author: RAY, Justice.

text:
    Guy SPARKMAN, Appellant, v. The PEOPLES NATIONAL BANK OF TYLER et al., Appellees.
    No. 8651.
    Court of Civil Appeals of Texas, Texarkana.
    March 13, 1979.
    Rehearing Denied April 17, 1979.
    Guy Sparkman, pro se.
    Chas. F. Potter, Potter, Guinn, Minton, Roberts & Ireland, Tyler, for appellees.
   RAY, Justice.

This is a summary judgment case. Appellant (plaintiff), Guy Sparkman, brought suit against appellees (defendants), The Peoples National Bank of Tyler, Wilton Daniel, Dub Riter, J. C. Wynne, Jr., Frank Sewell, Jr., Ralph Parker and Weldon McFarland, seeking damages for the alleged conversion of his property and for alleged slander. Both parties filed motions for summary judgment. Appellees’ motion for summary judgment was granted and that of Sparkman denied. Appellant has perfected his appeal and submits two points of error.

Appellant’s first point of error is as follows:

“The trial court erred in granting Bank’s Motion for Summary Judgment, because there were several material fact issues in dispute.”

Appellees contend that appellant’s first point of error is too general to be considered under Tex.R.Civ.P. 418. The Texas Supreme Court has held to the contrary. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

Under appellant’s first point of error it is contended that when appellee Bank foreclosed upon appellant’s properties under its security agreement, that appellant was not in default and that the Bank accelerated appellant’s notes without due cause and that such was not done in good faith. Appellant also asserts in his pleadings and in his brief that a material fact issue exists as to whether or not the officers and agents of the Bank published and spoke words slanderous to appellant’s good name, reputation and credit.

Appellant Sparkman was in the business of constructing modular homes and had secured loans from appellee Bank ostensibly for the purpose of buying materials with which to build the dwellings. Sparkman contends that the notes were to be renewed until the buildings were sold at which time permanent financing would be secured. The notes themselves do not contain any such agreement. When several of the notes became past-due and it was learned by the Bank that Sparkman had mortgaged an Allis-Chalmers maintainer to the Bank that was under a prior mortgage to the Arp State Bank, appellee Bank then accelerated all of Sparkman’s notes and started foreclosure proceedings under its security agreement. The Bank took possession and control of the mortgaged assets by employing James Reed to go into possession on January 29, 1970. The assets were sold on February 10, 1970, after notice and compliance with the security agreements and the Texas Business and Commerce Code. Appellant admits that he signed the security agreement and that the maintainer was under a prior mortgage when he mortgaged it to The Peoples National Bank. The Bank took peaceable possession of the assets covered by the security agreement while Sparkman was absent from the business. When Sparkman returned, he undertook to recover possession and to block the sale with the aid of a shotgun and by blocking access to the property to be sold plus pulling up the signs concerning the sale. While Sparkman was displaying the shotgun and frightening bidders away, he was arrested by local peace officers. See Sparkman v. Peoples National Bank of Tyler, 501 S.W.2d 739 (Tex.Civ.App. Tyler 1973, writ ref’d n. r. e.).

The summary judgment proof establishes that several of the notes that Spark-man had at The Peoples National Bank were overdue. Under the terms of the security agreement and Tex.Bus. & Comm. Code Ann. Sec. 1.208, the Bank had the right to accelerate payment on all notes and to declare all obligations immediately due and payable and proceed to foreclosure. The burden of establishing lack of good faith is upon the party against whom the power has been exercised. Tex.Bus. & Comm.Code Ann. Sec. 1.208, supra. Appellant did not establish the lack of good faith. Appellees establish by clear, direct and convincing evidence that the officers of the Bank believed that the prospect of payment of the indebtedness was impaired and that Sparkman was in default by having made false representations to the Bank relative to the maintainer that was used as collateral. We therefore conclude that appellee Bank established as a matter of law that Spark-man was in default under the terms of the security agreement and that the Bank acted in good faith in accelerating the notes. Thus, Sparkman’s allegations of conversion are without merit and the Bank was entitled to foreclose upon the assets securing the loans.

Sparkman alleged “That defendants, Wilton Daniels, Frank Sewell, and Weldon McFarland and others acting for the Bank and as employees, agents and servants of the bank in the presence and hearing of different other persons, did willingly, knowingly, maliciously utter words imputing a criminal offence involving moral turpitude to plaintiff. That the statements made by the banks duly authorized agents and employees were false, and defendants know they were false. . . . ”

Sparkman contends that he and a representative of Recognition Equipment Company were guests of appellee Daniel on the evening of January 24, 1970, at the Willow Brook Country Club and thereafter while driving, back to the Bank in Mr. Daniel’s car, Mr. Daniel is alleged to have said, “Guy has done a good job, but he has misapplied funds, and he bought some equipment with Bank funds.” Sparkman further testified in his deposition that he later met the representative in Dallas on the street and the man stated he couldn’t understand Mr. Daniel’s remark and further stated “How else did they expect you to use the funds?”

Appellant asserts that appellee McFarland, on the day of the foreclosure sale, said in a loud voice before six disinterested people that “We will send you to the federal pen for misapplying bank funds if you don’t leave.”

The burden was upon appellees to prove by summary judgment proof that no material issue of fact exists relative to appellant’s allegations of slander. We have examined the record and find only that in appellees’ second amended motion for summary judgment an assertion that “The depositions of Philipson and Daniel have been taken and conclusively show that there was no slander by Daniel to any representative of Recognition Equipment Company.” The depositions of Philipson and Daniel have not been made a part of the record for our review. It may well be that appellant’s petition does not properly allege a cause of action for slander, but that point has not been raised and no exceptions were filed in the trial court complaining of appellant’s pleading. See Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974). Apparently Sparkman is asserting that the statements he is attributing to Daniel and McFarland as being slanderous refer to the “misapplying bank funds.” Certainly, proof that the statement was true would be a complete defense. If Sparkman in fact borrowed money for which he contractually agreed with the Bank to put into buildings in which the Bank had a security interest, but in fact applied the funds to living expenses or purchasing items not covered by his agreement, then he might be guilty of fraud, or breach of contract because of the misapplication of the borrowed funds. If the alleged “misapplication of funds” refers to borrowing money and giving security with a mortgage on a previously encumbered Allis-Chalmers maintainer, then the substantial truth of the statement might be a defense. A person commits a criminal offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain credit for himself such as a loan of money. See V.T.C.A., Penal Code, Sec. 32.-32. However, from the record before us, it is not discernible whether appellant’s allegations allude to or have any connection with the Allis-Chalmers maintainer mortgage. We cannot say that appellees have established their defense as a matter of law or that the summary judgment proof relative to their defense is so direct, clear and convincing as to conclusively establish such defense.

Appellant’s first and second points of error as they relate to conversion are overruled and that portion of the summary judgment is affirmed. Appellant’s point of error No. 1 as it relates to slander on the part of officers and agents of the Bank is sustained and that portion of the summary judgment is reversed and remanded for further proceedings. The judgment of the trial court is affirmed in part and reversed and remanded in part.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    Rebecca O’HALLORAN, Appellant, v. Joseph O’HALLORAN, Appellee.
    No. 8636.
    Court of Civil Appeals of Texas, Texarkana.
    March 19, 1979.

      J. Kent Newsom, Pelletier, Dickens & Newsom, Dallas, for appellant.
    Jerry D. Johnson, Elliott, Meer, Vetter, Denton & Bates, Dallas, for appellee.
   CORNELIUS, Chief Justice.

On January 23,1976, appellant and appel-lee were divorced by decree of the Superior Court of Cobb County, Georgia. Appellant was awarded custody of their child, Patricia Lynn. Appellee was ordered to contribute certain amounts to the child’s support, as well as to maintain in force an insurance policy for her benefit. After the divorce, appellee moved to Dallas, Texas. He became delinquent in the support payments, and appellant filed suit in the District Court of Dallas County, pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act, to enforce the Georgia support order. Appellee answered and filed a counter-claim asking the Texas court to modify the Georgia decree by reducing the support payments and expanding his visitation rights. By proper plea, appellant asserted that the court had no jurisdiction to consider the motion to modify the support payments. The court overruled the plea to the jurisdiction, and after trial on the merits, found appellee to be in contempt for failure to make the payments required by the Georgia support order, but then proceeded to modify the Georgia order by reducing the payments by one-half based upon a demonstrated change of conditions. The appeal is from that order.

The purpose of the Uniform Reciprocal Enforcement of Support Act was to provide a simplified, consistent and effective mechanism for the interstate enforcement of support obligations. Conventional judicial proceedings had proved unsatisfactory, largely because the defaulting spouse-obligor was frequently outside the jurisdiction, and the obligee could rarely afford to travel to distant states and litigate the question of support obligations. See Annot., 42 A.L.R.2d 768; Fox, The Uniform Reciprocal Enforcement of Support Act, XII Family Law Quarterly 114 (1978). URESA was designed to avoid those disadvantages by allowing the obligation of support to be established in the obligee’s home state, and then allow that right to be enforced in a foreign state by a simplified procedure without having to bring an independent action in the foreign state. Fox, supra, p. 114.

