text:
    ARANSAS COUNTY, Appellant, v. Alvin C. REIF, Jr., Appellee.
    No. 1014.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.

      David B. Connery, Jr., Rockport, for appellant.
    Marshall Boykin, III, Wood, Boykin & Wolter, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for a declaratory judgment and injunctive relief, which was filed by Alvin C. Reif, Jr. against Aransas County, Joe Conlin and South Coast Development Corporation. Plaintiff, among other allegations, alleged, in substance: that he is the owner of approximately 160 acres of land in Aransas County, Texas; that except for a portion thereof which borders the shore line of St. Charles Bay, the tract had been continuously enclosed by a good and sufficient fence for more than 20 years prior to the date that he filed suit; that within the fenced portion of the 160-acre tract is situated a parcel of land “sometimes shown on plats of Lamar Townsite as a portion of Eighth Street”; that the portion of the street which traversed his land “has never in fact been opened or used” as a street or public road; that any easement or right by the public to use that portion of his land shown as “Eighth Street” on the Lamar Townsite Plat was abandoned under the provisions of Article 6703a, Texas Revised Civil Statutes; that in September, 1973, the defendant Joe Conlin, claiming to act for himself and for South Coast Development Corporation, unlawfully entered the tract “and proceeded, along that land within plaintiff’s fences shown as ‘Eighth Street’ on the plat of Lamar Townsite”; and that all of the defendants, “Aransas County included”, were “asserting” the right to use that portion of the property within his fences shown as “Eighth Street” on the plat of Lamar Townsite as a public road right of way.

All defendants filed general denials in answer to plaintiff’s original petition. No affirmative defenses were pled by any defendant. In addition, the defendants Joe Conlin and South Coast Development Corporation filed cross-actions against Aransas County.

The case was tried before the court without a jury. At the close of evidence, the trial court rendered a judgment which declared that none of the defendants had a right to the use or possession of that portion of the street called “Eighth Street” on the map of Lamar Townsite situated on plaintiff’s land; ordered that plaintiff recover $100.00 as damages from Joe Conlin; decreed that the cross-plaintiffs take nothing by their cross-action against Aransas County; and enjoined the defendants from entering upon plaintiff’s land under claim of right to use “Eighth Street” as a street or right-of-way. Joe Conlin and South Coast Development Corporation did not appeal from the judgment. Aransas County has duly perfected an appeal to this Court, and will be referred to as “the County”. Alvin C. Reif, Jr. will be referred to as “plaintiff”.

The trial court made and filed findings of fact and conclusions of law. Included therein are findings that plaintiff and his predecessors in title have been in continuous possession of the 160 acre tract for more than 34 years, and during that time had all of the land here involved under fence; that the tract is shown as part of the acreage platted as part of the “Lamar Townsite”; that on the maps of Lamar Townsite is an area designated as “Eighth Street”, the eastern portion of which is within those lands continuously under the fence of plaintiff; that the portion of “Eighth Street” under such fence had never been used as a street prior to entry thereon by Joe Conlin; that none of the maps contain “words” purporting to dedicate any streets to public use; and that if said “streets” were dedicated, the use of that portion of “Eighth Street” lying within plaintiff’s fences was so infrequent as to be abandoned under “Article 6703a, R.C.S. of Texas”. The trial court concluded that the portions of “Eighth Street” here involved had never been dedicated as a pubSfe road or right-of-way, or acquired by the public for such use; that even if dedicated or acquired by the public for public use, any easement or right “which Aransas County, or the public, had to use that portion of ‘Eighth Street’ enclosed by plaintiff’s fences terminated by reason of the continuous enclosure thereof by plaintiff for more than 20 years”; and that plaintiff is entitled to declaratory relief that none of the defendants “have the right to use and possession of that street or right-of-way called ‘Eighth Street’ insofar as same is situated within plaintiff’s fences”.

The County contends, in its first and second points, that the trial court erred in finding that there had been no dedication of the portion of “Eighth Street” lying within plaintiff’s enclosure as a public road, and in holding that neither it nor the public had any right to use that portion of Eighth Street for public road purposes.

In evidence is a plat of plaintiff’s land made in March, 1958, by James A. Jarboe, County Surveyor of Aransas County, and a map of the Lamar Townsite, prepared by Jarboe in April, 1960, which shows on its face that it was “prepared from records in county surveyor’s office based on maps copied from original Jones Map”. The plat and the map each show a strip of land, designated “Eighth Street”, part of which extends across plaintiff’s land.

Plaintiff’s immediate predecessor in title, Alvin Reif and wife, Teresa Reif, acquired the 160 acre tract by deed in 1936. The land was devised to plaintiff by Teresa Reif in 1970, when her will was admitted to probate. The tract has been under fence continuously since 1939. All of the Lamar Townsite maps show that “Eighth Street” begins at a point several thousand feet west of the west boundary of plaintiff’s 160 acre tract and extends east to St. Charles Bay. That portion of “Eighth Street” to the west of plaintiff’s land has been used by the public for many years as a public roadway, but that portion thereof which traverses plaintiff’s land has never been used by the public for any purpose, roadway or otherwise.

There is no evidence that any attempt was made to open that part of “Eighth Street” lying within plaintiff’s fenced enclosure until about September 27, 1973. On August 13, 1973, Joe Conlin appeared before the Commissioners’ Court of Aransas County for the purpose of opening that portion of “Eighth Street” situated on plaintiff’s land. He offered to clear the strip free of charge in order to allow Municipal Utility District # 1, created by Conlin, to serve the Goose Island Lake Subdivision (which he was developing) with a pipeline to St. Charles Bay to dump the treated effluent of Municipal Water District # 1 into the Bay. On September 10, 1973, the Commissioners’ Court gave Conlin permission to open that part of “Eighth Street” lying east of plaintiff’s fence. On or about September 27, 1973, Conlin cut plaintiff’s west fence, and commenced the clearing of a 30' strip across the land. This suit was filed shortly thereafter.

It is well settled that irrespective of how the dedication is made, in order to constitute a valid dedication, it is essential that the owner of the land should intend to devote the land in question to the use and benefit of the public, which intention must be clearly manifested. Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957 (1952). A dedication of private property to a public use is never presumed, but must be established by a declaration or act which evinces a clear and unequivocal intention on the part of the owner to presently set aside and appropriate a certain part of his land for use by the public. Lovett v. County of Harris, 462 S.W.2d 405 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.); City of Dallas v. Leake, 300 S.W.2d 135 (Tex.Civ.App.—Dallas 1957, writ ref’d n. r. e.); City of Houston v. Cyrus W. Scott Mfg. Co., 45 S.W.2d 270 (Tex.Civ.App.—El Paso 1931, writ ref’d). The intent to dedicate land to a public use need not be evidenced by a formal dedication on a map or plat, but it can arise by implication by the showing of some clear and unequivocal act by the owner from which the law would imply such intent. Cockrell v. City of Dallas, 111 S.W. 977 (Tex.Civ.App.1908, no writ); City of San Antonio v. Sullivan, 23 Tex.Civ.App. 619, 57 S.W. 42 (1900, writ ref’d). The question of whether or not a roadway has been dedicated to use by the public is one of fact to be decided by the trier of facts. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960); Dowlen v. Klapper, 381 S.W.2d 123 (Tex.Civ.App.—Amarillo 1964, no writ).

The recording of a map or plat which shows streets or roadways thereon, without more, does not constitute a dedication, as a matter of law, of such streets as public roadways. County of Calhoun v. Wilson, 425 S.W.2d 846 (Tex.Civ.App.—Corpus Christi 1968, writ ref'd n. r. e.).

Where the plat or map simply uses the word “street” thereon, and there is no express dedicatory language on the face of the map or plat that such streets are to be devoted to public use, a person who claims that a street shown thereon has been dedicated to use by the public must show some act by the owner of the land that he clearly intended to so dedicate the land in question, and that there has been an acceptance thereof by the public, or by the local authorities. Commissioners’ Court v. Frank Jester Development Co., 199 S.W.2d 1004 (Tex.Civ.App.—Dallas 1947, writ ref’d n. r. e.); Fort Worth & D. S. P. Ry. Co. v. Judd, 4 S.W.2d 1032 (Tex.Civ.App.—Amarillo 1928, writ dism’d).

In City of Corpus Christi v. McCarver, 289 S.W.2d 420 (Tex.Civ.App.—San Antonio 1956, writ ref’d n. r. e.), only the plat was offered into evidence. There was no dedicatory language on the plat, no showing of who made the plat, who recorded it, who owned the land at the time the plat was made, or that the owner intended to dedicate the land in question to the public. The court held that since neither intent to dedicate nor acceptance or use by the public was shown after the plat was recorded, there had been no dedication.

