author: McDONALD, Chief Justice.

text:
    David P. BLACKSHER, Appellant, v. Carolyn BLACKSHER, Appellee.
    No. 5969.
    Court of Civil Appeals of Texas, Waco.
    Dec. 7, 1978.
    Rehearing Denied Jan. 11, 1979.
    Robert E. Hedicke, Upcher & Hedicke, El Paso, for appellant.
    Martha B. Tanner, Tanner & Falkow, Inc., Daniel R. Rutherford, San Antonio, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant David P. Blacksher from that part of a divorce decree which found two children to be the legitimate children of appellant, and awarded appellee $750. attorney’s fees.

Appellee Carolyn Blacksher filed suit against appellant David P. Blacksher, seeking divorce, to be appointed managing conservator of the parties’ minor children David Christian and Brandy Faye, property division, child support and attorney’s fees.

Appellant by answer denied the two children were his legitimate children, and cross petitioned for divorce and property division.

The trial court after hearing decreed divorce to appellee; found that appellant and appellee are the parents of two children 1) David Christian Blacksher born June 7, 1973 and 2) Brandy Faye Blacksher born June 28, 1974; appointed appellee managing conservator; appointed appellant pos-sessory conservator; awarded appellee child support of $93.75 per month per child against appellant; divided the property of the parties; and decreed appellee $750. attorney’s fees against appellant.

Appellant appeals on two points:

1) The trial court erred in finding “that both children (David Christian and Brady Faye) are the legitimate children of their father, David P. Blacksher”.
2) The trial court erred in awarding $750. attorney’s fees to appellee because there is no evidence of reasonableness of the attorney’s fees requested.

Appellee was married to Sgt. James A. Dugan until her divorce from him on August 2, 1974. On August 2, 1974 appellee married appellant. David was born on June 7,1973, and Brandy was born on June 28, 1974.

The two children being born during the marriage of appellee and Sgt. Du-gan, are presumed to be the legitimate children of Sgt. Dugan. Only a finding of non access (or impotence) will overcome the presumption that a child is the legitimate issue of the lawful marriage during which it was conceived and born. Wedgman v. Wedgman, (Tex.Civ.App., Waco) Er.Dismd 541 S.W.2d 522; Zimmerman v. Zimmerman, (Tex.Civ.App., 14 Houston) NWH, 488 S.W.2d 184.

Appellant and Appellee commenced to date and have sexual relations in November 1972. In February 1973 appellant moved in with appellee, and they lived as man and wife. David was born on June 7, 1973; was a premature child; and was kept in an incubator for 2 days after birth. Brandy was born on June 28, 1974. Appellant acknowledges that Brandy is “absolutely, unequivocally” his child, but asserts he has “reasonable doubts that the little boy is not mine”. Appellee was seeing only appellant from October 1972. Appellee testified Sgt. Dugan was not the father of either of the children: “There is no way; as a matter of fact Sergeant Dugan was overseas at that time [and] did not return until 1976”.

Section 12.02(a) of the Texas Family Code provides: “A child is the legitimate child of his father if the child is born or conceived before or during the marriage of his father and mother”.

Under the record we think the trial court authorized to find that appellee’s husband Sgt. Dugan was overseas and had no access to her during all times pertinent to the birth of the two children, and that appellant is the legitimate father of both the children.

The record reveals that appellee agreed to pay her attorney $1000. attorney’s fee, but could not afford to pay all of such bill; that appellee had been to her lawyer’s office on numerous times for approximately an hour each time in connection with this case; that she had called her lawyer some 10 times over the telephone about this case; and that trial of the case involved contested issues and a cross action. The record reflects the reasonableness of the trial court’s award of $750. attorney’s fee. Danache v. Danache, (Tex.Civ.App., Waco) NWH, 296 S.W.2d 821; Thompson v. Thompson, (Tex.Civ.App., Ft. Worth) NWH, 380 S.W.2d 632; Couch v. Couch, (Tex.Civ.App., Waco) Er. Dismd, 315 S.W.2d 64.

Both appellant’s points are overruled.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    SECURITY MUTUAL CASUALTY COMPANY, Appellant, v. Herman G. JOHNSON et al., Appellees.
    No. 5873.
    Court of Civil Appeals of Texas, Waco.
    Dec. 7, 1978.
    Rehearing Denied Jan. 11, 1979.
    C. Steven Matlock, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.

      Tom Sands, MeDearman, Lair & Sands, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a suit by plaintiffs Herman G. Johnson and Timothy Johnson against defendant Insurance Company for $2,131. plus interest and costs. Timothy Johnson was operating a pickup truck owned by W. H. McColm when he collided with a lamp pole causing $2,131. damage to the vehicle. McColm filed suit against Timothy Johnson, alleging Johnson was operating the vehicle without his permission, and recovered judgment of $2,131. Herman Johnson had a policy of liability insurance issued by defendant. Defendant refused to defend Timothy Johnson in the suit brought by McColm or to pay the judgment resulting therefrom.

Herman Johnson and Timothy Johnson then filed this suit against defendant Insurance Company to recover the amount of the judgment rendered in favor of McColm plus attorney’s fees.

Trial was to a jury which found:

1) Eugene George was a permittee of W. H. McColm, owner of the vehicle.
2) Timothy Johnson was a permittee of Eugene George.
3) The vehicle was covered by the insurance policy.

The trial court rendered judgment for plaintiffs against defendant for $2,131.

Defendant appeals on 16 points which we summarize as 5 main contentions.

1) As a matter of law Timothy Johnson was not a person “insured” under the policy-

2) There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 1 that Eugene George was a per-mittee of the owner of the vehicle W. H. McColm, and such finding is against the great weight and preponderance of the evidence.

3) There is no evidence and/or insufficient evidence to support the jury’s answer to Issue 2 that Timothy Johnson was operating the vehicle with permission of Eugene George, and such finding is against the great weight and preponderance of the evidence.

4) Under the policy coverage was excluded by exclusion (i) of Part I Liability, because the undisputed evidence shows Timothy Johnson had the care, custody and control of the pickup at the time of the accident.

5) Defendant had no duty to defend or pay any judgment rendered against Timothy Johnson because the only pleading forwarded to defendant showed on its face there was no coverage under the policy.

Contention 1 asserts Timothy Johnson was not a person “insured” under the policy-

The policy provides: “Persons Insured”. The following are insureds under Part I “with respect to a non owned automobile: (1) The named insured. (2) Any relative *****. ‘Relative’ means a relative of the named insured who is a resident of the same household”.

Thus to be a person insured under the policy Timothy Johnson had to be a named insured, or a “relative” of the named insured and a resident of the same household. Herman Johnson is the named insured. It is established Timothy Johnson is 18 years of age; is the son of Herman Johnson; that after the accident Timothy was taken to the hospital, but that his father came and got him and took him home. We believe that a fair inference from the foregoing is that Timothy lives in the same household with his father, the insured. There is no evidence that Timothy was not a resident of his father’s household.

Contentions 2 and 3 assert there is no evidence and/or insufficient evidence to support the jury’s answers to Issues 1 and 2.

Issue 1 found Eugene George was a permittee of W. H. McColm, the owner of the vehicle. Eugene George drove the pickup home from his work every night. Eugene George was furnished the pickup for his business and personal use by his employer. Eugene George kept the pickup at his home over weekends. We think the evidence ample to support the jury’s answer to Issue 1, and that such finding is not against the great weight and preponderance of the evidence.

Issue 2 found Timothy Johnson was a permittee of Eugene George. Timothy Johnson was a friend of Eugene George and his brother Paul George. Eugene permitted Paul and Timothy to use the pickup; they used the pickup 50% of the time with Timothy’s car; Timothy reasonably believed that the pickup belonged to Eugene; on the occasion of the wreck Timothy was asked to take Eugene’s and Paul’s cousin home in his car; he would have done so but discovered he was low on gas; so Timothy and Paul took Paul’s cousin home in the pickup; Eugene gave Timothy permission to use the pickup. We think the evidence ample to support the jury’s answer to Issue 2, and that such finding is not against the great weight and preponderance of the evidence. See Hartford Accident and Indem. Corp. v. Lowery, (Tex.Civ.App. Beaumont) NRE 490 S.W.2d 935.

Contention 4 asserts policy coverage was excluded by exclusion (i) Part I Liability, because Timothy Johnson had the care, custody and control of the vehicle at the time of the accident.

The policy provides under “Exclusions”: “This policy does not apply under Part I: (i) To injury to or destruction of property rented to or in charge of the insured other than a residence or private garage”.

