author: MASSEY, Chief Justice.

text:
    Robert WEBB et al., Appellants, v. Dr. Kenneth L. JORNS et al., Appellees.
    No. 17615.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 10, 1975.
    Rehearing Denied Nov. 21, 1975.
    Rehearing Denied Dec. 19, 1975.

      Holloway & Rhem, and John H. Holloway, Houston, for appellants.
    Cantey, Hanger, Gooch, Cravens & Munn, and Richard L. Griffith, Fort Worth, for appellees, Kenneth L. Jorns, M.D., and E. D. Olcott, M.D.
    Brown, Crowley, Simon & Peebles, and Richard U. Simon, Jr., Fort Worth, for ap-pellees, Irys Eakin and Doctors General Hospital.
   OPINION

MASSEY, Chief Justice.

This is an appeal by plaintiffs in a malpractice suit for wrongful death from a take nothing judgment based upon jury verdict in favor of the defendant doctors, anesthetist and hospital.

We affirm.

The case has previous appellate history. See Webb v. Jorns, 473 S.W.2d 328 (Fort Worth, Tex.Civ.App., 1971, reversed at 488 S.W.2d 407). By the Supreme Court, in 1972, there was remand to the trial court. The instant appeal is from retrial. On the prior appeal this Court agreed that the trial court’s directed verdict was correct in that by the plaintiffs’ evidence no prima facie case had been proved; with which conclusion the Supreme Court disagreed and held that the case should be submitted to a jury for decision.

October 7, 1966, the plaintiffs’ decedent, Mrs. Ella J. Webb, was in the operating room and on the operating table (at the premises of defendant Doctors General Hospital in Fort Worth, Texas) receiving the anesthetic preparatory to intended surgical operation to repair a diaphragmatic hernia. Approximately thirteen minutes after the time when the anesthetic was begun to be administered by the defendant Irys Eakin, anesthetist, it was discovered that Mrs. Webb was cyanotic and that a cardiac arrest had occurred. In other words it was discovered that Mrs. Webb’s heart had stopped functioning in that there was no heartbeat. The doctors, defendants Eugene Olcott and Kenneth L. Jorns, attempted resuscitation. The attempt failed and there was no reversal of the cardiac arrest. The patient was pronounced dead. The material issues were upon the cause(s) of Mrs. Webb’s cardiac failure and/or upon delay, if any, in its discovery, and/or impropriety or insufficiency in resuscitation efforts.

Dr. Jorns had been the attending physician prior to the time of Mrs. Webb’s decision to undergo surgery. Dr. Jorns arranged with Dr. Olcott to perform the surgery, he to act as assistant. Thus the presence of these two doctors in the operating room on the material occasion and their efforts at resuscitation when Mrs. Webb’s cardiac arrest occurred. Operative procedure, other than for preparatory measures and the administering of the anesthetic, never was begun.

Plaintiffs sought recovery upon theories, as follows: 1. negligence on the part of Dr. Olcott before there was decision to resort to surgery and preparations therefor made in the area of failure to obtain informed consent for the surgery (including anesthesia) with full disclosure of hazards necessarily incident, coupled with actual culpable conduct in representations upon the necessity for surgery; 2. failures on the part of Doctors General Hospital to have an adequate training program for procedures necessarily incident to the administering of anesthesia, and to have an adequate electrocardiograph machine available for immediate use incident thereto and to surgical procedures; 3. negligence on the part of Mrs. Eakin relative to the failure to act as circumstances required in the preparation for administering and actual giving of the anesthetic, and/or negligence in the form and movements of the action she did take; 4. negligence on the part of both Dr. Olcott and Dr. Jorns, and/or either of them, in connection with negligent failure to use an electrocardiograph machine for diagnosis, to administer certain medicines or drugs, to check the patient, to properly place esophageal stethoscope, to continue resuscitation efforts, and to administer internal heart massage.

The jury found against the plaintiffs on all the liability issues, or sets thereof, or rather it might more properly be said that the jury refused to find for the plaintiffs on their issues.

The same is true as applied to the damage issues. On all of them the jury found zero dollars and cents to represent the loss occasioned by her death to her husband, her children, and her parents, all of whom had joined as plaintiffs in the case. From the record we have concluded that most of these answers constituted error. (Points of error 70-75, incl.) The error by the answers would not constitute reversible error if there was not reversible error in the jury findings upon liability. Here there was failure or refusal by the jury to find the fact of any defendant’s negligence, and, where for purpose of inquiry a failure on the part of any defendant was assumed and the questions asked either as to negligence or proximate cause the jury refused to find that such constituted negligence or a proximate cause of Mrs. Webb’s death (or cardiac arrest). Such liability findings (or refusals to find for the plaintiffs) are attacked in two ways. In most instances plaintiffs contend that the state of the evidence in the record is such that as a matter of law the contrary of the answers returned by the jury was compelled; in all instances their contention is that the answers were so contrary to the great weight and preponderance of the evidence as to be clearly wrong. We have examined the record and hold the attack made upon the jury’s verdict under either contention to be without merit.

We list the material inquiries made by special issues in the court’s charge, with the numbers of the special issues of importance indicated by parentheses.

On Dr. Olcott: Did he (1) fail to advise Mrs. Webb of the risk of fatality in connection with proposed surgery and anesthetic procedures; (4) fail to advise her of the radiologists’ interpretation of the X-rays taken, as reflected by the X-ray reports in the hospital records; (10) fail to advise that her symptoms, if any, related to a diaphragmatic hernia, if any, could be treated medically with appropriate drugs, and that the suggested hernia surgery was recommended solely on her election to have the surgery if her symptoms were in her opinion “sufficient” that she did not want to live with them. Further, the jury refused to find that (7) Dr. Olcott advised Mrs. Webb that if she did not submit to surgery she might choke or strangle to death. Further, the jury found that (11) Mrs. Webb was suffering from a large diaphragmatic hernia, and (11-A) that Dr. Olcott’s statement that she was suffering from such a condition was true.

On Doctors General Hospital: The jury refused to find (16) that the hospital failed to have an adequate training program of operating room personnel and staff physicians permitted to perform surgery, and to train them in standard procedures in the event a patient should suffer respiratory or cardiac problems during anesthetic procedures or surgery. The jury refused to find that (19) the hospital failed to have an electrocardiograph machine available for immediate use in the operating room in the event of cardiac problems.

General: The jury refused to find (45) that the respiratory or cardiac problems, or both, experienced by Mrs. Webb in the operating room was a direct or proximate result of an overdose of anesthetic agents.

On Drs. Olcott and Jorns (either and both) upon surgical preparation for operative procedure up to and after time of Mrs. Webb’s apparent death because of failure of resuscitation efforts to which there was resort: Upon “failures” assumed for purposes of special inquiry the jury refused to find negligence and also refused to find proximate cause in (22, 23, 24 and 25) any failure to use the electrocardiograph machine for diagnosis of the cardiac problem under the circumstances; and (26 and 27) refused to find negligence in the failure to administer sodium bicarbonate to Mrs. Webb during resuscitation efforts; (29 and 30), in the failure to administer Adrenalin (Epinephrine) or other cardiotonic drug to Mrs. Webb during resuscitation efforts; and/or (32 and 33) in the failure to administer internal heart massage. The jury refused to find that (14) Dr. Jorns failed to obtain Mrs. Webb’s informed consent for the proposed surgery and anesthetic procedure. The jury refused to find Dr. Olcott negligent in (55-A) failing to place an esophageal stethoscope in Mrs. Webb to continuously monitor the patient’s heart functions in a scheduled thoracic surgery; or in (48) failing to continue the resuscitation efforts past the period of time involved in such efforts. Further (41 and 42) the jury refused to find that Dr. Olcott and Jorns failed to check Mrs. Webb’s lungs after discovery of her cyanosis to determine that she was receiving proper ventilation and oxygen. On the foregoing: as applied to Dr. Jorns there was no special issue inquiry relative to his failure to continue resuscitation efforts, nor to his failure to place an esophageal stethoscope in Mrs. Webb to continuously monitor her heart functions in her scheduled thoracic surgery. By jury answers noted to this point there was an acquittal of liability of all defendants other than Mrs. Eakin.

On Mrs. Eakin: By (52) the jury found that Mrs. Eakin failed to continuously monitor the heart of Mrs. Webb with a stethoscope after commencement of anesthetic drugs and prior to intubation with the en-dotracheal tube, but by (53), conditionally submitted, the jury refused to find that such failure was negligence. By (56) the jury refused to find a failure by Mrs. Eakin to maintain observation of Mrs. Webb’s blood pressure, pulse rate, and vital signs during induction of the anesthetics, or (57) that Mrs. Eakin’s failure, if any, was negligence, or (58) that such negligence, if any, was a proximate cause of death. In other issues where by the submission the fact of a character of “failure” on the part of Mrs. Eakin was assumed the jury refused to find her negligent (50) in the failure to use a four-liter flow of carrier gasses (2 liters of oxygen and 2 liters of nitrous oxide); and refused to find a proximate cause of Mrs. Webb’s death by her (51) failure to use a four-liter flow of carrier gasses (2 liters of oxygen and 2 liters of nitrous oxide) with Halothane continuously. Where there was like assumption of some character of “failure” on the part of Mrs. Eakin in other special issues the jury refused to find her negligent by (54) failure to place an esophageal stethoscope in Mrs. Webb to continuously monitor her heart functions in a scheduled thoracic surgery or by (59) failure to have someone furnish Mrs. Webb adequate oxygen by timely and properly mashing the bag on the anesthetic machine (bag feeding and patient) between the time of the initial injection of 250 milligrams of Sodium Pentothal and the time necessary for Mrs. Eakin to change the I. V. to the patient’s other arm, administer additional Sodium Pentothal and adding the moderate drip of Anectine, and then returning to the anesthetic machine to resume bag feeding the patient with oxygen. Further, the jury refused to find as matters of fact that Mrs. Eakin (35) failed to properly place the endo-tracheal tube in Mrs. Webb’s trachea so as to maintain adequate and efficient ventilation of her lungs while anesthetics were being administered; (36) that she failed to maintain adequate and efficient ventilation of Mrs. Webb’s lungs while she was “bag feeding” (controlled respiration) the patient prior to discovery of her cyanosis; (37) that she failed to check Mrs. Webb’s lungs after intubation to determine if she was receiving proper ventilation and oxygen; or (40) that she failed to check Mrs. Webb’s lungs after discovery of her cyanosis to determine if she was receiving proper ventilation and oxygen.