The County argues that the recognition by plaintiff in his pleadings of the existence of the streets shown on the Lamar Townsite Maps “supplies any deficiency in dedicatory language”, and that such recognition dispensed with the necessity of showing specific dedicatory language on the plat in order for there to have been a dedication of the land in question as a public street. We do not agree. The County further argues that the evidence makes it abundantly clear that the fact that “Eighth Street”, excepting only that portion within plaintiff’s fences, has been in use as a public street, makes clear “the intention and effect of the plat”, and that “acceptance and use of a part of Eighth Street equals acceptance of the whole, and the public entity, not being bound by any time limit within which to open and use the right of way, may do so when its needs so dictate”. It relies on City of Corsicana, v. Zorn, 97 Tex. 317, 78 S.W. 924 (1904); City of Dallas v. Gibbs, 27 Tex.Civ.App. 275, 65 S.W. 81 (1901, writ ref’d); Watland v. City of Wichita Falls, 286 S.W. 763 (Tex.Civ.App.—Amarillo 1926, no writ); and Joseph v. City of Austin, 101 S.W.2d 381 (Tex.Civ.App.—Austin 1936, writ ref’d). Those cases are distinguishable from the instant case. In each of the cases cited by the County it was conclusively proved that there had been a prior dedication by the owner of the land of the property in question. In this appeal, there is no evidence that the owner of the land, at the time the original map of the Lamar Townsite was filed, dedicated the streets shown on the map to use by the public.

We find no language on the maps of Lamar Townsite, in evidence, which dedicates the streets shown on the maps to the public for public use; nor do we find anything in the record that evinces an intention on the part of the landowner at the time the Lamar Subdivision was made to dedicate the streets as public roads. The County’s first and second points are overruled.

The County, in its remaining points of error, complains that the trial court erred: in finding that the use of that portion of Eighth Street “was so infrequent as to be abandoned under Article 6703a” (third point); in holding “that there had been a statutory abandonment of the street in question under Article 6703a” (fourth point); and, “there having been no abandonment under Article 6703a, plaintiff was not entitled to any declaratory or injunctive relief against this defendant”. The points cannot be sustained under the record before us. Even if the facts were that there had been such a dedication. Tex.Civ.Stat.Ann. Art. 6703a (1955) expressly operates to cut off the rights of the public after twenty years of non-use by the public. Ives v. Karnes, 452 S.W.2d 737 (Tex.Civ.App.—Corpus Christi 1970, no writ). Here, it is undisputed that plaintiff and his immediate predecessors in title enclosed by fence that portion of “Eighth Street” involved in this appeal more than 20 years prior to the date that Joe Conlin entered thereon. The portion of “Eighth Street” in question does not connect with any cemetery, and is not required to provide access roads reasonably necessary to reach adjoining land. Under the facts in evidence, the rights of the public, if any, to that portion of the street in question, were cut off. The County’s third, fourth and fifth points are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    The HANOVER INSURANCE COMPANY OF NEW YORK, Appellant, v. Horace B. HAGLER, d/b/a Texas Electronics Supply Company, Appellee.
    No. 18712.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 31, 1975.
    Rehearing Denied Jan. 29, 1976.

      Robert Lee Guthrie, William F. Billings, Johnson, Guthrie, Billings & Nash, Dallas, for appellant.
    John Emmett, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Horace B. Hagler, d/b/a Texas Electronics Supply Company, sued Hanover Insurance Company of New York to recover on a policy issued by Hanover which insured against the hazard of “vandalism and malicious mischief.” The case was tried to a jury which found that Hagler had sustained damages to his merchandise in the sum of $82,911.58 as a direct result of vandalism and malicious mischief. Based upon his verdict, the court rendered judgment against Hanover in the sum of $30,000, the policy limit. Hanover appeals. We reverse and remand.

Our primary question is whether Hagler has avoided the consequences of his failure to file a proof of loss by proving substantial compliance with or waiver of that requirement as a matter of law. The record is without dispute that the loss occurred on July 19,1970, and that Hagler did not file a formal verified proof of loss, as required by the policy, within ninety-one days following July 19,1970. Hagler alleged (1) that Hanover, by its action and conduct, waived the filing of a formal proof of loss and (2) that he had substantially complied with the terms of the policy. No issue was submitted to the jury dealing with either waiver or substantial compliance. The record does not reveal that Hagler requested the submission of either issue.

Hanover contends that the trial court erred in rendering judgment against it because Hagler failed to file a proof of loss, a condition precedent to recovery on the policy, and did not prove or secure a finding that the filing of the proof of loss had been waived. We agree.

It is a settled principle of law in Texas that a stipulation in an insurance contract requiring notice and proof of loss within a reasonable time and on reasonable terms is valid and must be complied with to recover under the policy. Commercial Union Assurance Co. v. Preston, 115 Tex. 351, 282 S.W. 563, 566 (1926); Scottish Union & National Insurance Co. v. Clancey, 83 Tex. 113, 18 S.W. 439 (1892); Delaware Underwriters v. Brock, 109 Tex. 425, 211 S.W. 779 (1919); Great Central Insurance Co. v. Cook, 422 S.W.2d 801, 806 (Tex.Civ.App.—Dallas 1967, no writ). The purpose of requiring written notice and proof of loss within ninety-one days is to enable the insurer to properly investigate the circumstances of the loss while the occurrence is fresh in the minds of witnesses, to prevent fraud, and to enable it to form an intelligent estimate of its rights and liabilities so that it may adequately prepare to defend any claim that may arise. Employers Casualty Co. v. Glens Falls Insurance Co., 484 S.W.2d 570, 575 (Tex.1972); 14 Couch on Insurance 2d § 49:373 (2d ed. 1965). Waiver of the proof of loss requirement or a showing of substantial compliance with the provision is all that is ordinarily required of an insured to avoid the consequences of failure to strictly comply with the policy provision. United States Fidelity and Guaranty Co. v. Bimco Iron and Metal Corp., 464 S.W.2d 353, 356 (Tex.1971); Home Insurance Co. v. Greene, 443 S.W.2d 326 (Tex.Civ.App.—Texarkana 1969), affirmed, 453 S.W.2d 470 (Tex.1970); Great Central Insurance Co. v. Cook, 422 S.W.2d 801, 806 (Tex.Civ.App.—Dallas 1967, no writ); Federal Union Insurance Co. v. Hardin, 115 S.W.2d 1144 (Tex.Civ.App.—Amarillo 1938, no writ).

Hagler, while conceding that he had the burden of establishing either waiver or substantial compliance with the proof of loss provision, argues that he has satisfied that burden as a matter of law and that, therefore, it was not incumbent upon him to secure a jury finding on these issues. We must examine the record to determine the validity of this argument.

Hagler operated a business described as a “wholesale electronics parts and pawnshop.” The policy of insurance issued by Hanover insured the contents of the shop against “vandalism and malicious mischief” and expressly excluded “pilferage, theft, burglary or larceny.” However, the policy did provide coverage for damage to the building from burglary. On July 19, 1970, two men entered the pawnshop by breaking into the adjoining place of business and making a hole in the companion wall. Bins containing thousands of minute electronic parts were turned over and the contents scattered in the aisles; boxes were dumped on the floor; inventory cards were destroyed or lost. The insurance company was promptly notified of the loss, and an investigation was conducted. As a result, Hanover paid Hagler for the damage done to his building by the burglars. When Ha-gler later demanded payment for damage to his personal property in the building, Hanover refused to pay for that loss.

Hagler argues that the insurance company, having paid for the damage to the building before the time for filing the proof of loss expired, waived the proof of loss requirement for the vandalism and malicious mischief claim. A provision requiring a formal proof of loss may be waived by conduct of the insurer which is inconsistent with an intention to rely on failure to timely file the proof of loss as a defense. Such conduct by the insurer lulls the insured into believing that the filing of the proof of loss will not be required. United States Fidelity and Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971); Chicago Fire & Marine Insurance Co. v. Herring, 54 S.W.2d 236 (Tex.Civ.App.—Amarillo 1932, writ ref’d).

While Hanover’s voluntary payment of the claim for building damage within ninety-one days after the loss may be some evidence of waiver, that evidence is not sufficient to establish, as a matter of law, that the insurance company did not intend to insist on filing a proof of loss as to the damage to the contents of the building, or that Hagler was led to believe that the company would not insist on the proof of loss. Both Hanover and Hagler agreed that the damage to the building was covered by the policy. However, with regard to the damage to the contents, there was a serious question whether this damage was the result of vandalism and malicious mischief, within the terms of the policy, or burglary, which was specifically excluded. The damage to the building was minor, and its extent could easily be determined. The extent of the damage to the contents was, to the contrary, difficult to establish. Under these circumstances, the insurance company’s payment of the undisputed claim is not necessarily inconsistent with an intention to insist upon strict compliance with the proof of loss requirement as to the disputed and questioned claim. We hold, therefore, that payment for the loss to the building may be some evidence of waiver of the requirement for filing proof of loss with regard to the damage to the personal property but that such evidence, standing alone, does not establish waiver as a matter of law. In this connection we note that Hagler did not allege in the trial court and does not contend here that the company is estopped from insisting on compliance with the proof of loss requirement with respect to the claim for damage to the contents because prompt payment of his claim for damage to the building led him to believe that no proof of loss concerning the contents would be required.