Timothy Johnson testified:

Q. At the time of the collision, did you have the pickup under your care, custody and control?
A. You mean—
Q. You were driving it; isn’t that correct?
A. I was driving, yes.
Q. You had sole control over the driving of that pickup at the time of the accident. Is that correct?
A. Yes sir.

Appellant asserts the foregoing establishes Timothy was “in charge” of property and that no coverage exists.

The exclusion does not exclude coverage to Timothy Johnson. The pickup was in the over all custody of Eugene George; it was on a mission of delivering Eugene George’s cousin to his home and Paul George was in the vehicle, and while Timothy was driving the vehicle, it is not established that he was “in charge” of the vehicle. Eugene George was custodian of the vehicle and we think “in charge” of it.

Policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. United Service Automobile Assn. v. Miles, 139 Tex. 138, 161 S.W.2d 1048. Exceptions and limitations will be strictly construed against the insurer; and courts will not write a limitation where none exists. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 381; Indemnity Marine Assurance Co. v. The Citizens National Bank of Cameron, (Tex.Civ.App., Waco) NWH, 463 S.W.2d 290; Republic Aero, Inc. v. North American Underwriters, (Tex.Civ.App., Waco) NRE, 462 S.W.2d 635.

Contention 5 asserts defendant had no duty to defend or pay judgment rendered against Timothy Johnson because the only pleading forwarded to it reflected no coverage under the policy.

McColm’s suit against Timothy Johnson alleged that Timothy Johnson was operating the vehicle without consent of the owner.

Defendant’s policy provides coverage “provided his actual operation * * is with permission, dr reasonably believed to be with the permission of the owner and is within the scope of such permission”.

Petitioner’s duty to defend is determined by the allegations of the petition when considered in the light of the policy provisions. Argonaut Southwest Ins. Co. v. Maupin, Tex., 500 S.W.2d 633. See also: Fort Worth Lloyds v. Garza, (Tex.Civ.App., Corpus Christi) 527 S.W.2d 195.

Since the pleadings forwarded to the defendant did not contain an allegation the insured did not reasonably believe he had the permission of the owner, defendant was obligated to defend.

All defendant’s contentions and points have been considered and are overruled.

AFFIRMED.


author: CIRE, Justice.

text:
    John GONZALES, Appellant, v. NORRIS OF HOUSTON, INC., et al., Appellees.
    No. 1927.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1978.
    Rehearing Denied Jan. 10, 1979.

      Andrew J. Berger, Howard L. Nations, Houston, for appellant.
    Thomas G. Bousquet, Bousquet & Associates, Houston, for appellees.
   CIRE, Justice.

This is an appeal from an order temporarily enjoining appellant John Gonzales from competing with appellees Norris of Houston, Inc., et al [Norris] in the hairdressing business. The injunction was issued pursuant to a noncompetition clause which appel-lees are attempting to enforce through this suit. We affirm.

Appellant attended Norris of Houston Barber College and in 1969, after completing his schooling, entered into an employment contract with appellees. The contract contained the following language:

EMPLOYEE covenants that he will not in Harris County, Texas, within three (3) years from the termination of his employment, engage in business either as principal, employee, partner or stockholder, in competition with any business carried on or contemplated at the time of termination of his employment, by the EMPLOYER, or furnish information or divulge trade or business secrets of the EMPLOYER directly or indirectly to anyone engaged or interested in such line of business.

Appellant worked for Norris until December 6, 1977, at which time he terminated his employment and opened his own hairdressing establishment, John’s Hair Shoppe, approximately a mile and a half from appellees’ business. Appellees sued, seeking monetary damages and temporary and permanent injunctions until December 6,1980, the termination date of the noncom-petition agreement. After a hearing, the trial judge entered an order enjoining appellant from engaging in the practice of hairstyling in Harris County “during the pendency of this litigation or until December 6, 1980, whichever comes first . . .”

The granting or denial of a temporary injunction is within the broad discretion of the trial judge, and his order will not be overturned on review unless it is clear that he abused that discretion. Janus Films v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). To establish the right to a temporary injunction, plaintiff need only show a probable right and a probable injury. He need not demonstrate that he will ultimately prevail in the litigation. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

Appellant testified at the hearing that approximately fifty percent of his current clientele had been his customers at Norris. He also stated that he had notified some of his prior customers by phone or mail that he had opened his own establishment. This testimony establishes that ap-pellees have suffered probable injury by the actions of appellant. In a similar case the First Court of Civil Appeals in Houston held that “[pjrobable right and probable injury were clearly shown by Mrs. Gafas’ having opened a hairstyling shop near the appellants’ in direct competition and having successfully solicited their customers.” Norris of Houston v. Gafas, 562 S.W.2d 894, 896 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). The same noncom-petition clause involved here was upheld in that case.

Appellant contends that the trial court erred in granting the temporary injunction because appellees have an adequate remedy at common law for damages. Walter Mueller, a witness for appellees, testified that Norris could claim a $20,000.00 value on each customer. Appellant urges that by applying this figure to the number of former Norris customers appellant serves, a dollar value may be arrived at, precluding equitable relief.

We do not agree. Regardless of the testimony that each customer was worth “at least $20,000.00”, we do not feel that it is possible to place a dollar value on a customer. Mr. Mueller further testified that “[t]hey have another value [E]ach customer is worth a lot of referral business.” This uncertainty coupled with other inherent variables would result in irreparable damage to appellee. It is this type of injury which is the proper subject for a temporary injunction. Town Plaza Fabrics v. Monumental Properties of Texas, 544 S.W.2d 775 (Tex.Civ.App.—Dallas 1976, no writ).

Appellant next urges that the trial judge abused his discretion in granting the temporary injunction because by doing so he effectively gave to appellees substantially all the equitable relief available to appellees in a trial on the merits.

This court has had occasion to pass on such a contention in two prior cases. In Ramsden v. Norris of Houston, 444 S.W.2d 838 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ), the trial judge ordered a “temporary” injunction for a period of three years, the exact time specified in the noncompetition clause. This court there said that the “temporary” injunction had “strong similarity to a permanent prohibition,” 444 S.W.2d at 840. It further held that “ ‘[i]t is error for a trial court to grant a temporary injunction, the effect of which would be to accomplish the object of the suit. To do so would be to determine rights without a trial.’ ” Id.

In Glenn Advertising v. Black, 454 S.W.2d 841 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.), a temporary injunction was issued by the trial court for the maximum period, three years. There, however, it was stipulated that the parties applied for and received a preferential setting for a trial on the merits. The court held this feature to be controlling and upheld the temporary injunction. It did, however, modify the injunction to remain in effect only “ ‘until final judgment is entered in this cause,’ ” noting that the order of a trial court for a temporary injunction should so provide. The language of the injunction here substantially follows this direction.

The Texas Supreme Court has also approached this issue. In Texas Foundries v. International Moulders and Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952), the court noted that it was aware that in some counties the crowded dockets might cause a delay in the trial on the merits and result in a “temporary” injunction which accomplished the whole object of the litigation. The court there upheld the temporary injunction, stating that there was no claim that the trial court would not have afforded a prompt hearing on the merits. Likewise there is nothing in this record to indicate that the trial court has refused to give this case a preferential setting, and while none has been requested, appellees agreed in open court to join in such a request. Indeed, the local rules for the Harris County District Courts provide for preferential settings in cases “in which evidence is presented that manifest hardship would be imposed upon any litigant if a preferential setting is not granted.” Rule 4(c). While we affirm the action of the trial court in issuing the temporary injunction, we do so with the understanding that the trial judge will follow the mandate of our supreme court as set out in the Texas Foundries case, supra, and arrange his docket so as to provide a prompt and expeditious trial on the merits. In the future, trial judges granting temporary injunctions should, as a matter of course, at the time the order granting the temporary injunction is entered, specify in the order an early date for a trial on the merits.

Again, this case appears to be one which could have been resolved on the merits in less time than has been consumed by this appeal. We reaffirm the principle that “the most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing in which both facts and law may be fully developed; in this way, both trial and appellate courts may render judgment finally disposing of the controversy.” Charter Medical Corp. v. Miller, 554 S.W.2d 220, 223 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.). See also Southwest Weather Research v. Jones, 327 S.W.2d 417 (Tex.Sup.1959); Irving Bank and Trust Company v. Second Land Corporation, 544 S.W.2d 684 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.).

Appellant contends that the temporary injunction is erroneous because it is equivalent to enforcing specific performance of the contract. We do not agree. The law is settled that covenants not to compete,' reasonable in duration and geographical scope, will be upheld. Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960). ‘“The purpose of the injunction is not to induce the defendant to continue to service the plaintiff or to prevent injury caused by his leaving the service; it is to prevent him from engaging in unfair competition and stealing away the plaintiff’s customers contrary to his express promise.’ ” T. E. Moor & Company v. Hardcastle, 421 S.W.2d 126, 129 (Tex.Civ.App.—Beaumont 1967, writ ref’d n.r.e.).

