author: SHANNON, Justice.

text:
    Phil P. O’NEAL, Relator, v. Gary W. STOVALL, Respondent.
    No. 13033.
    Court of Civil Appeals of Texas, Austin.
    April 4, 1979.

      James A. Childress, Senterfitt, Adams, Miller & Childress, San Saba, Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, for relator.
    Jon N. Coffee, Coffee, Goldston & Bradshaw, Austin, for respondent.
   SHANNON, Justice.

This is an original proceeding in mandamus filed by relator Phil P. O’Neal. Relator asks this Court to compel respondent Gary W. Stovall, official court reporter for the 33rd Judicial District Court of San Saba County, to prepare a statement of facts in our cause number 12,955, Phil P. O’Neal v. County of San Saba. The transcript in that cause was filed with the Clerk of this Court on November 2, 1978.

After about a three-day trial, the jury returned its verdict on September 17, 1977. On July 1,1978, the district court signed the judgment. The district court overruled relator’s amended motion for new trial on September 8, 1978. On the same date, counsel for relator notified Gary W. Stovall, official court reporter for the 33rd Judicial District Court of San Saba County, to prepare a statement of facts.

On April 4, 1979, the date of this opinion, and 208 days after the date of the request for its preparation, respondent still has not prepared the statement of facts. Counsel for respondent represented to this Court during oral argument of the petition for writ of mandamus that the respondent had completed four hundred pages of an approximate nine hundred-page statement of facts.

In his response to the petition for mandamus, respondent answered that he had resigned as official court reporter of the 33rd Judicial District Court effective March 19, 1979. In his answer respondent represented that he would complete and deliver the statement of facts “within a reasonable time,” but has been unable to do so thus far. Counsel for respondent represented in oral argument that respondent will continue to report proceedings in the 33rd Judicial District Court when that court sits in Bur-net County.

Respondent’s excuses for failure to complete and deliver the statement of facts within the time required by Tex.R.Civ.P. 386 and the several extensions of time granted by this Court were set out in affidavits prepared by respondent to be attached to the several motions for extension of time. The affidavit attached to the fourth motion is representative of the several affidavits and is set out below:

“Before me, the undersigned authority, on this date personally appeared Gary W. Stovall, a credible person known to me to be the person whose name is subscribed below, who being by me first duly sworn, upon his oath deposed and said; I am the official Reporter in and for the 33rd Judicial District Court of Texas. I am the Reporter who took the testimony in Cause No. 4944, styled The County of San Saba vs. Phil P. O’Neal.
I will be unable to complete the preparation of this Statement of Facts by February 15,1979. My problem is occasioned by the fact that the 33rd Judicial District Court encompasses six counties. I am the only Court Reporter within this district and the current work load, length of this Statement of Facts, demands of other matters now on appeal and duties of my office have denied me time to work solely on this Statement of Facts. An additional sixty (60) days will be required in which to timely complete and file the Statement of Facts in this cause.
For such reasons I respectfully request sucn [sic] an extension of time in which to complete and deliver the Statement of Facts, together with exhibits, for filing with the Court of Civil Appeals. Such an extension of time is necessary and will be sufficient.”

The 33rd Judicial District is composed of six counties: Mason, Menard, Blanco, San Saba, Llano, and Burnet. Four of the six counties are included within the Third Supreme Judicial District. This Court judicially knows that those counties are rural in character and are sparsely populated. Because there are fewer appeals taken from judgments entered by the 33rd District Court than practically any other district within the Third Supreme Judicial District, we think it a fair conclusion that the amount of civil litigation within the district is moderate.

This Court recognizes that parts of respondent’s court days may be consumed by travel between county seats within the 33rd Judicial District. We also know that there is no time to dictate or transcribe notes during the time a trial of a cause is in progress. Nevertheless, we recognize that the services of a reporter are not requested by the parties in many hearings. We also know that many “firm” trial settings break down and that some causes are settled at the last minute. We are not persuaded by respondent’s presentation that every hour of every court day is occupied by either travel or by reporting testimony. In addition, respondent has not accounted satisfactorily for his time after court hours or during the weekends. Garza v. Berlanga, 575 S.W.2d 639 (Tex.Civ.App.1978, no writ).

In response to questions from the bench, respondent’s counsel suggested on advice of respondent that respondent will need thirty-five or forty days from date of submission, March 27, 1979, to complete the remaining five hundred pages of the statement of facts. This amount of time is said to be needed inasmuch as respondent is typing the statement of facts himself. Counsel suggested there exists a shortage of typists in and around Burnet. Respondent has not explained, however, why typing services could not be obtained in Austin or elsewhere in order to shorten the time needed to prepare the statement of facts.

Other than the daily reporting of a court proceeding in progress, the reporter has no professional duty that takes precedence over the prompt completion of statements of fact. Figueroa v. Treece, 331 S.W.2d 250 (Tex.Civ.App.1960, no writ); Modine Manufacturing Co. v. North East Independent School District, 489 S.W.2d 458 (Tex.Civ.App.1972, no writ); Wright v. Wolters, 564 S.W.2d 190 (Tex.Civ.App.1978, no writ); O’Neal v. County of San Saba, 577 S.W.2d 795 (Tex.Civ.App.1979).

Respondent has failed and refused to promptly complete and deliver the statement of facts in the cause in question. We are not convinced by the excuses offered for respondent’s failure and refusal to perform his legal duty.

By authority of Tex.Rev.Civ.Stat. Ann. art. 1823 (1964) a Court of Civil Appeals may issue the writ of mandamus to enforce its jurisdiction. Without a statement of facts, this Court, of course, is unable to exercise its appellate jurisdiction to determine questions of the sufficiency of the evidence. An official court reporter is an officer of the state and should not be permitted to interfere with the jurisdiction of a Court of Civil Appeals in resolving an appeal by failing and refusing to complete and deliver the statement of facts. City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.1976, no writ). Respondent by resignation as reporter of the 33rd Judicial District Court should not, and will not, be permitted to absolve himself of responsibilities undertaken as an official reporter. We are convinced that this Court is empowered by art. 1823 to issue a writ of mandamus directing respondent to complete and deliver the statement of facts in a cause which he reported while an official reporter. Otto v. Wren, 184 S.W. 350 (Tex.Civ.App.1916, no writ). This is especially true in light of the fact that respondent is presently acting as a deputy court reporter, Tex.Rev.Civ.Stat.Ann. art. 2323 (1971); Tex.R.Civ.P. 376b(c), or at least as a de facto deputy court reporter when the 33rd District Court sits in Burnet County.

The Clerk of this Court is directed to issue a writ of mandamus commanding respondent Gary W. Stovall to complete the statement of facts in cause number 4,944, styled Phil P. O’Neal v. County of San Saba, tried in the 33rd District Court of San Saba County, and deliver the same in person or by agent to the Clerk of this Court, Honorable Margie Love, on or before April 19, 1979.

Upon receipt of said statement of facts, the Clerk will mark it “received” and notify all attorneys of record in the cause. The attorneys of record shall then have an opportunity to examine the statement of facts as to its truth and accuracy and approve the same.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Paul J. MOORE et al., Appellants, v. TEXAS OIL AND GAS CORPORATION, Appellee.
    No. 5962.
    Court of Civil Appeals of Texas, Waco.
    April 5, 1979.
    Putnam Kaye Reiter, Mexia, for appellants.
    W. S. Barron, Jr., Brice & Barron, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a summary judgment. Plaintiff-Appellants Paul J. Moore and Bill M. Doyle brought this suit against Defendant-Appellee Texas Oil and Gas Corporation, same being No. 909 in the trial court and hereinafter referred to as “the case at bar.” In said suit Plaintiffs alleged that in 1959 Alamo National Bank of San Antonio, Trustee, as Lessor, made an oil and gas lease of 28,115.48 acres of land located in McMullen and La Salle Counties, Texas, known as the Washburn Ranch, to Shamrock Oil and Gas Corp., as Lessee. Said lease was for a primary term of five years, with the further provision that after the end of the primary term, said lease should remain in force only so long as operations for the drilling or deepening of a well are conducted upon the subject land, with no more than ninety days elapsing between the completion of drilling or deepening operations on one well and the commencement of drilling or deepening operations on another well. Plaintiffs (a geologist and petroleum engineer respectively) further alleged that during 1965, and while said lease was still in effect, they (Plaintiffs) obtained a farmout of certain rights in said 1959 lease from Shamrock, and drilled several wells on the land embraced by the lease; that in 1971, one James A. Clements negotiated with the original lessee (who was then Diamond-Shamrock Oil and Gas Corp., the successor to Shamrock), to purchase the 1959 lease from Diamond-Shamrock. However, Diamond-Shamrock would not sell the lease unless Plaintiffs Moore and Doyle agreed to relinquish their farmout rights. Plaintiffs further alleged that said Clements as a limited partner and agent for GLM, Ltd., offered to enter into an agreement with Plaintiffs set forth in a letter dated April 22,1971, hereinafter fully quoted, whereby the Plaintiffs agreed to relinquish their farmout rights from Diamond-Shamrock, and in return GLM, Ltd. agreed to do the following things: (1) commence an exploratory well on subject premises on or before May 10, 1971 (2) assign to Plaintiffs jointly a 1/32 of 8/8ths overriding royalty interest, and (3) if GLM, Ltd. should elect to discontinue drilling operations on successive wells, to notify Plaintiffs of such election, and on request by Plaintiffs, GLM agreed to assign all its right, title, and interest therein back to Plaintiffs. Plaintiffs further alleged that pursuant to and in reliance upon this agreement they relinquished their rights under their farmout, and in turn GLM, Ltd. conveyed a 1/32 of 8/8ths override to Plaintiffs and timely commenced the subject well; that GLM never elected to discontinue drilling operations on successive wells and therefore were not requested to assign the original lease back to Plaintiffs.

