text:
    Sheila Diane CAMP, Appellant, v. Dewayne CAMP et al., Appellees.
    No. 18164.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 29, 1979.
    Rehearing Denied Dec. 27, 1979.

      West Texas Legal Services, and Geoffrey M. Gay, Fort Worth, for appellant.
    Nichols & Thompson, and Larry M. Thompson, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

From a judgment nihil dicit in a suit for divorce by appellee Dewayne Camp, wherein intervenors who were the paternal grandparents of the Camp’s minor child sought and obtained custody, appellant/defendant timely moved for new trial. Hearing thereon was beyond the time within which there is provided to be a “presentment” of such a motion for new trial. The trial court refused to permit introduction of evidence. The motion for new trial was overruled and appeal was brought to this court.

We affirm.

One question presented by the appeal is whether the trial court erred in overruling the motion for new trial. Another .question relates to authority of the trial court to grant custody of the minor child to the paternal grandparents. The plaintiff/appellee husband, having been a member of the United States armed forces, and as such accumulating retirement and pension benefits conditioned upon sufficient length of service to become entitled thereto, error is charged to the trial court’s failure to consider the community interest in future benefits. The last complaint is without merit for the judgment, in the partition of existent property in such benefits gave them to the husband and divested the wife of any interest; and, of course, the wife would not be entitled to any interest in benefits to be accumulated after the date of the divorce.

On the question of error in overruling the motion for new trial, the Supreme Court, in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), where the form of judgment was nihil dicit in that answer had been filed, cited the correct rule to be stated by its prior opinion in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939) in that the same rule would apply, as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

There was never an amendment of the motion for new trial. That motion averred that the failure to appear at trial was not intentional nor the result of conscious indifference, but due to duress and the fact that defendant had no specific information as to the trial date. The record made on the trial of the merits was sufficient to defeat the claim of want of notice of trial date. Anyway the motion itself was neither signed by the movant nor accompanied by her affidavit. There was an affidavit by defendant’s attorney of record, but the only “verification” was by his statement that' “the facts and allegations contained in the Motion for New Trial are true and correct to the best of my belief.” Such an affidavit is insufficient to present allegations • necessary to be verified. If the allegations could be considered to qualify to do so there was not timely proffer of evidence in support, as will be hereinafter discussed.

Furthermore, there would not be error in refusing a new trial because there was no allegation or demonstration that the granting of a new trial, with consequent delay and additional expense to plaintiff, would not work an inequitable injury to the defendant’s adversaries—which injury if any, was one which defendant did not seek to mitigate by diligence in filing her motion and getting it up for hearing, nor by tendering to plaintiff or intervenors their expenses incurred in connection with the first trial. Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.—Galveston 1956, no writ); United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex.1975). See discussion of these cases and others in this court’s opinion in Crabbe v. Hord, 536 S.W.2d 409, 413 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.), cert. den. 430 U.S. 932, 97 S.Ct. 1554, 51 L.Ed.2d 776 (1977), and Mitchell v. Webb, Docket No. 18209 (Tex.Civ.App.—Fort Worth, October 25, 1979) (not yet reported).

At the hearing there appears to have been the desire of attorney for defendant to present some form of documentary evidence. Admission of the evidence was denied by the court. We do not know that of which such evidence consisted, at least from the record, for no bill of exceptions was developed to preserve the error contended so that this court could see what the evidence was that was desired to be introduced. By reason of this the defendant must be held to have waived any right to claim error because of the exclusion of evidence for want of a perfected bill of exception.

Furthermore, there would not be error in overruling the motion which would require reversal of the judgment of the trial court because it was not “presented” within the thirty (30) day period following the date on which defendant’s motion for new trial had been filed. It was not until November 20th, 1978 more than thirty (30) days thereafter that the motion was “heard”. Tex.R.Civ.P. 329b, “District and County Court Cases” prescribes relative to motions for new trial (at its section 4) that:

“It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. ... In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruled by operation of law forty-five (45) days after the same if filed, unless disposed of by an order rendered on or before said date. . . .” (Emphasis supplied.)

In 1951 the Rule, of which Rule 329b became the successor, was embodied in Rule 330(j). In general the provisions by the Rule were the same,.except formerly there was no provision by the words we have emphasized in copying from Rule 329b. In other words there was in Rule 330(j) an absence of the‘provision that “the district judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto”: and because of this there was no provision that the triál court had any discretion to “consider” the motion for new trial where not “presented” within the 30 days provided by rule. In 1951 there was no provision that the trial court had any discretion to hear evidence after the 30 days for its “presentment”; now there is such discretion by Rule 329b. Formerly, if there was evidence introduced in support of a motion for new trial after the time provided for “presentment” it could not be treated as supplying reason for reversal where there had not been a timely “presentment”; now it can be if the trial court will admit it.

The best explanation we have observed is found in Texas Livestock Marketing Ass'n. v. Rogers, 244 S.W.2d 859, 863 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.), from which we copy:

“Unless Rule 330(j) (now 329b) is construed as requiring that all preliminary matters such as the introduction of evidence be gotten out of the way and completed within the thirty-day period, then the very purpose of the rule will fail and there will be great delay in passing upon motions for new trial by trial courts. Under the facts in this case, the testimony offered on the seventh day after the presentment of the amended motion for a new trial came too late and cannot be considered by us.”

(In the above case the date of presentment was within 30 days but date evidence heard was after expiration of 30 days.)

Affirmance of the trial court’s judgment is the proper order unless it be that reversible error is presented by defendant’s third point of error, reading as follows:

“The trial court erred in that neither the Court nor the Petitioner nor Interve-nors complied with Section 14.08 of' the Texas Family Code.”

The assignment of error in defendant’s Motion for New Trial in the trial court read, as follows:

“The Trial Court erred in granting in-tervenors’ managing conservatorship over the child SHAWN LEE CAMP, in that there was a pre-existing and valid court order from the State of South Carolina wherein Respondent was given custody over her minor child, SHAWN LEE CAMP. The South Carolina decree is res judicata as to the parties in this case, and irrespective of the correctness of the South Carolina decree, it is nonetheless binding on the parties in this case until set aside in a proper proceeding in South Carolina instituted for that purpose.”

The interest of the State of South Carolina, if any, is not necessarily important. Nowhere was there shown that any custodial right pertaining to the child had actually been adjudicated by a South Carolina decree, or even the existence of any such decree, either by evidence of the defendant (who was not even present) or by any properly verified representation of the existence of such evidence. Of importance to any necessary determination would only be the petition of plaintiff upon which the case proceeded to trial, other instruments brought forward in the transcript, and the evidence adduced upon trial.

There having been nothing shown or requested relative to state of the law in any foreign state, if some antecedent action had in fact been taken by some court in South Carolina the presumption would be that it was by law identical to that of Texas. There is no question but that it would have been within the prior year. (By plaintiff’s pleadings the minor child in question was born November 9, 1977. The case was called and proceeded to trial on September 11, 1978, a date of which the child would have been only slightly over the age of 10 months.) By the petitions of the plaintiff and intervenors there was allegation, as of the time they were filed, that the minor child in question was a ward of the State of South Carolina. By the evidence introduced on trial leading to the judgment nihil dicit South Carolina authorities had delivered the possession of the child to interve-nors sometime prior thereto, either in their individual capacities or as agents for the plaintiff father.

The intervenors alleged, though the plaintiff did not, that “[n]o other Court has continuing jurisdiction in this matter.” In-tervenors also plead that “[t]he names and addresses of the persons entitled to notice in this cause are as follows: . . . Social Services, Charleston, Charleston County, South Carolina, Attn: Mrs. Powell.” Their prayer included request that citation and notice be issued to all persons named above, etc., which included Social Services at Charleston. The transcript brought forward by defendant for purposes of the appeal did not include anything relative to citation or notices or return thereof. Not included in the transcript is any request made by defendant relative to what should be included. Under these circumstances the presumption is that there had been proper issuance and return of all citations and notices including that to the named agency in South Carolina. Tex.R.Civ.P. 376-a, “Form of Transcript”, which includes the “Supreme Court Order Relating to Preparation of Transcript”.

Tex.Family Code Ann. § 14.08, (1975) “Modification of Order”, provides in part that where there has been a former decree of appointment of a conservator of a minor child, and the motion before the court is filed for the purpose of changing the designation of managing conservator and is filed within one year after the date of issuance of the order or decree to be modified, there should be attached to the motion an affidavit executed by the person making the motion showing one or more of the circumstances prescribed thereby. One of these is that the change or modification of physical custody is in the best interest of the child, with supportive facts. While supportive facts were not in the affidavit making the representation relative to the best interest of the child, there were supportive facts applicable to the material times proved at the trial. We hold there to have been compliance with the law. There was satisfaction of the provisions of Sec. 14.08 because no exception was taken to the in-tervenors’ pleadings or affidavit prior to or upon trial and the requisite facts which should have been included in the affidavit were proved. (To be remembered is that necessity of any of this was not apparent in the state of the record in this case.)