By such jury answers Mrs. Eakin was acquitted of legal liability.

No special issue was submitted by affirmative answer to which there might have been found an agency of Mrs. Eakin for any other defendant as a principal (under doctrine of respondeat superior) though evidence in the record reflects that a fact issue had been raised thereon. Noted is the fact that Doctors Jorns and Olcott objected to the court’s charge because of the absence of such an issue, thereby protecting themselves, but that plaintiffs made no similar objection. Neither was there submission of any issues by which plaintiffs might have established a right to recover under the theory of res ipsa loquitur. On appeal there is no complaint directed to any absence of special issues.

We take occasion to note that defendants insist that we are obliged to disregard complaints by plaintiffs that jury findings against them (or refusals by the jury to find for them) were either contrary to the great weight and preponderance of the evidence or that the contrary of jury findings were established as a matter of law in instances where there was conditional submission of additional special issues not answered by instruction of the court in the charge. Defendants contend that such issues, unanswered because the jury was instructed to answer only in the event they had found in the affirmative (or “Yes”) to the issue or issues preceding, should be deemed to have been answered by the court in manner to support the judgment.

In other words, the defendants say that where there is failure on the part of the jury to find the fact desired by a plaintiff so that in obedience to the court’s direction they do not answer another or other issues conditionally submitted and thus to be answered only in the event that the jury should first find the fact, then — in support of its judgment — the court is deemed to have found answers thereto. They say that by implied findings of the court there was neither negligence or proximate cause of the plaintiffs’ injury even if the jury erred in the fact finding upon which negligence and proximate cause inquiry was conditionally submitted. They say that where there is no complaint and preservation thereof on the presumed finding the conditionally submitted issues the finding presumed will stand in support of the judgment. They cite T.R.C.P. 279, “Submission of Issues”; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 990, 991 (1949), and other cases.

We have considered the complaints of plaintiffs where their points contend answers returned were against the great weight and preponderance of the evidence. We reject the contentions of the defendants that such character of complaint can not be considered. In a “three-issue submission” (or more than such number) where there is conditional submission of special issues directed to be answered by the jury only upon returning the fact finding of certain character to the issue, upon which necessity for additional answers by the jury is made to depend, there is no authority for any presumed finding by the court upon any answer to issues conditionally submitted in Rule 279.

Where on appeal there is propriety to sustain the complaint by the losing party that the jury finding against him upon the issue upon which others are conditionally submitted is so contrary to the great weight and preponderance of the evidence as to be clearly erroneous, there is no prejudice to the complainants’ right to have reversal because of any unanswered issues conditionally submitted. If reversible error is made to appear by the jury finding against the great weight and preponderance of the evidence reversibility is not to be deemed waived merely because there was no requirement of the jury that the conditionally submitted issues be answered. Complainant is not obliged to have ever attacked the conditionally submitted issues or to have ever requested a different form of submission. Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup., 1963).

The Supreme Court, in Strauss v. LaMark, was writing upon an instance where the Court of Civil Appeals had held the answer of a jury which refused to find existence of the fact for which there was contention by a plaintiff to have been contrary to the great weight and preponderance of the evidence. There had been no answers returned to the conditionally submitted issues. The jury was instructed to answer these only in the event there was a contrary answer returned to that issue upon which they were conditioned. It would seem evident by the opinion that the same rule would apply where returning an answer to a proximate cause issue was made to depend upon a finding of negligence. Such rule would not apply where it is the contention on appeal that the contrary of the answer returned by the jury was established by the evidence in the record as a matter of law for under the contention there would not, necessarily, be need for any supplementary conditional submission. Hence there would be “waiver” by failure to complain because of the conditional submission. The unanswered issue would there be regarded as having been answered by the court in such manner as to support the judgment. Bell v. Aetna Casualty and Surety Company, 394 S.W.2d 830, 834 (Houston, Tex.Civ.App., 1965, writ ref., n.r. e.); Williams v. Bailey, 471 S.W.2d 446, 448 (Waco, Tex.Civ.App., 1971, writ ref., n.r.e.). Hence our holding is that there has been waiver by plaintiffs under the theory that any answer contrary to that found by the jury was compelled as a matter of law while at the same time holding there was no waiver where the contention is that preliminary fact findings are contrary to the great weight and preponderance of the evidence.

We have, on the instant appeal, tested every answer of the jury by the evidence in the record. In no instance, except for the findings upon damages, do we find the answer returned to have been contrary to the great weight and preponderance of the evidence. Findings on the damage issues are immaterial in this case for reasons previously stated.

The trial court received a good verdict, upon the basis of which it rendered judgment.

Following the return of the verdict of the jury the court proceeded to read to all present the questions and answers returned. There was a total of more than 63 of these. (Plaintiffs obtained submission of every special issue they desired in this case, apparently in language chosen by them.) By the time the court had completed the reading of the question and answer to Special Issue No. 40 it should have been apparent to plaintiffs, and probably was apparent, that the jury verdict would acquit Doctors General Hospital and Doctors Oleo tt and Jorns of liability, and probably would likewise acquit Mrs. Eakin. At this stage plaintiffs announced that they were taking a non-suit. If allowed the claims of all plaintiffs in the case, except the minor children of Mrs. Webb, would be subject to defeat in any suit subsequently brought by pleas of limitation on the part of any defendant who might wish to advance such.

The court denied plaintiffs’ motion for non-suit. Because of this they claim reversible error. By T.R.C.P. 164, “Non-Suit”, a plaintiff may take a non-suit in a jury case at any time before the jury has retired to consider its verdict. By inherent authority of the court in the exercise of its discretion it might thereafter allow the taking of non-suit up to the point in time when the jury’s verdict has been accepted. Albert v. Albert, 377 S.W.2d 772 (San Antonio, Tex.Civ. App., 1964, writ ref., n.r.e.). Here the verdict had been returned but was not yet accepted. Anyway the motion for non-suit was made after the jury retired to consider its verdict and this was the time by which plaintiffs must have moved for non-suit if they were to be entitled to it as a matter of right.

Plaintiffs claim further that the provisions of Rule 164 are unconstitutional. No authority is cited. We are unimpressed. We hold the rule and its provisions constitutional and overrule plaintiffs’ claim of error in the refusal of their non-suit.

Further points of error are directed to the manner by which trial was conducted, in particular to the rulings of the court by which evidence thought to be improper and inadmissible was allowed to be placed before the jury by the defendants in the case, and to rulings of the court by which there was exclusion of evidence which plaintiffs desired to have before the jury. On the latter there is particular complaint of the denial to plaintiffs of the right to use recognized medical texts for impeachment purposes in the cross-examination of defendants’ medical expert witnesses.

Did the trial court err in overruling plaintiffs’ objections to answers by Dr. Olcott and defendants’ expert, Dr. Ice, relative to possible causes of cardiac arrest in general? Error because thereof is the subject of complaint in plaintiffs’ Points of Error 76 and 77. They maintain that the testimony from the doctors should have been limited to the medical probability for the cause of cardiac arrest in the case of Mrs. Webb, the deceased. Furthermore plaintiffs maintain that the testimony received over their objection was mere speculation and conjecture since experts must limit their remarks to medical probability, and that in their testimony they were basing inferences upon inferences.

In Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 707 (Tex.Sup., 1970) it was actually held to constitute error to refuse to allow an expert medical witness to testify concerning the possible causes of a physical malady of a patient who lived. The rule should be the same as applied to one who died. The court held that expert testimony concerning the possible causes of the condition in question will often assist the trier of fact in evaluating other evidence; that if the witness be permitted to state his opinion only in terms of medical probability there would not be opportunity to decide the case on the substance rather than the form of his testimony, and that testimony on the possible causes of the malady by the expert witness should be admitted into evidence before the trier of fact. The rule of “reasonable medical probability” by expert testimony relates to the showing that must be made to support on ultimate issue of fact and not the standard by which the expert must testify.

As plaintiffs present it, “The ‘sole purpose’ of Defendant Olcott and Witness Ice in enumerating ‘possible causes’ of cardiac arrest was to detract the jury from qualified expert (plaintiffs’) opinions in causation, and to interject ‘speculation and conjecture’ for the jury’s deliberations.” To a point plaintiffs’ representation is correct, though the term “speculation and conjecture” is improper by Lenger, supra. By Lenger the testimony of Doctors Olcott and Ice concerning possible causes of cardiac arrests in general and/or in the specific case of Mrs. Webb served the purpose of assisting the jury to evaluate the evidence and opinions of plaintiffs’ expert witnesses. It was properly admitted for this reason.

To be observed in the prior opinions (473 S.W.2d 328 and 488 S.W.2d 407) perhaps the strongest premise for plaintiffs’ belief that liability exists in this case lies in their contention that there was mismanagement of the anesthetic and/or the oxygen supplied and administered to Mrs. Webb prior to discovery of her cardiac arrest. That was the contention in both the first and the second trial. On the instant appeal the contention of the plaintiffs is that the “oversupply” of Halothane in the anesthetic administered to Mrs. Webb — because of an “undersupply” of agents by which it, and other anesthetics including oxygen, was administered — at a time when the administering of the total anesthetic should have been increased to a “four-liter flow” — amounted to negligence and proximate cause of Mrs. Webb’s cardiac failure and consequent death.

By the time Dr. Ice, defendants’ expert witness, gave his testimony it was already disclosed in the record that the manufacturer of the machine by which the Halothane (as a part of the mixture comprising the anesthesia) was administered recommended a per-minute “four-liter flow” of the agents incorporative of the Halothane at the material time. Testimony from Mrs. Eakin, the anesthetist, was that she never administered or increased the rate to as much as a “two-liter flow”.

