author: DUNAGAN, Chief Justice.

text:
    Norma SPILLER, Appellant, v. Hugh M. SPILLER and Luretha S. Damon, Appellees.
    No. 902.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 26, 1976.
    Appellant’s Motion for Rehearing Overruled April 1, 1976.
    Opinion Withdrawn and Another Substituted on April 1, 1976.
    Appellant’s Second Rehearing Denied April 22, 1976.

      Leonard Blaylock, Cox, Smith, Smith, Hale & Guenther, Inc., San Antonio, Richard W. Davis, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appellant.
    Jack W. Lee, Lee & Lee, Mason, Lynn Nabers, Day & Nabers, Brownwood, for appellees.
   DUNAGAN, Chief Justice.

The judgment heretofore entered on February 26, 1976, is set aside and our original opinion is withdrawn. This opinion is substituted therefor.

The appeal of this divorce action basically involves the division of property acquired during the marriage and a claim of fraud upon the community estate.

On December 29, 1970, Norma Spiller (hereinafter referred to as appellant) filed suit for divorce from Hugh M. Spiller (hereinafter referred to as appellee) and for the division of property. A “Decree of Divorce and Agreed Interlocutory Order” was entered on February 17, 1972. The “Agreed Order,” inter alia, required appellee to convey approximately 1,000 acres in Kimble County to M. C. Blackburn, in trust, to satisfy any judgment which might be entered in favor of appellant. Appellant amended her pleadings to allege that a conspiracy between appellee and Luretha S. Damon (hereinafter referred to as Damon) defrauded the community estate. Trial before a jury commenced on November 5, 1973, and continued until January 1974, when the trial court discharged the jury and rendered a judgment favorable to ap-pellee and Damon. On March 11, 1974, the trial court dissolved the trust imposed on the 1,000 acres in Kimble County. The final judgment, entered on March 12, 1974, found that there was no evidence of a conspiracy and characterized certain properties as belonging to either the community or separate estates of appellant or appellee. The final judgment then ordered that appellant take nothing in her suit against Damon on appellant’s allegations of conspiracy and damages resulting therefrom; it divided all property between appellant and appellee. Appellant appealed from the order dissolving the interlocutory trust and the final judgment.

An instructed verdict is proper only when the record reflects no evidence of probative force in favor of the losing party. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943). In determining whether a verdict was properly instructed, the appellate court must view the evidence and the reasonable inferences therefrom in the light most favorable to the losing party. White v. White, supra.

Appellant contends that the trial court erred in ruling, as a matter of law, that certain real and personal property belonged to the community estate. The disputed property consists of a 320-acre tract, a bank account and an interest in livestock. Appellant argues that there was some evidence of probative force that this property belonged to her separate estate.

Although this property was characterized as community property, it was awarded to appellant as her separate property by the final judgment. There is no evidence that this property was awarded to appellant in lieu of other property. Therefore, there is no evidence that the division would have been more favorable to appellant if this property had been designated as her separate property. Any error in finding the property to be community property was rendered harmless by the award of such property to appellant. Wilkerson v. Wilkerson, 515 S.W.2d 52, 54 (Tex.Civ.App. —Tyler 1974, n. w. h.). Moreover, at least as to personalty, appellant was not entitled to her separate property as a matter of right. Roye v. Roye, 531 S.W.2d 242, 244 (Tex.Civ.App. — Tyler 1975, n. w. h.); Zaruba v. Zaruba, 498 S.W.2d 695, 698 (Tex.Civ. App. — Corpus Christi 1973, writ dism’d). Rather, in the decree of divorce, the trial court is authorized to divide the property in a manner it deems just and right. Tex. Fam.Code Ann. sec. 3.63; Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App. — Tyler 1966, n. w. h.). From the record before us, we cannot say that the division was not just and right. Nor that the court abused its discretionary powers.

Appellant also complains of the trial court’s finding that her separate property had been enhanced by the expenditure of community funds in the amount of $20,000. Appellant contends that there was some evidence that these expenditures were for improvements which were a gift to her separate estate. Again, this property, although characterized as community property, was awarded to appellant. There is no evidence that this property was awarded to appellant in lieu of other property. Thus, any error in the characterization of these funds or improvements was harmless.

Appellant contends that appellee and Damon entered into an adulterous relationship and a conspiracy to defraud the community estate. There is clearly no evidence of a “conspiracy,” i. e. a common purpose, supported by concerted action, to defraud. See Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Corp., 435 S.W.2d 854, 857 (Tex.1968). However, we construe appellant’s pleadings and brief as alleging that even in the absence of a “conspiracy,” ap-pellee and Damon defrauded the community estate of certain funds and livestock. The relevant allegations are as follows: that appellee bought a house and lot in Forth Smith, Arkansas, in 1955; that appel-lee moved Damon and her children into the house; that appellee caused the property to be deeded to Damon; that appellee supplied groceries and furniture to Damon and her children until 1960 when he moved them to Brownwood, Texas; that appellee furnished the consideration for a house and lot in Brownwood which was purchased in Damon’s name; that appellee purchased stock in Damon’s name; that appellee secured a loan to Damon with stock belonging to the community; that appellee rented a 970-aere tract in Brownwood and employed Damon and her children for ranching operations; and that appellee supplied Damon and her children with livestock until this divorce action was filed.

We have thoroughly examined those portions of the record which appellant contends contain some evidence of fraud or evidence from which fraud could be reasonably inferred. We find that the record does not support the submission of an issue to the jury regarding fraud upon the community estate. The trial court did not err in instructing a verdict against appellant on this claim. See Dunivan v. Atchison, 267 S.W.2d 235, 237 (Tex.Civ.App. — Galveston 1954, writ ref’d n. r. e.). If, however, the trial court believed there was such a fraud, that court presumably considered this fraud in dividing the property. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 133 (1960).

Appellant contends that the trial court erred in refusing her request for findings of fact and conclusions of law. Appellant recognizes that a trial court is not authorized to file such findings and conclusions when it has withdrawn the case from the jury. Hutchinson v. Texas Aluminum Co., 330 S.W.2d 895, 898 (Tex.Civ.App.— Dallas 1959, writ ref’d n. r. e.); Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219 (1958). Appellant argues that a different rule should apply in divorce and property division suits because, in the absence of such findings as to the title and value of the property divided, it is impossible to analyze the justness and righteousness of the division. However, appellant has not cited, nor have we found, any cases departing from this well-established rule. We are of the opinion that the trial court did not err in refusing to file findings of fact and conclusions of law.

Appellant finally asserts that the trial court erred in dissolving the “Agreed Interlocutory Order” of February 17, 1972. This order was agreed to and signed by appellant, appellee and their respective attorneys. It was held to be a contract between appellant and appellee in Spiller v. Sherrill, 518 S.W.2d 268 (Tex.Civ.App. — San Antonio 1975, n. w. h.). The San Antonio Court of Civil Appeals prohibited the execution of the order dissolving that contract pending further orders of the Court of Civil Appeals. Spiller v. Sherrill, supra, at 273. We conclude that the order of March 11, 1974, which dissolved the “Agreed Order” and was merged into the final judgment, Webb v. Jorns, 488 S.W.2d 407 (Tex.1972); Buchanan v. Thrasher, 387 S.W.2d 950 (Tex. Civ.App. — Austin 1965, writ ref’d n. r. e.), was erroneous. See Vickery v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex. 1976). That portion of the judgment is reversed and judgment is here rendered that the terms of this “Agreed Order” be given full force and effect. The judgment in all other respects is affirmed.

Appellant’s motion for rehearing is overruled and the judgment of the trial court is reversed and rendered in part and affirmed in part.


source: Caselaw Access Project

author: NYE, Chief Justice. NYE, Chief Justice.

license: Public Domain

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. John THOMAS et al., Appellees.
    No. 986.
    Court of Civil Appeals of Texas, Corpus Christi.
    Appendix Preliminary Opinion and Order Nov. 20, 1975.
    March 3, 1976.
    Rehearing Denied April 22, 1976.

      Russell H. McMains, Fulbright & Jawor-ski, Houston, for appellant.
    Ernest H. Cannon, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellees.
   OPINION

NYE, Chief Justice.

This suit arose as a result of a rear-end collision that occurred in Galveston County between a vehicle owned and operated by plaintiffs, John Thomas and Johnnie Mae Thomas, and another vehicle owned by defendant Southwestern Bell Telephone Company and operated by defendant’s employee, John diver, Jr. After a hearing on defendant’s plea of privilege (which the trial court overruled), the case proceeded to trial before a jury solely on the issues of damages. The jury found that plaintiffs had been damaged in the sum of $67,934.00. The trial court thereafter rendered judgment in favor of plaintiffs for such sum. The defendant Telephone Company has duly perfected its appeal to this Court.

This appeal consists of three separate appellate problems. The first is a consideration of a second appeal from the overruling of a plea of privilege, the first having been dismissed by this Court for lack of jurisdiction. Second is the consideration of the sufficiency of the appellate record caused by the death of the court reporter after the appeal on the merits had been perfected; and finally, the appeal on the merits of the case. The defendant brings forward some 28 points of error concerning these three problems.

Defendant initially attempted to appeal from the overruling of its plea of privilege under the provisions for appeal of interlocutory orders (Rule 385, T.R.C.P.), but failed to timely perfect its appeal. This Court dismissed the appeal for lack of jurisdiction. Although the defendant had previously attempted to perfect an appeal from the order overruling the plea of privilege, the defendant is not prejudiced from having the same considered in this appeal from the final judgment. Barron v. James, 145 Tex. 283, 198 S.W.2d 256 (Tex.Sup.1946); Reynolds v. Groce-Wearden Co., 250 S.W.2d 749 (Tex.Civ.App. — San Antonio 1952, writ ref’d).