The insurance company representative testified that even if the insurance company had been in possession of all the information required by the proof of loss, it would have denied the claim. If it had been established that the company denied liability within the ninety-one day period, Hagler’s allegation of waiver would be sound. However, the date when liability was denied is not established with any certainty in this record. This hypothetical and conclusory statement that the company would have denied liability is not equivalent to evidence of actual denial of liability within the ninety-one day period. Neiuier does it establish as a matter of law that the company intended to waive the requirement of a formal proof of loss. It is well settled that a denial of liability after the period does not constitute a waiver. Galveston County v. Hartford Fire Insurance Co., 231 S.W.2d 684 (Tex.Civ.App.—Galveston 1950, writ ref’d).

Hagler also contends that he presented sufficient evidence to establish substantial compliance with the proof of loss requirement, as a matter of law, which excused his failure to file a formal proof of loss. Hagler testified that he submitted a partial list of the damaged property to Hanover’s agent. However, an examination of his testimony as a whole reveals that it is not definitely established at what point in time the partial list was delivered to Hanover. Hagler’s testimony in this regard is vague and uncertain. First he stated that he did not recall furnishing the insurance company any type of list of the merchandise which he alleged to be damaged, but he then qualified that answer by stating that he did deliver a list “shortly after September 4th, [1970] I believe . . . .” Later he testified that he submitted a partial list at the time his deposition was taken in February 1972, after the ninety-one day period expired, and that he believed that he had furnished another list. He stated further that he did not know if that list was submitted before or after the date of his deposition. Hanover’s claim manager Pat 0. Echols testified that he had every bit of information the contract required be submitted in a proof of loss; the record, however, is silent as to the time when this information became available to and known by him and the insurance company. The evidence indicates that this information may not have been received by the insurance company until the early part of 1972, after the expiration of the ninety-one day period following the loss. While substantial compliance with the requirement of furnishing a proof of loss is sufficient, to be effective substantial compliance must occur within the time period allowed for the furnishing of the formal proof of loss, in this instance within ninety-one days after the loss. We cannot say that this record reveals, as a matter of law, substantial compliance with the requirements of the policy.

Our review of the record convinces us that the testimony concerning waiver and substantial compliance with the proof of loss requirement is not fully developed. For that reason and in the interests of justice, we exercise our discretion to reverse the judgment of the trial court and remand the cause for a new trial. Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex.1972); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); and Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951).

In view of our holding that the case must be reversed and remanded, we need not pass upon nor consider the points of error advanced by appellant Hanover which are primarily “no evidence” points and points dealing with the admissibility of evidence and submission of special requested issues.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.


text:
    Bessie Mae CARTER, Appellant, v. DALLAS COUNTY CHILD WELFARE UNIT, Appellee.
    No. 18684.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 31, 1975.
    Rehearing Denied Jan. 29, 1976.
    Martin L. Kahn, Irving, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, for appel-lee.
   CLAUDE WILLIAMS, Chief Justice.

Dallas County Child Welfare Unit brought this action against Bessie Mae Carter and Anderson Carter, the father and mother of Calvin Carter and Andrea Carter, minors, seeking termination of the parent-child relationship and appointment as managing conservator of the children pursuant to Tex. Family Code Ann. §§ 15.02 and 15.05(b) (Vernon 1975). Anderson Carter did not appear. Following trial before the court, the juvenile judge of Dallas County found that Bessie Mae Carter had engaged in conduct which endangered the physical and emotional well-being of the children and that Anderson Carter had failed to support his children in accordance with his ability during a period of one year prior to the filing of the petition. The court found that it would be in the best interest of the children that the parent-child relationship be terminated and that the Dallas County Child Welfare Unit be appointed managing conservator. From this judgment only Bessie Mae Carter appeals. We affirm.

Appellant’s primary complaint is that the juvenile court erred in finding that she had engaged in conduct which endangered the physical and emotional well-being of# the children, when, as a matter of law, she was mentally incompetent, which is not a ground for termination of parental rights in Tex. Family Code Ann. § 15.02 (Supp.1975). Appellant does not attack the juvenile court’s appointment of appellee as managing conservator of the children.

The record is replete with testimony concerning appellant’s history of mental illness. She has been uniformly diagnosed as a schizophrenic of the paranoid type. Having been hospitalized numerous times, her prognosis was described as “guarded” which means that it is likely that her disease will be manifested again and that she will continue to live as a potential schizophrenic. Medical experts testified that in all reasonable medical probability, appellant will never be completely cured of her illness.

The two children involved are Calvin Carter, age 15, and Andrea Carter, age 11. The record contains testimony concerning physical mistreatment of the children. Calvin was taken into custody by California authorities because of bruise marks on his arm which resulted from a whipping, given by his mother, with an extension cord. Calvin testified that his mother had struck him with her shoe and had also pushed him into a hot stove. He testified that when he was living with his mother they sometimes did not have enough food and that he did not go to school all the time because his mother told him not to go. Calvin testified that being around his mother made him nervous and frightened and that he was happy in his present home with foster parents. There was also evidence that Bessie Mae Carter did not always take the medication prescribed to control her illness. Dr. Sel-man, a psychiatrist at Terrell State Hospital, testified that the mother had “engaged in some things that were detrimental to the children” and that she had endangered their lives, emotionally and physically. Two caseworkers from the Department of Child Welfare testified that they did not feel that the children would be safe with their mother and that she was capable of hurting them physically. They recommended permanent severance so that the children would be adoptable and thus could be placed in a permanent home where they would feel that they were a part of a family unit. One caseworker testified that Calvin was extremely nervous when he knew he was going to be around his mother and that he was concerned about the possibility of becoming mentally ill like his mother. She testified that after visiting her mother, the little girl Andrea began taking on certain characteristics of her mother. One caseworker testified that she had observed the mother commit acts which emotionally endangered the children’s well-being and that just being in the presence of the mother was an emotional torment for the children.

We agree with appellant that mental incompetence or mental illness alone is not grounds for termination of the parent-child relationship. Nevertheless, Tex. Family Code Ann. § 15.02(1)(E) does provide as a proper ground for involuntary termination of parental rights:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

Other subdivisions of paragraph (1) utilize terminology which makes the intent or knowledge of the parent a necessary element in dissolving the parent-child relationship. Subdivision (E), however, does not require intent on the part of the parent to engage in conduct which would endanger the child. When a parent’s mental state allows or forces him to engage in conduct which endangers the physical or emotional well-being of his child or children, that conduct is evidence which bears upon the advisability of terminating the parent-child relationship. We cannot agree with appellant that evidence of her mental condition, which would have a bearing on the question of intent, prevents the application of this provision of the Family Code. We hold that this record supports the trial court’s findings that Bessie Mae Carter had engaged in conduct which had endangered the physical and emotional well-being of Calvin and Andrea Carter and that it would be in the best interests of Calvin and Andrea Carter to terminate the parental rights of Bessie Mae Carter and Anderson Carter. Altamirano v. Director of Travis County Child Welfare Unit, 465 S.W.2d 393 (Tex.Civ.App.-Austin 1971, no writ).

Appellant also argues that the evidence introduced was factually insufficient to support the finding that the mother had engaged in conduct which endangered the children because the actions and conduct upon which the testimony was based were too remote and no longer presented a present danger. We do not agree. While it is true that the two children have not been subjected to physical mistreatment by their mother for a period of at least two years, their visits with her have been strictly supervised during that time. The record also conclusively shows a strong possibility that the children would be physically endangered if they were subjected to the control of Bessie Mae Carter. Furthermore, the children’s emotional well-being is jeopardized whenever they come in contact with their mother.

Viewing this record as a whole, we find no abuse of discretion on the part of the juvenile judge in finding that Bessie Mae Carter had engaged in conduct that had endangered the physical and emotional well-being of the children and that it would be in the best interest of the children that the parent-child relationship be terminated.

The judgment of the trial court is affirmed.


author: CADENA, Justice.

text:
    TEXAS HIGH SCHOOL GYMNASTICS COACHES ASSOCIATION et al., Appellants, v. Duanne W. ANDREWS et al., Appellees.
    No. 15444.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 31, 1975.
    Rehearing Denied Jan. 28, 1976.

      Michael D. Schattman, Denning Schatt-man, Fort Worth, for appellant.
    Cobb, Thurmond & Bain, Inc., San Antonio, for appellees.
   CADENA, Justice.

This is an appeal from an order overruling the plea of privilege of defendant, Texas High School Gymnastics Coaches Association, a Texas corporation, referred to in this opinion as “Association.”

The petition names as plaintiffs, Duanne W. Andrews, H. M. Shearing, Allen Russell, Raoul Gueguen, and Sandra Mabry, who are described in the pleadings as “parents of high school students, coaches of high school students, and parents of gymnasts who hopefully [sic] will become high school gymnasts.” The pleading recites that the suit is “brought individually and as next friend for their children all of whom are minors.” The petition does not identify specifically the plaintiffs who are high school coaches nor those who are parents of such students. The petition does not name any minor appearing in the suit by next friend.

