author: DUNAGAN, Chief Justice.

text:
    Linda Risinger ROBINSON, Appellant, v. Frank RISINGER, Appellee.
    No. 964.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.
    Second Motion for Rehearing Denied April 7, 1977.

      Rex Kirby, Kirby & Kirby, Tyler, for appellant.
    Henry L. McGee, Jr., Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal by Linda Risinger Robinson from an order entered on the 28th day of January, 1976, by the Court of Domestic Relations of Smith County, Texas, granting a motion to change custody filed by her former husband Frank Risinger on July 2, 1974, whereby the custody of Tim Risinger was changed from the mother to the father.

By a decree entered May 14, 1974, in the Court of Domestic Relations of Smith County, Texas, Linda Risinger as Petitioner was granted a divorce from Frank Risinger as respondent and named managing conservator of their only child, Tim Risinger.

On July 2, 1974, less than sixty days after the divorce judgment, respondent-appellee Frank Risinger filed his motion to modify the judgment alleging a material change of circumstances since May 14, 1974.

The trial court upon hearing appellee’s motion to modify the divorce decree denied the motion on July 14, 1975.

On July 24, 1975, the appellee filed a motion for a new trial on his motion to modify. The trial court entered an order on the 4th day of September, 1975, granting appellee’s motion for a new trial and setting aside his previous order denying said motion. Appellant contends in her brief that neither she nor her counsel were notified of this hearing. Appellee in his brief replies that appellant knew that her attorney of record was given written notice of the January 27, 1976, hearing by letter dated December 16, 1975. Neither of these statements is supported by the record.

On September 5, 1975, appellant Linda Risinger Robinson’s counsel at the time filed a motion to set aside the trial court’s order granting a new trial to appellee. The record does not reflect that this motion was ever presented to the court or acted upon.

On January 15, 1976, at 3:50 p. m. appellant’s attorney at that time, Alvin N. Flynn, filed a motion with the court to withdraw as attorney for the appellant. On the same day, January 15, 1976, the court granted attorney Flynn’s motion by a written order filed with the Clerk of the court at 4:05 p. m. Neither the motion to withdraw nor the order granting said motion states or even indicates that the appellant was aware of this action. There is no evidence in the record as to whether the appellant was ever notified that her attorney had withdrawn from the case.

The order permitting Mr. Flynn to withdraw recites that “He is hereby permitted to withdraw as attorney of record for respondent Frank Risinger.” Since the record shows and it is undisputed that Mr. Flynn represented the appellant Linda Ri-singer Robinson, it is obvious that this was a typographical error and therefore he was permitted to withdraw as attorney for the appellant.

On January 22, 1976, appellee paid a jury fee and placed the case on the jury docket.

The record reflects that appellee’s motion to modify was called for trial on January 27, 1976, at 10:00 a. m. At that time only appellee and his counsel were present and appellee announced ready for trial. Since neither appellant nor her counsel appeared, appellee (petitioner below) withdrew his request for jury trial and agreed to submission of the matter to the court. Apparently between 10:00 a. m. and noon on January 27, 1976, appellant was informed that the motion to modify had been called for trial and she was supposed to have appeared for the hearing. Appellant contacted the court during the lunchhour and was told that the trial would be delayed until 4:00 p. m. that same day. Appellant traveled to Tyler and was present without counsel in court at 4:00 p. m. After both parties announced ready, the trial judge dictated the following statements into the record:

“ . . Let the record show that in due course a jury demand was made in this case; and that in due course, this matter was set on the jury docket for trial at 10:00 o’clock AM today. And, that in due course, the matter was called. The Attorney for the Petitioner announced ready, and the Respondent was not present, nor was she represented by Counsel. Let- the record further show that during the lunch hour, the Respondent contacted the Court by telephone, by long distance from, the Court presumed, Paris; and, the Court advised the Respondent at that time that the Court would hold off hearing the matter until 4:00 o’clock P.M. today. Let the record further indicate that at 4:00 o’clock, or thereabouts, the Respondent was present in the Courthouse, and that the Respondent is now present in the Courtroom.
“That prior to the trial of this lawsuit, the Court personally advised the Respondent; that is, immediately prior, that this Court had control of its Judgment for a period of 30 days following the rendition of this Judgment, which the Court understands to be the law. The Court then understood this to be the law. That the Court further advised the Respondent that at this hearing or any other hearing where she was not represented, she was at a distinct and gross disadvantage. That the Court also advised the Respondent to obtain Counsel if she was not satisfied with the outcome of this hearing.
“Let the record . . . also indicate, the Court did advise the Respondent, pri- or to this hearing, that the failure of a party to appear for trial, when a jury has been requested, is, according to the rules, a waiver of the right to trial by a jury, and the Court may proceed without a jury. Proceed, Counselor.”

At the conclusion of this second hearing on appellee’s motion to modify the judgment on January 27,1976, the court entered its order signed on the 28th day of January, 1976, modifying the judgment of May 14, 1974, appointing the appellee as managing conservator of Tim Risinger and appointing Linda Risinger Robinson possessory conservator of said child. It is from this order that appellant appeals. No findings of fact or conclusions of law appears in the record and none was requested.

Appellant, subsequent to the hearing on January 27, 1976, employed new counsel who on her behalf on February 5, 1976, filed a motion for new trial. The record does not show any action on this motion or that it was ever presented to the trial judge.

Appellant by her first point of error .contends that the trial court erred in proceeding to trial in the absence of her counsel and in doing so she was denied due process of law.

The record before us does not show when the motion to modify was set for hearing on January 27, 1976. Appellant’s lawyer, Alvin N. Flynn, was permitted to withdraw from the case twelve days before the hearing. There is no legal or competent evidence that appellant was or was not notified that her lawyer had withdrawn from the case. Neither the motion to withdraw nor the order granting said motion recites that appellant was notified or was aware of such action.