Finally, appellant urges that the contract contained a provision whereby the entire agreement could be terminated, thus releasing appellant from all duties and restrictions contained therein. The language relied upon is as follows;

EMPLOYEE may terminate this agreement prior to expiration of any employment term by giving seven (7) days notice of such intention to terminate to the EMPLOYER.

According to appellant, the notice given by him on December 6, 1977, effective December 18, 1977, complied with this clause and released him from the agreement and hence the noncompetition clause.

Appellant’s primary contention is that this language is ambiguous and as a result should be construed most strongly against the drafter. We overrule this contention. The claims of ambiguity have been raised for the first time on this appeal. Ambiguity is an affirmative defense which must be raised at the trial court level. Texas Rules of Civil Procedure, Rule 94.

In any event courts of this state have not drawn a distinction between contracts providing for the termination of the employment only and termination of the agreement. Rather they have upheld noncom-petition clauses where the contract provided for the termination of the agreement. Carl Coiffure v. Mourlot, 410 S.W.2d 209 (Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.).

Accordingly we hold that the temporary injunction was properly issued.

Affirmed.


author: McCLOUD, Chief Justice.

text:
    In re R. G. S.
    No. 5229.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 14, 1978.
    Rehearing Denied Jan. 4, 1979.

      Robert Michael Brown, Brown & Harding, Lubbock, for appellant.
    Joseph Thigpen, Dist. Atty., Haskell, Travis Hartgraves, County Atty., Aspermont, for appellee.
   McCLOUD, Chief Justice.

On January 24, 1978, the father, stepmother and younger brother of appellant, R.G.S., were shot and killed. Three days later, appellant was taken into custody and detained. The State of Texas filed a petition on January 30, 1978, in the 39th District Court of Stonewall County, sitting as a juvenile court, seeking an adjudication, pursuant to Section 54.03 of the Texas Family Code, that appellant engaged in delinquent conduct or conduct indicating a need for supervision. The “adjudication” petition alleged that appellant unlawfully, intentionally, and knowingly shot and killed his father, stepmother, and brother. Appellant was summoned to appear at 2:30, p. m. on January 30, 1978, the date the petition was filed, to answer the allegations. On January 30, 1978, the court, following a hearing attended by appellant and his attorney, entered a detention order pursuant to Section 54.01. Appellant and his attorney filed written waivers of subsequent detention hearings. On February 22, 1978, the court ordered the Juvenile Office of Taylor County to make a complete diagnostic study, social evaluation, and full investigation of the appellant, his circumstances, and the circumstances of the alleged offense. On March 10, 1978, the court, pursuant to appellant’s motion for an adjudication hearing, entered an order setting the “adjudication hearing” for March 20, 1978. On March 13, 1978, the State filed its petition requesting the juvenile court to waive its jurisdiction and transfer the cause to the appropriate criminal court in Stonewall County in accordance with Section 54.02, which provides in part:

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.

On March 13,1978, the court set the “waiver hearing” for March 17, 1978. On March 15,1978, the court entered an order stating that on March 14, 1978, it learned that the State had filed its waiver of jurisdiction and transfer petition, and the court on such date, on its own motion, vacated the March 20, 1978, adjudication hearing setting. The court also denied appellant’s request for a new “adjudication hearing” setting. Appellant sought, and was granted, three continuances of the transfer hearing. On May 26, 1978, the transfer hearing was held and by order dated June 1,1978, the juvenile court waived jurisdiction and ordered the cause transferred to the District Court of Stonewall County for criminal proceedings.

Appellant appeals from the order waiving jurisdiction and transferring the cause. We affirm.

In his first point of error, appellant contends the court erred in denying him a speedy “adjudication hearing” in violation of the mandatory provisions of Section 53.-05. We disagree. Section 53.05 provides that the court shall set the hearing, if the juvenile is in detention, not later than ten days after the petition is filed. The initial hearing was set within the statutory period.

Appellant’s main complaint is that the court, on its own motion, had no authority to vacate the March 20, 1978, trial setting for the “adjudication hearing.”

The rule that a hearing must be set, but not heard, within the ten-day provision, was discussed in Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.), as follows:

Section 53.05 merely requires that the time initially set for the hearing be not later than 10 days after the filing of the petition. It does not preclude continuing the hearing by agreement or for good cause. Smith, Parent and Child, Tex. Family Code Symposium, 5 Tex.Tech.L. Rev. 551 (1974). As for the delays which occurred after the time initially set for the hearing, appellant participated in or was responsible for a considerable portion of those delays, and under the record presented here he is in no position to complain of them.

In the recent case of L. L. S. v. State, 565 S.W.2d 252 (Tex.Civ.App.—Dallas), writ ref’d n. r. e. per curiam, 569 S.W.2d 495 (Tex.1978), the court properly held that a juvenile court, on its own motion, could continue a hearing. The court said:

We do not interpret section 53.05 as imposing a jurisdictional limitation requiring dismissal of the proceeding unless a proper waiver or ground for postponement is shown by the record. The requirement that a hearing be set within ten days after the filing of the petition is mandatory, but there is no jurisdictional requirement that the hearing be completed at that time. The requirement for a setting within ten days provides a time for appearance for both parties. The judge can then determine whether the child is adequately represented and what the future schedule of the case should be. Whether the hearing on the state’s petition or on its motion to transfer is completed on that date or postponed is a matter within.the court’s discretion, subject to the constitutional requirement of a speedy trial. Respondent does not contend that the period of the delay in the present ease was so long as to constitute a constitutional denial of due process apart from the provision of section 53.05 that a hearing be set within ten days. We construe the statute as permitting a postponement in the court’s discretion and on the court’s own motion, so long as the postponement is not for such a long period as to be a denial of due process.

We hold that the trial court, upon learning that the State had filed a waiver and transfer petition, did not abuse its discretion when it vacated, on its own motion, the previous order setting the “adjudication hearing” for March 20, 1978. We think that neither Rule 247 nor Rule 251, T.R. C.P., should prohibit a juvenile court from vacating, on its own motion under proper circumstances, a previously set date for an adjudication hearing. Moreover, appellant’s complaint that the court erred in continuing or postponing the adjudication hearing, would have to be raised in the appeal of the adjudication proceeding. There has been no “adjudication” trial or appeal. Appellant has failed to show the court abused its discretion.

Appellant next argues that the admission into evidence of hearsay portions of the diagnostic study denied him due process of law and the right to confront the absent witnesses, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.

Appellant complains of certain information contained in the report prepared by Joyce Talbot, Assistant Juvenile Officer of Taylor County. The report, ordered by the court, shows that the hearsay information under attack was obtained by Talbot from reports compiled by the district attorney’s office. Talbot’s report expressly identifies by name the persons who gave the information, and to whom the information was given.

Section 54.02 expressly provides that the juvenile court, in a waiver hearing, may consider certain hearsay reports. The waiver statute provides in part:

(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
(e) At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision. The court may order counsel not to reveal items to the child or his parent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.
(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

In Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App.—Texarkana 1977, writ refd n. r. e.), the appellant contended that the psychological and social reports should not have been considered by the juvenile court because they constituted hearsay, were based upon further hearsay, and were not identified or authenticated by any witness. After observing that Section 54.02(d) requires the juvenile court to order such reports, and that Section 54.02(e) specifically states that the court may consider such reports, the court said:

Although the reports, being ex parte and made out of court, were hearsay, the legislature is free to provide for the reception of hearsay statements into evidence when it is deemed necessary, and it has frequently created exceptions to the hearsay rule for such purposes. Such an exception is particularly appropriate in a proceeding such as this, where the purpose is not to determine guilt but merely to evaluate the background and maturity of the child in order to determine if he may . be rehabilitated or if he should be subject to criminal proceedings. The rules of evidence have traditionally been relaxed in proceedings concerning the welfare of children. Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App. Dallas 1976, writ ref’d n. r. e.); Brown v. Brown, 500 S.W.2d 210 (Tex.Civ.App. Texarkana 1973, no writ); Cooksey v. Perkins, 263 S.W.2d 952 (Tex.Civ.App. Galveston 1954, writ ref’d n. r. e.); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App. El Paso 1936, no writ). .

After noting that the appellant had access to the reports, the court stated:

He had notice of their identity, and pursuant to the requirements of Section 54.-02(e) of the Family Code he received copies of the reports prior to the hearing. If there was doubt as to the genuineness of the reports or a need to cross-examine the authors with reference thereto, he had ample opportunity to raise the issue and call the authors as witnesses or produce other evidence bearing upon the question.