Two subchapters of the Texas version of URESA provide for the interstate civil enforcement of support obligations. The first is known as the “Initiating State — Responding State” civil enforcement procedure which is provided by Secs. 21.21-21.45. That procedure permits a resident of a foreign state to use a court of that state to certify to a Texas court facts showing that a resident of Texas, or one who owns property in Texas, owes an obligation of support to the initiating party. The Texas court then, either with or without conducting a hearing (depending upon whether defenses are raised), determines the duty and the amount of support that is owed, and enforces that obligation either by action against the obligor personally or against his property or both. There is a division of opinion as to whether this procedure allows the responding court to modify an existing support decree of the initiating state. See Fox, supra, p. 130. The majority view is that modification, at least as to future obligations, is permitted if found by the responding state to be justified. See Koehler v. Koehler, 559 S.W.2d 944 (Tenn.1977); Commonwealth v. Byrne, 212 Pa.Super. 566, 243 A.2d 196 (1968); Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1965); Moore v. Moore, 252 Iowa 404, 107 N.W.2d 97 (1961); Fox, supra; Annot., 42 A.L.R.2d 768 (later case service). The minority view is represented by cases such as Craft v. Hertz, 182 N.W.2d 293 (N.D.1970). See also Hamilton v. Hamilton, 476 S.W.2d 197 (Ky.1972). The question has not been definitely settled in Texas. Compare, however, Holmes v. Tibbs, 542 S.W.2d 487 (Tex.Civ.App.Corpus Christi 1976, no writ).

The second method of civil enforcement under URESA is the registration procedure provided by Secs. 21.61-21.66. Those provisions are as follows:

“§ 21.61. Additional Remedies
If the duty of support is based on a foreign support order, the obligee has the additional remedies provided by this sub-chapter.”
“§ 21.62. Registration
The obligee may register the foreign support order in a court of this state in the manner, with the effect, and for the purposes herein provided.”
“§ 21.63. Registry of Foreign Support Orders
The clerk of the court shall maintain a registry of foreign support orders in which he shall record foreign support orders.”
“§ 21.64. Petition for Registration
The petition for registration shall be verified and shall set forth the amount remaining unpaid and a list of any other states in which the support order is registered and shall have attached to it a certified copy of the support order with all modifications thereof. The foreign support order is registered upon the filing of the petition subject only to subsequent order of confirmation.”
“§ 21.65. Jurisdiction and Procedure
The procedure to obtain jurisdiction of the person or property of the obligor shall be as provided in civil cases. The obligor may assert any defense available to a defendant in an action on a foreign judgment. If the obligor defaults, the court shall enter an order confirming the registered support order and determining the amounts remaining unpaid. If the obli-gor appears and a hearing is held, the court shall adjudicate the issues including the amounts remaining unpaid.”
“§ 21.66. Effect and Enforcement of Support Order
The support order as confirmed shall have the same effect and may be enforced as if originally entered in the court of this state. The procedures for the enforcement thereof shall be as in civil cases, including the power to punish the defendant for contempt as in the case of other orders for payment of temporary alimony, maintenance, or support entered in this state.”

As indicated by the statutes, the registration procedure is applicable in those instances where the obligee has previously obtained a support decree in a sister state. In reality, it is simply a proceeding for the enforcement of a foreign judgment, similar to a proceeding under the full faith and credit clause of the United States Constitution. Statute Note, 44 Tex.L.Rev. 814 (1966). As in a full faith and credit inquiry, the only defenses which may be interposed are those which relate to the validity of the original decree, such as a lack of jurisdiction or the existence of procedural defects which render the judgment void. Defenses based upon a claim that the judgment was erroneous or that, according to the law of the forum, the judgment would not have been rendered in the first instance, are not permitted. Statute Note, 44 Tex.L.Rev. 814 (1966). Thus, if one of the limited defenses allowed by Sec. 21.65 is not successfully interposed, the Texas court has only one course to take. It must confirm the decree, determine the amounts thereunder which are unpaid, and employ such enforcement procedures under Sec. 21.66 as may be deemed proper.

Some version of URESA has been adopted by all fifty of our states, but all of the versions are not identical. The question whether, under the registration procedure, the registering state may modify an existing foreign support order has not, so far as we have been able to determine, been decided in any jurisdiction, and the language of some of the state versions of URESA is not clear on that point, but a careful study of the Texas version of the act, as compared with those adopted by other states, leads us to conclude that it did not intend to permit, in the registration procedure provided for in Secs. 21.61 — 21.66, the modification by a Texas court of the registered foreign decree. To do so would go against the express provisions of Sec. 21.65 and would tend to defeat URESA’s goal of providing a simple and efficient proceeding for enforcing foreign support orders without compelling the out-of-state obligee to come to Texas and relitigate the issues. That such was the goal of the Texas Act is, we think, confirmed by Sec. 21.44, which provides that participation in any proceeding under URESA will not confer upon the court jurisdiction of any of the parties thereto in any other proceeding.

Appellant’s petition clearly brought her claim within the registration section to the act. She attached a copy of the support decree, based her right to relief upon Sec. 21.65, and prayed that the Georgia decree be registered and confirmed. In those circumstances, it was error for the court to go beyond the provisions of the act and entertain appellee’s motion to modify the support order. Accordingly, the judgment of the trial court is reformed so as to eliminate therefrom all provisions purporting to modify the January 23, 1976, judgment of the Superior Court of Cobb County, Georgia. As reformed, the judgment of the trial court is affirmed.

      . Texas Family Code Ann. Sec. 21.01, et seq. (1975).


text:
    In the Matter of the MARRIAGE OF Fortino Pineda TRUJILLO and Maria C. Vela Trujillo.
    No. 8610.
    Court of Civil Appeals of Texas, Texarkana.
    March 20, 1979.

      William M. Boyd, Boyd, Veigel & Gay, Inc., McKinney, for appellant.
    Jack L. Johannes, Jack Johannes & Associates, Dallas, for appellee.
   RAY, Justice.

This is a domestic relations case. Appellant (petitioner), Fortino Pineda Trujillo, sought a divorce and division of the property of the parties from appellee (respondent), Maria C. Vela Trujillo. Appellant was granted a divorce and the trial court, sitting without a jury, entered its judgment awarding appellee, Maria, a one-third undivided interest in the property known as Tino’s Mexican Restaurant. It is from this award of the interest in the restaurant that appellant, Fortino, has brought this appeal. Two points of error have been submitted for our consideration.

Appellant’s first point of error is as follows:

“The trial Court abused its discretion in its division of the property awarding a one-third undivided interest in the property known as Tino’s Mexican Restaurant to Appellee.”

Point of Error No. 2 is as follows:

“The trial Court’s division of the property amounts to an award of permanent alimony in violation of the public policy of the State of Texas.”

The judgment of the trial court will be affirmed.

Fortino and Maria were formally married on October 7, 1976, and separated three days later. The parties had known each other for approximately three years and had been living together as husband and wife for eight months prior to their ceremonial marriage. Fortino came to Texas from California in June of 1975 to establish his own restaurant. Maria followed on January 31, 1976, and moved into an apartment with Fortino the next day. Fortino opened his restaurant on September 2, 1976, and invested in the business the sum of $9,418.84 from his separate estate along with $1,290.00 from the community estate. Maria contributed her time and services by working as a waitress, hostess and cashier at the restaurant for which she received no pay. The evidence reveals that Maria contributed to the household expenses and savings of the parties.

The divorce decree entered in 1977 awarded Maria an undivided one-third interest in Tino’s Mexican Restaurant. The court found that no children were born of the marriage.

The trial court, after awarding a one-third interest in the restaurant to Maria, has also permanently enjoined Maria from interfering with the possession and operation of the business.

Section 3.63 of the Texas Family Code Annotated grants the trial judge authority to 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. The discretion lodged with the trial court is very broad and his division of the estate will not be set aside on appeal absent a clear showing that the court abused its discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App.Texarkana 1970, no writ); Matter of Marriage of Long, 542 S.W.2d 712, 716 (Tex.Civ.App.Texarkana 1976, no writ).

We have reviewed the entire record in this case and find that the trial judge did not abuse his discretion. The trial court is not required to make an equal division of the community property. 1 Speer’s, Texas Family Law, Sec. 5.62 (5th ed. 1975). Considering all of the circumstances in this case and the various contributions made by the parties, both in money and time, we cannot say the trial court arbitrarily and capriciously gave Maria more than she should have received. The equities of the case are sufficient to support the trial court’s division of the property which allowed Maria to receive an undivided one-third interest in the restaurant.