If the fact that the minor child had become the ward of the State of South Carolina by what plaintiff contends to have been pursuant to an adjudication amounting to a decree which established managing conservatorship, there would, nevertheless, have been shown that there was appropriate jurisdiction of the trial court to entertain the whole case and to render the judgment it did render. In so holding we have considered defendant’s cited case of Brown v. Brown, 555 S.W.2d 784 (Tex.Civ.App.—El Paso 1977, no writ), relating to provision of Tex.Family Code Ann. § 11.071, (1975) “Identification of Court of Continuing Jurisdiction”. We do not deem the El Paso court’s decision to affect our own holding under the facts of this case.

All points of error presented have been severally considered. All of them are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Morris CANNAN, Appellant, v. Stewart VARN, d/b/a Varn Petroleum Company, Appellee.
    No. 1400.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1979.
    Rehearing Denied Dec. 20, 1979.

      Frederick R. Zlotucha, (on appeal only), Hernden, Brown & Campion, San Antonio, for appellant.
    Toufic Nicolas, Nicolas & Morris, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This appeal arose from two separate causes of action. The plaintiff alleged that the defendant breached an oil and gas drilling contract. The defendant then alleged a counterclaim which asserts that the plaintiff misrepresented material facts about the productive capability of a separate oil and gas venture in violation of the Federal Securities Act of 1933. Stewart Varn, d/b/a Varn Petroleum Company was plaintiff below and Morris Cannan was. defendant. Based upon a jury verdict the trial court rendered judgment in favor of the plaintiff for $30,658.71 plus interest and costs against the defendant. Defendant Cannan appeals. We affirm.

Varn filed suit against Cannan for breach of a letter of agreement which purported to create contractual obligations by Cannan to drill an oil and gas well in Nueces County. Cannan answered that Varn prevented the performance of the contract and therefore he should be excused from performance.

Cannan also alleged that there was a failure of consideration regarding the Nuec-es County well (Flinn No. 1) in that part of the consideration for the drilling contract was the participation by Cannan in another drilling venture in Matagorda County (Newman Well No. 1) arranged by Varn. This well produced no oil or gas. Cannan claims that information regarding the Newman well was misrepresented to him by Varn and that he never would have participated in this venture if he had known the true facts. According to Cannan this misrepresentation when viewed as a part of a letter of agreement amounts to a failure of consideration.

Appellant Cannan also filed a counterclaim which related principally to the second transaction between the parties, that involving the exploration of Newman No. 1. Cannan alleged the misrepresentation of material facts which occurred when Varn presented the offer to participate to Can-nan. In the alternative, Cannan alleged a violation of the securities regulations in that his participation in the venture was obtained by untrue statements of material facts or an omission to state material facts.

A brief summary of the facts is as follows. The parties entered into a letter of agreement on December 22, 1974, for the drilling of Flinn No. 1, performance to be “on or about January 15,1975, weather and other conditions beyond our (Cannan’s) control permitting.” On December 23, 1974, Varn paid Cannan in advance for costs in the amount of $48,350.00. Varn’s witnesses at the trial said that Cannan was well aware of the need to drill this well as soon as possible in 1975 in order for Varn to receive intangible drilling cost deductions on the appellee’s 1974 income tax return. As of February 27, 1975, drilling had not been commenced, although Varn had allegedly contacted Cannan or his agent some forty-five times requesting immediate performance. Cannan claimed that due to inclement weather conditions, a shortage of men, and a lack of equipment, he could not begin drilling on or ábout January 15,1975. Varn contended that he had no other choice but to move Cannan’s equipment off the well site and to employ another drilling company to drill the Flinn No. 1.

Newman No. 1 was a transaction involving the exploration of a previously explored drilling endeavor. Based on geological reports, well logs, and other information, Varn believed that the well contained a large reservoir of natural gas and a pool of oil which were not exploited earlier due to high costs. Varn offered a Vs working interest in the well to Cannan who, after reviewing all the data, accepted participation and paid $20,000.00 therefor.

Drilling for oil began on Newman No. 1 but was stopped when the strata was discovered to be cut by a fault. This foreclosed the possibility of the production of oil. Exploration for gas was also thwarted when drilling reports from a previous driller were found which showed a prior perforation of the area believed to contain natural gas. The report had never been filed with the Texas Railroad Commission, whose reports should reflect all drilling information on wells.

The trial on the original claim of breach and the counterclaim for misrepresentation went to the jury on three special issues. The first special issue asked about performance “on or about January 15, 1975”; the second special issue inquired whether any misrepresentation or omission of a material fact had occurred relative to Newman No. 1; and the third special issue concerned damages for the misrepresentation relative to the Newman No. 1. The jury answered all issues favorably to Varn, and a judgment was so entered against Cannan.

Appellant brings forward 17 points of error. Points 1 through 7 concern misrepresentation about the Newman No. 1. Points 8 through 17 concern the drilling contract breach regarding the Flinn No. 1.

The basic contention of appellant raised by points of error 1, 2, 4 and 5 is that appellant was entitled to judgment as a matter of law due to the failure of appellee to register the oil and gas offering as a security under the Securities Act of 1933. The Securities Act of 1933 requires any person who sells securities [as defined under 15 U.S.C.A. § 77b(l)] through the mail or by any means of communication in interstate commerce to file a registration of those securities with the Commission. 15 U.S. C.A. § 77e. On its face, appellant’s contention appears to be a valid one. Appellee did sell by mail an oil and gas interest which appears to qualify as a security. 15 U.S. C.A. § 77b(l). In order to recover under these sections of the Securities Act of 1933, however, the appellant must first meet the procedural requirements of alleging a cause of action in his pleadings under Rules 45 and 47, T.R.C.P.

In reviewing the Second Amended Answer and Counterclaim (in particular, the Counterclaim), we notice that appellant makes two claims. First, appellant claims that appellee misrepresented information concerning the Matagorda County well (Newman No. 1) to his damage. In the alternative, appellant claims relief based on either the fraudulent misrepresentation or omission of material facts as to the potential success of the Newman No. 1 in violation of 15 U.S.C.A. § 77q.

The Counterclaim does not set out a cause of action based on a violation of 15 U.S.C.A. §§ 77e and 77f; i. e., the failure to register the oil and gas interest as a security. Appellant cannot on appeal raise a new cause of action and expect this reviewing court to grant him relief on a new and independent cause of action -that never has been pled. See Rule 301, T.R.C.P.

Nor was a cause of action about failure to register the oil and gas interest as a security tried by implied consent under Rule 67, T.R.C.P. On several occasions at the trial appellant’s counsel did attempt to raise the registration issue in cross-examination. On every occasion, however, counsel for the appellee objected to the introduction of testimony that was not evidence supporting a cause of action set forth in Defendant’s Second Amended Answer and Counterclaim.

Rule 67 permits the trial of certain issues by the court even though they are not set out in the pleadings. Barry v. Patterson, 225 S.W.2d 864, 869 (Tex.Civ.App.—Fort Worth 1949, no writ). But if objection is made to the introduction of such evidence not supported by the pleadings, then there can be no trial by consent. Shaw v. Tyler Bank & Trust Company, 285 S.W.2d 782, 790 (Tex.Civ.App.—Texarkana 1955, writ ref’d n. r. e.). Such is the situation in the case here. All efforts to try by consent the cause of action for failure to register securities failed because proper objection was • made at the trial. Appellants points 1, 2, 4 and 5 are overruled.

In points 3 and 6 the appellant attacks the judgment on the grounds that there was a violation of the security regulations due to the misrepresentation and/or omission of a material fact which would entitle the appellant to a judgment as a matter of law. In point of error 3 appellant alleges that he was not given all the facts about the oil and gas interest and that the information he did receive was misrepresented. Rescission, according to the appellant, is the required remedy. In point of error 6 appellant argues that he is also entitled to damages because of the misrepresentation and/or omission and the breach of the ap-pellee’s duty to reasonably examine the information to determine its accuracy.

In order to resolve these points, we must determine whether the evidence is legally sufficient to sustain that part of the jury verdict pertinent to the appellant’s complaints. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Appellee Varn approached the appellant, a man who had been in the oil and gas business for many years, with an offer to participate in a joint oil and gas venture. The venture appeared to Varn to have many financial benefits. The geological data, well logs,, and other information all indicated the presence of a vast reservoir of natural gas and the possibility of . an oil pool. Most of this favorable data was compiled when the well was previously drilled by another company. At that time it was economically unfeasible to have further explored the well in order to determine its reservoirs.

After evaluating all the available data, appellee decided that there was a good possibility for return on the investment. Ap-pellee then supplied the appellant with all the data upon which the appellee had made his decision. At that point, appellant agreed to participate.

After the drilling commenced, the drilling was cut by a surprise fault at the level where the oil pool should have been. The exploration for the natural gas also proved to be futile. Appellee learned that the company who had drilled before had perforated the sands at various levels. This information had not been recorded on any report filed with the Texas Railroad Commission. The previous perforation of the sands meant that there was little or no natural gas to be extracted in this venture.