Plaintiffs go on to allege that in February of 1976, Alamo Bank, the Lessor, brought suit in Cause No. 881 in the District Court of McMullen County (hereinafter referred to as “the former case”), to cancel the 1959 lease; that thereafter, Texas Oil and Gas Corporation, Defendant in the case at bar, entered into an agreement with the lessor (Alamo Bank) whereby Texas Oil and Gas agreed to prosecute Cause No. 881 in an effort to cancel the oil and gas lease and spend up to $500,000.00 to accomplish such purpose; and afterwards, Texas Oil and Gas intervened in Cause No. 881. Plaintiffs allege that during the pend-ency of Cause No. 881, Texas Oil and Gas knew about GLM’s obligation to assign the original lease to Plaintiffs upon the election of GLM to discontinue drilling operations; but nevertheless, in spite of all this, Texas Oil & Gas proceeded to, and did, purchase all the interests of GLM and its successors in the original lease, and then abandoned the lease to Alamo Bank and acquiesced in the cancellation of said lease. Plaintiffs further allege that when it became obvious that Texas Oil and Gas was going to release the original 1959 lease back to Alamo Bank, principally for the purpose of wiping out the 1/32 override of Plaintiffs, that Plaintiffs made timely demand upon Texas Oil and Gas to assign to Plaintiffs the original lease, which Texas Oil and Gas refused to do; that on the same day the release by Texas Oil & Gas to Alamo Bank of the 1959 lease was recorded in McMullen County, Texas Oil & Gas recorded a new lease from Alamo Bank to Texas Oil & Gas, granting similar leasehold interests to Texas Oil & Gas as had been contained in the original 1959 lease.

Based upon the above alleged facts, Plaintiffs contended that Texas Oil and Gas has been unjustly enriched at Plaintiffs’ expense by releasing the original 1959 lease to Alamo Bank and receiving a new lease with the effect of wiping out Plaintiffs’ 1/32 override, and thereby Plaintiffs sought equitable relief therefor to establish a constructive trust upon the new lease for Plaintiffs’ benefit; and in the alternative; Plaintiffs sued for $5,000,000.00 damages. Then by way of Supplemental Petition, Plaintiffs alleged that Defendant Texas Oil & Gas tortiously interfered in the business relationship between Plaintiffs on the one hand, and GLM, Ltd., James Clements, Guy L. Mann (a partner in GLM), and Alamo Bank on the other, and by virtue of Defendant’s wrongful and unconscionable acts, Plaintiffs have suffered damages.

Defendant-Appellee Texas Oil & Gas set up an answer consisting of a general denial, not guilty, and the following affirmative defenses: statute of frauds, res judicata, estoppel by judgment, estoppel by deed, the parol evidence rule, and good faith purchaser for value.

Defendant-Appellee Texas Oil & Gas moved for summary judgment, which motion the trial court granted and entered summary judgment that Plaintiff-Appellants Moore and Doyle take nothing, from which Plaintiff-Appellants appeal.

Plaintiff-Appellants assert in three points of error that the summary judgment is improper because the record presents genuine issues as to material facts, and the Defendant-Appellee is not entitled to judgment as a matter of law. We sustain these contentions, and thereby reverse and remand the cause for trial on the merits.

In order to understand the posture of the case at bar, it is necessary to review the former case, to wit, Cause No. 881, wherein Alamo National Bank of San Antonio, Trustee, sought to cancel the 1959 oil and gas lease hereinabove referred to. In the former case, Alamo Bank as Plaintiff-Lessor named as parties defendant the various parties claiming an interest in said lease, including Moore and Doyle (Plaintiffs in the case at bar), as well as the partners in GLM, Ltd. In this connection the three partners in GLM, Ltd. were one Volk, James A. Clements, and Guy L. Mann. In the intervening time Guy L. Mann, the general partner in GLM, Ltd., died, and his heirs were made parties defendant in the former case; in addition thereto, the limited partnership had been dissolved. Moore, Doyle, the Mann Estate, and Clements appeared and answered in the former case.

The summary judgment proof in the case at bar shows a written contract between Alamo Bank and Texas Oil and Gas dated April 15, 1976, the substance of which was to the effect that Texas Oil and Gas agreed to assist Alamo Bank in getting the 1959 lease cancelled, and agreed to spend up to a half million dollars in such efforts, and in the event Alamo Bank was successful in Cause No. 881 (the former case) in getting the lease cancelled, that Alamo Bank agreed to execute and deliver a new oil and gas lease on the subject property to Texas Oil and Gas as lessee, giving to Texas Oil and Gas similar rights and benefits as were provided for in the original 1959 lease. The contract further provided that if Alamo Bank were unsuccessful in Cause No. 881 in cancelling the 1959 lease, then the new lease would be void, and the Bank would be entitled to retain the consideration paid to it or in its behalf by Texas Oil and Gas. Said contract further provided that upon execution and delivery by Alamo Bank to Texas Oil & Gas of the new lease, the latter would release any interest it might acquire in the original lease.

The proof further shows that Texas Oil & Gas purchased the interests of the Guy L. Mann Estate, Volk, and Clements as derived by them from and through GLM, Ltd. This put Texas Oil and Gas in the position of owning all the working interest in the 1959 lease. It was at this point that Moore and Doyle called upon and made written demand upon Texas Oil & Gas to assign to them (Moore and Doyle) the original lease in accordance with the terms of the alleged contract Moore and Doyle had with GLM, Ltd., as evidenced by the letter dated April 22, 1971, from Doyle to Guy L. Mann here-inabove referred to. Thereupon, Texas Oil and Gas not only refused to assign the 1959 lease back to Moore and Doyle, but also filed an Intervention in Cause No. 881, praying that the court give Alamo Bank all the relief requested by Alamo Bank, or, alternatively, that the court establish title in Texas Oil & Gas to the original 1959 lease.

Alamo Bank filed a motion for summary judgment in Cause No. 881 which was adopted by Texas Oil & Gas. Moore and Doyle then filed a counterclaim against In-tervenor Texas Oil & Gas alleging and setting up their 1/32 overriding interest under the original 1959 lease; that they (Moore and Doyle) had performed substantial amounts of work in efforts to develop production upon said lease; that Alamo Bank and Texas Oil & Gas knew and acknowledged that Moore and Doyle were rightfully entitled to their interest in said lease; that said lease was of great value; then Moore and Doyle pleaded and set up their arrangement whereby they assigned their rights in the lease to Diamond-Shamrock, in return for the agreement by GLM to perform those things hereinabove mentioned as set out in the letter of April 22, 1971, from Doyle to Mann; that Texas Oil & Gas, while well aware of the rights of Moore and Doyle, bought out all the working interests in said lease; then made a contract with Alamo Bank to help Alamo Bank cancel said lease, for the purpose of defeating the rights of Moore and Doyle; that since Texas Oil and Gas has in effect conspired with Alamo Bank to cancel said lease and has acquired in its place a new lease from Alamo Bank, that Moore and Doyle are entitled to a constructive trust to be impressed upon the new lease for their benefit, and alternatively for actual and exemplary damages. Moore and Doyle in said counterclaim also alleged that Texas Oil and Gas intentionally and wrongfully interfered in the business relationship between them and GLM with the end result of defeating their rights in said lease.

Alamo Bank’s motion for summary judgment was granted by the trial court which in effect cancelled the 1959 oil and gas lease; however, it is significant to note that in said judgment the counterclaim of Moore and Doyle against Texas Oil & Gas was expressly dismissed without prejudice, and therefore was not litigated or adjudicated in Cause No. 881.

In the case at bar, as stated before, we have an appeal from a summary judgment. The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. Rule 166-A, Tex.Rules of Civil Procedure; Gulbenkian v. Penn (1952) 151 Tex. 412, 252 S.W.2d 929, 931. Summary judgment should be granted, and if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp. (Tex.1970) 450 S.W.2d 827; Harrington v. Young Men’s Christian Assn. of Houston (Tex.1970) 452 S.W.2d 423. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co. (Tex.1965) 391 S.W.2d 41, 47. Also see Whitten v. Metro Bank of Dallas (Tex.Civ.App. Waco 1977) 556 S.W.2d 383, no writ.

Bearing in mind the foregoing rules, as we must, we are of the opinion and hold that the record presents genuine issues of material facts that render summary judgment improper.

Appellee contends that Appellants’ rights, if any they had under the 1959 lease, were barred by res judicata and estoppel by judgment by virtue of the judgment in the former Cause No. 881. We do not see how this is possible when the judgment in Cause No. 881 expressly dismissed without prejudice the counterclaim of Moore and Doyle against Texas Oil and Gas, taking into account that the relief sought by Moore and Doyle in the case at bar is with minor differences the same or similar relief sought in the former case. At any rate, this controversy between Appellants and Appellee by the express terms of the former judgment were not litigated or adjudicated.

