author: DALLY, Judge. PHILLIPS, Judge,

text:
    Emmett Eugene CLOUD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54036.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 10, 1978.
    Rehearing En Banc Denied July 19, 1978.
    Malcolm Dade, Dallas, for appellant.
    Henry Wade, Dist. Atty.,. Steve Wilensky and Rick Russell, Asst. Dist. Attys., Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for public lewdness. V.T.C.A. Penal Code, Sec. 21.07(a)(2); punishment is confinement in the county jail for six months and a fine of $1,500.

A Dallas police officer testified that he saw the appellant commit an act of deviate sexual intercourse in the steam room of the Bachelor Quarters Health Studio on April 29,1975. The appellant denied he had committed the act. Other than the appellant, the only witness whose testimony directly concerned the alleged offense was the police officer.

The appellant in his sole ground of error asserts that he was denied his constitutional right to the confrontation of the witness because the court restricted appellant’s right to. cross-examine the officer. The appellant’s counsel was permitted to fully cross-examine the officer concerning all of his testimony on direct examination. The appellant was not denied his constitutional right of confrontation and cross-examination. The issue presented is whether the court erred in refusing to allow appellant’s counsel to question the officer about a collateral matter in an effort to impeach and discredit the officer’s testimony.

The collateral matter is that on December 8, 1975, the officer had filed a false report about another officer in a vice undercover operation. The officer had said he did not hear a gun shot when in fact he did. As a result of making the false report the officer was suspended without pay for fifteen days and transferred from the vice squad to the traffic section.

Since the officer’s testimony was the only incriminating evidence against the appellant, the appellant argues that he should have been allowed to show that the officer had been suspended and why he had been suspended as bearing on the accuracy and truthfulness of his testimony. Appellant further argues that this evidence was admissible to support an inference that the officer was in a position where he might be pressured to obtain a conviction in order to curry favor with his superiors and enhance his police career. The appellant cites numerous authorities including Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972); Evans v. State, 550 P.2d 830 (Alaska 1976).

The State had filed a motion in limine requesting the court to exclude the evidence relating to the officer’s suspension. This motion was granted by the court prior to trial. However, during the trial, out of the presence of the jury, the court gave appellant’s counsel an opportunity to offer this evidence. The court told appellant’s counsel that if before the end of the trial they could produce authority to show that this evidence was admissible, it would be admitted. The record does not reflect that counsel’s position was supported by authority. The only evidence offered for the bill of exceptions was the testimony of the police officer in which the evidence involving his suspension was elicited. No extrinsic evidence relating to the officer’s suspension was offered.

Great latitude should be allowed the accused to show a witness’ bias or motive to falsify his testimony. Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974); Seal v. State, 496 S.W.2d 621 (Tex.Cr.App.1973); Hooper v. State, 494 S.W.2d 846 (Tex.Cr.App.1973); Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973); Kohler v. State, 490 S.W.2d 592 (Tex.Cr.App.1973); Wood v. State, 486 S.W.2d 359 (Tex.Cr.App.1972). However, trial courts have considerable discretion as to how and when bias may be proved and as to what collateral evidence is material for that purpose. United States v. Robinson, 174 U.S.App.D.C. 224, 530 F.2d 1076 (1976); United States v. McCann, 465 F.2d 147 (5th Cir. 1972); Nutter v. United States, 412 F.2d 178 (9th Cir. 1969), cert. denied, 397 U.S. 927, 90 S.Ct. 935, 25 L.Ed.2d 107; United States v. Higgins, 362 F.2d 462 (7th Cir. 1966), cert. denied, 385 U.S. 945, 87 S.Ct. 316, 17 L.Ed.2d 224; cf. Aetna Insurance Co. v. Paddock, 301 F.2d 807 (5th Cir.1962).

The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests on the sound discretion of the trial judge. Howell v. American Livestock Insurance Co., 483 F.2d 1354 (5th Cir. 1973); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930). The trial judge must balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The potential risks include the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of mis-' leading or confusing a jury, and the possibility of undue delay or wáste of time. Howell v. American Livestock Insurance Co., supra; United States v. 412.93 Acres of Land, 455 F.2d 1242 (3rd Cir. 1972). Cf. Rules 403 and 608(b), Federal Rules of Evidence.

It is far from clear that the testimony elicited from the witness for the bill of exceptions would have discredited the officer. The officer filed the charges swearing that the appellant committed the offense prior to the events which led to the officer’s suspension. When the charges were filed the officer was not trying to redeem himself or to curry favor with his superiors as a result of a matter for which he was suspended. The officer’s testimony supported the charge he filed. It is, therefore, very speculative to say that his testimony concerning this alleged offense was any different than it would have been if he had not been suspended.

Recently we held that a trial court did not err in refusing to admit evidence that the principal witness, who was the complainant in a robbery case, had been discharged from his employment six months after the robbery because a bag of money for which he was responsible disappeared and he failed a polygraph test. This evidence had been offered to show bias of the witness and a motive for fabricating his testimony in accusing another for loss of money for which the witness was responsible. Smith v. State, 516 S.W.2d 415 (Tex. Cr.App.1974).

While the trial judge in his discretion may have admitted the evidence in the instant case to show a possible bias of the officer, we do not find that he abused his discretion in refusing to admit the evidence.

The judgment is affirmed.

PHILLIPS, Judge,

dissenting on appellant’s motion for leave to file motion for rehearing.

The majority denies appellant’s motion for leave to file motion for rehearing. On original submission, this Court held that the appellant was not entitled to cross-examine a police officer concerning his suspension without pay from the Police Department for falsifying a report. On appellant’s motion for leave to file motion for rehearing, he urges reconsideration of the original opinion. After studied consideration, I agree with appellant’s contention and would grant his motion.

The State’s evidence at trial concerning the offense was provided by Officer T. Q. Akins, a Dallas police officer. Prior to trial, the State filed a motion in limine to prevent the appellant from referring to any acts of discipline, including interdepartmental transfers, concerning Officer Akins and several other officers, which motion was granted. At trial, the appellant developed on a bill of exceptions that Officer Akins, three and a half months before trial, had filed a false report concerning another officer in the vice squad. Officer Akins was subsequently suspended without pay for 15 days and transferred to the Traffic Division as a disciplinary matter.

The appellant sought to show by this proffered evidence that Akins was in a position after this disciplinary action where he sought to redeem himself in the eyes of his superiors and may have colored his testimony in order to establish a good record. Appellant argued he was entitled to show the disciplined officer’s testimony may have been motivated by his desire to “work himself back into the good graces” of his superiors.

This Court has most recently and most thoroughly discussed this issue raised by appellant in Castro v. State, 562 S.W.2d 252, a case we failed to cite in our original opinion. In Castro, we stated:

“As this Court has stated many times, great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive and animus upon the part of any witness testifying against him. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App. 1974); Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974).
In Blair v. State, supra, we stated that any possible malice, bias or prejudice towards the defendant on the part of the witness is admissible to attack his credibility and to lay the groundwork for possible impeachment. The motives which operate on the mind of a witness when he testifies are never regarded as immaterial or collateral matters [footnote omitted]. The defendant may prove facts ‘which tend to show bias, interest, prejudice or any other mental state or status which fairly construed might tend to affect his credibility.’ See 1 Branch’s Ann.P.C. 2d Ed. Sec. 185.
4: ⅜ ⅜ ⅝ ⅜ ⅜
. By presenting evidence to the jury that, while Rhoades [key prosecution witness] had participated in some criminal offense and had been arrested for robbery and murder and indicted for theft, but that those charges were no longer pending against him, appellant sought to show that Rhoades had some interest and motive in testifying for the State. The inference that the jury could have drawn was that Rhoades had a personal interest in helping the prosecution prove its cases against appellant and, therefore, may have been an unreliable witness. While the jury may have chosen to reject such an inference, especially since Rhoades denied that he was testifying for the State because of his vulnerable status, this evidence was nevertheless admissible and appellant should have been permitted to prove these facts, [citations omitted]”

In the instant case, the inference the jury could have drawn was that Akins’ testimony was prompted by his desire to promote his own career and his testimony was slanted in an attempt to obtain a conviction and get his floundering career back on course. As we stated in Castro, the jury may well have chosen to reject any such inference, and yet, this evidence should have been admitted.

It is fundamental that a primary interest of the Sixth Amendment right to confrontation is the right of cross-examination. As stated by the United States Supreme Court in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974):

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. ... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). (emphasis added)
We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony .
******
On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . ”

I reiterate the holding in the original opinion that cross-examination is subject to the discretion of the trial court. As noted in Davis, that discretion is to “preclude repetitive and unduly harassing interrogation.” As earlier stated by the United States Supreme Court in Alford v. U. S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930):

“The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted, [citations omitted] But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. [citations omitted] But no such case is presented here. The trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error.”

In the instant case, we should hold that the appellant was entitled to explore Officer Akins’ possible bias or motive for testifying against the appellant. Having failed to allow the appellant to delve into this matter deprived him of his right to reasonable cross-examination.