This brings us to the first group of points (points of error 3, 4, and 5) which concerns defendant’s complaint that the trial court erred in overruling its plea of privilege to be sued in the county of its residence, when such ruling was based on Subdivision 27, of Article 1995, Tex.Rev.Civ. Stat.Ann. The defendant argues that Subdivision 27 is unconstitutionally discriminatory against foreign corporations, of which the defendant company is one.

The defendant is a foreign corporation, qualified to do business in the State of Texas, with residence in Harris County. It also maintains an office and agents in Bay City, Matagorda County, Texas. The defendant’s employee, John Cliver, Jr., was a resident of Ector County. The plaintiffs were residents of Harris County, Texas, and the collision which is the subject of controversy occurred in Galveston County, Texas.

The plaintiffs instituted their lawsuit in Matagorda County, Texas. Defendant subsequently filed its plea of privilege to be sued in the county of its residence, that being Harris County, Texas. The plaintiffs then filed their controverting plea alleging that venue was proper in Matagorda County, Texas, pursuant to Subdivision 27, Article 1995, because the defendant was a foreign corporation doing business within this State and the case was pending in Matagor-da County in which county defendant has an agency or representative. The trial court overruled defendant’s plea of privilege basing its ruling on Subdivision 27 of Article 1995 because defendant did in fact have an agent and/or representative in Matagorda County, Texas.

The defendant does not contend nor assert that plaintiffs failed to prove their right to venue in Matagorda County pursuant to Subdivision 27. In its brief, defendant asserts that the error in overruling appellant’s plea of privilege under Subdivision 27 stems not from the appellees’ failure to prove the necessary Subdivision 27 venue facts, but rather the unconstitutionality of Subdivision 27 because of the discriminatory treatment accorded foreign corporations under the relied upon Subdivision.

Appellant asserts that Subdivision 27 of Article 1995 is unconstitutional on two grounds: 1) it affords broader venue for actions against foreign corporations than is afforded against domestic corporations under Subdivision 23; and 2) under Subdivision 23, a plaintiff is required to prove a cause of action against a domestic corporation in order to maintain venue, whereas such is not required under Subdivision 27 solely because the defendant in the latter instance is a foreign corporation. The appellant cites two cases, those being Fireman’s Fund Insurance Company v. McDaniel, 327 S.W.2d 358 (Tex.Civ.App. — Beaumont 1959, no writ) and Maryland Casualty Company v. Torrez, 359 S.W.2d 559 (Tex. Civ.App. — Eastland 1962, dism’d w. o. j.; 363 S.W.2d 235 (Tex.)).

The Supreme Court of Texas has recently held that this Subdivision is not unconstitutional. Commercial Insurance Company of Newark, New Jersey v. Adams, 369 S.W.2d 927 (Tex.Sup.1963). The appellant concedes that this is the law but argues that the Adams case should either be overruled or distinguished. The appellant asserts that the Houston Court of Civil Appeals in Adams, 366 S.W.2d 801 (Tex.Civ.App. — Houston 1963), aff’d 369 S.W.2d 927 (Tex.Sup. 1963) determined only that Subdivision 27 was not unconstitutional for affording wider venue against foreign corporations than domestic corporations. Appellant claims that a different argument against Subdivision 27 is that it is also unconstitutional because it does not require proof of the cause of action. However, such argument as presented by the appellant was also asserted without success in Humble Oil & Refining Company v. Preston, 487 S.W.2d 956 (Tex.Civ.App. — Beaumont 1972, writ dism’d). We hold that Subdivision 27 of Article 1995 is not unconstitutional.

There is a further reason why defendant’s points of error relating to its plea of privilege are overruled. The defendant’s plea of privilege was filed July 27,1973, and finally disposed of July 22, 1974, about one year later. In the meantime, after the filing of defendant’s plea of privilege, but prior to a ruling thereon, the trial court acted on three of the defendant’s motions. It overruled defendant’s motion to compel a second physical examination; it overruled defendant’s motion to dismiss; and it sustained defendant’s special exceptions.

The general rule in Texas is that a plea of privilege is waived if the defendant, without first insisting upon its disposition, urges a special exception. This rule applies only when judicial power is invoked on a matter and in a manner which negates a continuing intent to insist upon the plea. Pit Construction Company v. West Texas Equipment Company, 494 S.W.2d 642 (Tex. Civ.App.—Amarillo 1973, writ dism’d); Talbert v. Miles, 477 S.W.2d 710 (Tex.Civ.App.—Waco 1972, no writ); 1 McDonald, Texas Civil Practice, Venue, § 4.40, p. 572, 59 Tex.Jur.2d Venue § 158. The ruling by the trial court by overruling defendant’s motion to dismiss, without the defendant first insisting on the disposition of its plea of privilege, invoked the judicial power of the court in a manner inconsistent with a continuing intention to insist upon the plea. This caused a waiver of defendant’s plea of privilege. First State Bank and Trust Company of Rio Grande City v. Colpaugh, 489 S.W.2d 675 (Tex.Civ.App. — San Antonio 1973, no writ); 1 McDonald, Texas Civil Practice, Venue § 4.40, p. 572. The defendant’s points of error concerning the plea of privilege are overruled. The trial court’s judgment on the plea of privilege is affirmed.

The second group of points of error (points 6, 7 and 8) concern the statement of facts which was conditionally tendered to this Court. The controversy with regard to the statement of facts arose due to the untimely and unfortunate death of Mr. Whit Waide, the official court reporter for the 130th Judicial District Court in Mata-gorda County, in September 1974. The facts surrounding the controversy are relatively undisputed. Even though these points of error are now moot because of the action taken by this Court and the subsequent action taken by the trial court, we believe the problem needs to be aired.

Following the trial on September 27, 1974, the appellant’s attorney requested a statement of facts of all the evidence adduced in the trial from the official court reporter, Whit Waide. Mr. Waide started working on the record and had completed approximately ten to twenty pages of it when he became ill and subsequently died.

After two unsuccessful attempts to have Mr. Waide’s notes transcribed by two other court reporters, the notes were tendered to and were finally transcribed by a third court reporter, Clinton Gettig. Upon receiving a copy of the Gettig transcription, appellant’s attorney noted certain discrepancies and omissions. These included missing exhibits and objections which were not included in the record, misspelled words and other errors. Appellant’s attorney refused to approve the same after the attorneys for both parties could not agree. Appellant’s attorney then requested a hearing pursuant to Rule 377(d), T.R.C.P., which governs the matter of securing a statement of facts for appellate purpose. Subdivision (d) of Rule 377 sets out the duty of the trial court to settle differences between the parties as to whether the record truly discloses what occurred. It reads in part as follows:

“(d) ... If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.” (Emphasis supplied.)

At the hearing held pursuant to the above rule, certain facts were adduced concerning the difficulty of the several court reporters in attempting to accurately transcribe the notes of Whit Waide. After the court reporter’s death, his notes (completed and uncompleted) were turned over to his brother, John Waide, who was also a court reporter. On November 4, 1974, John Waide wrote a letter to appellant’s attorney, Alex Guevara, Jr., in which John Waide stated “It is my opinion a successful transcript (of the notes of brother, Whit Waide) cannot be made.” In further discussions between appellant’s attorney and John Waide, Mr. Waide reiterated that in his opinion an honest transcription of those notes could not be done.

The notes were then tendered to another court reporter, Joylynn Walla, who, as the record reflects had had extensive experience in transcribing the notes of other court reporters. After an examination of the notes, Mrs. Walla concluded that she could not turn out a true and correct record because the deceased court reporter had an individualized style of note taking and because of the existence of certain errors in his notes that could not be interpreted. She further stated that even after consulting Whit Waide’s “Bible” (book containing Waide’s symbols), it would have been very difficult and unlikely to come up with an accurate record. She stated that a verbatim transcription of such notes could not be had. As part of the basis for her conclusion that an accurate transcription of Whit Waide’s notes could not be had, she compared that portion of Waide’s notes which he had transcribed and completed prior to his death with the uncompleted notes. She stated that she was unable to come up with the same or a similar representation of what those notes stood for.

The deceased reporter’s notes were turned over to Clinton B. Gettig in November 1974. Mr. Gettig was a special reporter for the Federal Court in the Southern District of Texas. Mr. Gettig was never present at any time during the trial of the case, and stated he had no idea as to what actually went on in trial. Gettig along with receiving the uncompleted notes, received those pages prepared by Whit Waide prior to his death. Gettig, when questioned about such completed pages, stated:

Q Have you retained those pages?
A No, sir. When I — when I received them I thought they were from the— Either Joyce or someone else who had tried to — who had started on the job and I used them to — well, familiarizing myself at the beginning with the doctor’s testimony and I think along with the pages that I redid, because of errors that I made, why, then I think everything went into the waste basket.”

Gettig further stated that he actually expanded on those previous transcribed pages. His transcription was somewhat different from the transcribed pages that were prepared by the original court reporter who had died.

Mr. Gettig transcription of Whit Waide’s notes were predicated in part on trying to find a flow of the testimony and then going back and picking up symbols that he had not figured out from the original notes. Gettig testified that Whit Waide had an individualized system of note taking which Gettig had never run across. Although Gettig certified that the statement of facts was a “true and accurate transcript” of all the stenotype notes that were had upon the trial, Gettig could not testify that his transcription of Whit Waide’s notes was 100% accurate. He stated that there was a degree of potential inaccuracy inherent in his having to transcribe notes from a fairly individualized system that he was unaccustomed to.

