized principle of insurance law that a contract of insurance cannot be created by waiver or estoppel. However, this general statement, although well supported by case law, should be considered in light of the facts to which it has been applied.

In the case of E. K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn.App. 644, 410 S.W.2d 729 (1966), the insured had a policy of insurance against liability for damages “caused by accident”. The insured was sued for breach of warranty based upon a claim of defective merchandise. There was testimony that the insurance agent had told the insured that it had “full coverage” for its business operations, but all parties agreed that there had never been any discussion between the insured and the agent with respect to contractual coverage, or any kind of liability insurance other than that arising from accident. The Court of Appeals affirmed the Chancellor in declining to reform the contract to afford such coverage, because the subject had never been discussed by the parties. Also upon these facts the court held that warranty coverage could not be created or supplied by waiver or estoppel.

The principle that a new contract, or coverage of a different kind of risk, cannot be created by waiver or estoppel has reference to the nature of the coverage afforded, not merely to limitations or conditions pertaining to a risk already covered by the policy. In the course of its opinion in the Hardison Seed Co. case, supra, the Court quoted with approval of the following statement from 45 C.J.S. Insurance, § 674:

“As a general rule, the doctrines of waiver or estoppel can have a field of operation only when the subject matter is within the terms of the contract, and they cannot operate radically to change the terms of the policy so as to cover additional subject matter.”

It was this same principle which was applied by the Court of Appeals for the Sixth Circuit in the case of Bituminous Fire & Marine Ins. Co. v. Izzy Rosen’s, Inc., 493 F.2d 257 (6th Cir. 1974). In that case the insured had a policy covering liability for bodily injuries to persons. It sought, by estoppel, to create coverage for slander, false arrest and similar intentional torts.

This is not the situation in the present case. Here the insured clearly had cargo collision coverage. The record shows that the insured and the agent of the insurer intended that the insured would be furnished full coverage upon its cargoes while in transit. The policy which was issued and delivered contained a five hundred mile limitation upon coverage, but, for a period literally of years prior to the incident in question, the insured reported monthly to the insurer both the values of its cargoes and the destination of each shipment. These shipments were to points in many different states of the United States, and nearly all of them were to destinations well beyond the five hundred mile radius. There is no question but that the agent knew of these shipments, and, for that matter, no question but that the insurance company also knew of them. It received the monthly reports and made annual premium adjustments. Its safety engineers inspected the vehicles upon which the cargoes were transported. It seems implausible that the company could consider that the insured intended to procure coverage upon its cargoes within a five hundred mile radius, but that it expected to be self-insured beyond that point. The testimony of both the insured and the agents is clear that the insured desired full coverage upon its cargoes, and that it changed to a monthly reporting system, with an annual premium audit and adjustment, upon the advice and recommendation of the insurance agents.

Under these circumstances, we do not conceive that any new contract of insurance is being “created” by application of principles of waiver or estoppel. Indeed, the ease seems to us to turn upon the principle of waiver, which has long been defined in the Tennessee cases as the voluntary relinquishment of a known right. There is no question but that the agents considered the cargoes covered beyond the five hundred mile radius and that the insured expected such coverage. The agency conferred regularly with the insured and continually attempted to furnish insurance coverage suited to the needs of a changing and expanding business operation.

Had the insured brought this action for reformation of the policy, by a suit in equity, rather than as an action at law upon the contract, a chancery court in all probability would have reformed the policy to conform to the clear intentions of the parties, permitting coverage up to fifteen hundred miles (the maximum written by the insurance carrier) and requiring the insured to pay an additional premium accordingly.

Since reformation of the policy was not sought below, it would be inappropriate for us to decree that relief here. In our opinion, however, there was a waiver of the limitation upon coverage by the insurer, both through the actions of its agents and through the knowledge which it itself received and acted upon. Under these circumstances, we hold that the insured is entitled to recover the amount of its loss, insofar as the mileage limitation is concerned.

• Support can be found for the judgment of the trial court in the case of Miller v. Monticello Ins. Co., 50 Tenn.App. 363, 361 S.W.2d 496 (1961). In that case certain welding equipment was insured while located on premises described in the policy. The equipment was used at different locations from the insured premises, with the knowledge of the agent, and was destroyed several miles therefrom. The Court of Appeals affirmed a recovery against the insurance carrier upon principles of waiver.

To the same effect is the case of Shelby Mutual Ins. Co. v. Wilson, 53 Tenn.App. 428, 383 S.W.2d 791 (1964). In that case the insured had a homeowner’s policy, covering unscheduled personal property to its full value while on the premises described in the policy. The policy also covered unscheduled personal property while away from the premises, subject, however, to a limitation of ten percent of the “on premises” coverage.

In that case the insured moved from Greeneville, Tennessee to Rogersville, Tennessee in September, 1962, and, in December, 1962 the insured again moved from within the corporate limits of Rogersville to another location just outside the city limits. These changes in location were known to the insurance agent. The personal property of the insured was destroyed by fire while at the last location. The Court of Appeals affirmed a judgment against the insurance carrier for the full value of the property, finding evidence to support the judgment of the trial court that the agent had knowledge of the location of the property, that this knowledge was imputed to the insurance carrier, and that there was a waiver of the limitation on the location of the property-

Reference also should be made to the case of Smith v. Continental Ins. Co., 63 Tenn.App. 48, 469 S.W.2d 138 (1971), where the insurer was held liable for the full loss claimed despite incomplete data reported by the insured and the agent on monthly forms as to inventory values. The agent was held to be the insurer’s agent under T.C.A. § 56-705, and it was bound by her actions and agreements.

We do not find that these cases conflict with the Hardison Seed Co. case and other cases holding that insurance coverage cannot be created by waiver or estoppel. If the insured in the present case had cargo insurance limited to some particular peril, it is doubtful that the insurance could be changed through principles of waiver or estoppel to protect against some entirely different risk. We do not have in this case, however, a question of a change in the nature of the coverage, but simply a condition or limitation upon a risk which was actually underwritten, and such conditions and limitations are subject to waiver by authorized representatives of an insurance carrier.

In the case of Bailey v. Life & Casualty Ins. Co. of Tenn., 35 Tenn.App. 574, 250 S.W.2d 99 (1951), it was said:

“Any contractual provision in a policy of insurance, made for the benefit of the insurer, not mandatory under a statute, may be waived by an officer or agent of insurer who has actual or apparent authority so to do. Furthermore, the insurer by express words or by acts or by a course of conduct may ratify the acts of its unauthorized agents relating to such provisions, or be estopped to rely upon them. . . .”35 Tenn.App. at 582-583, 250 S.W.2d at 102.

As previously indicated, the insurance carrier did contend in the trial court that there was no coverage in the present case because of the facts surrounding the accident and the policy terms as to “collision”. This contention has been properly preserved for appellate review. It was upon this basis that the company initially and primarily denied payment of the loss. The mileage limitation was merely an additional reason for the denial. The opinion letter of trial counsel to the company, on the basis of which liability for the statutory penalty was denied, did not even refer to the mileage provision.

We reverse the decision of the Court of Appeals that the mileage limitation precludes recovery under the circumstances shown in this case. The cause is remanded to that court for consideration of the assignments of error made by the insurance carrier which were pretermitted, as to whether there was in fact coverage for this particular occurrence.

Costs in this Court are taxed to respondent. All other costs will be assessed by the Court of Appeals upon its disposition of the case.

COOPER, C. J., and BROCK, J., concur.

HENRY and FONES, JJ., dissent.

HENRY, Justice

(dissenting).

We confront an unfortunate collision between considerations of conscience and controlling concepts of law. The majority reconciles the conflict by a strained construction of the consistent holdings of our courts, leaving a clear rule of law on the one hand, and this case on the other. This decision will be productive of chaos, confusion and litigation. If this, or any other established rule of court-made law is unjust, it should be discarded forthrightly and a more just rule substituted.

I.

A threshold matter, ignored by the majority, might be addressed.

The pleadings in this case will not support a judgment. The complaint simply alleges that Bituminous issued a specific policy (made an exhibit to the complaint), insuring plaintiffs against all risk of loss. It was upon this contract, and this contract alone, that plaintiffs sought to recover. And this contract restricted coverage to “a radius of 500 miles of Hendersonville, Tennessee”.

Plaintiffs did not plead estoppel or waiver and did not seek to reform the policy. The defendant, by answer, affirmatively pleaded the 500 mile coverage provision. Thus, the basic issue tendered by the pleadings, was whether plaintiffs sustained a loss within a radius of 500 miles of Henderson-ville. They did not. Under no known principle of pleading and practice, may the issue of estoppel arise to permit a recovery in this action.