Appellant cites Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977), as authority for the proposition that the court cannot divest a spouse of separate personal property or a spouse’s fifty percent interest in the community property. A thorough review of that case reveals that it holds that a spouse cannot be divested of his or her separate real property. The trial court has authority to make such division of the community property and the separate personal property of the parties as the court deems just so long as the court does not abuse its discretion. While this court does not think it is wise to award undivided interests in a going business between parties who are already antagonistic, we cannot say that such action constitutes an abuse of discretion. See Flournoy v. Flournoy, 315 S.W.2d 150 (Tex.Civ.App.El Paso 1958, no writ); Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.Waco 1972, writ dism’d); Dorfman v. Dorfman, supra. Appellant’s first point of error is overruled.

Appellant argues that by giving the wife a one-third interest in the continuing business, the court has effectively ordered him to pay alimony. Alimony is a personal obligation imposed upon the husband by court order for the support and sustenance of the wife after a final decree of divorce. Francis v. Francis, 412 S.W.2d 29 (Tex.1967); Matter of Marriage of Long, supra. The award in this case is not alimony because it does not impose a personal obligation upon the husband to support his former wife. Instead, Maria is entitled to one-third of the profits of the restaurant. If there are no profits, she is entitled to nothing; if the business fails, she gets nothing. Maria’s interest includes not only the assets of the business, but its liabilities. If Fortino is dissatisfied, he may petition the court for a partition of the property, which in all likelihood would require the business to be sold and the net proceeds to be divided between the parties according to their interests. We hold that the division of the property, in this case, was not an award of alimony. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


author: HUTCHINSON, Justice.

text:
    Wilma KNUTSON, et vir, Appellants, v. MORTON FOODS, INC. Appellee.
    No. 8680.
    Court of Civil Appeals of Texas, Texarkana.
    March 20, 1979.
    Rehearing Denied April 17, 1979.
    Richard W. Ewing, Schleider & Ewing, Houston, for appellants.
    Fred S. Stradley, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
   HUTCHINSON, Justice.

Appellants, Wilma Knutson and husband, Lonnie Knutson, here complain of the granting of a summary judgment for appel-lee, Morton Foods, Inc.

The suit was initially filed by appellants in Scurry County against appellee and Jack Chastain and wife, Dorothy Chastain, for damages resulting from an automobile collision in Scurry County. Appellants alleged that at the time of the collision Mrs. Chas-tain was within the course of her employment with appellee. Appellee timely filed its plea of privilege and by agreement of counsel, the alleged cause of action against appellee was severed and transferred to Dallas County. Thereafter, appellants settled their claim against the Chastains and the Scurry County suit was dismissed. The settlement was concluded by appellants’ execution of a “Covenant Not To Sue” expressly reserving their cause of action against appellee and providing that should appellee thereafter obtain indemnity and contribution against the Chastains appellants would hold them harmless to the extent of the payment made to them by way of the settlement. This instrument further provided that the sum paid to appellants was in complete and final satisfaction of any and all claims for damages which they might have against the Chastains or their insurer. Thereafter, appellee filed its motion for summary judgment in the suit pending against it in Dallas County. The motion was granted and a take nothing judgment entered.

There being no allegation of negligence on the part of the appellee, appellants’ alleged cause of action is based solely upon the doctrine of respondeat superior. Liability is sought against appellee as principal for the tortious acts of its alleged agent (Chastain). Under the doctrine of respondeat superior the liability of the principal for damage to third persons inflicted by an agent in the course of his employment is derivative and secondary. That of the agent is primary. While the principal whose liability is predicated solely upon the doctrine of respondeat superior, not upon any wrong on his part, may be sued jointly with his agent for a tort committed by the agent within the scope of his employment, they are not joint or concurrent tort-fea-sors. Although the principal may be required to respond to third persons by reason of the liability of its agent, he will be subrogated to the rights of the injured third person and may recover from his agent who is primarily liable. While the Texas courts have not consistently spelled out the distinction between the liabilities of a principal or employer and the liabilities of joint or concurrent tort-feasors, the results reached by our courts are compatible with the distinction. Hunt v. Ziegler, 271 S.W. 936 (Tex.Civ.App. San Antonio 1925), affm’d, 280 S.W. 546 (Tex.Com.App.1926); Pearson v. Jacobs, 293 S.W.2d 543 (Tex.Civ.App. Amarillo 1956, writ ref’d n. r. e.); Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App. Corpus Christi 1966, writ ref’d n. r. e.). The distinction is recognized and clearly set forth in the case of Spradley v. McCrackin, 505 S.W.2d 955 (Tex.Civ.App. Tyler 1974, writ ref’d n. r. e.). There the plaintiffs executed a general release of the employee prior to the institution of a suit against the employer and it was held that the release of the employee operated to also release the employer without the necessity of naming the employer. It is true that the instrument here is captioned a “Covenant Not To Sue”, yet it goes beyond its connotation and contains a paragraph which is a general release within itself.

Since the primary liability of the agent (Chastain) has been effectively released and no longer exists, there is no remaining basis to support the derivative cause of action against the principal. Simpson v. Townsley, 283 F.2d 743 (10th Cir. 1960).

In view of the above, appellants’ second point of error is rendered moot.

The judgment of the trial court is affirmed.

      . “It is specifically agreed that the sum paid to plaintiffs and their attorney is in complete and final satisfaction of any and all claims for damages, of whatsoever kind and character, which plaintiffs, or anyone claiming through them or on their behalf, may have against defendants Chastain or their insurer.”


author: McCLOUD, Chief Justice.

text:
    Manuel Albert HOLCEMBACK, Appellant, v. Wanda Howie HOLCEMBACK, Appellee.
    No. 5256.
    Court of Civil Appeals of Texas, Eastland.
    March 22, 1979.

      David M. Stagner, Nance, Caston & Nall, Denison, for appellant.
    Michael Thompson, Jarvis, Thompson, Grisham, Sanders, Smyre, Hagood, Emerson & Fry, Denison, for appellee.
   McCLOUD, Chief Justice.

This is an appeal of a property division rendered by the court upon the granting of a divorce. The issue is the status of a thirty acre tract of land acquired by purchase during the marriage. The court found that the property was purchased with community funds and was community property. The thirty acre tract was awarded to the husband, Manuel Albert Holcemback, but the court imposed an equitable lien on the property until the husband paid the wife, Wanda Howie Holcemback, the sum of $9,972.50, which the court awarded to her. Manuel Albert Holcemback has appealed. We affirm.

The parties were married on April 30, 1971. On January 9, 1973, Matilda Holcem-back, mother of Manuel Albert Holcem-back, executed a deed conveying the thirty acre tract to Manuel Albert Holcemback. The deed recited that the consideration was paid out of “his separate funds and estate” and the property was conveyed to Manuel Albert Holcemback as “his separate property and estate.” The husband testified that he paid his mother $1,000 on January 9, 1973, and paid her the balance of $3,620 on February 20, 1974, when they “finally closed” the deal. He testified that he had $7,500 “cash” when the parties married. He stated this money was kept in his dresser drawer. He did not show this money to his wife or anyone else. Wanda Howie Holcemback testified that in performing the normal household functions as a wife, such as putting clothes in drawers, she had never seen any money hidden around the house. The husband testified that he took $4,000 from the cash he had at the time of the marriage and deposited it on December 19, 1973, in a savings account in the name of “M. A. Holcemback.” On February 20, 1974, Manuel Albert Holcemback withdrew $3,620 from the savings account and paid his mother the balance owed on the property. Substantial improvements were placed on the property during the marriage. The trial court found that the husband controlled the “financial aspects of the marriage.”

Manuel Albert Holcemback argues that the property is presumed to be his separate property because of the recitations in the deed. Wanda Howie Holcemback urges that since she did not participate in the transaction, there is no separate property presumption, and the community property presumption contained in Section 5.02 of the Texas Family Code controls.

Our Supreme Court in Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900 (1955) held that in this type of situation neither a presumption that the property is separate nor a presumption that the property is community should be applied. In discussing the rule to be applied when the spouse claiming the property to be community did not participate in the transaction, the court said:

not only is the husband free of the parol evidence rule in proving the community nature of the transaction as against the separate property recitals in the deed, but also there would seem to be little more reason to apply a presumption from the recitals in favor of the wife’s separate estate than to apply the elemental presumption to the contrary effect. It is accordingly reasonable to say that in such a case, once there is adduced evidence of probative force tending to show the property to have been purchased with community funds, the question as to the status of the property is ordinarily one of fact.

See also Fritz, Marital Property—Effects of Recitals and Credit Purchases, 41 Texas L.Rev. 1 (1962).