The question of whether appellee Varn gave all the material facts or misrepresented any of the information concerning the well was squarely put before the jury by Special Issue No. 2. The jury refused to find that the appellee gave false information to Cannan or concealed any material information from him. In reviewing the evidence, we find that there is ample evidence to support the jury’s answer. Appellant’s points 3 and 6 are overruled.

Appellant’s point 7 complains of the submission of a question of law to the jury in Special Issue No. 2 regarding the offer and sale of a security interest. It is important to note that no objection about this special issue was made to the trial court by the appellant before the submission of the charge to the jury. Nor was a proposed issue on the question of the violation of securities law tendered to the court. Under Rule 279, T.R.C.P., the party who has the burden of proof in the case should tender to the court a substantially correct proposed issue.

But, the issue of whether the offering should have been registered never was put before the trial court by the pleadings. No issue on that cause of action could have been submitted by the trial court properly.

Special Issue No. 2 that the trial court did submit embodied the controlling issue in the counterclaim, that of whether the appellee made false representations or concealed material information about the well with the intent to obtain appellant’s participation in the venture. This special issue correctly embodies 15 U.S.C.A. § 77q(a)(2), which is the cause of action alternatively set forth in the pleadings. Appellant’s point 7 is overruled.

All of which brings us to appellant’s remaining ten points of error which assert mistakes by the trial court involving the suit brought by the appellee for breach of contract concerning the Flinn No. 1. One special issue was submitted to the jury in order to determine whether a breach of performance occurred. Appellant at the time of trial made several objections to this special issue and proposed his own special issue in its place, which submission was denied by the' trial court. Appellant’s points 8 through 17 apply to the submitted special issue and the requested special issue.

Points 8 and 9 are based on the proposition that the jury should have had the opportunity to decide whether appellee Varn wrongfully prevented the performance of the contract by moving Cannan’s drilling equipment off the Flinn lease. The trial court correctly refused to grant appellant a take nothing judgment in this regard and correctly refused to submit an issue which raised this question separately. The proper question before the jury was whether appellant breached the contract by not performing “on or about January 15, 1975”; the question was not whether appellee breached the contract by moving the equipment off the Flinn lease. Points 8 and 9 are overruled.

Point 10 is a “no evidence” point. Applying the rules in accordance with Garza v. Alviar, supra, we have reviewed the record and we hold that the evidence is legally sufficient to support the jury’s answer to Special Issue No. 1. A summary of that evidence has been heretofore set out by us in this opinion. Point 10 is overruled.

Points 11 and 12 raise the contention that evidence was lacking to establish that time was of the essence in the performance of the drilling contract. We have held that normally time is not of the essence unless the parties expressly contract that it is or the subject matter, purpose, or circumstances surrounding the contract so dictate. Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

The contract was somewhat ambiguous in that regard in that the time for performance was specified as “on or about January 15, 1975, weather and other conditions beyond our control permitting.” The trial court was therefore correct in submitting the question of time of performance in the form of reasonable time of performance dependent upon circumstances surrounding the case. Houston County v. Leo L. Landauer & Associates, Inc., 424 S.W.2d 458 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). Points 11 and 12 are overruled.

Appellant in point 13 argues that the jury should have considered the circumstances surrounding both the “making" and the “performance” of the agreement. The trial court’s instruction to Special Issue No. 1 used the words “weather and conditions that would permit a reasonably prudent drilling contractor to perform under the same or similar circumstances.” This instruction clearly directs the jury to consider circumstances surrounding the performance of the agreement. Point 13 is overruled.

Appellant’s point 14 complains that Special Issue No. 1 did not submit a controlling issue, and point 16 complains of the trial court’s failure to submit appellant’s proposed controlling issue. The ultimate issue to be decided by the jury in this case was whether a breach of the drilling contract occurred on or about January 15, 1975. This is the identical issue that was broadly submitted to the jury in Special Issue No. 1, and was therefore proper.

Rule 277, T.R.C.P., permits the trial court to submit broad special issues to the jury. State v. Norris, 550 S.W.2d 386 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). The reviewing court will not reverse a judgment solely on the grounds that a special issue is general or multifarious. Shasteen v. Mid-Continent Refrigerator Co., 517 S.W.2d 437 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). Even though the trial court may have included other facts in Special Issue No. 1, there remains only one controlling issue, that of whether a breach occurred on or about January 15,1975. See Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656, 666 (Tex.Civ.App.—Amarillo 1975, no writ). Points 14 and 16 are overruled.

There was no objection made before the submission of Special Issue No. 1 on the grounds that the issue “failed to present an appropriate and proper chronological reference regarding the permissible period of performance” as outlined in point of error 15. If counsel does not raise the objection at the time of trial, he cannot successfully raise the point as error on appeal. Rules 272 and 274, T.R.C.P. Appellant’s point 15 is overruled.

In point of error 17 appellant complains that Special Issue No. 1 requires the jury to construe the contract and to determine a question of law. The jury was not presented with the construction of the contract but rather the ascertainment of whether there was a breach of the contract on or about January 15, 1975. The contract, even though allowing for some variation, was clear in that it did specify the time for performance. The jury’s duty was to decide the factual question whether performance occurred within that time. Appellant’s point 17 is overruled.

The judgment of the trial court is affirmed.

NYE, C. J., not participating.

      . “Special Issue No. 2
      Do you find from a preponderance of the evidence that, prior to Cannan’s agreeing to buy a ‘/eth working interest in the Newman No. 1 well in Matagorda County, the representative of Vam Petroleum made false representations to Morris Cannan as to material facts or geological information or concealed material information about said well with the intent of obtaining his agreement to buy such interest?
      Answer ‘Yes’ or ‘No’.
      Answer: No ”

      . “Section 77q. Fraudulent interstate transactions
      (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
      * * *>>
      “(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or * * *»*

      .“Special Issue No. 1
      Do you find from a preponderance of the evidence that Morris Cannan failed to provide the drilling of the Flinn No. 1 well and furnishing its equipment ‘on or about January 15, 1975, weather and other conditions beyond our control permitting,’ as provided in his letter agreement with Vam Petroleum Company dated December 20, 1974?
      Answer Yes or No.
      Answer: Yes
      In reaching your answer to the preceding Special Issue you are to determine the intention of the parties from the words used, and the circumstances surrounding -the making of the agreement.
      ■ You are further instructed in answering Special Issue No. 1 that the phrase ‘weather and other conditions beyond our control permitting’ as used in the letter agreement of December 20, 1974, means weather and conditions that would permit a reasonably prudent drilling contractor to perform under the same or similar circumstances.”

      . “Requested Special Issue No. 1
      Do you find from a preponderance of the evidence that Morris Cannan did those reasonably necessary acts to drill the Flynn.No. 1 well subject to weather and other conditions beyond his control permitting until such undertaking was stopped by Stewart Vam?
      Answer ‘Yes’ or ‘No’.
      We, the jury, answer:-”


author: NYE, Chief Justice.

text:
    EAGLE LIFE INSURANCE COMPANY, Appellant, v. Geraldine A. SPENCER, Appellee.
    No. 1560.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1979.

      Charles M. Jefferson, Davis, Smith & Davis, San Antonio, for appellant.
    Thomas D. McDowell, Howard & McDowell, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a plea of privilege case. Geraldine A. Spencer filed suit in Nueces County, the county of her residence, against Eagle Life Insurance Company (Eagle Life) to recover the proceeds of a credit life insurance policy which insured the life of her deceased husband. Eagle Life filed a plea of privilege to be sued in Bexar County, the county of its corporate residence. Plaintiff filed a controverting plea, alleging that venue was properly maintainable in Nueces County pursuant to Subdivisions 23 and 28 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964). After a hearing, the trial judge entered an order overruling the plea of privilege. Eagle Life appeals.

The sole point of error on Appeal relates to the applicability of Subdivision 28 which provides, in relevant part, as follows:

“Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company ... in the county . . . where the policyholder or beneficiary instituting such case resides.”

In order to sustain venue in the county of suit under the above provisions of Subsection 28, it was incumbent upon the plaintiff to plead and prove: 1) that she is a policyholder; 2) that she resides in Nueces County; 3) that she is suing on an insurance policy; and 4) that the defendant (Eagle Life) is an insurance company within one of the classifications mentioned in Subdivision 28. National Life Ins. Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943); Southern Farm Bureau Casualty Insurance Co. v. Powell, 414 S.W.2d 770 (Tex.Civ.App.—Corpus Christi 1967, no writ). See Collins v. F. M. Equipment Co., 162 Tex. 343, 347 S.W.2d 575, 577 (1961).

The record shows, and Eagle Life conceded during oral argument, that plaintiff properly pled and proved the first three Subdivision 28 venue facts mentioned above.