Inherent in the majority’s opinion is a holding that the coverage provided in a liability insurance policy may be extended by estoppel. We disagree.

II.

It is a familiar principle of our law that estoppel may be relied upon to protect a right, but never to create one. It could be said that it is a shield, not a sword. It may not be invoked to broaden the coverage of an insurance policy. To permit its invocation, in such a case, would be to create a new contract for which no additional premium is paid. Inland Mut. Ins. Co. v. Hightower, 274 Ala. 52, 145 So.2d 422 (1962). It must be borne in mind that there is a distinction between the coverage afforded by an insurance contract and an exclusionary provision. An estoppel may be relied upon to protect an insured against the enforcement of an exclusion in the contract under a proper factual setting; however, it is the prevailing view — followed in the overwhelming majority of the jurisdictions of this country — that the use of the doctrine will not be sanctioned to broaden the policy coverage or to provide protection against risks not specified in the policy. The majority opinion is in the very teeth of this overwhelming view of the law.

In 16A Appleman, Insurance Law and Practice, Sec. 9090, 341-42 (1968), the general rule is stated thusly:

It has been repeatedly held that the doctrines of waiver and estoppel cannot be used to extend the coverage of an insurance policy or create a primary liability, but may only affect rights reserved therein. . . . [Ujnder no conditions can the coverage or restrictions on coverage be extended by waiver or estoppel. (Emphasis supplied).

The immediate question for our consideration is whether the policy provision in the instant case constitutes coverage or an exclusion. In our view it is clearly coverage since it limits and defines the circumstances under which coverage will attach. Of course, in a very broad sense, it can be stated that every circumstance or condition not specifically included in the contract automatically operates to exclude every other circumstance or condition and, therefore, the fact that the policy limits coverage to 500 miles would automatically operate as an exclusion of all coverage beyond 500 miles. While this is true, broadly speaking, it is not correct within the meaning of the law of estoppel as applied to insurance contracts.

In D’Angelo v. Cornell Paperboard Products Co., 59 Wis.2d 46, 207 N.W.2d 846 (1973), the Court points out that an exclusion serves the purpose of taking out persons or events otherwise included in the defined scope of insurance coverage, and coverage refers to the sum of the risk against which the policy provides protection.

We have examined the decisional law of this jurisdiction in the light of these general principles and, upon examination, find that our cases, when properly construed, have generally followed the prevailing view.

A significant case, often cited by the courts of other states and in treatises, is Henry v. Southern Fire & Cas. Co., 46 Tenn.App. 335, 330 S.W.2d 18 (1958). The insureds, who were engaged in the logging business, sustained a loss and incurred substantial liability when a trailer became disengaged from the truck by which it was being pulled and crashed into an oncoming vehicle, killing one person, injuring others and causing considerable property damages. The company denied liability on the grounds that the trailer was not described in the policy. The trailer was not listed in the policy and it contained a specific exclusion of “any trailer owned or hired by the insured and not covered by like insurance in the Company”. The insurance agent was familiar with the insureds’ business activity, and gave them full assurances that they had complete liability coverage on their usual logging operation. The Court of Appeals, in a most excellent opinion by Judge Carney, reversed and remanded the ease for a new trial, holding that if the insureds could convince the jury that the agent “assured them of full liability coverage, they are entitled to recover” under the policy, and “the company will be estopped to rely upon the terms of the Exclusion clause as a defense.” 330 S.W.2d at 32. After reciting the claimed conduct of the agent the Court made this observation:

The result was the same to the complainants. They were lulled into a false sense of security. They were misled to their prejudice.
Ibid. at 30.

But it will be remembered that the Court of Appeals, in that case, was dealing with an exclusion and not coverage.

The strongest Tennessee case we find in support of the insureds’ position in this lawsuit is Miller v. Monticello Ins. Co., 50 Tenn.App. 363, 361 S.W.2d 496 (1961). The insureds in that case were the owners and operators of a machine shop. Among other items of equipment, they owned a mobile welding machine that was insured against loss under a policy which restricted coverage to loss sustained on equipment while located or contained in certain described premises in Bruceton. The unit was destroyed by a fire at a point some seventeen miles away. The company denied liability on the basis that there was no coverage because, at the time of its destruction, it was not located at the place described in the policy. The agent of the company knew that this particular piece of equipment was used away from the place of business and the proof showed that he assured the policyholder that “his equipment was covered at all times and places and never called his attention to the fact that his equipment was not insured when away from his regular place of business.” 361 S.W.2d at 498.

The Court, again speaking through Judge Carney, held:

Under these circumstances we think a jury might well find that the defendant’s agent, Mr. Brower, and therefore the company itself, waived the restriction or limitation of coverage and also lulled Mr. and Mrs. Miller into a sense of false security by leaving them under the impression that they were fully covered under the terms of the policy which was issued. If such facts are true the company is estopped to rely upon this restriction or a limitation of coverage in the policy as a defense.
Ibid. at 499.

This case clearly addresses a matter of coverage as opposed to an exclusion, and is analogous to the factual situation in the case at bar; however, it is not in accord with the general rule and is out of harmony with the later opinion of the Court of Appeals for the Middle Section in E. K. Hardison Seed Co. v. Continental Cas. Co., 56 Tenn.App. 644, 410 S.W.2d 729 (1966).

In the Hardison Seed Company case, the policy obligated the company to pay as “damages because of injury to or destruction of property, . . . caused by accident.” The insured was sued for breach of warranty based upon failure of certain seed to germinate. Hardison called upon Continental Casualty to defend under a comprehensive general liability insurance policy. It declined, contending that loss or damage because of breach of warranty, was not within the coverage of the contract.

The Court, speaking through Judge Hum-phreys, later a Justice on this Court stated:

[I]n keeping with the doctrine many times enunciated and never departed from that estoppel is available to protect a right, but never to create one (citing eases) we have no case in Tennessee in which the doctrine of estoppel was made the basis of recovery except where the loss was within the coverage provided by the insuring clauses of the contract, (citing cases).
So, in order for there to be a recovery on the basis of an estoppel, a paramount condition must be met, the acts of the agent relied on for the estoppel and the estoppel arising on account of these acts must result in a liability which would be within the insuring clauses of the contract.
410 S.W.2d at 733.

The majority opinion passes over this significant language and all but ignores this case.

Along with E. K. Hardison Seed Company, the Court of Appeals, in the instant case, relied upon Bituminous Fire & Marine Ins. Co. v. Izzy Rosen’s, Inc., 493 F.2d 257 (6th Cir. 1974), where the Court spoke through an excellent opinion by the late Judge William E. Miller.

Judge Miller treats E. K. Hardison Seed Company as “an important clarification of Henry”, and observes:

When the Hardison and Henry decisions are read together it is clear that under Tennessee law a showing that an insurance agent told the insured that his policy contained full liability coverage is sufficient to estop the insurance company from relying on an exclusion in the policy to deny coverage. Similarly, if the agent mistakenly or negligently wrote a policy for the insured which the agent either knew or should have known did not provide the coverage that the insured wanted and needed, then the insurance company may not assert the exclusionary clauses. (Citing cases) But we have been unable to find any case in which a Tennessee court has used the doctrines of estoppel or negligence to write into an insurance policy coverage that was not specified in the contract. Instead, the cases are limited to the situation in which an insurance company is estopped to assert an exclusionary clause, thereby permitting the insured to rely on the coverage provisions in the policy. (Emphasis supplied).
493 F.2d at 260.

The majority opinion attempts to dilute the holding in this case and quotes no part of this language.

In Insurance Co. of No. Am. v. Federated Mut. Ins. Co., 518 F.2d 101 (6th Cir. 1975), the Court correctly summarizes our law as follows:

The Tennessee rule . . . appears to be that the determination whether an exclusion clause will be given effect depends, not only on the language of the provision, but also on whether, if the clause is given effect, the insurer, in light of its knowledge of the policyholder’s business, would fail to provide the coverage that might reasonably be expected. (Emphasis supplied).
518 F.2d at 105-06.

This case is not even alluded to in the majority opinion.

We now examine a few of the authorities from other jurisdictions.

In Albert v. Home Fire & Marine Ins. Co. of California, 275 Wis. 280, 81 N.W.2d 549, 553 (1957), the Court held that “the local agent’s oral misinterpretation of unambiguous provisions as to coverage can not work a modification of the contract by estoppel or otherwise.”

In Reeves v. New York Life Ins. Co., 421 S.W.2d 686, 688 (Tex.Civ.App.1967), the court held that “[a] contract cannot be created by estoppel, (citing cases) and estoppel and waiver cannot bring within the coverage of a policy a loss which is expressly excluded therefrom.”