Appellee set up the affirmative defense that it had no knowledge of the claims of Moore and Doyle when Appellee bought up the working interests in the 1959 lease and entered into the contract with Alamo Bank as hereinabove referred to. However, Appellants presented summary judgment evidence to the effect that Appel-lee Texas Oil and Gas did have knowledge of the rights of Moore and Doyle at such times. Therefore we have a material fact issue concerning this affirmative defense, precluding summary judgment as to this particular affirmative defense.

Next, Appellee contends that the letter from Doyle to Mann dated April 22, 1971, is unsigned and therefore is inadmissible as being within the statute of frauds and barred by the parol evidence rule. We do not agree. Said letter was addressed to Mr. Guy L. Mann and set out the obligations which Mann assumed to Moore and Doyle in return for Appellants’ release of their farmout rights to Diamond-Shamrock. The letter reads as follows:

“April 22, 1971
“Mr. Guy L. Mann
1007 Frito Lay Building
Dallas, Texas 75235
“Dear Mr. Mann:
“At Diamond-Shamrock’s request I am preparing a letter releasing them from my farm-out agreement on 25,987.59 acres of The Alamo National Bank Trustee, McMul-len and La Salle counties, Texas, so that they may convey this acreage to you.
“It is my understanding that upon your acceptance of this conveyance you will have the following obligations to Paul J. Moore and myself:
Before May 10, 1971, you will commence actual drilling of a well to extend the existing Oil and Gas Lease for another 90 days. 1.
“2. If you elect to discontinue drilling operations on successive wells, you agree to notify me not less than 30 days prior to the expiration of any 90 day period, and on request assign to me all your right, title and interest in the acreage unearned under the terms of the conveyed Oil and Gas lease.
“3. Upon conveyance to you of this Oil and Gas Lease you will immediately assign to Paul J. Moore a one-sixty fourth of eight-eights (1/64 of 8/8) overriding royalty, and to Bill M. Doyle a one-sixty fourth of eight-eights (1/64 of 8/8) overriding royalty, aggregating a total of one-thirty second (1/32) of all the oil and gas produced from the acreage conveyed to you.
Yours sincerely,
Bill M. Doyle
“Agreed to this_day of April, 1971.
Guy L. Mann”

The copy of the above letter as made a part of the summary judgment evidence is unsigned; however, Appellants offered proof that the original of this letter was signed and was last known to be in Guy L. Mann’s possession; that after Mr. Mann’s death a considerable search of his files was made in order to find the original letter but that such efforts were unsuccessful; that for such reasons the above unsigned copy of the letter was offered as secondary evidence of a lost document. Under this record we cannot say the secondary evidence is inadmissible as a matter of law.

Moreover, the summary judgment proof raises material fact issues bearing upon Appellant’s assertion of tortious interference on the part of Appellee into the business relationship and affairs between Appellants on the one hand, and Volk, Mann, and Clements as partners in GLM, Ltd. on the other. This record presents a complex fact situation involving several parties, with a considerable amount of dealings between and among them, many aspects of which are disputed by Appellants and Appellee. Under this record we cannot say that Ap-pellee is entitled to judgment as a matter of law.

We therefore reverse and remand the cause for trial on the merits.

REVERSED AND REMANDED.


author: SPURLOCK, Justice.

text:
    Leonard H. ARNOLD et al., Appellants, v. The AUSTIN NATIONAL BANK, Appellee.
    No. 18079.
    Court of Civil Appeals of Texas, Port Worth.
    April 5, 1979.

      Fulbright & Jaworski and Martha Tobin, Houston, for Leonard H. Arnold and Arnold Cotton Co.
    Dickerson, Hamel, Early & Pennock and William L. Bowers, Jr., Houston, for Armin-ta Carter Arnold.
    Graves, Dougherty, Hearon, Moody & Garwood and R. Clarke Heidrick, Jr., Austin, for Austin National Bank.
   OPINION

SPURLOCK, Justice.

This is a venue case. Venue of a suit for declaratory relief was sustained in Travis County, Texas over the defendants’ plea of privilege to have the case transferred to Houston County. The dispute centers around whether the nature of the suit involves the administration of an estate or a trust.

We affirm.

This suit for declaratory relief was brought by The Austin National Bank as co-trustee and co-executor under the will of Douglass H. Arnold, deceased, against Leonard H. Arnold, of Houston County, in his individual capacity and in his capacity as administrator of the estate of Della Arnold, deceased; Arnold Cotton Company of Houston County; Arminta Carter Arnold, surviving spouse of the deceased in her capacities as co-trustee and co-executor under the will of Douglass H. Arnold, deceased, of Houston County; Lynda Arnold Habbinga, of Travis County, and Gail Arnold Matthews, of Trinity County, both income beneficiaries of the trusts created by the will.

The will was probated in Houston County. It named Arminta Carter Arnold and the bank as co-executors and co-trustees of the trusts created by the will. Leonard Arnold is the father of the testator and he and the testator were partners in a family business known as the Arnold Cotton Company.

Substantial state and federal tax liabilities exist. To avoid an immediate sale of the assets to satisfy the tax liabilities, the bank loaned money to the estate. The bank’s petition states:

In order for Plaintiff to perform its fiduciary duties to the beneficiaries of the trusts established under the Will of Douglass H. Arnold, Plaintiff must have instructions from this Court with respect to the legal powers and duties conferred upon it by the Will of Douglass H. Arnold, and must know with certainty the extent of the interest of the Estate of Douglass H. Arnold in the ARNOLD COTTON COMPANY, and value of the assets and liabilities presently belonging to the ARNOLD COTTON COMPANY. Plaintiff therefore requests that this Court, pursuant to Section 24(A) of the Texas Trust Act and Section 4 of the Texas Uniform Declaratory Judgment Act, determine, decree and declare:
“(1) that Plaintiff as the representative of the Estate of Douglass H. Arnold may dissolve the ARNOLD COTTON COMPANY, and compel the sale of the assets of the ARNOLD COTTON COMPANY for cash and the distribution of net proceeds to LEONARD H. ARNOLD and the Estate of Douglass H. Arnold; and,
“(2) that Plaintiff would not violate its fiduciary duty to the beneficiaries of the trusts established under the Will of Douglass H. Arnold in the event Plaintiff elects to dissolve the ARNOLD COTTON COMPANY immediately, and to compel the sale of its assets for cash and the distribution of net proceeds to LEONARD H. ARNOLD and the Estate of Douglass H. Arnold; and,
“(3) that the indebtedness represented by the Note and Deed of Trust is a valid debt of the Estate; and,
“(4) the specific assets and liabilities of the ARNOLD COTTON COMPANY as the date of such decree; and,
“(5) the percentage of the net proceeds to which the Estate of Douglass H. Arnold would be entitled in the event the ARNOLD COTTON COMPANY is dissolved, its assets sold, and the net proceeds distributed to the partners.”

A plea of privilege was filed by appellants, Leonard H. Arnold, individually and as administrator of the estate of Della Arnold, deceased; Arnold Cotton Company, a partnership comprised of Leonard H. Arnold and the estate of Douglass H. Arnold, deceased; and Arminta Carter Arnold, individually and in her capacity as co-trustee and co-executrix under the will of Douglass H. Arnold, deceased.

The trial court sustained venue in Travis County and filed findings of fact and conclusions of law to the effect that the suit was properly maintainable in Travis County. In summary form, the court found that the will had been probated and that the bank was one of two co-trustees created by the will; the principal office of each of the two trusts created under the will is maintained in Austin, Travis County, Texas; that Lynda Arnold Habbinga is a beneficiary of one of the trusts and a resident of Travis County, Texas. The court concluded the suit was brought pursuant to Article 7425b-24(A) and venue is controlled by that article and Article 7425b-24(B) making venue proper in Travis County. The court also sustained venue under Article 1995(4) because this action may affect the potential interest of a defendant, Lynda Arnold Hab-binga, a Travis County resident, in the trust created; and the other defendants are proper parties to this action. Section 24 of the Texas Trust Act provides in pertinent part as follows:

“A. The district court shall have original jurisdiction to construe the provisions of any trust instrument; to determine the law applicable thereto; the powers, responsibilities, duties, and liability of trustee; the existence or non-existence of facts affecting the administration of the trust estate; to require accounting by trustee; and to surcharge trustee.
“B. In cases where there be a single trustee, the venue of such actions shall be in the county of the residence of such trustee; or if a corporation, in the county of its principal place of business. Where there are two or more trustees, then the venue shall be in the county where the principal office of the trust is maintained.” (Emphasis ours.)

In order for the bank to maintain venue in Travis County under the above section, the bank must show the following three elements:

(A) that the Bank is a co-trustee of the trusts involved;
(B) that the Bank has brought this suit within the province of Section 24 of the Trust Act; and
(C) that the principal office of the trusts is located in Travis County, Texas.

By four points of error appellants contend there is no evidence or insufficient evidence to support the findings that the bank’s action was brought pursuant to the above article of the Texas Trust Act.

Appellants argue that the nature of the bank’s suit is the litigation of matters incident to the administration of Douglass Arnold’s estate, rather than matters relating to the trusts created by the will. They claim that the assets of the estate must be determined and distributed before any questions arise concerning the trusts scheduled to come into existence after the estate administration is completed. Thus, the issue raised is whether the nature of the bank’s suit concerns the estate or the trusts. Therefore, the nature of the suit is a venue fact.