See also R. M. v. State, 563 S.W.2d 853 (Tex.Civ.App.—Austin 1978, no writ); Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); R. E. M. v. State, 541 S.W.2d 841 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.); Matter of P. B. C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso 1976, no writ).

Appellant asserts that even though Section 54.02 permits hearsay reports, such reports violate his constitutional right of confrontation. We disagree.

The order appealed from was entered in a preliminary discretionary transfer hearing, not an adjudication hearing. Appellant’s guilt or innocence was not determined. The issue for determination was whether the best interest of the juvenile and of society would be served by maintaining juvenile custody of appellant, or by transferring him to criminal district court for adult proceedings. Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

We have found no Texas case directly in point; however, appellant’s contentions were, we think, properly answered in Clemons v. State, 162 Ind.App. 50, 317 N.E.2d 859 (1974) cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975). There the court, in a well reasoned opinion, held that in a “waiver hearing,” as opposed to an “adjudication hearing,” the juvenile court could consider hearsay reports without violating the juvenile’s Sixth Amendment right to confrontation of witnesses. The court held that the Sixth Amendment right applies specifically to criminal prosecutions and was not applicable to a waiver hearing. We adopt the rationale and will quote freely. The court stated:

The standard for determining what due process requires in a particular juvenile proceeding is “fundamental fairness.” McKeiver v. Pennsylvania, supra, 403 U.S. [528] at 543, 91 S.Ct. 1976, 29 L.Ed.2d 647; Bible v. State, supra, 253 Ind. [373] at 385, 254 N.E.2d 319; Patterson v. Hopkins (N.D.Miss.1972), 350 F.Supp. 676.
In examining the question of whether “fundamental fairness” at a juvenile waiver hearing requires the exclusion of hearsay evidence, it is important to understand the nature of the waiver hearing. Unlike the delinquency hearing, a waiver hearing is dispositional in nature. As the Supreme Court of Washington stated in State v. Piche (1968), 74 Wash.2d 9, 442 P.2d 632, 635, cert. denied 393 U.S. 1041, 89 S.Ct. 666, 21 L.Ed.2d 588 (1969):
“In determining whether the essentials of due process and fair treatment were provided in the instant case, it is important to keep in mind the exact nature of a juvenile court transfer (waiver) hearing. Such a hearing does not result in a determination of delinquency . ; does not result in the determination of guilt as may a criminal trial; and does not directly result in confinement or other punishment as may both a delinquency hearing and a criminal proceeding. In short, the transfer hearing is not an adversary proceeding. Rather, the sole purpose of the transfer hearing, as we have recently said, is to determine ‘whether best interests of the child and of society would be served by the retention of the juvenile court authority over him or whether the juvenile, under all the circumstances, should be transferred to be tried as an adult.’ . . .”
See also State v. Carmichael (1973), 35 Ohio St.2d 1, 298 N.E.2d 568, cert. denied, 414 U.S. 1161, 94 S.Ct. 922, 39 L.Ed.2d 113 (1974) and State ex rel. Juvenile Dept. of Marion County v. Johnson (1972), 11 Or. App. 313, 501 P.2d 1011, rejecting the contention that a waiver hearing should be considered adjudicatory in nature. . . .

The court continued:

We conclude that fundamental fairness does not require the exclusion of hearsay in the waiver hearing setting. Just as in the judicial function of sentencing, consideration must be given to such factors as the previous record, background, and possibility for rehabilitation of the particular individual before the Court. The decision-making performed by the trial judge in sentencing is analogous to the waiver determination by a juvenile court judge. As we stated in Hineman v. State (1973), 155 Ind.App. 293, 292 N.E.2d 618, 624:
“. . . The strict rules of evidence applicable during trial are no longer applicable at sentencing where the pre-commitment report may be a dominant influence. This basic difference was drawn by the Supreme Court of the United States in Williams v. New York (1949), 337 U.S. 241, 246-247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337:
‘. . . Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.’ ”

Other jurisdictions have considered the applicability of the hearsay rules in juvenile waiver hearings. They have concluded that such hearings are dispositional and that the hearsay rules do not apply. See In re Murphy (1972), 15 M.D.App. 434, 291 A.2d 867; State v. Piche, supra; State v. Carmichael, supra.

In Clemons, a report introduced in evidence, prepared by the Porter County Probation Department, contained information obtained from the LaPorte County Juvenile Office. The court, after noting that under the rule announced in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the juvenile was entitled to see the report, said:

The final hearsay objection involved a probation report prepared by the Porter County Probation Department. The report contained information from the La-Porte County Juvenile Office. Although the Porter County Probation Officer testified at the waiver hearing and was available for cross-examination, Clemons contends that he was denied his right to confront witnesses. As in the case of a sentencing hearing, to hold that the hearsay rules apply to exclude such evidence as psychological reports, probation reports and social reports would seriously impair the juvenile judge’s ability to determine whether waiver was in “the child’s welfare and the best interests of the state.” Clemons is protected from consideration of erroneous reports by his right to access to such reports under Kent v. United States, supra, and by his right to present evidence of any circumstances that would entitle him to the benefits of the juvenile justice system under Summers v. State [248 Ind. 551, 230 N.E.2d 320], supra. As the United States Supreme Court stated in Kent v. United States, supra, 383 U.S. at 563, 86 S.Ct. at 1058:
“. . . (I)f the staff’s submissions include materials which are susceptible to challenge or impeachment, it is precisely the role of counsel to ‘denigrate’ such matter. There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is ‘critically important’ it is equally of ‘critical importance’ that the material submitted to the judge — which is protected by the statute only against ‘indiscriminate’ inspection — be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government.”

Most written reports contemplated by paragraph (d) of Section 54.02 will contain information that the reporter secures from other persons. The reporter, Talbot, in the instant case, expressly included the source where the information came from. Joyce Talbot testified at the hearing and was cross-examined. Appellant was furnished a copy of the controversial report approximately two months prior to the transfer hearing Appellant had ample opportunity to attack, if he chose, the uncomplimentary information contained in the report. A juvenile court may consider certain hearsay reports at a transfer or dispositional hearing that would not be admissible at an adjudication hearing. See Tyler v. State, 512 S.W.2d 46 (Tex.Civ.App.—Beaumont 1974, no writ) and Matter of A. A. A., 528 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1975, no writ) regarding dispositional hearings. Appellant’s constitutional right of confrontation has not been violated.

In his last point of error, appellant asserts that subparagraphs (2) and (6) of subsection 54.02(f), by their own terms, and by the court’s application thereof, presumed the guilt of appellant, contrary to his constitutionally protected right to a presumption of innocence, and due process right to be presumed innocent of the charge against him. Appellant argues that subparagraph (2) assumes that the juvenile committed the offense, and only permits the court to question whether he committed it “in an aggressive and premeditated manner.” He further points out that if the statute recognized the “presumption of innocence” it would not be necessary to consider “the prospects of adequate protection of the public” and “the likelihood of the rehabilitation of the child” required in subparagraph (6) of subsection 54.02(f).

The presumption of innocence, although not articulated in the United States Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). We think that the “presumption of innocence” principle urged by appellant applies to “adjudication” proceedings, but not to “transfer” proceedings. We find the case of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970), to be persuasive. In that case, the court held that the proof in an adjudication hearing must be “beyond a reasonable doubt.” The court narrowed its opinion to adjudication proceedings where the accused has at stake loss of liberty and stigmatization upon conviction. The court carefully pointed out that the reasonable doubt principle would not apply to hearings prior to an adjudication hearing:

Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child’s social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.

We point out that Section 54.03, the “Adjudication Hearing” section, expressly provides in subsection (f):

The child shall be presumed to be innocent of the charges against him and no finding that a child has engaged in delinquent conduct or conduct indicating a need for supervision may be returned unless the state has proved such beyond a reasonable doubt. In all jury cases the jury will be instructed that the burden is on the state to prove that a child has engaged in delinquent conduct or is in need of supervision beyond a reasonable doubt.

When a court, under Section 54.02, waives its jurisdiction and transfers the juvenile to the appropriate district court for criminal proceedings, it does not determine the guilt or innocence of the juvenile. On transfer of the juvenile, an examining trial shall be conducted by the court to which the case is transferred, and such court may remand the juvenile to the jurisdiction of the juvenile court. If the case is brought before the grand jury, the grand jury may or may not indict the juvenile.

We overrule appellant’s point. The presumption he urges is not applicable to the transfer hearing. See Matter of P. A. C., 562 S.W.2d 913 (Tex.Civ.App.—Amarillo 1978, no writ).