In Imperial Cas. & Indem. Co. v. Carolina Cas. Ins. Co., 402 F.2d 41, 45 (8th Cir. 1968), the court recognizes that estoppel may not be “invoked to create a liability for benefits not contracted for at all,” and “that while there may be a waiver in matters of forfeiture the courts are unwilling to utilize es-toppel to create a new contract.”

In Looney v. Allstate Insurance Company, 392 F.2d 401, 408 (8th Cir. 1968), the court, speaking through Judge Blackmun, now Associate Justice on the United States . Supreme Court, applying Arkansas law, held that “waiver and estoppel usually cannot operate to extend coverage where none exists under the contract.”

In State Automobile Insurance Ass’n v. Kooiman, 143 F.Supp. 614 (D.S.D.1956), the court, applying South Dakota and Minnesota law, held that where the policy afforded coverage to loss or damage within a 50 mile radius, waiver or estoppel because of knowledge of the insurance agent, of use beyond that limit could not be utilized to provide extended coverage. In this regard, the Court said:

In the instant case the coverage is sought to be extended by the insured to include liability beyond the 50 mile radius without payment of additional premium. This risk was not included or contemplated by the terms of the policy, and the coverage may not be extended on the basis of waiver or estoppel because of knowledge by the agent of use beyond the express terms of the policy.
143 F.Supp. at 618.

To the same effect is Container Corp. of America v. Bituminous Cas. Corp., 252 A.2d 117 (Del.1969).

III.

The reasoning of the majority opinion is highly persuasive, but the fact remains that it is out of harmony with the overwhelming majority view and with the decisions heretofore announced by the courts of Tennessee.

While the dictates of fairness and justice might indicate a departure from the established rule that estoppel may not be relied upon to expand the coverage provided by an insurance contract, this doctrine is too indelibly impressed into our law to justify making an exception which would, in effect, destroy the rule of law. Rules relating to contractual obligations should not be tampered with absent most compelling considerations. The stability of the law must be a continuing objective. While we are somewhat less than enthusiastic about the practices and procedures followed by Bituminous in this case — and particularly with its failure to discuss either with its agent or with its insured, the operation as revealed by the monthly reports — we cannot depart from what we consider to be an established rule of law in order to correct an apparent injustice.

We, therefore, would hold that the doctrines of waiver and estoppel may not be invoked, as a general rule, to broaden or increase the coverage of an insurance contract; but that they may be invoked in cases involving forfeitures, limitations or exclusions.

We would affirm the judgment of the Court of Appeals.

In complete candor, I concede that the majority reached a just conclusion under the peculiar facts and circumstances of this case. This was a hard case and “hard cases make bad law”. I would be willing to change the rule of law so as to provide that coverage may be extended by estoppel, under proper pleadings, and pursuant to clear, cogent and convincing proof, but cannot be a party to circumventing the law as, I submit, the majority does in this case.

Mr. Justice Fones

joins in this dissent, except to the extent of the preceding paragraph. It is his view that the law not only is settled, but settled correctly.

      . Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384 (1942).

      . See annotation, 1 ALR 3d 1139 (1965).


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    W. E. HAMBY et al., Appellants, v. Beatrice MILLSAPS, Appellee.
    Supreme Court of Tennessee.
    Dec. 6, 1976.

      Luther, Anderson, Ruth & Cleary, Chattanooga, for appellants.
    Ziegler & Guinn, Athens, for appellee.
   OPINION

BROCK, Justice.

This is an action for recovery of death benefits under the Workmen’s Compensation Act. The Chancellor awarded a recovery to the plaintiff, Mrs. Millsaps, and defendant, Hamby, seeks review by writ of error. Plaintiff asserts that the defendant is not entitled to review by writ of error because he has already had the benefit of the remedy of appeal in the nature of a writ of error.

The final decree of the Chancellor was entered on October 13, 1975. That decree, pursuant to defendant’s prayer, granted an appeal to this Court and allowed thirty (30) days for filing an appeal bond and sixty (60) days for filing a bill of exceptions. The appeal bond was filed on November 12, 1975, and the transcript of the record was filed in the office of the Clerk of this Court on December 3, 1975. However, the defendant-appellant did not file Assignment of Errors and Brief within twenty-five (25) days of the filing of the transcript, as required by Rule 14, Rules of Supreme Court, and, for this reason, pursuant to a motion of the appellee, the appeal was dismissed by this Court on January 29, 1976. See Rule 15(2), Rules of Supreme Court.

T.C.A. § 27-601 permits review of a judgment by writ of error “in all cases where an appeal in the nature of a writ of error would have lain.” T.C.A. § 50-1018, provides that decrees in Workmen’s Compensation cases are to be reviewed by an appeal in the nature of a writ of error. But it is settled that the two remedies are alternative procedures and a resort to both is not permitted. Crowe v. Birmingham & N. W. R. Co., 156 Tenn. 349, 1 S.W.2d 781 (1938). The language of T.C.A. § 27-601, “. . . would have lain,” implies that the remedy of an appeal in the nature of a writ of error, although available, has not been perfected or utilized.

Thus, the cases hold that writ of error is available when the appealing party has lost or not availed himself of the remedy of appeal in the nature of a writ of error by his failure to “perfect” the appeal by (1) timely filing an appeal bond or oath in forma pauperis and (2) timely filing of a transcript of the record in the appellate court. Burcham v. Carbide & Carbon Chem. Corp., 188 Tenn. 592, 221 S.W.2d 888 (1949); Ward v. N. Amer. Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134 (1963); Duval v. Brady, 72 Tenn. 528 (1880); Covington v. Neilson, 14 Tenn. 475 (1834); Bond v. N. Greenwald & Co., 51 Tenn. 453 (1871). Merely filing the appeal bond or pauper’s oath without also filing a transcript of the record does not serve to cut off the right of the appealing party to later have a review by writ of error. Burcham v. Carbide & Carbon Chem. Corp., supra. But, if the appeal in the nature of writ of error is fully perfected by timely filing of appeal bond or pauper’s oath and transcript of the record, the remedy of writ of error is no longer available. This is true even though a review of the merits of the appeal is not obtained, whether due to voluntary abandonment of the appeal by the appellant, Turner v. S. Pittsburg Lumber & Coal Co., 14 Tenn.App. 297 (1931) or to the dismissal of the appeal by the appellate court because the appellant fails to file assignments of error and brief within the time required by law or rules of the court or for other good cause. Crowe v. Birmingham & N. W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781 (1928).

In this case the defendant, Hamby, perfected his appeal in the nature of a writ of error by timely filing of the appeal bond and transcript of the record. Therefore, he has had the benefit of the remedy of appeal in the nature of a writ of error, even though he lost the right to a review of the merits of his appeal by reason of the dismissal thereof because of his failure to file assignments of error and brief within the time required. He, therefore, is not entitled to review now by writ of error. Crowe v. Birmingham & N. W. Ry. Co., supra.

The petition for writ of error is denied and costs taxed against the plaintiff-in-error, Hamby and surety.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


text:
    CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Appellant, v. MANUFACTURERS ACCEPTANCE CORPORATION, Appellee.
    Supreme Court of Tennessee.
    Dec. 13, 1976.

      Benton H. Jones, Knoxville, for appellant.
    L. B. Bolt, Jr., Knoxville, for appellee.
   OPINION

BROCK, Justice.

This is an action to recover upon an insurance policy insuring against loss of a motorcycle by theft. The named insured, Robert L. Jackson, the owner of the motorcycle, is not a party to the action. Instead, the suit was brought by the Manufacturers Acceptance Corporation (MAC), appellee, in its capacity as chattel mortgagee of the motorcycle and as the “loss payee” named in the policy of insurance.

The defendant insuror, Central National Insurance Company of Omaha, appellant, defends upon two grounds, viz., (1) that MAC, as chattel mortgagee and the “loss payee” named in the insurance policy, is not a party entitled to receive the benefits of the policy and, for that reason, is not entitled to maintain this action and (2) that the defendant insurer is under no obligation to pay this loss, if any, because the named insured, Jackson, has failed to give notice, file a proof of loss Or otherwise comply with the conditions stipulated in the policy. The case was submitted to the Chancellor upon a written stipulation of facts and he found the issues in favor of the plaintiff, MAC, and awarded a decree accordingly.