From other sources the jury was not left in doubt of the manufacturer’s recommendations nor in doubt that plaintiffs’ medical experts deemed such recommendations to constitute proper medical practice and a deviation therefrom as such improper procedure as to amount to malpractice. In other words the issue was raised. However the court refused to permit use of the manufacturer’s recommendations to impeach the testimony of Mrs. Eakin and Dr. Ice. The manufacturer, probably a corporation, but in any event someone not proved to have been a medical expert, could not by its literature have established any medical standard for its use for purposes of trial in a court of law. Admission of such could prove nothing more than the fact that the manufacturer made a recommendation and the substance thereof. On cross-examination without the admission by the medical expert being interrogated (even one such as Mrs. Eakin, for the administration of proper anesthetic was indisputably within her field of expertise) that he honored and accepted the recommendations of the manufacturer as “authority” relative to the flow rate of the anesthetic and the proper mixture and percentage of drugs and ingredients therein the manufacturer’s recommendation could never qualify as an exception to the general rule which excludes hearsay either from or as applied to the witness being interrogated. Even by such an admission of the witness it would not be as original evidence proving something, but impeaching evidence merely as applied to the original testimony given by the witness who thereupon conceded it to be his “authority” or to be “standard authority”.

There are a great many texts upon medical practice and expertise in the field of both the preparation and administration of anesthetics and in the field of cardiac failures and resuscitation procedures to which there should be resort in the event of its occurrence. It was by use of such texts that plaintiffs’ attorney attempted to impeach some of defendants’ medical experts, as well as Mrs. Eakin. Particularly was the effort to be observed in the instance of plaintiffs’ cross-examination of Dr. Ice who refused to concede that anything written was considered by him to constitute “authority”, though acknowledging that much written was “worth reading” and to be taken into consideration in the practice of medicine, and that in the view of some physicians — not himself — was “authoritative”.

We may take judicial notice that there are medical and anesthetic experts in the medical field, and that they have written books in their fields of expertise. Of course what has been written is not original evidence. If the author of such a book was present he might give original testimony; if not what he has written may not be likewise given for the reason, among others, that he is not present so that he might be cross-examined. To show that to which he would have testified if present and subject to cross-examination, it is frequently desired to use a book that he has written. But this cannot be done unless a witness who has been qualified as an expert by a litigant’s opponent has done both of two things, viz: (1) he must have testified that he recognized the absent author expert as “standard authority”, or as “authority” by which he, at the material time, and as applied to the particular field of expertise upon which the book was written, was guided in the practice of his profession; and (2) he must have testified to the contrary of what is written in the book. When this condition exists that to which he has testified may be impeached by proving through use of the book the different opinion of the absent author, and/or something different in what should or should not be done in the circumstances. The statement above is somewhat abbreviated but is our “shorthand” statement of the rule. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 783, 13 A.L.R.2d 1 (1949) and cases cited therein. A very recent case where the exact matter here discussed was treated in a case of similarity, with holding by the court like unto our own, was Seeley v. Eaton, 506 S.W.2d 719, 723 (Houston, Tex.Civ.App., 14th Dist., 1974, writ ref., n.r.e.).

To produce the statements from the book, as above, is done by what is commonly termed “impeachment of the witness”. The theory of propriety of proof of statements therein is because of the acknowledgment of it by the witness as authority which is to be recognized and obeyed, accompanied by the witness’ disobedience and/or negligent failure to obey. In practice it amounts to a manner by which a kind of original evidence is introduced before the jury as a by-product and consequence. In law it, in itself, never attains the stature of original evidence, for standing alone it would constitute mere hearsay. It would not support a judgment or issue in a case. Bowles v. Bourdon, supra.

In the present instance, and as applied to several instances of plaintiffs’ attempt to cross-examine Mrs. Eakin and defendants’ medical experts the court ruled that the books written by medical authorities in their fields of expertise could not be used. In other words plaintiffs were not permitted to read therefrom and ask the witness under cross-examination whether he conformed, etc. Included among the material in the books sought to be used was instruction and recommendations concerning the use of Halothane as part of the anesthesia. But plaintiffs’ expert witnesses refused to concede that they recognized any such author or book as “authority”. It was because of defendants’ experts’ refusal to so concede that the court denied plaintiffs any right to use the texts in their cross-examination. With some exceptions noticed in the record the same thing applied to Mrs. Eakin by her refusal to acknowledge as her “authority” certain matter written by experts in the anesthesia field. By Bowles v. Bourdon, supra, the court did not err in excluding or limiting cross-examination of any or the defendants’ witnesses.

Plaintiffs quote in their brief as from McCormack and Ray on Evidence, p. 743. That which is quoted (per plaintiffs) is in the main philosophical. It apparently recognizes that most courts do allow the use of learned materials in the cross-examination of expert witnesses where the expert has relied upon such in forming the opinion to which he has testified on cross-examination. Observed thereafter is that some courts would require only that the witness acknowledge that the material sought to be used in his impeachment is recognized authority in the field though he has not relied upon it. The discussion continues in broadened areas of consideration in arriving at what the text authors seem to feel the rule should be rather than what it is generally acknowledged to be. What is impliedly observed is that ordinarily judgments of courts will not be reversed where on trial such evidence is either admitted or excluded.

Here the trial court excluded the evidence desired and we are not disposed to reverse the case because of the exclusion. We do not deem the exclusion erroneous. Even should it amount to error we hold that it did not constitute reversible error because any error by exclusion was not such as would be calculated to cause and probably did cause the jury to have returned a verdict different from that it would have returned had there not been an exclusion. T.R.C.P. 434, “If Judgment Reversed”.

There is complaint by point of error because the trial court admitted into evidence, as part of the hospital records, a written instrument signed by Mrs. Webb consenting to surgery if there should be decision to resort thereto, and reciting that she had been informed of the “risks and complications” incident thereto, etc. The instrument was dated September 30, 1966, four days before Dr. Olcott ever saw her.

The complaint is overruled. Plaintiffs overlook the fact that Dr. Jorns was Mrs. Webb’s attending physician and that he associated Dr. Olcott to perform the surgery, upon decision made to resort thereto. No issue submits inquiry upon Dr. Jorns’ failure to obtain Mrs. Webb’s informed consent. After Dr. Olcott became associated he discussed the situation with Mrs. Webb, and Dr. Jorns had previously discussed the situation with her. By direction of Dr. Jorns her hospitalization was for tests and possible surgery. The written “consent” instrument was evidentiary and admissible. Its weight and probative force and effect was for the jury. It did not prove a lack of informed consent. Information imparted to a patient contemplating surgery is ordinarily oral, rarely in written form. Such was the nature of the information, if any, imparted to Mrs. Webb in the instant case. The only evidence in the record is that there was informed consent in this case. If the jury had found informed consent wanting a contention by defendants that the finding was against the great weight and preponderance of the evidence might have been proper to be sustained.

Finally plaintiffs present a point of error by which they contend that a new trial should be ordered in the interest of justice because of the multiple probable errors. In the argument thereunder they refer to the probable suppression of their expert witnesses coupled with denial of right to impeach the expert witnesses of the defendants, plus the verdict of the jury representing jury bias and prejudice. We have considered the contention and overrule it. Points of complaint have been individually considered and rejected. The jury findings collectively, including those whereby it refused to find damages, do not in this case necessarily, or even probably, demonstrate that the jury was biased.

Judgment is affirmed.

ON MOTION FOR REHEARING

Plaintiffs’ counsel has pointed out that in the original opinion we failed to pass upon points of error whereby there was complaint because of the exclusion, on trial, of testimony from their expert witnesses, Drs. Dannemiller and Taylor, relative to the manufacturer’s recommendations for the unit flow of gas required in the use of Halothane.

It is true that we overlooked writing thereupon. We did give the matter consideration as will be observed at the very beginning of the section of the opinion where we noted complaints concerning rulings of the court by which there was exclusion of evidence which the plaintiffs desired to have before the jury. We did fail to specifically rule on the particular complaints).

Relative thereto we remark that, as evidenced in the prior opinion, there is no doubt that the jury had before it by undisputed evidence the manufacturer’s recommendations for the unit flow of gas. Testimony received left no doubt in the minds of the jury that plaintiffs’ expert witnesses were of the opinion that to use such procedure as recommended by the manufacturer — without necessity of reference to the manufacturer’s material by which those recommendations were evidenced — was correct procedure. Nor was the jury left in doubt that such witnesses were of the expert opinion that the procedure to which there was resort in the instant case was improper.

The points of error are overruled as constituting “harmless error”. T.R.C.P. 434, “If Judgment Reversed”.

On rehearing we have also reconsidered all those points of error, in addition to those presenting complaint here written upon, which plaintiffs contend were not passed upon. These we have concluded to be without merit and are all overruled.

Motion for rehearing is overruled.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    C. E. ROSS, Appellant, v. GULF REFINING COMPANY et al., Appellees.
    No. 4830.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 10, 1975.
    Clyde Y. Sweeney, Stephenville, for appellant.
    Hugh Anderson, Lubbock, for appellees.
   McCLOUD, Chief Justice.

This is a venue case. Plaintiff, C. E. Ross, sued defendants, Gulf Refining Company, a corporation, BACCO, Inc., a corporation, and Richard B. Fletcher, d/b/a 4 — B Construction Company, to foreclose a mechanic’s lien for labor performed by Ross for Fletcher, a sub-contractor of BACCO, Inc., the general contractor for Gulf. Plaintiff alleged the work was performed on a gas pipeline owned by Gulf and located in Shackelford County. BACCO, Inc., and Gulf filed pleas of privilege which Ross controverted alleging venue was proper in Shackelford County under Subdivision 12 of Article 1995, Tex.Rev.Civ.Stat. The court sustained the pleas of privilege.