In the instant case, as in Hodge, there is evidence that community funds came into the possession of the husband prior to the conveyance. This is some evidence to support the finding of the trial court that the thirty acre tract was purchased with community funds. The testimony of the husband, an interested witness, that he purchased the property with cash, kept in a dresser drawer, that he owned prior to the marriage was not conclusive. Huntley v. Huntley, 512 S.W.2d 767 (Tex.Civ.App.—Austin 1974, no writ); Kirtley v. Kirtley, 417 S.W.2d 847 (Tex.Civ.App.—Texarkana 1967, writ dism’d); Parmeter v. Parmeter, 348 S.W.2d 51 (Tex.Civ.App.—Dallas 1961, no writ). After considering the entire record, we further hold that the evidence is not factually insufficient to support the finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have reviewed the property division rendered by the trial court and hold that the court did not clearly abuse its discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974).

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


text:
    Wolcott E. STEWART and Stewart Heart Company, Appellants, v. CONTROL DATA CORPORATION and Charles Douglas Callahan, Appellees.
    No. 8639.
    Court of Civil Appeals of Texas, Texarkana.
    March 27, 1979.
    Rehearing Denied May 1, 1979.

      Earl L. Yeakel, III, Kammerman, Yeakel & Overstreet, Austin, for appellants.
    William T. Hankinson, Thompson, Knight, Simmons & Bullion, Michael L. Par-ham, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellees.
   CORNELIUS, Chief Justice.

This is a malicious prosecution action filed by Dr. Wolcott Stewart against Charles Douglas Callahan and his employer, Control Data Corporation. The jury found against Stewart on several essential elements of his cause of action, and a take nothing judgment was entered. Stewart brings this appeal contending that the court erred in admitting certain items of evidence and in excluding others.

The evidence, viewed most favorably to the jury verdict, revealed the following: In January of 1972 Stewart was engaged in organizing and developing a division of his company, Stewart Heart Company, to be known as Money Power. Money Power was to be primarily an electronic system for providing cash, instant credit, and money transfer by means of identification cards and an elaborate computer system. The plan initially envisioned a nationwide network composed of 26 large computers and 30,000 terminals. Ultimately it was contemplated that the plan would extend worldwide. Callahan was a senior systems analyst for Control Data Corporation, and Stewart consulted him about the computer equipment Money Power would need to implement its plan. In the course of the discussions Callahan became suspicious that the plan might not be a legitimate operation. His suspicions were aroused by several things: Stewart was representing that the plan would be in operation within four to six months, and Callahan knew that the computers could not even be obtained in such a short period of time. Stewart was talking about over $100,000,000.00 worth of computer hardware, yet he had no computer training, and only one of his salesmen/associates had any previous experience or connection with the computer industry. As Stewart’s cash reserves were extremely limited, the plan was to be financed through the sale of 15,000 franchises at a cost of $20,000.00 each, and Callahan learned that five of Money Power’s salesmen/associates had previously worked for Glenn Turner and his Dare To Be Great pyramid franchising program which had received publicity in Texas and elsewhere as a fraudulent and illegal pyramid operation.

During the discussions with Callahan, Stewart and his associates presented and explained Money Power’s goals, which were to provide cash transfers, tax preparation, legal counsel, banking services, group buying discounts, health insurance, money collection services and instant cash to a potential 15,000,000 customers through an extensive franchise and computer network. Stewart told Callahan that Money Power would have a first year cash flow of $522,-000,000,000.00 with a net profit of $10,000,-000,000.00. One of the salesmen represented that a $20,000.00 franchise would net $102,000.00 the first year and that at the end of the first year it would be worth $1,000,000.00, and that Money Power would buy it back from any purchaser who was dissatisfied. Based on these goals and representations, together with the fact that most of Stewart’s salesmen had recently worked for Glenn Turner, Callahan thought that Money Power might be a fraudulent franchise pyramid scheme, so he telephoned the district attorney’s office to determine if they were investigating Stewart. They were not, but upon hearing of the plan Stewart had presented to Callahan, they asked him to cooperate with them in making such an investigation. After seeking advice of counsel, Callahan agreed to cooperate. At the request of the district attorney’s office he arranged a meeting between Stewart and some of his associates and Sheriff’s Deputy Linebarger, whom Callahan introduced as a wealthy potential investor. A female officer also attended and was introduced by Callahan as his wife. Stewart presented Money Power’s plan to Linebarger and urged that he become a purchaser of a franchise, promising him that if he did so he would also be hired as one of the company’s district managers at a salary of $799,000.00 per year. Linebarger deferred, saying he needed time to consider the proposition. He then asked Callahan if he felt the plan could be implemented within the time frame contemplated by Stewart, and Callahan said that he did not think so. Linebarger subsequently arrested Stewart and his associates and filed a complaint against them charging conspiracy to commit theft. The Tarrant County Grand Jury, after hearing testimony, returned an indictment for the same charge. Later, the district attorney filed a motion to dismiss the case. As ground for dismissal the motion listed the following:

“1. Deposition of expert consulted by the Defendants was taken in this case. He will not testify that the plan set forth by the Defendants was impossible to accomplish.
2. Insufficient evidence to support charge of conspiracy.”

In February of 1973 Stewart initiated this action against Control Data Corporation and Callahan, alleging that the prosecution was instituted at the behest of Callahan, and that his action in doing so constituted malicious prosecution.

Evidence produced on behalf of Stewart was that he held a Ph.D in animal husbandry and physiology, and had pioneered in the development of animal organ transplants and an artificial heart; that his plan for Money Power, although quite ambitious, was not impossible; and that Stewart and his associates were sincere in their efforts to implement the plan. There was no evidence of any actual fraudulent act or fraudulent intent.

The plaintiff in a malicious prosecution case has the burden of proving seven essential elements: (1) the commencement of a criminal prosecution against him, (2) which was caused by the defendant or through his aid or cooperation, (3) which terminated in favor of the plaintiff by acquittal, (4) that the plaintiff was not guilty of the charge brought against him, (5) that no probable cause existed for the filing of the charge, (6) that it was done with malice, and (7) that the plaintiff was thereby damaged. Williams v. Frank Parra Chevrolet, Inc., 552 S.W.2d 635 (Tex.Civ.App. Waco 1977, no writ); Parker v. Dallas Hunting and Fishing Club, 463 S.W.2d 496 (Tex.Civ.App. Dallas 1971, no writ); Flowers v. Central Power & Light Co., 314 S.W.2d 373 (Tex.Civ.App. Waco 1958, writ ref’d n. r. e.). In this case the jury found there was probable cause for the filing of the charge. They also found that Callahan neither caused nor aided the prosecution and that he did not act with malice.

Stewart raises only two contentions on appeal. The first urges that the court erred in admitting evidence concerning Glenn Turner’s Dare To Be Great program and the fact that Stewart’s salesmen had been employees of that organization. It is asserted that the evidence was irrelevant and prejudicial, and that its admission constituted an improper use of character and reputation evidence.

Ordinarily, acts of persons who are not parties to the lawsuit and which are unrelated to the issues being litigated are irrelevant and are not admissible in evidence. But in a malicious prosecution suit the critical issues are whether the defendant had probable cause when he reported the plaintiff to the authorities or took other steps to initiate a prosecution, and if he acted with malice in doing so. The existence of probable cause depends on whether the defendant had reasonable grounds, from the facts known to him at the time, to believe that the plaintiff was guilty of a crime. Moran Utilities Company v. J. W. Childs, 392 S.W.2d 536 (Tex.Civ.App. Beaumont 1965, writ ref’d n. r. e.). And malice may be inferred from a lack of probable cause. 37 Tex.Jur.2d Malicious Prosecution, Sec. 14, p. 535. Thus, the question whether Callahan had reasonable grounds to act as he did must be determined on the basis of the facts known to him at the time, and the inferences which those facts would raise in the mind of an ordinary, prudent person. 52 Am.Jur.2d Malicious Prosecution, Sec. 169, pp. 291, et seq. Any evidence legitimately tending to show those facts and inferences, including relevant statements or acts of third persons, is admissible. 54 C.J.S. Malicious Prosecution § 89, pp. 1065, et seq.; § 90, pp. 1071, et seq. Callahan testified that the grandiose nature of Stewart’s plan, the apparent impossibility of its being implemented within a few months, and the unrealistic representations of rapid and fantastic profits, together with the facts that the plan depended on the sale of thousands of franchises, and most of Stewart’s salesmen were former employees of Glenn Turner’s Dare To Be Great enterprise, raised in his mind a suspicion that Money Power might be a fraudulent scheme. Evidence that the salesmen were former employees of Turner, together with some explanation of the nature of Mr. Turner’s operation, was therefore relevant on the question of the reasonableness of Callahan’s suspicions and resulting actions.