Eagle Life contends, in a very narrow point of error, that the trial court erred in overruling its plea of privilege because plaintiff did not sufficiently plead that Eagle Life was that type of insurance company within the meaning of Subdivision 28 so as to admit evidence of this venue fact into the record. The plaintiff answers this argument contending that her original petition was sufficient when taken as a whole, absent the filing of an exception by the defendant insurance company. Although plaintiff did not use the magic words that Eagle Life was that type of insurance company specifically named in Subdivision 28 of the venue statute, there can be no doubt that Eagle Life is that type of company because the general allegations so state and a copy of the insurance policy in question was attached to the pleadings and incorporated by reference in her controverting affidavit. Rule 59 states that when an exhibit such as the policy of insurance in question has been attached to the pleading, such pleading shall not be deemed defective because of any allegation which can be supplied from said exhibit. Plaintiff also says that Eagle Life has waived any objection it may have had concerning the sufficiency of the pleadings by failing to file an exception pursuant to Rules 90 and 93. We agree with plaintiff’s contentions.

No issue is before us questioning the formalities of verification or the manner in which the original petition and exhibits were incorporated into the controverting affidavit. The relevant substance of plaintiff’s original petition and controverting affidavit alleged: that the plaintiff is the surviving wife of Frederick G. Spencer, deceased, who died in Nueces County on December 15, 1978; that the plaintiff and her deceased husband entered into a Mobile Home Installment Sales Contract and Security Agreement with Mission Mobile Homes, Inc., for the purchase of a mobile home; the purchase was financed through the Broadway National Bank of San Antonio for a deferred payment price of $42,-685.60; the contract called for credit life insurance on the life of the deceased husband; the premium in the amount of $750.00 was paid in advance by the bank to the insurance company for the benefit of the plaintiff. In addition, plaintiff pled that Eagle Life is “a domestic insurance corporation”; that, pursuant to a specified credit transaction, Eagle Life had issued its credit life policy (No. A0088) insuring the life of Fred G. Spencer, plaintiff’s deceased husband; and that Eagle Life had refused to pay the proceeds of the credit life policy to the creditor beneficiary. Plaintiff’s controverting affidavit also alleged that Eagle Life was a “domestic private corporation.”

A copy of the mobile home installment sales contract, security agreement and disclosure statement executed in conjunction with the credit transaction, and a copy of the credit life insurance policy were attached to the original petition and incorporated into the controverting affidavit by reference. The disclosure statement contained a statement to the effect that, although credit life and health and accident insurance were not required, both types of insurance were available. The disclosure form was marked to indicate that credit life insurance was desired and was purchased by the deceased husband and the plaintiff. The attached copy of the credit life insurance policy clearly identified the defendant, Eagle Life Insurance Company, as the insurer which “hereby insures the life . of the above named Debtor against Death or Disability . . . ■” The policy shows that only the life insurance afforded by the policy was issued in this case. The policy, however, clearly shows that Eagle Life does issue accident and health insurance as well as life insurance.

We are of the opinion that the substance and the effect of plaintiff’s allegations in her pleadings were sufficient so as to authorize the introduction into evidence of the certificate that proved conclusively that Eagle Life was a life, accident and health insurance company within the meaning of Subdivision 28. These allegations and the references contained in the life insurance policy in question allege facts which bring Eagle Life within the statutory definition of a life and accident and health insurance company. See Tex.Ins.Code art. 3.01 §§ 1-3 (1963). See also 1 McDonald, § 4.49, pp. 597-602 (1965); Leonard v. Maxwell, 365 S.W.2d 340 (Tex.1963); Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688 (Tex.1943); United States Furniture Corp. v. Twilite Mobile Homes Mfg. Co., 355 S.W.2d 851 (Tex.Civ.App.—Dallas 1962, no writ); Rule 59, Texas Rules of Civil Procedure.

Other courts have held that similar factual allegations are sufficient to authorize a trial court to hear and receive evidence as to whether the defendant insurance company was one of the types of insurance companies mentioned in Section 28. The policy of insurance issued by the appellant to the deceased and the plaintiff was introduced into evidence without objection. We hold that this proof was sufficient under Subdivision 28. These- same cases, hereinafter cited, have determined that an insurance policy which, was introduced into evidence was some evidence as to the type of insurance company involved. See Republic Bankers Life Ins. Co. v. Hubbard, 424 S.W. 519 (Tex.Civ.App.—Amarillo 1968, no writ); American Automobile Insurance Co. v. Parker, 415 S.W.2d 447 (Tex.Civ.App.—Waco 1967, no writ); Group Hospital Service, Inc. v. Bass, 252 S.W.2d 507 (Tex.Civ.App.—Beaumont 1952, writ dism’d); Continental County Mutual Ins. Co. v. Mattox, 232 S.W.2d 894 (Tex.Civ.App.—Beaumont 1950, no writ). The cases cited by Eagle Life are clearly distinguishable. See Employers National Insurance Co. v. Harkness, 497 S.W.2d 645 (Tex.Civ.App.—El Paso), writ ref’d n. r. e., 502 S.W.2d 670 (Tex.1973); Pan American Insurance Co. v. White, 321 S.W.2d 337 (Tex.Civ.App.—Dallas 1959, no writ). Appellants’ point of error number three is overruled.

The plaintiff has filed a motion to affirm the judgment with damages caused by the delay of this appeal pursuant to Rule 438, T.R.C.P. We note that, in addition to Rule 438, Rule 435 states that: “[t]he appellate court may, in its discretion, include in the judgment or decree such damages, not exceeding ten per cent on the amount of the original judgment, as it may deem proper.” Some courts have indicated that the imposition of damages under Rule 435 is discretionary, whereas under Rule 438, it is mandatory when the court finds that the appeal was taken for delay and without sufficient cause. Charter Oak Fire Insurance Company v. Adams, 488 S.W.2d 548 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); and cases cited.

The facts of the parent lawsuit give cause for concern if delay was purposely perpetrated. The outstanding balance of the plaintiff’s installment contract in question is approximately $39,000.00. The policy of insurance was $20,000.00, the approximate amount of the cash purchase price of the mobile home. The contract calls for the plaintiff to continue to make the monthly installment payments of $281.15, even though her husband died on December 15, 1978. Although the plaintiff seeks statutory damages from the insurance company in her original petition, such damages (12%), were set originally by the legislature in 1909 when interest rates were only about ½ of present rates (prime 15% plus). The present installment contract calls for finance charges in the total aggregate of $19,177.06, which amounts to an excess of 12% annual interest.

The legal rate of interest, 6% or 9% (pre-judgment interest), the statutory post-judgment interest rate (9%), and the statutory penalties (10 — 12%) are far below the going prime interest rate. It is conceivable that it is now profitable for some institutions, in some cases, to refuse to pay just debts or judgments and/or to delay an appeal as long as possible under present conditions. We believe that our legislature would be justified in taking a look at all of such interest rates and penalties as they now exist for possible change.

It is common knowledge that some parties file pleas of privilege and appeal the rulings thereon for purposes of delay. This type of conduct contravenes the purpose behind the time-honored theme that “every defendant is entitled to be sued in his home county because it is a very valuable right that needs protection.” Although this particular appeal may have been taken for delay, we do not believe that under the present Rule 435 or 438, it is appropriate to assess damages in a plea of privilege case because of its procedural interlocutory nature. We therefore affirm the trial court’s judgment without delay.

      . Although two of the three points of error contained in Eagle Life’s appellate brief concern the applicability of Subdivision 23, the record shows that the plaintiff had abandoned this Subdivision during the venue hearing. During oral arguments before this Court, the attomey for Eagle Life admitted Subdivision 23 had been waived and did not explain why his first two points of error concerned Subdivision 23. He urged us to consider only the remaining point of error concerning the applicability of Subdivision 28.

      . RULE 438. AFFIRMANCE WITH DAMAGES FOR DELAY
      Where the court shall find that an appeal or writ of error has been taken for delay and that there was no sufficient cause for taking such appeal, then the appellant, if he be the defendant in the court below, shall pay ten per cent on the amount in dispute as damages, together with the judgment and interest and costs of suit thereon accruing.

      .Present Tex.Ins.Code art. 3.62 [1963] was based on art. 4736, R.S.1925 in acts 1909; R.S. 1911, art. 4746 was amended by acts 1931, without change of interest rate.

      .See Allstate Ins. Co. v. Chance, Tex., 590 S.W.2d 703 (1979); Maxey v. Texas Commerce Bank of Lubbock, Texas, 571 S.W.2d 39 (Tex.Civ.App.—Beaumont), writ ref'd n.r.e., 580 S.W.2d 340, 341 (Tex.1979) (per curiam).


author: McKAY, Justice.

text:
    Lola Faye HENDERSON et al., Appellants, v. Lucy SIMS et al., Appellees.
    No. 1293.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 29, 1979.

      Gus E. Meriwether, Sallas & Meriwether, Crockett, for appellants.
    R. C. von Doenhoff, Carter, Gordon & von Doenhoff, Crockett, for appellees.
   McKAY, Justice.

This is a will contest.

Lola Faye Henderson and James Ray Sims, appellants, children of the first marriage of J. 0. Sims, deceased, brought suit against Lucy Sims, surviving wife of J. 0. Sims, and Jack E. Sims and Mollie Mae Allen, children of the second marriage, ap-pellees, alleging that the last will and testament of J. 0. Sims was procured by undue influence. Trial was had before a jury which found there was undue influence. Appellees motion for judgment non obstan-te veredicto was granted by the trial court, and appellants bring this appeal.

