author: ROBERTS, Judge.

text:
    Vernon Leon GEORGE, Appellant, v. The STATE of Texas, Appellee.
    No. 56169.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was charged with possession of methaqualone, a Class A misdemeanor. See Art. 4476-15, Sections 4.02(d)(2) and 4.04(b)(3), Vernon’s Ann.Civ.Stat. After a trial before the court, appellant was convicted and the trial court entered an order granting a conditional discharge and placing appellant on probation for a period of one year. From this order appellant gave notice of appeal.

Section 4.12 of the Controlled Substances Act (Art. 4476-15, Vernon’s Ann.Civ.Stat.), provides for conditional discharge. That statute states:

“(a) If any person who has not previously been convicted of an offense under this Act, or, subsequent to the effective date of this Act, under any statute of the United States or of any state relating to a substance that is defined by this Act as a controlled substance, is charged with a violation of this subchapter or is found guilty of a violation of this subchapter after trial or on a plea of guilty, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place him on probation on such reasonable conditions as it may require and for such period as the court may prescribe, except that the probationary period may not exceed two years.
“(b) Upon violation of a condition of the probation, the court may enter an adjudication of guilt, pronounce sentence, and punish him accordingly. The court may, in its discretion, dismiss the proceedings against the defendant and discharge him from probation before the expiration of the maximum period prescribed for his probationary period. If during the period of his probation the defendant does not violate any of the conditions of the probation, then upon expiration of the probationary period the court shall discharge him and dismiss the proceedings against him. Discharge and dismissal under this subsection shall be without an adjudication of guilt, but a nonpublic record of the proceedings shall be retained by the director solely for use by the courts in determining whether or not, in subsequent proceedings, the person qualifies for conditional discharge under this section.
“(c) A discharge or dismissal under this section shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of a crime, including any provision for enhancement of punishment for repeat or habitual offenders. There may be only one discharge and dismissal under this section with respect to any person.
“(d) This section shall not be construed to provide an exclusive procedure. Any other procedure provided by law relating to suspension of trial or probation may be followed, in the discretion of the trial court.”

Unlike the provisions of Art. 42.12, Vernon’s Ann.C.C.P. (Adult Probation and Parole Law) and Art. 42.13, Vernon’s Ann.C. C.P. (Misdemeanor Probation Law), there is no provision in Section 4.12, supra, for appealing an order granting a conditional discharge. Consequently, the appeal must be dismissed. Millican v. State, 145 Tex. Cr.R. 195, 167 S.W.2d 188 (1942); Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225 (1940).

Nor can it be argued that this case may be appealed as a criminal conviction. Before a case can be appealed as a criminal conviction, there must be a conviction, as well as a judgment evidencing that conviction. See Burrell v. State, 16 Tex. 147 (1856); Russell v. State, 288 S.W.2d 502 (Tex.Cr.App.1956). In accord with the requirements of Section 4.12, the trial court did not convict this appellant and, accordingly, did not enter a judgment of guilt.

The appeal is dismissed.

      . “Director” means the Director of the Texas Department of Public Safety or an employee of the Department designated by him. Art. 4476-15, Section 1.02(9), Vernon’s Ann.Civ.Stat.

      . Section 8(b) of this statute provides, in part:
      “The right of the probationer to appeal to the Court of Criminal Appeals for a review of the trial and conviction, as provided by law, shall be accorded the probationer at the time he is placed on probation.”
      See also Art. 44.08(b), Vernon’s Ann.C.C.P., which governs the time for giving notice of appeal in such cases, and Eastwood v. State, 538 S.W.2d 107 (Tex.Cr.App.1976), and Steffen v. State, 525 S.W.2d 162 (Tex.Cr.App.1975). Compare, however, Section 3d of Art. 42.12, supra.

      . Section 8(a) of this statute provides, in part:
      “A probationer, at the time he is granted probation, may appeal his conviction as in other cases.”
      See also Art. 44.08(b), supra, and McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976).

      . See Richie v. State, 542 S.W.2d 422 (Tex.Cr. App.1976), which dealt with an appeal from an order revoking a conditional discharge under Section 4.12, supra.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Juan Diego LEDESMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 56703.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.

      Eric R. Borsheim, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Charles E. Hardy, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the delivery of heroin; punishment is imprisonment for 5 years.

In his sole ground of error appellant contends that either the conviction must be reversed or the appeal dismissed because the record does not contain a valid judgment as defined by Art. 42.01, V.A.C.C.P. We overrule this contention and affirm the judgment of the trial court.

On October 18,1976, appellant waived his right to trial by jury and entered a plea of guilty before the court. The court found appellant guilty and assessed his punishment. On October 27,1976, appellant filed an instrument styled “MOTION FOR NEW TRIAL AND TO WITHDRAW GUILTY PLEA.” On November 4, 1976, with his counsel, appellant again appeared in court, stating that he did not wish to withdraw his guilty plea; the court denied the motion for new trial. On January 20, 1977, formal sentence was pronounced, and notice of appeal was given.

The record contains two separate instruments which purport to be judgments. The first instrument, dated October 18, 1976, and styled “JUDGMENT OF GUILT ON PLEA OF GUILTY,” does not recite the punishment assessed — a requirement of a valid judgment. Art. 42.01, Sec. 1(10), V.A. C.C.P. The other instrument, dated November 4, 1976, and styled “ASSESSMENT OF PUNISHMENT BY JUDGE,” although lacking certain other requisites of a valid judgment, Art. 42.01, V.A.C.C.P., does recite that appellant’s punishment was assessed at imprisonment for 5 years.

Appellant correctly cites Tyra v. State, 548 S.W.2d 912 (Tex.Cr.App.1977) and Savant v. State, 535 S.W.2d 190 (Tex. Cr.App.1976) for the proposition that a recital of the assessment of punishment is an essential part of a judgment. The question presented in the instant case, however, is whether the two instruments may be construed together to satisfy the requirements of Art. 42.01, V.A.C.C.P. A similar situation was noted in Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976), but we did not reach the issue in that case. We now hold that the two documents, although filed on separate days, may be considered together in determining whether the requirements of Art. 42.01, V.A.C.C.P., have been met. In so holding we do not depart from our recommendation in Mendez, supra, that all of the requirements for a judgment as designated in Art. 42.01, V.A.C.C.P., be incorporated in one instrument.

The judgment is affirmed.


text:
    Ex parte Arturo M. GONZALES
    No. 56712.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

A post conviction application for writ of habeas corpus has been filed pursuant to the provisions of Art. 11.07, V.A.C.C.P. The petitioner was convicted for the offense of burglary of a habitation; punishment is imprisonment for 99 years.

The petitioner alleges that the indictment is fatally defective in that it fails to allege a culpable mental state. The indictment alleges that the appellant: “ . . did then and there enter a habitation without the effective consent of John Nelson, the owner, and therein attempted to commit and committed theft; . . . ”

The indictment in this case is substantially the same as that quoted in Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977), and relief must be granted as it was in Ex parte Winton, supra, because the indictment which fails to allege a culpable mental state is fundamentally defective.

The relief prayed for is granted; the conviction is set aside and the indictment is ordered dismissed.

      . The indictment in Ex parte Winton, supra, alleged that Winton: “ . . . did then and there enter a building without the effective consent of Gary Minshew, the owner, and therein attempted to commit and committed theft . . ."


author: COLEMAN, Chief Justice.

text:
    Francis B. Slaughter NORMAN, Appellant, v. FIRST BANK & TRUST, BRYAN, Texas, et al., Appellees.
    No. 16912.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 11, 1977.
    Rehearing Denied Oct. 6, 1977.

      Benton Musslewhite; Helm, Pletcher, Hogan & Burrow; Shirley M. Helm, Houston, for appellant.
    Lawrence, Thornton, Payne & Watson, Billy M. Payne, Bryan, for appellees.
   COLEMAN, Chief Justice.

Francis B. Slaughter Norman filed this suit against the First Bank and Trust, Bryan, Texas, and against her alleged husband Paul Leslie “Bill” Norman, to enforce her claimed homestead rights in a certain tract of rural land. She appeals from an adverse judgment entered by the court on the verdict of a jury. Affirmed.

On February 21, 1973 Bill Norman executed in favor of the bank a deed of trust on property which included approximately 73 acres in the Mill McDowell League of Grimes County, Texas. He represented to the bank that the 73 acre tract was not a part of his homestead and that he was a single man. Plaintiff claims that at the time the deed of trust was executed this property was her homestead and that she and Bill Norman were man and wife by reason of a common law marriage consummated in December 1955. Bill Norman defaulted on the loan which was secured by a deed of trust and the bank purchased the property at a Trustee sale in June 1975.

In response to the special issues submitted the jury found the elements of a common law marriage in favor of the plaintiff Francis B. Slaughter Norman. Bill and Francis Norman began living together as man and wife in 1955. In March 1963 they moved onto the property in dispute and continued to live there until April 4, 1972, when the house was destroyed by fire. The subject property was conveyed to Francis Norman by her father in 1963. In 1966 Mrs. Norman joined with her father in conveying the property to Bill Norman who assumed the payments. The evidence conclusively establishes that this property was used as a homestead by Mr. and Mrs. Norman up to the date of the fire in 1972.