The trial judge signed the statement of facts prepared by Gettig and certified the same to be a “true and correct statement” of all the facts had upon the trial of said cause. However, before signing the same and before hearing any of appellant’s complaints with respect to the alleged discrepancies and omissions, in the proposed statement of facts, the following discussion between the court and defendant’s attorney took place.

“THE COURT: I am not taking either counsel’s words for anything that is in those notes; I am just taking Mr. Get-tig’s word.
Mr. McMains: All I am trying to establish judge, for the appellate record is whether or not you are relying on your own recollection or rather Mr. Gettig’s and his transcription.
THE COURT: Well, now, I have read them and they appear to be reasonably accurate to me — I would say within 90 percent or more accurate as to what went on, and I am going to rely on Mr. Gettig. That is who I have a right to rely on. And that is who I am going to rely on.”

At the conclusion of this statement, the trial judge left. Presumably the trial court treated appellant’s hearing on his objections to the statement of facts the same as making out a bill of exceptions. The trial judge was not present and did not preside at the hearing on the alleged discrepancies and omissions.

When a difference arises as to whether the record truly discloses what occurred in the trial court, as was the case here, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth. Rule 377(d), T.R. C.P. It is thus the trial court’s duty to hear the argument concerning the discrepancies and then to resolve the dispute in accordance with his own recollection. This he did not do.

It is a general rule that the defendant is entitled to a complete statement of facts in question and answer form, and if through no fault of his own, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved to him in no other way than a reversal and retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (Tex. Comm’n App.1936, opinion adopted); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App. —Waco 1975, writ ref’d n. r. e.); James Edmond, Inc. v. Schilling, 501 S.W.2d 432 (Tex.Civ.App. — Waco 1973, no writ); Waller v. O’Rear, 472 S.W.2d 789 (Tex.Civ.App. —Waco 1971, writ ref’d n. r. e.); State v. Ripke, 426 S.W.2d 599 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.); Pacific Greyhound Lines v. Burgess, 118 S.W.2d 1100 (Tex.Civ.App. — Amarillo 1938, writ ref’d).

After a review of all the facts that have taken place, this Court determined that a hearing in accordance with Rule 377(d) had not taken place and that the question had not been determined whether the statement of facts did in fact conform to the truth. Whereupon this Court issued an order requiring the trial court to: 1) hold a hearing in accordance with Rule 377(d); 2) to hear all arguments with respect to the alleged discrepancies and omissions; and 3) make a determination, based solely on the trial court’s recollections, whether the record, as is, or as corrected, truly discloses what occurred during the course of the trial. We instructed the trial court that: if after hearing all of the arguments with respect to the discrepancies and omissions he was unable to settle the differences based upon his own recollections, he should so report to this court; but if such differences could be settled, he should so certify and forward the record back to the Court of Civil Appeals. A copy of this order is attached as an appendix to this opinion.

Thereafter, the appellant and appellees filed a joint motion for extension of time to comply with the order which was granted on December 31, 1975. The trial court conducted the hearing with both parties’ attorneys being present. The corrected statement of facts was finally certified and refiled with the Court on January 7, 1976. The trial court held a full and fair hearing on all objections to the original statement of facts. The trial judge certified that he personally reviewed and read the statement of facts and found it to be true and correct based upon his own independent recollection of the trial and the proceedings reported in the statement of facts. Although either party to this appeal could have objected to the statement of facts as finally certified, no objections were filed with this Court. There were no motions offered to amend the statement of facts or the briefs of the parties. Appellant’s points of error 6, 7 and 8 are now overruled.

We pause to take note that court reporters should have a back-up system for reporting their trials by mechanical means. The lack of such a system has caused miscarriages of justice, undue delays and added expense to the party litigants to an appeal. Court reporting, as it is now being carried out, is still operating in the “horse and buggy days”. Court reporting has not kept up with modern reproducing systems. Their systems of reporting cases is just as archaic as when the district clerks reproduced the transcripts by typing each page. There is too much loss of time and accuracy in taking shorthand notes of the trial proceeding, reading from the notes to a tape recorder and then having a typist reproduce from the tape. Even typing directly from the shorthand notes wastes the valuable time of the court reporter, when a typist could be doing the same thing. A court reporter has a much higher duty to the judicial system in seeing that the record is accurate, that the evidence is properly preserved and that the record is timely prepared for appeal in accordance with the instructions of the parties’ attorneys.

In the past few years, this Court has been required to order retrials or has had to grant repeated extensions of time in order to get a correct and final statement of facts on numerous appeals. This was brought about not only by the death of at least two court reporters, but also: because of occasions when a court reporter left the State of Texas and outside the jurisdiction of this Court without first completing his records for appeal; because a court reporter’s records were destroyed by a storm; because a court reporter left a state court and joined a federal court and became too busy to timely complete the record; and because of lengthy unavoidable illnesses. In addition, this Court has been required to extend the normal period of time for preparing the statement of facts because court reporters in their affidavits gave the following reasons among many others: the press of their regular duties; the need of a vacation; because other records took preference over the present appeal; and because the attorneys did not give them sufficient time to prepare the record.

Recently, one court reporter suffered a stroke, leaving three (3) records uncompleted. Last month this Court permitted a juvenile to be released on bond pending his appeal because the court reporter could not prepare the record in the time allotted and the juvenile’s case could become moot before the case could be heard on appeal. In this last particular case, the court reporter required ninety (90) days (because of the press of other business) to prepare a record that only took two and one-half hours for the judge to hear.

We believe that the Legislature at its next session and/or the Commissioners Courts in the meantime (at least within this Thirteenth Supreme Judicial District) should provide the court reporters with the necessary back-up systems and typists so that a speedy trial will not be delayed on appeal because of the lack of proper reproducing facilities for the record on appeal. In many cases, the reproduced record on a tape itself would be sufficient on appeal. At least Rule 377(c) and (e) and Rule 398, T.R.C.P. would have more meaning and could be more readily used and enforced. This in itself would save much time and expense to the litigants, the court reporters, and to the attorneys. It is the desire of this Court that no case in the future will be required to be retried, or unnecessarily delayed on appeal because the record of the proceedings could not be timely reproduced for appellate purposes. We now go to the merits of this case.

The collision made the basis of this suit occurred on October 10, 1971, on Interstate 45 between Texas City and Dickinson, Texas. Both the defendant driver, John Cliver, Jr., and the plaintiffs were proceeding in the same direction and in the same lane (right hand lane). The collision occurred during the daytime and there were no obstructions to visibility. The roadway was straight and level with no curves. The weather conditions were clear and the pavement was dry. Plaintiff, John Thomas, testified he was travelling approximately fifty (50) to fifty-five (55) miles an hour when defendant’s van struck his vehicle from the rear. Plaintiff’s vehicle, upon being struck from behind by defendant’s vehicle, veered to the left and came to a stop in a ditch. Appellant’s vehicle veered to the right and turned over off the roadway.

Appellant in its 9th and 10th points of error asserts that the trial court erred in rendering judgment for plaintiffs because no primary negligence issues, nor proximate cause issues, were conclusively established as a matter of law against appellant’s driver, John Cliver, Jr.

While the appellant’s points of error in its brief are adequate to enable this Court to determine the errors complained of, there are no assignments of error upon which they are based in either appellant’s motion for new trial or its amended motion for new trial. They, therefore, cannot be considered on this appeal. See Rule 374, T.R.C.P.; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (Tex.Sup.1960); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (Tex.Sup.1943); Smith v. Brock, 514 S.W.2d 140 (Tex.Civ. App. — Texarkana 1974, no writ); Torres v. Duaine, 496 S.W.2d 773 (Tex.Civ.App. — Corpus Christi 1973, no writ). Appellant’s points of error 9 and 10 are overruled.

There also appears another reason why appellant’s points of error 9 and 10 cannot be sustained. It is undisputed that no special issue inquiring as to whether appellant’s driver Oliver was negligent and whether such negligence was the proximate cause of plaintiffs’ damages was requested by plaintiffs. Plaintiffs did not request that these issues be submitted nor did appellant timely object to the failure to submit the same. In response to the special issues that were submitted and that are material here, the jury found: 1) that John Thomas was entitled to recover the sum of $35,200.00 as damages for injuries resulting from the occurrence in question; and 2) that Johnnie Mae Thomas (his wife) was entitled to recover the sum of $32,950.00 as damages for injuries resulting from the occurrence in question.

It is generally held that when there are no objections or request concerning omitted special issues, they will be deemed found in support of the judgment if there is evidence to support such implied findings. Kirk v. Standard Life and Accident Insurance Company, 475 S.W.2d 570 (Tex.Sup. 1972); Wichita Fails & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (Tex. Sup.1940); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972); Thywissen v. FTI Corporation, 518 S.W.2d 947 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.); Vahlsing Christina Corporation v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ.App. — Corpus Christi 1974, no writ); Wells v. Burns, 480 S.W.2d 31 (Tex.Civ.App. — El Paso 1972, no writ).

This rule, however, is subject to the limitations that such implied or deemed finding may be used in support of a judgment and may be supplied if the omitted issue is referable to the other issues submitted.

The plaintiffs’ cause of action was plead and tried on the theory of negligence and that was the only theory of recovery. We, therefore, hold that the findings of the jury as to the injuries and damages to plaintiffs were referable to the issues omitted. Wells v. Burns, supra; Kirk v. Standard Life and Accident Insurance Company, supra; Ackerman v. Pride of West Lodge No. 12, 217 S.W.2d 55 (Tex.Civ.App. — El Paso 1948, no writ); Weingarten, Inc. v. Scott, 456 S.W.2d 266 (Tex.Civ.App. — Houston [14th Dist.] 1970, no writ); 3 McDonalds, Texas Civil Practice, § 12.36.5 (1970); Hodges, Special Issue Submission In Texas, § 81, p. 210.