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

      . All statutory references, unless otherwise noted, are to sections in the Texas Family Code.


author: MASSEY, Chief Justice.

text:
    GENERAL MOTORS CORPORATION, Appellant, v. James A. WILLIAMSON et al., Appellees.
    No. 18114.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      Strasburger & Price, and Dale G. Mark-land, Dallas, for appellant.
    Shaffer, Shaffer, Pace & Redwine, and Bert F. Pace, Jr., Denison, for appellees.
   OPINION

MASSEY, Chief Justice.

Venue ease. By our opinion we affirm the trial court’s order overruling plea of privilege of General Motors Corporation, the non-resident defendant.

Plaintiffs James A. Williamson and Voluntary Purchasing Groups, Inc., at all material times employer and employee, filed suit against defendant General Motors Corporation because of personal injuries sustained by Williamson and property damage or loss sustained by Voluntary Purchasing. Other defendants were Kidwell GMC Truck Sales and Kidwell Truck Leasing Company, residents of the county of suit. The appeal at hand is from the trial court’s order overruling the plea of privilege of General Motors Corporation.

Reference to Williamson includes all plaintiffs.

The issue is whether Williamson discharged his burden of proof to sustain venue in the county of suit. As the case developed we are concerned with V.A.T.S. Art. 1995, “Venue”, and subdivision or exception 4, “Defendants in different counties”, which provides “[i]f two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. . . . ”

Williamson also relied upon subdivision or exception 29a “Two or more defendants”, but 29a does not apply. It would apply only when no defendant resides in the county of suit and in this instance we have defendants who were residents. 1 McDonald, Texas Civil Practice, (1965 Rev.), p. 432, “Venue, § 4.10.1, “Art 1995(4). One Defendant Resident in County of Suit. (I) Art 1995(29a) Distinguished.”

Williamson’s action is stated by the briefs to be upon the implied warranty of fitness and suitability of a certain “1970 Model GMC Astro 95 Diesel Truck Tractor, Serial No. DH9692A134219” sold and delivered by Kidwell GMC Truck Sales to Williamson’s employer. Alleged in the petition was delivery to the Kidwell Company by General Motors. Approximately three months after such delivery Williamson was driving the truck in South Carolina when the “Pitman arm” came off the connection at the lower end of the steering column because of the loss of the bolt which holds such arm in place. Function of the “Pit-man arm” is to work the mechanism by which the wheels are turned to right or left. As direct result there was no control of the steering by Williamson; the truck went off the road on which it was driven, and jumped onto the service road, ending up in an earthen bank on the opposite side of the service road.

The nature of the cause of action of Williamson is conformable “to the rule of strict liability expressed in Section 402A of The American Law Institute’s Restatement of the Law of Torts (2d Ed.) as applicable to all persons engaged in the business of selling who sell a product in a defective condition which renders it unreasonably dangerous to a user or consumer or to his property”, pursuant to Texas’ acceptance of the rule in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), quoted in Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546, 548 (Tex.1969). The rule is stated thusly:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Our consideration of the rule in the instant venue case has application to the liability of the resident defendant, Kidwell GMC Truck Sales. By proof of the cause of action against the Kidwell Company under the rule, if liability thereunder truly declared upon by Williamson’s pleadings, Williamson would have shown his entitlement to maintain his suit against General Motors under exception 4 to Art. 1995, “Defendants in different counties”.

There is no doubt that Williamson’s proof established that Kidwell GMC Truck Sales was resident in the county of the suit, and his pleadings satisfied the requirement that by them there was allegation that General Motors supplied the truck in question to the Kidwell Company for resale to Williamson’s employer. Therefore, if Williamson’s evidence established that cause of action alleged against the resident defendant for the loss and damages occasioned by disconnection of the “Pitman arm”, venue was properly retained in the county of suit. If this has been done Williamson will have satisfied the requirements of exception 4 of the venue statute by factually proving one defendant resides in county of suit; factually proving that he has a bona fide claim against such resident defendant; and proving, by reference to his petition, that he has alleged facts to show that General Motors, as the non-resident defendant, is — under the theory of his suit — at least a proper party defendant along with a resident defendant.

The negligence of the resident defendant, the Kidwell Company, was in the delivery of the truck, with an improperly or insufficiently attached “Pitman arm” in the county of suit. The truck was one which was brand-new when delivered. The damages and injuries resulted from its use about three months later. The evidence sufficed to justify the conclusion deemed to have been made by the trial court, as trier of the facts, that nothing had occurred between the time of the delivery of the truck and the time the “Pitman arm” became disconnected; and that a producing cause of such disconnection was the defect in the truck in that there had been improper or insufficient attachment of the “Pitman arm” at the time it was delivered to Williamson.

In the Restatement, under Sec. 402A, is sub-section “m”, “Warranty”, wherein the following appears:

“The liability stated in this Section does not rest upon negligence. It is strict ¾ability, similar in its nature to that covered by Chapters 20 and 21. The basis of liability is purely one of tort.
“A number of courts, seeking a theoretical basis for the liability, have resorted to a ‘warranty,’ either running with the goods sold, by analogy to covenants running with the land, or made directly to the consumer without contract. .
There is nothing in this Section which would prevent any court from treating the rule stated as a matter of ‘warranty’ to the user or consumer. . . . ”

Additional language, following that quoted, is to the effect that the rule is not governed by the provisions of the Uniform Sales Act or the Uniform Commercial Code, as to Warranties. Further, that the term “warranty” must be given a new and different meaning if it is used in connection with the Section. Concluding, it is stated that “[i]t is much simpler to regard the liability here stated as merely one of strict liability in tort”.

We hold that where, in a plea of privilege case, there is necessity that there must be satisfaction of a requirement that a cause of action by a consumer or user be proved against the resident defendant on either a theory of negligence or breach of the implied warranty of fitness and suitability of an article purchased, there is satisfaction of the requirement by proof that the resident defendant seller sold the product in a defective condition which was unreasonably dangerous to the user or consumer, or to his property, plus proof that the defective condition in which it was sold was a producing cause of the event giving rise to the injuries and/or damage because of which suit was brought.

Further, we hold that the requirement that the cause of action proved by the resident defendant be that plead in plaintiffs’ petition is satisfied, whether the same speaks in terms of breach of warranty or in terms of liability by reason of delivery of the product in the defective condition, if it alleges that such delivery amounted to either a producing or proximate cause of the event from which injuries and damages resulted. In the instant case we hold pleadings to be satisfactory and sufficient on either or both of Williamson’s theories of right to recover, under warranty or under a theory of tort.

On the foregoing see the venue case of O. M. Franklin Serum Company v. C. A. Hoover & Son, 410 S.W.2d 272 (Tex.Civ.App.—Amarillo (1966), error refused by the Supreme Court, with opinion at 418 S.W.2d 482 (1967)). There the cause of action was founded entirely on a breach of warranty.

There is a contention by General Motors that Williamson’s controverting affidavit was waived because of delay in having General Motors’ plea of privilege heard. As of the time of the hearing there was no pleading by General Motors which raised the contention. It was vigorously argued upon the hearing. We deem the plea of privilege hearing not to have been the proper place in which there should be a determination of whether Williamson was entitled to proceed. What was to be properly determined at that hearing was the situs of proper forum to hear and determine the dispute of the parties. Furthermore, in view of the absence of pleading or motion by General Motors asserting some right by reason of Williamson’s delay, there would have been no occasion for Williamson to have introduced any evidence in explanation or justification for the delay. In absence of prayer by some pleading, assuming the forum a proper one, it is to be presumed that Williamson could have shown justification for delay, for example: that any period of limitation or laches was tolled, etc.

We have written upon exception 29a to the venue statute, and held that it does not apply. Point of error thereupon founded is overruled as immaterial and without effect to require reversal of the order sustaining venue. The remainder of the points of error have been reviewed and, whether or not discussed, each of them is overruled as without merit.

The order overruling plea of privilege is affirmed.


text:
    Weaver W. WISDOM, Appellant, v. Marchitta B. WISDOM, Appellee.
    No. 18095.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      L. A. Nelson, Denton, for appellant.
    Coleman, Philips, White & Davidge and Miller Davidge, Denton, for appellee.
   OPINION

MASSEY, Chief Justice.

Divorce of the parties to the appeal was granted. The husband appealed from the property division. Errors advanced by his points were: (1) abuse of discretion in property division; (2) finding community estate entitled to reimbursement from husband’s separate estate the amount of $54,000.00; and (3) the grant to the wife of a money judgment of $35,000.00 against husband under circumstances by reason of which its enforcement will divest husband of separate realty owned prior to his marriage.

We affirm.

Points (1) and (2) are readily disposed by memorandum.