Plaintiff has appealed. We affirm. Subdivision 12 provides:
“12. Lien. — A suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”

In 1 McDonald, Texas Civil Practice, § 4.20 it is stated the venue facts which a plaintiff must establish under Subdivision 12 are:

“(I) the nature of the action, determined from the petition; and (II) the location of the property or part thereof in the county at the time of institution of the suit, established by extrinsic evidence.’’ (Emphasis added)

The court in Hagan v. Anderson, 506 S.W.2d 298 (Tex.Civ.App.—San Antonio 1974), writ ref’d n. r. e. per curiam, 513 S.W.2d 818 (Tex.1974), said:

“In order to maintain venue under Subdivision 12, a plaintiff need only show that his action is one for the foreclosure of a lien and that the property subject to the lien is located in the county in which suit is brought. The nature of the action as one for foreclosure of a lien is determined by the allegations of the petition, while the location of the land is established by extrinsic evidence. Despite some earlier holdings to the contrary, it is now established that a plaintiff who pleads a lien and shows that the land is located in the county in which his action has been filed need not establish by extrinsic evidence that he in fact has a lien enforceable against the defendant. Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950); Knape v. Davidson, 465 S.W.2d 448 (Tex.Civ.App., Tyler 1971, writ dism’d).”

In the instant ease plaintiff failed to prove by extrinsic evidence the property was located in Shackelford County. Eastham v. Farmer, 193 S.W.2d 568 (Tex.Civ. App.—San Antonio 1946, no writ); George v. Northwest Engineering Company, 156 S.W.2d 576 (Tex.Civ.App.—San Antonio 1941, no writ); Moran v. First Paving Corporation, 469 S.W.2d 30 (Tex.Civ.App.—Fort Worth 1971, no writ); and Burt v. Bill Lisle Drilling Co., 401 S.W.2d 267 (Tex.Civ.App.—Fort Worth 1966, writ dism.).

Morgan Farms v. Brown, 231 S.W.2d 790 (Tex.Civ.App.—San Antonio 1950), approved per curiam, Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950), held a plaintiff under Subdivision 12 need only allege a lien upon the property without the necessity of proving a valid debt and lien. Morgan Farms does not stand for the proposition the location of the property may also be established by reference to the pleadings.

The judgment of the trial court is affirmed.

WALTER, J., not participating.


author: STEPHENSON, Justice.

text:
    Nona M. PIPES and Pat Mewhinney Hennessy, Appellants, v. Sonja CHRISTENSON, Administratrix, Estate of Hubert Mewhinney, Deceased, Appellee.
    No. 7735.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 16, 1975.
    Rehearing Denied Nov. 6, 1975.

      Stanley F. Swenson and Philip M. Shafer, Houston, for appellants.
    James E. Faulkner, Cold Springs, for ap-pellee.
   STEPHENSON, Justice.

The appeal is from an order of the constitutional County Court of San Jacinto County denying an application to remove the administratrix of the estate of Hubert Me-whinney, deceased. We will designate the moving parties, the surviving children of the intestate deceased by a prior marriage, as Petitioners, and will refer to the surviving widow as Respondent.

Deceased died intestate on November 5, 1973, and Respondent filed her application to be appointed temporary administratrix of his estate on November 9, 1973, alleging that the deceased left an estate of the approximate value of $2,000. The application was granted, and Respondent qualified as temporary administratrix on the same day after filing her bond in the amount of $1,000. On November 26 she was appointed permanent administratrix, the bond fixed at the sum of $1,000, and she duly qualified as permanent administratrix of the estate by filing her oath and bond shortly thereafter.

In the meanwhile, on November 14, 1973, the temporary administratrix secured possession of $1,400 in cash and certain items of personal property then in the custody of the Sheriff of San Jacinto County by virtue of an order signed by the Judge of the Probate Court of said county entered in the pending proceedings now under review.

On November 30, 1973, Respondent made demand upon a savings and loan association in Temple and received in excess of $15,000 in cash from such association, the checks being made payable to her in her capacity as administratrix. The deposits in the Temple association stood in the name of the deceased and his mother, Stella Mewhinney.

Shortly thereafter, Respondent received $11,197.10 from a savings and loan association in Arlington, Virginia, the check being made payable to her in her capacity as administratrix of the estate of her deceased husband. This sum represented a savings account in the name of James Sam Mewhin-ney, Jr., trustee for the intestate.

Respondent did not file any inventory and appraisement of the estate as required by Tex.Prob.Code Ann. § 250 (Supp. 1974— 1975). Instead, as she testified on the removal hearing, she paid out large sums of money in discharging what she termed community debts, but no claims were filed, presented, or ordered paid, as required under Tex.Prob.Code, Chap. 8, Part 4, § 294 et seq. (1956).

On February 1, 1974, petitioner, Nona Pipes, filed an application for a new bond alleging that Respondent had come into possession of a large sum of money and the bond in the sum of $1,000 was insufficient to protect the interests of the heirs of the deceased. Upon default by Respondent, the court entered an order on July 30, 1974, requiring Respondent to file a new bond in the amount of $37,500 within ten days after the entry of such order. The new bond was not filed within the time required by the order.

Thereafter, Mrs. Pipes, joined by another child of the deceased, filed their joint motion to remove Respondent. The surety upon the administratrix’s bond, Western Surety Company, was joined as a party respondent in this proceeding. Lengthy allegations were made that Respondent, having come into possession of large sums of money, as mentioned earlier herein, had paid some of the money out in satisfaction of alleged debts, without requiring claims to be filed; that she had appropriated the money to her own use and benefit; that she had failed to file the inventory and list of claims as required by law; that she had ignored the court’s prior order as to the amount of the increased bond. Further allegations were to the effect that Respondent “has misapplied or embezzled, or that she is about to misapply and embezzle” about $28,000 which had come into her possession as administratrix; that the adminis-tratrix “is insolvent, and that if Respondent [administratrix] has not already squandered and dissipated said above-mentioned sums of cash money . . . that she will squander and dissipate” the same.

At a hearing upon the motion to remove Respondent held on September 20, 1974, the trial court dismissed the surety upon the bond and announced from the bench an order denying the motion of petitioners to remove Respondent. The earlier order increasing the amount of the bond was reaffirmed, but the time within which to file such bond was extended to November 1, 1974. No formal order embodying this judgment was entered until March 25, 1975. It is from this last order denying their motion to remove Respondent that this appeal is taken.

Petitioners filed a lengthy brief containing twenty-seven points of error. Respondent has not favored us with any brief nor has counsel for her surety filed a reply brief. Under these circumstances, we will invoke the provisions of Tex.R.Civ.P. 419. Crawford v. Modos, 465 S.W.2d 220, 222 (Tex.Civ.App.—Beaumont 1971, writ dism.).

Our review of the record convinces us that the trial court erred in denying petitioners’ motion to remove Respondent as administratrix of the estate. She could have been removed without notice under the provisions of Tex.Prob.Code Ann. § 222(a)(2) (Supp. 1974 — 1975), since she failed to return an inventory of the property of the estate and a list of claims within ninety days of her qualification and had neither sought nor procured an extension of time within which to do so. Having been required to give a new bond, she failed, and her removal without notice would have been authorized by § 222(a)(3) (Supp. 1974-1975).

More importantly, however, after due notice by personal service, her failure to return the inventory and list of claims and to file the new bond were shown without dispute. Thus, removal was authorized under Tex.Prob.Code Ann. § 222(b)(3) and (4) (Supp. 1974-1975). We do not deem it necessary to cite the court decisions which support removal under the instances set out. See generally M. Woodward and E. Smith, 18 Texas Practice, Probate and Decedents’ Estates §§ 663 and 664 at 35-37 et seq. (1971), and cases therein cited.

The so-called inventory filed by Respondent on October 7, 1974, discloses that she claims to have paid out more than twenty-five thousand dollars to more than thirty different individuals and entities, and there is not a record of a single claim having been filed against the estate. There is only one receipt attached, one for $849.18 for funeral services. Several notes are shown to have been paid, but no information is given as to the person liable thereon; $500 is said to have gone in payment of “various charge accounts (Joskes, Glove, Battlesteins, etc.). . Gas, oil, eats, drinks, lodging and traveling expences necessarily and reasonably incurred” by Respondent are said to have been paid in the even amount of $2,000; while one item is reproduced in its entirety: “Community Note and debt paid by Uncle Joe Perry paid by Administratrix $7,250.00 paid in January and February of 1974.”

As to the latter item, it appears from her testimony that this sum was paid in cash with the Respondent and Uncle Joe Perry being the only witnesses to the alleged payment.

From the abbreviated record which we review, it is impossible to determine whether or not the sums received in cash constituted community or separate property of the deceased. The trial court did not conduct a meaningful inquiry into the source of these funds and the record does not permit our passing upon this facet of the case. It is obvious, however, that a large part of the estate has been placed beyond reach of the court and the heirs of the decedent — and that such as been accomplished by the Respondent without following any of the applicable provisions of the Probate Code. Thus, while Respondent claims that she has paid out over twenty-five thousand dollars in payment of claims against the estate, not a single claimant complied with the provisions of Tex.Prob. Code Ann. § 319 (1956) reading:

“Except as provided for payment at his own risk by a guardian of an unauthenticated claim, no claim for money against the estate of a decedent or ward, or any part thereof, shall be paid until it has been approved by the court or established by the judgment of a court of competent jurisdiction.”

More than a hundred years ago, our Supreme Court, in considering the predecessor statute governing presentment of claims said in Converse & Co. v. Sorley, 39 Tex. 515, 528 (1873):

“It follows most clearly that as the statute is direct and mandatory, and neither the administrator nor the probate court has the power or authority to settle any such claim without authentication as prescribed by statute, any attempt to do so would be in direct violation of law, and must of necessity be void. Indeed, such a direct and palpable violation of so plain and notorious a provision of the statute by the creditor, administrator, and the court, and particularly under the circumstances surrounding this case, would raise a sufficiently strong presumption of fraud and combination to vitiate the whole transaction.’’ (Emphasis supplied.)

In Small v. Small, 434 S.W.2d 940, 942 (Tex.Civ.App.—Waco 1968, writ ref’d n. r. e.), it was held that a claim presented without proper verification was void and the allowance by the administrator had no effect whatsoever, the whole transaction being a nullity.