A succinct statement of the law on this question is contained in 1 McDonald, Texas Civil Practice § 4.55 — (IV)(a) at 611 — (Rev. 1965), as follows:

“(a) Venue facts determined by reference to the petition. When the nature of the suit is a venue fact, the petition is the best the sufficient evidence of the ‘principal right asserted and the relief sought for the breach thereof.’ It need not be introduced formally into evidence, for the court will take judicial notice of its contents. The nature of the suit is determined by considering the petition as a whole, and depends upon the principal right asserted and the relief sought thereon, though the action also may involve subordinate claims. The court examines ‘the allegations of the petition . to determine the cause of action made out irrespective of the form’ adopted by the plaintiff in framing his allegations. The prayer is not determinative, for the cause of action depends upon the facts stated in the petition. Where the plaintiff’s petition asserts alternative causes of action, he is not required at the venue hearing to elect the one or more on which he may rely when the action is tried upon its merits. If the defendant alleges and proves that the petition has been framed fraudulently so as to purport to bring an action of the nature involved, when no such action lies, the court will go behind the allegations as to the nature of the action.”

In its petition the bank alleges it holds an interest in the Arnold Cotton Company in trust, that it has fiduciary duties to the income beneficiaries of the trust, that it needs adjudication of its rights to know the extent of its interest and its power to dispose thereof. The bank prays for this relief plus a declaration that it can exercise its rights without breaching any of its duties. A review of appellants’ plea of privilege and the testimony at the hearing of the plea fails to reveal any allegation or proof of fraud or bad faith on the part of the bank in its allegations. Therefore, we find there is sufficient evidence in the record to support the findings of the trial court that the action was brought pursuant to and venue is controlled under the Texas Trust Act.

Appellants’ next points of error complain that the trial court erred in overruling the plea because there was no evidence or insufficient evidence to support the finding that the principal office of the trusts was in Austin, Travis County, Texas. We have reviewed the record and find there is sufficient evidence to support the finding. Therefore, we overrule points of error 5-7.

Appellants’ last point of error is that the trial court erred in overruling their plea because it erroneously sustained venue under Article 1995(4). Subd. 4 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. Appellants argue that the bank has not pled or proved a bona fide cause of action against Lynda Arnold Habbinga, a named defendant and resident of Travis County, and an income beneficiary under the trusts. Appellants claim that while Mrs. Habbinga may be a proper party, there is no dispute between her and the bank and therefore, the bank has not proved any cause of action against her.

In order to sustain venue under Article 1995(4) plaintiff must prove the following three elements;

(A) that the resident defendant in fact resides in the county of suit;
(B) that plaintiff has a cause of action against the resident defendant; and,
(C) that the party asserting its privilege is at least a proper party to the suit against the resident defendant.

The record reflects that the evidence relating to elements (A) and (C) above is undisputed. Mrs. Habbinga is a Travis County resident and an income beneficiary under the trusts.

Appellants dispute element (B) on the ground that there is no adverse interest between the bank and Mrs. Habbinga. We do not agree. It is undisputed that the bank owes Mrs. Habbinga fiduciary duties.

It is our opinion that the bank has a cause of action against Habbinga under the Texas Trust Act because the bank’s powers, responsibilities and duties, and liabilities to the income beneficiaries are in question.

The evidence reflects that the principal asset of the trusts is the Arnold Cotton Company. This was a partnership owned and operated by the testator and his family. The father is claiming that most of the assets of this company are owned by him individually and are not and will not become a part of the trusts. Leonard Arnold, the father of the deceased, placed the bank in a precipitous position by refusing to partition the assets of the cotton company. If the partnership is not liquidated, then existing tax liens may be foreclosed and the trust assets lost. In addition thereto, the bank may be required to foreclose its lien on the assets to satisfy the debt of the estate to the bank for partial payment of taxes. On the other hand, if the Arnold Cotton Company is liquidated, then the family business would be destroyed, and one of its assets is good will and the fact that it is a going business. Another factor is that the prospective purchasers might pay only small sums to buy undivided interests in the family partnership.

Whatever action the bank takes will directly affect Mrs. Habbinga as an income beneficiary. A declaration of the bank’s powers, responsibilities and duties, and liability to Mrs. Habbinga as an income beneficiary alleged a bona fide cause of action against her, which cause of action was sustained by a preponderance of the evidence at the hearing.

Because Mrs. Habbinga would have a cause of action against the bank for breach of its fiduciary duties owed to her, a judicial declaration that the bank’s action does not breach any of its duties is directly adverse to her interest.

For the reasons stated above, the bank has pleaded and proved a cause of action against Mrs. Habbinga. The trial court properly overruled appellants’ plea of privilege and sustained venue in Travis County under Article 1995(4). This point of error is overruled.

We have discussed all points of error urged by appellants and each has been severally considered and each is overruled.

The order of the trial court is affirmed.

      A11 references to Articles are to Tex.Rev.Civ.Stat.Ann.


author: SUMMERS, Chief Justice.

text:
    William MOORE, Appellant, v. Nancy GRANTHAM, Appellee.
    No. 1232.
    Court of Civil Appeals of Texas, Tyler.
    April 5, 1979.
    Rehearing Denied April 27, 1979.

      Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.
    William 0. Whitehurst, Jr., Kidd & Whi-tehurst, Austin, for appellee.
   SUMMERS, Chief Justice.

This case arose from a collision which occurred on February 19, 1975, when an automobile driven by William Moore, defendant below, struck the rear of an automobile driven by Nancy Grantham, plaintiff below. Plaintiff sustained personal injuries as a result of the collision, primarily to her neck and knee. This suit was filed by plaintiff seeking to recover for those personal injuries.

The case was tried to a jury. In response to special issues submitted, the jury found that defendant was negligent by failing to keep a proper lookout and by failing to control his speed and that such negligence was a proximate cause of the occurrence in question. (Special Issue No. 1) In addition, the jury found that defendant failed to maintain an assured clear distance between his vehicle and the vehicle driven by Nancy Grantham and that such failure was a proximate cause of the occurrence in question. (Special Issues Nos. 2 and 3) No attack is directed against the above findings by appellant in this appeal.

The jury awarded plaintiff $865.79 for the cost of past medical care, $2,197.40 for past loss of earnings, $2,500.00 for physical pain and mental anguish suffered in the past, $3,000.00 for the cost of medical care which in reasonable probability will be sustained in the future, $8,413.25 for physical pain and mental anguish which in reasonable probability will be suffered in the future, and $39,600.00 for loss of future earning capacity. (Special Issue No. 4) The trial court entered judgment against defendant on the basis of the jury’s verdict for a total of $56,576.44. From this adverse judgment, defendant has perfected this appeal predicated upon eight points of error. The primary target of appellant’s attack is the jury’s award of $39,600.00 for loss of future earning capacity.

Prior to the accident here in question, appellee was a trained and experienced interior designer. After graduation from high school, she was employed in a variety of clerical positions. In an effort to train herself for a higher paying profession, ap-pellee enrolled in a home-study program in interior decorating design offered by the LaSalle Extension University. She completed the program in two years and was then employed as a designer apprentice by Environmental Design Group, primarily involving commercial interior design. During the two years she worked as a designer apprentice appellee took some additional college level courses in art and print making. In 1972, she went to work at The Denmark Shop in Austin, Texas, a furniture and home accessories store, as an interior designer. After being employed at The Denmark Shop for almost one year, appel-lee left to attempt to establish her own interior design firm. She described this move as a risk which she had felt would eventually pay off.

During her testimony, appellee described some of the physical activities which were involved in interior design work. These activities included taking measurements to set up floor plans, drawing floor plans and potential designs, supervision of painting and carpet installation, and rearranging furniture. She testified that often an interior designer gets in the act of painting, packing, and unpacking. In addition, she testified that her duties required a great deal of driving in order to hunt for and purchase items for her clients’ homes. Two of appellee’s former clients also testified concerning the activities which they had observed her performing in the course of her employment as an interior designer. These activities included carrying in items, potting plants, rearranging furniture, hanging draperies, climbing up and down ladders, and painting. The rates which appel-lee had charged these clients for her services ranged from $20.00 to $30.00 per hour.

Subsequent to the accident here in question, appellee testified that she had attempted to return to interior design work. However, due to the injuries she had sustained to her neck and knee, these attempts were unsuccessful. Appellee was unable to accept other interior design jobs which were available because of the limitations imposed upon her by her injuries and the advice of Dr. Louis W. Breck, an orthopedic surgeon. Finally, appellee testified that she was presently employed as an assistant manager in a retail store for $600.00 per month. Her present duties include supervision of employees and outside sales.

Dr. Breck, an orthopedic surgeon to whom appellee had been referred by another physician, testified by deposition. He testified that he took appellee’s history and gave her a thorough examination, including x-rays. He noted that her subjective complaints were consistent with this type of neck and knee injuries and were confirmed by his objective findings. Upon examination of appellee’s neck, Dr. Breck said he found muscle spasm at the base of her neck and stiffness which resulted in a 50% loss of movement. In addition, Dr. Breck testified that x-rays exhibited a narrowing of the disc space and formation of osteophytes as a result of the injury. He explained that osteophytes were new bone growths resulting from bone injury which could produce artificial stiffening, pain, and were progressive in nature in the sense that it would continue to get worse. Dr. Breck also analyzed x-rays of appellee’s knee and concluded that she suffered from chrondromalacia of the patella and sclerosis of the back surface of the patella. These injuries result from blunt force or trauma to the knee and are painful when the knee is stressed.