The will was the joint will of J. 0. Sims and Lucy Sims which devised to the surviv- or all of the estate, personal and mixed, separate, real or community of the first to die in full fee simple title. There was also a provision that read:

“In making this will in favor of each other as beneficiaries, we are not unmindful of the welfare of our children, but each having implicit confidence in the other, is content to leave the good judgment of the survivor, the matter and terms of proper provision for our children, out of the estate.”

Another section provided that if the testators died simultaneously or in a common accident then all of the property of either or both of them would pass and vest in their children, Jack E. Sims and Mollie Mae Allen, share and share alike.

' Appellants bring one point of error in which they maintain that the trial court erred in granting appellees’ motion for judgment n. o. v. because there was ample evidence to support the jury’s findings. In order to sustain the action of the trial court in granting a motion for judgment n. o. v. there must be a determination that there was no evidence having probative force upon which the jury could have made the findings relied on. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). In passing upon appellants’ point the evidence must be considered in a light most favorable to the jury’s finding, considering the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary. Burt v. Lochausen, supra; Leyva v. Pacheco, supra; Grundmeyer v. McFadin, 537 S.W.2d 764, 767-8 (Tex.Civ.App.-Tyler 1976, writ ref’d n. r. e.). A judgment notwithstanding a jury verdict can only be upheld on appeal when a directed verdict would have been proper. Rule 301, T.R.C.P.; Grundmeyer v. McFadin, supra.

It has been said that it is impossible to frame a definition of undue influence which embraces all forms and phases of the terms, or to lay down any hard and fast rule which would accurately control the question whether a given record contains affirmative evidence of undue influence. Each case is different from every other, and it must depend upon its own facts, circumstances and conditions. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1035 (1939); Price v. Taliaferro, 254 S.W.2d 157, 159 (Tex.Civ.App.-Fort Worth 1952, writ ref’d n. r. e.).

Appellants concede that the record here does not contain any direct evidence of the fact of undue influence; however, such fact may be established by circumstantial evidence. Long v. Long, supra; Pearce v. Cross, 414 S.W.2d 457 (Tex.1966). The contestant, appellants here, had the burden to prove undue influence, and by their one point the only question is whether there is in the record evidence of probative force which supports a jury finding that the will of J. 0. Sims was procured by undue influence.

There was no objection to the definition of undue influence given by the trial court —“such influence or dominion by excessive importunities, imposition or fraud, exercised at the time of the making of said instrument, as destroys the free agency of the testator and overcomes his wishes in regard to the disposition of his property to such an extent that the instrument does in fact express his wishes as to the disposition of his property, but those of the person exercising such influence.”

Appellants cite Craycroft v. Crawford, 285 S.W. 275 (Tex.Comm’n.App. 1926, jdmt. adopted, holding approved) as authority that the record here is sufficient to raise the issue of undue influence. Appellants argue that the will referred to his children but the testator named only the two of the second marriage as contingent beneficiaries, and the will was silent as to the two children of a previous marriage; that the two children of the second marriage were asked to and did accompany testator and his surviving wife to Huntsville when the attorney was requested to draft the will; and that such facts amount to sinister conduct on the part of Lucy Sims, the surviving wife. They further argue that the fact that the testator had been married twice, with children from both marriages, was enough to establish motive on the part of Lucy Sims to exert undue influence.

The record reveals that J. 0. Sims married the mother of appellants and that they were divorced when appellants were infants. Appellants were so young they did not remember their parents living together. After the divorce appellants’ mother moved to the Abilene area to live, and appellant James Ray Sims testified he was seven or eight years old before he saw his father when the father and his family were in the Abilene area picking cotton in 1933 or 1934. James Ray Sims further testified he stayed with his father and family when they were in Abilene, and that he and his sister wrote to his father and received letters from him, but that he did not see his father again until he was eighteen years of age when he went to near New Waverly, Texas, and spent about one week with his father and family before going into the army. He did not see his father again until he married in 1946 when he spent one night with him and family near Huntsville, and he saw his father two or three times when he (the father) lived in Houston. He said each visit in the home of his father and stepmother was nice and pleasant. His father visited him in Abilene on two other occasions, and when he was notified his father was ill in a Houston hospital he went to see him. He said his father asked every one to leave the room except him and Jack, and then his father asked both of them, “but Jack in particular,” to “see that everything was handled right without any trouble fairly and squarely.” James Ray Sims was not present at the time or about the time the will was executed.

Appellant Lola Faye Henderson, twin sister of James Ray Sims, remembered first seeing her father when she was seven or eight years of age when he came to the Abilene area in 1933 or 1934 with his family and stayed two of three months. She next saw him in 1944 or 1945 when she was 17 or 18 and went to visit him and his family in the Huntsville area and stayed three or four months. She later married a man named Stutts and lived in the Huntsville area for three or four years during which time she visited her father and his family and he visited her home but without his wife Lucy. Lola Faye testified that she did not receive a very good reception from her step-mother Lucy, and Lucy never came to her house. She also testified that Lucy was partial to her own grandchildren, and that her father had to give presents to her children without Lucy knowing about it. Lola Faye and family also lived in Houston at the same time her father and Lucy did, and she visited in their home many times and her father visited in her home, but Lucy never came to visit and had never been in her house. Lola Faye moved back to Abilene in 1953 and lived there at the time of trial, but she returned to visit her father once or twice a year, and he visited her in Abilene two times accompanied by his son Jack. When she was notified of her father’s illness she went to visit him in the hospital. Lola Faye testified that there was an unfriendly atmosphere every time she visited in her father’s home, and that her father “cried his heart out and tried to make amends and apologies over the past,” that “he loved us dearly and he had spent a lot of sleepless nights and he couldn’t help the way the situation had been,” and that such statements began when she was a teenager. These statements, Lola Faye said, were not made in the presence of testator’s wife, Lucy, and her father never gave gifts to Lola Faye’s children in Lucy’s presence.

Lola Faye also testified that she was not present when the will was signed and had no knowledge of what transpired at the time it was signed. She further said on several occasions when her father and Lucy disagreed on what he was going to do Lucy would influence him, she thought, by feigning a heart attack.

Lucy Sims testified that she and J. 0. Sims never talked about his children by his first marriage, i. e., James Ray Sims and Lola Faye Henderson; that J. Ó. Sims never wrote to them and never talked to them by telephone; and that she made James Ray and Lola Faye welcome when they were in her home. She also said that she saw Lola Faye at the hospital when her father was ill but did not see James Ray.

Jack Sims testified he never had any discussion with his father about Lola Faye and James Ray Sims, but that he visited with them when he lived in Houston, and he would visit them when he drove his truck through Abilene. He also said he saw Ray and his wife in Conroe when he lived there, and that Faye and Ray visited his father in the hospital during his last illness, but that to his knowledge his father had no discussion with them.

Jack Sims testified that when his father was in the hospital in Houston his father asked him not to call James Ray and Lola Faye, but he called them because he thought it was his duty.

The foregoing outline of testimony is all the evidence produced by appellants that would or could have any bearing on the question of undue influence.

Appellants stipulated that the will had been admitted to probate; that the only contest as to the will was that it was not valid because of undue influence exerted upon the testator; and that the questions of testamentary capacity and whether the will was executed before two witnesses had not been raised.

Relying upon Craycroft v. Crawford, supra, and Pearce v. Cross, supra, appellants argue that the issue of undue influence was raised by the evidence because (1) opportunity for undue influence has relevancy; (2) the mental condition of the testator was agitated because of the relationship with his children; and (3) because of the peculiar circumstances of the execution of the will.

In Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963) it is said:

“Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.”
“The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.”

Applying the foregoing rules, it is our view that the appellants, as contestants, did not discharge their burden of showing undue influence so as to raise an issue of fact for the jury. The record discloses that there was shown nothing more than an opportunity to exercise influence, and a will cannot be set aside on facts which at most do no more than show an opportunity to exercise influence. Rothermal v. Duncan, supra. It is natural that a wife or children might have some influence over the husband and father, but the record here is silent that there was effective operation of any influence which subverted or overpowered the mind of the testator at the time of the execution of the will, or that the testator would not have executed the will but for such influence.

It is not unusual nor unnatural but on the contrary normal, for spouses to execute joint wills leaving all property to the survivor. The spouses here had been married more than forty years, and from the record it appears that what property they had accumulated was acquired through the joint efforts of both. The will was executed in 1957 — many years before his death. The will did provide that if both testators died in a common accident or disaster then the children of their marriage would inherit equally their estates. The fact that the children of his first marriage had not been close to him, and he had not seen them regularly, and apparently his wife did not make them welcome in his home could cause J. O. Sims to feel he had failed as their father; however, if that assumption may be made from the evidence it does not meet the test nor discharge the burden placed upon appellants. The fact that all of testator’s children had not been made contingent beneficiaries alike does not create a presumption of undue influence. Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex.Civ.App.-Fort Worth 1952, writ ref’d n. r. e.).