Upon the first of these, comment might be that the court was at liberty to treat the wife’s addiction to alcohol as an illness/weakness and as a circumstance demonstrating a comparably greater financial need to follow divorce; and that the wife’s want of marketable skills due to departure for most of the period of coverture demonstrated a greater need for an increased share in property division upon divorce. Therefore, the trial court had justification for granting the wife a larger share, in proportion, of the divisible property.

Upon the second of these, we find that the evidence justified the conclusion that during the parties’ marriage the principal indebtedness of the husband, consisting of a lien upon his personal real estate, was benefited by reduction through application of funds from the community income in reasonable amount of $54,000.00, with corresponding reduction in the amount of the lien. Therefore that amount of contribution was properly treated as community and as a credit in arriving at the value of the parties’ community estate.

Point (3) presents a greater difficulty. By the evidence is shown that if and in the event, upon finality of the judgment, the wife should immediately seek levy of execution in satisfaction it necessarily would be upon the separate estate, in part at least upon the separate realty, of the husband as then existent. The husband contends that under the circumstances, the apportionment otherwise made upon the divorce creating the condition, there would be unlawful and unconstitutional invasion of his personal estate in his separate realty. Husband says that the court, having no authority to award any part of such separate realty as a part of property division in the judgment, would nevertheless accomplish that improper objective through the devise of granting the personal judgment. Husband’s theory is that the court should not be permitted to do indirectly that which could not be done directly, to-wit: to invade the separate estate and award it as a property division pursuant to divorce. He cites Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ history), and Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977).

We reject the husband’s contention. The question is upon the authority of the trial court. We find nothing in the law pursuant to the division of property upon divorce which constitutes an impediment to the grant of a personal judgment of one of the parties against the other where by the apportionment of the existing property possible to be divided one of the parties should pay the other a sum in money to accomplish the division deemed equitable under all the circumstances. In such a case a personal judgment, judgment in personam, is entirely proper. In the entry of such a judgment the court is not necessarily concerned with the question of whether the party against whom it is rendered does or does not have property subject to execution at the time which would be sufficient to satisfy it. From a legal standpoint when a court renders judgment in personam it is not concerned with the question of whether there will be a satisfaction upon the levy of a writ of execution.

A judgment in personam, though it be rendered as part of a divorce decree which apportions property (or property rights) does not change the separate property of the defendant in judgment into separate property of the plaintiff in judgment. To change ownership of the property is prohibited by the law and would be error. However, rendition of a personal judgment is not likewise prohibited.

In this case all the separate property of the husband owned at time the parties married continued to be his separate property after the divorce; along with such of that which had been community antecedent to divorce but was converted into his separate property by the divorce decree. We confine consideration to that which had been the husband’s separate property at time of the marriage. That property, unless it is exempt, as in the case of homestead property, etc., at all times stood and existed as property upon which there might be a levy of execution in the event there be a personal judgment against the owner. In this case no lien of any kind was fixed upon that property by the provisions of the divorce decree, and no lien became imposed by entry of the judgment. It would be upon the abstract of.the judgment upon the records of the county clerk, with the same property indexed, that it would become property upon which there was a judgment hen. (Of course, the property could come into the constructive possession of the sheriff pursuant to levy of execution.)

The trial court’s consideration of $54,-000.00 as the wife’s part of the “community contribution” to the husband’s separate estate with credit consideration accorded in the property division was not error. Neither was there any error in the grant to the wife of the j'udgment in personam for $35,-000.00. Further, the property division, including rendition of the in personam j'udgment, was not error as charged; i. e., the division was not so manifestly wrong, unjust, unfair and inequitable to the husband as to constitute an abuse of the discretion vested in the trial court.

Judgment is affirmed.


author: NYE, Chief Justice.

text:
    In the Matter of B. R. D., Appellant, v. The STATE of Texas, Appellee.
    No. 1413.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      Frank M. Garza, Garza & Medina, Corpus Christi, for appellant.
    Michael J. Westergren, County Atty., Richard W. Rogers, III, Asst. County Atty., Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

On June 6, 1978, an Assistant County Attorney of Nueces County filed a petition in the juvenile court alleging that appellant B. R. D. was a child who had committed murder in violation of Section 19.02 of the Texas Penal Code Ann. (1974). The State contended that the juvenile court should waive its jurisdiction and transfer the case to a criminal district court for criminal proceedings pursuant to the authority of Section 54.02 of the Texas Family Code Ann. (1975). On June 23, 1978, the court held a hearing to determine whether or not it should waive its jurisdiction and transfer the case. At the conclusion of this hearing, the court entered an order waiving its jurisdiction and transferring the case to the 105th District Court of Nueces County, Texas, for adult criminal proceedings. B. R. D. appeals from this transfer order.

Section 54.02 of the Texas Family Code governs the juvenile court’s waiver of jurisdiction hearing and sets forth certain matters the juvenile court must consider in deciding whether to waive its jurisdiction and transfer the child to a criminal court for prosecution purposes. This section provides, in relevant part, as follows:

“(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(1) whether the alleged offense was against person or property, with great weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.”

In accordance with these guidelines, the juvenile court heard testimony of five witnesses and received into evidence five reports.

Two police officers testified in detail concerning the events surrounding the murder and the subsequent apprehension of appellant who was found driving the murder victim’s automobile at the time he was apprehended. Sergeant D. R. Perkins, an officer of the Port Aransas police department, testified that he found an elderly woman dead inside the lounge that she owned and managed in Port Aransas, Texas. Sergeant Perkins testified in detail to facts which led to appellant’s arrest. The Chief of Police, D. Wayne Matthews, testified that twelve to fifteen statements had been taken from various people who had been in or around the decedent’s bar on the day in question. Two of these statements were admitted into evidence as State’s exhibits 4 and 5.

Gordon R. Dickson, Assistant District Attorney of Nueces County, Texas, testified that he was familiar with the grand jury system and that he had reviewed the police file and the statements which had been taken from witnesses in this case. It was his opinion that on the basis of these statements, it would be likely that the grand jury would indict the appellant for the offense with which he was charged.

Cliff Rowland, a Nueces County juvenile probation official, testified concerning the social and family background of the child. A copy of his report also was introduced into evidence. It was Rowland’s recommendation that the juvenile court transfer the child to a district court for criminal proceedings. The juvenile court received into evidence two psychiatric examination reports, one of which had been prepared at the State’s request, and one at the Appellant’s request. These reports indicated Appellant could stand trial as an adult. Based on all of the evidence, the juvenile court entered an order waiving its jurisdiction.

The appellant brings forward points of error on appeal which complain in essence that the juvenile court: 1) lacked jurisdiction, 2) erred in admitting and considering certain evidence, and 3) erred by failing to enter a specific order. We will first consider the jurisdictional question.

In point of error number one, the appellant contends that the juvenile court did not have jurisdiction to proceed with the transfer hearing because the State failed to issue and serve summons on appellant’s parents as required by Section 54.-02(b) after the State amended its original petition requesting transfer of the cause. We do not agree.

The original transfer petition, with attached summons, was served on the appellant on June 7, 1978, on appellant’s mother on June 7, 1978, and on appellant’s father on June 16, 1978. This summons specified that the transfer hearing was to be held June 16, 1978. Appellant’s attorney, however, moved to continue the hearing from June 16 until June 23,1978. Thereafter, on June 20, 1978, the State filed an amended transfer petition which was identical to the original transfer petition with the exception that the amended transfer petition corrected the spelling of appellant’s surname. The appellant and his attorney received a copy of the amended transfer petition. Although appellant’s parents did not receive a copy of the amended transfer petition, both his mother and father appeared for the June 23 hearing.

Prior to the commencement of the hearing, appellant’s attorney contested the juvenile court’s jurisdiction on the ground that appellant’s parents had not been served with the State’s amended transfer petition. The State, on the other hand, argued: 1) that the original summons served on the parents was sufficient and 2) that since the parents had voluntarily appeared at the hearing, the juvenile court had jurisdiction to proceed. The juvenile court overruled appellant’s motion.

Appellant refers us to Section 53.06 of the Texas Family Code Ann. (1975) which provides, in relevant part, as follows:

“(a) The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition;
(2) the child’s parent, guardian, or custodian;
(3) the child’s guardian ad litem; and
(4) any other person who appears to the court to be a proper or necessary party to the proceeding.
(b) The summons must require the persons served to appear before the court at the time set to answer the allegations of the petition. A copy of the petition must accompany the summons.
* * ⅜ * * *
(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.”