Defendants, in addition to the Association, are Northeast Independent School District and Northside Independent School District, both of Bexar County, the county in which suit was filed. The Association’s residence, for venue purposes, is Tarrant County-

The Association is an association of high school gymnastic coaches. According to the petition, on May 10, 1974, the Association adopted the following rule: “DUAL MEMBERSHIP OF ATHLETES PROHIBITED. A Texas high school gymnast must not workout with, practice with, take lessons with, or compete with a private club, and be eligible for dual, regional or state competition during the school calendar year of their [sic] school district. . . . ” Plaintiffs alleged that such rule is an “unfair, unlawful and unconstitutional restriction upon the individual rights of high school students who participate in their high school gymnastics program and desire to compete in high school gymnastic competition.” The rule is also assailed as an unfair trade practice, and unreasonable restraint of trade and free enterprise which “not only damages the individual high school students involved, but also damages the private gymnastic clubs.”

Plaintiffs alleged that the rule is in violation of Association’s constitution in that (1) it does not perpetuate and improve the sport of gymnastics; (2) it discourages the interest of people in healthful sports participation through gymnastics; (3) it violates the principles, interests and desires of the University of Texas Interscholastic League; and (4) it fails to protect the gymnastic interest of the State of Texas and the athletes representing the State in national gymnastic competitions.

Plaintiffs sought declaratory judgment to the effect that the rule is void and unenforceable; injunction restraining defendants from enforcing the rule; and damages.

It is not alleged that the two Bexar County defendants, Northeast Independent School District and Northside Independent School District participated in the adoption of the rule; nor that they had enforced or attempted to enforce the rule in the past; nor that they intended to enforce the rule in the future. At the hearing on the plea of privilege filed by the Association, Northeast Independent School District announced in open court that the district agreed with plaintiffs and that it did not intend to, and would not enforce the rule because “the rule is improper and should not be enforced.”

Plaintiffs seek to maintain venue in Be-xar County against the Association under subdivisions 4, 9, 23, 29a and 30 of the venue statute. Article 1995, Tex.Rev.Civ. Stat.Ann.

Following a hearing on March 10, 1975, the trial court announced that the plea of privilege -of the Association was sustained. The record does not reflect that this ruling was ever reduced to writing and signed by the court. In any event, in response to plaintiffs’ motion for “Additional Temporary Orders” and to reconsider the prior ruling on the pleas of privilege, further testimony was heard on March 24,1975, the court entered an order, dated March 26, 1975, overruling the plea of privilege of Association and temporarily enjoining the Association from attempting to enforce the rule of which plaintiffs complain.

At the outset, it is clear that subdivision 29a is inapplicable. That subdivision authorizes a plaintiff who sues two or more defendants on a cause of action in a county where venue is proper as to one defendant under some exception contained in Article 1995 to maintain venue in such county as to all necessary parties to such cause of action. This exception is applicable only where all defendants are nonresidents of the county in which suit is filed. 1 McDonald, Texas Civil Practice Sec. 4.36 (1965 rev.). That condition is not satisfied here.

Subdivision 4 permits a suit to be maintained in the domiciliary county of one defendant against other nonresident defendants who are properly parties to the action against the resident. In order to invoke the protection of this exception, plaintiff must establish, by a preponderance of the evidence, each element of a bona fide claim against the resident defendant. 1 McDonald, op. cit. Section 4.10.1.

Plaintiffs can maintain venue in Bexar County against the Association under subdivision 23 only (1) if plaintiffs’ cause of action, or a part of such cause of action, arose in Bexar County; or (2) if plaintiffs resided in Bexar County at the time the cause of action arose and the Association has an agency or representative in Bexar County. Under theory (1), plaintiffs are required to prove the existence of a cause of action, part of which, at least, arose in Bexar County. Under theory (2), plaintiffs must prove a cause of action against the Association, irrespective of where the cause of action arose. 1 McDonald, op. cit. Secs. 4.30.2, 4.30.3.

It is clear that in order to establish a cause of action, either against the resident school districts, as required under subdivision 4, or against the Association, as required under subdivision 23, it was incumbent on plaintiffs to show that the challenged rule is invalid. Our examination of the record convinces us that plaintiffs failed to discharge this burden.

In Texas, high school athletic competition is regulated by the University of Texas Interscholastic League, which not only regulates such competition and establishes eligibility rules, but sponsors programs which lead to the recognition of a school as state champion in a particular sport. However, the Interscholastic League’s program does not include gymnastics. The Association was formed for the purpose of stimulating interest in the sport of gymnastics and to encourage the “acceptance of competitive gymnastics by the” Interscholastic League. As part of its program, the Association sponsored inter-school competition in gymnastics in the form of dual meets, multi-school meets, district meets, regional meets, and the “Texas High School Championship meet.”

Membership in the Association is open to all qualified gymnastic coaches who are employed by an accredited high school in Texas and who are actively interested in advancing the sport of gymnastics. It is the coaches, as distinguished from the schools, who are members of the Association.

Under its constitution, the Association has the power to “establish and direct the general policies as they pertain to the conduct of dual, regional and State gymnastic high school competition until such time that this sport becomes a part of the Texas University Interscholastic League.”

Even if it be assumed that the Association, which is essentially an organization of coaches, is sufficiently involved in the operation of the State’s public school system to justify classifying its conduct as “state action” (a point which we do not decide), the record before us contains no evidence supporting the conclusion that the challenged rule is unreasonable, capricious or arbitrary. The case does not involve a “suspect” classification. The burden is, therefore, on plaintiffs to show that the rule is invalid as a prohibited discrimination.

There is no showing that the rule was not adopted in the manner required by the Association’s constitution. Absent evidence of fraud or collusion, we must uphold the rule unless plaintiffs have shown that the rule in question bears no rational relationship to the achievement of a legitimate purpose. Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir.1975).

In determining the reasonableness of a rule governing eligibility of a student to participate in a specific athletic activity, the Supreme Court of Minnesota has said that the question is whether the rule is “. so willful and unreasoning, without consideration of the facts and circumstances, and in such disregard of them as to be arbitrary and capricious. Where there is room for two opinions on the matter, such action is not ‘arbitrary and capricious,’ even though it may be believed that an erroneous conclusion has been reached.” Brown v. Wells, 288 Minn. 468, 181 N.W.2d 708, 710-711 (1970).

In Art Gaines Baseball Camp, Inc. v. Houston, 500 S.W.2d 735 (Mo.Ct.App.1973), the challenged rule was to the effect that a student who attended a camp specializing in one sport for more than two weeks during the summer would lose his eligibility to represent his school in that particular sport during the following school year. In rejecting a challenge to the validity of the rule by the operator of a summer baseball camp, the Missouri court relied heavily on Brown v. Wells, supra.

The rule here challenged, like the rule upheld by the Missouri court, can be said to help prevent inequalities and unfair advantages between students with different economic means, as well as between schools located in areas of different economic wealth. It also can be said to help prevent such unfair advantage between students and schools located in areas where private instruction is available and in areas where the student is limited to such coaching as is offered by the school. At the very least, there is no evidence supporting the conclusion that there is no rational relationship between the rule and the achievement of these purposes, which we consider to be legitimate purposes.

We find no basis for holding the rule invalid. If the Association is viewed as merely a private organization, there is, of course, even less basis for substituting our judgment for that of the members of such private organization. Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970); Robinson v. Illinois High School Association, 45 Ill.App.2d 277, 195 N.E.2d 38 (1963).

Subdivision 30 provides that whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which “jurisdiction may be so expressly given.” Plaintiffs have called our attention to no statute placing venue of this case in Bexar County. The “argument and authority” in plaintiffs’ brief under the point urging that venue lay in Bexar County under subdivision 30, is, in its entirety, as follows: “Evidence has been presented that the enforcement of the rule would constitute unfair competition against private clubs.” A suit for unfair competition is subject to the general venue laws. Stone v. English, 465 S.W.2d 179 (Tex.Civ.App.—Fort Worth, 1971, no writ).

Nor is venue maintainable in«Bexar County under subdivision 9. The subdivision permits a suit .based “upon a crime, offense, or trespass” to be brought in a county where such crime, offense or trespass was committed. Even if we give to the term “trespass” its broadest possible meaning and treat it as being synonymous with “wrongful act”, what we have said concerning the lack of evidence to show that the rule in question is invalid precludes a finding of a wrongful act.

We also sustain the Association’s contention that the temporary injunction was wrongfully granted. There being no evidence to show that the rule challenged by plaintiffs is invalid or unenforceable, it follows that plaintiffs have not established a probable right or probable injury. Further, the trial court did not require plaintiffs to post a temporary injunction bond as required by Rule 684, Tex.R.Civ.P. Under these circumstances, the injunction cannot stand. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970).

The judgment of the trial court is reversed and the temporary injunction is dissolved.