Immediately after the fire Francis and Bill Norman moved into a house which they owned in Bryan, Texas. Mrs. Norman testified that she did not immediately go to the house in Bryan. She first went to her daughter’s house in Iola which was near the claimed homestead property, and the weekend after the fire she went to Bryan and “spent a lot of time at the Hale house in Bryan, Texas, 2616 Melba Circle, which Bill had assumed the loan on that house.” She further testified that she stayed in Shiro some, and that in August Bill rented an apartment in Houston for her, and that she stayed down there some.

Mrs. Norman testified that at the time of the fire there was what is referred to a a “rent house” on the property, but that it was filled with hay and was not suitable for habitation at the time of the fire. She testified that she intended to come back to the home place and make it her home as soon as it was habitable. She testified that she and Mr. Norman had had a little trouble before the fire and that they had some trouble soon after the house burned down. It was her testimony that Bill told her he would fix up the place to move back on the property. When Mr. Norman finally told her that he was not going to rebuild the house she arranged to have the rent house put in shape for occupancy and in the early part of 1974 she moved into the rent house. During the period following the fire they ran cattle on the property, used the rent house for storage of hay and possibly had a garden on the property. A barn and a large building previously used as a skating rink were located on this property. Nobody actually lived on the property until Mrs. Norman moved back in 1974.

An insurance policy dated April 6, 1957, bearing a loss payable clause to First Bank and Trust Company, Bryan, Texas, and issued to Paul Norman covered a metal frame building located on the property in question and is described as being “owner-dwelling”. The tax-assessor collector of Brazos County testified that his records reflect that Paul Norman designated part of Lot 24 and 25, Block 2, Culpepper Manor No. 3 in Bryan, Texas as his homestead. He testified that Melba Circle is a street that “runs in Culpepper Manor”. This designation of homestead appears in the tax records for the years 1972 and 1973. Homestead designations can be made during the period from January 1st to May 1st. Mr. Norman was not present at the trial and did not testify.

The trial court submitted three issues relating to the question of common law marriage, and predicated on an affirmative answer to those issues he submitted Special Issue No. 4 reading:

“Do you find from a preponderance of the evidence that on February 21, 1973, the 73 acre tract in McDowell League was the rural homestead of plaintiff?”

In connection with Special Issue No. 4 the following instruction was given:

“You are instructed in connection with the foregoing Special Issue that a ‘rural homestead’ is property of not more than 200 acres that is used for a purpose consistent with the maintenance of a home. The method of dedicating a rural homestead is by the occupancy of the land by the family as a place of the family’s residence and by the use of the land for family purposes. You are further instructed that once property has been impressed with the homestead character, it continues to be a homestead until and unless the homestead is abandoned, or another homestead is acquired. If one of the spouses abandons the homestead this does not deprive the other spouse of the right to claim and continue use of the property as his or her homestead. Moreover, a husband cannot work a divestiture of the wife’s homestead rights through transactions of any nature without her joinder. You are instructed further that once property becomes homestead, the homestead claimant may cease to occupy the property without destroying the homestead character of the property as long as the homestead claimant intends to return to occupy the homestead property at some time.
You are further instructed that the husband has the right to designate a homestead and he may claim a homestead on property designated by him in the occupancy of the property.”

The plaintiff objected to the last sentence of the instruction quoted above for the reason that the statement constituted a comment upon the weight of the evidence and it was “an unnecessary instruction since the husband’s alleged homestead is not an issue here, only the homestead of the alleged wife, Mrs. Lucille Norman, and consequently, the instruction has no relevance to any issue to be decided by the jury, and as a comment upon the evidence could be and is highly prejudicial to the plaintiff’s case.”

In her motion for new trial the plaintiff stated that the trial court erred in entering judgment upon the verdict because Special Issue No. 4 is immaterial since it incorrectly included the last sentence of the instruction quoted above as part of the definition of homestead. The plaintiff stated:

“The inclusion of this definition undoubtedly confused the jury and was an incorrect statement of law in the context of the facts of this case and therefore caused any finding as to such issue to be immaterial, thus requiring a new trial.”

The plaintiff also included in her motion for a new trial her contention that the trial court erred in entering judgment upon the verdict because the evidence in the case established as a matter of law that the property in question was the homestead of the plaintiff in February 1973, when the deed of trust in question was executed. Appellant properly preserved in her motion for a new trial the contention that there was no evidence to support the jury’s answer to Special Issue No. 4.

The plaintiff also contended as a matter of law it was established that the property in question was the homestead of the plaintiff prior to 1972, and that there was no proof or finding establishing the abandonment of the homestead after that date.

In the motion for new trial the plaintiff contended that the trial court erred in entering judgment based on Special Issue No. 4 because the answer made by the jury to that issue was contrary to the great weight and overwhelming preponderance of the evidence.

The evidence establishes that prior to 1972 the property in question constituted the homestead of Mr. and Mrs. Norman. When homestead rights are once shown to exist in property, they are presumed to continue, and anyone asserting an abandonment has the burden of pleading and proving it by competent evidence. Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971). The bank plead abandonment and presented evidence tending to show the acquisition of a new homestead after the parties were forced to move from the property in question by reason of the destruction of their residence. The bank did not request separate issues dealing with the question of abandonment or with the question of the acquisition of a new homestead.

Special Issue No. 4 submitted the controlling issue of whether the property in question was the homestead of the parties on the date Mr. Norman executed the deed of trust securing his note at the bank. The subsidiary issues of abandonment and of the acquisition of a new homestead were presented to the jury by explanatory instructions. This procedure is authorized by Rule 277, Vernon’s Texas Rules Annotated. There was no objection to this method of submitting the case although Mrs. Norman submits in her brief that the issue of abandonment was waived by the failure to request an issue on this point.

Proof that a new homestead has been acquired establishes abandonment of the old homestead as a matter of law. Silvers v. Welch, 127 Tex. 58, 91 S.W.2d 686 (1936); Calvin v. Neel, 191 S.W. 791 (Tex. Civ.App. — Fort Worth 1916, writ ref’d). In Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960 (1943), the court said:

“. . . the acquiring of a new home is not always the acquiring of a new homestead, and one does not necessarily abandon a homestead by merely moving his home.”

The facts of that case show that a widow having homestead rights in rural property remarried and moved from her home to the rural homestead of her new husband with no intention of returning to her former home. She continued to use her property for farming purposes. The combined acreage of her farm and her husband’s farm was less than 200 acres. The court held that it was not required that she both use and occupy the property for a homestead, but only that she either use or occupy the property. The court held that Mrs. Johnson’s intention to abandon the homestead rights in her separate tract of land did not constitute an abandonment when she continued to use the property for homestead purposes. The court pointed out that they were not faced with a case in which it was sought to add additional land to an existing homestead tract, but that the case was one in which the tract under consideration and the Alex Johnson tract were both actually impressed with the homestead status by occupancy and use before the marriage of Ida and Alex Johnson.

Here we are not faced with such a case since the homestead rights of Mrs. Norman and the agriculture land can not be combined with homestead rights in a city lot subsequently acquired. Commerce Farm Credit Co. v. Sales, 288 S.W. 802 (Tex. Comm’n App.1926, holding approved).

It is settled law that although the wife may not own the fee or any part of it in lands impressed with the homestead character, she does have an estate in such lands, to wit, the homestead, vested and absolute, of which she could not be deprived except by alienation by her own consent and, by which upon the death of her spouse becomes a life estate. No mortgage or trust deed or other lien on the homestead is valid. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929).

In Hudgins v. Thompson, 109 Tex. 433, 211 S.W. 586 (1919), the supreme court quoted with approval this statement of the law:

“If, however, the husband, in fraud of the right of the wife and without her consent, should seek by an abandonment to withdraw the homestead from the pale of its exemption given for the benefit of the family, he could have no power to do so; but while he acts in good faith and not against the will of the wife, having alone in view the good of the family, of which by nature and by law he is the recognized head, his power to abandon a homestead ought not to be questioned; and, in the absence of evidence to the contrary, it ought to be presumed, when a removal from a homestead is made, that it was made in good faith and with the consent of the wife.”

The court held that the husband could where acting in good faith abandon the homestead even though the wife would not consent to such abandonment.

There is evidence from which the jury could have concluded that immediately after the fire Mr. and Mrs. Norman moved into premises in the City of Bryan which were suitable for a homestead; that at that time they were married and living together; that Mr. Norman intended to make the premises a home for his family and continued to make use of it as his home. While there was evidence to the contrary such findings are sufficient to establish the acquisition of a new homestead and to establish abandonment of the old homestead as a matter of law. Silvers v. Welch, 127 Tex. 58, 91 S.W.2d 686 (1936). Since there is sufficient evidence to sustain the findings that Mr. Norman has selected a homestead in the City of Bryan, and has occupied it for the family, the matter of Mrs. Norman’s intent to claim or abandon a homestead for herself is no longer decisive. Burk Royalty Company v. Riley, 475 S.W.2d 566 (Tex.1972). A designation of the Bryan residence as a homestead for tax purposes by Bill Norman is some evidence of his intention of making this property his homestead. Removal to a different residence and use and occupancy of it as a homestead, unaccompanied by any act evidencing an intention to return to his former home is evidence that a new homestead has been acquired and the old one abandoned. Hinton v. Uvalde Paving Co., 77 S.W.2d 733 (Tex.Civ.App.—Dallas 1934, writ ref’d).