The evidence was sufficient to base deemed findings of negligence on- the part of defendant’s driver and that such negligence was the proximate cause of plaintiffs’ injuries.

Appellant in its points of error 11-14 asserts that the trial court erred in refusing to submit issues on contributory negligence. In appellant’s requested issues it asks whether plaintiff operated his truck at such a slow speed as to impede the normal and reasonable movement of traffic, and whether he was driving at a slower rate of speed than a person using ordinary care would have driven. There was no request by the defendant (assuming an affirmative finding by the jury on such issues) for a finding as to whether such acts constituted negligence on the part of the plaintiff. The requested issues standing alone could not have formed the basis for a judgment for defendant without a finding that such acts on the part of the plaintiff constituted negligence. Where the requested special issues are one of a series of interdependent issues, all of which are essential to complete submission of an independent ground of defense not otherwise included in the charge, it is necessary that issues be requested on all of the essential controverted elements. See Hill v. W. E. Brittain, Inc., 405 S.W.2d 803, 811 (Tex.Civ. App. — Fort Worth 1966, no writ); Yellow Cab Company v. Smith, 381 S.W.2d 197 (Tex.Civ.App. — Waco 1964, writ ref’d n. r. e.) and cases cited therein. Crain v. West Texas Utilities Co., 218 S.W.2d 512 (Tex. Civ.App. — Eastland 1949, writ ref’d n. r. e.); 3 McDonalds, Texas Civil Practice, § 12.33.2 (1970); Kelley v. Goodrum, 378 S.W.2d 935 (Tex.Civ.App. — Houston [1st Dist.] 1964, no writ); Lee v. Howard, 483 S.W.2d 922 (Tex. Civ.App. — Eastland 1972, writ ref’d n. r. e.). We hold that defendant’s requested submission of plaintiff’s contributory negligence was not in substantially correct form. Rule 279, T.R.C.P. In addition, we have reviewed all of the evidence and find that there is no competent evidence to support the submission of these issues, or that plaintiff’s speed had anything to do with the failure of appellant’s driver to see plaintiff’s vehicle in time to avoid running into it. Appellant’s points of error 11 through 14 are overruled.

Appellant next complains of the damages awarded by the jury to plaintiffs. The appellant asserts that the court erred in admitting testimony relative to the reasonableness and the necessity of the hospital and medical expenses incurred by plaintiffs, and that there was no evidence to support the submission of the special issues. The jury found in response to the special issues that: the past reasonable and necessary expenses for medical and hospital care received by John Thomas was $950.00; and the past reasonable necessary expenses for medical and hospital care received by Johnnie Mae Thomas was $950.00.

With respect to Mr. Thomas, the record shows that subsequent to the accident, he spent ten (10) days in the hospital at which time the final diagnosis was stated to be cervical whiplash and a sprained back. While he was in the hospital, Mr. Thomas received therapy, traction and medication as well as other forms of treatment. Thomas’ hospital charges were $396.00. Professional services which included the ten days care in the hospital by Dr. W. J. Minor plus seventeen office visits came to a total of $375.00 making the total past medical and hospital expenses for him $771.00.

Mrs. Johnnie Mae Thomas also spent ten (10) days in the hospital. Her final diagnosis was stated to be a cervical whiplash, sprained back, sprained left hip, sprained knees and multiple arthritis. While in the hospital, Mrs. Thomas also received physical therapy, traction and medication. Mrs. Thomas’ hospital charges amounted to $522.70, along with radiologist charges of $45.00. Professional services which included the ten days care by Dr. Minor while she was in the hospital along with seventeen office visits amounted to $375.00 making her total medical and hospital expenses $942.70.

Dr. Cannon, who was shown to be a thoroughly qualified physician, testified that in connection with the above charges, to both Mr. and Mrs. Thomas, such were both reasonable and necessary expenses. These points of error are overruled.

Next, appellant complains of the amount of the jury’s award for the future medical and hospital care that both plaintiffs would require. The award of future medical expenses is a matter about which no precise evidence is required, it being a matter particularly for the jury, and one upon which the jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party. City of Houston v. Moore, 389 S.W.2d 545 (Tex.Civ. App. — Houston 1965, writ ref’d n. r. e.); Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881 (Tex.Civ.App. — Beaumont 1940, dism’d judg. corr.).

Dr. Cannon stated that each of the Thomas’ would require future medical care and treatment. He testified that on the average, each of them would have about four (4) major attacks per year due to their injuries and that each would require medical supervision, medication for the limitation of activity, physical therapy and possible orthopedic appliances. Dr. Cannon assigned an estimated value of cost for each of those episodes at approximately $150.00, or about $500.00 per annum. The evidence also showed that, based upon the insurance life expectancy tables, John Thomas had a life expectancy of six (6) years and that his wife, Johnnie Mae Thomas, had a life expectancy of around eight (8) years.

Appellant asserts that in view of such testimony, the maximum figure for John Thomas’ future medical expenses was $3,000.00 (6 years X $500.00) and that the maximum amount for Johnnie Mae Thomas’ future medical expenses was $4,000.00 (8 years X $500.00). The jury awarded John Thomas $5,250.00 and $7,000.00 for Johnnie Mae Thomas. Appellant asserts that such award was clearly excessive and unjust so as to reflect bias and prejudice on the part of the jury. It should be noted that Dr. Cannon was testifying with respect to only averages in stating he expected plaintiffs to have four attacks each year. He put no limitation as to the number of attacks which they may have. They could have been more or less. Life expectancy tables are based on averages and such are not binding on the jury. Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex.Civ.App.— Houston [14th Dist.] 1968, writ ref’d n. r. e.). The testimony of Dr. Cannon as to the estimated cost and average number of attacks that each plaintiff might expect to occur is nothing more than expert opinion. The rule is well settled that this character of testimony is but evidentiary, and is never binding upon the trier of facts. The trier of facts are not cut off from exercising considerable personal judgment as to how far such opinions are to be relied on. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968); Main Bank & Trust v. York, 498 S.W.2d 953 (Tex.Civ.App. — San Antonio 1973, writ ref’d n. r. e.). The jury, viewing the condition of each plaintiff, may have believed that the plaintiffs would live longer than the number of years such tables project. The jury was also at liberty to consider the possibility that the plaintiffs could have had more than four attacks per year, together with the increased cost of medical care. Therefore, after viewing all the evidence, we find that there was sufficient evidence to support the jury’s answers to issues 3 and 4 and such were not so manifestly excessive and unjust as to require the court to grant a remittitur.

Appellant in its points of error numbers 23-26 asserts that there is insufficient evidence to support the jury’s answers to special issues 5 and 6 and that such answers were manifestly excessive and unjust as to reflect bias and prejudice on the part of the jury. Appellant with respect to these points, offers a brief statement to the effect that it was clear that the amount of damages fixed by the jury were not the result of deliberate and conscientious conviction, but were so excessive as to shock one’s sense of justice, citing Bluebonnett Express, Inc. v. Foreman, 431 S.W.2d 45 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ), this being the only argument and authority on these points.

In determining whether a verdict is “excessive”, the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on the ground of “excessive” if there is any evidence to sustain the award. Hammond v. Stricklend, 498 S.W.2d 356 (Tex.Civ.App. — Tyler 1973, writ ref’d n. r. e.); Monsanto Company v. Milam, 480 S.W.2d 259 (Tex.Civ.App. — Houston [14th Dist.] 1972), aff’d 494 S.W.2d 534 (Tex.Sup.1973); Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). It is immaterial that the courts might have awarded a lesser sum as fact finders, but there must be some indication of bias or prejudice. In the absence of an affirmative showing of bias or prejudice, the Courts of Civil Appeals will give every intendment to the evidence that supports the verdict. Hammond v. Stricklend supra (and cases cited therein); Sunset Brick & Tile, Inc. v. Miles, supra. See also World Oil Co. v. Hicks, 103 S.W.2d 962 (Tex.Comm’n App.— 1937, opinion adopted); City of Houston v. Jean, 517 S.W.2d 596 (Tex.Civ.App. — Houston [1st Dist.] 1974, writ ref’d n. r. e.); J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.); Bluebonnet Express, Inc. v. Foreman, 431 S.W.2d 45 (Tex.Civ.App.— Houston [14th Dist.] 1968, no writ). The mere fact that the verdict is large is not conclusive that it is the result of passion, prejudice, sympathy or other consideration not found in the evidence. Hammond v. Stricklend, supra; Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App.— Eastland 1958, no writ).

The measure of damages in a personal injury case cannot be measured by a mathematical yardstick. Each case must be measured by its other facts and considerable discretion and latitude must necessarily be vested in the jury. Rosenblum v. Bloom, 492 S.W.2d 321 (Tex.Civ.App. — Waco 1973, writ ref’d n. r. e.); Houser v. Sunshine Laundries and Dry Cleaning Corporation, 438 S.W.2d 117 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.). See also Missouri Pacific Railroad Co. v. Miller, 426 S.W.2d 569 (Tex.Civ.App. — San Antonio 1968, no writ); Monsanto Company v. Milam, supra; and see Boddy v. Canteau, 441 S.W.2d 906 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.); Bluebonnet Express, Inc. v. Foreman, supra. It was, therefore, appellant’s burden to affirmatively show that the jury’s verdict was improperly motivated by passion, prejudice or bias so as to shock the conscience of this Court. This, they failed to do.