Dr. Breck thoroughly discussed the limitations and restrictions he had placed upon appellee in regards to her activities and work. The appellee was to treat her knee with “tender loving care” and avoid stress. She should avoid all athletic activity which would stress the knee such as skiing and most ball games. By all means, she should avoid going up and down stairs any significant amount. Her employment should be limited to light work for the rest of her life. A limited amount of standing would be alright, but any stooping or bending down would be out due to both her knee and neck injuries. Her neck injury also produced some marked limitations. She cannot look up above eye level, turn her head around to drive a car in reverse, or sit for a prolonged period of time working over a desk or drawing board. Dr. Breck concluded that appel-lee will experience pain in the future as a result of both injuries which will be permanent and gradually worsen. He estimated that appellee suffered a permanent disability of the body as a whole of 20% due to both injuries together. In addition, appel-lee will probably require knee surgery in the near future.

The final witness called to testify by ap-pellee was Dr. Carl E. Hansen, director of the Rehabilitation Counsellor Education Program and a professor of vocational rehabilitation counselling at the University of Texas. Dr. Hansen was called as an expert witness primarily for the purpose of receiving his opinion as to the appellee’s loss of future earning capacity. The admissibility of Dr. Hansen’s opinion is the primary issue raised by this appeal.

Dr. Hansen testified that an interior designer in Austin, Texas, with 3-5 years experience would be in the $700.00 per month salary range for an entry level position. The state-wide average for an interi- or designer which such experience would be approximately $900.00 per month. He noted that appellee was currently employed as an assistant manager of a retail store for $600.00 per month. While so employed as an assistant manager, appellee could expect to earn a total of $235,200.00 over her working career expectancy of 32 years, 8 months. Work career expectancy was distinguished from life expectancy in that working career expectancy cuts off at age 65. Dr. Hansen compared this with the total earnings she could expect to earn if she were able to compete in the interior design field. Calculating on the basis of the $700.00 to $900.00 per month salaries previously discussed, Dr. Hansen testified that an interior designer could expect to earn $274,400.00 to $352,800.00 over a working career of 32 years, 8 months. The differential over the appellee’s future working career, based upon the figures above, would be $39,200.00 to $117,600.00. Therefore in Dr. Hansen’s opinion, based upon the interi- or design decorator jobs at $700.00 per month, appellee’s loss of future earning capacity was $39,200.00.

The basis of Dr. Hansen’s opinion was the subject of a great deal of discussion in the lower court. Dr. Hansen testified that a vocational evaluation basically involves a review of the person’s background through an interview process. Information concerning the person’s education, prior work experiences, and their medical disability or limitations is gathered. In connection with the instant case, Dr. Hansen relied upon such sources as a two hour interview with the appellee, a review of correspondence from Dr. Breck and Dr. Breck’s deposition, and correspondence from appellee’s former employers and clients. In addition to these sources, Dr. Hansen had an interview with Dr. Brightman, a University of Texas home economics professor specializing in interior design and did some research in the area of Manpower and Department of Labor surveys and statistics. Dr. Hansen explained that his training and expertise enabled him to take such information as surveys, statistical data, job occupations, and the transferability of skills from one occupation to another and reach an opinion as to the vocational limitations imposed upon the person by the medical disability and the person’s resulting capabilities in the labor market. It is important to note that Dr. Hansen testified that the sources which he utilized in the present case were those upon which he customarily relied in the practice of his profession and were customarily relied upon by other experts in this field.

Appellant’s points of error Nos. 1-4 complain that the trial court erred in admitting into evidence Dr. Hansen’s opinion of appellee’s loss of future earning capacity because the opinion was based entirely upon hearsay, it was opinion based upon opinion, it was not a subject for which expert opinion was proper, and the witness failed to testify in response to hypothetical questions and assumed facts not in evidence. No complaint is raised on appeal that Dr. Hansen was not qualified to testify as an expert in vocational rehabilitation. The sole question with which we are presented is whether it was proper for the trial court to receive this witness’ opinion in evidence. The trial court is necessarily given wide discretion in determining whether a qualified expert’s opinion will be admitted into evidence and the trial court’s decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Texas Sanitation Company v. Marek, 381 S.W.2d 710, 716 (Tex.Civ.App.—Corpus Christi 1964, n. w. h.); Urquhart v. Barnes, 335 S.W.2d 666, 669 (Tex.Civ.App.—Fort Worth 1960, n. w. h.); 23 Tex.Jur.2d, Evidence, Section 411, p. 615.

We will first address appellant’s point of error no. 1 which contends that Dr. Hansen’s opinion was inadmissible because it was wholly based on hearsay. This is a question with which the courts have long wrestled, not always reaching consistent answers. In the past, Texas courts have applied a strict rule holding an expert’s opinion inadmissible if any portion of the basis of such opinion was hearsay. McCormick and Ray, Texas Law of Evidence, section 1404, p. 242 (2d Ed. 1956). The application of this rule, however, has not always been uniform. For example, a distinction was drawn between the permissible basis of a treating physician and a nontreating physician. Texas Employers’ Insurance Association v. Morgan, 187 S.W.2d 603, 605 (Tex.Civ.App.-Eastland 1945, ref’d w. m.). A much more liberal rule was applied in cases involving opinion testimony of property valuation experts. State of Texas v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962); Cole v. City of Dallas, 229 S.W.2d 192 (Tex.Civ.App.—Dallas 1950, ref’d n. r. e.).

All expert testimony is of necessity significantly based upon hearsay. A properly trained expert must base his expertise, in large part, on information and skills he has learned from his teachers and textbooks. It is the very ability to utilize the training so derived that qualifies him to be an expert. The fact that an expert’s opinion is based, in large part, upon books, treatises, published and unpublished reports, and other such sources does not necessarily render the opinion inadmissible. Coffee v. William Marsh Rice University, 408 S.W.2d 269, 285 (Tex.Civ.App.—Houston 1966, ref’d n. r. e.); Texas & Pacific Railway Company v. Porter, 360 S.W.2d 568, 572 (Tex.Civ.App.—Eastland 1962, ref’d n. r. e.); Urquhart v. Barnes, supra; Schooler v. State, 175 S.W.2d 664, 670-1 (Tex.Civ.App.—El Paso 1943, ref’d w. m.). The recent trend has been to recognize that complaints of the nature of the one raised in the instant case should be considered more as questions of weight as opposed to questions of admissibility.

Once the expert is qualified, a primary question regarding the admissibility of his opinion is whether the basis of the opinion and the sources of information relied upon by the expert are of the type reasonably and customarily relied upon by experts in that particular field in forming their opinions. Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.Sup.1977); Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186-7 (Tex.Sup.1972); United States Fire Insurance Company v. Stricklin, 556 S.W.2d 575, 580 (Tex.Civ.App.—Dallas 1977, ref’d n. r. e., Stricklin v. U. S. Fire Ins. Co., Tex., 565 S.W.2d 43); Texas & Pacific Railway Company v. Porter, supra. One of the commentators noted with approval by the Supreme Court in Slaughter states:

“It is reasonable to assume that an expert in a science is competent to judge the reliability of statements made to him by other investigators or technicians.
“If the statements, then, are attested by the expert as the basis for a judgment upon which he would act in the practice of his profession, it seems that they should ordinarily be a sufficient basis even standing alone for his direct expression of professional opinion on the stand . .” McCormick, Evidence, section 15, pp. 35, 36 (2d Ed.1972).

The expert may not rely on just any hearsay, but where the source of the information or basis of the opinion is of a type upon which the expert and others within his profession customarily rely, it should be a sufficient basis to justify the admission of his professional opinion into evidence.

In the instant case, we do not believe Dr. Hansen’s opinion was based solely upon hearsay. However, the basis of the witness’ opinion was of the type commonly relied upon by experts in the field of vocational rehabilitation. We find no abuse of discretion on the part of the trial court in admitting Dr. Hansen’s opinion over appellant’s objection that it was entirely based upon hearsay. Appellant’s first point of error is overruled.

Appellant’s second point of error contends that the trial court erred in admitting Dr. Hansen’s opinion because it was an opinion based upon opinion. The thrust of appellant’s argument is that Dr. Hansen based his opinion upon the opinions of Dr. Breck, the physician, and Dr. Brightman, a home economics professor, and therefore Dr. Hansen’s opinion was inadmissible and of no probative value. We believe the cases cited by appellant in support of his position to be inapposite to the instant case.

Dr. Breek’s testimony described the functional or medical limitations suffered by appellee as a result of the occurrence here in question. These functional limitations, discussed previously in this opinion, were distinguished from the vocational limitations which were discussed by Dr. Hansen. Dr. Hansen stated that he was neither a physician nor was he attempting to give an opinion concerning appellee’s medical diagnosis. In reaching his conclusion as to the vocational limitations suffered by plaintiff, Dr. Hansen utilized the functional limitations as described by Dr. Breck in his testimony. Therefore, Dr. Hansen’s opinion was based, in part, on facts previously admitted into evidence, and this was made clear to the jury who had the opportunity to judge the credibility of both witnesses and the weight to be accorded to their testimony. The record fails to show that Dr. Hansen based his opinion on any alleged opinion given to him by Dr. Brightman.