Appellant’s motion for rehearing should be granted and the judgment reversed.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    Sarah H. PATE et al., Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO., et al., Appellees.
    No. 1706.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 1977.
    Rehearing Denied June 21, 1978. (with opinion).
    Second Rehearing Denied July 14, 1978.

      James H. Brannon, Schmidt & Matthews, Houston, for appellants.
    Randall A. Hopkins, Ronald L. Palmer, Baker & Botts, Russell H. McMains, Fulbright & Jaworski, Houston, for appellees.
   COULSON, Justice.

This is an appeal from a judgment entered non obstante veredicto in favor of the defendants in a wrongful death and survival action.

On July 13, 1967 Edwin 0. Schwarz, an employee of Theobold Trucking Company,’ failed to stop the dump truck he was driving at a stop sign. Because of this failure a car driven by Virginia Snelling was forced to make an abrupt stop to avoid hitting Schwarz’s track, which, in turn, caused the pickup truck following Snelling’s car to stop on a Southern Pacific railroad crossing. For some undetermined reason, the pickup stalled after this emergency stop and its driver, Carl H. Pate, was unable to restart it. As all of this occurred a Southern Pacific train, operated by C. F. Lykke, was approaching the crossing. Although the train was a considerable distance from the crossing when the pickup stalled, as Pate repeatedly tried to restart it, the train drew nearer. Finally, Pate abandoned the pickup and in an attempt to save his life ran down the tracks, away from the train. Unfortunately, the train collided with the pickup, pushed it a short way, and threw it off onto Pate. Pate was seriously injured and eventually died.

In 1969 the plaintiffs, Mrs. Sarah H. Pate, the deceased’s wife (individually and as representative of her husband’s estate, and as next friend of their minor child, Jerri Lu Pate), and Thomas Pate and Mrs. Frank Turbo, the deceased’s adult children, filed a wrongful death and survival action against Southern Pacific Transportation Company, C. F. Lykke, Theobold Trucking Company, W. D. Theobold, and Edwin O. Schwarz. Lykke and Schwarz were subsequently dropped as defendants. In March 1977, following Theobold’s unsuccessful venue appeal, reported in Theobold v. Pate, 542 S.W.2d 460 (Tex.Civ.App.—Tyler 1976, writ dism’d), a trial on the merits was held. The jury found that the truck company and the railroad, but not Pate, were negligent, that Schwarz was within the scope of his employment at the time the accident occurred, and awarded $179,950.00 in damages to the various plaintiffs. Southern Pacific and Theobold Trucking both moved for judgment non obstante veredicto. This was granted and the plaintiffs have appealed. We affirm as to defendants Theobold Trucking Company and W. D. Theobold, and as to the award to the adult children of the deceased, but reverse and render as to the other defendant, Southern Pacific Transportation Company.

A court may enter judgment non obstante veredicto if the material jury findings are without support in the evidence or are contrary to the conclusive evidence. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942). All evidence must be viewed in the light most favorable to the jury’s findings. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.Sup.1974). Applying these rules we find that the trial court was correct in granting judgment non obstante veredicto as to Theobold Trucking Company and W. D. Theobold, and in refusing to award recovery to the deceased’s adult children, Thomas Pate and Mrs. Frank Turbo.

In order to sustain recovery against the truck company it was necessary for the jury to find that Schwarz was acting within the scope of his employment when the accident occurred. This could be shown either by direct evidence or by resort-to a presumption. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex. Sup.1971). The plaintiffs chose the latter method. As such they were required to prove that Schwarz was an employee of Theobold and that Theobold owned the truck. Robertson Tank Lines, Inc. v. Van Cleave, supra. While there is abundant evidence that Schwarz was Theobold’s employee, there is none that it was Theobold’s truck. The failure to prove ownership precludes operation of the presumption which would support the jury’s finding. Since there is no direct evidence which would support that finding, it must fall, and with it, any recovery against Theobold Trucking or W. D. Theobold.

Similarly, there is no probative evidence to support an award to the deceased’s adult children. Adult children may recover for the death of their parent, Hartzell Propeller Company v. Alexander, 485 S.W.2d 943 (Tex.Civ.App.—Waco, 1972, writ ref’d n. r. e.), but there must be evidence to support that recovery. Here there was none.

While we agree with the trial court’s action on these matters, we believe that it erred in entering judgment non obstante veredicto in favor of Southern Pacific, and, further, that despite the cross-points brought by Southern Pacific, judgment on the verdict should be rendered against it.

Initially, we hold that the jury’s failure to find Pate contributorily negligent was proper. It has never been suggested that Pate’s negligence caused the pickup to become stalled on the railroad tracks. Further, Southern Pacific has admitted that when he abandoned the truck he had “sufficient time . . .to place himself in a position of safety,” so there can be no allegations that he unreasonably delayed his exit. Instead, the claim is that he negligently failed to place himself in a position of safety after leaving the truck by failing ■ to go to a place where he would not be struck by the truck. In particular, Southern Pacific claims that Pate should not have run away from the train as he did, in a direction roughly parallel to the tracks, since he should have known that this was the direction the truck would most likely go after being struck by the train.

Stated abstractly, Southern Pacific’s allegation is that the failure to anticipate the flight direction of an object which a person knows will be struck by a railroad train coupled with the failure to remove himself from that anticipated path of flight, constitutes negligence. Given the difficulty of making these calculations in the presence of such relative uncertainties as the pickup truck’s weight, its angle, and position on the crossing, and the speed and weight of the train, it cannot be said as a matter of law that Pate’s failure to anticipate the direction and distance the pickup would move after being hit constituted negligence, nor can it be said that the great weight and preponderance of the evidence demands such a finding.

In attempting to establish its position, Southern Pacific cites a number of cases which hold that a person who steps or drives in front of a moving train is negligent as a matter of law. These cases are not in point, however, since the failure to compute properly and anticipate the path a resting object will take after being struck by an external force and the failure to remove oneself from that path is clearly different from entering and remaining in the certain, immutable, path of an already moving object not subject to change of direction by external force.

It remains, of course, that Southern Pacific’s own negligence must be established. According to the testimony of several witnesses, Pate’s truck was motionless on the crossing for a considerable length of time, the railroad tracks are straight for roughly three quarters of a mile before reaching the crossing, and the view of the crossing is unobstructed. From these facts the jury could properly conclude that the engineer saw Pate’s truck in such a position that he should have determined that it would be unable to clear the crossing before the train arrived, that there was sufficient time and distance to stop the train without hitting the pickup, and that the engineer failed to do this.

Southern Pacific introduced testimony which contradicted this view, but that, as such, is not controlling. The trier of facts is the proper judge of the weight and credibility of the witnesses’ testimony and is required to resolve the conflicts and inconsistencies in the testimony. E. g., Williford v. Masten, 521 S.W.2d 878 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

We hold that the jury properly concluded that Southern Pacific was negligent.

Further, we find no impediment to its finding that Southern Pacific’s negligence proximately caused Pate’s death. There is no doubt that it was a factual cause of the death and it can reasonably be said that Southern Pacific could have foreseen that colliding with the pickup would cause personal injuries to someone, it not being necessary that the exact nature of the accident be foreseeable. Biggers v. Continental Bus Systems, 157 Tex. 351, 303 S.W.2d 359 (1957). Additionally we note that the question of proximate causation is one peculiarly within the province of the jury, and that jury findings on it will only be set aside in the most exceptional cases. Enloe v. Barfield, 422 S.W.2d 905 (Tex.Sup.1967).

In the final two points it raises, Southern Pacific complains of the form of special issue one. That issue was as follows:

Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the death of Carl Pate on the occasion in question?
Answer by stating one of the following choices, writing out your choice in the blank below:
(a) Southern Pacific Transportation Company,
or
(b) Theobold Trucking Company,
or
(c) Carl Pate,
or
(d) Any combination of Southern Pacific Transportation Company, Theobold Trucking Company, and Carl Pate,
of
(e) No one.

It is urged that this is overbroad, indefinite, an invitation to speculation, and possibly confusing to the jury. We do not agree. We believe that the current language of Rule of Civil Procedure 277 authorizes such submissions and find no error.

All of Southern Pacific’s points on this appeal have been considered and all, except those complaining of awards to Thomas Pate and Mrs. Frank Turbo, are overruled.

In summary, we affirm the judgment that all plaintiffs take nothing against defendants Theobold Trucking Company and W. D. Theobold, and that Thomas Pate and Mrs. Frank Turbo take nothing against any defendant, but reverse the judgment in favor of Southern Pacific Transportation Company and order that plaintiff Mrs. Sarah H. Pate, individually and as representative of her husband’s estate, recover $149,-466.50, together with interest thereon, from Southern Pacific, and that plaintiff Jerri Lu Pate Shindler recover $25,000, together with interest thereon, from Southern Pacific, each such amount being the award given them in the jury’s verdict, plus the stipulated funeral expenses.

ON MOTION FOR REHEARING

On rehearing Southern Pacific urges us to reconsider our holding on the submission of the negligence issue in light of Scott v. Atcheson Topeka & Santa Fe Ry. Co., 21 Tex. Sup.Ct.J. 126 (Jan. 4, 1978), reh. den. per curiam, 21 Tex.Sup.Ct.J. 419 (June 7,1978). In that case the supreme court held that the submission of a broadly worded ultimate fact issue which fails to limit the jury’s consideration to those acts or omissions raised by both the pleadings and the evidence, where one or more pleaded acts or omissions are unsupported by evidence, is error. The court also held that a simple objection to the special issue was sufficient to preserve the error.