There were several hearings before the trial court subsequent to the divorce judgment and appellant was represented by legal counsel in each of them, as she was in the divorce proceedings, with the exception of the hearing on appellant’s motion to modify held on January 27, 1976. Apparently she was dissatisfied with the outcome of the hearing and followed the court’s advice and hired her present attorneys, Kirby & Kirby, who filed her motion for new trial. Appellant not being a lawyer would not be expected to be apprised of her right at that time to demand a lawyer or ask for a continuance until she could obtain one.

These facts and circumstances would certainly create a serious doubt that the appellant was aware that her lawyer had withdrawn from the case or that she had notice that the motion to modify was set for hearing on January 27th until that morning. As a matter of fact, the facts and circumstances would strongly indicate that she did not know her attorney had withdrawn and had no notice of the hearing.

Considering all the facts and circumstances above set out, in the absence of any evidence that appellant had notice or was aware, prior to the January hearing, that her lawyer had withdrawn from the case, we cannot say that her failure to be represented at the hearing was due to her fault or negligence. The record does not show that the trial court inquired of appellant if she was aware her lawyer had withdrawn from the case and, if so, if she had employed new counsel and if not, why. Neither does the record show that the court inquired of her why she did not appear at 10:00 o’clock on the day of the hearing or if she had prior notice of the setting of the motion to modify for hearing at 10:00 a. m., January 27, 1976. The record does show that the trial court advised her prior to the hearing that it had control of its judgment for a period of thirty days following the rendition of this judgment; that where she was not represented at this hearing or any other hearing she was at a distinct and gross disadvantage; and for her to obtain counsel if she was not satisfied with the outcome of this hearing — which she did.

This is not a case where the party litigant was represented by counsel and he thereafter failed to appear at the time of trial, having had prior notice of the setting.

“An attorney should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. Even when he justifiably withdraws, an attorney should protect the welfare of his client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. ...” Vol. 7 Part 1 Tex.Jur.2d Attorney at Law sec. 69; State Bar Rules art. XII sec. 8 canon 2 EC 2-32 and State Bar Rules art. XII sec. 8 canon 2 EC 2-32, DR 2-110 subd. (A)(2). Insofar as the record shows this was not done.

Appellant by her point of error number five challenged the sufficiency of the evidence to show a substantial and material change of circumstances since the divorce decree of May 4, 1974.

The statement of facts taken upon the January 27th hearing reflects that the only witnesses to testify were the parties, Frank Risinger and Linda Risinger Robinson. Pursuant to an order of the trial court dated January 2, 1975, Mrs. Kelly Spratlin, Supervisor of the Tyler-Smith County Child Welfare Unit, filed a report dated April 1, 1975, which is before us by way of a supplemental transcript. There is on file with this court a statement of facts consisting of two volumes of evidence taken in May of 1975. The caption on these two volumes of statement of facts does not show what cause of action on which this testimony was taken. The evidence therein indicates it was a hearing on appellee’s motion to modify the divorce decree; however, the record shows that the motion to modify was filed on July 2, 1974, and by written order the court overruled said motion on July 14, 1974. As far as the record shows there were only two hearings on the motion to modify — the first on July 14, 1974, which resulted in an order of denial on the same day. On appellee’s motion for new trial this order was set aside and a new trial granted. The next and final hearing on the motion was heard on January 27, 1976, which was granted by order of the court dated January 28, 1976. This is the judgment now before us for review. The record does not show that a stipulation was made by the parties for these two volumes of statement of facts to be used in the January 27, 1976 hearing, nor that said statement of facts was offered in evidence.

In substance, the appellee, Frank Ri-singer, testified that his former wife’s present husband, John Robinson, had made threatening and obscene telephone calls to him to the effect that if he “didn’t back off the case,” he, Risinger, was going to get hurt; that Mr. Robinson and the appellant were dating after the divorce and that their relationship put Mr. Robinson in contact with his son from time to time; that the investigation of the care or treatment which his son received at the time when Mr. Robinson was with his mother before their marriage to each other was by a private investigator which he had employed. He testified that on a few occasions he made an investigation on his own and found that Mr. Robinson was at the appellant’s apartment quite late on a few occasions; that while Mr. Robinson and the appellant were together his son Tim was mostly neglected. The basis of this statement was that Tim was locked out of the house and left out by a swimming pool at the apartment complex by himself for approximately three hours; on cross-examination by appellant he was asked why he thought that Tim had been unattended by her and he replied, “The private investigator’s report for one thing, which showed that you had left him unattended by the swimming pool, and you and Mr. Robinson had gone back into his apartment and stayed for, I think it was around three hours. I believe you’re familiar with the investigator’s report.” This is pure hearsay testimony. He also gave other testimony consisting of what his investigator told him. Even though this testimony was unobjected to, such is incompetent testimony and could not be considered on appeal in determining the sufficiency of the evidence. State v. Wilson, 439 S.W.2d 134, 139 (Tex.Civ.App.—Tyler 1969, n. w. h.). On cross-examination the appellee inquired of Mr. Risinger if he didn’t pay a Mr. Rook who lived two doors from John Robinson “$300.00 to get on the stand and gut me?” He answered that was not true, but that Mr. Robinson told him “that you went to him and promised him sex if he would come up here and say that I paid him. So, it sounds to me like he was working both ends toward the middle.” Mrs. Robinson, appellant, then inquired of Mr. Risinger as to why he couldn’t get Mr. Rook up here to testify. Mr. Risinger answered that he and his attorney did some checking on Mr. Rook and found that he had lost two or three jobs due to his drinking problem and that he didn’t put any validity in what he said that you had promised him, and he didn’t want him to testify for him because of his background and character. At this point appellant inquired of the court if she could subpoena Mr. Rook. Even though the court had previously advised the appellant that if she was not satisfied with the result of the hearing she could then employ a lawyer and later requested appellee’s lawyer to give notice of intent to appeal for the appellant, the court refused to advise the appellant as to whether she could subpoena Mr. Rook explaining he could not legally represent her. We agree with the trial court that the appellant was at a distinct and gross disadvantage being put to trial without benefit of counsel. Mr. Risinger also testified that his son Tim told him that Mr. Robinson had kicked him. However, on cross-examination he testified that he did not believe everything that Tim tells him and that he had not seen any bruises on Tim where Mr. Robinson had kicked him. Mr. Risinger further testified that the weekend before the hearing on January 27th he picked up Tim in accordance with his visitation privileges and that he had “dirt and filth in and around his ears;” his hair was very dirty; two or three of his fingernails were broken off and needed clipping and cleaning. He said this was about 9:45 Saturday morning. Mr. Risinger testified that in the event he gained custody of the child he had made arrangements with a woman to come into his home and keep the child “between 7:30 and 7:45 and stay until I return.” From the record it is obvious that he was referring to 7:30 a. m. and 7:45 p. m. The appellee, Linda Risinger Robinson, testified that Tim had never been kicked and “He lives in a very clean, and very good atmosphere. I have never said anything against his father; I have always been real nice about it. I am just not a bad mother. I have not neglected Tim ever. My husband has been wonderful to him. We play with him all the time. Both of us read to him; we tell him stories. My husband has even taught him to make up his own stories to tell about at bedtime, about different little characters or animals and stuff like that, where his imagination will be broader. He plays golf with us. Anytime he has been sick, I’ve carried him to the doctor. His hair — he said his hair has been dirty when he has picked him up — it is always, every time, I swear to you, been washed. That Friday — I wash it twice a week. Tim is very particular about his hands and his fingernails, and they’re always clean.”