The cause is remanded to the trial court with instructions that the case be transferred to a district court of Tarrant County as provided in Rule 89, Tex.R.Civ.P.


author: BARROW, Chief Justice. CADENA, Justice

text:
    Beatrice HASTINGS, Appellant, v. Vicke DE LEON, Appellee.
    No. 15497.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 31, 1975.
    Rehearing Denied Jan. 28, 1976.
    Donald J. Walheim, Hardberger, Branton & Herrera, Inc., San Antonio, for appellant.
    Michael M. Fulton, Beckmann, Stanard & Olson, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has perfected her appeal from a take-nothing judgment based on an instructed verdict granted at the close of appellant’s case in her suit to recover damages for personal injuries sustained in a slip and fall accident at the home of appellee, the daughter of appellant.

Appellant urges by her single point of error that the trial court erred in granting an instructed verdict for three reasons: (1) A fact issue was raised as to whether appellant was an “invitee” or “licensee”; (2) We should abolish the common law distinctions between the duty owed to a licensee and that owed to an invitee by the owner or occupier of land; (3) A fact issue of negligence was raised in this case even if appellant is considered to be a licensee.

In Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (Texas Com.App.1938, opinion adopted), the test to be applied to determine the status of the injured person was stated as follows:

In determining this question the general test is whether the, injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.

This test was recently considered and adopted by our Court in Mendez v. Knights of Columbus Hall, 431 S.W.2d 29 (Tex.Civ.App.—San Antonio 1968, no writ). See also Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.).

Under the above test, the evidence in this case conclusively establishes that appellant was a licensee at the time of her fall in appellee’s home. The testimony of both appellant and appellee is that appellee went by appellant’s home after attending a movie. Appellee there borrowed her brother’s car to return to her own home to pick up a check she desired to deposit as well as some clothes for her infant daughter. Appellant accompanied appellee on this trip, at appellee’s request, and went into appellee’s house to look at some new furniture appel-lee had recently acquired. After about twenty minutes in the house, and as the parties were exiting through the front door, appellant slipped and fell. This evidence clearly establishes that appellant was a “social guest” in her daughter’s home at the time of the fall and is thus classified in law as a “licensee.” McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e;); Warren v. Medley, 521 S.W.2d 137 (Tex.Civ.App.—Beaumont 1975, no writ); Bass v. Cummings, supra.

Appellant urges by her second proposition that we should abolish the common law distinction between invitees, licensees, and trespassers. This distinction was adopted by our Supreme Court many years ago and was recently recognized again in State v. Tennison, 509 S.W.2d 560 (Tex.1974). This distinction has not been overruled. It is our duty as an intermediate court, in our judicial system, to follow the clear decisions of our Supreme Court. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Buchholz v. Steitz, supra; Warren v. Medley, supra. If the common law distinction is to be abolished by court decision, it should be done by our Supreme Court.

Appellant urges by her third proposition that appellee breached the duty owed appellant, even if she was a licensee. It is well established that if the person injured was on the premises as a licensee, the duty owed her was not to injure her by willful, wanton or gross negligence. An exception to this general rule is when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. State v. Tennison, supra; Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Mendez v. Knights of Columbus Hall, supra; Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.).

The exact cause of appellant’s fall is unknown. The testimony of appellant and appellee is very similar: Both were leaving by the front door; appellee was holding the door open for appellant; appellant was admiring a bird cage that appellee had converted into an ivy planter; appellant suddenly slipped and fell as she was leaving the house; her body landed on the front step with one leg under her body. Both appellant and appellee testified at the trial that they believed appellant slipped on a small rug that appellee had placed on the floor by the door for people to clean their wet shoes. This rug was not attached to the tile floor and thus it could slip under one’s foot. On the other hand, the treating doctor’s record shows that appellant had tripped on the weather stripping of the front door. This weather stripping was found to be loose after the incident and was repaired by appellee’s husband. However, we must assume, for the purpose of this appeal from an instructed verdict, that the appellant slipped on the rug.

There is evidence that appellee knew that the rug was on the floor and that it was unattached. Nevertheless, there is no evidence she knew prior to the fall that the rug created a dangerous condition. To the contrary, the rug had been placed by the door every time it had rained. On a prior occasion, appellee’s two-year old daughter had fallen near the door, but appellee did not realize that the loose rug had caused the fall, if it did do so. On this occasion, all parties including two small children walked on the rug in entering the house and all but appellant exited without incident. This evidence does not amount to more than a scintilla that the loose rug created a dangerous condition and that appellee knew prior to the accident that such condition was likely to cause injury.

The trial court did not err in instructing the jury to return a verdict for appellee and in entering the take-nothing judgment.

The judgment is affirmed.

CADENA, Justice

(dissenting).

Without expressing any opinion as to the validity of the traditional trespasser-licensee-invitee distinctions, I would reverse the judgment below and remand the cause for new trial.

The instructed verdict can be upheld only if we conclude that, as a matter of law, defendant had no knowledge that the condition which she had created constituted a danger. Disregarding, as we must under well-established rules, her assertion of ignorance, I believe that the evidence is sufficient to raise a question of fact as to her knowledge of such danger. We, of course, are not concerned with the factual sufficiency of the evidence to support a finding in favor of plaintiff.


author: WALTER, Justice.

text:
    Lee RIDOUT, Appellant, v. GOLD STAR DISTRIBUTORS, INC., Appellee.
    No. 4862.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 8, 1976.
    Rehearing Denied Jan. 22, 1976.

      R. W. Glenn, Plano, for appellant.
    William J. Ruhe, Jr., Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   WALTER, Justice.

Our opinion and judgment dated December 19, 1975, is withdrawn and the following opinion is rendered in lieu thereof.

This is a plea of privilege case. Gold Star Distributors, Inc., filed suit against Lee Ridout on a sworn account in Dallas County and sought a foreclosure of its alleged statutory and constitutional lien against real property located in Collin County.

Ridout filed his plea of privilege alleging facts which he contended brought him within the exception set forth in Subdivision 14 of Article 1995, V.A.C.S. He also alleged that subsequent to the time he purchased the merchandise described in Gold Star’s sworn account, he deeded the real estate to Frank Adams. Gold Star’s amended petition made Frank Adams a party.

The court overruled Ridout’s plea of privilege and he has appealed. Frank Adams is not involved in this appeal.

Ridout contends the court erred in overruling his plea of privilege because he was entitled to have it granted under Subdivision 14 of Article 1995, Texas Civil Statutes.

The record conclusively shows that Rid-out did not own the land in question at the time of trial. He was a resident of Dallas County at the time this suit was filed.

In James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959), the court said:

“This writ of error was granted because the holding of the Court of Civil Appeals that the suit was a suit for ‘the recovery of lands’ or ‘damages to land’ under Section 14 of Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 1995, § 14, is in conflict with the holding of the Courts of Civil Appeals in the following eases: Smith v. Rampy, Tex.Civ.App. Amarillo, 1946, 198 S.W.2d 592; Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App. Fort Worth, 1940, 144 S.W.2d 998, and other similar cases. We approve the holding of the earlier cases that suits against former owners of land who have parted with all title prior to the filing of suit are not suits for ‘the recovery of lands’, or ‘damages to land’ within the meaning of Section 14, Article 1995, Revised Civil Statutes, 1925.”
“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.”

We hold Ridout’s right to the ruling sought became moot after he sold the Collin County property to Adams.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Steve S. ALEXANDER, Appellant, v. Linn C. ALEXANDER et al., Appellees.
    No. 5552.
    Court of Civil Appeals of Texas, Waco.
    Jan. 8, 1976.
    Rehearing Denied Jan. 29, 1976.

      Steve S. Alexander, Waco, Robert C. Cox, Dallas, for appellant.
    John B. McNamara, Jr., Waco, for appel-lees.
   OPINION

McDONALD, Chief Justice.

Appellant’s amended motion for new trial, was overruled by the trial court on October 23, 1975.

Appellant caused transcript to be filed in this court on December 19, 1975. Such transcript reflects that no notice of appeal was given as required by Rule 353 TRCP.

Appellee has filed motion to dismiss the appeal because appellant failed to give any notice of appeal as required by Rule 353 TRCP (which was in effect at the time of judgment, order overruling amended motion for new trial, and the filing of transcript in this court).

An appellate court acquires no jurisdiction of the appeal where notice of appeal has not been given as required by Rule 353 TRCP. Howe v. Howe, CCA (Eastland) Er.Ref., 223 S.W.2d 944; Thacker v. Thacker, CCA (Amarillo) NWH, 490 S.W.2d 234; Hilliard v. Hines, CCA (Tyler) NWH, 403 S.W.2d 442.

The motion is granted.

Appeal dismissed.

      . New rule 353 TRCP did not become effective until January 1, 1976.


author: GUITTARD, Justice.

text:
    Terrance O’BRIEN, Appellant, v. Leo COLE, Appellee.
    No. 18756.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 8, 1976.

      G. Dennis Sullivan, Dallas, for appellant.
    Charles H. Await, Paul T. Fanning, Dallas, for appellee.
   GUITTARD, Justice.