Stewart’s second contention on appeal relates to the district attorney’s motion to dismiss the prosecution. The trial judge admitted the motion into evidence for the limited purpose of showing that the prosecution was dismissed. Stewart contends that the entire motion should .have been admitted, including the district attorney’s statement that “Deposition of expert consulted by the Defendants was taken in this case. He will not testify that the plan set forth by the Defendants was impossible to accomplish.” Callahan contends that under Article 3731a, Tex.Rev.Civ.Stat.Ann. (Supp. 1978-1979), the motion itself was admissible, but the quoted statement, being hearsay upon hearsay and a conclusion, was not admissible.

We have concluded that the district attorney’s statement should have been admitted. We construe it as a statement of personal knowledge on his part, which had come to him in the performance of his official duties, concerning the effect of Callahan’s deposition. The testimony showed that the deposition of Callahan had been taken while the district attorney or his representative was present. The statement in the motion simply relates that, according to the testimony of Callahan which had already been given, he could not or would not testify that Stewart’s plan was impossible to accomplish. We further conclude, however, that the action of the trial court in limiting the evidence was harmless error. The entire document was placed before the jury, and no portion of it was deleted or obscured. The trial judge did not instruct the jury that they could not consider the statements in the motion, and the attorneys, especially Stewart’s, repeatedly referred to the reasons why the case was dismissed, as stated in the motion, and questioned the district attorney’s representative extensively about it. One of Stewart’s attorneys testified without objection that he had read Callahan’s deposition, and that on the basis of it the State had no case against Stewart. That testimony was, in practical effect, the same as was stated by the district attorney in the motion. Furthermore, the jury found that Callahan did not cause and did not aid or encourage the prosecution. Under the circumstances we cannot conclude that the trial court’s action in admitting the motion for a limited purpose was calculated to cause the rendition of an improper judgment. See Tex.R.Civ.P. 434.

The judgment of the trial court is affirmed.

      . “Section 1. Any written instrument, certificate, record, part of record, return, report, or part of report, made by an officer of this State or of any governmental subdivision thereof, or by his deputy, or person or employee under his supervision, in the performance of the functions of his office and employment, shall be, so far as relevant, admitted in the courts of this State as evidence of the matter stated therein, subject to the provisions in Section 3.”


author: COULSON, Justice.

text:
    Paul GUIDRY, Appellant, v. Dr. John R. PHILLIPS, Appellee.
    No. B 1875.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 28, 1979.
    Rehearings Denied April 18, 1979.

      John H. Holloway, Houston, for appellant.
    Charles R. Parker, Fulbright & Jaworski, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and COULSON and GIRE, JJ.
   COULSON, Justice.

Paul Guidry, appellant, sued appellee Dr. John R. Phillips alleging malpractice, negligence, fraud, and breach of warranty in the performance of alleged unnecessary surgery to remove appellant’s carotid body from his neck in an effort to cure his asthma. Appellant also sued the Harris County Medical Society for alleged fraud, misrepresentation and negligence in informing appellant’s mother, upon inquiry, that Dr. Phillips was in very good standing with the Medical Society and that no complaints had ever been filed against him, although it is alleged that many such complaints had in fact been filed with the Society. Further allegations against the Medical Society complained of negligence in maintaining Dr. Phillips as a member in good standing and in not acting to inform the hospital where Dr. Phillips practiced of the complaints against him so that the hospital could act to curtail his surgical privileges. On motion by Dr. Phillips the trial court severed the cause of action against the Harris County Medical Society. Trial of appellant’s cause of action against Dr. Phillips was had to a jury and resulted in a judgment that plaintiff take nothing. Appellant appeals from that judgment. We reverse and remand the cause for a new trial.

Appellant’s first four points of error are addressed to the exclusion of testimony given by Dr. Thomas L. Petty, offered in the form of answers to a deposition taken by written interrogatories. Point of error number one urges that the trial court erred in sustaining appellee’s objections to a lengthy hypothetical question posed to Dr. Petty. This question set forth in detail the facts of appellant’s case in hypothetical form and elicited the doctor’s expert opinion on whether the operation was consistent with good medical practice. Appellee objected to this testimony on the basis that the deposition was obtained in 1972 and that Dr. Petty was not qualified to testify as to the standard of care for a similar patient in 1963, the date the operation on appellant was performed. We do not agree.

The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. The circumstances to be considered include, but are not limited to, the expertise of and means available to the physician-defendant, the health of the patient, and the state of medical knowledge.

Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977). The state of medical knowledge at the time of the treatment alleged to have been improper is a particularly important circumstance in a case like the one before us, which involves a mode of treatment which has always been controversial, but at the time rendered may have been in favor with more members of the medical profession than later proved to be the case. Therefore it is incumbent upon the plaintiff in such case to demonstrate that his expert medical witness is qualified to testify as to the state of medical knowledge at the time of the treatment complained of and to limit his opinion testimony to the standard of care in effect at that time. As to the first of these burdens the evidence of Dr. Petty’s qualifications and experience showed that he graduated from the University of Colorado Medical School in 1958 with an M.D. degree, spent the next year in an internship training and then had one year of medical specialty residency at the University of Michigan. This was followed by two more years of medicine specialty training at the University of Colorado, ending in 1962. In 1963 he had a fellowship training in the subspecialty of pulmonary disease which made him Board qualified in pulmonary disease. Thus, during the period in question, 1963, Dr. Petty was a licensed physician pursuing intensive studies in the area of pulmonary diseases. We believe that this is sufficient to qualify Dr. Petty to testify as to the standard of care for treatment of asthma in 1963. Jeffcoat v. Phillips, 534 S.W.2d 168, 174 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

Appellee also argued that appellant’s questions did not limit Dr. Petty’s testimony to the standard of care in 1963. It is true that Dr. Petty’s deposition was not taken until 1972. However the hypothetical question here, which covers some four pages of single-spaced type in the statement of facts and explains in detail the facts of appellant’s case, limits the facts to the dates actually covered. Several times within the lengthy hypothetical the witness is asked to assume the fact that all of the events occurred in 1963. We believe this is sufficient to limit Dr. Petty’s opinion to the state of medical knowledge and the standard of care in 1963.

Appellee raised one additional ground for objection to the following portion of Dr. Petty’s testimony in response to this hypothetical question:

What is your medical opinion, based on reasonable medical probability, as to whether a physician who was exercising ordinary care for such a patient would have submitted the patient to this type of surgery for asthma or emphysema, or a combination of both of such illnesses?

Answer by Dr. Petty:

In my opinion, ordinary care would not include submitting the child to glomecto-my. This operation is of no benefit to a child with a medical history described in the question.

Appellee complains that the response to this question answered the ultimate issue of fact of whether Dr. Phillips’ conduct constituted negligence and thus invaded the province of the jury in violation of the rule established in Snow v. Bond, 438 S.W.2d 549 (Tex.1969). Our supreme court in Snow v. Bond expressed this rule in the following paragraph:

What constitutes negligence or malpractice is a mixed question of law and fact that can only be determined by the trier of fact on the basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion thereon. See Houston & T. C. R. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808. The question of what a reasonable and prudent doctor would have done under the same or similar circumstances must also be determined by the trier of fact after being advised concerning the medical standards of practice and treatment in the particular case. An expert witness can and should give information about these standards without summarizing, qualifying or embellishing his evidence with expressions of opinion as to the conduct that might be expected of a hypothetical doctor similarly situated. The latter is not an appropriate subject for expert testimony. See Phoenix Assur. Co. of London v. Stobaugh, 127 Tex. 308, 94 S.W.2d 428.

The proposition that a medical expert witness is not competent to testify as to whether the defendant doctor’s action constituted negligence or malpractice has been reiterated in many Texas cases. See, Burks v. Meredith, 546 S.W.2d 366 (Tex.Civ.App.—Waco 1977, writ ref’d n. r. e.); Lee v. Andrews, 545 S.W.2d 238 (Tex.Civ.App.—Amarillo 1976, cause dismissed); Smith v. Guthrie, 557 S.W.2d 163 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.). An examination of the cases reveals that this rule has been variously expressed and applied and no exact concept of what violates the rule has emerged. It is clear that a medical expert would not be permitted to state that the defendant doctor did or did not commit malpractice or negligence, nor could he state directly that what the defendant did was “wrong.”

The testimony here however did not express such a direct opinion. Rather than stating that Dr. Phillips’ treatment of the plaintiff was negligent, Dr. Petty indicated that in his opinion the carotid body surgery would not fall within the boundaries of ordinary care. We believe that in this statement Dr. Petty was merely establishing a standard of care. This is the purpose for which medical expert testimony is required in medical malpractice cases. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949).

The testimony of Dr. Petty in response to this hypothetical question was essential to appellant’s case in establishing the standard of care by which Dr. Phillips’ treatment was to be judged. The trial court erred in excluding this testimony and the error was harmful. We must therefore reverse the judgment in favor of Dr. Phillips and remand the cause for a new trial. Appellant’s first point of error is sustained.