In Holloway v. Allison, 494 S.W.2d 612 (Tex.Civ.App.1973, n. w. h.), this Court said:

“A person seeking to change the custody of children has the burden to prove that conditions have so changed to leave the custody of the child or children as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed. .
“Although a change of conditions since the original award of custody is necessary in order to secure a change of custody, the fact that there has been a change does not necessarily compel the court to make a change of custody. We recognize the well-settled rule of law that in modifying a custody judgment the trial court should be governed by what will be to the best interest and welfare of the minor children, but it is equally as well settled that such modification must be based upon changed conditions. Therefore, the trial court would reach the question of whether or not the best interest of the minor children would be served by a change of custody, only upon appellant establishing by legal and competent evidence that there were materially changed conditions as to warrant, authorize or require any change of custody.
“Not every change of conditions occurring since a judgment of divorce adjudicating the custody of children is sufficient grounds to require or authorize a change of custody of the children . The change of conditions must be a material one to authorize a change of custody The law ‘will not permit a change of custody, once judicially determined, except upon a Showing of materially changed conditions . . . (Emphasis added.) See also Becerra v. Garibaldo, 526 S.W.2d 780, 784 (Tex.Civ. App.—Corpus Christi 1975, writ ref’d n. r. e.).

In determining the question of custody of minor children the trial judge is vested with a large measure of discretion in determining the controlling question of what is the best interest of said children, and his judgment thereon should be reversed only when it appears from the record as a whole that such discretion has been abused. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.—El Paso 1975, n. w. h.); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963).

The legal and competent evidence adduced upon thjs hearing and the record as a whole does not show that the circumstances of the child have materially and substantially changed since the entry of the divorce decree as to be injurious to the child’s welfare or that the modification is in the best interest of the child. Therefore, we think the court abused its discretion in granting appellee’s motion to modify the divorce decree of May 14, 1974 and the judgment of the trial court is reversed. This case having been reversed, considering all the facts and circumstances and the state of the record before us, we have concluded that this is a case that should be remanded “in the interest of justice” for a new trial. Wilson v. Wilson, 494 S.W.2d 609, 612 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ dism’d) and Part 2 Vol. 4 Tex.Jur. sec. 915 p. 599.

In view of our disposition of this case, it becomes unnecessary to discuss appellant’s remaining points of error.

The judgment is reversed and remanded.

ON MOTION FOR REHEARING

Appellee in his motion for rehearing complains that we considered appellant’s statements in her brief “that neither she nor her counsel were notified of this hearing” even though appellee challenged such claims in his brief. We are aware of the rule to which appellee refers. To clarify our original opinion in this respect we now state that we did not give any consideration whatsoever to the statements complained of in arriving at our original decision. As a matter of fact, both appellant’s and appel-lee’s briefs contained statements of alleged facts which do not have support in the record. We did not consider any of such statements, nor did we consider appellant’s affidavit sworn to on June 14, 1976, and filed with the clerk of the trial court on June 15, 1976.

The only matters which Courts of Civil Appeals are authorized to consider on affidavits are those which involve the exercise of its jurisdiction. Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App.—Tyler 1975, n. w. h.); Article 1822, V.T.C.S.

In our original opinion we pointed out that in the record before us were two volumes of statement of facts of evidence taken in another hearing in May of 1975 between the same parties and that such statement of facts were not offered in evidence on the hearing held January 27, 1976. Therefore, we cannot consider contents of these two volumes of statement of facts. Neither the trial court nor this court may take judicial knowledge of the contents therein. Ray v. Shafer, 519 S.W.2d 525 (Tex.Civ.App.— Fort Worth 1975, n. w. h.); Continental Oil Co. v. P. P. G. Industries, 504 S.W.2d 616, 622 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); Ex parte Turner, 478 S.W.2d 256, 258 (Tex.Civ.App.—Houston [1st Dist.] 1972, n. w. h.); see White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298, 302 (Tex.1969).

The social study, dated April 1, 1975, made by the Child Welfare Department was introduced into evidence by plaintiff-appellee on the hearing held January 27, 1976. The social study is before us only by way of supplemental transcript filed in this court on July 28, 1976, approximately six months after the hearing and sixty-one days after time for the filing of the statement of facts and transcript had expired. The report itself was filed with the clerk of the trial court on July 20, 1976, three months after this court obtained jurisdiction over this matter. 4 Tex.Jur.2d Part 1 sec. 321 p. 173.