This appeal is taken from a default judgment in a suit on a sworn account for plumbing work. The petition names as defendants “Terrance O’Brien and wife Mary Kay O’Brien,” but the invoice attached to the account is in the name of “Terry O’Bria n.” In absence of an answer, the trial court rendered judgment by default against “Terrence O’Brien and Mary Kay O’Brien” for $1,160.44, plus an attorney’s fee of $250. No testimony was taken or recorded. A motion for new trial was filed by “Terrance O’Brian” alone. The motion was overruled, and only “Terrance O’Brien” has perfected an appeal to this court. We affirm.

Lack of Court Reporter

Appellant complains that the trial court erred in rendering judgment without hearing evidence and making a record. He relies on Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d), which was a suit for the value of goods lost by a carrier. That case did not involve a sworn account under Tex.R.Civ.P. 185, as does the present suit. An account filed in compliance with rule 185 is itself “prima facie evidence” of the amount due, and no further evidence is required. The case turns, therefore, on whether the account attached to the petition satisfies the requirements of the rule.

Name Discrepancy

Appellant’s only attack on the sufficiency of the account under rule 185 is the supposed discrepancy between the names in the petition and in the invoice attached to the account. We need not determine whether the account was sufficient as against Mary Kay O’Brien, since she is not a party to this appeal. Our question is. whether “Terry O’Brian,” as named in the invoice, is sufficient to identify “Terrance O’Brien,” as alleged in the petition.

We hold that the identification is sufficient. The purpose of describing a person by name is to identify him. Presley v. Wilson, 125 S.W.2d 654 (Tex.Civ.App.—Dallas 1939, writ dism’d jdgmt. cor.). A commonly-known diminutive or abbreviation is sufficient to identify a person in the absence of evidence indicating that a different person is intended. State Bank & Trust Co. v. W. O. Horn & Brother, 295 S.W. 698 (Tex.Civ.App.—Austin 1927, no writ). Under this rule “Terry” is a sufficient identification of “Terrance.” With respect to the surname “O’Brian” as opposed to “O’Brien,” we conclude that this difference is within the rule of idem sonans, since an attentive ear would find difficulty in distinguishing the two when pronounced. Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798, 800 (1893).

Appellant cites Hassler v. Texas Gypsum Co., 525 S.W.2d 53 (Tex.Civ.App.—Dallas 1975, no writ), in which we held that a default judgment against an individual defendant was not supported by a sworn account containing an invoice showing that the goods were sold to a corporation. That case is distinguishable because there the invoice affirmatively showed that the goods were supplied to a person other than the defendant. Here there is only a discrepancy in names, which we hold is not serious enough to show that the work was done for a different person.

Any doubt as to the actual identity of the “Terry O’Brian” named in the invoice is removed by the motion for new trial filed by “Terrance O’Brian.” This motion makes no allegation that the movant is not the same as “Terry O’Brian.” On the contrary, it acknowledges that the movant did contract with plaintiff for performance of certain services and alleges that the work was not completed. Consequently, we see no serious problem concerning the identity of the person named in the invoice.

Motion for New Trial

Appellant contends that the court erred in overruling his sworn motion for new trial, which alleges that his failure to answer was not intentional but was due to an agreement he thought he had with plaintiff’s attorney. The motion also alleges that defendant had a meritorious defense in that plaintiff did not repair the leaking gas line, as he was employed to do, and that defendant was required to pay $175 to another plumber to repair it. Appellant insists that this motion is sufficient to require a new trial under the requirements laid down in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

We hold that the motion does no more than raise a fact question concerning the first requirement of Craddock, namely, an unintentional failure to answer because of mistake or accident. In this respect, the motion alleges the following: “Defendant thought an agreement had been made with Plaintiff’s attorney whereby Defendant would provide certain information to Plaintiff’s attorney and until same was reviewed by Plaintiff’s attorney, no further action would be taken and no answer required.” No particulars are alleged in support of this allegation. Defendant does not give the time, place, or substance of any supposed conversation with plaintiff’s attorney. He alleges only that he “thought” that an agreement had been made which excused him from answering. No evidence was offered in support of this allegation. The court was not required to accept this vague, conclusory allegation as an excuse for not filing an answer within the time required by law. Accordingly, the court had discretion to overrule the motion for new trial.

Attorney’s Fee

Appellant also complains of the judgment for an attorney’s fee in the amount of $250.00 because there is no evidence to support any finding of this amount. Appellee asserts that no evidence was required to support the attorney’s fee because under Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1975), the court may judicially notice the State Bar minimum fee schedule. We agree that the Bar schedule may be judicially noticed in an action within article 2226, and that this is such an action. However, we also judicially notice the Bar schedule, and we find that the fee provided for a commercial collection is sixteen and two-thirds percent of the recovery. This percentage of the recovery of $1,160.44 is $193.41. Thus the fee allowed is excessive by $56.59 in the absence of proof of services justifying more than the minimum. Cf. Coward v. Gateway National Bank, 525 S.W.2d 857 (Tex.1975); Superior Stationers Corp. v. Berol Corp., 483 S.W.2d 857, 860 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). Although in Coward the Supreme Court overruled the holding in Superior Stationers that the Bar schedule establishes the amount of the fee as a matter of law for the purpose of summary judgment, the court said that the trial judge, as the trier of fact in a non-jury case, may judicially notice the Bar schedule and may determine the amount of the fee in a case within article 2226 without further evidence. Accordingly, we hold that in such a case, no evidence is required to support a default judgment for an attorney’s fee within the minimum prescribed in the schedule.

The judgment below is affirmed on condition that appellee remit the amount of $56.59 within fifteen days from this date. In the absence of such a remittitur, the judgment below will be affirmed with respect to the principal amount of $1,160.44 and is reversed and remanded on the sole issue of the amount of a reasonable attorney’s fee.

Affirmed on condition of remittitur.

      . Article 2226 provides: “Any person . . having a valid claim against a person or corporation for services rendered, labor done, material furnished ... or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if . . .he should finally obtain judgment for any amount thereof . he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.


author: SPURLOCK, Justice.

text:
    Eugene PARR, Appellant, v. Olin MERRITT, Appellee.
    No. 17673.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 9, 1976.
    Rehearing Denied Feb. 6, 1976.

      A. V. Grant, Muenster, and Jack Connell, Bowie, for appellant.
    Sullivant, Meurer, Harris & Sullivant, and Belvin R. Harris, Gainesville, for appel-lee.
   OPINION

SPURLOCK, Justice.

This is a suit brought by Olin Merritt, plaintiff (appellee), against Eugene Parr, defendant (appellant), to enjoin defendant from maintaining obstructions upon and across a public road which is on the property adjoining plaintiff’s land, and to require defendant to remove all obstructions from said public road. The defendant contends in his answer that he owns 564 acres of land adjacent to and east of the land owned by plaintiff; the said road meanders across defendant’s land on the west boundary line for a distance of 666 varas; he owns the land; the gates are across a private road; he has been compelled to lock gates along the road because he was plagued by trespassers and cattle thieves; that he holds the legal title to all the land; and has a legal right to lock all the gates.

The court submitted the case to the jury on two issues: “Special Issue No. 1: Do you find from a preponderance of the evidence that the roadway in question was continuously used and traveled by the public generally, whenever it saw fit, for a period of ten (10) years or more, substantially along and upon the same route and across the lands of the owners thereof? Special Issue No. 2: Do you find from a preponderance of the evidence that such use and travel over said road on the part of the public was open, obvious, and adverse to the landowners, and without objection by them?” The jury answered each of these issues in the affirmative. Judgment was then rendered against the defendant ordering him to remove all locks and chains from all gates across said public road and he was further enjoined from locking the gates across the road in the future.

We affirm.

A witness, advanced in years, testified that the use of the road by the public had been continuous and without interruption and had been open, notorious, hostile, and adverse since 1900 until the last few years.

The County Commissioner of Montague County, the county in which the land is located, testified that as a county employee and now as a County Commissioner of that precinct, he, on behalf of the County, and at the expense of the County, had maintained this road continuously on an average of once or twice a year from 1948 to the present time. This work was done at the request of various persons. The County was supposed to maintain public roads. The County did not have deeds to many of the public roads maintained by Montague County. Another witness testified that the road had been used as a public road by the public in general, without interruption, from 1936-1942; another witness testified that to his knowledge everybody had used the road as a public road continuously from 1927-1942, and during this period of time there were no gates or other obstructions across the road. Another witness testified that said road had been used by the public in general continuously for 26 years. Other witnesses testified to the same effect. Each witness testified that they did not seek permission from anyone to use the road because it was a public road.

Appellant’s first three points are as follows:

“FIRST POINT: The evidence showing that the use of the roadway was merely permissive, such use could never ripen into a prescriptive right against the owner so as to constitute the roadway a public road.
“SECOND POINT: In the face of the undisputed testimony that the use made of the roadway by others was subservient to the rights of the owner of the land upon which said roadway exists, the Court erred in failing to grant Defendant’s Motion for Instructed Verdict.
“THIRD POINT: In the face of the undisputed testimony that the use made of the roadway by others was subservient to the rights of the owner of the land upon which said roadway exists, the Court erred in submitting Special Issue No. 2 inquiring as to the adverse use.”