Southern Pacific is correct in asserting that such an error was made. The plaintiffs pled a number of specific negligent acts and omissions by Southern Pacific concerning which no evidence was introduced. Southern Pacific made an adequate objection.

We hold, however, that this error was harmless since the record before us does not reflect whether the pleadings were ever before the jury. At the time this case was tried a party had, during opening arguments, the option to either read his pleading or to state the nature of his claim or defense, but not to do both. Tex.R.Civ.P. 265(a) (1977). The record does not disclose how the plaintiffs exercised this option. It seems clear that the policy behind requiring evidentiary support for the pleadings is to prevent the jury from answering a question based solely on an idea injected into the trial by assertion and without proof. Where there is no showing that the assertion which might have colored the jury’s thinking was made, the appellate court cannot assume that it was made, and a matter of which the jury was ignorant assuredly cannot have affected its verdict. Tex.R. Civ.P. 434.

Moreover, we note that the trial court repeatedly instructed and admonished the jury to decide the case strictly on the basis of the evidence presented. We will not indulge the presumption that the jurors ignored such instruction and admonition.

Appellee Southern Pacific Transportation Company’s motion for rehearing is overruled.

      . The current version of rule 265(a) no longer provides for this option; a party must briefly state the nature of his claim or defense plus what he expects to prove and the relief he seeks. Therefore the problem of matters pled but not proven may be largely mooted since it is difficult to conceive of a suit in which the jurors would be aware of what has been pled and therefore possibly influenced by it.


author: KEITH, Justice.

text:
    Anna Wilson STRADT, Appellant, v. FIRST UNITED METHODIST CHURCH OF HUNTINGTON, Appellee.
    No. 8076.
    Court of Civil Appeals of Texas.
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.

      Robert L. Flournoy, Lufkin, for appellant.
    William Drew Perkins, Lufkin, for appel-lee.
   KEITH, Justice.

In this trespass to try title case plaintiff below sought to recover an undivided one-fourth interest in a tract consisting of 177 acres of land. Trial was to a jury and, upon the basis of the answers to the special issues, judgment was rendered for defendant. We will speak of the parties as they appeared in the trial court.

Plaintiff is the daughter of Dr. H. M. Wilson and Anna D. Wilson. Dr. Wilson acquired the land in dispute in 1911 prior to the death of plaintiff’s mother. When Anna D. Wilson died intestate in 1912, she was survived by plaintiff and a son, P. R. Wilson. No probate proceedings were had in relation to her estate.

In 1917, Dr. Wilson, without joinder or reference to his children, conveyed this tract (along with several other tracts of land) to A. C. Wilson, the wife of his brother. A. C. Wilson, joined by her husband, reconveyed the property to Dr. Wilson in 1921, the deed reciting that the cash consideration therefor was paid by Dr. Wilson “out of the community estate of himself and deceased wife, A. D. Wilson.”

In 1946, Dr. Wilson conveyed six separate tracts of land to plaintiff and her brother, aggregating approximately sixteen hundred acres. There was a recital in this deed of a cash consideration of $2,500 and “for the love and affection, I do have for my son and daughter.” This was a conveyance of “all that certain undivided interest in the following tracts, to-wit: being the community estate of myself and my wife, Ana D. Wilson now deceased, who is the mother of P. R. Wilson and Ana Elizabeth (Wilson) Stradt . .

Dr. Wilson was a life-long member of the Baptist Church but his second wife of many years, was a member of the First Methodist Church in Huntington. On November 30, 1949, Dr. Wilson executed two deeds: (1) to the First Methodist Church in Huntington of the land now in suit — 177 acres; and (2) to the First Baptist Church in Huntington —275 acres.

In 1961, P. R. Wilson, plaintiff’s brother, quitclaimed all his right, title and interest in the tract in dispute to the defendant Methodist Church, reserving a one-fourth interest in the oil, gas, and minerals. Plaintiff did not join in either of the deeds to the defendant church; but, on December 2, 1976, she ‘filed this suit in trespass to try title, seeking to recover an undivided one-fourth interest therein together with a money judgment for the timber sold therefrom.

Defendant interposed the plea of not guilty and the several statutes of limitations but offered no evidence on the limitation defenses so pleaded. However, it did offer evidence tending to show that Dr. Wilson and his first wife, Anna, acquired 2,061 acres of land during their marriage and that, in 1946, Dr. Wilson conveyed to his children 1,623 acres of such land.

The trial court submitted two issues to the jury: (1) the 1946 conveyance of the 1,600 acres to plaintiff and her brother was in full settlement of plaintiff’s interest in her mother’s estate; and (2) plaintiff accepted the land so conveyed in full settlement of all claims against her mother’s estate. The judgment followed the verdict and plaintiff now seeks a reversal upon two points of error: (1) no evidence to support the findings and (2) factually insufficient evidence to support such findings.

We have examined the evidence under the appropriate standards of review [see, e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)], and overrule each of the points of error for the reasons now to be stated.

If Dr. Wilson conveyed a portion of the community estate to his daughter in settlement of the latter’s interest in her mother’s estate and it was accepted by plaintiff by going into possession thereof, the effect of the transaction was a partition of their respective interests in the community lands, regardless of the words used in effecting the transaction. Edwards v. Edwards, 52 S.W.2d 657, 661 (Tex.Civ.App.—Austin 1932, writ ref’d) (on rehearing). See also Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988, 994 (1949).

Unquestionably, plaintiff accepted her undivided interest in the 1600 acres, along with her brother, and it is significant to note that while she testified at some length upon the trial, she never contended that the transaction involving the 1600 acres was not a settlement of her interest in her mother’s estate. This is particularly impressive when we realize that plaintiff waited for nearly thirty years to assert her claim to the land involved in this suit; and that all persons who might have had knowledge of the transaction were dead when she filed suit.

The defendant church invokes the rule announced in Robinson v. O’Connor, 181 S.W.2d 935, 939 (Tex.Civ.App.—El Paso 1944, writ ref’d w. o. m.):

“A voluntary agreement of partition by joint owners of land when of ancient date may be shown by circumstances and inferences from the acts of the parties and their acquiescence in such acts.”

It has long been recognized in this State that where several parcels are owned in common, the common owners may agree to partition their lands so that each owner receives a separate tract in severalty. See Bunting v. McConnell, 545 S.W.2d 30, 31 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

Under the record which we review, bearing in mind particularly that plaintiff did not dispute the partition theory advanced by the church, we find that the evidence is legally and factually sufficient to support the verdict and findings of the jury.

The judgment is affirmed.

AFFIRMED.

It appearing to the court that the issues involved herein have been settled by clear authority of long standing and present no question or application of any rule of law of interest or importance to the jurisprudence of the State, it is ORDERED, pursuant to Tex.R.Civ.P. 452, that the opinion not be published.

      . Plaintiff made it clear in her testimony that there was very little love and affection between her and her father, she having been reared by a maternal aunt with practically no contact with her father during her youth, formative years, or thereafter.

      . It was shown by the county tax records that taxes were assessed against Dr. Wilson from 1939 to 1950 and thereafter in the name of the “Methodist Church.” The taxes on the entire tract were delinquent for the year 1950 and the years 1956 through 1974. Plaintiff rendered and paid taxes (at a time not shown in our record) for the years 1950 through 1976 on 44.25 acres in the tract.


author: KEITH, Justice. KEITH, Justice,

text:
    GENERAL MOTORS CORPORATION et al., Appellants, v. Robert A. TURNER, Appellee.
    No. 8026.
    Court of Civil Appeals of Texas, Beaumont.
    April 27, 1978.
    Rehearing Denied June 1, 1978.

      Raybourne Thompson, James B. Sales, Houston, for appellants.
    Ronald Krist, Harvill E. Weller, Houston, for appellee.
   KEITH, Justice.

Defendants below appeal from an adverse judgment rendered in a products liability suit involving the doctrine of “crash-worthiness” and we will designate the parties as they appeared in the trial court or by their descriptive names.

In an earlier venue appeal of this cause it was said:

“The question here is whether a manufacturer and retailer may be held strictly liable in tort for a defectively designed automobile which enhances the injuries of plaintiff, but does not cause the accident.”

The court also held that the question presented was one of first impression. Turner v. General Motors Corporation, 514 S.W.2d 497, 499 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). We note that the court made an extensive statement of the underlying facts and we find no reason to recite again the events leading up to the wreck and the trial on the merits involving the doctrine of “crashwor-thiness.”

For the purposes of this opinion it is sufficient to state that plaintiff, while seeking to avoid a collision with a truck, overturned his car when it left the road. The car rolled over and the roof was deformed when it came in contact with the ground. Plaintiff received a crushed vertebra in the accident which resulted in his paralysis. It is not contended, and there is no evidence in the record that the design of the automobile or the roof thereof had any part in causing the accident which produced plaintiff’s injuries.