“Instruments which are part of proceedings in trial court only because they have been offered in evidence may not properly be included in transcript on appeal.” Rules 376, 376-a, T.R.C.P.; Rotello v. The State of Texas, 492 S.W.2d 347 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ of error ref’d 497 S.W.2d 290). A social study is not evidence upon which the trial court’s findings may be based unless the report is properly admitted into evidence. Fletcher v. Travis County Child Welfare Department, 539 S.W.2d 184 (Tex.Civ.App.—Austin 1976, n. w. h.) and Magallon v. State of Texas, 523 S.W.2d 477 (Tex.Civ.App.—Houston [1st Dist.] 1975, n. w. h.). Therefore, the social study could only be considered by the trial court by reason of it being offered into evidence. Being before us only by improper inclusion in the transcript, the social study cannot be considered by this court. The only evidence taken in the January 1976 hearing found in the statement of facts is the testimony of the parties. Appellee’s testimony to a great extent consists of hearsay.

We have again examined all the evidence before us and all of the surrounding facts and circumstances and in view of the condition of this record we remain convinced that the decision we reached in our original opinion is correct.

Appellee’s motion for rehearing is respectfully overruled.


source: Caselaw Access Project

author: BARROW, Chief Justice. CADENA, Justice,

license: Public Domain

text:
    Lawrence A. FOSTER, Jr., Appellant, v. H. E. BUTT GROCERY CO., Appellee.
    No. 15707.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 23, 1977.
    Rehearing Denied March 23, 1977.

      Anthony T. Sortino, San Antonio, for appellant.
    Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellee.
   BARROW, Chief Justice.

This is a venue action involving Subd. 4, Art. 1995, Tex.Rev.Civ.Stat.Ann. Appellant has perfected his appeal from an order entered after a non-jury hearing sustaining the plea of privilege of appellee and ordering the cause of action against appellee transferred to its residence of Nueces County-

Appellant brought this suit in Bexar County against Earl E. Richardson and ap-pellee seeking to recover damages for injuries sustained when Richardson struck appellant in the face with his fist during a heated argument. Richardson was employed by appellee as a part-time security guard at one of its food stores in San Antonio and an argument ensued after Richardson accused appellant of shoplifting.

The venue facts under Subd. 4 are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the claim against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Town and Country Mobile Homes, Inc. v. Benfer, 527 S.W.2d 523 (Tex.Civ.App.—San Antonio 1975, no writ); 1 McDonald, Tex. Civ.Practice, § 4.10.2-(II) (1965 rev.).

The question before us on this appeal is whether the trial court abused its discretion in finding that appellant failed to prove his cause of action against Richardson, the resident defendant. Appellant alleged in his petition that “RICHARDSON, while acting in the course and scope of his employment with H. E. BUTT GROCERY CO., did maliciously and unlawfully strike Plaintiff in the face with his fist, . . . .” In his controverting plea appellant alleged that he had a cause of action against the resident defendant in that “RICHARDSON did maliciously and unlawfully strike Plaintiff in the face with his fist, causing great bodily injury as set forth in said Petition.”

Richardson was the only witness at the venue hearing and appellant concedes for the purpose of this appeal that there is evidence that Richardson was acting in self-defense. He urges, however, that the question of self-defense is in the nature of an affirmative defense and immaterial in a plea of privilege hearing. Appellant asserts that when he proved that Richardson intentionally struck him in the face, he established, as a matter of law, a cause of action for assault and battery.

A similar contention was considered and rejected by the Supreme Court in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). This was a suit for damages for wrongful death wherein the Court was required to decide the question of which party had the burden of proof where the evidence raised self-defense. The Court recognized at the outset that the authorities were conflicting on this question. It is clear from the opinion that Vega vigorously relied on the holding of Cameron Compress Co. v. Kubecka, 283 S.W. 285 (Tex.Civ.App.—Austin 1926, writ ref’d). After a full review of the authorities, it was held that if plaintiff proved an intentional killing, he has met his burden of showing that the death was wrongful. However, if the evidence raises an issue of justification, such as self-defense, the plaintiff has the burden of proof to overcome the evidence of self-defense. Otherwise, plaintiff fails to prove his cause of action that the death was wrongful. This holding was followed in Bradford v. Fort Worth Transit Company, 450 S.W.2d 919 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.). See also McMurrey Corp. v. Yawn, 143 S.W.2d 664 (Tex.Civ.App.—Texarkana 1940, writ ref’d).

In Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), the Supreme Court quoted with approval the holding in Grieger to the effect that the burden of proof was upon plaintiff where the issue of self-defense was raised by the evidence. The Court applied this reasoning in adopting the rule that the burden of proof on a contention of excuse is on the party who asserts that his adversary has been guilty of negligence per se. See also Hammer v. Dallas Transit Co., 400 S.W.2d 885 (Tex.1966).

It is settled law that, with the exception of the rule of evidence which gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); March v. Walker, 48 Tex. 372 (1877). Clearly a defendant charged with an assault under Sec. 22.01 would be entitled to an instruction embracing the element of self-defense as defined under Sec. 9.311 where the evidence raises such issue. Thus, if the defendant was acting in self-defense, the assault would not be unlawful. Under Rule 277, Tex.R.Civ.P., a similar instruction should be given in connection with an issue inquiring as to whether the defendant committed an assault and battery upon plaintiff. Cf. Pon Lip Chew v. Gilliland, 398 S.W.2d 98 (Tex.1965).

The trial court impliedly found that appellant failed to discharge his burden of establishing that Richardson was not acting in self-defense at the time he struck appellant. Appellant concedes that there is evidence to support such finding. Thus, appellant failed to discharge his venue burden of proving that Richardson unlawfully struck him. He therefore failed to establish a cause of action against the resident defendant. The trial court did not err in sustaining appellee’s plea of privilege.

The judgment is affirmed.