The facts in Craycroft v. Crawford, supra, relied upon by appellants, are so obviously distinguishable that they need not be set out here nor analyzed at length.

Considering all the evidence and the circumstances in the most favorable light for appellants we are of the opinion that there was no issue of undue influence raised for submission to a jury. An instructed verdict would have been proper. “A person of sound mind hás a perfect legal right to dispose of his property as he wishes,” and “the exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself.” Rothermal v. Duncan, supra. There is no such evidence in the record here.

See Dulak v. Dulak, 513 S.W.2d 205, 209 (Tex.1974); Estate of Woods, 542 S.W.2d 845, 847, 848 (Tex.1976); Stieler v. Stieler, 537 S.W.2d 954, 958, 959 (Tex.Civ.App.-Austin 1976, writ ref’d n. r. e.); Ransom v. Iselt, 554 S.W.2d 42 (Tex.Civ.App.-Eastland 1977, writ ref'd n. r. e.).

Judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    J. R. SKILLERN, INC. et al., Appellants, v. William G. leVISON, Appellee.
    No. 5356.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 29, 1979.
    Rehearing Denied Jan. 3, 1980.
    Thomas C. Unis, Duncan L. Clore and James K. Peden, III, Strasburger & Price, Lee E. Holt, City Atty., Carroll R. Graham and Linda R. Lawson, Asst. City Attys., Dallas, for appellants.
    Edward D. Yassallo, Jr., McKool & Vas-sallo, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a condemnation proceeding in which the primary issue is whether lessee, W. G. leVison, is entitled to recover damages for loss of his leasehold estate, and if so, the amount of such damages. Before trial, the owner, Skillern, and the City of Dallas stipulated that the value of the condemned property was $320,000.00. The City then withdrew from the actual trial. In response to a single special issue, the jury found that the value of leVison’s leasehold was $83,900.00. The court entered judgment that the owner and lessees of the condemned property collectively recover $320,000.00 from the City. The court further adjudged $81,900.00 against the City as leVison’s damages. This amount represents the value of the leasehold less $2,000.00 awarded by the Commissioners and withdrawn from funds placed in the registry of the Court. The City of Dallas was given judgment against Skillern for $81,900.00. Skillern and the City of Dallas appeal. We reverse and render.

The City of Dallas sought to acquire fee simple title to land owned by J. R. Skillern, Inc., Betty Edwards Skillern Baird, and husband R. W. Baird, Nancy Skillern Korn and husband, A. F. Korn. Located on the land was a building containing several business locations including one leased to leVi-son in which he operated a restaurant known as Cafe le Cabotin. The leVison lease had a term of three years commencing December 1, 1975, and contained a renewal option for an additional three year period.

The lease contained the following provision with regard to condemnation:

15th. If the whole or any substantial part of the demised premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain, or should be sold to the condemning authority under threat of condemnation, this Lease shall, at the option of the Landlord, terminate and the rent shall be abated during the unexpired portion of this Lease effective when -the physical taking of said premises shall occur.

After notice and hearing, the Special Commissioners in Condemnation filed the Commissioners’ report and award on February 8, 1978. A total award of $320,000.00 was made for the property, with a part of the award being apportioned among three of the tenants, leVison being apportioned $2,000.00. Three tenants and the City of Dallas filed objections to the decision of the Commissioners.

The City of Dallas deposited the sum of $320,000.00 in the registry of the court on April 26,1978, thus establishing the date of taking of the property.

Skillern’s attorneys, on May 2, 1978, by certified mail, return receipt requested, forwarded to leVison at his place of business a letter advising him of the deposit made by the City and the establishment of the date of taking. The letter also advised leVison:

Pursuant to Paragraph 15 of your Lease, Skillern & Majors Properties, hereby- confirm their option and terminate your Lease, effective as of the taking on April 26, 1978.

Notice of the letter was delivered to leVi-son’s address on May 4, 1978. Although he remained in business at that location until July 15, 1978, leVison failed to claim the certified letter. The letter was returned to Skillern’s attorneys on May 20, 1978, bearing the notation “unclaimed.” The letter to leVison and the envelope in which it was delivered was placed in a second envelope and mailed to the attorney who represented leVison in the condemnation proceedings. The letter was received by leVison’s attorney on May 29, 1978.

Skillern urges that the court erred in entering judgment for leVison because, as a matter of law, the lease automatically terminated by reason of the condemnation. leVison contends that since there is not an automatic termination clause in the lease and since he was not notified of Skillern’s decision to terminate he is entitled to recover damages for loss of his leasehold estate.

Under Texas law, parties have a right to contract for termination of a lease in the event of condemnation. The court in Evans Prescription Pharmacy Inc. v. County of Ector, 535 S.W.2d 704 (Tex.Civ.App.—El Paso 1976, writ ref’d), held that the lessee was not entitled to recover damages for loss of its leasehold estate through condemnation where the lease provided:

“Should the leased property be taken by right of eminent domain, the lease shall be terminated.”

The court in Fort Worth Concrete Company v. State, 416 S.W.2d 518 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n.r.e.), said:

A tenant whose lease provides for its termination upon the taking of the leased premises for a public use, is entitled to no compensation when it is condemned. United States of America v. Petty Motor Company, 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 . .

We must determine whether the lease terminated automatically upon the total taking of the leasehold estate. The lease provides in the event of condemnation that the lease “shall, at the option of the landlord, terminate.” leVison argues that this clause requires the landlord to give the lessee notice that he intends to exercise his option and terminate the lease. We disagree.

We have found no Texas case specifically addressing this issue. In Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 57 N.E. 214 (1900), the court denied a lessee any damages in an eminent domain proceeding where the lease contained a provision similar to the one in the instant case which provided:

“In case the premises, or any part thereof, shall be taken for any street or other public use, or by the action of the city or other authorities, * * * then this lease and the term demised shall terminate at the election of the lessors, or those having their estate in the premises.”

Chief Justice Holmes speaking for the court said:

We are of opinion that the judgment appealed from was right. Of course, any valid taking of the whole premises would put an end to the lease (O’Brien v. Ball, 119 Mass. 28), and therefore the provision quoted must not be construed too literally in its application to the present case. The object is that which is pointed out in Munigle v. City of Boston, 3 Allen, 230, 232, and the meaning is that the landlord can terminate the right of the tenant to share in the damages. See, further, Burbridge v. Railroad Co., 9 Ind. 546. Probably, if the clause had not dealt with the taking of a part as well as of the whole, and had referred only to a taking of the whole, it would have stipulated absolutely that the tenant’s rights should end without requiring an election by the landlord. The election is inserted with reference to a partial taking.

In re Widening Third Street in City of St. Paul, 178 Minn. 552, 228 N.W. 162 (1929), the lease provided:

“If the premises or any part thereof, or any part of the improvements of which they form a part, shall be taken for any street or any other public use, or shall during the continuance of this lease, be destroyed by the action of the public authorities, then this lease and the term demised shall, at the option of either party, terminate.”

The court held that the lessee was not entitled to share in the proceeds of condemnation although no notice was given by either party, saying:

In the instant case the parties evidently apprehended that the leased premises would be interfered with or taken by the city before the end of the lease they were making. They were not willing to let their rights rest upon the settled law applicable when property under lease is taken under the right of eminent domain. So the quoted clause was inserted. Its fair meaning appears to us to be that the term should end if and when the city took the entire leased premises, but, if only part were taken then either party had the option to end the term. If the whole demised premises were taken, nothing remained upon which either party could predicate an election or option. Hence, the whole premises being appropriated, and the parties having stipulated that that event ended the term, the lessee could claim no compensation for its leasehold except up to the time it thus ended, and the lessor became entitled to full compensation for the whole estate undiminished by any claim from the former lessee. As we construe the quoted clause of the lease, its meaning was that, in the event of the city appropriating the whole of the demised premises, the lessee’s share in the damages was gone.

See also County of Hennepin v. Holt, 296 Minn. 164, 207 N.W.2d 723 (1973).

We hold the better rule to be that under the terms of a lease such as this, a total taking results in automatic termination of the lease. Thus, it is not necessary that the lessor give notice of his decision to terminate the lease. This holding makes it unnecessary for this court to consider appellant’s other points of error.

The judgment of the trial court is reversed and judgment rendered that W. G. leVison take nothing by his claim and that City of Dallas has satisfied its obligation.


author: MOORE, Justice.

text:
    Scottie PRICE, Appellant, v. Betty PRICE, Appellee.
    No. 1281.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 29, 1979.

      Kenneth R. Barron, Tyler, for appellant.
    Jerry C. Parker, Sammons & Parker, Tyler, for appellee.
   MOORE, Justice.

Appellee, Betty Price, instituted this suit against appellant, Scottie Price, seeking a divorce and a division of the property. After a trial before the court, sitting without a jury, judgment was rendered dissolving the marriage. The community property, which consisted only of household and kitchen furniture, was divided between the parties. In addition, the trial court also awarded Mrs. Price a judgment against appellant for the sum of $4,000.00 as well as a $1,000.00 attorney’s fee. Appellant perfected this appeal and brings eight points of error attacking only that portion of the judgment dividing the property.