In light of the necessity for another trial we will consider appellant’s other points of error. His second and third points of error complain of the exclusion of Dr. Petty’s testimony in response to two different questions. One of these was a hypothetical question involving the case of a four and one-half year old child and the other concerned a sixty-six year old man on whom Dr. Phillips had operated and whom Dr. Petty had subsequently treated. These questions and Dr. Petty’s responses thereto were immaterial and irrelevant and were properly excluded as they dealt with matters collateral to the issues in this ease, i. e., the condition and care of persons not similarly situated to the appellant and not parties to the cause. Goodnight v. Phillips, 458 S.W.2d 196 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.). We note also that appellant did not attempt to limit Dr. Petty’s responses to these questions to the time frame within which the facts of appellant’s case occurred. As noted in our discussion of appellant’s first point of error, such limitation was essential in this cause.

Appellant's fourth point of error complains of the exclusion of other testimony by Dr. Petty in which he expresses his views on the usefulness of carotid body surgery in the treatment of emphysema and bronchitis, and his opinion as to the proper treatment of those conditions. We have examined this testimony carefully and conclude that it was properly excluded because Dr. Petty was, again, not limited in his testimony to the period of time in which Dr. Phillips performed the surgery on appellant. Clearly Dr. Petty is expressing his opinion of this type of surgery as of 1972:

A. The accepted, in my opinion, best treatment for emphysema and chronic bronchitis is a combination of the use of drugs such as antibiotics, the systematic use of inhaled aerosols to help combat the disease, and the application of physical medicine techniques designed to improve breathing efficiency and to promote the physical reconditioning of the patient. The removal of the carotid body is not an accepted procedure for the cure or treatment of emphysema or asthma or chronic bronchitis. The reason that it is not accepted is as follows: The carotid body is important in the respiration, and its removal robs the body of one of the regulatory mechanisms of breathing. Nonetheless, the procedure has been proposed really without much scientific rationale, tried by a number of physicians worldwide; found ineffectual and abandoned. In my own judgment, the procedure is not only not beneficial, but potentially harmful.

The concluding portion of this testimony indicates that Dr. Petty’s opinion as to the treatment for asthma is expressed of the year in which his deposition was taken. The record shows that the operation on appellant was performed during the time in which the carotid body surgery was being proposed and performed by a number of physicians worldwide. It was only subsequent to 1963 that it was generally found to be ineffectual and was abandoned. The current state of medical knowledge may regard carotid body surgery as totally discredited, as Dr. Petty’s testimony indicates. The question in this case, however, is whether Dr. Phillips undertook “a form of treatment which a reasonable and prudent member of the medical profession would not have taken under the same or similar circumstances ” (emphasis added). Hood v. Phillips, supra, at 165. The circumstances to be considered include the state of medical knowledge at the time the complained of treatment was performed. Advancements in medical knowledge between that time and the time of trial cannot properly be taken into account in judging whether the physician behaved in a reasonable and prudent manner before these later developments took place in the medical community. The later advancements could not have been available to Dr. Phillips in 1963, and the jury should not be allowed to judge his treatment under those standards. The evidence was properly excluded and appellant’s fourth point of error is overruled.

Appellant complains in his fifth point of error of the refusal of the trial court to admit a report from the New England Journal of Medicine authored by Dr. Morris Segal and Dr. Mauricio J. Dulfano. This point contends that the trial court erred in not allowing appellant to use the report to impeach appellee’s expert witness Dr. Over-holt on cross-examination. The report in question is a study of fifteen patients who had undergone carotid surgery. It concludes that the surgery had no objective beneficial effect upon the patients studied. At trial Dr. Overholt recognized Dr. Segal, co-author of the report, as an authority in the medical treatment of emphysema. Furthermore, he stated that all but one of the fifteen patients involved in the study had been his patients and that he had sent them to Dr. Segal for treatment after the carotid body surgery had not been successful. Dr. Overholt indicated that he had not expected, nor claimed that the surgery was successful in helping all persons with asthma and emphysema and that he had sent these fourteen patients to Dr. Segal, after he determined that the surgery had been unsuccessful on them, to see if they could be helped by other means. He stated that the report was not accurate in its conclusion that carotid body surgery was not a useful procedure because it was based solely on the cases of admitted failures and had not taken into account any patients for whom the surgery had proved beneficial.

We believe that this report should have been admitted for the purpose of cross-examination. The report was co-authored by a physician whom the witness acknowledged as an authority in his field of medicine, both on the witness stand and by referring his own patients to him. Indeed the report involved the evaluation of Dr. Overholt’s own carotid body surgical patients. We do not believe that a report so closely linked to the witness’ own experiences with the procedure in question should be excluded from cross-examination of that witness merely because he does not agree with its conclusions. We hold that when a medical expert witness has acknowledged another physician as an authority in his field of medicine by referring patients to him, a published medical report authored by that authority based upon his examination of those same patients is admissible for impeachment purposes on cross-examination of the medical witness. Any explanation which the witness can offer as to why he disagrees with the conclusion of the report is, of course, also admissible. But such disagreement would relate to the weight to be given to that report by the jury and does not preclude it from being admitted. Appellant’s fifth point of error is sustained.

We wish to reemphasize that on remand and retrial of this case the questions to the expert witnesses should comply with the guidelines established by our Supreme Court in the cases of Snow v. Bond, supra; Hood v. Phillips, supra; and Bowles v. Bourdon, supra.

Appellant’s points of error numbers six through nine complain of the sufficiency of the evidence to support the jury’s answers to certain of the special issues. Since the case must be remanded for a new trial it is unnecessary for us to comment on the state of the evidence as to these points.

Point of error number ten asserts that as a matter of law a physician in 1963, would not have submitted a minor patient to carotid body surgery. We cannot agree that this is a question to be resolved as a matter of law. It is an issue for the trier of fact to decide based upon the evidence adduced at trial as to the standard of care applicable in the circumstances. Appellant argues that a parent cannot consent to medical treatment of a minor child which is detrimental to his health or well being and that the child can renounce such consent upon his coming of age. Appellant cites no authority for this proposition, but even if it is valid the question whether the treatment in fact was detrimental to the child is one for the trier of fact to determine based upon the evidence. Appellant’s tenth point of error is overruled.

In his final point of error appellant argues that the trial court erred in granting Dr. Phillips’ motion for severance of appellant’s cause of action against the Harris County Medical Society and in abating that suit pending determination of the suit against Dr. Phillips. Rule 174(b) Tex. R.Civ.P. provides that the court may order a separate trial of any claim “in furtherance of convenience or to avoid prejudice”. This rule has been held to bestow upon the trial court broad discretion in the matter of the severance of causes, and the trial court’s action ordering a severance will not be disturbed on appeal except for an abuse of that discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1976); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955). Appellant has asserted two separate and distinct claims against Dr. Phillips and the Medical Society, as noted in our introductory paragraph. The claim against the Medical Society is based upon its alleged negligence in failing to act upon complaints filed against Dr. Phillips and alleged misrepresentations in informing appellant’s mother that no such complaints had been filed. The claim against Dr. Phillips was based upon alleged malpractice in the performance of a specific treatment upon appellant. Thus the two causes of action do not arise out of the same transaction or series of transactions and the evidence as to the two claims would not be the same. Furthermore, the evidence against the Medical Society consists of its records of correspondence and complaints involving Dr. Phillips, some of which are dated over 10 years prior to the surgery in issue in this cause. Such reports, if introduced into evidence, could have an extremely prejudicial effect against Dr. Phillips although they relate to matters totally separate from and collateral to the surgery performed on appellant and would not be admissible as against Dr. Phillips in this case. We cannot find that the trial court abused its discretion in ordering the severance to avoid prejudice under Rule 174(b) Tex.R.Civ.P.

As to the order granting the defendant Medical Society’s plea in abatement, the order was granted in the severed and separate cause of action and is not before us in this appeal from the trial of the cause of action against Dr. Phillips.

The judgment of the trial court is reversed and the case is remanded to that court for a new trial.

Reversed and remanded.

      . For an explanation of carotid body surger see Hood v. Phillips, 554 S.W.2d 160 (Tex.1977), especially footnote 2, at 162.


author: DICKENSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Tom JONES, Appellee.
    No. 5276.
    Court of Civil Appeals of Texas, Eastland.
    March 29, 1979.

      Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    Ken R. Davey, P. C., Dallas, for appellee.
   DICKENSON, Justice.

Texas Employers’ Insurance Association filed suit in Dallas County to appeal from an award of the Industrial Accident Board. Tom Jones filed an answer and a cross-action to seek compensation benefits for total and permanent disability and for medical expenses. The association filed its answer to the cross-action. Tom Jones also filed a motion to transfer the lawsuit to Collin County, where the injury occurred, even though he resided in Dallas County at the time the injury occurred. The trial court transferred the case to Collin County. The association appealed. We reverse the transfer order and remand the cause for trial in Dallas County.