CADENA, Justice,

dissenting.

I cannot agree with the proposition that in a civil action for damages resulting from assault the burden is on plaintiff to prove that defendant did not act in self-defense or defense of property.

In this opinion the term “burden of proof” will be used to refer to the burden of persuasion or, as it is sometimes called, the risk of non-persuasion. The person bearing this onus must, if he is to prevail, convince the trier of fact that certain facts exist or that certain facts do not exist. This burden is to be distinguished from what is sometimes called the “burden of producing evidence,” which refers to the obligation of a party to introduce evidence when such evidence is necessary to avoid the risk of a directed verdict or peremptory finding against him on a material issue of fact. Ordinarily, once the burden of proof is allocated to one party or the other, it remains on his shoulders throughout the trial. This is what is meant when it is said that the burden of proof never shifts. On the other hand, the burden of producing evidence does shift back and forth during the trial according to the nature and strength of the evidence offered in support or denial of the fact sought to be established. Where the evidence is such that it would not support an instructed verdict or peremptory finding, the burden of producing evidence concerning a particular fact rests on no one.

The location of the burden of proof is known prior to the commencement of the trial, and its location is generally determined by examination of the pleadings.

There can be no doubt that, as a general rule, the burden of proof of the factual elements constituting an affirmative defense is on the defendant. The first sentence of Rule 94, Tex.R.Civ.P., requires that a party “set forth affirmatively” 19 expressly enumerated defenses “and any other matter constituting an avoidance or affirmative defense.” As to each defense specifically mentioned, the law was, and is, that the burden of proof was on the party asserting it.

Rule 94 does not mention self-defense or defense of property. But it is clear that self-defense is a matter “constituting avoidance or affirmative defense.” Affirmative defenses are considered as acknowledging the existence of prima facie liability and as asserting propositions which, if established, avoid such liability. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967). Self-defense has the effect of avoiding liability where it otherwise might attach. For the purpose of the plea, a defendant who relies on self-defense does not dispute the allegations of fact contained in plaintiff’s petition. Instead, it consists of a statement of facts which, independently of the facts alleged in plaintiff’s pleadings, establish a reason why plaintiff cannot recover. To hold that self-defense is not a matter “constituting avoidance or affirmative defense” is to hold that self-defense is available to defeat plaintiff’s action where defendant’s answer consists solely of a general denial.

A person commits an assault if he intentionally causes bodily injury to another. Tex.Penal Code Ann. § 22.01 (1974). (Under the present Penal Code, the term “assault” embraces both of the older concepts of assault and of battery.) An entirely separate provision, found in a different title and chapter of the Penal Code, defines the situations, including self-defense, in which the use of force against the person of another is permitted. Tex.Penal Code Ann. § 9.31.

In this case, the plea of self-defense acknowledges that defendant intentionally caused bodily harm to plaintiff since, absent such intentional infliction of injury, there is no necessity for reliance on the doctrine of self-defense. It is nonsense for a person who has not engaged in certain conduct to attempt to justify the conduct in which he did not engage. Stated differently, the plea of self-defense admits the existence of fact which would otherwise give rise to a cause of action in favor of plaintiff, but asserts the existence of other facts which avoid the effect of the facts relied on by plaintiff.

What we are dealing with is the assertion of a privilege to engage in conduct which, but for the privilege, would render the actor liable. Traditionally, a party who invokes a privilege to engage in conduct which would otherwise be illegal has the burden of establishing the existence of the facts which give rise to the privilege, at least where his opponent has established the existence of facts which, absent the privilege, would subject the actor to liability.

An excellent analogy is found in the defamation cases. Article 5430, Tex.Rev.Civ. Stat.Ann. (1958), for example, defines “libel” in terms of a defamation expressed in writing or printing which tends to injure reputation. As in the case of assault, another provision, Article 5432, creates privileges to publish certain matters under described circumstances and provides that the exercise of such privileges shall not be made the basis of any action for libel. In Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970), the Supreme Court said:

Privilege is an affirmative defense in the nature of confession and avoidance; and, except where the plaintiff’s petition shows on its face that the alleged libelous publication is protected by a privilege, the defendant has the burden of proving that the publication is privileged.

See also Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.); 36 Tex.Jur.2d Libel and Slander § 134 (1962).

No reason suggests itself for distinguishing between privileges which avoid liability for the intentional infliction of personal injury and privileges which avoid liability for the publication of libelous statements. Therefore, the holding in Cameron Compress Co. v. Kubecka, 283 S.W. 285 (Tex.Civ.App.—Austin 1926, writ ref’d), to the effect that the burden of proof on the issue of self-defense in a civil action rests on defendant should be followed, unless the cases relied on in the majority opinion compel a different conclusion.

In Grieger v. Vega, 153 Tex. 498, 271 S.W .2d 85 (1954), it was held that in a suit arising under our wrongful death statute (Art. 4671, Tex.Rev.Civ.Stat.Ann. (1952)) to recover damages for an intentional killing, the burden was on plaintiff to prove that the defendant did not act in self-defense. But it is clear from the opinion that this conclusion was based on the wording of the statute, which gives a cause of action when death is caused “by the wrongful act, neglect, carelessness, unskillfulness, or default of another”. The Supreme Court said, “It will be observed that ‘wrongful act’ is placed in the same category as the other grounds giving rise to a cause of action, from which it follows that the burden placed upon plaintiff to prove the death was caused by a ‘wrongful act’ is the same as that for death by negligence or any of the other grounds named.” 271 S.W.2d at 89. Again, “The burden surely did not rest upon petitioner to prove that it [the death] was not wrongful, but was upon the respondent to prove that it was wrongful.” 271 S.W.2d at 90. Nowhere in the opinion did the Supreme Court question the correctness of the Kubecka holding as applied to cases not arising under the wrongful death statute, although that decision was clearly called to the attention of the Court by the dissenting opinion. 271 S.W.2d at 92.