The above statements of the applicable law point up the contention of Mrs. Norman that the trial court erred in instructing the jury that “the husband has the right to designate the homestead and may claim a homestead on property designated by him even though his wife fails to join him in the occupancy of the property.” That this is not an affirmatively erroneous statement of the law was determined in Schulz v. L. E. Whitham & Co., 119 Tex. 211, 27 S.W.2d 1093 (1930), where the supreme court stated:

. . the homestead right may attach although the wife may never move upon the property . . the homestead estate exists when the husband resides on the property, even though the wife absents herself therefrom, so long as the husband recognizes and discharges his moral and legal obligation to support her.

It is true that the definite instruction given by the court omitted to inform the jury that the husband must act in good faith in abandoning and establishing a homestead. In this respect, however, the objection made to the court’s instruction did not specifically and clearly point out wherein it was claimed that the instruction was insufficient or in error. The objection to the charge only informed the court of the contention that the instruction constituted a comment on the weight of the evidence. This is not sufficient. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955).

The court may not in its charge comment directly on the weight of the evidence, but the court’s charge shall not be objectionable on the ground that it incidently constitutes a comment on the weight of the evidence where it is properly a part of the explanatory instruction or definition. Rule 277, Vernon’s Texas Rules Annotated. The objection made to the charge was not well founded.

In her motion for new trial appellant asserts that the finding of the jury in answer to Special Issue No. 4 is contrary to the great weight and preponderance of the evidence and that, therefore, the trial court erred in entering judgment on the verdict. It is well established that where the evidence raises an issue of fact it must be submitted to the jury and that a judgment must be entered on the answer made thereto. The trial court does not err in entering a judgment based on the jury’s answer to an issue even though he considers that the answer is contrary to great weight and preponderance of the evidence. The burden was on the appellant to establish the affirmative of the issues submitted. There were no objections to the charge on the ground that the judge failed to instruct the jury on the burden of proof on the subsidiary issues of abandonment and establishment of a new homestead. The appellant had the burden of proof on Special Issue No. 4. To be entitled to a reversal of a judgment on appeal it is her burden to show that she is entitled to recover as a matter of law on the facts found by the jury and the undisputed facts. She has failed to sustain this burden.

Appellant seeks reversal on the ground of jury misconduct in that certain statements were made by the jurors either misconstruing the law or injecting into deliberations matters not admitted into evidence. Two jurors testified that the following statements were made:

1. That since Bill and Frances Norman were married she would share in his property. That there would be a trial or divorce or something like this and at that time there would be a settlement of community property in which Frances Norman would share.
2. That since Frances Norman had joined her father in a deed to Bill Norman, he could do anything he wanted with the property without regard to her homestead claim. That there was probably an agreement between the couple that each would take care of their own business.
3. That this piece of property could not legally be a homestead.
4. That the man had the right to designate the homestead and anything he did would be binding on appellant.

A trial court grants a new trial on the grounds of jury misconduct if (1) material misconduct actually occurred, and (2) if it reasonably appears that injury probably resulted to the complaining party. Rule 327, T.R.C.P.; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). Where no findings of fact are requested or filed as in the instant case, the appellate court will presume the trial court found every issuable fact in favor of appellee and against appellant. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965).

Statement number 4 listed above, the fact that Mr. Norman had the right to choose the homestead, was merely a restatement of an instruction given to the jury by the court and did not constitute misconduct.

Two jurors were called to testify. Mr. Carraway testified that the statements listed as numbers 1 and 2 were not made until after Special Issue No. 4 was answered. The other juror testified that they were made prior to answering Special Issue No. 4. Mr. Carraway’s testimony was weakened by further testimony indicating that he was unsure as to exactly when the statements were made. Improper conduct which occurs after the jury has answered issues which might have been affected thereby is not reasonably calculated to affect the verdict and is not reversible error. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143, 146 (1946). In support of the trial court’s action in overruling the motion for a new trial, we presume a finding that the conduct occurred after the issue was answered. This is a fact determination that is binding on this court if there is any evidence to support the finding. Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729 (1943); Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143 (1946).

The charge of misconduct in that a statement was made that this piece of property could not legally be a homestead is based upon the testimony of Mr. Carraway. The court’s instruction in effect that the husband had the right to designate the homestead was called to Mr. Carraway’s attention and he testified that this instruction was read to the jury and was discussed by members of the jury prior to the answering of Special Issue No. 4. He testified that one or more members of the jury stated that the effect of the instruction was that whatever property the husband designated was binding upon his wife. Mr. Carraway further testified:

“During the trial, you know, the records were brought up. And — where, as you know, we are not lawyers and that kind of thing — but, that was the feeling of the jury because of what was brought out in the records, where there was a homestead filed.”

He stated that this statement had an effect upon the jury “because I think that we felt it had been brought out in the trial, it was the law on it.” The next question which Mr. Carraway was asked reads:

“Okay, and it was binding upon her regardless of what the other facts might be, since he designated the property in Bryan, that binded her as to any homestead she might claim, is that right?”

Mr. Carraway answered:

“Yes, sir, because I — I still think that this reverts back to the deed situation, that actually the property wasn’t legally — to be a legal piece of property that could be homestead.”

He then testified that that was so stated in the jury room.

It is unclear from this exchange whether the juror who made the statement said that the property could not legally be homestead because Bill Norman had designated a new homestead or whether it was because the property had been conveyed to and held by Bill Norman in his name. The witness testified that he thought it reverted back to the deed situation; he did not attempt to state the actual words spoken in the jury room. He seems to be saying that he thought that the farm property could not legally be designated as a homestead and that something to that effect was stated in the jury room. When this statement is considered with his testimony immediately preceding relating to the meaning of the court’s charge and the manner in which it should be applied to the case, no misconduct is shown.

The law is clear that a juror is not guilty of misconduct, and the verdict need not be set aside, when one or more jurors simply misconstrue a portion of the court’s charge and state the erroneous interpretation to other members of the jury. Compton v. Henrie, 364 S.W.2d 179 (Tex.1963).

In order to justify the reversal of the judgment entered by the trial court on the basis of this statement, it is necessary that we find the statement was an incorrect statement of the law and that as a probable result the jury answered Special Issue No. 4 in a manner different from the answer which would have been returned had the statement not been made. There is no testimony that any juror changed his vote as a result of the statement.

When misconduct is established, the question of injury is one of law for the reviewing court. Under the above quoted rule both the trial and reviewing courts have the right to review the matter in the light of the entire record. By the entire record is meant the evidence heard on the motion presenting misconduct, the evidence on the main trial, and any and all other parts of the record which may throw light on the question of injury. The juror may not preserve or destroy his verdict by testifying to the mental processes by which he reached the same. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (Tex.1943); Trousdale v. Texas & N.O.R. Co., 154 Tex. 231, 276 S.W.2d 242 (1955).

If we assume that this was a statement of law which was not included in the court’s charge, it was merely the statement of one who did not hold himself out as a lawyer or as having a knowledge of the law greater than that of the other jurors. There is no showing that the statement was extensively discussed in the jury room or any circumstances which would establish that any juror’s vote was influenced by the statement.

We are unable to hold after reviewing the evidence both on the hearing of the motion, the trial of the case and the record as a whole, that injury probably resulted to the appellant from the acts of jury misconduct presented.

The plaintiff also asserts that the trial court erred in failing to include in the judgment a decree that Bill and Francis Norman are married as required by the verdict of the jury.

The purpose of the suit as shown by the pleadings was to determine property rights. The plaintiff did not seek a declaratory judgment or other adjudication of her marital relationship with Bill Norman in the allegations or prayer in her petition. This point was not preserved in plaintiff’s motion for new trial. No error is presented by this point.

The judgment is affirmed.


author: ELLIS, Chief Justice.

text:
    Fred HADDAD, Appellant, v. Virgil R. (Pete) BOON and Elmer V. Jones, Appellees.
    No. 8775.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 24, 1977.

      Law Offices of Philip S. Kouri, P. C., and Associates, Philip S. Kouri, Charles J. Mason, Jr., Thomas W. Schueller, Wichita Falls, for appellant.
    Heatly & Heatly, W. H. Heatly, Paducah, for Virgil R. Boon.
   ELLIS, Chief Justice.

In this appeal of a summary judgment case, the basic question involves the plaintiff’s right to recover a fractional non-participating royalty interest reserved when a remote grantor conveyed the property in question. The grant, however, did not except a prior outstanding royalty interest. Fred Haddad, plaintiff-appellant, challenges the judgment rendered and contends that he is entitled to recover a certain ½2 non-participating royalty interest reserved by Virgil R. (Pete) Boon, defendant-appel-lee, because Boon’s warranty deed purported to convey more mineral rights than Boon owned.

The district court granted separate motions for summary judgment for defendant Boon and his immediate grantee, defendant Elmer V. Jones. The court ordered that defendant Boon recover the disputed ⅛2 non-participating royalty interest from the plaintiff, and that Haddad take nothing from Jones. By this appeal, Haddad seeks only to reverse the summary judgment granted in favor of Boon. We reverse and remand.

In 1956, Ewell Walker reserved an undivided ½6 royalty interest when he conveyed a tract of land in King County to the Veterans Land Board of Texas. That same year appellee Boon purchased the land from the Land Board except for the ¼6 royalty reserved to Walker. This suit arises from the 1965 conveyance by Boon to Jones. The warranty deed purported to convey all of the surface and minerals except a ⅛2 nonparticipating royalty interest reserved by Boon. No mention was made of the prior outstanding ½6 royalty interest in Walker. All parties agree that they are bound by the prior Walker reservation. This dispute focuses upon the status of Boon’s Vs2 reservation.