We have reviewed all of the evidence and find nothing in the record to show bias, prejudice or other improper motive on the part of the jury that would warrant disturbing the verdict in this case. We have considered the award of the jury as to each plaintiff as it concerns their injuries and damages. The amount awarded by the jury in each particular is supported by the evidence and does not offend the conscience of this Court. We, therefore, decline to substitute our judgment for that of the jury. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (Tex.Sup.1943); Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918 (Tex. Sup.1908); Sunset Brick & Tile, Inc. v. Miles, supra.

We have reviewed the entire record in its corrected and now unobjected form. We have carefully considered all of appellant’s points of error which are overruled. The judgment of the trial court is, therefore, accordingly affirmed.

AFFIRMED.

APPENDIX

PRELIMINARY OPINION AND ORDER

PER CURIAM.

Appellant in its appeal to this Court has presented three of its points of error directed at contesting the sufficiency of the appellate record caused by the death of the court reporter after the appeal on the merits had been perfected. After several attempts, a statement of facts was finally prepared and certified as being true and accurate by the substitute court reporter. Appellant asserts that the statement of facts as filed does not purport to be an accurate statement of facts and the trial court erred in failing to properly certify the same and, therefore, it is entitled to a reversal of the entire case and a remand and retrial of the cause.

An appellant in a case on appeal is entitled to a statement of facts. When only a substantially correct statement of facts is presented for review, it is not sufficient when objected to. This is especially true when a “no evidence” point is presented. See Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. Sup.1968).

The appellant Southwestern Bell Telephone Company has used due diligence to obtain a statement of facts. After the statement of facts had been prepared, the appellant objected to certain portions of the proposed statement- of facts, and asserted that there were numerous omissions and inaccuracies therein. Appellant contends that it does not present an accurate statement of facts for appellate review.

When differences arise as to whether the record truly discloses what occurred in the trial court, as was the case here, the matter shall be submitted to and settled by the trial judge thereof and the statement of facts be by him made to conform to the truth. Rule 377(d), T.R.C.P. It is thus the trial court’s duty to hear the argument concerning the discrepancies and then to resolve the dispute in accordance with his own recollections, if possible.

If the trial court, upon being presented with the controversy, can and does so resolve the controversy (by relying upon his own recollections), then the statement of facts would be sufficient for our review either with or without objections to the trial court rulings. However, if after such controversy has been submitted and heard and the trial court is unable, from its own recollections, to settle and resolve the differences, a sufficient statement of facts would not be present for appellate review. The appellant would then be entitled to a new trial. See State v. Ripke, 426 S.W.2d 599 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.).

In the case at bar, appellant filed two motions to extend the time to file the proposed statement of facts. Both motions showed good cause and were granted. The first motion, filed on January 20, 1975, was granted with the time extended to February 20,1975. The second, filed on February 19, 1975, was also granted which extended the time to March 27, 1975. On March 27, 1975, the record was finally prepared and filed in this Court.

Prior to the filing of the record in this Court on March 19, 1975, a hearing was held before the trial court pursuant to Rule 377(d), T.R.C.P., for the purpose of having the trial judge settle the differences as to the accuracy of the statement of facts. However, at the hearing, the trial judge refused to hear arguments with respect to the discrepancies and omissions in the statement of facts as presented by counsel. Instead the trial judge signed the statement of facts prepared by Mr. Gettig, the third court reporter, certifying the same to be a true and correct statement of all the facts had upon the trial of said cause. However, before signing the same and before hearing any of appellant’s complaints with respect to the alleged discrepancies and omissions, the trial court qualified his certification by stating that he was relying only upon Mr. Gettig and his interpretation and transcription of the proposed statement of facts. The trial judge stated that the statement of facts appeared to be reasonably accurate, “within 90 percent or more accurate as to what went on”. This does not comply with the mandate of Rule 377(d) which says that the discrepancies “ . . . shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.” Thus, the differences existing with regard to the proposed statement of facts were not resolved and settled by the trial court in conformity with Rule 377(d), T.R.C.P.

If anything material to either party is omitted from the statement of facts or should it become apparent even after a case has been submitted to a Court of Civil Appeals, the appellate court may on its own initiative set aside the submission and make such orders as may be necessary to secure a satisfactory record. Rule 428 and Rule 429, T.R.C.P. This may save the time and expense of a new trial for this reason alone. It, therefore, appears to this Court that the statement of facts has not been properly prepared in accordance with the rule. Rule 377(d).

Since it is within our explicit as well as our inherent power to make such orders as are necessary to secure a satisfactory record and submission of a case, we transmit the statement of facts to the clerk of the trial court and order the trial judge to conduct a hearing in accordance with Rule 377(d), T.R.C.P. with respect to the alleged discrepancies and omissions. The attorneys shall furnish substitute copies of the lost or omitted exhibits for the trial judge’s consideration. The trial judge shall then make its determination based solely upon his recollection, settling the differences that occurred in the trial court, so that the statement of facts be by him made to conform to the truth.

If the trial judge after hearing all arguments with respect to discrepancies and omissions is unable to settle the differences based upon his own recollections, that portion of the record which he is unable to certify shall be noted by him and certified by the clerk of the trial court and forwarded back to the Court of Civil Appeals.

The trial court shall have 30 days from the date of this order to comply with this order and opinion. Additional time will be granted upon motion showing good cause. After receipt of the record and upon examination of the trial court’s certification, this Court will then enter such additional orders relative to rebriefing and further oral arguments as it deems necessary.

OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

Appellant in his Sixth Assignment of Error stated that “this Court’s express direction that no further briefing would be entertained . . . ” is incorrect. In our order to the trial court, we stated “after receipt of the record and upon re-examination of the trial court’s certification, this Court will then enter such additional orders relative to rebriefing and further oral arguments as it deems necessary.” No request was made by the appellant to amend his brief or to rebrief. Therefore, rebriefing was not deemed to be necessary.

Nor did this Court hold as appellant contends that its points of error in connection with the statement of facts were waived due to their failure to object to the recerti-fication of the statement of facts. After the statement of facts was recertified by the trial court under order of this Court and filed in this Court, we considered all of the evidence in the statement of facts as recer-tified. See new Rule 434, T.R.C.P.

All of appellant’s points of error on motion for rehearing have been carefully considered and they are overruled.

      . 27 Foreign Corporations. — Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this State, and doing business within this State, may be sued in any county where the cause of action or a part thereof occurred, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in this State, then in the county where the plaintiffs or either of them, reside.


author: WARD, Justice.

text:
    Christine M. EASTER, Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Appellee.
    No. 6487.
    Court of Civil Appeals of Texas, El Paso.
    March 3, 1976.
    Rehearing Denied March 24, 1976.

      Schwartz & Earp, Larry H. Schwartz, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, Frank Feuille, IV, R. H. Feuille, El Paso, for appellee.
   OPINION

WARD, Justice.

The insured, Mrs. Christine M. Easter, seeks appellate relief from the summary judgment granted against her suit to recover for sickness benefits afforded under an insurance policy. The grounds for summary judgment were that the disability arose after the coverage afforded by the policy had terminated and that there was a defective compliance with the notice requirements of the policy. The judgment of the trial Court is reversed and the cause is remanded for trial.

Mrs. Easter alleged in her petition that she held a policy of “retirement disability insurance” with the defendant, Mutual of Omaha Insurance Company, and that she paid the required premiums until “said policy lapsed on June 1, 1973”; that while the policy was in force, she became disabled and under the terms of the policy was entitled to benefits of $4,800.00. The defendant answered with a general denial. It then filed its unsworn motion for summary judgment to which it attached photostatic copies of a sample copy of an insurance policy referred to in its motion as the plaintiff’s policy, a photostatic copy of an application for insurance purportedly executed by Mrs. Easter and photostatic copies of physician’s statements and reports of disability. The defendant’s summary judgment proof further consisted of the plaintiff’s deposition to which are attached two letters addressed to her. One of these letters was from the Insurance Director of the National Federation of Federal Employees, dated March 1, 1973, and informed her that the National Federation was withdrawing its sponsorship of the insurance program written by Mutual of Omaha and in favor of a plan underwritten by Boston Mutual Insurance Company. It urged her to enroll in the new plan which it stated would be effective May 1. The other instrument was a letter sent to her on Mutual of Omaha stationery purportedly written by a vice president of that Company and advised her that her existing coverage would expire on a date which is not disclosed and solicited her participation in an individual program.

The Appellant filed an argument in opposition to the Motion for Summary Judgment to which she attached her affidavit which was consistent with the statements contained in her deposition. She stated that she had been employed as a dental assistant by the Federal Government for many years. In 1972, she became afflicted with a circulatory problem called Raynaud’s Disease. In July 1972, she was advised by one of her doctors that she was totally and permanently disabled. The disease caused a general numbness to her fingers and increased sensitivity to heat and cold and an inability to hold on to instruments. She continued to work as she hoped her doctor was wrong. By December 1972, she had become unable to perform all of her duties as a dental assistant but had continued in the dentah clinic working as an office secretary. On March 6, 1973, she applied for a disability retirement from the Government and on May 25 she took a “fitness for duty” physical examination. She continued working in the dental clinic as a secretary until June 20, 1973. This was her last day of work and on August 4, 1973, the Civil Service Commission notified her that she was retired effective July 27, 1973. Within three or four days after receiving this notification, she telephoned the local office of Mutual of Omaha and notified them of her disability. Coverage was denied.