Appellant groups these three points. It is noted that his first point is an abstract statement of law and does not complain of any action by the trial court. He assigned no points of error asserting there was no evidence or insufficient evidence to support the jury’s answer to such issue.

We overrule these points.

In Weldon v. Quaite, 175 S.W.2d 969 (Waco, Tex.Civ.App., 1943, no writ hist.) that court stated:

“It is the duty of the trial court to submit in his charge to the jury for its determination all ultimate controlling issues of fact raised by the pleadings and tendered by the evidence. Such issues may be tendered by direct evidence or by proof of sufficient facts and circumstances to form the basis for a legal conclusion with respect thereto. It is only when there is no evidence, direct or circumstantial, tendering issues essential to a recovery, or when the evidence relating to one or more of the controlling issues raised by the pleadings is undisputed and is such that reasonable minds may not differ in the conclusions to be drawn from the evidence in respect thereto, that the court is authorized to withdraw a case from the jury or to direct a verdict. In passing upon the sufficiency of the evidence to tender issues raised by the pleadings, it is the duty of an appellate court to view the evidence, and all reasonable inferences that may be drawn therefrom, in the most favorable light from the standpoint of the prevailing party.”

Bearing in mind the foregoing rules of law, we have carefully reviewed the evidence and are of the opinion that the trial court did not err in overruling defendant’s motion for an instructed verdict or in submitting said issue or in rendering judgment for the plaintiff. The evidence was sufficient to sustain the trial court’s ruling, the submission of said issue, the jury’s answer thereto, and the judgment rendered herein. We also hold that the jury’s answers to said issues were not against the greater weight and preponderance of the evidence.

In Weldon v. Quaite, supra, that court stated:

“The right to use private property as a public thoroughfare may be acquired by prescription, but in order to do so it is necessary to show that an uninterrupted use of the way has been made by the public under an adverse claim of right for the statutory period of limitation. The use by the public must be with the actual or implied knowledge of the owner, adversely under claim or color of right, and not merely by the owner’s permission. . . .
“The adverse claim of right may be proved by circumstantial evidence, sufficient to sustain the conclusions, and may be inferred from the circumstances of the manner of the use thereof. Hall v. Austin, supra (20 Tex.Civ.App. 59, 48 S.W. 53); Texas & P. Ry. Co. v. Gaines, Tex.Civ.App., 27 S.W. 266. It is generally a question of fact to be ascertained by the jury. Texas Western Ry. Co. v. Wilson, 83 Tex. 153, 18 S.W. 325; Ladies’ Benevolent Society v. Magnolia Cemetery Co., supra (288 S.W. 812, Tex.Com.App.); Boone v. City of Stephenville, supra (37 S.W.2d 842, Tex.Civ.App.).
“While there was no evidence that plaintiffs, or any member of the public, had, by word of mouth, claimed the right to use the strip of land in question adversely to defendants and their predecessors in title, the jury had the right to infer that such use was adverse and under claim of right from the character of the use of the property and the circumstances connected with its possession. Boone v. City of Stephenville, supra; Hall v. Austin, supra.”

The evidence adduced at the trial was sufficient to meet the tests stated above.

Defendant, by his fourth point, asserts the trial court erred in giving an instruction to the jury relative to the law concerning the placing of gates across a public road and the placing of locks on said gates.

This point is overruled.

This claimed error was not assigned as error in defendant’s amended motion for new trial in this case tried to a jury. This point is raised for the first time in this Court.

Ordinarily, no error, unless specifically assigned in the motion for new trial, may be urged on appeal. Rule 320, T.R. C.P; Red Ball Motor Freight, Inc. v. Cordova, 332 S.W.2d 753 (Beaumont, Tex.Civ.App., 1960, no writ hist.); Lunsford v. Sage, Inc. of Dallas, 438 S.W.2d 615 (Houston, Tex.Civ.App., 1st Dist., 1969, ref., n. r. e.); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

By its supplemental brief, appellant, by additional points, claims that the trial court committed fundamental error in rendering judgment because of the non-joinder of Walt Parr, Mrs. Eugene Parr (Nannie Crownover Parr) and Montague County.

These points cannot be considered by this Court unless they raise an issue of fundamental error because the points were not preserved in appellant’s motion for new trial.

Appellant first contends the effect of the judgment was to allow a prescriptive right to the roadway in question to be used by the public and thus it follows that the onus of maintaining such road in the future would be by Montague County, which was not a party to the suit.

This point is overruled.

The same point was urged in the case of Porter v. Johnson, 151 S.W. 599 (Dallas, Tex.Civ.App., 1912, no writ hist.). There the point urged was that the “. . . ap-pellees, being private parties, could not force upon the public authorities a road with the incidental burdens of repair and maintenance without the assent of the properly constituted authorities, and such assent could not be inferred from long continued use by the public. . . . This question has been answered in the negative by this court in the case of Evans v. Scott, 37 Tex.Civ.App. 373, 83 S.W. 874. In that case it is said: ‘The public’s right of prescription to a highway is not dependent upon the recognition of that right by the municipal authorities of the county, but is acquired by adverse use for the time and in the manner prescribed by the rules of law.’ This we think is the correct view of the law. . Adverse use of the road for the length of time required by the public is the foundation upon which the claim rests. This use must have continued uninterrupted under adverse claim of right for the full prescriptive period, which in this state is 10 years. Evans v. Scott, supra, and authorities cited. Again: ‘If the public by a prescriptive use, has acquired the right, which may ripen into control by the county, it inures to all who may have had an interest in maintaining the road.’ Hall v. City of Austin, 20 Tex.Civ.App. 59, 48 S.W. 53.”

Based upon the authorities cited above this Court holds that Montague County is not an indispensable party to the suit.

As to the effect of the non-joinder of Mrs. Parr and Walt Parr, the record reflects that Mr. and Mrs. Parr were present during the trial and each testified. After both sides had closed, defendant urged a motion for instructed verdict, presented his request for special issues, and made his objections to the court’s charge; whereupon the court adjourned until the next day. The next morning defendant moved the court to withdraw his announcement that he had closed and rested his case in order to put on the testimony of Mr. and Mrs. Parr to clarify the ownership of a certain 100 acre tract adjacent to the land in controversy. This motion was overruled.

Mrs. Parr testified during the hearing, on the bill of exception taken to the court’s above ruling, that she was the owner of 99.14 acres of land over which the road in question ran. She claimed this was her separate property because she had made the initial payment from her separate funds and had made installment payments from income derived from revenue from her separate property. A deed was offered in evidence showing that this same tract was conveyed to her and her husband jointly.

In New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864 (Tex.Sup., 1962) that court stated: “ ‘A new trial will not be granted on the ground of newly-discovered evidence, unless it is made to appear that it has come to the knowledge of the applicant since the trial; that it could not have been sooner discovered by the exercise of diligence; that it is not merely cumulative; that it is not for the purpose of impeachment.’ Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017 (1892).”

It is our opinion that this evidence could have been sooner discovered by the exercise of diligence. The court did not err in overruling defendant’s motion to reopen the case.

In any event, there was no evidence offered by appellant that Mrs. Parr had the right to exclude her husband, the other joint record owner, from being on the tract involved. A map attached to appellant’s supplemental brief shows that four gates are involved. Gate No. 1 can be unlocked from another public road which the defendant admits is a public road. This first gate, opening onto the Walt Parr property, can be unlocked from this other public road without a person being required to go onto the property of Walt Parr. Gate No. 2 adjoins plaintiff’s property and is on the 99.14 acre tract described above. Gate No. 3 is in the fence line of the above tract and the Eugene Parr tract. Gate No. 4 is on the Eugene Parr tract. Defendant can unlock each gate without going upon any other person’s property except the 99.14 acre tract, record title to which is in defendant and his wife jointly.

There are other reasons why we are required to overrule these points of error being discussed. The relief sought by plaintiff was in the nature of a mandatory injunction requiring the defendant to unlock the gates he had locked and not to lock them in the future. We hold that Montague County, Walt Parr, and Mrs. Eugene Parr are not indispensable parties to this suit in which plaintiff is seeking the indicated relief against Eugene Parr only.

We have considered each point and overrule same.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    - Thelma Brockers WILLIAMS et al., Appellants, v. Lamar L. KIRVEN, Appellee.
    No. 12296.
    Court of Civil Appeals of Texas, Austin.
    Jan. 14, 1976.
    Rehearing Denied Feb. 4, 1976.
    John H. Akin, Pearce, Smith & Akin, Austin, for appellants.
    Polk Shelton, II, Shelton & Shelton, Austin, for appellee.
   O’QUINN, Justice.

Appellants brought this suit in district court of Bastrop County asserting their title to one-fourth interest in a tract of 100 acres of land and for partition of the land among the owners. Appellee as defendant below claimed title to the land under a deed from Ethelene Jones and others executed in March of 1970.