The judgment which we review rests entirely upon a finding of strict liability in tort, the. liability issue and accompanying instruction being set out in the margin.

The jury found that the roof structure of the Chevrolet was defectively designed and that this was a producing cause of his injury. The third and final issue fixed the amount of plaintiff’s damages. A joint and several judgment was entered against the two defendants, and dealer Kliesing was granted a judgment for full indemnity against General Motors. Both defendants have appealed urging a myriad of points of error, both substantive and procedural. We reverse and remand for the reasons now to be stated.

At the outset of our discussion, we pause to express our general agreement with this language found in Self v. General Motors Corporation, 42 Cal.App.3d 1, 7, 116 Cal. Rptr. 575, 579 (1974): “[Pjrosecution of a lawsuit is a poor way to design a motor vehicle, for the suit will almost invariably emphasize a single aspect of design to the total exclusion of all others.” Some argue that, “[a]s in the case of food and drugs, the imposition of safety standards on the automobile industry can most likely be achieved better by a consistent application of regulatory standards drawn up by experts and kept current by research, rather than by ad hoc decisions of inexpert judges and juries.” J. O’Connell, “Taming the Automobile,” 58 N.W.U.L.Rev. 299, 375 (1963), suggesting federal government regulation as the practical approach to the problem. But, we do not write upon a clean slate.

1. The Charge

We are of the opinion that the definition of “unreasonably dangerous” used by the court was erroneous. Plaintiff points out the obvious fact that it is in substantially the same language used by the court in General Motors Corp. v. Hopkins, 548 S.W.2d 344, 347, fn. 1 (Tex.1977). Hopkins and Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex.1974), both involved carburetors which were, according to the contentions of the plaintiffs, defectively designed; moreover, and more importantly, defects in the carburetors actually caused or contributed to cause the accident in each suit. Likewise, design of the step involved in Caterpillar Tractor Co. v. Gonzales, 562 S.W.2d 573 (Tex.Civ.App.—El Paso 1977, writ pending), was a producing cause of the injury of plaintiff. Assuming as we must the correctness and propriety of such an instruction where the defective design produces or contributes to causing the accident and consequent injury, we are of the opinion that such a charge is not proper in a crashworthiness case wherein the alleged defect had no part in causing the accident.

The trial court did not incorporate into the charge any of the suggested “balancing tests” mentioned in the venue appeal of this cause. And, it may be added, when only the reasonable expectation of the consumer test was submitted to the jury, in essence the jury was told that the doctrine of crash-worthiness made the manufacturer an insurer; yet the Turner Court specifically noted that the application of the “balancing test” which it adopted would prevent the manufacturer from being held to be an insurer.

Even the leading case upon the subject, Larsen v. General Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968), which was adopted in the venue appeal, holds:

“[A]n automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.”

This concept is not to be found in the charge used in this case.

Although the balancing test suggested in Turner is somewhat difficult to articulate, under the specific holding in Turner the cause must be tried under a theory which “involves a traditional balancing of the gravity and likelihood of harm against the burden of precautions to avoid the harm. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir.1974) (applying Virginia law).” Turner, supra (514 S.W.2d at 504). We note at this point that Turner was not mentioned in either Henderson or Hopkins.

As indicated by the charge submitted, plaintiff carries all of his eggs in one basket — that his case is one governed by Restatement of Torts (Second) § 402A (1965) and maintains that he may prevail by a finding of the alternate consumer expectation test laid down in Hopkins, supra. In taking this position, plaintiff has ignored completely the thrust of the opinion in the venue appeal — the balancing tests mentioned therein.

Even a cursory examination of Turner reveals that the holding is not based solely upon the concept of strict liability under § 402A, but the court relied heavily upon the common law concepts embraced in Larsen and Dreisonstok.

We are of the opinion that the terms “reasonable consumer” (and his expectations) and “prudent manufacturer” (and his awareness of risks) have no place in an instruction to the jury considering a crash-worthiness case. Each term has already acquired a fairly clear meaning in the ordinary strict liability case, i. e., those involving a product defectively produced. These terms, when we come to apply a balancing test — as we must do under Turner, Larsen, Dreisonstok, and Huff — are purely subjective in nature and do not place before the jury the true elements making up either a cause of action or a defense thereto in a crashworthiness case.

We are of the opinion that the language found in J. Sales & J. Perdue, “The Law of Strict Tort Liability in Texas,” 14 Houston L.Rev. 1, 13 (1976-77), relying heavily upon the authors’ analysis of language in Rourke v. Garza, 530 S.W.2d 794 (Tex.1975), and Dean Wade’s law review article “Strict Tort Liability of Manufacturers,” 19 S.W.L.J. 5, 17 (1965), correctly enumerates some of the factors to be included in a charge to be used in such cases as the one now under review. We quote:

“The court [in Rourke v. Garza, supra] reduced the issue of defective design to a determination of whether the boards were unreasonably dangerous. In ascertaining whether the scaffolding was unreasonably dangerous, a balancing of the risk of harm against the utility of the product as designed was determinative. In judging the utility of the product, consideration of a number of factors was important. These factors included the burden imposed on the manufacturer to change the design, the expense of the change, and the effect on the usefulness of the product by the change in design.”

The authors then list the seven factors posited by Dean Wade in his law review article noted above. While we are in accord with all of Dean Wade’s balancing factors, as applied to a defectively manufactured product, we are unwilling to accept the entire list when considering a crashworthiness case involving an automobile.

Dean Wade prefaces his list of seven balancing factors with this sentence: “We have here again the problem of balancing the utility of the risk against the magnitude of the risk. Factors involved ... include ... (1) the usefulness and desirability of the product . . . .” When we consider an automobile, we must realize that its utility cannot be balanced with any alternative form of transportation available for the myriad of uses to which an automobile is adapted.

To adopt this first test of Dean Wade as one of the factors would mean that if a reasonable consumer had the information available to weigh accurately the risk of harm from the use of the automobile against the utility of its use, he might find the risk so great that he would stop using the car rather than take the risk. Few of us would walk or ride bicycles because of a known risk in using our own automobile.

Rather, we should consider how a changed design of the automobile would affect the admittedly high utility of the automobile.

We are of the opinion that the following factors should be balanced, as directed by Turner, in making the determination of whether the design is or is not defective: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unrea-' sonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions. See generally, Huddell v. Levin, 537 F.2d 726 (3rd Cir.1976) [commented upon in 7 Cumberland L.Rev. 577 (1977)]; Seattle-First National Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774, 779 (1975); Ross v. Up-Right, Inc., 402 F.2d 943 (5th Cir.1968), applying Texas law; Bowman v. General Motors Corp., 427 F.Supp. 234, 243-244 (E.D.Pa.1977); J. Wade, “On the Nature of Strict Tort Liability for Products,” 44 Miss.LJ. 825, 837-838 (1973), quoted in Bowman, at 244-245, fn. 18.

2. Evidentiary Points

General Motors contends that the trial court erred in excluding evidence of the Federal Motor Vehicle Safety Standard No. 216 pertaining to federal requirements of strength of roof structures.

In 1966, Congress passed the National Traffic and Motor Vehicle Safety Act, 15 U.S.C.A. § 1381, et seq. (1974). Pursuant to this Act, the National Highway Traffic Safety Administration (NHTSA), an agency of the Department of Transportation, issued Standard No. 216, effective for passenger vehicles manufactured after September 1, 1973. This standard requires all passenger vehicle roofs to bear 5,000 pounds of load, or one and one-half times the vehicle’s weight, whichever is less. Plaintiff’s vehicle passed the test at 13,000 pounds of pressure, or over two and one-half times this level.

The trial court refused to allow defendant’s counsel to refer to this as a “federal standard,” requiring that it be referred to as a “practice of the industry.”

The Restatement of Torts (Second) § 402A (1965) provides: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused . .

This doctrine was adopted as Texas law by our Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). Our Supreme Court held in Henderson v. Ford Motor Company, supra (519 S.W.2d at 92), that “[t]he ear manufacturer and its dealer are liable for unreasonably dangerous products — whether designed defectively or improperly and produced as designed, or whether designed perfectly but improperly or defectively produced.”

There is no contention in our case that the proof involved was not produced as it was designed. It was then plaintiff’s burden to establish that the roof design was unreasonably dangerous. Plaintiff produced two witnesses, both with an automotive design background, who concluded that the design of the roof of plaintiff’s automobile was unreasonably dangerous. They suggested an alternative design consisting of three roll bars extending from the frame of the car over the roof area. They admitted that no other sedan passenger car made anywhere in the world employed this design.

In their defense, the manufacturer and the dealer offered the federal standard above set out. Plaintiff argues that since the standard was admitted, it was immaterial that the trial court refused to identify its source. We disagree. The jury must know the source of a standard in order to evaluate its weight. In Pyatt v. Engel Equipment, Inc., 17 Ill.App.3d 1070, 309 N.E.2d 225 (3rd Dist.1974), plaintiff sought damages for injuries from a manufacturer of an alleged defectively designed machine. The court held it error for the trial judge not to identify the source of relevant safety rules promulgated by the Industrial Commission of Illinois, saying:

“The appellee suggests that whatever prejudice might have ensued because of any error in the admission of the Health and Safety Rules was cured by this course of action [admitting the standard but excluding its source]. We do not share this view, since it would be of substantial relevance in evaluating a standard to know the source of the standard as distinguished from the opinion of a single expert.” (309 N.E.2d 227)

See also Cresap v. Pacific Inland Navigation Co., 78 Wash.2d 563, 478 P.2d 223 (1970); Provenza v. American Export Lines, Inc., 324 F.2d 660 (4th Cir.1963), cert. denied, 376 U.S. 952, 84 S.Ct. 970, 11 L.Ed.2d 971 (1964).