I

The named insured, Jackson, borrowed from the appellee, MAC, the money used for the purchase of the motorcycle and secured his debt by a promissory note and a chattel mortgage. One of his obligations under the chattel mortgage was to keep the motorcycle insured against loss by theft, it being stipulated that “loss if any, (would be) payable to said mortgagee, its successors and assigns.” Complying with this obligation, Jackson purchased a policy of insurance from the appellant. In the policy Jackson was named as the “named insured” and the plaintiff, Manufacturers Acceptance Corporation, was named as “loss payee.” The portions of the policy and declarations material to the question whether or not MAC is entitled to the proceeds of the policy are as follows:

“The Central National Insurance Company of Omaha agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all the terms of this policy as stated hereinafter: .
“Coverage G — To pay for loss of or damage to the owned motorcycle caused by theft or larceny. .
“Item 3. Loss, payee, address, and zip code — ‘Manufacturers Acceptance Corporation, 200 5th Avenue, Knoxville, Tennessee.’ ”

Admittedly, these provisions are skimpy. However, in our opinion, they are sufficient, when coupled with the covenant by Jackson in the chattel mortgage that he would keep the motorcycle insured against loss by theft and that such loss, if any, should be payable to the mortgagee, its successors and assigns, to give the loss payee, MAC, the right to receive the proceeds of the policy to the extent of the debt owed by the mortgagor to the mortgagee at the time of loss. This is sufficient evidence to make out a contract, implied in fact, that the mortgagee, MAC, as “loss payee,” should be entitled as a third party beneficiary to receive so much of the proceeds of a loss as equals the debt owing to it under the chattel mortgage. See Donaldson v. Sun Mutual Insurance Co., 95 Tenn. 280, 32 S.W. 251 (1895); 46 C.J.S. Insurance §§ 1147, 1183. Therefore, we hold that MAC is entitled to maintain this action upon the policy.

II

This insurance contract does not contain any provision, sometimes called “standard” or “union” mortgage clause, protecting the interest of the mortgagee from acts or omissions of the insured-mortgagor which, under the terms of the policy, may operate to invalidate the coverage. Therefore, invalidating acts or omissions of the insured-mortgagor operate not only to defeat his own rights but those of the mortgagee as well. Hocking v. Virginia Fire & Marine Ins. Co., 99 Tenn. 729, 42 S.W. 451 (1897); Ramsey v. Farmers’ Mut. Ins. Co. of Macon, Mo., 234 Mo.App. 1102, 139 S.W.2d 1027 (1940); Provident Fire Ins. Co v. Union Trust Corp., 195 Va. 415, 78 S.E.2d 584 (1953); Green v. Fidelity-Phenix Fire Ins. Co., 233 N.C. 321, 64 S.E.2d 162 (1951); Coahoma County Bank & T. Co. v. Feinberg, 241 Miss. 381, 128 So.2d 562 (1961); Reserve Ins. Co. v. Aguilera, 181 Neb. 605, 150 N.W.2d 114 (1967); 11 Couch on Insurance 2d, 334, § 42:671. Contra: Southern Ins. Co. v. First National Bank at Orlando, 237 So.2d 302 (Fla.App.1970).

In the Ramsey case, supra, the loss payable clause provided that “Loss or damage shall be payable to mortgagee, as his interest may appear at the time of loss . . . .” Prior to the loss, the mortgage had been foreclosed thus breaching a condition of the policy. In denying a recovery to the mortgagee, the Court noted that this was an “open” and not a “union” mortgage clause and said:

“A ‘union’ clause establishes a separate contract of insurance between the mortgagee and the insurer, which contract may not be nullified by any act of insured alone. .
“An ‘open’ mortgage clause makes the rights of the mortgagee dependent upon acts of omission and commission by insured. Under such a clause the mortgagee’s rights are no greater than those of insured.” 139 S.W.2d at 1029.

In Reserve Ins. Co. v. Aguilera, supra, the bank, mortgagee, claimed under a clause which made it the loss payee, as interest may appear. In denying a recovery because of the fraudulent representations made by the insured to the insurer, the Court, after noting that it is otherwise when the mortgagee is protected by a “standard” or “union” mortgage clause providing that no act or neglect of the insured shall prejudice the loss payee, said:

“. . . the general rule is that under a simple loss payable clause in a policy of insurance issued to a mortgagor and payable to the mortgagee, as his interest may appear, the mortgagee is simply an appointee of the insurance fund whose right of recovery is no greater than the right of the mortgagor.” 150 N.W.2d at 117.

We hold that MAC has no greater right to recover under this policy than Jackson, the named insured, would have.

It is our further conclusion that Jackson has breached material conditions of the policy in that he has failed, without excuse, to file a sworn proof of loss and has refused to respond to repeated requests of the insurer that he make himself available to the Company for discussion of the alleged loss. The policy clearly requires that he perform these acts, and conditions the liability of the Company upon their performance. The breach of such conditions, unless waived by the insurer, prevents a recovery upon the insurance contract; and, there is no such waiver here. Georgia Home Ins. Co. v. Jones, et al., 23 Tenn.App. 582, 135 S.W.2d 947 (1939); Cohen v. Commercial Cas. Ins. Co., 277 Mass. 460, 178 N.E. 726 (1931); 7 Am.Jur.2d 466, Insurance, § 139. The filing of the requisite proof of loss may, obviate the necessity for giving notice of loss, but the giving of notice of loss does not satisfy the requirement that proof of loss be filed. Georgia Home Ins. Co. v. Jones, et al., supra. The failure of the insured, Jackson, to perform these conditions prevents a recovery by the loss payee, MAC.

The decree of the trial court is reversed and the complaint is dismissed. Appellee will pay the costs incurred upon appeal.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


author: McAMIS, Special Judge.

text:
    In the Matter of the ESTATE of Charles Adolpho KENNEDY, Deceased.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 31, 1975.
    Certiorari Denied by Supreme Court Feb. 23, 1976.
    Russell G. Lazenby, Jr., Asst. Atty. Gen., Nashville, for appellant.
    Clarence Kolwyck, Chattanooga, for ap-pellee.
   OPINION

McAMIS, Special Judge.

This case originated as a Probate Proceeding in the Chancery Court of Hamilton County. The sole issue is the right of Randolph Kennedy, the illegitimate son of Charles Adolpho Kennedy, deceased, to take, under the statutes of descent and distribution, the balance of the personal estate of the deceased as his only heir at law.

The Chancellor sustained the right of the petitioning son to inherit and denied the claim of the State that, there being no heirs at law capable of inheriting, the property escheated to the State. The State has appealed and assigned the following single assignment of error: “The learned Chancellor erred as a matter of law in his conclusion ‘that the petition in this cause should be treated as a petition authorized in T.C.A. 36-224, (Randolph Kennedy) having standing to bring suit . . .

The State does not challenge the findings of the Chancellor that Randolph Kennedy was the natural son of the deceased and supported him during his lifetime and that the deceased recognized the son always “in the community” as his son. Admittedly, the father and the mother of this son were never married and neither decedent nor the son ever took any legal steps to legitimate the relationship under the laws of the State of Tennessee.

In his first opinion the Chancellor noted that the son contended that to deny him the right to inherit on the ground of illegitimacy would be a denial of equal protection under the Fourteenth Amendment to the Constitution of the United States. The opinion does not deal with this question, however, and it has not been raised on this appeal.

After denying a petition to rehear filed by the son challenging the Chancellor’s holding that he could not inherit, the Chancellor, on a subsequent petition to rehear, finally held the petition of the son should be treated as a petition authorized by T.C.A. 36-224.

That section of the Code authorizes the filing of a petition to establish the paternity of a child and to compel the father to furnish support and education for the child. Under the statute such petition may be filed by the mother or the child or, if the child is about to become a public charge, by the State Department of Public Welfare. In case of the death or disability of the mother the petition may be filed “by the child acting through a guardian or next friend.” Subsection 3 of the Act confers exclusive jurisdiction upon the Juvenile Court. This section of the Code and Section 36-234 are based upon Chapter 186, Acts of 1955 and Chapter 36, Acts of 1965.

Section 13, Chapter 186, Acts of 1955, provides that when an order of paternity and support has been entered the child “shall be a legitimate child of the defendant for the purpose of inheriting from the defendant.”

In his final memorandum opinion, noting that no statute of limitations had been pleaded by the State, the Court concluded that, under Reynolds v. Richardson, (Tenn.App.1972), 483 S.W.2d 747, the petitioning son had standing to bring suit, since the decedent had supported him during his lifetime and had acknowledged his paternity in writing; that the son’s petition in this probate proceeding should be treated as a petition under T.C.A. 36-224 and that the son should be accorded the right to inherit as expressly provided by T.C.A. 36-234, following a judgment of paternity and support.

The facts developed by the proof present a strong case for sustaining the right of this son to inherit. In addition to the facts already noted, as found by the Chancellor, the proof shows this child’s birth certificate shows the decedent to be the father; the decedent took the child into his care after the mother moved away and made him the beneficiary under one or more insurance policies.