Respondent has insisted, throughout the proceedings and even in the bob-tailed inventory which she eventually filed, that the property which she received was community property; a fact which we are unable to determine from this record and which was not established upon the hearing below. Assuming, arguendo, that such sums received from the savings and loan associations constituted community property, Respondent, as the surviving widow, would be entitled to three-sixths thereof after payment of all indebtedness and expenses of administration, and not five-sixths as she contended.

The judgment of the trial court is reversed, and this cause is remanded with instructions for the entry of an order:

(1) Removing Respondent as administra-trix of this estate;
(2) Ordering Respondent to file a final accounting;
(3) Appointing a new administrator or administratrix;
(4) Ordering Respondent to deliver all money and property of this estate that has come into her hands to the successor administrator.

The judgment dismissing the surety upon Respondent’s bond is affirmed without prejudice to any claim the successor administrator may make against Respondent and said surety.

Reversed with instructions.


author: TUNKS, Chief Justice.

text:
    H. D. HORN et al., Appellants, v. FIRST BANK OF HOUSTON, Texas, Appellee.
    No. 1240.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 5, 1975.

      Leo A. Kissner, Houston, for appellant.
    Charles B. Wolfe, Lee, Brown & Wylie, Houston, for appellee.
   TUNKS, Chief Justice.

This is an appeal from a summary judgment for the plaintiff on a note and guaranty agreements. Appellee First Bank of Houston sought recovery on a promissory note from appellants H. D. Horn, F. H. Horn, Horn Investment Company, and Amco Investment Corporation and on guaranty agreements from appellants Mrs. H. D. Horn and Mrs. F. H. Horn. Appellee’s motion for summary judgment was supported by the affidavit of Mr. Carl J. Walker, its vice-president and cashier. The affidavit recited that Mr. Walker was the custodian of appellee’s books and records, including the note and guaranty agreements involved here; that the books and records were kept in the ordinary course of appel-lee’s business; that it was the ordinary course of the business for an employee with actual knowledge of the transactions recorded to make such notations at or near the time the events occurred; and that the records indicated appellants were indebted to appellee in the amount of $157,988.76. Mr. Walker’s affidavit recited further that Mrs. H. D. Horn and Mrs. F. H. Horn had, on December 1, 1972, executed continuing guaranty agreements guaranteeing payment of any present or future indebtedness to the appellee of Horn Investment Company or their respective husbands; that on February 8, 1974 appellants F. H. Horn, H. D. Horn, Horn Investment Company and Amco Investment Corporation executed a promissory note in the amount of $135,-390.00; that the note is due and unpaid; and that appellee is the owner and holder of the note and guaranty agreements.

Appellants’ answer to appellee’s motion for summary judgment was supported by affidavits of F. H. Horn, Mrs. F. H. Horn and Mrs. H. D. Horn. The answer and affidavits alleged various defenses, including failure of consideration for the guaranty agreements and an offset due H. D. Horn, and also various defects in appellee’s affidavit, including the affiant’s failure to recite his personal knowledge of the facts stated. The trial court found there was no genuine issue of material fact raised by appellants’ affidavits and granted summary judgment for appellee, from which appellants have perfected this appeal.

Under Rule 166-A of the Texas Rules of Civil Procedure the party moving for summary judgment has the burden of proving by means of summary judgment proof independent of the pleadings that there is no material issue of fact, and that he is entitled to judgment as a matter of law. Texas Nat. Corp. v. United Systems Internat’l, Inc., 493 S.W.2d 738, 741 (Tex.Sup.1973); Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.1971). Only when the movant has discharged this burden through presentation of competent extrinsic evidence is the non-moving party required to show opposing evidence which raises a material fact issue. Allen v. Western Alliance Insurance Co., 162 Tex. 572, 349 S.W.2d 590, 594 (1961). It is therefore unnecessary for us to determine whether the appellants’ affidavits raised material fact issues, because we find appel-lee’s affidavit insufficient to support rendition of the summary judgment.

The affidavit is defective in that it does not recite that it was made on the personal knowledge of the affiant. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.Sup.1963). This defect was not waived because defendants objected to the affidavit on this ground in the trial court. Appellee asserts that such a recitation is not necessary in this case because all the facts stated in the affidavit are reflected in the business records of ap-pellee and are therefore admissible without such personal knowledge under Tex.Rev. Giv.Stat.Ann. art. 3737e. Article 3737e provides standards for the admissibility of business records as evidence of the occurrences recited therein. Such records may be qualified for admission through the affidavit of a person who does not have personal knowledge of their contents, but the statute in no way purports to allow such a person to testify as to the contents of the records. Mr. Walker’s affidavit states that all the facts recited therein are reflected in the “books, ledger cards, records, notes, memoranda and other documents pertaining to said promissory note and guaranty agreements . . . .” It is irrelevant whether the affidavit satisfies the requirements of Article 3737e to qualify the documents and records themselves to have been presented as summary judgment evidence, because they were not produced: verified copies of them were not attached to Walker’s affidavit. Mr. Walker’s testimony as to their contents was hearsay, and hearsay cannot support a summary judgment.

Appellee having presented no competent summary judgment evidence to support a finding that it was entitled to judgment as a matter of law, the judgment is reversed and the cause remanded.


text:
    CITY OF HOUSTON, Texas, Appellants, v. HOUSTON LIGHTING & POWER COMPANY, Appellee.
    No. 1331.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 5, 1975.
    Rehearing Denied Dec. 10, 1975.

      Jonathan Day, City Atty., Harriet E. Hu-backer, John Meinrath, Asst. City Attys., Houston, for appellants.
    William R. Brown, Baker & Botts, Houston, for appellee.
   TUNKS, Chief Justice.

This is a temporary injunction case. The City of Houston (the City) appeals from an order of the trial court temporarily enjoining it from enforcing its ordinance fixing the maximum rates that the Houston Lighting and Power Company (H.L.&P.) can charge those of its customers who are located in the City of Houston.

In 1973 H.L.&P. petitioned the City for the passage of an ordinance increasing the rates which it could charge its customers. After a hearing the City passed such an ordinance on August 15th of that year. In February of 1975 H.L.&P. again petitioned for a rate increase. After an extended hearing the City declined to grant such a rate increase, but rather left the 1973 rate ordinance in effect. H.L.&P. filed suit against the City asking temporary and permanent injunctions against the further enforcement of the 1973 rate ordinance. The basis upon which H.L.&P. sought such relief is an allegation that the rates allowed by that ordinance are so low that its further enforcement amounts to a confiscation of its property in that it does not allow it to make a fair return on the fair value of its property. The trial court granted the temporary injunction sought by H.L.&P., and the City appealed.

At the outset we feel obliged to discuss a matter not formally raised by the parties’ briefs. In the trial court H.L.&P. filed a motion asking an adjudication that the Harris County district judges, who were its customers, were financially interested in the subject matter of this suit so that they were disqualified to act on it. Such motion was granted and such declaration was made. Arrangements were made for the assignment of an out-of-county judge to try the case. The City then moved, under Tex. Rev.Civ.Stat.Ann. art. 1824, for leave to file an original proceeding in this court seeking to mandamus the trial court to proceed to trial and judgment, before a Harris County district judge. We denied leave to file such proceeding for the reason that the record showed that a timely trial of the case had been arranged, and we had no jurisdiction to determine by original proceeding which judge should try the case. All the judges of this court are customers of H.L.&P. If the Harris County district judges were disqualified because of being customers of H.L.&P., so are the judges of this court. While this question has not formally been raised to this court, it is a fundamental question and presents itself. We have, therefore, considered the questions of the disqualification of the members of this court and have concluded that we are not disqualified. See Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593 (1957).

The primary points presented by this appeal grew out of the fact that the trial judge rendered his order granting the prayer of H.L.&P., for temporary injunction at the conclusion of the plaintiff’s evidence and denied the defendant City the right to put on any evidence, to cross examine one of the plaintiff’s witnesses and to make a formal bill of exceptions. The facts relevant to this part of the procedure are as follows.

H.L.&P. called as its first witness Eugene W. Meyer, an expert in the field of corporate finance. He testified on direct examination that H.L.&P., in order to be able to finance the construction of needed expansions by the sale of bonds or shares of stock, needed a rate schedule that would produce a return on its common equity (that portion of its capital derived from its common shares plus its earned surplus) of 15.6%. He also testified that the present rate schedule, fixed by the 1973 ordinance, produced a return on H.L.&P.⅛ common equity of 9.75%. His direct examination fills 86 pages of the statement of facts. The day ended before the City’s attorney completed his cross examination. Mr. Meyer’s schedule would not permit him to return to court the next day, so it was agreed that he should return the following Friday so that the City could complete its cross examination. On Thursday, before the witness had returned to court so that the City could complete cross examination, the court sustained the motion of H.L.&P. for judgment and granted its prayer for temporary injunction.

The last witness called by H.L.&P. was Mr. Jonathan Day, the City Attorney for the City of Houston. Mr. Day admitted that while participating in the rate hearing before the City Council, he had, on behalf of himself and the head of the City’s Department of Public Service, recommended that the City enact a rate ordinance that would allow H.L.&P. an increase of about 29 million dollars a year. Mr. Day had stated to the City Council:

It is clear that based on the applicable statutes and judicial decisions of the State of Texas that the company is entitled to a rate increase in order to ensure its continued financial health and ability to serve the community. To grant no rate increase would be unlawful improper regulation and to the detriment of the community as well as the company. The question before council, therefore, is not whether to grant an increase but how much of an increase to grant.
There is no testimony available nor in my opinion is there any testimony, any credible testimony available, which would recommend no increase of any kind. The company has, I think, demonstrated that they are in need of a rate increase, and I think it is important from the Council’s prospective (sic) to understand that this is a matter of law, that the company is entitled to a fair rate of return. This is not a discretionary matter, and I think the evidence proved overwhelmingly that they are entitled to an increase.

Thereupon H.L.&P. rested. The City called its first witness, but before it began examination of him the City made an oral motion for judgment denying the injunction. H.L.&P. then moved for judgment granting the injunction. Before ruling on the motion the court recessed until the following morning.