We affirm.

Prior to the marriage, Mrs. Price was a resident of California, having moved there from Texas. Mr. Price, having known Mrs. Price for approximately five years, went to California and proposed marriage. After the marriage the parties returned to his apartment in Tyler, Texas. At that time Mr. Price was approximately thirty-nine years of age and Mrs. Price was thirty-eight. Both parties had children by a prior marriage. The marriage continued for fourteen months; however, the parties only lived together for a period of approximately five months. According to the testimony of Mrs. Price, she was compelled to leave her husband due to his continuous intoxication and failure to return home at night. During the marriage, Mr. Price was employed by A & S Electrical Contractors, Inc., in which he was half owner. He earned approximately $1,400.00 per month plus expenses. At the time of trial, Mrs. Price was employed at a manufacturing concern earning approximately $425.00 per month. During the marriage, Mrs. Price received treatment for a cancerous growth on her lip and testified that further treatment would be required.

The evidence shows that the separate property of Mrs. Price consisted of (1) a 1975 Camero automobile on which she was making payments of approximately $120.00 per month; and (2) a small amount of furniture which she brought into the marriage. Appellant’s separate property consisted of (1) one half of the capital stock in A & S Electrical Company that had a book value of $17,060.00 which Mr. Price testified was pledged at a bank to secure a loan of $80,-000.00; (2) a $1,500.00 promissory note which he testified was worthless; and (3) furniture and personal effects having an approximate value of $3,000.00. The judgment awarded each party their separate property as listed above.

The community property consisted of household and kitchen furniture. The only testimony with regard to the value of the furniture and household items was given by appellant and was based on the purchase price and the amount of the existing indebtedness against it. His testimony with regard to the amount and value of the property is somewhat confusing. As we understand it, the community furniture had a cost of $3,000.00, and at the time of trial, it had an indebtedness against it of approximately $1,500.00. The record also shows that the parties had community funds of $315.00. The trial court awarded appellant the community furniture, together with the $315.00 in cash. Thus the value of the community property awarded to appellant amounted to $1,815.00. The remainder of the community property which was free and clear of debt consisted of a microwave oven and a lamp valued at $1,000.00. These items were awarded to Mrs. Price. Thus the value of the community property awarded Mrs. Price amounted to approximately $1,000.00.

There is considerable testimony in the record with regard to the sum of $12,000.00 that appellant withdrew from the A & S Electrical Corporation during the marriage. Appellant testified that the funds were withdrawn to pay a debt owed by the corporation to Alton Knight. Mrs. Price testified that her husband told her that the funds were used to finance his share of an insulation business organized by him and Alton Knight. Although she made no effort to trace the funds, she takes the position that the $12,000.00 constituted a part of the community property.

Appellant asserts by his first point of error that the award of a $4,000.00 personal judgment in favor of Mrs. Price constitutes permanent alimony and is therefore contrary to the public policy of this state. By his second point, appellant contends that even if the $4,000.00 personal judgment in favor of Mrs. Price does not constitute alimony, the trial court nevertheless abused its discretion in dividing the property, because the personal judgment rendered against him had the effect of awarding appellee his separate property to the extent of $4,000.00 without just cause. We fail to find any merit in either contention.

The term “alimony has come generally, in legal parlance, to include an allowance, whether periodical or in gross, judicially made to a wife upon an absolute divorce. The statutes and public policy of this state do not sanction alimony for the wife after a judgment of divorce has been entered. Francis v. Francis, 412 S.W.2d 29 (Tex.1967). Support payments ordered to be made after a divorce from the income from the husband’s property, although considered alimony in many jurisdictions, is not considered alimony in this state. When its true meaning is distilled from the statutes and the court’s decisions of this state, alimony which contravenes the public policy of this state is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce. Francis v. Francis, supra, at 32-33.

In applying the above definition, the courts have generally held that the trial court may require one party to make monetary payments to the other after a divorce, so long as a division was referable to the rights and equities of the parties in and to the properties at the time of the dissolution of the marriage. In such a case, the courts have held that the division is not an allowance of permanent alimony in violation of the established public policy. Francis v. Francis, supra; Garrett v. Garrett, 534 S.W.2d 381, 382 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); In re Marriage of Jackson, 506 S.W.2d 261, 266-67 (Tex.Civ. App.—Amarillo 1974, writ dism’d); Nail v. Nail, 477 S.W.2d 395, 399-400 (Tex.Civ.App.—Fort Worth), rev’d on other grounds, 486 S.W.2d 761 (Tex.1972); Marks v. Marks, 470 S.W.2d 83, 86 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.).

It is undisputed that at the time of the divorce appellant owned a one-half interest in an electrical contracting business where he served as president and earned an annual salary of $16,800.00, plus expenses. Although there is no evidence as to the market value of the business or its annual net earnings, the trial court could have drawn varying inferences and conclusions from the evidence presented, both with respect to the current market value and as to the future use and benefits likely to be enjoyed by appellant in the continued ownership thereof.

In our opinion the evidence supports the trial court’s award of the $4,000.00 judgment to Mrs. Price as being referable to the rights and equities of the parties in the properties at the time of the divorce hearing. Consequently, we hold that appellant failed to establish that the monetary judgment awarded Mrs. Price was in the nature of alimony.

This brings us to appellant’s contention that the trial court abused its discretion in awarding the wife the $4,000.00 judgment because it would result in the taking of his separate property without just cause. Appellant’s argument is premised on the assumption that the court’s discretion in dividing the property did not extend to awarding to the wife any part of the husband’s separate property.

Contrary to appellant’s contention, the appellate courts have repeatedly held that the trial court has discretion under section 3.63 of the Family Code, to invade the separate personal property of one spouse for the benefit of the other when necessary to a just and fair division. Muns v. Muns, 567 S.W.2d 563 (Tex.Civ.App.—Dallas 1978, no writ); Eichelberger v. Eichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App. —Waco 1977, writ dism’d); Musslewhite v. Musslewhite, 555 S.W.2d 894, 897 (Tex.Civ.App.—Tyler 1977, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229, 232 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Zaruba v. Zaruba, 498 S.W.2d 695, 699 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d).

In order to achieve an equitable balance between the parties, the court was authorized to enter a money judgment against appellant. See Me a v. Mea, 464 S.W.2d 201 (Tex.Civ.App.—Tyler 1971, no writ); Pride v. Pride, 318 S.W.2d 715 (Tex.Civ.App.—Dallas 1958, no writ).

It is clear that the division of the property does not have to be equal, and the court may award the wife a substantial portion of the husband’s separate personal property where the circumstances make such action necessary to effect a fair and just division of the property. There must be, however, some reasonable basis for decreeing an unequal division of the property. Cooper v. Cooper, supra. Factors to be considered include the disparity of earning power of the parties, as well as their business opportunities, capacities, and abilities; the physical condition of the parties; probable future need for support and educational background; the fault in breaking up the marriage; and the benefits the innocent spouse would have received from a continuation of the marriage. Cooper v. Cooper, supra, citing cases.

At the request of appellant, the trial court filed findings of fact and conclusions of law. Under the findings of fact, the court found that (a) appellant induced the appellee to leave her home in California and made promises to provide care for her and her children; (b) appellant undertook the course of conduct toward petitioner resulting in physical and mental abuse; (c) appellant was continually and gainfully employed during the marriage, earning a salary in excess of $1,200.00 per month and in addition received many benefits payable by the corporation of which he was part owner; (d) appellee’s employment was that of a waitress and that such employment attracts minimum earnings; and (e) Mrs. Price suffers from poor health and has had cancer surgery during the marriage. Under the conclusions of law the trial court concluded that (a) appellant’s earnings were far in excess of that of appellee and that appellee would be required to purchase new household furniture and furnishings, reestablish a home and seek employment, and that the award to her of a money judgment in the amount of $4,000.00 was just, right, fair and equitable; (b) appellee’s health is of question for future earnings and as a result the benefits that she would have received and would have derived from the continuation of the marriage become of great significance. The court failed to make any findings as to the value of any of the property.

It is the duty of the appellate courts to indulge every reasonable presumption in favor of the trial court’s proper exercise of discretion in a division of the estate of the- parties. Garrett v. Garrett,. supra; Cooper v. Cooper, supra.

After considering all the facts and circumstances in the case, including the community or separate character of each asset, the cause of the parties’ separation, the disparity in earning power and business opportunities, the capacities and abilities and the relative conditions of the parties, we have concluded that the division of the estate, .assets, and debts of the parties as set forth in the judgment is right, fair, and equitable, having due regard fo.r the rights of each party. It follows that we find no abuse of discretion.

In points three through eight, appellant complains of various findings of fact made by the court on the ground that such findings are not supported by the evidence.