An expert may base his opinion on his own observation of the facts, on an assumed state of facts which the evidence tends to establish, on competent evidence in the case, or partly on facts within his own knowledge and partly on facts shown by the testimony of others. Texas State Highway Department v. Fillmon, 150 Tex. 460, 242 S.W.2d 172, 175 (1951); Pan American Fire and Casualty Company v. Reed, 436 S.W.2d 561, 564 (Tex.Civ.App.—Amarillo 1968, ref’d n. r. e.). The basic facts upon which the expert’s opinion is based may be adduced into evidence by the expert himself or by other witnesses. We believe appellant’s second point of error is without merit and hereby overruled.

Appellant’s third point of error argues that the trial court erred in receiving into evidence Dr. Hansen’s expert opinion regarding loss of future earning capacity because it was not a subject for which opinion evidence was proper. It is appellant’s contention that the witness was in no better position than the jury to arrive at the ultimate conclusion. We disagree.

In considering whether to receive into evidence an expert’s opinion, it must appear to the trial court

“(1) that the subject is so related to some science, profession or business as to be beyond the knowledge of average laymen, and (2) that the witness offered has such skill, knowledge or experience in the particular field to make it probable that his opinion will be of assistance to the trier in the factual determination.” McCormick and Ray, supra at section 1400.

The trial court has broad discretion in determining whether the subject matter of the expert opinion is admissible. Burns v. Bridge Engineering Corporation, 465 S.W.2d 427, 432 (Tex.Civ.App.—Houston [14th Dist.] 1971, ref’d n. r. e.). In a personal injury suit, the amount of damages resulting from loss of future earning capacity is by necessity a matter left to the sound judgment and discretion of the jury. However, the jury may not be left to mere conjecture; it must be an intelligent decision based upon the available facts. King v. Skelly, 452 S.W.2d 691, 693 (Tex.Sup.1970). The plaintiff has the burden to prove the amount and the extent of such damage.

No objection to the qualifications of Dr. Hansen as an expert was raised by appellant, therefore the only question before us is whether loss of future earning capacity is a proper subject for opinion testimony by a qualified expert. The propriety and efficacy of such expert testimony has been recognized by Texas courts. Texas Steel Company v. Recer, 508 S.W.2d 889 (Tex.Civ.App.-Fort Worth 1974, ref’d n. r. e.); Williams v. General Motors Corporation, 501 S.W.2d 930 (Tex.Civ.App.—Houston [1st Dist.] 1973, ref’d n. r. e.). We find no abuse of discretion on the part of the trial court in receiving expert opinion testimony regarding loss of future earning capacity and appellant’s third point of error is overruled.

Point of error No. 4 asserts that the trial court erred in admitting the opinion testimony of Dr. Hansen regarding plaintiff’s loss of future earning capacity because the witness did not testify in response to a hypothetical question and assumed facts not in evidence. We have carefully examined the statement of facts and find a total absence of any such objections by appellant in the lower court. Appellee contends that appellant has waived any error, if any existed, by a failure to raise a proper and timely objection in the trial court. We agree.

It is elementary that failure to make a timely and proper objection to proffered evidence will prevent a party from complaining on appeal of its admission by the trial court. Swinney v. Winters, 532 S.W.2d 396, 401 (Tex.Civ.App.—San Antonio 1975, ref’d n. r. e.); Cain v. Zurich Insurance Company, 426 S.W.2d 575, 577 (Tex.Civ.App.—Dallas 1968, n. w. h.); Hix v. Wirt, 220 S.W.2d 530, 532 (Tex.Civ.App-Waco 1949, ref’d n. r. e.). Objections to evidence that are different from those urged in the trial court will not be considered on appeal. City of Wichita Falls v. Jones, 456 S.W.2d 148, 154 (Tex.Civ.App.—Fort Worth 1970, n. w. h.). The objection must be timely and point out any alleged defect with specificity. Wheatheart Feeders, Inc. v. Pletcher, 453 S.W.2d 902, 904 (Tex.Civ.App.—Amarillo 1970, dism’d); State of Texas v. Stiefer, 443 S.W.2d 275, 279 (Tex.Civ.App.—Tyler 1969, ref’d n. r. e.). Appellant has failed to preserve the error, if any, by the trial court in admitting the opinion testimony of Dr. Hansen because such testimony was not in response to a hypothetical question or allegedly assumed facts not in evidence. Appellant’s fourth point of error is overruled.

Appellant’s fifth point of error contends that the trial court erred in allowing Dr. Hansen to testify as to what was shown by certain surveys and reports not in evidence because such testimony was hearsay and not the best evidence. The reports in question consist of Department of Labor manpower studies and a survey of interior designers in the Austin area. Dr. Hansen testified that his opinion regarding appel-lee’s loss of future earning capacity was based, in part, on information and data he obtained from these studies. The trial court instructed the jury that this information was “simply used for the purpose of deriving his opinion.”

Appellant made no claim of surprise or that the reports were not equally available to all parties. The general rule is that an expert witness, having testified to an opinion, is permitted to testify as to the basis of his opinion and thereby enable the jury to judge the weight to be accorded his testimony. McCormick and Ray, supra at section 835, p. 610. Since it is not offered as evidence of the facts declared but merely as an explanation of the opinion, such testimony does not constitute hearsay. Lewis v. Southmore Savings Association, supra; State of Texas v. Oakley, supra; Miller v. Hardy, 564 S.W.2d 102, 106 (Tex.Civ.App.—El Paso 1978, n. w. h.).

In addition, appellant argues that because these reports were contained in written instruments, the best evidence rule applied. We disagree. Dr. Hansen was not attempting to prove the contents of the reports but merely seeking to show the basis of his opinion testimony, the reports themselves were only collaterally involved. An objection on the basis of the best evidence rule is inapplicable. Williams v. General Motors Corporation, supra at 940; Texas Electric Service Company v. Linebery, 327 S.W.2d 657, 665 (Tex.Civ.App.—El Paso 1959, dism’d). Appellant’s fifth point of error is overruled.

Appellant’s sixth point of error complains that the trial court erred in denying appellant’s requested jury instruction. The instruction which appellant requested be included in the charge to the jury stated, “Do not take into consideration or allow anything for any numbness of the left hand or left foot.” This request was denied by the trial court which instructed the jury as follows:

“You are further instructed that you will not include any amount for any condition not resulting from the injuries, if any, which resulted from the occurrence in question, nor will you include any amount for any condition existing before the occurrence in question, except to the extent, if any, that you find from a preponderance of the evidence that such other condition, if any, was aggravated by the injuries, if any, which resulted from the occurrence in question.”

Appellant argues that there was no evidence that any alleged numbness suffered by appellee was a result of any injury from the accident here in question. We agree. It is appellant’s contention that because of the lack of a causal link, appellant was entitled to the requested affirmative exclusion and that the trial court’s refusal constituted reversible error. We cannot agree.

Any alleged symptoms of numbness experienced by appellee are the subject of only a few, isolated references in the statement of facts. The appellee’s complaints of numbness in the left hand and foot are found in only two medical reports which were introduced into evidence. These two cursory references are the only evidence in the record tending to show that appellee ever experienced such symptoms. During cross-examination by counsel for appellant, Dr. Breck testified that he never found any loss of sensation in appellee’s extremities and that appellee had never mentioned any such complaint to him. At no time did appellee testify concerning any loss of sensation or numbness in her extremities.

Appellant relies on the rule of Dallas Railway & Terminal Company v. Ector, 131 Tex. 505, 116 S.W.2d 683, 685 (Tex.Comm.App.1938, opinion adopted), which states:

“It has long been a settled rule in this state that, where a plaintiff in a personal injury suit is suffering from an infirmity not caused by the accident which is the basis of the suit, and where the injuries flowing from the prior existing infirmity and those flowing from the negligence of the defendant are closely connected and intermingled to the extent that the jury might become confused and allow for improper elements of damages, the trial court should affirmatively charge the jury that plaintiff is entitled to recover only to the extent that his injuries were aggravated by the defendant’s negligence.” [Emphasis added.]

The trial court may properly specifically exclude elements of damages which may not properly be considered by the jury where there is no evidence of causal relation. Tyler Mirror & Glass Company v. Simpkins, 407 S.W.2d 807, 815 (Tex.Civ.App.-Tyler 1966, ref’d n. r. e.).

However, we do not believe that the instant case presents a situation where the improper element of damages was so closely connected or intermingled with elements which were proper for the jury to consider that the jury might become confused. Upon viewing the record as a whole, the isolated and cursory references to the alleged symptoms of numbness were not such that the jury was misled by the trial court’s failure to specifically instruct thereon. Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573, 576 (Tex.Civ.App.-Houston [14th Dist.] 1968, ref’d n. r. e.). While it may have been proper for the trial court to have granted appellant’s requested instruction under the circumstance of the present case, the trial court did not commit reversible error, if any error was committed, by denying appellant’s specific instruction. Rule 434, T.R.C.P. Appellant’s sixth point of error is overruled.

Appellant’s points of error nos. 7 and 8 challenge the jury’s response to Special Issue No. 4e, finding loss of future earning capacity in the amount of $39,-600.00. It is appellant’s contention that the trial court erred in overruling appellant’s motion for new trial because there was no evidence and insufficient evidence to support the jury’s finding.

In determining a “no evidence” point, which is a question of law, we may consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we must reject all evidence and inferences which are contrary to the finding. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). We have reviewed the record in the instant case and find that there is evidence of probative force to support the jury’s verdict and appellant’s seventh point of error is overruled.