We are reluctantly driven to the conclusion, however, that this case does not fall within the ambit of T.C.A. 36-224 and T.C.A. 36-234. These Code sections contemplate a proceeding in the juvenile court filed by the mother or child or, if the child is about to become a public charge, by the State Department of Public Welfare. As the Chancellor pointed out in his original opinion, this is not a case to determine the question of paternity in order to establish the obligation of the putative father to support and educate the child. The father, now deceased, could have legitimated the child or the mother or child could have taken appropriate steps to that end. The issue now presented has nothing to do with the duty of support and education of the child, but is strictly limited to the right of inheritance, a question dealt with in the statute only as an incident of a direct proceeding against the putative father to have the question of paternity judicially established. Even under the most liberal construction of the statute which we would be inclined to allow, to hold that this proceeding can be treated as a proceeding under the statute in a court other than the juvenile court would, in our opinion, be a distortion of the whole purpose of these statutes. To do so, furthermore, would raise questions of the constitutionality of the statutes. Young v. Willis, 58 Tenn.App. 678, 436 S.W.2d 445.

Reynolds v. Richardson, (Tenn.App.1972), 483 S.W.2d 747, supra, is not persuasive of the result reached by the Chancellor in this case. There the mother and grandparents of the child undertook to release the putative father of all liability to the child upon payment to them of $500.00. This court, on appeal, merely held that the release was not binding on the child. Under the circumstances the release was held valid only as to the mother.

The court said:

“(I)t is deemed proper to strike the name of Donna Kay Reynolds (the mother) and substitute therefor the name of Marshall Brock Reynolds, a minor, in conformity with Section 36-226, T.C.A., supra, and to affirm the judgment of paternity with the limitation that said judgment is not to inure to the financial benefit of the petitioner Donna Kay Reynolds

This holding can not be held to stand for the construction of the statutes urged upon us in this case.

Accordingly, the decree of the Chancellor is reversed and the cause remanded to the Probate Court. Costs of the lower court and of this court, in our discretion, are taxed against the fund in the hands of the Administrator.

PARROTT, P. J., and GODDARD, J., concur.


author: SAM D. JOHNSON, Justice.

text:
    Nanci Adams HOLLEY, Petitioner, v. David E. ADAMS, Respondent.
    No. B-5880.
    Supreme Court of Texas.
    Dec. 1, 1976.
    Orr & Davis, Stephen M. Orr, Austin, for petitioner.
    Rogan B. Giles, Austin, for respondent.
   SAM D. JOHNSON, Justice.

David Adams instituted this suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son. The trial court ordered termination under Section 15.02 of the Texas Family Code Annotated on the grounds that Nanci Holley had failed to support her child [Section 15.02(1)(E)], that her conduct endangered the emotional well-being of the child [Section 15.02(1)(D)], and that the termination of the parent-child relationship was in the best interest of the child [Section 15.02(2)]. The court of civil appeals affirmed. 532 S.W.2d 694. We reverse and render judgment denying termination of the parent-child relationship.

David and Nanci Holley were married in 1965. The only child of their marriage, David Christopher, was born the following year. The couple separated in 1968 and subsequently Nanci Holley filed a suit for divorce which was granted in 1969. During the pendency of the divorce action Nanci Holley voluntarily delivered the child to his father in Austin, Texas where he has remained at all times pertinent to this action.

Nanci Holley did not object to or contest the divorce decree awarding custody of the child to David Adams. The court decree did not require Nanci to pay child support. The court order did, however, designate David Adams as managing conservator and he has continuously retained custody and control of his son since Nanci Holley voluntarily delivered the child to him.

David married his present wife, Sharon, in 1970. The trial court found that David Christopher enjoyed a happy relationship with his father and stepmother. His health was good, he attended school regularly, made good grades, and engaged in athletic activities.

Shortly after the divorce Nanci Holley was arrested and jailed for a traffic offense. She was also committed to the Austin State Hospital by her mother during June and July of 1969 for treatment of mental illness which Nanci described as a depressive condition caused by the divorce. In August 1969 she left Austin, Texas where her husband and child resided. She traveled in the company of three men and made what the court of civil appeals termed a “rootless trek to the western states.” By the end of that month she had settled in Seattle, Washington where she has remained.

Nanci Holley remarried in 1970 and one child, a daughter, was born of this second union. This marriage ended in divorce in 1973 and Nanci Holley has retained custody of her daughter. During 1973 Nanci declared bankruptcy and in March 1974 she married her present husband, Ricky Holley, who was a student at the University of Washington.

After leaving Austin in 1969 Nanci Holley returned there to visit her son, David Christopher, on three occasions between 1971 and 1974. With respect to her relationship with and support of her son, Nanci Holley testified to the following: she often contacted him through her mother by numerous letters and telephone calls; there exists a loving parent-child relationship between them; the termination of that relationship would not be in the best interest of the child; her three offers to pay her son’s air fare to and from Seattle were refused; between 1970 and 1975 she sent a total of approximately $100 in cash to her son or to David and Sharon Adams for his use and benefit; she maintained a health insurance policy covering him; and she sent various gifts and toys to her son. The trial court found that at least one of her gift packages was returned to her unopened. As to Nan-ci’s financial situation between 1970 and 1975, the trial court found that: (1) for two years following her remarriage in 1970 she was a housewife without outside employment; (2) in 1972 she obtained employment as a program adviser at the University of Washington, which position she has eontin-ued to hold; (3) she earned a gross income in excess of $500 per month from this employment; (4) she declared voluntary bankruptcy in 1973; (5) her marriage to Ricky Holley has not resulted in any children; (6) Ricky Holley received Veterans Administration education benefits in excess of $300 per month and worked part-time; (7) his tuition averaged $125 per month; and (8) $117 per month was deducted from Nanci’s salary to repay loans. Nanci testified that she had not received the child support payments her second husband was ordered to make.

David Adams instituted the instant suit for termination of the parent-child relationship between his former wife, Nanci Adams Holley, and their son, asserting as the only grounds therefor that Nanci Holley had “failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, and she [had] emotionally and actually abandoned the child,” and that termination “would be in the best interest of [the] child.”

The court appointed a guardian ad litem to represent the child, David Christopher, and ordered the guardian ad litem to investigate the circumstances and submit a written report to the court. Such report was submitted and is part of the record before this court.

David testified that he brought this suit for termination because if he should die it would be better for his son to be raised by Sharon Adams rather than by Nanci Holley. In describing the relationship between Nan-ci and David Christopher, David Adams testified as follows:

“Q . . . do you feel that it’s in the best interest of Christopher that he not ever see his natural mother again?
“A No, no, sir, not—
“Q All right, sir. You feel that a — What is he now, nine years old, I believe—
“A Yes, sir.
“Q —last February?
“A Yes, sir.
“Q So — All right. So don’t you agree with me, sir, that a young man of this age should — who—who has known his mother and who has visited with her in — and who has formed some affection for his mother should be allowed to continue seeing his mother?
“A Yes, but I — I believe the way — the child is happy the way he is and—
“Q I’m sorry. I didn’t—
“A I do believe the child is happy the way he is. As far as — Yes. He enjoys going over to see Nanci whenever she comes to town because he gets gifts and, you know, lots of love and care which, you know, he gets in the home too, but he gets it every day when he only gets it one — once a year or whenever she comes to town.
“Q But you think he ought to continue to see Nanci, do you not?
“A Whenever she comes to town, yes.”

In its “Conclusions of Law” the trial court found that:

1. “. . . [Nanci Adams Holley] has failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition, within the meaning of Article 15.02(1)(E) of the Texas Family Code”;
2. “By her conduct and virtual abandonment of the minor child, David Christopher Adams, for a period of six years, commencing some three to four months prior to her divorce from David E. Adams, Nanci Adams Holley has engaged in conduct which endangers the emotional well-being of the child within the meaning of Article 15.02(1)(E) of the Texas Family Code”; and
3. “Termination of the parent-child relationship between the mother, Nanci Adams Holley, and the child, David Christopher Adams, is in the best interest of the minor child, David Christopher Adams . . ..”

The trial court decree ordered termination of the parent-child relationship. Additionally, it appointed David Adams managing conservator of his son. The court of civil appeals affirmed, holding that there was sufficient evidence to sustain the trial court’s finding that Nanci Holley failed to support her son in keeping with her ability during a period of one year prior to the filing of this suit for termination [Section 15.02(1)(E)], and that termination of the parent-child relationship was in the best interest of the child. Having found evidence to support one of the provisions of Section 15.02(1) of the Family Code, namely, failure to support [Section 15.02(1)(E)], the court of civil appeals declined to consider the trial court’s alternative finding that Nanci Holley had engaged in conduct which endangered the emotional well-being of her son [Section 15.02(1)(D)]. The only issue before this court is the correctness of the termination order. There is no challenge of the appointment of David Adams as managing conservator.