Appellant apparently contends that, in order to comply with Section 53.06(b), the State should have attached a copy of its amended petition to a second summons requiring appellant and his parents to appear for the hearing on June 23, 1978, the date set in accordance with appellant’s motion for continuance. See § 54.02(b), § 53.07(a). Appellant admitted during oral argument that neither the Texas Family Code provisions nor the Texas Rules of Civil Procedure require such a procedure. Appellant contends, however, that any amended petition should be treated as an original petition for service of process purposes on the basis that the amended petition could have operated as a surprise to his parents.

Appellant relies principally upon the United States Supreme Court case of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), to support his contention that the juvenile court lacked jurisdiction to proceed with the transfer hearing. The appellant is correct in stating that due process of law requires notice which would be deemed constitutionally adequate in a civil or criminal proceeding. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Carrillo v. State, 480 S.W.2d 612 (Tex.Sup. 1972); Villarreal v. State, 495 S.W.2d 28, 29 (Tex.Civ.App.—Corpus Christi 1973, no writ). In Gault, the Supreme Court stated:

“Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ... It [due process] does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.” In Re Gault, 387 U.S. at 33-34, 87 S.Ct. at 1446.

Our Texas Supreme Court has expressly held that the Gault due process standards of adequate and timely notice are applicable in amended pleading situations such as the one before us. See Carrillo v. State, 480 S.W.2d 612 (Tex.Sup. 1972). In Carrillo, the Texas Supreme Court reversed a juvenile court’s order adjudicating a child as a delinquent because the State’s amended petition included material changes (a different owner of the property in question, a separate offense, and the taking of different property).

Here, the case was continued at the request of appellant’s counsel. There is no contention that appellant’s parents did not receive notice of the new setting date, nor is there a contention that they did not receive adequate notice of the issues to be decided by the juvenile court in the transfer hearing or that they were surprised in any manner. This case is materially different from the Gault and Carrillo cases mentioned above.

The issue of waiver of summons is not present here because the original summons accompanied by the original petition was sufficient to confer jurisdiction. Although it would have been a simple matter for the State to furnish appellant’s parents with a copy of the amended petition, we hold that the due process rights of neither the appellant nor his parents were violated by the State’s failure to do so. The juvenile court had jurisdiction to proceed with the transfer hearing. Appellant’s point of error number one is overruled.

In point of error three, appellant contends that the juvenile court erred in overruling appellant’s objection to the admission into evidence of State’s exhibits 4 and 5, which were written statements made by individuals not present at the transfer hearing, because this evidence constituted hearsay and denied appellant his sixth amendment right to confrontation of witnesses.

State’s exhibits 4 and 5 were two of about twelve to fifteen written statements police officers had obtained during the course of their investigation from various witnesses who had been in or around the decedent’s bar or who had some relevant contact with the appellant on the day in question. These exhibits were admitted into evidence through the testimony of Police Chief D. Wayne Matthews.

Hearsay has been defined as “testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value on the credibility of the out-of-court asserter.” McCormick on Evidence § 246 at 284 (1972). The State expressly offered these written statements into evidence solely for the limited purpose of showing that the statements were made and not to prove the truth of the matter asserted therein. Written evidence of an out-of-court statement is not hearsay unless it is offered as proof of the fact asserted therein. Irving Lumber Co. v. Alltex Mortgage Co., 446 S.W.2d 64, 71 (Tex.Civ.App.—Dallas 1969), affirmed, 468 S.W.2d 341 (Tex.Sup. 1971); In Re Honsaker, 539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

The purpose of the transfer proceeding pursuant to Section 54.02 (see Section f, 1 through 6 above) is to determine whether the best interests of the child and of society would be served better by maintaining the child under juvenile court jurisdiction or by transferring him to a criminal district court for adult proceedings. It is not to determine the guilt or innocence of the child. The burden is upon the prosecuting attorney in such a case to present evidence which will allow the juvenile court to exercise its sound discretion in deciding whether or not to make the transfer. In Re Honsaker, 539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). In making this determination, the juvenile court is required by Section 54.02(f)(3) to consider, for instance, whether there is evidence upon which a grand jury may be expected to return an indictment against the child for the offense he allegedly committed. State’s exhibits 4 and 5 and the testimony of Gordon Dickson, an assistant district attorney for Nueces County, were introduced pursuant to this section. We have carefully examined the record herein and, as used by the State in this case, exhibits 4 and 5 were properly admitted into evidence by the trial court. See In Re Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). Appellant’s point of error number three is overruled.

In point of error two, appellant complains that the juvenile court erred in overruling appellant’s objection to the testimony of Cliff Rowland, a Nueces County juvenile probation official. Rowland’s testimony concerning appellant’s prior juvenile record was based upon a case history report prepared by a Calhoun County intake counsel- or. Appellant contends this evidence constituted hearsay and denied appellant his sixth amendment right to confrontation of witnesses.

Prior to the transfer hearing, the juvenile court ordered Cliff Rowland to prepare an evaluation report on the appellant which was to contain “a social evaluation . full investigation of the child, his circumstances, and the circumstances of the alleged offense.” At the transfer hearing, Mr. Rowland’s report was admitted into evidence. In addition to general personal data concerning the appellant, the report contained seven sections. Section one detailed the circumstances surrounding the alleged murder, including summaries of the police investigation and the apprehension of appellant. Section two detailed appellant’s prior juvenile history and included a list of several referrals of the juvenile that had been made to the Calhoun County Probation Department between the period of September 15, 1975, and April 10, 1978. Section two of Rowland’s report also contained references to appellant’s prior, unsatisfactory attendance in vocational training assignments with the Treasure Lake Job Corps Facility in Indiahoma, Oklahoma.

At the hearing, the juvenile court, over appellant’s objections, permitted Mr. Rowland to testify concerning appellant’s prior Calhoun County juvenile record. The substance of this testimony was contained in Rowland’s report. Mr. Rowland admitted during cross-examination that he had no personal knowledge of appellant’s prior juvenile record. He further admitted that he did not personally know whether appellant was actually adjudicated a delinquent on any of the above charges. He could only testify that he knew the appellant was adjudicated a delinquent for one of the offenses contained in his report because he had observed this information in appellant’s file. The State contends that Rowland’s testimony concerning appellant’s prior juvenile record was properly admitted into evidence by the juvenile court because this evidence was contained in a social study which was required by Sections 54.02(d) and (e)-

The admissibility of investigative reports pursuant to Section 54.02(d) has been upheld by this Court and other appellate courts in the face of the contention that such reports contain hearsay information. See In Re P. B. C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso 1976, no writ); Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). The report ordered by the juvenile court was mandatory under the express provisions of Section 54.02(d) of our Texas Family Code. As this Court previously stated in Hughes v. State, 508 S.W.2d 167, 171 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.), concerning the identical statute (article 2338-1, § 6(d)) in its former enactment:

“The juvenile court was duty bound to read and consider the reports which were made and to give such weight to the statements of fact therein contained that were not shown to be based on incompetent evidence.” (Emphasis added.)

Technically, Rowland’s testimony, standing alone, might be considered hearsay evidence. Similar evidence has been considered by other courts in juvenile matters relative to the social evaluation reports of juveniles. See R. K. A. v. State, 553 S.W.2d 781 (Tex.Civ.App.—Fort Worth, no writ); In Re P. B. C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso, no writ); In Re A. A. A., 528 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1975, no writ). However, it is unnecessary for us to decide this precise question here because the trial court’s judgment can be supported on another independent ground.

Pursuant to Section 54.02(a) a juvenile court may, in its discretion, waive its exelu-sive original jurisdiction and transfer a child to a district court for criminal proceedings if:

“(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning the offense; and
(3) after a full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.” (Emphasis added).

In this case, after a full hearing, the juvenile court concluded that the seriousness of the offense and the background of the child require criminal proceedings for the welfare of the community.

The disputed testimony concerns the third requirement in Section 54.02(a) listed above. The juvenile court’s finding relevant to appellant’s background is: “(B. R. D.’s) previous history includes being found to have engaged in delinquent conduct for another felony offense.” Even if we were to disregard this finding (that appellant engaged in a previous felony) and its conclusion (that because of the background of the child, criminal proceedings are warranted), there remains the juvenile court’s further finding that the seriousness of the offense for which appellant is charged warrants criminal prosecution in order to protect the welfare of the community.

We hold that this remaining conclusion is supported by ample findings and competent evidence and is sufficient to permit the juvenile court, in its discretion, to waive its jurisdiction and to transfer appellant to a district court for criminal prosecution. Under the record of this case, the error, if any, in admitting the testimony of Rowland is harmless since the juvenile court’s judgment can be supported on another independent ground. See Yancey v. Olvera, 518 S.W.2d 935, 941 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.); Pope v. American National Ins. Co., 443 S.W.2d 377, 381 (Tex.Civ.App.—Tyler 1969, writ ref’d n. r. e.). No abuse of discretion has been shown here. Appellant’s point of error two is overruled.