In determining a factual sufficiency point, we must consider and weigh all the evidence to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and the finding therefore be set aside and the cause remanded for a new trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951); Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803 (1952).

We have examined the entire statement of facts and reviewed it in light of the rule announced by the Supreme Court in In re King’s Estate, supra. We deem the evidence sufficient to support the jury’s answer to the special issue in question and conclude that the jury’s finding regarding loss of future earning capacity is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Appellant’s eighth point of error is overruled.

Upon reviewing the statement of facts, we have noticed that portions of the testimony have been underlined in red ink by one of the parties. We strongly disapprove of such a practice.

We have considered all of appellant’s points of error and believe them to be without merit and the same are hereby overruled. The judgment of the trial court is affirmed.


author: DOYLE, Justice.

text:
    Ariel PENICHE, Appellant, v. AEROMEXICO, Appellee.
    No. 17294.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 5, 1979.

      Saccomanno, Clegg, Martin & Kipple, Carl T. Schultz, Houston, for appellant.
    Dow, Cogburn & Friedman, Ronald E. Tigner, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

This is a suit for damages arising from a tortious breach of contract. Appellant, Ariel Peniche (Peniche), sued Aeromexico, Ap-pellee, for not permitting him to continue to perform in accordance with the written agreement to which he and Aeromexico were parties. Rodolfo Fabre signed the agreement on behalf of Aeromexico, as District Manager. For the manner in which the agreement was terminated by Aero-mexico, through its Director for North America and Canada, Carlos Mario Gutierrez, Ariel Peniche, also sought damages for slander per se. Aeromexico cross-claimed against Rodolfo Fabre saying that he was without the authority to bind Aeromexico and prayed for indemnification.

Trial was to a jury. Testimony by Pe-niche was in Spanish through an interpreter. At the conclusion of plaintiff’s evidence, defendant moved for a directed verdict that plaintiff take nothing on the grounds that the agreement upon which plaintiff sued was illegal for the reason that plaintiff did not have a chauffeur's license. The court granted defendant’s motion and rendered a judgment that Ariel Peniche take nothing against Aeromexico and that Aeromexico take nothing against Rodolfo Fabre.

From this verdict, Peniche appealed, filing a pauper’s oath pursuant to Rule 355, T.R.C.P. Defendant, Aeromexico, and District Clerk, Ray Hardy, filed motions contesting Peniche’s inability to pay the cost of this appeal. Testimony at this hearing consisted of an affidavit filed and signed by Peniche’s attorney, Carl T. Schultz. After the hearing, the court sustained the oath on the condition that Peniche pay $25.00. This Peniche did and filed a sworn Cost Deposit for Appeal by and through his attorney. The perfected appeal is now before this court.

Before discussing Peniche’s point of error, we address Aeromexico’s first point of error since it alleges our lack of jurisdiction to decide this appeal. Aero-mexico argues that Peniche failed to comply with Rule 355 of the Texas Rules of Civil Procedure. It provides in part as follows:

(a) When the appellant is unable to pay the cost of appeal or give security therefor, he shall be entitled to prosecute an appeal by filing with the clerk his affidavit stating that he is unable to pay the cost of appeal or any part thereof, or to give security therefor.
(d) Upon such hearing the burden of proof shall rest upon the appellant to sustain the allegations of his affidavit.

We have reviewed the affidavit filed by Mr. Schultz and the statement of facts made at the hearing on the pauper’s oath. It is true that Peniche did not file the affidavit himself and Mr. Schultz does not state therein that he has personal knowledge of the contained facts as required by Rule 14, T.R.C.P. Such omission has been held to render the affidavit a statement of hearsay and thus ineffectual to confer jurisdiction on a court of civil appeals. Winn v. Federal Land Bank of Houston, 164 S.W.2d 864 (Tex.Civ.App.—Galveston 1942, writ ref’d); Landscape Design and Construction, Inc. v. Warren, 566 S.W.2d 66 (Tex.Civ.App.—Dallas 1978, no writ). Agreeing that Pe-niche did not meet the burden of proof imposed upon him by Rule 355, T.R.C.P., we think this point became moot when Peniche filed his Cost Deposit for Appeal, which this court considers to be sufficient as an appeal bond. The instrument is in substantial conformity with Rule 354, T.R.C.P., and shows that Peniche has paid $25.00 as ordered by the trial court, has bound himself to “prosecute the appeal with effect, and, if so ordered, shall pay all the costs which have accrued in the trial court and the cost of the statement of facts and transcript.” Under the liberal provisions of Rule 430, T.R.C.P., upon proper motion, this court will grant the right to amend the bond. Lusher v. First Nat. Bank of Ft. Worth, 260 S.W.2d 621 (Tex.Civ.App.—Ft. Worth 1953, no writ); Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141 (1943); Bean v. Hardware Mutual Casualty Company, 349 S.W.2d 284 (Tex.Civ.App.—Beaumont 1961, ref. n. r. e.).

By a single point of error Peniche complains of the trial court’s granting defendant's motion for a directed verdict on the ground that the contract sued on was illegal and in not finding that plaintiff had pled and proved a prima facie case of slander per se before the court granted defendant’s motion for directed verdict. The contract or agreement between Ariel Peniche and Aeromexico is set out on the letterhead of the airlines dated March 1, 1974. The letter is brief and we set it out in its entirety.

March 1, 1974

Mr. Ariel Peniche

12523 Fieldworth

Houston, Texas 77037

Dear Mr. Peniche:

In reference to our conversation, this is to reconfirm that AEROMEXICO will guarantee you a minimum four trips a day between the Airport and the Sheraton Lincoln Hotel and viceversa, for a minimum of one year.

It is hereby understood therefore, that you will provide individual transportation per crew in a station wagon, which is not older than two years and which is clean and well maintained. You will continue to carry the insurance coverage and the price will continue to be $13.00 U.S. Cy per trip.

It is also understood by AEROMEXICO, that if there should be a considerable increase on the price of gasoline, a consideration will be made on the price, based on the increase of the cost of gas.

If you are in agreement with this letter, please sign at the bottom of this letter.

Very truly yours,

/s/ Rodolfo H. Fabre

District Manager

RHF/mp

cc: Divisional Manager for the U.S. & Canada — MIA

AGREED: /s/ Ariel Peniche

MR. ARIEL PENICHE

Peniche contends that there is nothing in the contract which on its face shows that it is an illegal contract or forbidden by law in any way and that there is nothing in the performance of the contract which would require Mr. Peniche to do an illegal act. Aeromexico argues that inasmuch as Pe-niche did operate a vehicle for hire without a chauffeur’s license, which is undisputed, and that the carrying of the passengers to and from the airport for Aeromexico was done for hire, that Peniche was required to have a chauffeur’s license and that his failure to have such a chauffeur’s license was in direct violation of V.A.T.S. Article 6687b. Aeromexico also contends that the contract upon which Peniche bases his cause of action is void because a contract cannot require performance in violation of the law.

In the opening sentence of the letter, it will be noted that Mr. Fabre states that “this is to reconfirm that Aeromexico will guarantee you a minimum of four trips a day between the airport and the Sheraton Lincoln Hotel and vice versa for a minimum of one year.” This language suggests that the parties had already agreed upon the terms of the contract and that the written letter was merely a reconfirmation of the agreement of the parties. It is obvious from the contract that if Peniche is to drive the crews of Aeromexico to and from the airport and the hotel as was the agreement of the parties, that he would have to drive the station wagon as a chauffeur as that term has been defined by Texas law, to the effect that “every person who is the driver for wages, compensation, or hire, or for fare, of a motor vehicle transporting passengers”, as clearly set out in Article 6687b(o). The permanent Texas laws relating to the operation of vehicles for hire by chauffeurs and the hiring of such persons are set out in the articles listed below. Article 6687b, Section 36 makes it unlawful to permit a vehicle to be driven by one unlicensed as a chauffeur.

No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the provisions of this Act.

Article 6687b, Section 37 prohibits the employing of an unlicensed chauffeur or commercial operator.

No person shall employ as a chauffeur or commercial operator of a motor vehicle any person not then licensed as provided in this Act.

Article 6687b, Section 44 prescribes that a violation of that statute shall be a misdemeanor and is punishable with a fine.

(a) It shall be a misdemeanor for any person to violate any of the provisions of this Act unless such violation is by this Act or other laws of this State declared to be a felony.
(b) In addition to any other penalties hereinbefore provided, and unless another penalty is in this Act or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any provision of this Act shall be punished by fine of not more than Two Hundred Dollars ($200).

Ordinarily the Texas courts will not enforce an illegal contract, particularly where the contract involves the doing of an act prohibited by statutes intended for the protection of the public health and welfare, and it is the duty of the court to at once decline to give it any validity. This question was before the court in Montgomery Ward & Co. v. Lusk, 52 S.W.2d 1110 (Tex.Civ.App.—Waco 1932, err. dism’d). There both parties had agreed to pay the plaintiff for 202 hours of overtime work. However, a provision of the Texas Penal Code provided that no female should be employed in a mercantile establishment working more than nine hours per day nor more than fifty-four hours in any calendar week. The court refused to allow a recovery under the contract because the contract was illegal and in violation of Article 1569, Texas Penal Code, 1925. The court further stated, referring to Article 1572 which imposed a penalty on the employer for violation of the act, but did not fix a penalty on the employee, that “[i]t is in the nature of a state police regulation and is intended for the protection of the public health and the perpetuation of the human race, and is therefore for the benefit of the public generally. To permit individuals to enter into contracts to violate the law and then invoke the aid of the court to secure the benefits thereof would be to encourage the doing of the very thing the law prohibits.”