The Fifth Circuit, in what has been described as “[o]ne of the most far-reaching decisions on the subject,” Muncie Aviation Corporation v. Party Doll Fleet, Inc., 519 F.2d 1178, 1181-1183 (5th Cir.1975), considered the subject in depth and concluded that two advisory circulars promulgated by the Federal Aviation Administration were properly admitted in evidence “though merely advisory and without the force or effect of law.” (Id. at 1180) The Court continued:

“Their trustworthiness is guaranteed by the fact that they were recently published by a governmental agency whose only conceivable interest was in insuring safety and whose recommendations ‘should have the highest probative value regarding national, state, or local practices.’ ” (Id. at 1182)

It is obvious a jury could attach less weight to a standard whose origin was of the industry itself rather than federal law. Texas law is liberal in the admission of evidence as “relevant and material if it tends to prove, or disprove, any material fact involved in the issue or the question being tried.” Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 699-700 (1941).

Plaintiff cites Simms v. Southwest Texas Methodist Hospital, 535 S.W.2d 192 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.), for the proposition that a federal regulation enacted subsequent to plaintiff’s injury is not admissible. That case is distinguishable readily. There, plaintiff sued a surgical gloves’ manufacturer, claiming that the cornstarch powder it put on its surgical gloves caused “starch granuloma” when plaintiff was operated on by a doctor wearing the gloves. The trial court refused to permit plaintiff to introduce into evidence a regulation promulgated by the Federal Drug Administration subsequent to her injury requiring that packages containing surgical gloves, which had been sprayed with starch, bear a warning statement and instructions for removing the powder.

On appeal, plaintiff relied only on breach of the implied warranty of merchantability, contending that defendant’s failure to give warning and instructions rendered the gloves unreasonably dangerous and, therefore, unfit for the ordinary purposes for which such gloves are used. Tex.Bus. & Comm. Code Ann. § 2.314(b) (1968). The jury failed to find that such dangerous condition was a producing cause of plaintiff’s injuries. The court held that plaintiff had the burden of proving the defect was a producing cause of her injury.

Concerning the federal rule, the court had this- to say:

“The only case cited by plaintiff concerning the admissibility of a rule adopted by a regulatory agency subsequent to the injury of which plaintiff complains is Curtis v. District of Columbia, 124 U.S. App.D.C. 241, 363 F.2d 973 (1966). In that case plaintiff was injured when he tripped over the hinge of .a vault which protruded above the surface of a public sidewalk. It was held that evidence of a subsequently adopted building code regulation, requiring that such hinges be constructed so as to be flush with the pavement was admissible as evidence of negligence, since it constitutes a standard of care against which the jury could measure the defendant’s conduct.
“Curtis clearly did not involve the question of admissibility of a governmental regulation which defendant has violated, since the regulation there in question was not in force at the time of the accident. The same is true here. The actual holding in Curtis, therefore, is that a governmental regulation which defendant has not violated is nevertheless admissible as some evidence of the standard of care in a sufficiently analogous situation.” (535 S.W.2d at 200)

Plaintiff also cites Bell v. Buddies SuperMarket, 516 S.W.2d 447 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.), a negligence case brought by a customer who fell on the store’s ramp. The trial court excluded certain safety standards promulgated for the construction of ramps. These were promulgated after plaintiff’s injury. The exclusion was upheld.

Negligence in Texas requires proof of foreseeability as an element of proximate cause. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970). Strict liability under Restatement of Torts (Second) § 402A requires no showing of negligence. See P. Keeton, “Manufacturer’s Liability: The Meaning of ‘Defect’ in the Manufacture and Design of Products,” 20 Syracuse L.Rev. 559 (1969). The controlling issue in the crashworthiness inquiry is not foreseeability, but intended use. Turner, supra (514 S.W.2d at 503).

Subsequently enacted standards should be admissible in cases of strict liability so long'as they fairly reflect standards existing during the relevant time period. See Nader & Page, “Automobile Design and the Judicial Process,” 55 Calif.L.Rev. 645, 669-670 (1967), cited in venue appeal of Turner, supra. In our case all expert witnesses agree the “state of the art” had not appreciably changed between the manufacture of the roof involved and issuance of Federal Standard No. 216. We sustain this point of error of defendant General Motors.

We turn now to a third complaint of the defendants, that relating to the exclusion of evidence of a test conducted by a witness for the defendants. After plaintiff’s witnesses had testified about the safety of the roll bars, as noted in our discussion of the second complaint, the defendants hired a racing car mechanic to install a NASCAR roll cage system on a car that was the same make and model as plaintiff’s vehicle. A NASCAR roll cage is one that is used on racing cars. Then the car was mounted on its side on a dolly, roof in front, and crashed into a stationary barrier at 30 m. p. h. (A film of this was shown this court at oral argument.) The trial court correctly excluded evidence of this experiment.

The admissibility of out-of-court experiments depends on the particular facts and circumstances of each case. The experiment must be objective and not mislead or confuse the jury. Fort Worth & Denver Railway Co. v. Williams, 375 S.W.2d 279, 282 (Tex.1964); Van Ornum v. Otter Tail Power Co., 210 N.W.2d 188, 197 (1973). The evidence shows here that the forces involved in a rollover and a barrier crash test are not the same; they are much greater in the barrier crash, and much more likely to damage the roof. It would not be fair to admit this experiment, because it was totally different from our rollover situation. See Kirk v. Bennett, 456 S.W.2d 191 (Tex.Civ.App. — Waco 1970, writ ref’d n. r. e.). Nor was this experiment admissible to impeach plaintiff’s expert witnesses. Defendants’ questions to the witnesses regarding barrier crashes were ambiguous, and did not clearly indicate what type of experiment was to be conducted.

Each of the defendants has a series of points attacking the legal and factual sufficiency of the evidence to support the answers to Special Issues One and Two — a defectively designed roof structure which was a producing cause of plaintiff’s injuries. Reduced to the simplest terms, the common base of each of the complaints is that plaintiff’s expert witnesses, Barron and Marcosky, were not qualified as expert witnesses and that the trial court erred in permitting each to express his opinion that the design of the automobile rendered it unreasonably dangerous; consequently, when such evidence is removed from the record, there is no competent evidence to support the findings. We disagree and overrule all of such points of error, making application of the rule in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), in passing upon the points relating to the legal and factual sufficiency of the evidence to support the findings.

On the prior venue appeal, Barron’s qualifications and the substance of his testimony is set out at some length (514 S.W.2d at 499-500) and similar testimony was introduced upon the trial, although in greater detail. We see no need to reproduce the testimony previously summarized.

Marcosky, the other expert witness tendered by plaintiff, was a graduate mechanical engineer who had been employed for several years by General Motors as a design engineer. While his qualifications and experience in the field may not have been quite as impressive or extensive as those shown by Barron, nevertheless, the trial court committed no error in permitting his testimony to be introduced.

Moreover, we find no tenable objection in our record attacking the qualification of either of the witnesses. It is trite learning that whether a person tendered as an expert possesses the required qualification is a preliminary question for determination by the trial judge subject to review for an abuse of discretion. See, generally, 2 C. McCormick & R. Ray Texas Law of Evidence § 1401, at 235 (2d ed. 1956).

Defendants’ attack upon the testimony of Barron and Marcosky goes to the weight and not to the admissibility of their testimony. We find no error in the admission of such opinion evidence.

Moreover, after a review of such testimony, we disagree with defendants — Barron and Marcosky did more than offer criticism of the design of the Chevrolet automobile. Their testimony constitutes “more than a mere scintilla, surmise or suspicion of the existence of a design defect.” Cf. Henderson v. Ford Motor Co., supra, 519 S.W.2d at 99. Defendants’ points attacking the qualifications of the witnesses and the legal and factual sufficiency of the evidence are overruled.

Next, the defendants contend that the trial court erred in refusing to submit to the jury a specially requested instruction to the effect that their award of damages was not subject to federal taxation. The parties recognize that such an instruction was held to be improper in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945 (1956), because “[i]t introduces a wholly collateral matter into the damage issue,” and the rule has not been relaxed by our Supreme Court.

Defendants have many more points which we have examined and find to be without merit and each is overruled. For the errors herein pointed out, the judgment of the trial court is reversed and the cause is remanded.

REVERSED and REMANDED.

KEITH, Justice,

dissenting.