In 1966, Jones conveyed the land to Had-dad by general warranty deed without excepting either the Walker ¼6 royalty reservation or the Boon ⅛2 royalty reservation. In the fall of 1975, the respective royalty interests became important when an exploratory gas well was completed and production obtained.

Appellant Haddad filed this suit on December 18,1975, seeking adjudication of his rights to the ⅛2 royalty interest retained by appellee Boon. Haddad sought to establish his interest by declaratory judgment, removal of cloud from his title and trespass to try title. Haddad’s claim was based on the doctrine established by the supreme court in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940). Duhig applies when a grantor purports to convey a mineral or royalty interest without excepting the part of the interest conveyed. Because both grantor and grantee take subject to the prior outstanding interest, the question posed by Duhig is: Who should bear the loss from the overconveyance? The court held that the grantor should bear the loss. The court sought “to make the grantee whole.” McClung v. Lawrence, 430 S.W.2d 179 (Tex.1968). This was accomplished by adopting the principles of the doctrine of after acquired title. Because the grantor’s overconveyance breached his warranty of title at the moment of execution, the grantor is not allowed to assert title in the interest he reserved. Thus, the grantee and those claiming under him are to be made whole from the grantor’s reserved interest before the grantor or those claiming under him may claim it.

In the instant case, Boon responded that he and Jones knew of the outstanding Walker reservation and sought to reform their deed to except the prior ¼6 reservation on the basis of mutual mistake. Such a reformation would defeat Haddad’s claim to the Boon reservation by removing the case from the application of Duhig because the deed’s grant and warranty clauses would be subject to the exception not shown on the face of the deed.

The trial court did not pass on Boon’s attempt to reform his deed to Jones. Instead, the court overruled Haddad’s motion for summary judgment and granted defendants’ motions for summary judgment which asserted that Haddad’s causes of action were barred by the statutes of limitations for adverse possession, Tex.Rev.Civ. Stat.Ann. arts. 5507, 5509 and 5510. The trial court also ordered that appellee Boon recover from Haddad a ⅛2 non-participating royalty interest.

Haddad’s appeal is predicated upon five points of error. In his first three points, Haddad asserts that the trial court erred in holding that his respective causes of action for declaratory judgment, removal of cloud from title, and trespass to try title were barred by limitations. His fourth point asserts that his causes are not barred by laches. By his fifth point he contends that the court erroneously awarded the ⅛2 royalty interest to Boon.

To be entitled to the summary judgment rendered vesting him with title to the undivided ⅛2 non-participating royalty interest, defendant Boon was required to meet the causes of action pleaded by plaintiff Had-dad and to demonstrate that Haddad cannot prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976). Procedurally, Boon was required to state in his motion the specific grounds on which he relied for summary judgment. Rule 166-A(c), Texas Rules of Civil Procedure. Moody v. Temple Nat. Bank, 545 S.W.2d 289 (Tex.Civ.App.—Austin 1977, no writ); Mallory v. Dorothy Prinzhorn Real Estate, 535 S.W.2d 371 (Tex. Civ.App.—Eastland 1976, no writ). The specific ground stated by Boon is that he reserved to himself an undivided ⅛2 nonparticipating royalty interest in his deed to Jones and that Haddad’s claim to that interest is barred by limitations. The ground necessarily entails Boon’s assertion of his title to, and only by virtue of, the interest reserved in his deed; however, to permit that assertion in the face of Boon’s failure to account in his deed for the undivided Vw non-participating royalty interest previously reserved by Walker would breach Boon’s warranty with respect to the title and interest his deed purports to convey. Therefore, by authority of Duhig v. Peavy-Moore Lumber Co., Inc., supra, Boon is estopped to assert, in contradiction or breach of his warranty, such title against one (Haddad) who claims under Boon’s deed. Consequently, Boon has not summarily demonstrated that Haddad cannot prevail on one or more of his pleaded causes of action. Haddad’s points of error are sustained.

Accordingly, the summary judgment rendered in favor of Boon must be reversed and the cause remanded.


author: SHANNON, Justice.

text:
    IMPORT MOTORS, INC., a Texas Corporation, Appellant, v. Robert MATTHEWS et ux., Appellees.
    No. 12591.
    Court of Civil Appeals of Texas, Austin.
    Oct. 5, 1977.
    Rehearing Denied Nov. 30, 1977.

      Samuel D. McDaniel, Austin, for appellant.
    Malcolm N. Greenstein, Austin, for appel-lees.
   SHANNON, Justice.

Appellees, Robert Matthews and Susanne Goar Matthews, sued appellant, Import Motors, Inc., in the county court at law of Travis County, for alleged breaches of warranty in connection with the sale of a new Volvo automobile. Appellees did not sue the manufacturer of the automobile. After trial to the court, judgment was entered against appellant for treble damages in the sum of $1,350, and for attorney’s fees in the sum of $1,550.

In their trial pleading, appellees alleged that within a month from the date of the purchase, the automobile began to use an “inordinate” amount of oil. On several occasions appellees returned the automobile to appellant seeking its assistance in correcting the oil problem. In May, 1974, ap-pellees took their vehicle to another automobile repair shop. There it was discovered that the oil leak had damaged the clutch to the extent that it had to be replaced. The clutch job cost $181.43. Appellees pleaded, among other things, that appellant had committed a deceptive trade practice under the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. § 17.41, et seq., (1973), in impliedly representing that its repair service was of customary quality within the automobile repair business, when, in fact, the service was substantially below that standard.

Appellees also complained of a malfunctioning “auto-stereo cassette tape player” which they purchased from appellant at the same as the automobile. Although the tape deck was twice replaced by appellant, ap-pellees insisted that the most recent replacement would not function properly. Appellees demanded $162.00 in damages for loss of use of the tape deck and for the value of three tapes destroyed by the faulty tape deck. As basis for recovery, appellees alleged, in part, a “breach of the implied warranty of proper repair or effective replacement” of the “cassette” which entitled them to treble damages and attorney’s fees under the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. § 17.41, et seq.

After entry of judgment and upon request, the court filed findings of fact and conclusions of law. The court found that appellant made good faith efforts to repair the oil leak on each occasion that the automobile was delivered to appellee. Upon the last visit to appellant for repairs, appellees accepted the automobile and were satisfied that the oil leak had been corrected. The court found that about six months after appellees’ last visit to appellant, the automobile “was again leaking oil,” and the leak was the same leak that appellant had previously attempted to correct. At that time, appellees gave no notice to appellant of the oil leak and afforded appellant no further opportunity to correct the leak, but instead took the automobile to another automotive repair shop. The court was of the opinion that appellant’s last repair work was not done in a good and workmanlike manner. The court also found that the clutch of the automobile was damaged by the leaking oil and that the leakage of oil, apparent at the time of the delivery of the automobile to the other repair shop, was caused by the unworkmanlike repair of appellant six months previously.

With respect to the tape deck, the court found that it was a replacement item under the terms of the Volvo warranty. Appellant replaced the tape deck at all times when a replacement unit was available from the manufacturer. Whatever defects existed in the tape decks did not result from appellant’s installation.

The court concluded, in part, that there was “an implied warranty of good workmanship of the repair of the oil leak” extending from appellant in favor of appel-lees, and that because appellant had breached that warranty, appellant was responsible for the cost of repairs made by the other repair shop. The court concluded further that the manufacturer was responsible for furnishing a “satisfactory and operational cassette tape player and that despite the Defendant not having made any warranty whatsoever as to the condition of the cassette tape player, the Defendant is nevertheless liable for the defective cassette player because of its agency relationship to the manufacturer of the automobile.” The court also concluded that appellant was not guilty of any violation of Tex.Bus. & Comm.Code Ann. § 17.46. Finally, the court concluded that Section 2.607(c)(1) of Tex.Bus. & Comm.Code concerning notice and opportunity to cure defects was not applicable to the case.

Although appellant attacks the judgment by thirteen points of error, we find it necessary to discuss only two points. Appellant urges that the trial court erred in concluding that Tex.Bus. & Comm.Code Ann. § 2.607(c)(1), concerning notice and opportunity to cure defects, was not applicable to the case. Section 2.607(c)(1) is set out below:

“(c) Where a tender has been accepted (1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any reme- * * *

Appellees’ suit is one for breach of warranty, the breach being the foundation for appellees’ claim for treble damages under the Deceptive Trade Practices Act. Section 2.607(c)(1) requires notification by the buyer to the seller that a breach of warranty has occurred. Winter v. Honegger’s & Co., Inc., 215 N.W.2d 316 (Iowa, 1974), Uniform Commercial Code Comment § 5 following § 2.607, cf. Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196 (Tex.Civ.App.1973, writ ref’d n. r. e.). Because appellees did not notify appellant of the reoccurrence of the oil leak so as to afford appellant an opportunity to cure the leak, appellees were barred from recovering on the basis of breach of warranty.

Appellant also attacks the conclusion of the county court that appellant was responsible for the defective tape deck “. because of its agency relationship to the manufacturer of the automobile.”

In its findings and conclusions the court absolved appellant of any negligence in the installation of the tape decks, because the court was of the opinion that the problem was in the manufacturer of the tape decks. The court concluded further that the defective tape decks were the responsibility of the manufacturer, and not appellant.

Appellees assert in their counterpoint that the court “. . . correctly concluded that defendant breached its warranty in regard to the cassette player.” Appellees’ argument under the counterpoint is devoted, in the main, to a marshalling of the evidence which supports the court’s supposed conclusion. One problem with appellees’ counterpoint and supporting argument is that, contrary to their assertion, the court concluded in conclusion of law number six that appellant did not make “. . . any warranty whatsoever as to the condition of the cassette tape player . .