In reviewing the record to determine if any evidence supports the judgment and concomitant findings, it is proper to consider only the evidence favorable to the issue and to disregard all evidence or inferences. to the contrary. Goodyear Tire & Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916, 918 (Tex.1978); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950). Upon reviewing the record in light of the foregoing rule, we have concluded that there is some evidence, either direct or circumstantial, to support the trial court’s findings on each of the challenged issues. Accordingly points three through eight are overruled.

The judgment of the trial court is affirmed.

      . Section 3.63 is as follows:
      “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”


author: O’QUINN, Justice.

text:
    James P. BAILEY, Appellant, v. Doyle K. TUCK, Appellee.
    No. 12910.
    Court of Civil Appeals of Texas, Austin.
    Dec. 5, 1979.
    Rehearing Denied Jan. 2, 1980.

      Ray Fisher, Fisher & Ashby, Austin, for appellant.
    William M. Childers, Lavern Harris & Associates, Joe Grady Tuck, Kerrville, for appellee.
   O’QUINN, Justice.

By this lawsuit, filed in 1973, James P. Bailey, appellant, sought dissolution of a partnership with Doyle K. Tuck, appellee, together with final settlement and accounting, and for compensatory and exemplary damages. By counterclaim, Tuck sought compensatory and exemplary damages, in offset of damages claimed by Bailey.

Tuck and Bailey entered into the partnership in December of 1963 under a written agreement to acquire, develop, and subdivide for sale a tract of land situated in Bastrop County. After suit for dissolution was filed, several persons, claiming an interest in the development, intervened seeking enforcement of certain restrictions on the land and for maintenance of roads within the subdivision.

Pursuant to a jury verdict, rendered in response to special issues, the trial court entered judgment in March of 1978 that both Bailey and Tuck take nothing by their respective claims for compensatory damages. The judgment also provided for partitioning of partnership assets and for completion and improvement of roads in the development in satisfaction of claims by intervenors.

Bailey brings four points of error under which appellant attacks the jury’s answer forming basis for denial by the court of recovery of compensation for services Bailey alleged he rendered the partnership, and appellant asserts further error based on two claims of jury misconduct and disqualification of one juror.

The parties have joined issue on all claims of error. We will overrule all points of error and affirm the judgment of the trial court.

The jury answered, “None,” in response to special issue No. 5, inquiring “. what sum of money . . . would reasonably compensate . . . Bailey for performing, managing and operating responsibilities to the partnership endeavor .” On appeal Bailey contends that “. . . the jury verdict on Special Issue Number 5 is against the great weight and preponderance of the evidence.”

In determining on appeal whether the evidence was sufficient, the reviewing court will “. . . consider and weigh all of the evidence in the case and . set aside the verdict and remand the cause for a new trial, if it . . concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust . . . . The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.” In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). See also, Calvert: “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

Review of the evidence, as stated subsequently in summary, is made more understandable by a brief examination first of events leading to differences between the partners that resulted in final dissolution. At the outset, when the partnership was entered into, Tuck was engaged in the real estate business in Bastrop County and Bailey was employed as shop steward for the machinists’ union at the Exxon Corporation refinery in Baytown. Under the written agreement the partners would “. share and share alike in all said expenses and, when all bills, liens, and debts have been paid, shall so share in the profits.” During the early years of the partnership Tuck devoted time to planning, developing, and improving the subdivision property, but when Tuck undertook road improvements to serve the property, Bailey refused to agree to borrowing money for that purpose.

It is apparent that dispute over roads was the first of a series of disagreements between Tuck and Bailey. Bailey unilaterally assumed control of the project early in 1971 when he moved the partnership bank account from Bastrop to Baytown and refused Tuck access to the account. An audit ordered by the trial court shows that during the years Tuck handled the project, from 1964 through 1970, earnings' of the partners were Tuck $7,568.28 and Bailey $5,079.00. For the year 1971 and afterwards, under Bailey’s management, Tuck earned $475 and Bailey earned $7,856.50.

Evidence was adduced at trial that Bailey kept books and records, filed tax returns, performed certain banking functions, trav-elled extensively between Baytown, where he resided, and the subdivision property in Bastrop County, and assumed at least some sales responsibilities. An expert witness in behalf of Bailey testified that such services in his opinion were worth $1,000 per month.

There is also evidence in the record that the tax returns often were erroneous; the books were kept informally; contracts were allowed to become delinquent because of Bailey’s inattention; certain unearned commissions were paid to Bailey; and certain of Bailey’s personal legal debts were paid out of partnership funds. It is apparent from the record that Bailey received compensation for his efforts by way of profits from the development.

Evidence was introduced showing that Tuck was prevented by Bailey from constructing roads in the development. The record also shows that Bailey, without Tuck’s acquiescence, moved the partnership bank accounts from Bastrop to Baytown and refused Tuck access to the funds. It is clear that Bailey effectively prevented Tuck from participation in the land development.

The evidence was sufficient to present a fact question for the jury. We conclude that the jury’s determination that Bailey suffered no compensatory damage is not so against the great weight and preponderance of the eyídence as to be manifestly unjust. The'point of error is overruled.

Bailey also claims error of the trial court in failing to grant a new trial because of jury misconduct consisting of a statement, alleged to have been made during deliberation on special issue No. 5 to the effect that the judge would decide the amount of compensation to be awarded regardless of the jury’s answer.

At hearing on motion for new trial seven former jurors were called as witnesses. Five of the seven testified on the matter of a discussion that the judge would decide the question of compensation. Three of the five remembered some discussion, but were not able to indicate who discussed it, nor at what stage of deliberations the matter was mentioned. Two jurors did not remember such discussion at all. It is clear from the record that at least some of the jurors were confused by the distinction between partition of partnership property, a matter within the province of the court, and the question of compensation, a question of fact for the jury to determine.

The trial court found that jury misconduct had not occurred. Findings of fact and conclusions of law were not filed by the court, and the record fails to disclose that request was made for findings and conclusions.

The Supreme Court in 1965 held that on appeal, where no express findings of the trial court were filed, it will be presumed by the appellate court that the trial court found all controverted facts in support of judgment overruling motion for new trial and that no jury misconduct occurred. Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965). This Court in 1977 applied the rule thus stated by the Supreme Court in Forbus v. Safeway Stores, Inc., 547 S.W.2d 725, 726 (Tex.Civ.App. Austin 1977, no writ).

In contending that jury misconduct did exist, appellant relies on the holdings in Pryor v. New St. Anthony Hotel Co., 146 S.W.2d 428 (Tex.Civ.App. San Antonio 1940, writ ref’d), and White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947). The distinction between these two decisions and the present case is that in both Pryor and White Cabs the fact of misconduct was conclusively shown, whereas in the present cause a conflict was shown as to whether the statement was made. Three jurors remembered some discussion, and two jurors-said the statements were not made. Since the evidence offered at the hearing was conflicting as to whether misconduct occurred, the decision of the trial court on the question is binding on appeal.

By the third point of error, Bailey contends that it was error not to grant a new trial “. : . because the evidence shows that one of the jurors at the trial was not a qualified juror in that he could not read, write, or understand English.”

Under Article 2133, V.A.T.S., “No person shall be qualified to serve as a juror who does not possess the following qualifications: . . . 3. He must be able to read and write . . .” It is settled, however, that the disqualification may be waived and may not be urged for the first time after verdict. The rule is stated by McDonald in this language:

“A member of a panel who is disqualified to serve as a juror . . . must be challenged promptly. If the voir dire examination does not include questions reasonably calculated to uncover the disqualification . the challenge must be presented promptly after the facts are discovered and in any event before verdict . . . The disqualification may not for the first time be urged after verdict.” 3 McDonald, Texas Civil Practice, Sec. 11.05 (1970).

In this case, Juan Gonzales, the juror whose qualifications were challenged for the first time on motion for new trial, had stated in English on voir dire that he worked at the Elgin Brick Yard for 22 years, that he worked seven years for the Austin School District, that he owned his own home, and that he was not married. Not until the hearing on motion for new trial was Gonzales questioned regarding his literacy. Bailey accepted the juror after the voir dire examination, and, having waited until after an unfavorable verdict to challenge the juror, Bailey waived his right to complain. Coca-Cola Bottling Company v. Mitchell, 423 S.W.2d 413 (Tex.Civ.App. Corpus Christi 1967, no writ); Mitchell v. Burleson, 466 S.W.2d 646 (Tex.Civ.App. Beaumont 1971, writ ref’d n.r.e.).

Under the fourth and final point of error Bailey complains that it was error to overrule motion for new trial because there was jury misconduct in that “. . . during the jury deliberation, one of the jurors acted as an interpreter for a juror who did not understand the English language.”

At the hearing it was shown that Mrs. Alejandra Campos, a juror, translated some of the special issues into Spanish at the request of Juan Gonzales in order that Gonzales might be sure that he correctly understood the issues. Appellant offers no authority in support of the contention that this action constituted jury misconduct, but seeks to compare the function of Mrs. Campos to that of employing a dictionary in the jury room to obtain definitions of words. We fail to perceive the analogy thus posed and conclude that jury misconduct did not result. The contentions made under the point of error are without merit and the point is overruled.

The judgment of the trial court is in all things affirmed.