The opinion in McMurrey Corp. v. Yawn, 143 S.W.2d 664 (Tex.Civ.App.—Texarkana 1940, writ ref’d), does not concern itself with the allocation of the burden of proof with reference to self-defense. The verdict in favor of plaintiff in that case, which involved an action for wrongful death, was reversed because the trial court completely failed to give an instruction relating to self-defense. Insofar as the burden of proof is concerned, that portion of the opinion which discusses the law of self-defense is couched in language which indicates that the burden of proof on that issue lies with defendant. For example, the Court said, “If from [defendant’s] standpoint, . ' . it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the same extent as if the danger were real, and if he shot and killed the deceased under such circumstances the killing would not be ‘wrongful.’ ” The proposition is stated in terms of “If A, then not B,” rather than in terms of “If not A, then B.”

The other cases cited as supporting the majority’s conclusion are cases sounding in negligence. They establish the proposition that only an unexcused violation of a penal statute calls for the application of the doctrine of negligence per se, or, stated differently, that only an unexcused violation of a penal statute constitutes negligence per se. Negligence is the failure to act as an ordinary prudent person would act under the same or similar circumstances. Throughout the trial the burden of proving that defendant’s conduct falls short of satisfying the ordinary prudent man standard is on the person relying on the existence of negligence. The rationale behind the rule that the burden of proving that the violation was unexcused is on plaintiff is expressed in Phoenix Refining Co. v. Powell, 251 S.W.2d 892, 896-7 (Tex.Civ.App.—San Antonio 1952, writ ref’d n. r. e), as follows:

1. A violation of a penal statute which contains an appropriate standard for determining civil liability, constitutes negligence as a matter of law.
2. This rule is not inexorable. The party violating the statute may assume the burden of going forward with the evidence and raise an issue as to an excusable violation.
3. If said party bring forward sufficient evidence to raise the issue . . . ,
then the issue of negligence determined by the reasonably prudent man standard should be submitted.
4. The burden of proof upon this issue rests with the party asserting negligence, for upon him rests the burden of proof as distinguished from the burden of going forward with the evidence.

In Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972), our Supreme Court expressly approved “the general treatment of legally acceptable excuses as set out in the Restatement [Torts] Second” for violation of a penal ordinance.

According to § 288A, Restatement 2d, Torts (1965), insofar as the doctrine of negligence per se is concerned, a violation of a penal statute is excused when (a) the violation is reasonable because of the actor’s incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others.

The accompanying comments and illustrations establish that a violation is excused only when an ordinary prudent man under the same or similar circumstances would have acted as did the defendant. The “defense” of excuse, then, is in reality no more than a denial by defendant that he was negligent. Stated simply, evidence of excuse is evidence of non-negligence.

The distinction between negligence cases and cases involving the intentional infliction of injury is, I think, clear. The elements of a cause of action for intentional bodily injury are (1) an injury, (2) intentionally inflicted. Evidence that defendant inflicted the intentional injury in the exercise of his privilege of self-defense is not a denial that he inflicted an injury and that he did so intentionally. On the other hand, bearing in mind the limited nature of the acceptable excuses for violation of a penal ordinance, evidence of excuse tends to establish the absence of negligence, an essential element of plaintiff’s cause of action. Evidence of excuse is in the nature of a denial, while evidence of self-defense is in the nature of confession and avoidance.

An example of the distinction is found in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963), where our Supreme Court discussed at length the difference between the “no duty” doctrine and the doctrine of Volenti non fit injuria. As between the occupier of land and his “invitee,” the former is under no duty to warn of the existence of “open and obvious” dangers. Evidence that the dangerous condition was open and obvious, then, is evidence of the absence of negligence, and the burden is on plaintiff, who must prove negligence, to “negative ‘no duty’.” 371 S.W.2d at 378. On the other hand, the volenti doctrine is an affirmative defense. 371 S.W.2d at 379. A defendant who relies on the “open and obvious” or “no duty” doctrine says, in effect, “I was not negligent.” The defendant who relies on volenti says, “I was negligent, but . . . .” The burden of proving the facts which make the doctrine of volenti applicable is on the defendant. Turner v. Clark, 412 S.W.2d 707 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.).

In the absence of statute which requires a different conclusion, as does our death statute in the light of the manner in which it was construed by the Supreme Court in Grieger, the party who relies on the doctrine of self-defense should have the burden of establishing the existence of facts which give rise to the privilege. This is the generally accepted view in this country. Prosser, Law of Torts § 19, p. 109 (4th ed. 1971).

      . Texas Penal Code Ann.

      . The statement is too broad. See 1 McCormick & Ray, Texas Law of Evidence § 46, p. 46 (1956); Morgan, Some Observations Concerning Presumptions, 44 Harv.L.Rev. 906, 928 n. 35 (1931).

      . The last sentence of Rule 94 provides that in a suit to recover on an insurance policy which contains provisions limiting the liability of the insurer, the insurer may not rely on any such exception unless it specifically pleads that the loss was due to an excepted risk. The burden is on one seeking to recover on a policy of insurance to prove that the loss resulted from one of the covered risks. That is, he must negative the applicability of the exceptions. This provision, which requires the insurer to plead the exceptions on which it relies, expressly provides that no change is intended in rules allocating the burden of proof. This last sentence of the Rule, then, does not deal with an affirmative defense, and it is significant that it is contained in a sentence separate from that which deals with affirmative defenses.

      . A similar holding was made by this Court in Sumner v. Kinney, 136 S.W. 1192 (1911, no writ), where it was also said that the burden rests on defendant to show that the injury was the result of accident.


author: JAMES, Justice.

text:
    WM. T. JARVIS COMPANY, INC., et al., Appellants, v. WES-TEX GRAIN COMPANY et al., Appellees.
    No. 5638.
    Court of Civil Appeals of Texas, Waco.
    Feb. 28, 1977.
    Rehearing Denied March 31, 1977.