Charge on Federal Taxation of Award

I disagree with my brethren on the trial court’s action in refusing defendants’ charge that the award of damages was not subject to federal taxation. I readily admit, as I must, that under the decision in McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945, the refusal was proper. But, in this era of increasingly large verdicts, the rationale of McFerrin is difficult to understand and even more difficult to support. The theory underlying the tort reparations system is that the injured party should be awarded compensation which would place him in the financial position he would have occupied but for the negligence of the opposite party. In arriving at this figure, our courts consistently permit the reception of expert opinion evidence as to the effect of future inflation upon the earning capacity of the injured party, the rate of interest in the future, and other factors having a bearing upon the award.

I submit that it is unrealistic in this day- and time when every employed person is acutely conscious of the tax consequences of every economic fact of life. As stated by Kliesing’s counsel:

“The universal application of the federal income tax pervades the lives and consciousness of all citizens who occupy the jury box. ... In order to dispel any misapprehension and to avoid any confusion that may affect jurors attempting to award damages, a simple and uncomplicated instruction that any award made to the plaintiff is not subject to federal income taxation is mandatory.”

The Ninth Circuit accepted a similar argument. See Burlington Northern, Inc. v. Boxberger, 529 F.2d 284, 295-297 (9th Cir. 1975). See also Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1251 (3rd Cir.1971), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir.1974).

In the years following the McFerrin pronouncement on the taxation/instruction, McFerrin has been examined and reexamined by our Supreme Court and its basic holding (as to Tex.Rev.Civ.Stat.Ann. art. 6701d, § 86) has been repudiated.

I respectfully suggest that it would be appropriate for our Supreme Court to reexamine and to change its holding with reference to the instruction now under discussion. I do so in the form of a dissent so as to confer jurisdiction to determine such question under the provisions of Tex.Rev. Civ.Stat.Ann. art. 1728, subdiv. 1 (1962). Regardless of other errors which have been mentioned in the foregoing opinion, I would find reversible error in the refusal of the requested charge on federal taxation of the damage award.

Purchaser’s Duty in Using Product

In preparing the opinion for the majority, I concluded that there were five balancing factors to be utilized in the determination of whether the design is or is not defective. Only four of such factors are found in the majority opinion for the reason that one did not meet with the approval of a majority of the Court. Such factor, as it was formulated by me read: “The user’s ability to avoid danger by the exercise of ordinary care in the use of the product.”

It was removed because the majority was of the opinion that this injected an element of contributory negligence into the case.

I disagree. The omitted element closely follows and was based, at least in part, upon Dean Wade’s sixth element (see majority opinion, footnote 9, quoting from 19 SW.L.J. at 17). Dean Wade’s element No. 6: “the avoidability of injury by care in use of the product (including the effect of instructions or warnings).”

I submit that a “balancing test” which deliberately and intentionally excuses the user of a product from the exercise of ordinary care while using a product is deficient; indeed, my concept is more favorable to the user than that of Dean Wade’s quoted earlier.

I am of the opinion that the balancing test should require the use of ordinary care by the purchaser while using the product.

      . For several definitions of “crashworthiness,” see Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066, 1069, fn. 3 (4th Cir. 1974).
      See also, J. Sales and J. Perdue, “The Law of Strict Tort Liability in Texas,” 14 Houston L.Rev. 1, 16-19 (1976-77).

      . Special Issue No. 1: “Do you find from a preponderance of the evidence that at the time the automobile in question was manufactured by General Motors the roof structure was defectively designed?
      “By the term ‘defectively designed’ as used in this issue is meant a design that is unreasonably dangerous.
      “ ‘Unreasonably dangerous’ means dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

      . P. Keeton, “Product Liability and Meaning of Defect,” 5 St. Mary’s L.J. 30, 36 (1973): “Trial judges cannot under the present state of the law be criticized for being unable to submit a product liability case to a jury in a satisfactory manner.”

      .It should be noted that Larsen, supra, proceeds under the common law and specifically disavows reliance upon either strict liability in tort or implied warranty of merchantability for intended use. (391 F.2d at 506)
      See in this connection M. Hoenig and C. Goetz, “A Rational Approach to ‘Crashworthy’ Automobiles: The Need for Judicial Responsibility,” 6 SW. U.L.Rev. 1, 38, fn. 130 (1974).

      . It has been said that Dreisonstok “applied a similar balancing test to a conscious design choice case under the negligence label.” Bowman v. General Motors Corp., 427 F.Supp. 234, 245, fn. 19 (E.D.Pa.1977).

      . See W. Donaher, et at, “The Technological Expert in Products Liability Litigation,” 52 Tex. L.Rev. 1303, 1307 (1974), “It is time to abandon the perspective of the reasonable consumer and the reasonable seller and formulate the strict liability question for what it is. . . . The unreasonable danger question, then, is posed in terms of whether, given the risks and benefits of and possible alternatives to the product, we as a society will live with it in its existing state or will require an altered, less dangerous form.” Query: Is this truly the formulation of a “strict liability question for what it is”?

      . Huff refers to Huff v. White Motor Corporation, 565 F.2d 104 (7th Cir. 1977), which specifically overruled that court’s earlier and well-known opinion in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966). Huff has an appendix citing cases following Larsen — a distinctively greater number than those following its discarded Evans holding.

      . This same law review article was cited by Justice Reavley in the much-cited footnote 1 in Hopkins, supra, and in Rourke v. Garza, supra, at 799.

      . Dean Wade’s balancing factors are: “(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.” (19 SW.L.J. at 17)

      .Dean Keeton has presented a four-pronged balancing test. See “Manufacturer’s Liability: The Meaning of ‘Defect’ in the Manufacture and Design of Products,” 20 Syracuse L.Rev. 559, 565 (1969): “In order to justify a finding of negligence for the way a product was designed there must be proof to support the following findings: (1) that there was in fact an appreciable danger from some condition, ingredient, or component of the product; (2) that it was a known or scientifically knowable fact at the time of sale that harm could result from a condition or an ingredient of the product; (3) that the maker realized or should have realized in the exercise of ordinary care the dangers involved in the product’s use; and (4) that a ordinary man would have concluded that the magnitude of the discoverable danger outweighed the benefits of the product, at least in the absence of more satisfactory instructions or information.”

      . Perhaps, if every automobile were to be equipped with a governor limiting its speed to 20 miles per hour, all cars and all users would be safer. But, the incremental effect on the utility of the automobile would be so great as to render the car virtually unusable in most situations. Similarly, a Sherman tank structure could be adapted to an automobile but few would care to use it to go to the grocery store or the drive-in movie. The examples could be multiplied with ease.

      . The purchaser of a topless convertible automobile should be charged with knowledge that if he overturns the car he may be injured. On the other hand, he may not know if the roof structure of a sedan model is of sufficient ■ strength to withstand a similar rollover. Chrysler Corporation v. Department of Transportation, 472 F.2d 659, 679 (6th Cir. 1972).
      See Comments! “Dreisenstock v. Volks-wagenwerk, A.G.: Manufacturer Liability for Second Collision Design Defects,” 5 Golden Gate L.Rev. 161, 168 (1974).

      . See also J. Henderson, “Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication,” 73 Columbia L.Rev. 1531, 1540 (1973): “ ‘How much product safety is enough?’ can only be provided by a process that considers such factors as market price, functional utility, and aesthetics, as well as safety, and achieves the proper balance among them.”

      . This discussion of the second and third complaints was prepared by Chief Justice Dies to whom the cause was assigned originally and is adopted as a part of this opinion.

      . See W. Rambin, “Consumer Product Safety,” 30 Baylor L.Rev. 115, 125(1978).

      . Kliesing’s request read: “You are instructed that any sum of money you may award as damages will not be subject to federal income tax.”

      . McFerrin has been followed consistently and as recently as 1977 in St. Louis Southwestern Ry. Co. v. Greene, 552 S.W.2d 880, 884 (Tex. Civ.App. — Texarkana 1977, no writ).
      My two colleagues are in agreement that the trial court properly refused the requested in-
      struction relating to federal income taxation; but I disagree with this ruling based as it is on McFerrin, supra, for the reasons set out hereinafter. My colleagues have kindly consented for me to express my views in the form of a dissenting opinion on this question.

       See, e. g., Christy v. Blades, 448 S.W.2d 107 (Tex.1969) and Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973).


author: ODEN, Justice.

text:
    ESTATE of Richard ROSBOROUGH, Jr., Deceased. Malinda Rosborough DANIELS, Appellant, v. Vivian Rosborough HINES, Appellee.
    No. 8529.
    Court of Civil Appeals of Texas, Texarkana.
    May 9, 1978.
    Rehearing Denied June 6, 1978.

      Richard M. Anderson, Anderson & Anderson, Marshall, for appellant.
    Roy C. Coffee, Jr., Coffee, Coffee & Chantilis, Dallas, for Vivian Rosborough Hines.
    J. Ray Kirkpatrick, Marshall, for L. A. Moon.
   ODEN, Justice.

Appellant, Malinda Rosborough Daniels, filed a claim in the amount of $28,800.00 for attorney’s fees against the Estate of Richard Rosborough, Deceased. The temporary administrator allowed the claim and applied to the County Court of Harrison County for authorization to expend funds belonging to the Estate in payment. Appellee, Vivian Rosborough Hines, an interested party, filed an objection to the claim in accordance with Section 312(a) of the Texas Probate Code whereupon appellant moved under Section 5(b) (Supp.1978) to transfer the contested matter to the District Court of Harrison County. The motion was overruled and, following a hearing, the County Court of Harrison County entered an order approving the claim in part and rejecting it in part. The controlling issue presented for our determination is whether the court erred in overruling the motion to transfer the matter to the District Court of Harrison County.