The following morning the court announced the granting of H.L.&P.’s motion for judgment. The City Attorney asked if he would not be allowed to offer any evidence, and the court answered, “That’s correct.” The City Attorney told the court the testimony of the witnesses he would call “would bear directly on the question of whether the current rates are confiscatory.” The court also denied the City the right to offer evidence on a bill of exception or to continue its cross examination of Mr. Meyer. The judgment itself recites that the defendants were “refused any opportunity to present evidence.”

The statement made by the City Attorney before the City Council to the effect that the rates allowed H.L.&P. are too low was not binding upon the City. It was the City Council, not the City Attorney, that had the authority to decide the issue of the fairness of the rates allowed the utility. The City Council, in the exercise of its legislative authority, refused to follow the attorney’s recommendation. Furthermore, the statement by the City Attorney did not amount to a judicial admission by the City which precluded the City from offering evidence that the currently authorized rates allowed the utility a reasonable return on the fair value of its property. II McCormick & Ray, Texas Law of Evidence § 1127.

Tex.R.Civ.P. 681 provides that “No temporary injunction shall be issued without notice to the adverse party.” This implies that the adverse party has a right to be heard. The trial court’s ruling here that the City could not offer evidence amounted to a denial of that right. Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.-Corpus Christi 1973, writ ref’d n. r. e.); Gibson v. Shaver, 434 S.W.2d 462 (Tex.Civ.App.-Tyler 1968, no writ); Oertel v. Gulf States Abrasive Manufacturing, Inc., 429 S.W.2d 623 (Tex.Civ.App.-Houston [1st Dist.] 1968, no writ); Texas State Board of Medical Examiners v. McKinney, 315 S.W.2d 387 (Tex.Civ.App.-Waco 1958, no writ); Anderson v. Hidalgo County Water Improvement Dist., 251 S.W.2d 761 (Tex.Civ.App.-San Antonio 1952, writ ref’d n. r. e.). We have not found, nor been cited, any supreme court case directly in point, but the import of the holding and language in Millwrights Loc. Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.Sup.1968) are consistent with this holding.

For the error in refusing to allow the City to present evidence, the judgment of the trial court must be reversed, the temporary injunction dissolved, and the cause remanded to the trial court.

We do not mean to say that a trial court may not impose reasonable limitations upon a litigant’s presentation of evidence in a temporary injunction hearing. But he may not, as done here, completely deprive a party of the right to offer any evidence.

Even though the evidence here presented by H.L.&P. would be sufficient to sustain an order granting a temporary injunction, such an order may not issue without allowing the City to present whatever competent evidence it may have that the present ordinance does allow H.L.&P. to make a reasonable return on the fair value of its property.

Reversed and remanded.


text:
    Julian GUILLORY, Jr., Appellant, v. Ruby DAVIS, Appellee.
    No. 7739.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 6, 1975.
    Rehearing Denied Dec. 4, 1975.
    Ernest J. Browne, Beaumont, for appellant.
    George Mike Jamail, Beaumont, for ap-pellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court transferring this cause from Jefferson County to Montgomery County. The appeal is dismissed.

Julian Guillory, Jr., as petitioner, filed suit in the Domestic Relations Court in Jefferson County, raising questions as to the parent-child relationship, with Ruby Davis, his former wife, and their three children. The petition showed a divorce and an order changing custody had been granted by a Louisiana court.

Ruby Davis filed a plea of privilege, in the traditional style and form, claiming her residence to be Montgomery County and alleging that no exceptions to exclusive venue in the county of one’s residence existed. The prayer was in the usual form asking for the suit to be transferred to Montgomery County.

Julian Guillory, Jr., then filed a controverting affidavit, alleging that the Jefferson County Court had jurisdiction and venue under Tex. Family Code Ann. § 11.04 (1975), and continuing jurisdiction under § 11.05 of the Family Code, and praying that the plea of privilege be overruled. An order attached to the controverting affidavit set a date for a hearing of the plea of privilege.

The record before us shows the trial court heard evidence on the date the plea of privilege was to be heard, and the order appealed from was entered following that hearing. A portion of the first paragraph reads as follows:

“BE IT REMEMBERED that on this the 29th. day of April, 1975, came on to be heard a purported Plea of Privilege which pleadings this Court considered same as a motion on the part of the Respondent to transfer this cause of action to the Court having jurisdiction and venue to try the case on the merits, and both sides announced ready to proceed with the attorneys on both sides relating to this Court the facts they both relied upon as well as the Law they both relied upon and for this Court to consider those facts and the law thus presented.”

A later paragraph in that order reads as follows:

“It is therefore ORDERED, ADJUDGED, AND DECREED by the Court that the Clerk of this Court prepare a transcript of all papers filed in this case and that he comply with the rules and laws governing transfers and transfer this cause of action to the District Court of Montgomery County, Texas, at Conroe, Texas.”

The Tex. Family Code Ann. § 11.06(c) (1975) reads as follows:

“For the convenience of the parties and witnesses and in the interest of justice, the court, on the timely motion of any party, may transfer the proceeding to a proper court in any other county in the state.”

Under this section of the Family Code, an order transferring a suit is an interlocutory order. The rule is well recognized in Texas that an interlocutory order is not appealable unless specifically made so by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994, 995 (1944). Unless so authorized by statute, an appeal lies only from a final judgment. Tex.Rev.Civ. Stat.Ann. art. 2249 (1971). The quoted section from the Family Code does not authorize an interlocutory appeal, and we can take no action in this case except to dismiss the appeal.

We are not passing upon the question as to whether the trial court was or was not in error in transferring this case to Montgomery County, as we are not permitted to do so upon this appeal.

Appeal is dismissed.


author: KEITH, Justice.

text:
    SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee.
    No. 7743.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 6, 1975.

      Dewey Gonsoulin, Beaumont, for appellant.
    K. M. Armstrong, Kountze, for appellee.
   KEITH, Justice.

This is a venue appeal and we will designate the parties as they appeared in the trial court.

Plaintiff is the administrator of the Estate of Frank A. Scarborough, Deceased, by virtue of his appointment by the Probate Court of Jefferson County. The intestate was a lifetime resident of Jefferson County; he made application to the defendant for the policy now in issue while a resident of such county and it was delivered to him therein. He died in Jefferson County and his estate is in the probate court of that county.

The policy provided that the death benefits would be paid to the beneficiary, designated in this case to be: “To the Executors or Administrators of the Estate of the Proposed Insured.”

Plaintiff, a resident of Hardin County, brought suit in his representative capacity in the District Court of Hardin County seeking to recover the death benefits provided in the policy, penalties, and attorney’s fees. Defendant filed its plea of privilege to be sued in Dallas County, where it is domiciled. Plaintiff’s controverting affidavit invoked only the provisions of Subdiv. 28, Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964).

Under this venue exception, suits may be brought against life insurance companies in the county where “the policyholder or beneficiary instituting such suit resides.” (emphasis supplied) Under this exception, a plaintiff is not required to prove a cause of action. Darnell v. Southwestern American Ins. Co., 226 S.W.2d 239, 241 (Tex.Civ.App.—Dallas 1949, writ ref’d n. r. e.); American Sec. Life Ins. Co. v. M. D. Anderson H. & T. Inst., 408 S.W.2d 155, 158 (Tex.Civ.App.—Houston 1966, writ dism’d).

The nature of plaintiff’s suit was established by his petition which was before the trial court. Commercial Standard Insurance Company v. Caylor, 333 S.W.2d 161, 163 (Tex.Civ.App.—Austin 1960, no writ).

Moreover, defendant did not deny under oath any of the allegations of plaintiff’s petition required to be denied under oath by Tex.R.Civ.P. 93; thus, the trial court properly admitted the policy into evidence.

Upon the hearing, plaintiff proved his residence in the county where the suit was instituted, his appointment as administrator of the insured’s estate, and tendered the policy in evidence. Defendant thereupon offered in evidence an instrument bearing the same date as the application for the policy of insurance designated “Assignment of Life Insurance Policy as Collateral” whereby the insured assigned to a third party, inter alia: “The sole right to collect from the Insurer in one sum the total net proceeds of the Policy payable by reason of the death of the Insured or the maturity of the Policy.” However, the insured, or assignor, retained the right, inter alia, “to designate and change the beneficiary” named in the policy without prejudice to the rights of the assignee.

Defendant’s proof showed that it had no record of any revocation of this assignment; and, we note in passing that the assignee was not a party to this proceeding.

Defendant argues that a beneficiary of a life insurance policy is the person designated by the terms of the contract as the one to receive the proceeds of the insurance, supporting the argument with citation to Bankers Protective Life Ins. Co. v. Mozingo, 127 S.W.2d 525 (Tex.Civ.App.—Dallas 1938, no writ). There is language in the cited case supporting defendant’s argument; but, the context in which the statement appears does not make it applicable to the case at bar. As made plain by the abbreviated opinion, the holding was to the effect that a beneficiary of a policy was not a party to fraud in the procurement thereof so that her residence — and not that of the insured — determined venue in a suit for cancellation or rescission of the policy.

We now have a statute covering the subject: Tex.Ins.Code Ann. Art. 3.01, § 9 (1963), reading: “The ‘beneficiary’ is the person to whom a policy of insurance effected is payable.” Under the very terms of the policy in suit, it was payable to the executors or administrator of the insured; not to the assignee.

Moreover, as we have noted, the assignment which defendant offered in evidence recognized the distinction between a beneficiary and an assignee since the insured retained the right to change the beneficiary but subject to the rights of the as-signee. We conclude, therefore, that plaintiff was a “beneficiary” as that term is used in the cited provision of the insurance code and in Subdiv. 28 of the venue statute. Republic Bankers Life Ins. Co. v. Bunnell, 478 S.W.2d 800 (Tex.Civ.App.—Austin 1972, no writ).