As this case involves the right of the child to the benefit of the home and environment which will probably best promote its interest and the right of the parent to surround the child with proper influences, Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966), Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), recognized the constitutional dimensions of these rights, this case must be strictly scrutinized.

TERMINATION MAY NOT BE BASED SOLELY ON DETERMINATION OF BEST INTEREST UNDER SECTION 15.02

Under Section 15.02 termination of a parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. In Wiley v. Spratlan, supra, this court wrote:

“Involuntary termination of parental rights rests upon Section 15.02. Subdivision (1) of that Section lists several acts or omissions, one or more of which must be proved in a termination case. The list may not be an exclusive one, but so far as this case is concerned, the Welfare Unit relied only upon Section 15.02(1)(E). Subdivision (2) of the same Section requires proof of a second element, that the termination is in the best interest of the child. Both elements must be established and the requirements of Subdivision (1) are not excused because a court may be of the opinion that Subdivision (2) has been proved.” 543 S.W.2d 349 at 351. [Emphasis added.]

CONDUCT WHICH ENDANGERS EMOTIONAL WELL-BEING

In affirming the trial court’s decree terminating the parent-child relationship the court of civil appeals did not rely upon the trial court’s finding that Nanci Holley’s conduct endangered the emotional well-being of her child [Section 15.02(1)(D)]. Although it is not clear that Section 15.-02(1)(D) was properly pleaded by the recitation in the petition that Nanci Holley “emotionally and actually abandoned the child,” it does not appear to be an issue between the parties before the court and this court will, for the purposes of this case, treat it as properly pleaded.

Nanci Holley contends that there is no evidence to support the trial court’s finding that her conduct endangered the emotional well-being of her child [Section 15.02(1)(D)]. With respect to this contention, this court in reviewing the record can only consider the evidence and the inferences tending to support the finding of the trial court and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

We hold that there was no evidence to support the finding that Nanci Holley, by her conduct, endangered the emotional well-being of her child. The trial court’s finding was apparently based in part upon the fact that she visited the child only three times during the five and one-half year period prior to the trial of this case. There was no evidence of any nature that the infrequency of the contacts endangered the child’s emotional well-being in any way. Similarly, there was no evidence that Nan-ci’s visits with her son endangered his emotional well-being in any way.

The trial court also may have based its conclusion that Nanci Holley endangered the emotional well-being of her child upon the conduct previously recited that appeared to cast doubt on her competency as a parent: her arrest in 1969 for a traffic offense; her commitment to the Austin State Hospital by her mother for less than two months; her conduct while traveling to Seattle; her second divorce; and her voluntary declaration of bankruptcy. Again, however, there was no evidence of any nature that David Christopher’s emotional well-being was endangered by this conduct in any way.

The foregoing is not to be understood as speaking to the quality of the testimony which might be required to establish that the emotional well-being of a child has been endangered. The instant record is merely devoid of any testimony or evidence of any nature which bears upon the bringing into danger or peril the emotional well-being of the child.

FAILURE TO SUPPORT

Both the trial court and the court of civil appeals found that Nanci failed to support her son within the meaning of Section 15.02(1)(E). There is an adequate basis in the record to sustain the finding of the courts below that Nanci Holley failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of this petition.

THE FACTOR OF EXCUSE

Nanci Holley contends, however, that Section 15.02(1)(E) is rendered inapplicable where a parent’s duty of support has been excused, and that her duty of support was excused in the instant case.

An analogous contention was before this court in the context of determining whether the consent of a parent was a necessary prerequisite to the adoption of his child under Article 46a(6)(a), Texas Revised Civil Statutes Annotated, Heard v. Bauman, 443 S.W.2d 715 (Tex.1969). That statute provided that the consent of a parent to adoption of his child was not necessary where “such parent or parents shall not have contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability.”

However the statutory scheme which was before this court in Heard v. Bauman, supra, is significantly different from Section 15.02 of the Texas Family Code and thus the case is not necessarily controlling. As noted in Wiley v. Spratlan, supra, the focus of the current termination proceeding is twofold; first, on the acts or omissions of the parent and, second, upon the best interest of the child. The emphasis of Article 46a(6)(a) was on whether the conduct of the parent justifies the waiver of the requirement that the parent consent to an adoption. This change demonstrates the intent of the Legislature to move from the concept that the parent cannot block the severance of the parent-child relationship through adoption when the parent has engaged in unexcused blameworthy conduct, to the idea that the parent cannot prevent termination (1) when there exist acts or omissions by the parent which may indicate that the existing parent-child relationship is not a proper one, and (2) when termination is indeed in the best interest of the child. The interpretation of Section 15.02 which will best fulfill the intent of the Legislature is that any “excuse” for the acts or omissions of the parent can be considered by the trial court only as one of the factors in determining the best interest of the child.

BEST INTEREST OF THE CHILD

Nanci Holley next argues that there is no evidence that termination of the parent-child relationship was in the best interest of David Christopher. An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the following: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent. Only a limited number of factors listed above appear from the record to have been presented here.

ACTS OR OMISSIONS OF THE PARENT: As stated earlier, the record does support the finding of the trial court and the court of civil appeals that Nanci failed to support her child in accordance with her ability and this failure to support is one of the factors that is to be considered in ascertaining the best interest of the child.

EXCUSE OF ACTS OR OMISSIONS: However, as previously noted, any excuse for this failure to support is to be considered under best interest. A comparison of the facts of this case to the circumstances of Heard v. Bauman, supra, leads to the conclusion that the failure to support was excused. In the instant case David Adams testified that Nanci Holley voluntarily agreed to give him custody of the child during the course of the divorce proceedings in order to assure that the child would be provided adequate financial support. Nanci Holley was never ordered to make support payments. It was undisputed that the child had been properly cared for while in his father’s custody and that David Adams and his wife never sought or wanted any financial support for the child from Nanci Holley. Therefore, Nanci Holley’s duty to support her child was excused and the fact that the failure to support is excused is one of the factors to be considered in ascertaining the best interest of the child.

EMOTIONAL NEEDS OF THE CHILD: With respect to the emotional needs of the child, the previously noted testimony of both Nanci Holley and David Adams indicates that there does exist an emotional relationship between the child and his mother, and also an emotional relationship between the child and his maternal grandmother, and that these relationships should continue. Furthermore, the evidence demonstrates that there is an emotional relationship between the child and his father and stepmother.

Only two reasons were given by David Adams for termination; first, that it was his desire to adopt his wife’s child at the same time his wife adopted his child and, second, that he was fearful of what would happen if he should die and the child’s mother should take him.

Particularly compelling is the direct testimony on the best interest of the child. There is no testimony that the child’s best interest would be served by termination of the child’s relationship with his mother. The investigator’s report gives no justification for termination and makes no suggestion that it would be in the child’s best interest. On the other hand, the testimony of David Adams, the individual seeking termination here, clearly states that it would not be in the best interest of the child that he never see his mother again; that the best interest of the child would be served by continuing to see his mother.

A review of the factors presented in the record reveals only evidence that indicates that termination is not in the best interest of the child. There is no evidence that termination of the parent-child relationship is in the best interest of the child, David Christopher.

The judgments of the trial court and the court of civil appeals are reversed and judgment is hereby rendered denying termination of said parent-child relationship.

      . Section 15.02, Texas Family Code Annotated, originally enacted in 1973, was amended effective September 1, 1975. The references herein to Section 15.02 pertain to the statute enacted in 1973. Section 15.02 provided in part:
      “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      “(1) the parent has:
      “(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
      “(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
      “. . . and
      “(2) termination is in the best interest of the child.”

      . Section 15.02(1)(E) was derived from Article 46a(6)(a) which was repealed effective January 1, 1974 upon the enactment of the new Family Code.

      . See Herrera v. Herrera, supra; Tex. Family Code Ann. § 14.07(a).

      . See Herrera v. Herrera, supra; Mumma v. Aguirre, 364 S.W.2d 220, 222 (Tex.1963); Porter v. Porter, 371 S.W.2d 607 (Tex.Civ.App.— Eastland 1963, writ refd n. r. e.).

      . See Herrera v. Herrera, supra; Porter v. Porter, supra.

        . See Mumma v. Aguirre, supra; Porter v. Porter, supra; Tex. Family Code Ann. § 14.07(b).

      . See Tex. Family Code Ann. § 14.07(b).

      . See Mumma v. Aguirre, supra; Tex. Family Code Ann. § 14.07(b).

      . See Mumma v. Aguirre, supra; Tex. Family Code Ann. § 14.07(b).