      W. W. Ñaman, Ñaman, Howell, Smith & Chase, Waco, Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Edward Hill, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, Lyndon Olson, Waco, for appellants.
    Sherwin A. Winniford, Haley, Fulbright, Winniford, Bice & Davis, Waco, Bert T. McDaniel, Houston, Charles B. McGregor, Beard & Kultgen, Waco, Steve Razanas, West, for appellees.
   OPINION

JAMES, Justice.

This is an appeal from an order of dismissal and order overruling a motion for reinstatement. The question before us is whether the trial court abused its discretion in dismissing the case for want of prosecution, and in overruling the Appellants’ motion for reinstatement of the cause. We hold that under the record before us an abuse of discretion is shown, and accordingly reverse and remand the cause to the trial court for trial on the merits.

Plaintiff-Appellants William T. Jarvis Co., Inc., Producers Grain Corporation and Heath Elevator and Grain Co., a partnership, originally filed this suit against Defendant-Appellees Wes-Tex Grain Co., D. A. Kimmey, Frank Maddox, Jr., KMH Corp., and West Bank & Trust on June 6, 1966. Plaintiffs sought recovery against Defendants for grain shipped by Plaintiffs to Defendants Wes-Tex and KMH Corporation; and alleged that Defendants Kimmey and Maddox together with one C. R. Hull, now deceased, were the officers and directors of Wes-Tex and KMH Corporation as well as of West Bank & Trust; that as such officers and directors said individual Defendants commingled the assets of Wes-Tex and KMH and took assets from both of said corporations for their personal use and benefit; that West Bank & Trust held a mortgage secured by a deed of trust on the assets of Wes-Tex and KMH which said Bank was threatening to foreclose. Plaintiffs sued for their respective grain debts and attorney’s fees against Wes-Tex, KMH, Kimmey, and Maddox, and in addition thereto sought a receivership over Wes-Tex and KMH, an audit over the transactions of Wes-Tex and KMH, and injunctive relief against West Bank and Trust enjoining said Bank from foreclosing its deed of trust against Wes-Tex and KMH, and for cancellation of the mortgages held by said Bank against Wes-Tex and KMH. Plaintiff-Appellants were respectively represented by two law firms of Waco and one law firm each from Fort Worth and Amarillo. Defendant-Appellees at the time of dismissal of the case were respectively represented by two Waco law firms and an attorney from Houston; however, at times prior thereto Defendant-Appellees had been represented by other attorneys of Waco and West, Texas.

There was considerable activity in this case on the part of Plaintiff-Appellants from the time of its filing, to wit, June 6, 1966, until May 7,1973; then no activity of any kind thereafter for about two years and five months, until October 1975; and then from October 1975 until the dismissal of the case on April 15, 1976, there was a considerable resurgence of activity on the part of Plaintiff-Appellants as will be hereinafter shown. On June 27, 1966, the trial court entered an order after hearing wherein it denied the temporary injunction sought by Plaintiff-Appellants against West Bank and Trust, and appointed an auditor to audit all transactions of Defendant-Appellees. The case was set for trial on its merits nine times in all, the first time being October 10, 1966, and the last time being May 10,1976, said ninth setting being twenty-five days after the trial court’s order dismissing the cause for want of prosecution.

The following is a resumé of the nine settings and what happened to each one:

DATF OF SETTING WHAT HAPPENED
1. October 10, 1966: The auditor's report ordered by the trial court was not ready, and depositions taken by the parties had not been filed. Case passed from setting.
2. December 11, 1967: Passed upon trial court's own motion because of the judge's impending retirement.
3. September 15, 1969: Passed upon request of Defendant-Appellees.
4. November 24, 1969: Passed upon request of Defendant-Appellees because of illness of Defendant Kimmey.
5. September 8, 1970: On a pre-trial hearing held on September 3, 1970, the trial court allowed Defendants to file new pleadings containing a number of special exceptions which were urged by Defendants. This necessitated a passing of the case to give Plaintiffs an opportunity to amend their pleadings.
6. February 8, 1971: On January 20, 1971, Defendant West Bank and Trust filed a pleading seeking for the first time contribution and indemnity over against Defendants Kimmey and Maddox in the event Plaintiffs should recover against said Bank. There had been no change in the basic relationships between the Bank and the individual Defendants since the beginning of the suit; however, this conflict of interest between these Defendants was raised for the first -time nearly five years after the commencement of the suit. This new pleading was accompanied by a change in attorneys representing these various Defendants, who made motions for continuance or in the alternative a severance of the cross-action against said Bank from the rest of the suit; whereupon the trial court granted a continuance over the objection of the Plaintiffs.
7. June 21, 1971: Passed upon the request of Plaintiffs, because one of Plaintiff's attorneys was tied up in a hearing before the Railroad Commission which ran from April 19, 1971 to October 22, 1971. This was the only continuance of the case requested by Plaintiffs.
8. May 7, 1973: On a pre-trial hearing held on May 3, 1973, Defendants filed new amended pleadings containing special exceptions which were sustained by the trial court. This necessitated a repleading by Plaintiffs thereby bringing about a continuance.
9. May 10, 1976: This setting was never reached, because the trial court dismissed the case for want of prosecution by order dated April 15, 1976.

As stated, from the time the case was passed from the May 7, 1973 setting, there was no activity in the case until October 3, 1975, a period of some two years and five months. On said last-named date, the trial court issued an order giving notice of intention to dismiss a number of civil cases (including the case at bar) as of November 1, 1975. Upon receiving such notice, Plaintiffs on October 14, 1975, contacted the court and requested that the case be allowed to remain on the docket. Pursuant to counsel’s request, the trial court agreed to remove the case at bar from the list of cases to be dismissed on November 1, 1975. At this time, counsel for Plaintiffs represented to the court that an amended pleading was being prepared for filing in behalf of Plaintiffs; whereupon Plaintiffs would request a preferential setting of the case. This procedure was approved by the trial court. Then on November 12, 1975, Defendants Kimmey and West Bank and Trust filed a Motion to Dismiss the case for want of prosecution. Then on December 8, 1975, Plaintiffs filed their Second Amended Original Petition and wrote a letter to all counsel on both sides seeking information which would assist the court in making a preferential setting of the case. Plaintiffs received no response to this letter from Defendants Kimmey or West Bank and Trust.