Other facts that should be noticed are that although Volvo warranted the tape deck in the Volvo sale agreement, appellant’s representative explained the warranty to appellees. In so doing, the court found appellant did not make any character of warranty to appellees.

The fact that appellant handles Volvo automobiles and delivers and explains the manufacturer’s warranty to purchasers, does not make appellant liable on the manufacturer’s warranty. Wilson County Peanut Company v. Hahn, 364 S.W.2d 468 (Tex. Civ.App.1963, no writ), Bill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160 (Tex.Civ.App.1976, no writ). Appellant’s point of error is sustained.

The judgment is reversed and judgment is here rendered that appellees take nothing.


author: EVANS, Justice.

text:
    Barbara OAKLEY et vir, Appellants, v. C. E. DUKE’S WRECKER SERVICE et al., Appellees.
    No. 16882.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 6, 1977.
    Rehearing Denied Nov. 3, 1977.

      Kronzer, Abraham & Watkins, James Edward Robinson, Robert E. Ballard, Houston, for appellants.
    Pulbright & Jaworski, John P. Venzke, Houston, for appellees.
   EVANS, Justice.

This is a personal injury action resulting from the plaintiff’s vehicle being struck from the rear by the defendants’ wrecker truck. On the basis of the jury’s finding that the plaintiff was guilty of contributory negligence in stopping her automobile on the freeway and that such negligence was a proximate cause of the accident, the trial court entered a take-nothing judgment against the plaintiff. She appeals.

The accident occurred on the afternoon of November 22, 1971 in the northbound, outside lane of Highway 59, just north of the overpass at F.M.1960, near Humble, Texas. The day was dry and clear. The plaintiff, driving a 1968 Plymouth automobile, was returning to her home in New Caney, Texas. Traveling at a speed of about 45 miles per hour, she passed to the left of the defendants’ wrecker and then returned her vehicle to the outside lane of the freeway. As she crossed over the crest of the overpass, she noticed a white pickup truck approaching the freeway from the feeder road on her right. Noting the manner in which the pickup truck was approaching the freeway, she became concerned about whether it was going to observe the yield sign at the entrance to the freeway. She alternately slowed and accelerated her vehicle until she felt compelled to bring it to a stop on the freeway to allow the pickup to enter. She was then struck from the rear by the defendants’ wrecker.

In response to special issues the jury found that the defendant wrecker driver had failed to maintain an assured clear distance between his vehicle and that of the plaintiff, that he had failed to use ordinary care in applying his brakes, and that he had failed to keep a proper lookout. The jury also determined that each such omission was a proximate cause of the accident. The jury further found that the plaintiff was negligent in stopping her vehicle on the freeway and that such negligence was also a proximate cause of the accident. The jury determined the plaintiff’s damages to be in the amount of $10,000.00.

In two points of error, the plaintiff contends that the jury’s findings of contributory negligence and proximate cause are against the great weight and preponderance of the evidence, arguing that the evidence is insufficient to establish any duty on her part to the defendant, or that she failed to exercise ordinary care under the existing circumstances.

It has been held that a driver may be justified in stopping his vehicle on a roadway if he acts prudently, as where under existing conditions he is compelled to stop in order to avoid conflict with traffic ahead or to comply with traffic control signals. LeSage v. Smith, 145 S.W.2d 308 (Tex.Civ.App.—Fort Worth 1940, writ dism’d judgmt. cor.); Bass v. Stockton, 236 S.W.2d 229 (Tex.Civ.App.—San Antonio 1951, no writ); Gregory v. Roberson, 478 S.W.2d 262 (Tex.Civ.App.—Houston [1st] 1972, writ ref’d n. r. e.). Under such circumstances it is generally the rule that the driver is not negligent by failing to take radical, evasive action such as swerving to another lane, in order to avoid being struck from the rear by following vehicles. See Flores v. Anaya, 348 S.W.2d 410 (Tex.Civ. App.—Austin 1961, writ refused, N.R.E.).

There are circumstances under which a duty may exist on the part of the driver to keep a proper lookout to the rear and to give appropriate signals to following traffic. Thus, where a driver suddenly changes lanes, stops or accelerates his vehicle suddenly or without cause, or makes some other maneuver which following vehicles have no reason to expect, a duty may exist to first determine whether the contemplated action can be effected in safety and to give a proper signal of the intended action. Colom v. Vititow, 435 S.W.2d 187 (Tex.Civ.App.—Houston [14th] 1968, writ ref’d n. r. e.); LeSage v. Smith, supra. The plaintiff, while recognizing the existence of such duty under appropriate circumstances, contends that the evidence in the instant case shows her actions to have been prudent and fully apparent to the defendant driver.

The plaintiff testified that she first noticed the white pickup truck approaching the freeway from the feeder road when she was halfway down the north side of the overpass. It appeared to her that the pickup truck was going too fast and that it might not yield the right-of-way. She said she put on her brakes just enough to slow down, but the pickup truck also slowed, so she accelerated and the pickup accelerated. This process of slowing and acceleration was repeated two or three times, until “finally he pulled out making me stop.” She stated that after she noticed the pickup, she had gradually slowed her ear to fifteen or twenty miles per hour and that she applied her brakes “much like approaching a red light or something like that.”

It is the plaintiff’s argument that her testimony concerning her actions was clear, direct and free from contradiction, and that the defendant driver, by his own testimony, admitted that the white pickup truck did not yield the right-of-way and that the plaintiff was required to stop in order to avoid a collision. She contends that the only testimony which might constitute direct evidence that her stop was not gradual and controlled was the defendant’s testimony that she had made “a sudden stop”. This testimony, she argues, is conclusory, and should be disregarded, particularly when considered in context with the defendant’s other testimony.

The defendant driver testified that when he neared the overpass he was driving about 35 miles per hour, and was passed on the left by the plaintiff’s vehicle, which was traveling at an estimated speed of 45 miles per hour. There was no other traffic on the road. He saw the white pickup truck approaching the freeway from the feeder road, and he estimated the plaintiff’s vehicle to be about two or three car lengths in front of him at that time. The pickup truck was going between fifteen or twenty miles per hour at a steady rate of speed as it approached the freeway. It did not stop at the yield sign, but proceeded to enter the freeway, compelling the plaintiff to stop her vehicle in order to avoid a collision.

“Q What did the blue Plymouth do?
A Make a sudden stop.
Q All right. Tell me what you mean by sudden stop, now.
A She just shut down on her brakes.”

In her petition, the plaintiff alleged that she stopped her car on the freeway, and that fact was established without further proof. 2 McCormick & Ray, Texas Evidence § 1144 (2d ed. 1956); Ogden & Johnson v. Bosse, 86 Tex. 336, 24 S.W. 798, 801 (1894). The testimony of the defendant driver was sufficiently definite that the jury could have concluded that the plaintiff brought her vehicle to a “sudden stop” on the freeway in front of the defendants’ vehicle. Rash v. Whisennand, 453 S.W.2d 353 (Tex.Civ.App.—Houston [14th] 1970, writ ref’d n. r. e.).

The fact that the plaintiff made a sudden stop in front of the defendants’ vehicle does not necessarily establish negligent conduct on her part, but it does constitute some evidence from which negligence may be inferred. Robertson Tank Lines, Inc. v. Stinson, 497 S.W.2d 476, 478 (Tex. Civ.App.—Houston [1st] 1973, no writ); Spencer v. Jernigan, 507 S.W.2d 307 (Tex. Civ.App.—Texarkana 1974, no writ). Whether the plaintiff’s actions were due to want of ordinary care was a matter of factual determination for the jury, tested by the circumstances of the particular case. Rash v. Whisennand, supra.

The plaintiff had no independent recollection of having passed the wrecker prior to the collision, and she did not know whether there was any northbound traffic on the freeway when she saw the pickup truck approaching from the feeder road. She noticed the pickup truck approaching the freeway faster than “what I like to see someone approaching a freeway when I’m right on the entrance of it”, and it was “coming up pretty fast and didn’t seem to be slowing up”. The pickup truck seemed to be going faster than she thought it should go, and it didn’t look as though it was going to stop. She continued to keep her car in the right hand lane and when she watched the truck, she checked the traffic around her and didn’t see anything. It appeared to her that the pickup truck was “fixing to pull out” in front of her, so she slowed her vehicle and and then the pickup truck slowed down. The two vehicles “just kind of went back and forth two or three times and finally he pulled out in front of me making me stop, or at least I was in the process of stopping”. She put on her brakes “but not heavy, just enough to slow up to let him know that if he was going to come on through he could go on”.

The jury could have concluded from the plaintiff’s own testimony that she failed to exercise ordinary care in speeding up and slowing down her vehicle at the time the pickup truck was approaching her lane from the feeder road. It was permissible for the jury to infer from the evidence that a person of ordinary prudence would have been aware that she had just passed another vehicle, which was proceeding in her same lane of traffic, and that prudent driving was necessary, both to avoid a collision with the approaching pickup truck, which she perceived as a possible hazard, and with the vehicle which she had just passed. Hatcher v. Mewbourn, 457 S.W.2d 151 (Tex. Civ.App.—Texarkana 1970, writ ref’d n. r. e.). She could not simply close her eyes to the dangerous situation developing both in front of her and to the rear. Smith v. Texas Pipeline Co., 455 S.W.2d 346, 349 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.); DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955).