      . See Heard v. Bauman, supra.


text:
    Brenda SCHIESSER, Petitioner, v. The STATE of Texas, Respondent.
    No. B-5857.
    Supreme Court of Texas.
    Dec. 1, 1976.
    James C. Henry, III, Martin J. Grimm, Houston, for petitioner.
    Sara B. McIntosh, Asst. Dist. Atty., Houston, for respondent.
   SAM D. JOHNSON, Justice.

The Harris County Child Welfare Unit instituted this suit for termination of the parent-child relationship between the parents, Brenda Shadowens Schiesser and Freddie Shadowens, and their three children under Section 15.02 of the Texas Family Code Annotated. The juvenile court terminated the relationship and appointed the Welfare Unit as managing conservator. Freddie Shadowens did not appeal. The court of civil appeals affirmed. 531 S.W.2d 922. We reverse and remand for new trial in the interest of justice.

The record herein in no way lends itself to clarity or, in some instances, to understanding. No complete chronology of events has been submitted. The pertinent events appear to be as follows:

In July 1973 the Welfare Unit filed a petition in the juvenile court of Harris County, Texas alleging that these three children had been placed in its custody on June 28,1972, that at that time the children were in need of medical attention and dependent upon neighbors for food, that the children had remained with the Welfare Unit, and that Brenda had been unable to formulate a child care plan. The petition requested that the Welfare Unit retain custody pending a final hearing and that the parent-child relationship be terminated.

On November 13, 1973 an amended petition was filed. It alleged that Brenda had not cooperated with the Welfare Unit, that she had been unable to formulate an adequate child care plan, and that the whereabouts of Freddie Shadowens were unknown.

A year later, November 7,1974, the Welfare Unit moved to dismiss this amended petition on the basis of a recommendation by Beth Stephenson, a case worker at the Welfare Unit. Her recommendation was based on the following facts: since April 1974 Brenda had requested monthly visits; she had been very cooperative with the Welfare Unit; and she appeared able to offer proper care and a stable home for her children. During 1974 Brenda had obtained a divorce from Freddie Shadowens and continued to live with William Schiesser with whom she had lived since 1973.

On November 15, 1974 the Welfare Unit returned the children to Brenda at the home of William Schiesser. Five days later, on November 20, 1974, Brenda phoned Beth Stephenson at the Welfare Unit and requested that she remove the children from the home that day. Brenda maintained that she had no choice but to request the removal as William Schiesser insisted that the children leave but refused to allow her to leave. She also stated that she did not want her children to leave.

In her testimony Beth Stephenson related that she spoke with William Schiesser and Brenda on this day, November 20,1974, and described them as appearing angry. She also stated that William Schiesser informed her that he wanted the children to leave because he could not afford to provide for them and because they were disturbing the family situation. She further testified that Brenda and William were “yelling” at each other when she came for the children. The children returned with Beth Stephenson to the Welfare Unit.

The Welfare Unit, on December 30, 1974, filed a second amended petition alleging that in April 1974 the children had been declared dependent and neglected, that Freddie Shadowens had “failed to support the child[ren] in accordance with his ability during a period of one year ending within six months of the filing of the petition” [Section 15.02(1)(E)], and that Brenda had “engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangered] the physical or emotional well-being of the children]” [Section 15.02(1)(D)]. It should be noted that the allegation contained in this second amended petition that Brenda had endangered the physical or emotional well-being of the children was not contained in the finding of facts filed by the juvenile court. Instead, the juvenile court found that the elements of a different Section, Section 15.-02(1)(B), existed:

1. “Brenda Shadowens Schiesser voluntarily left Thomas, Karen and Kenneth Shadowens in the possession of Harris County Child Welfare Unit and expressed no intent to return”;
2. “Thomas, Karen and Kenneth Sha-dowens were left by Brenda Shadow-ens Schiesser in the possession of Harris County Child Welfare Unit for 3 months, namely, part of November, December 1975 [sic], January and part of February, 1975”; and
3. “Thomas, Karen and Kenneth were supported and provided for by the Harris County Child Welfare Unit for 3 months.”

It should also be noted that although the second amended petition did not contain an allegation that termination of the parent-child relationship was in the best interest of the children, the juvenile court made such a finding of fact.

On January 3, 1975, pursuant to the November 7, 1974 motion to dismiss of the Welfare Unit, the court entered an order dismissing the petition. A week later, on January 14, 1975, the Welfare Unit moved to set aside this dismissal order and the motion was granted on this same date.

During January 1975 Brenda left William Schiesser and stayed at a motel for four days. Brenda returned to his home and married him later that month.

For the first time since November 1974 William Schiesser and Brenda visited the children in February 1975. Brenda testified that this was the first time the Welfare Unit had allowed her to see her children. Under the order entered on January 30, 1975 by the juvenile court setting aside the dismissal, the Welfare Unit was reinstated as the temporary managing conservator of the children. Consequently, the Welfare Unit had control over visitation of the children by Brenda [Section 14.02].

Kathy Gaber, the Welfare Unit worker assigned to this case as of January 1975, testified that Brenda expressed to her the desire for the return of the children and that William had indicated that he wanted to adopt them. Her testimony included the additional information that she had not received any phone calls from either of them since the February 1975 visit. She further testified that Brenda had not mistreated the children.

The decree in issue in this case is that of March 31, 1975. It was on that date that the juvenile court appointed the Welfare Unit as managing conservator and, with respect to Brenda, ordered termination of the parent-child relationship under Section 15.02 on the grounds that she had “voluntarily left the child[ren] ... in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child[ren], and remained away for a period of at least three months” [Section 15.-02(1)(B)]; and that the “termination [of the parent-child relationship was] in the best interest of the children]” [Section 15.02(2)]. It is to be noted that the pleadings relied upon alleged Section 15.02(1)(D) [conduct which endangers the children] as a basis for termination. The findings of fact by the juvenile court indicate that it relied on Section 15.02(1)(B) [voluntarily left the children without expressing an intent to return] as a basis for termination. Such variance has not been made an issue before this court. Similarly, the failure of the Welfare Unit to allege that termination of the parent-child relationship was in the best interest of the children has not been made an issue in this case.

A preliminary matter which must be disposed of is the Welfare Unit’s motion to dismiss the appeal because of mootness. The documents in support of such motion reveal the most lamentable aspect of this case. An affidavit by the attorney of record of the Welfare Unit states that the three children were adopted on February 4, 1976 in a proceeding in Juvenile Court No. 1, Harris County. The juvenile court found that the three children had lived for at least three months in the home of the adopting parents, that the children’s relationship with the natural parents had been terminated, and that the adoption was in the best interest of the children.

The background circumstances were as follows: On March 31, 1975 the juvenile court had entered a judgment terminating the parent-child relationship. A timely motion for new trial was made by Brenda and was overruled. Brenda properly appealed to the court of civil appeals and on December 31,1975 such court delivered its opinion. Motion for rehearing was posted by United States mail on January 14, 1976 and received on January 16, 1976 by the clerk of the court of civil appeals. On January 14, 1976 copies of this motion were also mailed to the attorney for the Welfare Unit and the guardian ad litem for the children. Therefore, this motion was timely. Tex.R.Civ.P. 4, 5, 458; Smith v. Harris County-Houston Ship Chan. Nav. Dist., 160 Tex. 292, 329 S.W.2d 845 (1959). In the interim, on January 15,1976, a letter was written by the Welfare Unit to the attorney for Brenda making inquiry as to plans for appeal. On this same date, January 15, 1976, inquiry was made with the court of civil appeals by an unnamed individual connected with the Welfare Unit ascertaining that no notice of appeal had been received. The court of civil appeals thereafter entered an order overruling the motion for rehearing on January 30,1976 and application for writ of error was timely filed with the court of civil appeals on March 1, 1976. The adoption decree was entered on February 4, 1976, apparently without any further inquiry having been made relative to the finality of the judgment of the court of civil appeals. On February 4, 1976 the instant case was still being appealed and there did not exist a final determination that Brenda’s relationship with her children should be terminated. Since this fact situation requires that there exist a termination decree before a petition for the adoption of these children can be considered [Section 16.03(b)], the juvenile court exceeded its statutory authority and the adoption decree is therefore void. Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 638 (1928). As such, it cannot cause this appeal to be moot.

As stated, the variance between the pleadings relied on by the Welfare Unit, which alleged Section 15.02(1)(D) [conduct which endangers the children] as a basis for termination, and the judgment of the trial court, which relied upon Section 15.02(1)(B) [voluntarily left the children without expressing an intent to return], has not been made an issue before this court. Nevertheless, it was the burden of the Welfare Unit to prove each element of the provisions which formed the basis for the juvenile court’s judgment. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966).