As to the sickness benefit provisions of the sample policy, the following pertinent provisions are noted. Under “Exceptions” there is the provision that “Benefits are not payable for loss: (a) beginning while this policy is not in force * * * Under policy “Definitions”, there are provisions that “Loss” means loss of time, medical treatment, confinement in a hospital * *. “Sickness” means sickness causing loss while this policy is in force. “Total loss of Time” means that period of time during which the insured is unable to perform each and every duty of his occupation and receives medical treatment; provided, however, after the first twelve months of such period of time, it also means that period of time during which the Insured is unable to engage in any other gainful work or service for which he is reasonably fitted by education, training or experience. Under the paragraph entitled “SICKNESS BENEFITS, Sickness Total Loss of Time Benefit,” it is provided “When the Insured contracts a sickness which requires medical treatment and results in total loss of time, the Company will pay benefits” — for a total period of two years at $200.00 a month after a deductible period of seven days.

While the copy of the insurance policy and the other exhibits are neither sworn nor certified copies as required by Rule 166-A, Tex.R.Civ.P., the Appellant has made no complaint thereto either in the trial Court or on this appeal. However, a complete understanding of the controversy is prevented as there is no proof as to how or when the coverage of the policy was terminated. The proof shows the policy to be term insurance with premiums being paid annually and with the last renewal premium being paid, when due, on December 1, 1972, according to the Appellant. This would keep the policy in force until December 1, 1973. Just how the National Federation of Federal Employees was able to control the contractual coverage between Appellee and Appellant is likewise not disclosed. However, the Appellant, by her pleadings, judicially admitted the termination of the coverage on June 1, 1973, and this is accepted.

The Appellant’s first point is that genuine factual issues exist that Appellant became permanently disabled while the coverage existed. The Appellee, as movant for the summary judgment, had the burden of demonstrating the absence of any genuine issue as to this material fact or any other essential element of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Under the admission made by the Appellant in her petition, it became the Appellee’s burden to show as a matter of law that the disability, as defined by the policy, did not begin until after June 1, 1973. Appellee argues that this was established by the opinion of the doctor who gave the Appellant her “fitness for duty” examination on May 25 who stated that although she was then unfit for work as a dental assistant, she was not then medically disabled from other types of employment and further, by the Appellant’s own admission, that she was able to work until June 20. This medical opinion is of no help to the Appellee. The opinion testimony of this expert witness is not binding upon a trier of the facts and it will not support a summary judgment. Broussard v. Moon, 431 S.W.2d 534 at 537 (Tex.1968). Also, the unsworn report of the doctor was mere hearsay and incompetent. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

The policy before us is not like the usual group insurance policy which lapses upon termination of employment. Cf. Aetna Life Insurance v. Barnes, 361 F.2d 685 (5th Cir. 1966). It is term insurance with disability benefits payable for “total loss of time” which is defined by the policy as “that period” of time during which the insured is unable to perform each and every duty of his occupation and receives medical treatment * * Appellant’s continued employment past the expiration date of June 1, 1973, while a matter to be considered, does not absolutely control. The continued earning of money under certain “loss of time” policies conceivably could foreclose a recovery of benefits. Such a policy is referred to in the discussion in Combined American Ins. Co. v. Morgan, 214 S.W.2d 145 (Tex.Civ.App. — El Paso, no writ). Under the present policy in evidence with the broad policy definition of total loss of time, the policy is one of loss of capacity to work and not one of indemnity against mere loss of income. 32 Tex.Jur.2d Insurance, Sec. 337. The decisions have gone far in upholding verdicts for total disability where the claimant has worked and suffered no loss of wages during the period of claimed disability. John Hancock Mutual Life Insurance Company v. Cooper, 386 S.W.2d 208 (Tex.Civ.App. — Houston 1965, no writ); Benefit Ass’n of Ry. Employees v. O’Gorman, 195 S.W.2d 215 (Tex.Civ.App.— Fort Worth 1946, writ ref’d n. r. e.). See Annotation 31 A.L.R.2d 1222. The Appellant’s first point is sustained.

The second point is that a genuine issue of fact existed that the Appellant complied with the terms of the policy in giving notice of her claim. The policy requires written notice of claim be given within twenty days after the commencement of any loss covered by the policy or as soon thereafter as reasonably possible.

The oral notice was not given until August 1973, and the Appellant admits she delayed in giving notice because she thought she needed a disability finding by the Civil Service Commission before she could proceed with her claim against the Appellee. Such length of time has been held to be excessive. Kellum v. Pacific National Fire Ins. Company, 360 S.W.2d 538 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.). Such a holding usually occurs in accident policy cases where there is one traumatic event that calls for a more immediate notice. Illnesses, on the other hand, may develop and increase in extent over a protracted period of time and it is often difficult to determine at just what moment the extent of the resulting disability becomes such that a claim for payment can be made. Likewise, the notice required is one of reasonableness in relation to the particular loss and depends upon all of the circumstances surrounding the particular case. Atteberry v. Allstate Insurance Company, 461 S.W.2d 219 (Tex.Civ.App. — El Paso 1970, writ ref’d n. r. e.); Continental Casualty Co. v. King, 423 S.W.2d 395, 399 (Tex.Civ.App. — Amarillo, 1967, writ ref’d n. r. e.). The test used as to notice is what would have been done by the ordinary prudent person in the exercise of ordinary care in the same or similar circumstances. Allstate Insurance Company v. Darter, 361 S.W.2d 254 (Tex.Civ.App. —Fort Worth 1962, no writ). Inquiry as to reasonable conduct is ordinarily a question of fact and a summary judgment is improper. Odom Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex.1972); 4 McDonald, Texas Civil Practice, 17.26.12 at 177. A fact question is presented in this case and the second point is sustained.

As to the form of the notice, the Appellant’s proof as to the denial of liability injects an issue of waiver into the case which may be developed after amendment of the pleadings and upon conventional trial. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 at 237 (1956).

The judgment of the trial Court is reversed and the case is remanded for trial.


author: OSBORN, Justice.

text:
    EVANS PRESCRIPTION PHARMACY, INC., Appellant, v. COUNTY OF ECTOR, Appellee.
    No. 6489.
    Court of Civil Appeals of Texas, El Paso.
    March 3, 1976.
    Rehearing Denied March 31, 1976.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Ray C. Stoker, Jr., Fred M. “Mickey” Jones, Tryon D. Lewis, Odessa, for appellant.
    Royal Caswell, Joseph V. Gibson, III, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a Declaratory Judgment in a case involving a condemnation clause in a lease agreement. We affirm the trial Court’s judgment that the lessee is not entitled to recover damages for loss of its leasehold estate.

In July, 1972, the owners of a commercial building in Odessa, Texas, entered into a lease agreement with Evans Prescription Pharmacy, Inc., for said building for a ten-year period beginning September 1, 1972. Paragraph 15 of the lease provided:

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

The parties filed an Agreed Statement of Facts in which it is acknowledged that after the lease was executed, Ector County condemned the tract of land covered by the aforementioned lease agreement for purposes of expansion of Medical Center Hospital. The County settled with the fee owners of the property and agreed on the value of the leasehold estate, but contend that under Paragraph 15 of the lease agreement, Evans Pharmacy is not entitled to recover any sum for its leasehold interest. The County did pay the lessee for moving expenses and damages to trade fixtures.

By a single point of error, the Appellant contends that the trial Court erred in construing the lease clause so as to preclude payment for the taking of the leasehold interest.

The general rule is set forth in Nichols, The Law of Eminent Domain, Vol. 2, Sec. 5.23(2) as follows:

“It has become customarily in drawing leases of valuable city property to insert a so-called ‘condemnation clause — a provision that, upon the taking by eminent domain of the whole or part of the premises leased, the term shall come to an end. Under such a lease the tenant has no estate or interest in the property remaining after the taking to sustain a claim for compensation although under some circumstances he may be entitled to recover for removal expenses, fixtures or other improvements.”

The leading ease is United States of America v. Petty Motor Company, 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946). In that case, the Court reviewed the rights of several tenants in condemnation proceedings where the United States had already taken over the lessor’s interest in the property which the tenants occupied. The lease of Independent Pneumatic Tool Company included a termination clause in the event of condemnation. Certainly, the clause was much broader than the one before this Court. But, in that case, the Court said:

“ * * * We are dealing here with a clause for automatic termination of the lease on a taking of property for public use by governmental authority. With this type of clause, at least in the absence of a contrary state rule, the tenant has no right which persists beyond the taking and can be entitled to nothing.”

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

“A tenant whose lease provides for its termination upon the taking of the leased premises for a public use, is entitled to no compensation when it is condemned.”

Other courts have generally followed this same rule. In Capitol Monument Co. v. State Capitol Grounds Commission, 220 Ark. 946, 251 S.W.2d 473 (1952), the Court had before it a clause which stated: “In the event the State of Arkansas desires to purchase the property herein leased to be added to the State Capitol grounds it is agreed that the lease shall be terminated as of the time the State takes possession of said property.” In passing upon the question of whether a tenant was entitled to recover for a leasehold interest, the Court said:

“In the absence of any contract provision to the contrary, a tenant for years is ordinarily entitled to share in the compensation when the leased property is taken by eminent domain during the terms of the lease. See 18 Am.Jur. 865, and cases and authorities there cited. But, when the lease, under which the tenant holds, provides that the lease will be terminated by eminent domain proceedings, then the tenant is not entitled to compensation for the taking of the property.”