Notwithstanding the fact that the plaintiff may have been compelled to bring her vehicle to a stop in order to avoid a collision with the pickup truck, the jury could have determined that she failed to exercise ordinary care in her defensive maneuvers prior to the time that she was required to bring her vehicle to a stop. She admitted that she saw the pickup truck coming up pretty fast and that it did not appear to her that it was going to yield the right-of-way. She also admitted that she jockeyed for position at the merger of the two lanes of traffic.

“. . .He slowed down. And then I started to take off because he had slowed down. Then he started to take off and then we did this, you know, two or three, I don’t really know how many times. But we did it enough times I realized, that you know, you kind of played this game sometimes on the freeway.”

Under the evidence presented, the jury was justified in finding that the plaintiff’s conduct constituted contributory negligence, and that she could reasonably have anticipated and foreseen that a collision might have occurred as a natural and probable consequence of her acts. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.1968). Lumpkins v. Thompson, 553 S.W.2d 949 (Tex.Civ.App.—Amarillo 1977). The jury’s findings are not against the great weight and preponderance of the evidence.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Juanita HUTCHERSON, Appellant, v. Auba V. HINSON, Appellee.
    No. 1038.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 6, 1977.
    Roy W. Hill, Fairfield, for appellant.
    Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Hoyt Johnston, Johnston & Johnston, Palestine, for appellee.
   McKAY, Justice.

This case involves a suit by a husband and wife to set aside certain conveyances, made by the husband to a third party, as being in fraud of the rights of the wife. Appellant, Juanita Hutcherson, and husband, George Hutcherson, originally filed suit alleging that the said husband had made some 15 conveyances to the appellee “upon the specific promise, understanding and agreement that said Defendant would reconvey any one or all of said tracts or parcels of land described in the deeds” to appellant husband upon request, that appel-lee upon request had refused to convey the tracts and “that a resulting trust has been established under the law of the State of Texas with Defendant Auba V. ‘Dot’ Hinson as Trustee for the benefit of Plaintiffs .” The plaintiffs further alleged fraud and asked for an accounting of monies received from the rental of the lands in question. Later, because of an alleged pending divorce from her husband, appellant filed a separate “Second Amended Original Petition” together with a “Cross Action” against certain grantees of appel-lee. This “Cross Action” was later severed out of the case. Appellee answered the petition of appellant and her husband by way of general denial, affirmative defenses, and a counter-claim in trespass to try title. Upon presentation of the evidence the case was submitted to a jury on nine special issues concerning 25 exhibits which were the conveyances in question. Upon the findings of the jury, the court awarded title and possession of all land in question to appellee. Appellant, Juanita Hutcherson, filed an Amended Motion for New Trial, which was very lengthy and argumentative, and such was overruled. Both appellant and her husband have appealed; however, the husband’s appeal has heretofore been dismissed by this court.

Appellant brings the following two points of error:

“1. The trial court erred in not finding and awarding title and possession of the property that is made the basis of this litigation to George E. Hutcherson, Sr., et ux Juanita Hutcherson because the evidence shows clearly that, at least as far as the Appellant Juanita Hutchersons [sic] community one-half interest in and to said property is concerned, that her husband George E. Hutcherson, Sr., committed a fraud upon the community and that all transfers were made without consideration. That the court should have set aside these various conveyances at least as to the Appellant Juanita Hutch-ersons [sic] one-half interest and found that a fraud did exist.
“2. The trial court erred in not awarding title and possession of the property made the basis of this litigation to Juanita Hutcherson, in as much as all evidence, the stipulations of the parties and the answers to the special issues establish, beyond a shadow of doubt, that a fiduciary relationship existed between her husband George E. Hutcherson, Sr., and Ap-pellee between the time of transfer to Appellee, which was without consideration and made upon her agreement to reconvey, thus establishing Juanita Hutcherson’s entitlement to the imposition of a constructive trust upon said property.”

Appellant further designated as “Point of Error” a portion of her argument appearing in her brief, although we are unable to ascertain the extent of such “point.”

Appellee first contends that appellant’s Points of Error are multifarious and are not entitled to review. Appellee argues that, “It is impossible to tell from looking at those Points and the Statements and Arguments following what action of the Trial Court the Appellant is complaining of.” We agree with this contention.

Rule 418(b) of the Texas Rules of Civil Procedure provides that appellant’s brief should contain:

“A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, and germane to one or more assignments of error when assignments are required. Such points will be sufficient if they direct the attention of the court to the error relied upon . . .

A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review. Pine v. Gibraltar Savings Association, 519 S.W.2d 238, 244 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref'd n. r. e.); Blackmon & Associates, Inc. v. Palmer Building Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); International Security Life Ins. Co. v. Howard, 456 S.W.2d 765, 766 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.). Appellate courts have given a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief and frequently consider general and multifarious points of error where, from the statements and arguments under the point, the nature of appellant’s complaint can be determined. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Brungs v. Consoli dated Plan Service, Inc., 529 S.W.2d 79, 81-82 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 573 (Tex.Civ.App.—Tyler 1974, writ ref’d n.. r. e.). Even a liberal interpretation of the rules cannot save appellant in this case.

No such liberality has been extended in determining the sufficiency of an assignment of error in a motion for new trial, upon which the points of error are based and to which they must be germane. Brungs v. Consolidated Plan Service, Inc., supra; Smith v. Brock, 514 S.W.2d 140, 143 (Tex.Civ.App.—Texarkana 1974, no writ). Assuming the points of error could be discerned, they could not be shown to be germane to any assignment in the amended motion for new trial, which does not itself sufficiently comply with Rules 321-323, Texas Rules of Civil Procedure. Rule 374, Texas Rules of Civil Procedure, provides in part:

“The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. . . .” [Emphasis added.]

See Hardy v. C. P. I. Sales, Inc., 511 S.W.2d 89, 92 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). We believe under the rules cited that appellant has not properly preserved any alleged error.

The judgment of the trial court is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice. OSBORN, Justice, WARD, Justice,

text:
    James R. NORRIS, Jr., Appellant, v. Ron BRANHAM, d/b/a Tiffany Palace, and Mike Brown, Appellees.
    No. 6633.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 19, 1977.
    Rehearing Denied Nov. 16, 1977.

      Smith, Guajardo, Smith & Floyd, Art G. Smith, San Antonio, for appellant.
    Anthony J. Ferro, House, Mercer, House, Brock & Wilson, C. G. House, San Antonio, for appellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a civil action for damages resulting from an assault and battery. The question presented is whether there is a fatal conflict between an issue finding that an assault and battery was committed by the Defendant, Mike Brown, and one finding that he acted in self-defense. The trial Court overruled the contention that there was a conflict and entered judgment for the Defendants/Appellees. We affirm.

[I] Appellant sued the Appellees for an assault committed upon him by one of the Appellees in the place of business of the other which resulted in the loss of sight in one eye. Special issues Nos. 1 and 2 submitted to the jury and their answers thereto are as follows:

“QUESTION NO. 1
“Do you find from a preponderance of the evidence that the Defendant, MIKE BROWN, committed an Assault and Battery upon the Plaintiff, JAMES NORRIS?”

To which the jury answered “Yes.”

“QUESTION NO. 2
“Do you find from a preponderance of the evidence that on the occasion in question MIKE BROWN was acting in self-defense, as that term is herein defined?”

To which the jury answered “Yes he was.” Appellant contends that these two issues are in conflict and preclude the entry of judgment for the Defendants/Appellees. He cites and relies on the test laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). To determine whether there is a fatal conflict, the Court said:

“* * * the Court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. * * *”

Appellant urges that where the jury answered Question No. 1 “Yes” that an assault and battery was committed upon the Plaintiff, and answered Question No. 2 “Yes” that the Defendant was acting in self-defense, such answers present an irreconcilable conflict upon which a verdict cannot be entered. We are of the opinion that there is no conflict because Question No. 2 is in law an excuse or justification under the new Penal Code which became effective in 1974; therefore the assault is not unlawful or tortious where the defendant is acting in self-defense. Tex.Penal Code Ann. Secs. 9.31 and 22.01.

As stated by the San Antonio Court of Civil Appeals in Foster v. H. E. Butt Grocery Co., 548 S.W.2d 769 (1977, writ ref’d n.r.e.):

“It is settled law that, with the exception of the rule of evidence which gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); March v. Walker, 48 Tex. 372 (1877). Clearly, a defendant charged with an assault under Sec. 22.01 would be entitled to an instruction embracing the element of self-defense as defined under Sec. 9.31 where the evidence raises such issue. Thus, if the defendant was acting in self-defense, the assault would not be unlawful. * *”

“Unlawful” is defined by statute:

“ ‘Unlawful’ means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Tex.Penal Code Ann. Sec. 1.07(a)(36).

That definition recognizes the defense of justification. Section 22.01 of the Texas Penal Code is entitled “Assault” and among other things it provides that a person commits an offense if he intentionally, knowingly or recklessly causes bodily injury to another. Section 9.31 of the Penal Code is entitled “Self-Defense” and in part provides:

“(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”

The plea of self-defense then is one of justification. It is based on a different set of facts from those establishing assault. As an affirmative defense it is considered as acknowledging the existence of prima facie liability but asserting a proposition which, if established, avoids such liability. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967). Rather than being in conflict with the finding of assault, the plea of self-defense admits it but asserts the existence of other facts which justify or excuse it.