The initial question is whether the association has a right to appeal from the transfer order at this time or if the transfer order is a nonappealable interlocutory order. Even though the transfer order is interlocutory, we hold that there is a present right of appeal. Boyce v. Texas Indemnity Insurance Company, 193 S.W.2d 551 (Tex.Civ.App.—Beaumont 1946, writ dism’d), considering a “motion to transfer” a worker’s compensation case, stated:

On a former day of this term of court this appeal was dismissed on the ground that this court was without jurisdiction to entertain this appeal. In appellant’s motion for rehearing he called our attention to the opinion of the Commission of Appeals in the case of Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, which sustains the contention of the appellant that this court has jurisdiction of this cause. Therefore appellant’s motion for a rehearing is granted and we will dispose of the appeal on its merits.
We are not here concerned with the merits of claimant’s claim for compensation, but only to determine the proper court to pass upon the merits of his claim. .

The association’s appeal presents one point of error stating the district court erred in transferring this worker’s compensation case to Collin County, the county of injury, from Dallas County, the county of Tom Jones’ residence at the time of injury. We agree. Article 8307, § 5, Tex.Rev.Civ. Stat.Ann. (Supp.1979), now specifically states that such suits may be brought “in the county where the injury occurred, or in the county where the employee resided at the time the injury occurred.” The 1977 amendment to this section gives the association, as well as the worker, the right to file suit in the county where the worker resided on the date of injury. Article 8307a, Tex. Rev.Civ.Stat.Ann. (1967), is not applicable because the district court of Dallas County has jurisdiction under Article 8307, § 5, supra, to render judgment on the merits of this claim.

The transfer order is reversed, and the cause is remanded for trial in Dallas County, Texas.


author: MILLER, Justice.

text:
    Henry A. MORRIS et al., Appellants, v. A. E. REAVES et al., Appellees.
    No. A2009.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 4, 1979.
    Rehearing Denied April 25, 1979.
    Fred A. Collins, Darryle L. J. Fanelli, Houston, for appellants.
    T. D. Smith, Smith & Lamm, Houston, for appellees.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a denial of a temporary injunction. Appellants, plaintiffs below, brought this suit in District Court to enjoin the Montgomery County Sheriff from proceeding with a Sheriff’s sale of a parcel of land in Montgomery County. The execution under which the Sheriff was to proceed was regular on its face having been issued by the 164th District Court of Harris County, Texas in cause no. 1,106,039 styled Credit Alliance Corporation v. James H. Logan.

The chronology of the events leading up to the suit for the temporary injunction is as follows:

(1) Prior to April 12, 1977, James H. Logan was owner in fee simple of the real property situated in Montgomery County, Texas which is made the subject matter of this suit.
(2) April 12, 1977, a default judgment was entered in favor of Credit Alliance Corporation against James H. Logan signed by Judge Max W. Boyer as presiding Judge of 164th District Court of Harris County, Texas.
(3) May 5th, 1977, an abstract of this judgment was filed in the official judgment records of Montgomery County, Texas and properly and timely indexed in the direct and reverse indexes.
(4) August 15, 1977, an order setting aside the aforesaid default judgment was signed and rendered by Judge Thurman Gupton as presiding Judge in the 164th Judicial District Court of Harris County, Texas.
(5) October 21,1977, the subject property was conveyed from James H. Logan to Henry A. Morris, one of the appellants in this case.
(6) October 21, 1977, the order of August 15, setting aside the default judgment was filed and recorded in the property records of Harris County, Texas.
(7) November 2, 1977, the same order was filed and recorded in the property records of Montgomery County, Texas.
(8) November 2, 1977, the general warranty deed from Logan to Morris of the subject property was filed and recorded in the deed records of Montgomery County, Texas.
(9) December 1, 1977, an order setting aside the order of August 15, 1977, was signed and entered by Judge Gupton stating that the court was without jurisdiction to enter the August 15, 1977 order. [This was not recorded in the real property records of either Montgomery or Harris County, Texas.]
(10) December 8, 1977, the subject property was conveyed from Henry A. Morris jointly to Thomas E. Murrell and wife Susan L. Murrell and C. E. Murrell and wife Sharon M. Mur-rell, grantors, all of whom are appellants.
(11) December 13, 1977, an execution was issued on the judgment in the 164th Court’s default judgment which on its face met all the requirements of law.
(12) December 16, 1977, the general warranty deed from Morris to the Mur-rells of the subject property was filed and recorded in the property records of Harris County, Texas.
(13) February 14, 1978, the aforesaid deed from Morris to the Murrells, was filed and recorded in the property records of Montgomery County, Texas.

The trial court heard testimony and admitted evidence at the hearing for the temporary injunction and denied the application. It is from this denial that appellants appeal.

Although appellants bring forth three points of error which address specific findings of the trial court, on appeal the scope of review is solely whether or not the trial court clearly abused its discretion in denying the temporary injunction. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). The trial court’s discretion is exercised in relation to its determination of whether the applicant is entitled to a preservation of the status quo pending trial on the merits. Navarro Auto-Park, Inc. City of San Antonio, 580 S.W.2d 339 (1979); Brooks v. Expo Chemical Co., 576 S.W.2d 369 (1979). To warrant the issuance of the temporary injunction, the applicant need only show a probable right and probable injury. Transport Co. of Texas v. Robertson Transport, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953).

In the case before us, the appellants attempt to demonstrate their probable right by bringing themselves within the protection of the recording statute, Tex.Civ.Stat. Ann. art. 6627. However, the undisputed facts on the face of the transcript show that none of the appellants are entitled to the protected status of bona fide purchasers for value without notice. This is because if appellants were without notice of the order of August 15, 1977, which set aside the default judgment of April 12, 1977, they then had notice of the default judgment which had been properly abstracted in the judgment records of Montgomery County. If they were with notice of the order of August 15, 1977, abstracted or not, they were placed on actual notice that the order was possibly void.

Actual knowledge embraces those things of which the one sought to be charged has express information and those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed. Hexter v. Pratt, 10 S.W.2d 692 (Tex.Comm’n App. 1928, jdgmt adopted). Although notice is a question of fact, Hexter v. Pratt, supra, every man is conclusively presumed to know the law. E. H. Stafford Mfg. Co. v. Wichita School Supply Co., 118 Tex. 650, 23 S.W.2d 695. The law as it relates to the August 15, 1977 order is clearly expressed in Tex.R.Civ.P. 329b(5) which provides:

After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review . . . ”.

As the order of August 15, 1977 was obviously not a bill of review, appellants are not entitled to “close their eyes” as to its possible defects and are charged with notice of the continuing claim of Credit Alliance Corporation. As a matter of law there was no way that the appellants could avoid the actual notice created by the August 15,1977 order. Even if the ultimate circumstances were such that the order was valid, the duty of inquiry raised from the face of the order charged them with the consequences of their purported reliance on it. The trial court, therefore, did not abuse its discretion in denying the application for a temporary injunction.

The judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

In their motion for rehearing appellants strenuously argue that the trial court erroneously applied the law to undisputed facts and thereby abused its discretion. We agree that it is an accurate statement of the law that the trial court’s discretion is not unlimited. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935). If the facts are such that only questions of law are presented, the trial court’s action is reviewable on appeal. Tall Timbers Corp. v. Anderson, 342 S.W.2d 452 (Tex.Civ.App.—Houston [1st Dist.]) rev’d on other grounds 162 Tex. 450, 347 S.W.2d 592 (1961). In this case the trial court was in error when it concluded that because the appellants failed to prove that they had no actual notice of the December 1, 1977 order that they were not entitled to a temporary injunction. We agree the December 1,1977 order was subsequent to the conveyance from Logan to Morris so would not have affected their status at a point several weeks prior. However, erroneous conclusions of law are ineffectual to destroy findings of fact and do not require reversal by the appellate court where the proper judgment is rendered. Tex.R.Civ.P. 434; Hoyt v. Geist, 364 S.W.2d 461 (Tex.Civ.App.—Houston [1st Dist.] 1963, no writ); Keith v. Connally, 85 S.W.2d 788 (Tex.Civ.App.—Fort Worth 1935, no writ).

The trial court below rendered a proper judgment in denying the injunction. Looking at the trial court’s findings of fact, which essentially correspond to stipulations filed by the parties prior to the hearing on the temporary injunction, and applying the law to these facts, appellants were unable to demonstrate their entitlement to a preservation of the status quo pending a final trial on the merits. Even if we had wished to, this court had no reason to decide a factual question, as the parties’ stipulations and the findings of fact of the trial court show as a matter of law that the appellants had either constructive or inquiry notice. Neither was susceptible to being controverted at the hearing for temporary injunction and precluded the appellants from a showing of “probable right” which is necessary to entitle them to an injunction. It would have been an abuse of discretion for the trial court to grant the injunction in light of the undisputed facts.