The elements of Section 15.02(1)(B) are as follows: (1) Brenda voluntarily left her children; (2) without expressing an intent to return; (3) without providing for the adequate support of the children; and (4) remained away for a period of at least three months. In addition to the elements of Section 15.02(1)(B), the Welfare Unit also had to prove the element of Section 15.02(2) that termination of the parent-child relationship was in the best interest of the children. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976).

As Brenda contends that there is no evidence to sustain any of the juvenile court’s findings, this court in reviewing the evidence in the record can consider only the evidence and the inferences tending to support the findings of the juvenile court and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Since this case involves the right of children to the benefit of the home and environment which will probably best promote their interest and of the right of the parent to surround the children with proper influences, Herrera v. Herrera, supra, Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), it will be strictly scrutinized. Wiley v. Spratlan, supra.

A careful examination of the record before this court reveals no evidence that Brenda left her children without expressing an intent to return and, accordingly, the remaining no evidence points regarding the other necessary elements are not reached. Beth Stephenson, the case worker for the Welfare Unit, was the only person to testify, other than Brenda, who had personal knowledge of the events surrounding the return of the children to the Welfare Unit in November 1974. This witness, Beth Stephenson, offered no testimony which related in any way to the subject of whether or not Brenda expressed an intent to return. This witness neither testified that Brenda, through action or words, expressed an intent to return, nor that Brenda failed to express an intent to return. The only testimony which related in any way to this subject was that of Brenda, who stated that when she phoned Beth Stephenson on November 20, 1974 she did not want her children to leave the home.

In its brief the Welfare Unit notes that the amended petition upon which the case was tried contained the allegation that Brenda endangered the emotional well-being of her children [Section 15.02(1)(B)]. The Welfare Unit contends that Brenda’s failure to provide a home for the children, which forced them to live in the foster care of the Welfare Unit, endangered their emotional well-being. Applying the standard of review previously referred to, however, the record reveals no evidence of any nature that Brenda’s conduct endangered, or would endanger, the emotional well-being of the children.

As there was no evidence that Brenda left her children without expressing an intent to return, we hold that the courts below erred in finding such. We also hold there was no evidence to support the allegation that Brenda endangered the emotional well-being of her children and therefore the termination decree cannot be sustained on that ground.

The judgments of the trial court and the court of civil appeals are reversed. In view of the inadequacy of the record and the injection of the interests of other individuals as a result of the attempted adoption, the cause is remanded for a new trial in the interest of justice.

      . Section 15.02, Texas Family Code Annotated, originally enacted in 1973 was amended effective September 1, 1975. The references herein to Section 15.02 pertain to the statute enacted in 1973. Section 15.02 provided in part:
      “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      “(1) the parent has:

      “(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or

      “(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
      “(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
      “. . . and
      “(2) termination is in the best interest of the child.”

      . The following is the most accurate chronological summary of the confusing events which may be gleaned from the record:
      June 28, 1972: Children placed in custody of Harris County Child Welfare Unit.
      February 15, 1973: Temporary custody in Cause No. 27431 inadvertently dismissed.
      July 23, 1973: Petition filed requesting termination of parental rights. Cause No. 30523.
      August 27, 1973: Temporary custody awarded to Welfare Unit.
      November 13, 1973: Amended petition filed requesting termination of parental rights.
      November 13, 1973: Hearing on amended petition set for January 3, 1974.
      January 3, 1974: Hearing reset for April 3, 1974.
      April 3, 1974: Agreed order declaring children dependent and neglected; Welfare Unit appointed as managing conservator; hearing set for October 7, 1974.
      October 7, 1974: Hearing reset for November 7, 1974.
      November 7, 1974: Welfare Unit filed motion to dismiss.
      November 15, 1974: Children returned to the mother.
      November 20, 1974: Children returned to Welfare Unit at mother’s request.
      December 30, 1974: Amended petition filed requesting termination of parental rights.
      January 3, 1975: Entry of order dismissing petition pursuant to November 7, 1974 motion by the Welfare Unit.
      January 10, 1975: Motion filed to set aside dismissal order of January 3, 1975 and reinstate temporary custody order.
      January 14, 1975: Motion of January 10, 1975 granted.
      January 14, 1975: Hearing set for February 20, 1975.
      January 23, 1975: Motion filed to set aside dismissal order of January 3, 1975 and reinstate managing conservator order.
      January 30, 1975: Motion filed January 23, 1975 granted.
      February 20, 1975: Hearing reset for March 11, 1975.
      March 11, 1975: Hearing.
      March 31, 1975: Entry of court decree terminating parent-child relationship and appointing Welfare Unit as managing conservator.

      . Apparently this motion to dismiss was granted on November 7, 1974 although the order dismissing Cause No. 30523 was not signed and entered until January 3, 1975.

      . Apparently, Brenda agreed to the designation of her children as “dependent and neglected.’

      . Chapter 14, Texas Family Code Annotated, originally enacted in 1973 was amended effective September 1, 1975. The references herein to Chapter 14 pertain to the statute enacted in 1973. Section 14.02 provided in part:
      “(b) A managing conservator who is not the parent of the child has the following rights, privileges, duties, and powers, subject to the rights, privileges, duties, and powers of a possessory conservator as provided in Section 14.04 of this code and to any limitation imposed by court order in allowing access to the child:
      “(1) the right to have physical possession of the child and to establish its legal domicile; “(2) the duty of care, control, protection, moral and religious training, and reasonable discipline of the child; . .

      . The juvenile court made a finding that termination was in the best interest of the children.

      . The following is the most accurate chronological summary of the confusing events leading up to the adoption decree which can be obtained from the record:
      March 31, 1975: Juvenile court decree ordering termination.
      April 10, 1975: Motion for new trial filed for Brenda.
      April 23, 1975: Amended motion for new trial filed.
      April 24, 1975: Motion for new trial overruled.
      May 8, 1975: Notice of appeal to court of civil appeals.
      December 31, 1975: Juvenile court decree affirmed by court of civil appeals.
      January 14, 1976: Brenda’s motion for rehearing posted by United States mail to the court of civil appeals; copies of such motion also mailed to the attorney for the Welfare Unit and the guardian ad litem for the children.
      January 15, 1976: Letter from Welfare Unit to Brenda’s attorney inquiring as to plans for appeal.
      January 15, 1976: Someone representing the Welfare Unit purportedly checked with the clerk of the court of civil appeals and ascertained that no notice of appeal had been received.
      January 16, 1976: Notice of appeal received by clerk of the court of civil appeals.
      January 30, 1976: Entry of order overruling Brenda’s motion for rehearing.
      February 4, 1976: Hearing in Juvenile Court No. 1, Harris County, regarding adoption petition.
      February 4, 1976: Entry of adoption decree by Juvenile Court No. 1, Harris County.

      . Section 16.03, Texas Family Code Annotated, originally enacted in 1973, was amended effective September 1, 1975. The references herein to Section 16.03 pertain to the statute as amended in 1975. Section 16.03 provides in part:
      “(b) Except as provided in Subsection (c) of this section, no petition for adoption of a child may be considered unless there has been a decree terminating the parent-child relationship as to each living parent of the child or unless the termination proceeding is joined with the proceeding for adoption.
      “(c) If a parent is presently the spouse of the petitioner, no termination decree is required with respect to the parental rights of that parent.”

      . The juvenile court found that the children had been left with the Welfare Unit for three months; “namely, part of November, December 1975 [sic], January and part of February 1975.” A review of the record reveals no evidence of any nature regarding the exact date this purported three-month period began or ended. Therefore, it is impossible to ascertain whether the children were indeed left with the Welfare Unit for three months. However, this point is not relied on by this court in reaching a decision.


author: PER CURIAM.

text:
    FIRST STATE BANK OF CORPUS CHRISTI, Petitioner, v. Alvin NIXON et al., Respondents.
    No. B-6353.
    Supreme Court of Texas.
    Dec. 15, 1976.
    Dyer, Redford, Burnett, Wray & Wool-sey, W. N. Woolsey and H. T. Hermansen, Jr., Corpus Christi, for petitioner.

      Meredith & Donnell, Walter Clay Cooke and M. W. Meredith, Jr., Corpus Christi, for respondent.
   PER CURIAM.

This is a suit by former employees of First State Bank of Corpus Christi to recover from the Bank certain sums claimed to be owed under a deferred compensation agreement. The trial court rendered summary judgment in favor of the Bank. The Court of Civil Appeals held that the deferred compensation agreement presents a factual issue of ambiguity, and the cause was remanded for trial. 540 S.W.2d 817. The Bank has filed the only application for writ of error. We agree that the summary judgment was incorrect and, accordingly, refuse the writ, no reversible error. We do not by this action indicate an opinion as to whether the construction of the agreement requires the resolution of an issue of fact.