In R & R Welding Supply Company v. City of Des Moines, 256 Iowa 973, 129 N.W.2d 666 (1964), the Court had before it, in a case involving a leasehold interest, a clause which provided: “If the leased premises shall be wholly taken under eminent domain, then this lease shall terminate from the day the possession of the premises shall be required under the exercise of such power of eminent domain.” The Court concluded that the intention of the parties was clearly expressed by their written contract and that they provided for termination of the leasehold interest upon condemnation. The Court noted that compensation can only be allowed when there is a taking of a compensable interest and concluded that since there was no leasehold interest after the exercise of the right of eminent domain, the lessee had no compensable interest.

The same result was reached by the Court in Waesche v. Redevelopment Agency of the City of New London, 155 Conn. 44, 229 A.2d 352 (1967). In commenting upon a clause which terminated the lease if the premises were condemned for public use, the Court said:

“Such a provision is not uncommon, and its validity has been generally upheld. Its effect is automatically to terminate the leasehold interest as of the date of taking and thus to destroy any right which the tenant would have, but for the automatic termination clause, to compensation for the destruction of the unexpired portion of its leasehold.”

Having concluded that the parties in this case contracted for the termination of the leasehold interest upon the exercise of the right of eminent domain, the lessee had no interest which was compensable, and we therefore overrule Appellant’s Point of Error.

The judgment of the trial Court is affirmed.

      . Also see: County of McLennan v. Shinault, 302 S.W.2d 728 (Tex.Civ.App. — Waco 1957, no writ) footnote 1; Rayburn, Texas Law of Condemnation, § 47(3) — 47(8) (1960).


author: ROBINSON, Justice.

text:
    Ruth J. ROPER, Appellant, v. JEOFFROY MFG., INC., Appellee.
    No. 8593.
    Court of Civil Appeals of Texas, Amarillo.
    March 8, 1976.
    Rehearing Denied April 19, 1976.
    Thomas M. Gumfory, Spearman, for appellant.
    Whittenburg Law Firm, Mack Whitten-burg, Amarillo, for appellee.
   ROBINSON, Justice.

Plaintiff, Jeoffroy Mfg., Inc., brought suit against a husband and wife, Roy Roper and Ruth J. Roper, as co-makers on a note. The trial court, sitting without a jury, upheld the husband’s plea of limitations, but overruled that of the wife and entered judgment against the wife only. The wife, Ruth J. Roper, appeals. Affirmed.

On July 18, 1968, Roy Roper and Ruth J. Roper executed a promissory note in favor of plaintiff Jeoffroy. The note was due on January 18,1969. The cause of action did not accrue until maturity of the note. Winfrey v. Luttrell, 419 S.W.2d 406 (Tex.Civ.App. — Texarkana 1967, no writ). The four year statute of limitations is applicable to a suit on a note. Tex.Civ.Stat.Ann. art. 5527 (1958). Thus, unless otherwise tolled, the statute of limitations had run January 19, 1973. See Seibert v. Sally, 238 S.W.2d 266 (Tex.Civ.App. — Galveston 1951, no writ).

Jeoffroy filed suit on July 20, 1973, and Roy Roper was served with citation on June 13,1974. Ruth Roper was never served, but both Mr. and Mrs. Roper answered on August 5, 1974.

By findings of fact the trial court found that Mrs. Roper had been absent from the state for a length of time sufficient to extend the period of limitations as to her past the August 5, 1974 date on which the Ropers filed their answer. Those findings of fact are not challenged on appeal. Thus, under the facts before us, suit was filed and Mrs. Roper answered before the running of the statute of limitations as to her. The filing of her answer dispensed with the necessity for service of citation upon her. St. Louis & S.F.R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (1918); Parr v. First State Bank of San Diego, 507 S.W.2d 579 (Tex.Civ.App. — San Antonio 1974, no writ). Rule 121, Texas Rules of Civil Procedure.

In Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180 (Tex.1970) and Buie v. Couch, 126 S.W.2d 565 (Tex.Civ. App. — Waco 1939, writ ref’d), both cited by appellant, the plaintiff attempted to have the statute tolled by the filing of the petition alone and service was not had until after the running of the period of limitation. In such cases, diligence must be exercised in securing service of citation, but those eases are not in point with the facts before us. The question of diligence in obtaining service is not raised where service is obtained or answers made within the period of limitation. Appellant’s contention that the trial court erred in rendering judgment against her because the evidence is legally and factually insufficient to show diligence in serving her with citation is overruled.

Appellant next contends that “the district court erred in failing to render judgment in favor of the defendant, as the testimony shows that there was an accord and satisfaction of the community debt when equipment was transferred by defendant’s husband to plaintiff corporation.” The testimony concerning the agreement at the time of the transfer of the equipment in question by Roy Roper to Jeoffroy is in conflict. Jeoffroy’s representative testified that there was no connection between the note and the transfer of the equipment. The evidence does not establish as a matter of law that the equipment was given in payment of the note in question. It, at most, presented a controverted issue of fact to be determined by the trier of facts. The trial court did not err in finding the fact against appellant.

Appellant’s contention that the trial court erred in rendering judgment against the wife on a community debt when the cause of action was barred to the husband is overruled. In Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974) and Dulak v. Dulak, 513 S.W.2d 205, 207 (Tex.1974), the Supreme Court held that a spouse may be sued without the joinder of the other spouse in an action concerning joint community property and that the judgment unless otherwise erroneous is binding on those who were parties to the suit but not on those who were not before the court.

In Dulak the court said:

. In Griffin Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex. 1974), decided today, this court has ruled that the Family Code has abolished the doctrine of virtual representation whereby the husband could act for and represent the wife in an action concerning their joint community property. Section 5.22 of the Family Code terminated that practice, and in the case of joint management community property, the wife is now a joint manager. She is as individual as is her husband. Her rights, like his, may be affected only in an action which calls her to answer the same as any other joint owning individual.

Thus, it is not error for the court to render judgment against one spouse when both answer, but each have separate defenses, one of which is good and one of which fails.

Appellant’s final point of error, that the plaintiff’s pleadings will not support a judgment against her individually, was neither briefed nor argued in the brief. Such a failure to brief and argue a point of error constitutes a waiver of it, and such a point will not be considered on appeal. Phagen v. State, 510 S.W.2d 655, 659 (Tex.Civ.App.— Fort Worth 1974, writ ref’d n. r. e.); Carrick v. Hedrick, 351 S.W.2d 659 (Tex.Civ. App.-Amarillo 1961, no writ).

The judgment of the trial court is affirmed.


text:
    Louise Burnett PRITCHETT, Appellant, v. FOREST OIL CORPORATION, Appellee.
    No. 6445.
    Court of Civil Appeals of Texas, El Paso.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    McCulloch, Ray, Trotti, Hemphill & Meadows, Ross H. Hemphill, Clayton E. Devin, Dallas, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., David K. Brooks, Midland, for appellee.
   OPINION

WARD, Justice.

This appeal is from the action taken by the trial Court at the close of the plaintiff’s testimony in removing the case from the jury and entering a judgment for the defendant. The plaintiff-Appellant, Louise Burnett Pritchett, owned 200 acres of overriding royalty interest which had been voluntarily pooled with other interests into the W. C. Tyrell Unit with the Appellee, Forest Oil Corporation, as the unit operator. During the drilling of the first well, the plaintiff desired to hedge on her investment and sold 50 acres of her royalty interest to one O’Brien who immediately conveyed the royalty to the Appellee. Soon thereafter, a very profitable gas well was completed. The plaintiff sued for rescission of the sale or in the alternative for damages on the theory that the defendant occupied a strict fiduciary relationship with the plaintiff, that a misrepresentation by omission in failing to reveal favorable drilling information had occurred just prior to the sale, and that the defendant had thereby wrongfully obtained a secret profit in violation of the high fiduciary duty which it owed to plaintiff. We affirm the judgment of the trial Court and hold that the strict fiduciary standard is not applicable to this transaction between the holder of an overriding royalty interest of a voluntarily pooled unit and the unit operator.

The Appellant was not a party to the original oil and gas lease but had purchased some 200 acres of royalty interest after its execution. This royalty interest was subject to a pooling power granted in the original lease. The lease was to Gulf Oil Co. and was put into the W. C. Tyrell Unit in 1970 with the Appellee, Forest Oil Corporation, acting as the unit operator.

After the first well on the unit was begun in late 1970, the Appellant, through her son, followed the progress of the drilling by repeated telephone calls to the Appellee’s employees. The son was a professional geophysicist employed by Atlantic Richfield Company. The Appellant relied exclusively on his advice and he, in turn, conducted all of the dealings with the Appellee’s employees. From the beginning, the son had advised the Appellee’s employees that he never wanted any information that was not being made public, but he wanted all information that they felt was permissible for them to give him. By March 1971, the Appellant had determined to sell some of her royalty and offered to sell 50 acres of it to Appellee at $1,000.00 an acre. One of Appellee’s employees, in turn, stated there was no interest at that price but that Forest would buy it at $300.00 an acre. These negotiations went no further and were not resumed. By May 1971, the well had reached the contemplated pay formation and the son sought to determine the facts concerning the porosity of the formation at the point where the well entered it. The Appellee’s employee, Mr. Dodson, answered Mr. Pritchett’s questions but did not furnish some information from the drilling reports which would have been valuable information in determining porosities. Specifically, he did not tell Mr. Pritchett the amount of fluid loss experienced in the Ehlenberger formation which, according to the Appellant’s theory, would have accurately reflected the well’s potential and its value. This would have indicated a good well to the son and the Appellant would not have sold any interest if these facts had been known. The amount of the fluid loss was not made public by the Appellee. On the basis of the investigation described and without receiving any further information concerning the well, 50 acres of the royalty was sold on May 25, 1971, to a broker named George H. O’Brien, Jr. at $700.00 an acre. Shortly before the final completion of the well, George O’Brien, in turn, transferred this acreage to the Appellee. The son testified that he relied on the information that he had received and he believed that it was complete.