A separate phase of this cause was before this Court in 1974 on application for mandamus to require the trial court and its officers to sustain appellants’ affidavit of inability to pay costs of appeal and to supply transcript and statement of facts. Williams v. Maynard, 515 S.W.2d 9 (Tex.Civ.App.Austin 1974, writ dism’d).

Trial began before a jury but the case was withdrawn from the jury and heard by the district judge, who subsequently entered judgment for defendant on November 13, 1972. Appellants appealed and bring twenty points of error.

Under their first point appellants challenge authority of the presiding judge to try the cause on the ground that the judge as a practicing attorney had served as counsel in the cause. We will sustain the point of error and reverse the judgment of the trial court.

It is undisputed that Ethelene Jones, one of the grantors in the deed under which defendant claims title to the disputed tract of land, consulted C. B. Maynard in 1966, then a practicing attorney, and obtained from him a written title opinion which dealt with the identical tract in dispute. Subsequently Ethelene Jones, joined by three other persons claiming an interest in the land, purported to convey the entire tract to Kirven, defendant below, by deed containing a general warranty. This suit, brought to challenge the title purportedly conveyed by Ethelene Jones and others, was tried before C. B. Maynard as district judge who held that Kirven’s title was valid as against the claim of appellants.

When called upon to answer interrogatories in this cause, Kirven under oath asserted that he was “not personally acquainted with any of the facts or issues involved” in the suit, and had “called upon his immediate warrantors in title to defend this action upon their warranty.” Thereafter Ethelene Jones was called by Kirven as a witness and she testified in his behalf in the trial of this case.

The rule governing disqualification of a judge is stated in the Constitution: “No judge shall sit in any case wherein he may be interested ... or when he shall have been counsel in the case.” Constitution of Texas (1876), Art. V, sec. 11.

The Supreme Court, in considering the disqualification of a judge who as an attorney had advised “as to a matter in dispute,” concluded that “the judge would thereafter be disqualified from sitting in the case, when it had ripened into a suit.” Slaven v. Wheeler, 58 Tex. 23, 26 (1882). To this the Court added, “For he has then been of counsel in reference to the matter in dispute, and the reasons for his disqualification to sit in the case will never cease.”

The record in this ease shows that the trial judge, by his own statement, did not recall writing the title opinion on the property involved in the lawsuit and was “not aware of the fact until after the cause had been tried,” when it was called to his attention. The title opinion in the record shows “C. B. Maynard” to have been the author, and the judge stated that he did not know whether he “wrote it or somebody else in my office did.”

The title opinion was addressed to Ethe-lene Jones, and in the opening paragraph the writer of the opinion stated, “We have examined [abstract of title to 100 acres] for the purpose of determining the advisability of filing a partition suit .” The opinion fails to specify the owners of the land and observes that “. the title to the entire 100 acres ... is in hopeless confusion,” and specified steps required before suit for partition should be brought.

Sometime after Ethelene Jones obtained the title opinion from C. B. Maynard, she and others conveyed the land to Kirven, against whom appellants brought suit and who has called upon Ethelene Jones and the other grantors to defend their warranty. If the title under the deed from Ethelene Jones and others to Kirven should fail, Eth-elene Jones and the other grantors become subject to liability as warrantors of title. Ethelene Jones was the sole witness in behalf of Kirven on trial of the title below.

The interests of Ethelene Jones and of Kirven are so allied as to warrant the conclusion that the defendant in this case stands in the place of Ethelene Jones for whom C. B. Maynard was counsel. Childress v. Grim, 57 Tex. 56, 58 (1882).

Although the unquestioned integrity of the judge who presided on the trial of this suit precludes belief he was intentionally biased in his judgment by reason of having been counsel on title to the tract in dispute, nevertheless “upon high grounds of public policy, he must be held so expressly disqualified as to render the judgment” in this case a nullity. Newcome v. Light, 58 Tex. 141, 148 (1882); Slaven v. Wheeler, supra. See also Lee v. Heuman, 10 Tex.Civ.App. 666, 32 S.W. 93 (Galveston 1895, no writ).

The rule in Slaven v. Wheeler, supra, that if as an attorney the trial judge gave advice “as to the matter in dispute,” thereafter, as a judge, he will be disqualified to sit in the same matter which has ripened into suit, was recognized and restated by the Supreme Court in Hobbs v. Campbell, 79 Tex. 360, 15 S.W. 282 (1891). It is sufficient as to the advice given that the judge as an attorney “was consulted professionally,” even though no fee was charged for the advice.

The judgment of the trial court is reversed, and the cause is remanded to district court for new trial.

Reversed and remanded.

      . Appellants who were plaintiffs below are Thelma Brockers Williams, John Brockers, Jr., and William Brockers. Defendant below, the appellee, is Lamar L. Kirven. Grantors in the deed under which Kirven claims title were Ethelene Jones, Leo Jones, Eugene Allen, and Ethel Ruby Canady. The disputed land is known as the “Brockers Tract.” Trial was before the 21st District Court of Bastrop County, Honorable C. B. Maynard, Judge Presiding.


author: SHANNON, Justice.

text:
    Roberta Joye PHILLIPS, Appellant, v. James Michael PHILLIPS, Appellee.
    No. 12377.
    Court of Civil Appeals of Texas, Austin.
    Jan. 14, 1976.
    Rehearing Denied Feb. 4, 1976.

      Melvin N. Gray, San Angelo, for appellant.
    Aubrey Davee, Brady, for appellee.
   SHANNON, Justice.

Appellant, Roberta Joye Phillips, filed suit for divorce against appellee, James Michael Phillips, in the district court of McCulloch County. In that suit appellant sought custody of the children and an order that appellee make child support payments.

After trial to the court, judgment was entered on May 21, 1975, granting the divorce. In the judgment the district court appointed appellant managing conservator of a daughter and appointed appellee managing conservator of four sons. The judgment provided further that appellee pay twenty-five dollars each month until the daughter reached the age of eighteen years.

Appellant’s brief does not comply with the Texas Rules of Civil Procedure in that it contains no points of error. Texas R.Civ.P. 418(b) provides that the brief of an appellant contain a statement of the points upon which the appeal is predicated, separately numbered in short form without argument. The points of error are sufficient if they direct the attention of the court to the error relied upon.

We, nevertheless, have examined appellant’s brief in an effort to discover the substance of appellant’s contentions. From the brief we learn that the testimony at the divorce hearing was not reported, and that trial counsel for appellant did not object to the absence of the court reporter.

Appellant says that ground for reversal exists in that Tex.Rev.Civ.Stat.Ann. art. 2324 and Tex. Family Code Ann. § 14.07 require that a contested divorce proceeding involving the custody of children be reported. Appellant also claims “that failure to provide” a transcript of the testimony is fundamental error and “ . . .a violation of the Constitution (sic) requirement of due process guaranteed by the United States Constitution . . . ”

Article 2324 provides, in general, that each official court reporter shall attend all sessions of the court, take full shorthand notes of all testimony, and prepare a statement of facts upon request.

Section 14.07(c) of the Family Code provides that the court may interview the child in chambers to ascertain the child’s wishes as to his conservator. At the time of the entry of the judgment, Section 14.07(c) provided that in the instance of an interview with the child in chambers, the court “ . shall cause a record of the interview to be made and to be made part of the record in the case.”

As previously indicated, appellant’s counsel made no objection concerning the absence of the court reporter during the divorce hearing. As a result, appellant is not in a position to complain of her inability to obtain a transcript of the testimony in question and answer form. Robinson v. Robinson, 487 S.W.2d 712 (Tex.1972). See Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.1975, writ ref’d). To complain on appeal of the absence of the court reporter, an appellant must show that he objected in the trial court, as he must to complain of any other procedural error in the trial. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.1973, no writ), Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.1974, writ ref’d n. r. e.).

Appellant has not shown that she could not obtain a statement of facts by other means. Even though an appellant has not waived the unavailability of the statement of facts, he is not entitled to reversal on that ground unless he shows that he was deprived of a statement of facts through no fault or negligence of his own and that he attempted without success to obtain a condensed statement in narrative form under Tex.R.Civ.P. 377 or an agreed statement under Tex.R.Civ.P. 378. Whatley v. Whatley, supra.

The absence, in this case, of the statement of facts is not fundamental error. Wilkinson v. Evans, supra, Ducoff v. Ducoff, 523 S.W.2d 264 (Tex.Civ.App.1975, no writ).

As appellant does not support her contention of a constitutional violation by argument or authority, that contention will be considered waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944, writ ref’d), Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref’d n. r. e.). Moreover, it is settled law that a litigant by his act, or omission, may waive a constitutional right. See Young v. City of Colorado, 174 S.W. 986 (Tex.Civ.App.1915, writ ref’d), Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955), Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1943), 16 Amer.Jur.2d Constitutional Law § 131.

The judgment is affirmed.

Affirmed.

      . Effective September 1, 1975, the last sentence of Section 14.07(c) was changed to provide, as follows: “On the motion of a party or on the court’s own motion, the court shall cause a record of the interview to be made and to be made part of the record in the case.”