The Texas Supreme Court in two cases, Rogers v. Traders & General Ins. Co., 135 Tex. 149, 139 S.W.2d 784 (1940) and Service Mutual Ins. Co. of Texas v. Blain et al., 140 Tex. 541, 168 S.W.2d 854 (1943) construes contracts violating Texas State statutes. In Service Mutual the court denied recovery of an employee because he had been hired without providing a health certificate to his employer, and the employer did not request one, in violation of the then penal code forbidding persons to be employed in a food company without a health card. The court stated the statute was enacted to safeguard the public health and was not merely regulatory. In Rogers, supra, the court again denied recovery where an employee did not get a health certificate to work in a food company, citing the Montgomery Ward case, supra. There can be little doubt that Article 6687b requiring a chauffeur’s license as a condition precedent to the transportation of passengers was a valid exercise of a state police power for the purpose of protecting the safety of the general public and that any contract in derogation of such article would be illegal. While the general rule is that a contract to do a thing which cannot be performed without a violation of the law is void, where the illegality does not appear on the face of the contract it will not be held void unless the facts showing its illegality are before the court. Texas Employers’ Ins. Ass’n v. Tabor, 283 S.W. 779 (Tex.Comm.Appeals 1926, judgmt. adopted); Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947).

The Tabor case, supra, points out that the court will decide whether a contract is in violation of a statute by looking at the specific facts of the case and deciding the intention of the parties.in executing the contract. The court further stated: “It is not every mutual agreement that makes a lawful contract. The law will not enforce an agreement to do that which the same law says shall not be done. ... A contract to do a thing which cannot be performed without a violation of the law is void, whether the parties knew the law or not, . . . ” Thus, the trier of fact must determine whether or not a contract, although apparently legal on its face, involves the violation of a statute.

Since the evidence establishes the illegality of the contract, and this is a suit to enforce the contract, our courts will neither aid in the enforcement of such contract, nor grant any relief to a party who has executed it. Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908 (1941). The cases of Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808 (1888); Pioneer Mutual Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202 (1944); Norman v. B. V. Christie, 363 S.W.2d 175 (Tex.Civ.App.—Houston [1st Dist.] 1962, writ ref’d n. r. e.); and Lewis v. Davis, 146 Tex. 468, 199 S.W.2d 146 (1947), all cited by Peniche, are not in point.

On oral argument Peniche stated that his contract was not one for personal services and that he could have performed the contract by employing someone else to do the work contemplated by the terms of the agreement. The evidence establishes that the contract before this court was based upon the personal trust, acquaintance and confidence that existed between Fabre and Peniche, and hence was one for personal services. This being true, the contract could not be assigned without an agreement of the parties. Since Menger v. Ward, 87 Tex. 622, 30 S.W. 853 (1895), Texas courts have followed this principle: “ ‘Rights arising out of contracts] cannot be transferred if they involve a relation of personal confidence, such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.” Heffington v. Hellums, 212 S.W.2d 245 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.); Amsco Pipeline Co. v. Donico Production Co., 112 S.W.2d 483 (Tex.Civ.App.—San Antonio 1938, writ dism’d). A careful review of all of the evidence adduced upon the trial of this matter reveals that Peniche contracted to be a chauffeur and transport the pilots and stewardesses of Aeromexico to and from the airport to their hotel in violation of the law. It is well settled that an illegal contract cannot be ratified or saved by estop-pel. Although Aeromexico allowed Peniche to drive for it and compensated him for his services, the contract cannot be redeemed or revived as a legal contract. Aeromexico also violated the law when it entered into the contract, thereby making it an illegal contract. 13 Tex.Jur.2d Contracts, Section 220 (1960); Seafarer’s Welfare Plan v. George E. Light Boat Storage, Inc., 402 S.W.2d 231 (Tex.Civ.App.-Houston 1966, writ ref’d n. r. e.); Continental Fire & Cas. Ins. Corp., v. American Mfg. Co., 221 S.W.2d 1006 (Tex.Civ.App.—Ft. Worth 1949, writ ref’d); Moser Co. v. First Church of Christ, Scientist, 525 S.W.2d 946 (Tex.Civ.App.—Waco 1975, no writ).

Peniche further contends that in addition to his damages for breach of the contract, he has a cause of action against Aeromexico for slandering him. Peniche does not allege anywhere in the petition that slanderous words used by Gutierrez were published to a third party. To support his claim for slander, proof of publication is necessary. Bull v. Collins, 54 S.W.2d 870 (Tex.Civ.App.—Eastland 1932, no writ); Rivers v. Feazell, 58 S.W.2d 133 (Tex.Civ.App.—Beaumont, no writ).

The pleadings and the evidence do not show that Peniche proved a cause of action for slander. In fact, there is no mention of slander except on appeal. The trial court heard all of the testimony and apparently found that it was insufficient as a matter of law to support a finding in Peniche’s favor on any issue raised. Pe-niche’s point of error is overruled.

The judgment of the trial court is affirmed.


author: EVANS, Justice.

text:
    Stephen C. LIGHT, Appellant, v. Jay F. VERRIPS, Appellee.
    No. 17377.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 5, 1979.

      Ross, Banks, May, Cron & Cavin, C. John Mayer, Houston, for appellant.
    Robert E. McCool, Houston (no brief), for appellee.
    Before PEDEN, EVANS and WALLACE, JJ.
   EVANS, Justice.

This writ of error proceeding was instituted by the petitioner, Stephen C. Light, to set aside a default judgment.

The petition constitutes a direct attack upon the default judgment, and this court will not, therefore, indulge any presumptions in support of the judgment’s validity. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). In this writ of error proceeding, the decisive question is whether there is an error apparent on the face of the record which vitiates the trial court’s judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.-Dallas 1962, writ ref’d n. r. e.).

A review of the transcript shows that the plaintiff’s original petition, seeking recovery on a promissory note, was filed September 22, 1976. About a year later, on November 11, 1977, the plaintiff filed application for service of citation pursuant to Rule 106, Tex.R.Civ.P., alleging that personal service of citation could not be secured on the defendant and that the defendant’s “usual place of abode, last known to the Plaintiff” was at the residence of his father, K. C. Light, “located at 3938 Knoll-crest, (Lake Walden) Conroe, Texas.”

On November 15, 1977, the trial court ordered service of citation on the defendant by leaving a copy of the citation with petition attached at the last known place of abode of the defendant at “3938 Knollcrest, (Lake Walden) Conroe, Montgomery County, Texas.”

The record reflects one affidavit in support of the trial court’s order authorizing substituted service. This affidavit recites that the affiant found it impractical to secure personal service on the defendant “because he absents and secretes himself and evades personal service on each occasion service is attempted.” The affidavit does not, however, set forth the facts or circumstances upon which this conclusionary statement is based.

The record contains a copy of a citation issued November 16, 1977, with the attached sheriff’s return containing the following recitation:

“Stephen C. Light or anyone over age of 16. Name: K. C. Light 12/10/77 8:58 A.M. 3938 Knollcrest, Conroe, Texas.

The record also contains a photocopy of a letter from K. C. Light to the Honorable Wyatt H. Heard, bearing a file mark dated December 20, 1977, and stating:

“Dear Judge Heard:
Stephen C. Light is my son and this was delivered to me a few days ago. This address is not his place of business nor is it his place of abode.
He is 31 years old, married and lives elsewhere. I have not seen or heard from him in several months.
Yours very truly
K. C. Light”

Also shown in this record are photocopies of the original postcard notice of the default judgment mailed by the clerk of the court addressed to Stephen C. Light, 3938 Knollcrest, Conroe, Texas, and of the original cost bill prepared by the clerk and mailed to Stephen C. Light, 3938 Knollcrest, Conroe, Texas, both of which bear the U. S. Post Office notification: “No Such Street.”

In personam jurisdiction cannot be based upon substituted service unless the record shows a strict compliance with the statute authorizing such service. McKanna v. Edgar, supra; David A. Carl Enterprises, Inc. v. Crow-Shutt # 14, 553 S.W.2d 118 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). Furthermore, the substituted service must be such as would most likely reach the defendant. Forney v. Jorrie, 511 S.W.2d 379 (Tex.Civ.App.-San Antonio 1974, writ ref’d n. r. e.).

The trial court’s order authorizing substituted service states that service shall be affected by leaving a copy of the citation with petition attached “at the last known place of abode” of the defendant. Rule 106, Tex.R.Civ.P. provides:

Where it is impractical to secure service, as authorized by (a) or (b) as above directed, the court, upon motion, may authorize service by the officer leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served, or (d) by the officer delivering same to anyone over sixteen years of age at the party’s usual place of abode, or (e) by any disinterested adult named by the court in its order, or (f) any other manner which will be reasonably effective to give the defendant notice of the suit.

There is no showing in the record that the address indicated in the court’s order was the defendant’s “usual” place of abode, and the letter from the defendant’s father to the trial judge indicates that such address was not the defendant’s usual place of abode.

The record does not reflect strict compli-anee with the statute authorizing substituted service, and for the reasons stated, the petitioner’s first point of error will be sustained.

The petition for writ of error is granted, ⅛ default judgment ⅛ set aside, and the cause ⅛ remanded for a trial on the merits.