Appellant relies heavily on the case of Pon Lip Chew v. Gilliland, 398 S.W.2d 98 (Tex.1965). The Court there held that there was an irreconcilable conflict between jury findings on a special issue that the defendant had committed an assault on the plaintiff, and one that the defendant was acting in defense of his employer’s property. Long before that case, the opposite conclusion was reached by a holding that there was no conflict between the finding of assault and one of self-defense. Howard v. Howard, 102 S.W.2d 473 (Tex.Civ.App.— Austin 1937). The holding in that case was approved by the Supreme Court by its notation “writ refused.” So far as the issue of conflict is concerned, there can be no distinction between the issue of self-defense and defense of property, so Pon Lip Chew must stand as the Supreme Court’s latest expression. However, that case was decided in 1965 and since then the Legislature has spoken in enacting the Penal Code effective January 1, 1974. We are of the opinion that the correct construction of this case is controlled by those provisions of the Penal Code above discussed. The general rule is that it is the duty of the Courts to construe verdicts as not being irreconcilably conflicting when there is any reasonable explanation of the seeming conflict. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949). We meet that duty by following the law of the Penal Code to resolve any conflict.

The judgment of the trial Court is affirmed.

OSBORN, Justice,

concurring.

I concur. I do so on the basis of the instructions and definitions given in connection with the special issues in this case and upon the belief that the issue of self-defense is in the nature of an inferential rebuttal issue. In connection with the issues submitted to the jury, the trial Court in this case instructed them as to the relevant terms as follows:

“ ‘Assault’ means any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability’ to commit a battery.
“ ‘Battery’ means the least touching of another person willfully and in anger, by the use of any part of the body of the party committing the offense. A person commits a battery when he uses any unlawful violence to the person of another with intent to injure him, whatever be the means or degree of violence used.
“You are instructed that the term ‘self-defense’ means that when a person is attacked, or threatened with an attack by another, the law excuses or justifies such person so attacked in resorting to any reasonable means at his command to prevent his receipt of assault and battery, and it is not necessary that there should be actual danger, as a person has a right to defend his person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acts upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.”

In Foster v. H. E. Butt Grocery Co., supra, Chief Justice Barrow recognized self-defense as an inferential rebuttal issue. In his opinion he said:

“* * * if the evidence raises an issue of justification, such as self-defense, the plaintiff has the burden of proof to overcome the evidence of self-defense. Otherwise, plaintiff fails to prove his cause of action * *

In this case, if the Plaintiff had the burden to overcome the evidence of self-defense, he has not established a prima facie case by the jury’s answer to special issue No. 1 because under the definitions of assault and battery, the jury was not required to consider the issue of justification in answering special issue No. 1. Furthermore, there is no irreconcilable conflict because issue No. 1 does not establish the Plaintiff’s right to a judgment as opposed to the jury’s answer to special issue No. 2 which does establish the Defendant’s right to a judgment. Since there was no irreconcilable conflict under the test established in the Dunn case, the Appellee was entitled to judgment based upon the jury’s answer to Question No. 2.

Since the holding in Yarborough v. Ber-ner, 467 S.W.2d 188 (Tex.1971), which prohibits inferential rebuttal issues, it appears that in an assault and battery case the Court normally should not fragment the issues into two questions as was done in this case, but should submit one issue inquiring whether or not an assault and battery was committed and then, as suggested by Chief Justice Barrow in the Foster case, have the definition of assault embrace the element of self-defense, and if the defendant was acting in self-defense, the assault would not be unlawful. In such instance, the one answer by the jury would avoid any possible conflict. Illustrative of the type of issue and instruction which may be used is the one appearing in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954).

ON MOTION FOR REHEARING

WARD, Justice,

dissenting.

I now respectfully dissent. No amount of rationalization or worthy suggestion of what the trial Court should have done can void the conflict as exists in the present verdict. The jury first determined that the Defendant, Brown, committed an assault and battery upon the Plaintiff and an assault and battery was defined as the use of any unlawful violence to the person of another. The jury next determined that Brown was acting in self-defense and self-defense was defined in the usual manner of excuse or justification for what would otherwise be unlawful violence. The majority opinion is in conflict with Pon Lip Chew v. Gilliland, supra, and until the Supreme Court determines the issue to the contrary, it should be followed. The cause should be reversed and remanded.


author: McDONALD, Chief Justice.

text:
    EMPLOYEES RETIREMENT SYSTEM of Texas, Appellant, v. Marjorie E. HILL, Appellee.
    No. 5774.
    Court of Civil Appeals of Texas, Waco.
    Oct. 20, 1977.
    Rehearing Denied Nov. 30, 1977.

      John L. Hill, Atty. Gen. of Texas, David M. Kendall, First Asst. Atty. Gen., John Reeves, Asst. Atty. Gen., Austin, for appellant.
    Sam C. Bashara, San Antonio, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This case was brought in the trial court by Marjorie E. Hill to set aside the decision of the Board of Trustees of the Employees Retirement System of Texas, denying her disability benefits as of November 30, 1975. The trial court without a jury, under the substantial evidence rule, on a record developed before the administrative agency, rendered judgment for Mrs. Hill and against the System. Such judgment found “the decision of defendant [appellant system] denying Mrs. Hill occupational disability retirement benefits as of November 3, 1975 is not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole and that plaintiff [appellee] is entitled to judgment * *

Such judgment decreed appellee entitled to disability retirement benefits effective November 3, 1975 and ordered appellant to begin monthly payments to plaintiff and continue same for the remainder of plaintiff’s life * * *; and further decreed plaintiff entitled to $1,760. in back payments plus prejudgment interest.

Appellant [defendant] Retirement System appeals on 2 points:

1) The district court erred in setting aside the order of appellant for the reason that such order has reasonable support in substantial evidence.
2) The district court erred in awarding the sum of $1,760. plus interest since such action exceeded the jurisdiction of the trial court under the Administrative Procedure Act.

Mrs. Hill was employed by the San Antonio State Chest Hospital in April 1971, and worked there until February 20, 1975. On May 6, 1973 she suffered an injury to her right arm while on duty and in the hospital building. Such injury occurred when she attempted to prevent a patient from throwing a food tray; arose out of her employment; and while she was acting within the scope and course of such employment. Mrs. Hill continued to work after her injury until February 20,1975 when she was hospitalized for “neuromyositis, esophagitis, and hiatus hernia”. She was in the hospital 13 days, and never returned to work. She made claim November 3, 1975 for occupational disability retirement benefits. Hearing was had before the System which denied the claimed benefits. Mrs. Hill thereafter filed suit in the District Court to set aside the decision of the Board of Trustees of the System denying her occupational disability retirement benefits.

The Board determined that Mrs. Hill did not carry her burden to prove that her total disability of November 1975, was in fact caused by the injury to her right arm which occurred on May 6, 1973.

Mrs. Hill’s right to judicial relief from the Board’s determination is governed by the substantial evidence rule. That rule imposes an important limitation on the power of the courts to overturn a decision of the administrative agency. The party aggrieved by the administrative decision is not entitled to a trial de novo in court, but must assume the burden of satisfying the courts that the administrative decision is illegal, arbitrary, or capricious; that is, that it is not reasonably supported by substantial evidence. The administrative agency is the fact finding body and the question to be determined by the courts is strictly one of law. Furthermore, the question must be determined by the courts from a consideration of the entire record in the case as that record has been made in the trial court. The test is not whether the evidence admitted in court preponderates against the administrative decision. The test is whether the administrative decision finds reasonable support in substantial evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181.

And the court determines from all of the evidence before it, the entire record, whether the administrative agency’s action, is or is not reasonably supported by substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court.

The word “reasonably” has been deliberately used in the statement and its user gives to the judicial review a broader scope than it would have if some evidence were regarded sufficient to sustain the commissioner’s order. Lewis v. Southmore Savings Association, Tex., 480 S.W.2d 180.

Mrs. Hill’s injury to her right arm occurred on May 6, 1973. Such injury was a muscle pull below the right elbow. The x-rays revealed no fracture or dislocation. She continued to work until February 20, 1975, on which date she was hospitalized for 13 days with: 1) neuromyositis, 2) esophagi-tis, and 3) hiatus hernia; never returned to work, and became permanently disabled as of November 3, 1975. The question before the Board was whether her permanent disability was the result of the injury to her right arm on May 6, 1973. Mrs. Hill had the burden of proof that such injury did result in her later permanent disability. The Board determined from the evidence before it that she did not carry such burden.

Mrs. Hill was born in 1919; was 54 years of age on May 6, 1973; the accident report she placed in evidence reflected that she pulled a muscle in her right wrist and muscle below her elbow; the examining doctor noted that her arm was tender, but there was no limitation of movement and no evidence of a fracture; Mrs. Hill’s application for disability retirement stated she worked for 2 years after the injury “without sufficient rest and developed neuromyo-sitis, esophagitis and hiatus hernia. After therapy and treatment am still unable to work. I was in hospital 13 days. * * * condition growing worse because my nervous condition renders me incapable of functioning in any work whatsoever”. Dr. Rosenthal’s letter of May 7, 1976 introduced by Mrs. Hill states: “She apparently strained her arm and shoulder and had continuing physical painful symptoms. She continued to work from May 1973 to February 1975 in spite of the pain. Now she claims that her arm throbs and aches all the time. Her physical examinations have been within normal limits * * *. It * * * is my overall suspicion that this patient is having real physical symptoms at present. The fact that the physical cause for the symptoms has not been able to be detected does not rule that out * * * ”, X-rays taken May 8, 1973 revealed no evidence of fracture or dislocation; and x-rays taken June 11, 1973 revealed no evidence of fracture or dislocation and “no apparant change is seen in the appearance of the right forearm when compared to the examination of one month ago”.