Appellants’ motion for rehearing is overruled.


author: McDONALD, Chief Justice.

text:
    Gordon WILK, Appellant, v. E. BLACKWELL, Appellee.
    No. 5954.
    Court of Civil Appeals of Texas, Waco.
    April 5, 1979.
    Rehearing Denied May 17, 1979.
    James E. Crouch, Hamilton, for appellant.
    John A. Hastings, Jr., Meridian, H. B. Gordon, Hamilton, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Wilk from judgment of $9,455.00 plus attorneys’ fees, rendered against him and for plaintiff Blackwell in a suit on a sworn account.

Plaintiff Blackwell sued defendant Wilk on a sworn account to collect for 406 hours of bulldozing services alleged to have been rendered to defendant. Defendant answered by a sworn denial of each item in plaintiff’s petition; and pleading alternatively acknowledged he was indebted to plaintiff in some amount, but denied the amount sued for; and further plead he had entered a verbal contract with plaintiff whereby he could pay plaintiff anytime in the next several years.

Trial was before the court which rendered judgment for plaintiff for $9,455., the amount sued for plus attorneys’ fees.

The trial court filed Findings of Fact and Conclusions of Law summarized as follows:

Findings of Fact
1) Plaintiff and defendant entered an oral contract for work and services to be performed by plaintiff on land of defendant.
2) Plaintiff engaged in the work and completed same in accordance with the agreement and request for his services and labor made by defendant to plaintiff.
3) All the work under the oral contract was performed in a good, workmanlike and proper manner by plaintiff in accordance with the parties’ agreement.
4) Defendant failed to pay the reasonable cost of the work performed by plaintiff in accordance with the oral agreement and contract.
5) The balance remaining due and unpaid to plaintiff from defendant for the work performed was $9,455.
Conclusions of Law
1) The District Court of Hamilton County has jurisdiction of this suit.
2) The oral contract for services between plaintiff and defendant constitute a valid contract and obligation of defendant to pay plaintiff the reasonable cost of the services rendered by plaintiff to defendant.
3) Defendant has failed to pay plaintiff the total amount of the reasonable cost of the work performed.
4) Plaintiff is entitled to receive from defendant a reasonable attorney’s fee.

Defendant appeals on 19 points summarized as follows:

1) There is no evidence and/or insufficient evidence to support Findings of Fact 2, 3, 4 and 5.
2) The trial court erred in its Conclusions of Law 2 and 3 because there is no evidence and/or insufficient evidence to support such findings.
3) The trial court erred in its Conclusion of Law 4 since there is no valid judgment to support award of attorneys’ fees to plaintiff.

The bulldozer operator Wagner, an employee of plaintiff, testified he worked on the property of defendant pushing brush for 176 hours, plus working 186 hours in the building of a tank for defendant. Bulldozer operator and employee of plaintiff Montgomery testified he operated his Caterpillar tractor and scraper on defendant’s property for 58 hours. And there is testimony that $25 or'$30 per hour is a reasonable charge for such work.

Plaintiff testified to the contract to do the work, that he had repeatedly billed defendant; that defendant had paid $1,800 on the bill and still owed $9,455.

The witnesses Wagner and Montgomery refreshed their memories of the hours worked from log books kept by them at the time they performed the work. There is evidence that such records were kept in the normal course of employment and on a daily basis, and that such records were kept in the regular course of plaintiff’s business. See University Savings and Loan Assn. v. Security Lumber Co., Tex., 423 S.W.2d 287.

Defendant testified he owed plaintiff something, but not as much as he was sued for and that he had an agreement with plaintiff that he could pay plaintiff for the work when he could over a period of several years.

The evidence is ample to support the findings and judgment of the trial court, and the trial court’s Conclusions of Law are correct.

All defendant’s points are overruled.

AFFIRMED.


text:
    KRAVCO, INC., Appellant, v. Robert D. BEASLEY, Appellee.
    No. 5987.
    Court of Civil Appeals of Texas, Waco.
    April 5, 1979.
    Rehearing Denied May 17, 1979.
    Richard L. Bourland, McGown, Godfrey, Decker, McMackin, Shipman & McClane, Fort Worth, for appellant.
    C. Thomas Wesner, Jr., Wesner, Wylie & Pleasant, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a venue case. Appellee Beasley sued “KRAVCO, Inc.” in Dallas County, for breach of a contract to lease him space in Ridgmor Mall, alleging KRAVCO, Inc., to be a foreign corporation upon which service would be had by serving the Secretary of State and the Secretary of State forwarding copy of the citation by registered mail “to the principal place of business of the corporation at 160 King Prussia Plaza, P.O. Box 135, King of Prussia, Pennsylvania”.

The officer’s return in the transcript reflects that KRAVCO, Inc. was served.

On October 25, 1976 a plea of privilege was filed reciting it was filed by “KRAV-CO, Inc.” and stating it was not a resident of Dallas County, but was a resident of Tarrant County, and praying the “transfer of this cause to Tarrant County, Texas”. The instrument was signed and sworn to by “Larry S. Trachtman” as Assistant Secretary of “KRAVCO, Inc.”

“KRAVCO, Inc.” subject to the plea of privilege filed an original answer.

Plaintiff Beasley filed controverting plea on January 11, 1977, alleging the suit may be maintained in Dallas County under the provisions of Subdivision 27, Article 1995.

On March 27, 1978 “KRAVCO, Inc.” filed motion to strike plaintiff’s controverting plea because it was not filed within 10 days of October 25, 1976, as required by Rule 86 TRCP. Plaintiff responded to such motion that no plea of privilege “has been filed by KRAVCO, Inc., the defendant upon whom service was made”, and “since there is no proper plea of privilege on file herein, the 10 day rule is inapplicable”.

On May 19,1978 the trial court overruled the plea of privilege.

Appellant appeals on 4 points contending: the trial court erred in overruling the plea of privilege and not transferring the case to Tarrant County because:

1) Plaintiff did not timely file his controverting plea.
2) Plaintiff did not plead and prove good cause for failure to timely file his controverting plea.

There is evidence: “M. A. KRAVITZ Company, Inc.” is a Pennsylvania Corporation, incorporated in 1959, with address at 160 King of Prussia Plaza, King of Prussia, Pennsylvania; that it had a certificate of authority to do business in Texas since October 1974; that in November 1974 it filed an assumed name affidavit that it conducts business in Tarrant County, Texas under the name of “KRAVCO, Inc.”; that there is a “KRAVCO, Inc.” which is a Pennsylvania Corporation incorporated in 1972, with address at 160 King of Prussia Plaza, King of Prussia, Pennsylvania; that on April 15, 1977 “M. A. KRAVITZ Company, Inc.” changed its name in Pennsylvania to “KRAVCO, Inc.” and on that same day “KRAVCO, Inc.” changed its name to “M. A. KRAVITZ Company, Inc.”; that “KRAVCO, Inc.” (formerly M. A. Kravitz Company, Inc.) filed its name change in Texas with the Secretary of State on June 20, 1977.

Admissions answered by appellant reflect that the answer in this case was filed by “M. A. Kravitz Company, Inc. d/b/a Kravco, Inc., in Tarrant County, Texas”; and that Kravco, Inc. (that was incorporated in 1972) had not filed answer in this case.

It is thus conclusively established that “KRAVCO, Inc.” (incorporated in 1972) which was sued in this case, filed no plea of privilege, but that the plea of privilege on file was filed by “M. A. Kravitz Company, Inc.” (incorporated in 1959). The change (or exchange) of names of the two corporations occurred April 15, 1977, which was long after all rights and liabilities had accrued in this case.

A plea of privilege is a personal right which a party alone can assert or waive. Edwards v. Pearson, Tex.Civ.App. (Amarillo) NWH, 17 S.W.2d 140; and no one can impose it for another. Elliff v. Boswell, Tex.Civ.App. (San Antonio) NWH, 25 S.W.2d 268; Southport Petroleum Co. v. Carter, 139 Tex. 661, 165 S.W.2d 85; 59 Tex.Jur.2d 569.

Since the defendant which was sued, i. e., “KRAVCO, Inc.”, and which the record reflects was served, did not file a plea of privilege, there is no plea of privilege on file for the defendant “KRAVCO, Inc.”, and the instrument called “Plea of Privilege of KRAVCO, Inc. defendant”, which was admittedly filed by another distinct corporation, i. e., “M. A. Kravitz Company, Inc.” which was not sued, is a nullity.

Appellant’s points are overruled.

AFFIRMED.

      . Appellant in response to request 6 whether “Kravco, Inc.” (incorporated in 1972) had filed an answer; responded “Defendant admits that ‘Kravco, Inc.’ has not been served or answered herein”. As noted the officer’s return reflects “Kravco, Inc.” was properly served.