In point of error four, appellant contends that the juvenile court’s written transfer order fails to comply with Section 54.02(h). This section, in relevant part, provides as follows:

“If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court . . . .”

Appellant contends that the juvenile court’s order is improper because the order merely recited that its findings were also its reasons for waiver of jurisdiction, and thus, the juvenile court circumvented the requirement that it specifically state the reasons for its waiver, citing In Re J. R. C., 522 S.W.2d 579 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.). This case is factually distinguishable. Other court orders, similar to the one in question, have been upheld against the same contention appellant advances here. See In Re Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); In Re P. B. C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso 1976, no writ); In Re D. L. C., 533 S.W.2d 157 (Tex.Civ.App.—Austin 1976, no writ); and see Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

In points of error five through eight, the appellant complains that the trial court improperly introduced evidence and improperly considered certain other testimony and exhibits. We have carefully considered the entire record in light of these points of error and hold that there is ample evidence of probative force to support the juvenile court’s transfer order. None of appellant’s points present error or show an abuse of discretion that resulted in an erroneous judgment.

The judgment of the juvenile court is AFFIRMED.

      . The report indicates that appellant was within the jurisdiction of the Calhoun County juvenile department until May 15, 1978, when he moved to Port Aransas, Texas, to live with his mother’s aunt. At that time, the Calhoun County Probation Department requested the Nueces County juvenile department to provide “courtesy supervision” over appellant.

      . These sections provide as follows:
      “(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic-study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
      (e) At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. . . . ”

      .“The Court, after full investigation and hearing and specific consideration of all the matters set out in Article 54.02, Section (f)(1) through (6) of the Texas Family Code, is of the opinion and finds that:
      1. [B. R. D.] was born on September 19, 1961, and was 16 years of age at the time the acts upon which the Transfer Motion is founded are alleged to have occurred, and is 16 years old at the time of the hearing.
      2. No adjudication hearing has been conducted concerning the offense set out in the State’s Transfer Motion, to-wit: the murder of Gladys Fowler.
      3. The parents of [B. R. D.] are [B. D.] and [S. G.].
      4. [B. R. D.] is alleged to have violated a penal law of the grade of felony, to-wit: the offense of murder.
      5. The said offense is against the person and was committed in an aggressive manner.
      6. The police officer testimony demonstrated evidence on which a grand jury may be expected to return an indictment against [B. R. D.].
      7. [B. R. DJ is of sufficient sophistication and maturity to be tried as an adult, and is of sufficient sophistication and maturity to aid an attorney in his defense.
      8. [B. R. D.]’s previous history includes being found to have engaged in delinquent conduct for another felony offense.
      9. The public will not be adequately protected by the use of the procedures, services, and facilities available to the juvenile court, and it is unlikely that the juvenile will be adequately rehabilitated by the use of such procedures, services, and facilities.
      The above findings and opinions are reasons for the Court’s waiver of jurisdiction, and the Court’s conclusion and judgment that [B. R. D.] is alleged to have violated a penal law of the grade of felony; that [B. R. D.] was 16 years old at the time he is alleged to have committed the offense; that no adjudication hearing has been conducted concerning such offense; and that the seriousness of the offense and the background of the child requires (sic) criminal proceedings for the welfare of the community.
      Therefore, by reason of the foregoing, I, Judge George Hamilton, Judge of the Juvenile Court of Nueces County, Texas, hereby waive jurisdiction and transfer [B. R. D.] to the appropriate District Court of Nueces County, Texas, for proper criminal proceedings and do hereby certify said action.”


author: RALEIGH BROWN, Justice.

text:
    GENERAL INSURANCE CO. OF AMERICA, Appellant, v. William C. HALLMARK et ux., Appellees.
    No. 5197.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.
    Jack E. Harris and James E. Lobert, Harris, Harris & Lobert, Arlington, for appellant.
    Jack Gay, Law office of Jack Gay, Dallas, for appellees.
   RALEIGH BROWN, Justice.

William C. Hallmark and wife, Jimmie Lee Hallmark, sued General Insurance Company of America on a Texas Standard Homeowner’s policy of insurance for loss sustained by them as a result of a water leak in the foundation of their home. Based on the jury’s verdict, the Hallmark’s recovered judgment in the amount of $8,716. General Insurance appeals. We reverse and render.

The primary thrust of General’s defense in the trial court, and its appeal before this court, is that the damage to Hallmark’s dwelling was excluded from coverage by policy exclusion d(3), the underground water exclusion, and policy exclusion k, the cracking, bulging and expansion of foundation and walls exclusion.

The provisions of the policy material to the issues in the case are:

PROPERTY INSURED
COVERAGE A — DWELLING, as described on Page 1 of this policy, while occupied by the Insured principally for dwelling purposes.
PERILS INSURED AGAINST
Property as described and limited under Coverage A is insured against:
ALL RISKS OF PHYSICAL LOSS except as otherwise excluded.
EXCLUSIONS (Applicable to Property Insured under Coverages A and B and Perils Insured Against) — This insurance does not cover:
d. Loss caused by or resulting from:
(3) water below the surface of the ground including that which exerts pressure on (or flows, seeps or leaks through) sidewalks, driveways, swimming pools, foundations, walls, basement or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors;
k. Loss under Coverage A caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools.
The foregoing Exclusions a through k shall not apply to ensuing loss caused by fire, smoke or explosion and Exclusions i, j and k shall not apply to ensuing loss caused by collapse of building, or any part thereof, water damage or breakage of glass which constitutes a part of the building, provided such losses would otherwise be covered under this policy.

The jury found among other issues: (1) an accidental leak occurred in the plumbing of Hallmark’s dwelling; (3) the damage to the insured’s dwelling was not caused by cracking, bulging, or expansion of foundations, walls, or floors (Exclusion k); (4) the damages to the insured’s dwelling were the result of the accidental leak; (5) the damages to the insured’s dwelling were not caused by surface water; and (6) the damages to the insured’s dwelling were not caused by water below the surface of the ground including that which exerts pressure on the foundation and walls (Exclusion d(3)).

General urges that the court erred in not sustaining its motion for judgment non ob-stante veredicto because the evidence established, as a matter of law that the loss was excluded by exclusion k. We agree.

The dwelling was built in 1967. Hallmark first noticed damage to his house in the spring of 1975. He found interior damage in the form of doors that would not close, as well as cracks in the walls, particularly around doors and entry ways. He also found cracks in the exterior brick veneer walls as well as cracks in the foundation. Martin Prager, an engineer, found interior damage in the form of doors that would not close and cracks in the walls as well as damage to the floors and foundation. Jackie Kirkpatrick, a mechanical engineer, found cracks in the interior walls and the foundation.

Hallmark testified that the damage to the dwelling was caused by the cracking of the foundation. Prager testified the damage was caused by the movement of the foundation. Kirkpatrick concurred and testified that a majority of the damage was caused by the movement of the foundation.

Hallmark attributed the movement of the foundation to leaks in the copper pipes under the cement slab and sand of his dwelling. He testified that the leaks caused water pressure to build up under the slab which finally became great enough to lift the slab and crack it. Prager testified that after water pressure builds up it has a tendency to raise the concrete slab. He considers upheaval to be the same as bulging. Kirkpatrick contended the slab foundation of Hallmark’s house bulged because the clay soil expanded when it was exposed to the water from leaking pipes, thereby pushing up the foundation.

Such testimony conclusively established that Hallmark’s damages to his house were caused by “settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floor . . . .”

The court in Bentley v. National Standard Insurance Co., 507 S.W.2d 652 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.), considering the applicability of exclusion k where the plaintiff contended and introduced evidence that his loss was caused by drought, said:

The fact that the settling of the foundation and the cracking of the walls, ceilings and roof were brought about or in turn caused by drought is immaterial. The language of exclusion “K” does not limit the “settling” and “cracking” to certain causes. In fact, the “settling” and “cracking”, in order to be excluded perils, are not limited to any cause, from the language used in this exclusion. .

The fact that the settling of the foundation and the cracking of the walls and foundation were brought about by a water leak is immaterial. Lambros v. Standard Fire Insurance Company, 530 S.W.2d 138 (Tex.Civ.App.—San Antonio 1975, writ ref’d).

We conclude the loss claimed by Hallmark was specifically excluded by the terms of the insurance policy. The trial court erred in failing to grant General’s motion for judgment non obstante veredic-to. This holding makes it unnecessary to consider General’s other points of error.

The judgment of the trial court is reversed and judgment rendered that William C. Hallmark and wife, Jimmie Lee Hallmark, take nothing.