At the outset, we emphasize that this is not a case where the personal representative rejected the claim. A claimant’s remedy under such a situation is set forth in Section 313 (Supp.1978). The case on appeal involves a situation where the claim was allowed by the personal representative and objected to prior to approval or rejection by the court. Under such circumstances the court is to “hear proof and render judgment as in ordinary suits.” Section 312(a).

Prior to the enactment of Section 5 the County Court of Harrison County did not have jurisdiction to hear the contest of claims such as the one under review because the amount in controversy, $28,800.00, exceeded its jurisdictional limit of $1,000.00. Tex.Const, art. V, § 16. The legislature has the power to increase the judicial limits of a county court, Tex.Const. art. V, § 22, and in our opinion did so in “all matters incident to an estate” by its enactment of Section 5. The motivation behind the increase in the jurisdiction of the county court “in matters incident to an estate” was to increase the power of the court so that it could more fully and ably settle a decedent’s estate in the one proceeding, Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App. Tyler 1977, no writ), however, in those counties such as Harrison County where there was no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, the district court in such counties has concurrent jurisdiction with the county court in probate matters when the proceedings have been transferred in accordance with Section 5.

The portion of Section 5 under review is, “ . . . in contested probate matters, the judge of the county court . shall on the motion of any party to the proceeding transfer such proceeding to the district court, . . . ”. (Emphasis added.) Appellee urges that a contested claim against an estate in a dependent administration is not a “contested probate matter” and a claimant, though interested in the estate, is not a “party to the proceedings.” She concedes that the term “shall” as used in the quote above has mandatory effect.

A contested claim involving a decedent’s estate is not traditionally regarded as a “probate matter”, otherwise it would have been within the probate jurisdiction conferred upon county courts by the constitution. 17 M. Woodward and E. Smith, Probate and Decedent’s Estates, Sec. 9 at 13 (Supp.1978). The legislature by its enactment of Section 5 has pronounced that claims by or against an estate are matters “incident to an estate” and by doing so has repealed the traditional concept of the term “probate matters.” We hold that a “matter incident to an estate” is a “probate matter” and a party to a “contested probate matter” is a “party to the proceedings” as those terms are used in Section 5.

We agree with appellee that Section 312 outlines the exclusive procedure by which claimants can enforce their rights in dependent administrations, however, we overrule her contention that appellant waived her right to transfer the contest on the claim to the district court by litigating the will contest in the county court and filing the claim with the county clerk. It is elementary that waiver is a relinquishment of a known right. Under Section 5, the proceedings cannot be transferred to the district court until there is a contest and, of course, the claim cannot be contested until filed. The right to transfer does not arise at the time the claim is filed or presented to the representative, but rather when the objection is levied under Section 312(a) by any person interested in the estate. Appellant could not have waived her right to transfer while filing her claim with the clerk because at that time she did not know it would be contested and her right to transfer did not exist in the absence of a contest. Furthermore, Section 5 specifically states that in the event of a transfer the district court can hear the transferred proceedings as if originally filed therein.

The fact that the county court had previously determined the validity of a will in these proceedings in the absence of a motion to transfer will not defeat appellant’s right to have the proceedings transferred upon the occurrence of a subsequent contest. Section 5 specifically provides that the district court shall transfer the proceedings to the county court upon resolution of all pending contested matters. The legislature contemplated the possibility of more than one transfer and appellant did not waive any subsequent right to a transfer of the proceedings by refraining from exercising her right to transfer the will contest proceedings to the district court.

The judgment of the trial court is reversed and the cause remanded with instructions that the probate proceedings be transferred to the District Court of Harrison County, Texas.

      . Appellant was the designated Executrix in a document purporting to be the last will of Richard Rosborough, Deceased. The document was not admitted to probate as the last will of Richard Rosborough, Deceased, and the claim was filed pursuant to Section 243 of the Texas Probate Code.

      . Harrison County did not have a statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court at all applicable times referred to herein.

      . “Any person interested in an estate or ward may, at any time before the court has acted upon a claim, appear and object in writing to the approval of the same, or any part thereof, and in such case the parties shall be entitled to process for witnesses, and the court shall hear proof and render judgment as in ordinary suits.”

      . All statutory references are to the Probate Code unless otherwise indicated.

      . “In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion, or shall on the motion of any party to the proceeding transfer such proceeding to the district court, which may then hear such proceeding as if originally filed in such court. In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court, and it shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the settlement, partition, and distribution of estates of deceased persons and to apprentice minors, as provided by law. Upon resolution of all pending contested matters, the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court.”

      . Our holding is not intended to be determinative on the question of whether a defendant in a suit brought under Section 313 in the County Court can transfer the proceedings under Section 5. This issue is not before the Court.

      . A claim against an estate is a “matters incident to an estate” under the express wording of Section 5.


author: CLAYTON, Justice.

text:
    INESCO, INC., Trans-Mex Leasing Company, and Elmer J. Gray, Appellants, v. Ross A. SEARS, Appellee.
    No. 8092.
    Court of Civil Appeals of Texas, Beaumont.
    May 18, 1978.
    Rehearing Denied June 15, 1978.

      Jerry D. Patchen, Robert Eikel, Houston, for appellants.
    Charles F. Browning, Van E. McFarland, Houston, for appellee.
   CLAYTON, Justice.

Following our original opinion in his cause, we have granted appellant Gray permission to file his amended brief; and our prior opinion in this cause is withdrawn, and this opinion is substituted in lieu thereof.

Plaintiff below, Sears, filed this action against Inesco, Inc., Trans-Mex Leasing Company, G. & L. Tool Company, and Elmer Gray, for the recovery of $40,000 he claimed was owed on the purchase price of a barge. Trial was to the court without a jury, and judgment was entered for plaintiff, holding the defendants, Inesco, Trans-' Mex, and Gray, jointly and severally liable for $40,000. Inesco, Trans-Mex, and Gray have appealed.

The evidence shows that Inesco and Sears entered into an agreement by which Inesco would buy a certain barge for a total sales price of $220,000, which included: (1) $10,-000 down payment, (2) $170,000 to be paid by August 10, 1973, when title was transferred, (3) $20,000 to be paid by September 7, 1973, and (4) $20,000 to be placed in escrow by September 7, 1973, pending ascertainment of the weight of the barge. This money in escrow would be paid in full to plaintiff-seller only if the barge weighed 6,500 tons. The agreement also provided “that there are no liens or encumbrances on said Vessel.” The first $180,000 was provided by Gray, who was chairman of the board of Inesco and owned fifty percent of the stock. The remainder of the sales price was never paid, and no money was ever placed in escrow. The barge was later transferred to Trans-Mex Leasing Company, a subsidiary of Inesco. Following a dispute among the shareholders, the barge was transferred to Gray in exchange for all of his stock in Inesco and Trans-Mex.

At the close of the evidence the trial judge allowed both parties to amend their pleadings. In his trial amendment plaintiff alleged, inter alia, that Gray was the alter ego of the corporations.

Extensive Findings of Fact and Conclusions of Law were filed. The court found, inter alia, that Gray was the undisclosed principal on the contract of sale from plaintiff; that Gray was the alter ego of Inesco and Trans-Mex; that the transfer to Gray was made to defeat the plaintiff’s rights under the contract; and that the question of the weight of the barge had been waived by the defendants.

Defendant Gray’s first point complains that the trial court erred in “finding the barge was subject to an equitable lien and in allowing recovery upon such lien.” The trial court entered judgment against “Defendants Inesco, Inc., Trans-Mex Leasing Company and Elmer J. Gray, jointly and severally, the sum of Forty Thousand ($40,000) Dollars, plus interest. .” This judgment is for a money judgment against these defendants and in no way recognizes or gives any effect to any purported equitable lien. Such a lien is neither an estate or property in the barge itself, nor a right of action for the barge. It is merely an encumbrance or charge against the barge. Houston National Exchange Bank v. De Blanc, 247 S.W. 897 (Tex.Civ.App.—Beaumont 1923, no writ). The creation of a lien on the property in favor of the obligor-creditor is merely the right to have recourse to the property for the satisfaction of the obligor’s debt. The judgment making no reference to a lien, and no foreclosure thereunder being ordered or adjudged, we fail to see how defendant Gray can be harmed in any manner insofar as the findings of the trial court as to the existence of an equitable lien are concerned. This point is overruled.

Defendant Gray’s second point complains of error “in allowing parol testimony to alter the terms of the purchase and sale agreement ... to impose a lien . and in allowing recovery upon the basis of such parol testimony.”

Tex.R.Civ.P. 418(e) requires, as to contents of appellant’s brief, the following:

“. . . If complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found. . . . ”

The statement of facts in this record consists of 439 pages, and this defendant’s entire argument in his brief consists of three sentences, and not one single sentence of the “improper” evidence or any reference to any particular page in the record where same may be found is stated. We, therefore, decline to consider such point. If we did consider such point, the same would be overruled for the reasons stated under defendant’s first point.