Examination on June 4, 1973 reflected Mrs. Hill “has traumatic neuritis of median nerve”. She was treated June 14, 1973; and on July 11,1973 on which date she was found to be doing much better and the Doctor’s report reflects “Í feel patient is going to have complete recovery”; and on August 14,1973 the Doctor’s report reflects “Patient continues to recover movement of the hand”. And on November 24, 1974 Dr. Sanders noted: “This patient had what was apparently contusion of the median nerve on the right. She is still having a fair amount of pain in the arm. There is essentially full function of the right upper extremity. This patient may have a low grade dystrophy problem. She really should not try to deny this hand, but make every effort to use it”. In her statement for disability dated July 8, 1975 Mrs. Hill states her disability commenced on February 20, 1975 was 1) Neuromyositis; 2) Hiatus Hernia and 3) Esophagitis; and her examining Doctor Shannon states “3. Did this sickness or injury arise out of patient’s employment? Ans. No”.

Dr. Rosenthal made an affidavit for Mrs. Hill on June 11,1976 stating “In my opinion she is presently disabled as a result of the injury suffered in the scope of her employment at the chest hospital in 1973. Further, as the course of her present sympto-matology has not been determined in reasonable medical probability, the symptoms may not improve and may continue to be disabling on a permanent basis”.

Mrs. Hill testified that when she did not go back to work after her hospitalization in February 1975 because “my arm had gotten so painful that I couldn’t get enough rest and it continued to become more aggressive and painful and I just can’t stand up to it”.

Dr. Vivas testified that Mrs. Hill had a certain amount of recovery from her May 6, 1973 injury, but “still there were certain residuals there that he [the treating doctor] couldn’t account for”. He further testified: “Q. So we can conclude * * * that in reasonable medical probability the problems that she’s having with her arm is traceable to an on-the-job injury in May of 1973. Ans. It’s possible”. * * * ' “Q. We’ve come then I think * * * to the conclusion that the injury which we’re talking about was in reasonable probability job related, and is at least to some degree disabling. Or at least it is consistent with some degree of disability. Ans. Well, I have to say yes. Q. I agree, I think you do too. So we come to the final question of the nature of the disability, whether or not the disability is a permanent type of disability. Now, in your opinion, is this type of disability, first let me ask you, it can be permanent, I know, you could continue to have this type of problem, could you not? Ans. Yes”.

Appellee asserts that much of the documentary evidence admitted before both the Board and the trial court, including some of the documentary evidence introduced by appellee, is hearsay and cannot be considered.

Section 14(q) Article 6252-13a VATS provides:

“In connection with any hearing held under the provisions of this Act, official notice may be taken of all facts judicially cognizable. In addition, notice may be taken of generally recognized facts within the area of the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, or the material officially noticed, including any staff memoranda or data, and they must be afforded an opportunity to contest the material so noticed. * * *

The record shows these provisions were complied with and the Board did take notice of matters contained in appellee’s file. And Mrs. Hill did not object to their introduction. Further, we think the matters complained of were further admissible under Art. 3737e VATS.

Article 6228a Sec. I, requires that the disability arose from an injury resulting directly from a specific act or occurrence determinable by a definite time and place.

The disability here is Hiatus Hernia, Eso-phagitis which there is evidence are completely unrelated to the May 6, 1973 accident, and there is no clear and positive evidence that the diagnosis of neuromyosi-tis can be attributed to the May 6, 1973 occurrence.

If this was a trial before us as fact finders, we might well differ with the Board, but we nevertheless find and hold that the Board’s decision has reasonable support in the evidence, and we, nor the trial court, under the authorities cited can substitute our discretion for that committed to the Board by the Legislature.

Appellant’s point one is sustained:

The judgment of the trial court is reversed and judgment is here rendered sustaining the order of the Retirement System denying appellee occupational disability benefits.

REVERSED AND RENDERED.


author: MURRAY, Justice.

text:
    EASTERN DEVELOPMENT AND INVESTMENT CORPORATION, Appellant, v. CITY OF SAN ANTONIO, Appellee.
    No. 15865.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 26, 1977.
    Rehearing Denied Nov. 23, 1977.

      Bruce Waitz, Keith Baker, San Antonio, for appellant.
    Howard P. Newton, San Antonio, for ap-pellee.
   MURRAY, Justice.

This is an appeal from a judgment in favor of appellee, City of San Antonio, against appellant, Eastern Development and Investment Corporation. Judgment was rendered against appellant for utility service rendered by appellee to appellant as the alleged owner of Les Chateaux, West Gate and North Gate Apartments, in San Antonio, Texas. This case was tried before the court, and no findings of fact or conclusions of law were requested or filed. Ap-pellee’s suit was based on an open account or, in the alternative, on a stated account. Appellant has appealed upon points urging that there is no evidence to support the judgment.

Appellant and appellee state in their briefs, and we agree, that this Court must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and that in doing so, this Court will consider only the evidence most favorable to the appellee and disregard the opposing evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Boucher v. City Paint & Supply, Inc., 398 S.W.2d 352 (Tex.Civ.App.—Tyler 1966, no writ); 23 A.L.R.2d 1114 (1952).

The elements which the appellee was required to prove were (1) sale and delivery of gas and electric service and (2) that the prices charged were agreed to by appellant or that, in the absence of an agreement, the prices charged were usual, customary, and reasonable. Boucher v. City Paint & Supply, Inc., supra; J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941, opinion adopted).

Appellee relies upon proof of an account, stated: “An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance.” 1 C.J.S. Account Stated § la; see also Scofield v. Lilienthal, 268 S.W. 1047 (Tex.Civ.App.—Waco 1925, no writ). The appellant has not attacked the judgment on factually insufficient grounds, therefore, we are to determine if there is any evidence to support the judgment. Renfro, supra. We hold that the evidence proved a stated account.

Appellee began providing gas and electric services at the request of appellant in February 1973. As part of the agreement, appellant made a security deposit of $7,900.00, and bills were sent to appellant on a monthly basis. As early as 1973, appellant was contacted by appellee’s Superintendent of Field Services, Mr. Clayton Wall, concerning the delinquent status of appellant’s accounts.

Mr. Kenneth Ballard, Supervisor of the Field Contact Section, came into contact with Eastern Development in March 1974. Mr. Ballard testified that on numerous occasions he had discussions with Mr. Cook, President of appellant, concerning delinquent accounts and appellant never disputed the amounts until suit was filed.

In November 1974, appellant sent Mr. Ballard two hot checks drawn on the account of Mid-City Management Corporation, both checks were signed by Mr. Walter Cook.

Mr. Wall sent a certified letter to Mr. Cook, December 11, 1974, threatening termination of gas and electric service due to failure to follow through on past promises of payments.

As a result of the delinquency, appellee found it necessary to notify the tenants at the Les Chateaux in April 1975, of the impending termination of service to the complex. Mr. Ballard testified that during a telephone conversation with Mr. Cook, Mr. Cook wanted to know the least amount appellee would accept, and what it would take to make the court happy. Mr. Ballard quoted a figure which was approximately the total billing handled and outstanding at that time.

Mr. Ballard testified that he mailed six pages of final bills to Eastern Development and Investment Corporation on May 1, 1975, and that he did not receive a letter or phone call or any communication whatsoever disputing the amounts listed on those bills as being due and owing. Suit was filed by appellee June 24, 1975.

In Davis v. Gilmore, 244 S.W.2d 671 (Tex. Civ.App.—San Antonio 1951, writ ref’d), Justice Pope, speaking for this Court, said in part at page 675:

This proof showed that the account was rendered to Dillard, and that it was retained without objection for a reasonable time after full opportunity had been offered to object, during which time he caused the collector to take a note to his partner Davis seeking to have him pay the bill. This was even more than an approval by silence which would have been sufficient. We think this raised the inference of approval of the bill, so as to make it a stated account. Peurifoy v. Hood Rubber Products Co., Tex.Civ.App., 59 S.W.2d 428; Walker-Smith Co. v. Roan, Tex.Civ.App., 43 S.W.2d 1108.
A suit on an open account may be proved by an admission that the account is due and owing. Proof of a stated account is one way to prove an action on an account. ‘In other words, evidence of a stated account is sufficient proof to support plaintiff’s cause of action on an open account, and therefore it may be supported by an implied as well as an express admission, as by the assent which is presumed from acquiescence in an account rendered.’ 1 C.J.S. Account, Action on, § 16c(2); 1 C.J., Accounts and Accounting, § 187.

We hold that, under the facts of this case, the trial court could reasonably infer that appellant had in fact agreed to the account. Magic Carpet Co. v. Pharr, 508 S.W.2d 696 (Tex.Civ.App.—Dallas 1974, no writ); Peurifoy v. Hood Rubber Products Co., 59 S.W.2d 428 (Tex.Civ.App.—Eastland 1933, no writ).

Once appellee established a stated account, a prima facie case existed without other proof of price, value, quantity, or specific items, Magic Carpet Co., supra, and therefore, it is not necessary for the proper disposition of this case that we consider appellant’s points complaining of the action of the trial court in admitting the computer print-outs in evidence, and we express no opinion as to whether appellee failed to lay the proper predicate for their introduction.

The judgment is affirmed.