Defendant’s tender of the assignment was, essentially, a defensive plea which may properly be shown only upon the trial on the merits. The sole issue in the plea of privilege hearing is that of venue— not liability upon the merits of the case. General Motors Acceptance Corporation v. Howard, 487 S.W.2d 708, 711 (Tex.1972).

Defendant’s reliance upon McAllen State Bank v. Texas Bank & Trust Company, 433 S.W.2d 167 (Tex.1968), is misplaced. There, at the conclusion of a full trial upon the merits, the Court was considering the rights of a beneficiary and a pledgee to the proceeds of a life insurance policy. We do not find this case to be either controlling or persuasive.

From our review of the policy and the record as a whole, we are of the opinion that plaintiff properly invoked the jurisdiction of the court under the provisions of Subdiv. 28, Art. 1995, of the statutes, and the judgment of the trial court is

Affirmed.


author: EVANS, Justice.

text:
    SILVER THREADS, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 16556.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 6, 1975.
    Lapin, Totz & Mayer, Larry Huelbig, Houston, for appellant.
    Ross, Banks, May, Cron & Cavin, John Mayer, Houston, for appellee.
   EVANS, Justice.

This action was brought to collect an additional premium due under a workmen’s compensation insurance policy. The defendant, Silver Threads, Inc., asserted the insurer should be estopped to recover the additional premium because of representations contained in the policy at the time it was issued. The trial court concluded that the defense of estoppel was not available to the insured who was bound to the premium rates as promulgated by the State Board of Insurance Commissioners. We affirm.

The policy in question was issued by the insurer, Insurance Company of North America, on a form prescribed by the Texas State Board of Insurance Commissioners for a one-year term beginning September 14, 1971. Under the terms of the policy, Silver Threads paid an advance premium at the beginning of the policy period based upon an estimate of its anticipated earned premium. The actual earned premium was to be determined by a retroactive audit conducted at the end of the policy period.

Silver Threads has always been a nursing home and was correctly classified as such on the face of the policy. However, in computing the amount of the advance premium, the insurer mistakenly used the codes and rates applicable to hospitals, which resulted in an advance premium charged of only $1,628.00. The audit made at the end of the policy period correctly reflected the total earned premium to be in the sum of $3,166.00. Accordingly, a bill for the $1,508.00 difference between the advance premium and the actual premium was submitted to the insured. Upon receiving such billing, Silver Threads cancelled its coverage and refused to pay the additional charge. This action ensued.

Silver Threads contends that if it had known the correct premium rates charged nursing homes it would not have accepted and retained the policy; that the insurer, having erroneously represented the premium rates to be substantially less than those applicable to nursing homes, should be es-topped from collecting any additional premium based upon the rates applicable to nursing homes.

The trial court’s conclusion that premium rates set by the State Board of Insurance Commissioners are not subject to alteration by estoppel is based upon three cases: Associated Employers Lloyds v. Dillingham, 262 S.W.2d 544 (Tex.Civ.App.—Fort Worth 1953, writ ref.); Traders & Gen. Ins. Co. v. Frozen Food Express, 255 S.W.2d 378 (Tex.Civ.App.—Austin 1953, writ ref. n. r. e.); and Brown & Root, Inc. v. Traders & General Ins. Co., 135 S.W.2d 534 (Tex.Civ.App.—Galveston 1939, writ dism. judg. cor.).

In Associated Employers Lloyds v. Dillingham, the insured, as a defense to a suit for collection of premiums on two workmen’s compensation policies, alleged an oral agreement for a 20% premium discount. Holding that the alleged agreement did not constitute a defense to the suit, the Fort Worth Court of Civil Appeals stated:

“It was the intent and purpose of the Legislature by these enactments to remove the amount of premiums on workmen’s compensation insurance policies from the field of bargaining. The establishment of premium rates is vested exclusively in the Commission and the rates promulgated by the Commission are not subject to alteration by agreement, waiver, estoppel, or any other device . .” (262 S.W.2d 546)

In Traders & Gen. Ins. Co. v. Frozen Food Express, the insured sought to defeat a suit to recover premiums under a workmen’s compensation insurance policy on the ground that certain truck operators were not its employees, but rather the employees of an independent contractor and that, in any event, the insurance company was es-topped to contend otherwise since it knew the insured did not desire insurance coverage for such operators. The court held that the jury’s findings on issues relating to waiver and estoppel would not support a judgment for the insured because the establishment of premium rates for workmen’s compensation insurance was exclusively vested in the Board of Insurance Commissioners. The court stated that the rates promulgated by the Board are “not subject to alteration by the parties by agreement, estoppel, waiver or otherwise.” (255 S.W.2d 386)

In Brown & Root v. Traders & Gen. Ins. Co., supra, the insured by cross-action in a suit brought by the insurer to recover premiums due under a workmen’s compensation insurance policy, sought to recover for an overpayment of premiums resulting from a mutual mistake in the premium computations. The insurer argued that it would work a hardship and great inconvenience on insurance companies to require them, long after they had collected the premiums but within the statutory four year period of limitation, to make reparation merely because the Insurance Department might discover errors in the premium computations. In response to this argument this court, through Justice Cody, stated:

“. . . The error made by the Department in applying a rate can no more give an insurance company the right to a wrong rate, than can an error made by a carrier in applying a rate give a shipper the right to a wrong rate. And in legal contemplation the company can suffer no harm by being required to carry the actual risk involved at the rate previously prescribed therefor. Moreover, the rule works both ways. While it may be that the greater vigilance of insurance companies in such matters, and the greater expert knowledge possessed by them, keep down errors made against them and in favor of policy holders; yet such errors are inevitable, and then the rule will work for them.” (135 S.W.2d 541)

Silver Threads asserts that the rationale of the above cases should not be indiscriminately applied and should be applicable only where there is evidence of a conscious attempt to avoid legal premium rates such as where there is an oral agreement for a discount or a kick back; that it should not be applicable where there is no evidence of conscious wrongdoing and one party may suffer substantially through no fault or negligence on its part. It argues that such reasoning can lead to a gross miscarriage of justice in cases where an innocent insured is required to pay premiums in amounts greatly in excess of that contemplated by the parties due to the insurance company’s unilateral mistake. While this argument has appeal, the explanation for the decisions against it may be found in Justice Cody’s original opinion in Brown & Root, Inc. v. Traders & Gen. Ins. Co.:

“A carrier of workmen’s compensation insurance and its policy-holder necessarily contract with each other that the premium rate shall be the duly and lawfully prescribed rate for the risk involved, and none other. They are without power by contract, or otherwise, to alter such prescribed rate. So, if the parties may not consciously and intentionally change the lawfully prescribed rate, their knowledge, ignorance, or negligence is equally incompetent to work any such change. Therefore, the collection by the insurer of a higher or lower rate than that which is duly and lawfully prescribed for the risk involved constitutes a breach of the insurance contract for such insurer to collect only the duly prescribed rate. And, of course, a suit for reparation for overcharges or undercharges is simply and purely a legal action, with no question of reformation of contract, or other equity involved in it. In other words, if a carrier of workmen’s compensation, for instance, had collected a lower premium rate than was lawfully prescribed for carrying the risk involved, and later discovered such error, it would certainly not have to prove that it was not negligent in collecting the unlawful rate, in order to entitle it to collect the only rate which the law authorized or permitted it to collect; neither would it be necessary for such insurer to have the policy of insurance reformed to specify such lawful rate, for the contract by force of law intends that the premium rate, and only the premium rate, which applies to carrying the risk involved is agreed rate. . . .” (135 S.W.2d 537)

We hold, as did the trial court, that the insured was bound to pay the premiums computed upon the rates promulgated by the State Board of Insurance Commissioners and that defenses such as estoppel, waiver and mutual mistake are not available in such an action. We recognize, as did the court in Traders & Gen. Ins. Co. v. Frozen Food Express, that our decision is not in harmony with Zurich Gen. Acc. & Liability Ins. Co. v. Fort Worth Laundry Co., 63 S.W.2d 236 [Tex.Civ.App.—Fort Worth 1933, no writ (reh. den. at 63 S.W.2d 236)]. However, we believe the rule to be established as set forth in the cases discussed. See also Glenn H. McCarthy, Inc. v. Knox, 186 S.W.2d 832 (Tex.Civ.App.—Galveston 1945, writ ref., w. m.); and Texas Soap Mfg. Co. v. American Auto. Ins. Co., 227 S.W.2d 376 (Tex.Civ.App.—Galveston 1950, writ ref. n. r. e.).

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Lorraine AINSWORTH by next friend Lois Ainsworth, Appellant, v. HOMES OF ST. MARK, Appellee.
    No. 16558.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 6, 1975.
    C. C. Divine, Houston, for appellant.
    Fouts, Moore, Caldwell, Coleman & Ro-yall, Donald R. Royall, Houston, for appel-lee.
   COLEMAN, Chief Justice.

This is an appeal from an order of the trial court dismissing appellant’s bill of review and application for writ of habeas corpus on the pleadings without an eviden-tiary hearing. The judgment is affirmed.

By this action Lois Ainsworth appearing as next friend for her minor child, Lorraine Ainsworth, seeks to regain custody of said minor child. Lois Ainsworth had previously surrendered custody of said child to the Homes of St. Mark as provided in Section 13.02 of the Texas Family Code. Subsequently she sought by a writ of habeas corpus to regain custody of said child. A petition to terminate parent-child relationship was consolidated with that action for trial. A judgment was entered severing the parent-child relationship and denying the application for writ of habeas corpus. An appeal from this judgment was dismissed by this court for want of jurisdiction. This action was then filed.

Homes of St. Mark, the respondent in the trial court, filed an answer alleging that the application for bill of review failed “to meet the requirements of a bill of review” in certain particulars, and prayed that the application be denied. In answer to the application for writ of habeas corpus the defendant alleged that the parental rights of Lois Ainsworth had been terminated and Homes of St. Mark had been appointed managing conservator of such child by a final judgment of the Juvenile Court No. Three of Harris County. The respondent alleged that by reason of this judgment relator has “no standing ... to claim possession of said child.” After hearing argument of counsel, the trial court dismissed both the petition for bill of review and the application for writ of habeas corpus.