We consider defendant Gray’s third, fourth, and sixth points together as they are germane to the sixth point complaining of the trial court’s error in allowing recovery against Gray as the alter ego of Inesco or Trans-Mex urging that the evidence shows as a matter of law that Gray was not the alter ego of either Inesco or Trans-Mex. Since the point attacks the finding “as a matter of law” it must be considered as a “no evidence” point. “In deciding a ‘no evidence’ point we must view the evidence in its most favorable light in support of the finding, and we must consider only the evidence and inferences which support the finding.” Lucas v. Hartford Accident and Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); accord, Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The basic rule of law cited in cases in which a plaintiff seeks to “pierce the corporate veil” is stated as follows:

“Courts will not disregard the corporate fiction and hold individual officers, directors or stockholders liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetuate a fraud, to avoid personal liability, avoid the effect of a statute, or in a few other exceptional situations.”

Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336, 340 (Tex.1968), quoting Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 351 (1955); accord, Sutton v. Reagan & Gee, 405 S.W.2d 828, 836-37 (Tex.Civ.App. — San Antonio 1966, writ ref’d n. r. e.).

An excellent discussion of the alter ego doctrine is found in Fagan v. La Gloria Oil and Gas Co., 494 S.W.2d 624 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ), in which Judge Tunks states that the doctrine should be applied in “situations wherein the corporation is not maintained as a bona fide entity, separate and distinct from its shareholders in the conduct of its own business, but rather is used as an agent or servant of the shareholders in the furtherance of their personal business. In such a situation where the corporation purportedly enters into a contract, but in doing so is in reality acting as agent for the shareholders in the furtherance of their personal business, the shareholders become liable on the contract, or for its breach, under the law of principal and agent.” Id. at 632. In our case there is evidence that Gray had told the other shareholders-direetors that he would pay the entire purchase price of the barge. Gray was the only shareholder who contributed money to Inesco, and there is evidence that he controlled all of the financial matters of the corporations. Gray provided the $180,000 required before transfer and approved the terms of the agreement. According to his own testimony, Gray originally intended to acquire title to the vessel in his own name. Instead, the title was initially in the name of Inesco and was later transferred to Trans-Mex, a subsidiary of Inesco, before being transferred to Gray in exchange for his stock in the corporations. Gray admitted that he was aware of the indebtedness on the vessel at the time of the transfer, but he claimed that it was a corporate obligation.

These facts support the findings that Gray was the principal in the contract with plaintiff and that Gray was using the corporate entity of Inesco to transact his personal business. Therefore, considering the evidence under the standard of review for a “no evidence” point, we hold that there is probative evidence to support the finding that Gray was the alter ego of the corporations. \

In addition to the alter ego doctrine which we hold to be applicable in this case, there is another rule permitting plaintiff to recover which is supported by the evidence and fact findings, which are unchallenged by the defendants. This doctrine was described in World Broadcasting System, Inc. v. Bass, 160 Tex. 261, 328 S.W.2d 863 (1959), as follows:

“. . . when a corporation divests itself of all its assets by distributing them among the stockholders, those having unsatisfied claims against it may follow the assets, although the claims were contested and unliquidated at the time when the assets were distributed. . . . ” Id. at 864-65, quoting Pierce v. United States, 255 U.S. 398, 403, 41 S.Ct. 365, 65 L.Ed. 697 (1921).

The Court further stated:

“Although purporting to be a simple sale of capital stock, the transaction was in legal contemplation the equivalent of a disposition of the corporate assets. Respondents thereby became personally liable for the outstanding debts of the Delaware corporation to the extent of its assets thus appropriated by them.” World Broadcasting System, Inc. v. Bass, supra at 866.

In our case the only asset of the corporation was the barge, and Gray knew that when the barge was transferred to him, Inesco would not be able to pay the remainder of the purchase price. Gray also knew that plaintiff was demanding payment, and there was evidence that he knew that plaintiff had offered to rescind the contract if the barge was returned. Yet, in a transfer for worthless stock, he obtained title to the only asset of the corporation, leaving Inesco unable to pay the remainder of the purchase price. This evidence supports the conclusion that Gray has “denuded” the corporation of its assets so that it had nothing left with which to pay plaintiff, and therefore Gray should be held personally liable on plaintiffs claim. See Fagan v. La Gloria Oil and Gas Co., supra at 632.

Gray’s fifth point complains of error in permitting plaintiff’s “trial amendment after the evidence had been closed . was manifest error.” The trial court is vested with discretion to allow or deny trial amendments, and the court’s action in permitting a trial amendment will not be set aside in absence of a clear showing that the court has abused its discretion. Ka-Hugh Enterprises, Inc. v. Fort Worth Pipe & Supply Co., 524 S.W.2d 418,422 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Tuck v. Tuck, 509 S.W.2d 656, 658 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Tex.R. Civ.P. 66. Since there is no showing that defendants were surprised or prejudiced by the granting of the trial amendment, no abuse of discretion is shown, and no reversible error is shown. See Home Indemnity Co. v. Draper, 504 S.W.2d 570, 577 (Tex.Civ. App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.).

Defendants Inesco and Trans-Mex (in their points 2 and 3), and Gray (in his point 7) contend that the award should have been limited to a maximum recovery of $20,000 because the preponderance of the evidence establishes that the weight of the vessel was no more than 3,700 tons. The sales agreement provides:

“If the weight of the Vessel is less than 6,500tons Buyer will receive from the $20,000 escrow account an amount equal to $34.00 per ton for each ton less than 6,500tons. If the net weight of the Vessel is determined to be in excess of 6,500tons, the $20,000 will be released to Seller immediately and Buyer will pay Seller an additional amount equal to $34.00 per ton for each ton in excess of 6,500tons.”

It is undisputed that no money was ever placed in escrow.

There was contradictory evidence as to the weight of the barge, and no fact finding was made on this point. The only fact findings concerning the tonnage provisions are Findings 45 and 46, which provide:

“45. The tonnage provision was to provide for the event that the barge had to be scrapped rather than being sold.
“46. Inesco and Gray waived the tonnage provision of the contract when they elected to keep the barge.”

These fact findings supporting the judgment have not been challenged. By finding that the defendants in action waived the tonnage provision, the trial court has made the weight of the barge a moot issue; the plaintiff was entitled to recover the entire $40,000 regardless of the weight. Therefore, no error is presented by these points which contend that the vessel weighed less than the required amount. These points are overruled.

Defendants, Inesco, Inc. and Trans-Mex Leasing Company, contend also that the trial court “erred and abused its discretion in proceeding with the trial of this cause against defendants Inesco, Inc. and Trans-Mex Leasing Company while permitting these Defendants’ trial counsel to absent himself from the courtroom and not participate in the trial of the cause, all without notice to these Defendants, thus depriving these Defendants of a fair trial.” James Adams, the attorney of record for Inesco and Trans-Mex, was served with a subpoena duces tecum before trial and was called as a witness by plaintiff. Mr. Adams was a shareholder and director of the corporations, which were defunct at the time of trial. At the hearing on the motion for new trial, Adams testified that he and Mr. Lawrence, another director of the corporation, had agreed on his course of action during the trial. He further testified that he tried to contact Fontenot, the third shareholder and director, but was unable to do so.

Tex.Rev.Civ.Stat.Ann. art. 1302-2.07, B (1962) provides that “. . . the board of directors serving at the time of dissolution or the majority of them then living . shall continue to manage the affairs of the corporation for the limited purpose or purposes specified in this Article, and shall have whatever powers may be necessary to accomplish such purposes, including the power to prosecute, pay, compromise, defend, and satisfy any action, claim, demand, or judgment by or against the corporation . .” Therefore, Adams and Lawrence, constituting a majority of the directors, had authority to decide what action to take at the trial. ■*

The corporate defendants argue for the application of the rule stated in Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.), as follows:

“ ‘Every litigant is entitled to be heard in court by counsel of his own selection. This is a valuable right, and the unwarranted denial of it is fundamental error where the litigant, without negligence or default on his part, is deprived of the right and an ex parte judgment is rendered against him.’ 7 TEX.JUR.2d 73, § 33.”

This case is distinguishable from the cases cited by Inesco and Trans-Mex in their brief. Those cases involved situations in which the attorney withdrew just before the trial (see, e. g., Lowe v. City of Arlington, supra) or the attorney was unavoidably absent at the trial. See e. g., Arnold v. Fort Worth & D.S.P. Ry., 8 S.W.2d 298 (Tex.Civ.App.—Amarillo 1928, no writ).

This is not a case in which the litigant had inadequate notice of the withdrawal of his attorney, nor is it a case in which the attorney was unavoidably absent. On the contrary, the litigants in this case, Inesco and Trans-Mex, made a decision through a majority of their directors, i. e., Adams and Lawrence, not to present any defense at the trial. Therefore, Inesco and Trans-Mex have failed to establish that they were unjustly deprived of the right of counsel. This point is overruled.

No error being shown, the judgment of the trial court is affirmed.

AFFIRMED.