The Appellant’s principal contention, as advanced by her points, is that the unit operator became a trustee and owed a fiduciary obligation to the royalty interest owner and as such is prohibited from acquiring any rights antagonistic to the Appellant’s interest; that public policy requires that all temptation be removed from the trustee and that the trustee may not acquire any personal advantage from the subject matter of the trust and that in all dealings with the trust property full and complete disclosure must be made to the trust beneficiary. The Appellant relies on those cases which recognize that certain fiduciary obligations exist where the lessee pools under the contractual unitization clause in the lease. McCarter v. Ransom, 473 S.W.2d 235 (Tex. Civ.App. — Corpus Christi 1971, no writ); Expando Production Co. v. Marshall, 407 S.W.2d 254 (Tex.Civ.App. — Fort Worth 1966, writ ref’d n. r. e.); Banks v. Mecom, 410 S.W.2d 300 (Tex.Civ.App. — Eastland 1966, writ ref’d n. r. e.); Tiller v. Fields, 301 S.W.2d 185 (Tex.Civ.App. — Tex.1957, no writ). The controversies arise where the lessor’s royalty could be diluted because of the lessee’s manner of unit designation. The power granted under the pooling agreement has been examined and two theories have been advanced as a basis to control the lessee. In the McCarter case, an implied covenant was recognized that the unit operator must do what a reasonable prudent operator would do under the same or similar circumstances and in all the cited cases a fiduciary duty is imposed which requires the lessee to exercise the utmost good faith toward the lessor and royalty holders in using the power granted under the pooling provisions of the lease. Under the latter theory, if lessee, in its unit designation, dilutes the royalties dye lessor and where under the facts a fraud is practiced on the lessor, then relief is available.

These cases require fairness in the exercise of the pooling power, but none go to the extent of recognizing a conventional trust relationship. Neither do they ever state that a fiduciary duty is owed by a unit operator regarding the giving of drilling information to a royalty owner who has no interest in the cost of production.

In arguing for an application of the trust principles to the present facts, Appellant cites Young v. West Edmund Hunton Lime Unit, 275 P.2d 304 (Okl.Sup.1954), where the unit organization and its operator were held to occupy a position similar to that of a trustee for the benefit of all those interested in the oil production, either as lessees or royalty owners. There the Court adopted the general rule of Trust Law that the trustee is normally forbidden to buy trust property; that while the unit operator might purchase oil and gas for its own use and benefit; it had to act with the highest fidelity toward the royalty owner. The case was dealing with a forced pooling statute where the unit operator was permitted, without any control, to supervise, manage, and conduct the development and operation of the unit for production of oil and gas, that it knew that a price of $3.00 a barrel was fully available for all of the production and yet, it sold part of the production to itself at a price of $2.65 a barrel.

To apply that argument to the present case would be without reason. It is one thing where an operator is designated to sell production where the highest price obtained directly benefits the royalty owner who is without any power of control. But, it is an entirely different matter when the lessor or royalty interest owner, who is not charged with the cost of production, attempts to inquire of the producer information entirely foreign to any legitimate interest. The inquiry as to the information in this case concerned the Appellant’s desire to gamble or hedge with her own properties in case the well was not a success. In this area, no fiduciary or confidential relationship can be said to exist as a matter of law between the unit operator and the holder of a royalty interest in the unit. Sunac Petroleum Corporation v. Parkes, 416 S.W.2d 798 at 804 (Tex.1967). The first point is overruled.

Insofar as the second point can be said to advance the proposition that as a matter of law there was a breach of the confidential or fiduciary relationship, it is also overruled.

Under the first two points the Appellant argues that there are fact issues present, both as to the existence of the fiduciary or confidential relationship and its subsequent breach, and that the directed verdict was improper. No family or former business relationship or joint venture are involved. The mere fact that the Appellant subjectively trusted the Appellee or its agents is not enough. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962). In addition, the Appellant’s son repeatedly testified that he never sought any confidential information from the Appellee. Any confidential relationship was not in the case.

While the Appellant pleaded common law fraud, no complaint is made on appeal regarding a failure to submit this theory. There is no assertion that any false statement was ever made to the Appellant or to her son.

The evidence that Forest Oil Corporation acquired the Appellant’s royalty interest through O’Brien does not establish the fiduciary or confidential relationship which is necessary to the Appellant’s cause of action.

All of the Appellant’s points have been considered and they are overruled. The judgment of the trial Court is affirmed.


author: STEPHENSON, Justice.

text:
    METAL WINDOW PRODUCTS COMPANY, Appellant, v. Jim D. NORED, Appellee.
    No. 7779.
    Court of Civil Appeals of Texas, Beaumont.
    March 11, 1976.
    Rehearing Denied April 1, 1976.

      Steven E. Halpin, John Graml, Houston, for appellant.
    William E. Satterwhite, Jr., Houston, for appellee.
   STEPHENSON, Justice.

Plaintiff, Jim Nored, brought this action against defendant, Metal Window Products Company, for actual and exemplary damages for the conversion of his automobile. Trial was by jury and judgment rendered for plaintiff on the verdict. The parties will be referred to here as they were in the trial court.

The jury found that defendant caused the automobile in question to be repossessed from plaintiff and that defendant converted the automobile. Defendant’s first point of error is that the trial court erred in refusing its requested issue asking whether the automobile was repossessed on behalf of the Metal Window Employee’s Association.

It is elementary that a trial court is required to submit only the controlling issues raised by the written pleadings. Tex.R. Civ.P. 277 and 279. Defendant had no pleadings as to this particular question, and only its general denial raised an issue as to whether defendant had repossessed and converted the automobile. In the absence of affirmative pleadings, defendant was not entitled to have its issue submitted. The point is overruled.

Defendant has a series of points challenging the jury findings as to plaintiff’s actual damages in the total amount of $5,280. We pass upon the no-evidence point by considering only the evidence favorable to the jury findings, and we consider the entire record in passing upon the remaining points. The jury allowed recovery for the market value of the automobile, for loss of use of the automobile, for loss of personal property in the automobile, and for loss of credit standing. A separate amount of damages was found for each of those four items, and only the loss of personal property in the automobile is not challenged.

We consider first the point in reference to the market value of the automobile. The jury found the market value to be $2,695 on the date of the repossession and conversion. The evidence shows the purchase price nine months earlier to be $3,718.10 which was arrived at after granting a fleet discount. There is also evidence that a month before the conversion the automobile was “very clean,” and at the time of the conversion it was in “perfect running condition.” There is also evidence that plaintiff paid $2,600 for this automobile about a month before the conversion. No witness testified directly as to the reasonable market value of this automobile on the date of the conversion.

There is amazingly little case or text law on this question. In a discussion found in 23 Tex.Jur.2d Evidence § 175 at 266 (1961), this statement is made:

“Although there is authority to the. contrary, evidence of the cost of real or personal property, though not conclusive, is ordinarily admissible on the issue of the present market value of the property, especially where the property was sold in the usual and ordinary manner.”

The section following the one above quoted shows the remoteness as to time of sale is a factor to be considered.

The case Gulf, Colorado & Santa Fe Ry. Co. v. Hillis, 320 S.W.2d 687 (Tex.Civ.App. —Waco 1959, no writ), involves damages to a shipment of onions, and the court held that evidence of what an article or commodity sold for is evidence of market value.

On the other hand, in the ease H. B. Zachry Co. v. Ceco Steel Products Corp., 404 S.W.2d 113 (Tex.Civ.App. — Eastland 1966, writ ref’d n. r. e.), it was held that evidence as to what appellee paid for the missing steel was not competent evidence of its market value at the time and place it was alleged to have been converted by appellant.

We have come to the conclusion that even though the evidence set out above is more than a scintilla, and therefore some evidence, we find the evidence to be insufficient to support the jury finding. We see no reason that a witness could not have been found to qualify as an expert in this field and give his opinion as to the reasonable cash market value of this automobile on the date of its conversion.

Defendant complains about the findings of $485 for loss of use of the automobile. This point is sustained, and upon a retrial that element should not be included.

The rule is clear in this state that in a suit for conversion of an automobile, a plaintiff may recover as actual damages only the value of the property converted (in this case the automobile and the personal property in it) plus interest from the date of the conversion. See Commercial Credit Corporation v. Flores, 345 S.W.2d 432 (Tex. Civ.App. — Eastland 1961, writ ref’d n. r. e.).

Defendant has points of error complaining about the inclusion of loss of credit standing as an element of actual damages. The most recent case on this point is Security State Bank and Trust v. Craighead, 440 S.W.2d 701 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.), which, in discussing loss of credit as an element of damages, states that claim should be submitted as an element under the exemplary damage issue. (Citing cases at 440 S.W.2d 710).

Defendant also has points of error attacking the jury findings of malice and $7,500 as exemplary damages. It is urged that there is no evidence and insufficient evidence to support such findings.

This court had occasion to pass upon a similar question in Kroger Food Company v. Singletary, 438 S.W.2d 621 (Tex.Civ.App.—Beaumont 1969, no writ). In a well-written opinion by Associate Justice Keith, the rule is stated at 438 S.W.2d 627. We find in the present case before us that the evidence is insufficient to support the jury findings of malice and the resulting punitive damages.

The entire case is reversed and remanded for a new trial in accordance with the statements of law set out in this opinion.

REVERSED and REMANDED.