The plaintiff contends that the trial court erred in refusing to grant her a trial on the merits of her case. The defendant’s pleading to the application for bill of review presented special exceptions to the bill as authorized by Rule 91, Texas Rules of Civil Procedure. The fact that the pleading was not designated a special exception does not change its effect. Rule 71, Texas Rules of Civil Procedure. The trial court impliedly sustained the exceptions and ordered the petition dismissed. When special exceptions are sustained, the pleader as a matter of right must be given an opportunity to amend. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974).

The plaintiff does not assert that the trial court refused a request on her part to amend her pleadings and has not presented a point complaining that the trial court erred in refusing to permit her to amend. Where a party is denied the right to amend and such fact is not reflected in the record, a motion for new trial is required to preserve such error. Harmon v. City of Dallas, 229 S.W.2d 825 (Tex.Civ.App.—Dallas, 1950, writ ref. n. r. e.).

In order to set aside a final judgment by a bill of review the petitioner must both allege and prove 1) a meritorious claim or defense, 2) which petitioner was prevented from making in the prior proceeding by fraud, accident or wrongful conduct of the opposite party, 3) unmixed with any fault or negligence on the part of the petitioner. French v. Brown, 424 S.W.2d 893 (Tex.1967). While petitioner alleged that she had a meritorious claim (asserted in the petition for writ of habeas corpus), she failed to allege that she was prevented from making it in the prior proceeding by fraud, accident or wrongful conduct of the opposite party unmixed with any fault or negligence on her part. She did not, however, assert that she had a meritorious defense to the suit to terminate the parent-child relationship. While the defendant’s exception was not properly drawn, it was sufficient to point out to the court the defect in the plaintiff’s application for a bill of review. The trial court properly sustained this exception. Since the question of the court’s failure, if such is the case, to allow the plaintiff to amend is not before this court, the plaintiff’s point challenging the action of the trial court in dismissing the case cannot be sustained.

The trial court correctly sustained defendant’s plea, in the nature of a plea in abatement, that the relator had no standing to seek to regain possession and custody of the child by way of a writ of habeas corpus. Plaintiff alleged that Homes of St. Mark was appointed the managing conservator of the child by the Juvenile Court No. 3 of Harris County, Tex. Section 14.10 of the Family Code of Texas provides in part:

“(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.”

Section 11.07 of the Family Code provides that a suit affecting the parent-child relationship shall be commenced by the filing of a petition as provided in this chapter. Section 11.08 of the Code specifies in detail the matter which must be included in such a petition. When these two sections are considered along with Section 14.10 of the Code it seems clear that a writ of habeas corpus is available only for the purpose of securing the possession of a child to the person presently having the right to such possession.

The judgment is affirmed.


author: PEDEN, Justice.

text:
    B. R. MOODY, Appellant, v. FIRST NATIONAL BANK OF DONA ANA COUNTY, Appellee.
    No. 16544.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 6, 1975.
    Rehearing Denied Dec. 4, 1975.

      Ellis F. Morris, Houston, for appellant.
    Neil E. Weinbrenner, Las Cruces, N. M., William E. Hall, Jr., Daniel M. Roberts, Jr., Houston, for appellee.
   PEDEN, Justice.

Appeal by defendant B. R. Moody from a summary judgment rendered in favor of the First National Bank of Dona Ana County, New Mexico, in its Texas suit to enforce a judgment of a New Mexico district court pursuant to the full faith and credit clause of the United States Constitution, Art. 4, § 1, U.S.C.A. Moody contends that he was entitled to show in the Texas court that the New Mexico court lacked personal jurisdiction over him even though he entered a special appearance there. We affirm.

The New Mexico judgment was entered in the bank’s suit on a promissory note executed by M. H. Moody and on a guaranty agreement signed by B. R. Moody. M. H. Moody is a resident of New Mexico, and B. R. Moody is a resident of Texas, where he was served by a deputy sheriff with citation in the New Mexico suit. The exemplified judgment of the New Mexico court recites that B. R. Moody’s special appearance and motion to dismiss the complaint were denied. The affidavit of Bernice Maynez, clerk of the District Court of Dona Ana County, New Mexico, certifies that the copies of B. R. Moody’s special appearance, his motion to dismiss the complaint, and the court’s order overruling them are true and correct and were entered in the suit against him in New Mexico. The order overruling his special appearance recites that B. R. Moody is subject to the jurisdiction of the court under the provisions of Section 21-3-16 N.M.S.A. (1953 comp.). After B. R. Moody’s special appearance was overruled, he apparently did not contest the suit on its merits. Judgment was entered jointly and severally against him and his father.

The bank filed suit on the judgment in Texas and filed a motion for summary judgment supported by (1) an exemplified copy of the New Mexico judgment, (2) an affidavit of an officer of the bank that the judgment has remained unsatisfied, and (3) an affidavit of the clerk of the District Court of Dona Ana County, New Mexico. B. R. Moody filed an affidavit in opposition to appellee’s motion for summary judgment. In it he made several allegations: 1) he has neither resided in nor transacted business in New Mexico in the last ten years; 2) he executed the instrument in question in Texas and mailed it to New Mexico to the bank or to his father; 3) he executed it as an accommodation.

Moody’s two points of error are that the trial court erred in rendering summary judgment against him because 1) there is a substantial fact question raised by the pleadings and affidavit, and 2) because the New Mexico judgment is not entitled to full faith and credit under the Constitution of the United States since the New Mexico court lacked personal jurisdiction over him.

The bank’s burden of proving the validity and finality of the New Mexico judgment was discharged when the bank placed in evidence a properly authenticated copy of the judgment which on its face appears to be a valid final judgment of a court of general jurisdiction. Harris v. Harris, 403 S.W.2d 445 (Tex.Civ.App.1966, writ ref. n. r. e.).

“The burden of attacking the judgment and establishing reasons why it should not be given full faith and credit, such as lack of jurisdiction of the person of the defendant, shift[s] to the defendant. .” Hamilton v. Newberry, 412 S.W.2d 801 (Tex.Civ.App.1967, writ ref. n. r. e.).

As movant for summary judgment, the bank had the burden of proving its case as a matter of law with competent summary judgment proof. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

“In an action on a motion for summary judgment, where the motion is supported by affidavits, depositions and other extrinsic evidence sufficient on their face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate protection.” Allen v. Western Alliance Insurance Co., 162 Tex. 572, 349 S.W.2d 590 (1961).

We presume that the court of general jurisdiction in a sister state had jurisdiction over the cause and the parties unless and until such jurisdiction is disproved by extrinsic evidence or by the record. Gunther v. Gunther, 478 S.W.2d 821 (Tex.Civ.App.1972, writ ref. n. r. e.). Appellant relies on the case of Hamilton v. Newberry, 412 S.W.2d 801 (Tex.Civ.App.1967, writ ref. n. r. e.), for the contention that there did not exist such “minimum contacts” with the State of New Mexico to justify personal service on a nonresident defendant by a “long arm” statute.

The bank contends that Mr. Moody cannot attack the lack of jurisdiction because the issue was decided in the District Court of New Mexico upon special appearance, and that court’s ruling against him was not appealed, so it is res judicata of the issue. The United States Supreme Court stated in Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963):

“However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.
“With respect to questions of jurisdiction over the person, this principle was unambiguously established in Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244. There it was held that a federal court in Iowa must give binding effect to the judgment of a federal court in Missouri despite the claim that the original court did not have jurisdiction over the defendant’s person, once it was shown to the court in Iowa that that question had been fully litigated in the Missouri forum. ‘Public policy,’ said the Court, ‘dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.’ 283 U.S. at 525-526, 51 S.Ct. at 518, 75 L.Ed. 1244.”

In that case the Supreme Court held that where the Nebraska state court had determined that it had jurisdiction over a suit to quiet title to land situated on the Missouri River, the Federal District Court sitting in Missouri was not also free to determine whether the Nebraska court had jurisdiction over the subject matter.

“It has been held that a direct adjudication by the courts of one state that the court which rendered a certain judgment had the requisite authority and that the parties were legally brought before the court is conclusive on the question in every other state.” 50 C.J.S. Judgments § 893c(2), p. 505.

Cases following this rule in a number of state courts and in the federal courts are cited.

The Restatement of Judgments, § 9 states:

“Where a defendant appears in an action to object that the court has no jurisdiction over him and the court overrules the objection and judgment is rendered against him, the parties are precluded from collaterally attacking the judgment on the ground that the court had no jurisdiction over the defendant.”

Illustration 1 under Comment a. of § 9 is:

“A brings an action in State X against B. B enters a special appearance in the action and moves to dismiss it on the ground that he was domiciled in State Y and was not personally served with process in State X and had not otherwise subjected himself to the jurisdiction of the court. The court finds as a fact that B was domiciled in State X and was served with process in State Y in accordance with the terms of a statute of State X and dismisses the motion. B declines to interpose any further defense and judgment is rendered against him. In an action on the judgment by A against B in State X or in State Y, B is precluded from defending the action on the ground that at the time of the first action he was domiciled in State Y and that the court in that action had no jurisdiction over him.”

In several cases it has been held that when it is sought to enforce a judgment in another state, the facts may be examined in the enforcing court to determine whether the rendering court had jurisdiction to enter the decree of which full faith and credit is sought. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Spitzmiller v. Spitzmiller, 429 S.W.2d 557 (Tex.Civ.App.1968, writ ref. n. r. e.); Burleson v. Burleson, 419 S.W.2d 412 (Tex.Civ.App.1967, no writ). In each of those cases the defendants did not make a special appearance in the first state court to contest its jurisdiction, so that question was first raised in the second state when the plaintiffs sought to enforce their original judgments.

We hold that Moody is not entitled to relitigate the issue of jurisdiction of the New Mexico court, but is bound by that court’s determination. Having entered a special appearance in the New Mexico court and having failed to appeal the trial court’s ruling that it had jurisdiction over him, he has let the judgment become final and is bound by the court’s ruling.

Appellant’s points of error are overruled and the judgment of the trial court is affirmed.