On January 14, 1976, Plaintiffs obtained from the trial court a preferential setting of this case on the merits for Monday, May 10, 1976, and thereupon immediately notified all the attorneys herein of such setting.

Then on March 12, 1976, the trial court held a hearing on the Motion to Dismiss for Want of Prosecution filed by Defendants Kimmey and. West Bank and Trust, after which the court dismissed the cause by order dated April 15, 1976. At the time of such dismissal, the case was preferentially set for trial for Monday, May 10, 1976, twenty-five days after such dismissal.

Thereafter, Plaintiffs filed a Motion for Reinstatement of the case which was overruled by the trial court by order dated May 13, 1976, from which Plaintiffs appeal.

The trial court has the right to dismiss a suit for failure to prosecute it with due diligence, and this is a matter which rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court, which is a question of law. Bevil v. Johnson (1957) 157 Tex. 621, 307 S.W.2d 85; Veterans’ Land Board v. Williams (Tex.1976) 543 S.W.2d 89; Pollok v. McMullen Oil and Royalty Co. (San Antonio CA 1964) 383 S.W.2d 837, writ refused. Likewise an application for reinstatement is addressed to the sound discretion of the trial judge and his actions will not be disturbed in the absence of a showing of abuse. Moss v. State (Eastland CA 1962) 361 S.W.2d 408, no writ; Linville v. Commercial Insurance Co. of Newark, New Jersey (Houston 14th CA 1970) 462 S.W.2d 70, no writ.

This case was fraught with much activity on the part of Plaintiffs from the time it commenced on June 6, 1966, until it was passed by the trial court from its May 7, 1973, setting. Thereafter the case lay dormant for two years and five months, until October 1975, when the trial court notified the parties of its intention to dismiss the cause for want of prosecution as of November 1, 1975. However, from this point forward, Plaintiffs became active again, by: (1) persuading the trial court to remove the cause from the list of cases to be dismissed; (2) securing leave from the trial court to file amended pleadings and to contact all counsel to assist the court in making a preferential setting; (3) in filing amended pleadings, and (4) in obtaining a preferential setting of the cause for May 10, 1976. Yet withal, the trial court after hearing dismissed the cause for want of prosecution twenty-five days before it was scheduled to go to trial, with no indication at the time of such dismissal that any party was seeking a postponement. We appreciate the problems of the trial court in its patient and repeated attempts to get this case tried, particularly where there are several parties involved represented by lawyers scattered over the State; however, under the record before us, it is our opinion that an abuse of discretion is shown.

We accordingly reverse and remand the cause to the trial court for trial on the merits.

REVERSED and REMANDED.


author: MOORE, Justice.

text:
    James SCROGGINS et al., Appellants, v. Opal ROPER, Appellee.
    No. 993.
    Court of Civil Appeals of Texas, Tyler.
    March 3, 1977.

      Frank B. Murchison, Paxton, Whitaker & Parsons, Palestine, for appellants.
    Richard L. Stone, Stone & Stone, Jacksonville, for appellee.
   MOORE, Justice.

This is a forcible entry and detainer action. Plaintiffs, James Scroggins and wife, Mrs. James Scroggins, instituted suit against defendant, Opal Roper, seeking to oust her of possession of certain real property known as Lake Trail Restaurant in Frankston, Texas. They alleged that at the time they purchased the property from Mrs. D. J. Tarrant on April 4, 1975, defendant Opal Roper was in possession as a month-to-month tenant of Mrs. Tarrant, and that although they had requested her to vacate the premises, she refused, and continues to refuse to deliver possession to the plaintiffs. Defendant, Opal Roper, answered with a general denial and by way of a defense alleged that she was holding by virtue of a five year written lease, dated June 1, 1972, executed by plaintiffs’ vendor, Mrs. Tar-rant. Further, by way of a cross-action, Mrs. Roper sued Mrs. Tarrant, her lessor, alleging that under the terms of the lease agreement, she was entitled to recover a reasonable attorney’s fee if she was required to employ an attorney to enforce the lease agreement. In reply cross-defendant, Mrs. Tarrant, denied generally the allegation of the cross-action, specially denied the execution of a written agreement, and alleged that Mrs. Roper was a month-to-month tenant. The Scroggins also specially denied the existence of a written lease and alleged Mrs. Roper was holding as a month-to-month tenant. After a trial before a jury, the jury found that the defendant, Opal Roper, was in possession of the premises under a written lease, executed and delivered to her by Mrs. Tarrant. Based on the verdict the trial court entered a take nothing judgment against plaintiffs, James Scroggins and wife, on their action for forcible entry and detainer and awarded cross-plaintiff, Opal Roper, a judgment for attorney’s fees in the amount of $1,000.00 against cross-defendant, Mrs. D. J. Tarrant. Thereafter plaintiffs, James Scroggins and wife, joined by Mrs. Tarrant, filed a joint motion for judgment notwithstanding the jury’s verdict and a joint motion for new trial. After their motions had been overruled, the Scroggins, as well as Mrs. Tar-rant, perfected this appeal.

By their first and third points of error plaintiffs and Mrs. Tarrant contend that the trial court erred in overruling their motion for judgment notwithstanding the verdict because they contend there was no evidence to support the finding that a written lease was delivered to the defendant, Opal Roper, by their vendor, Mrs. D. J. Tarrant. We cannot agree with this proposition and the points are accordingly overruled.

Delivery is essential in order for a written lease to be binding and enforceable. See 35 Tex.Jur.2d Landlord and Tenant sec. 16, p. 501. A “lease” is a grant or devise of realty, usually for a term of years, and must be executed in the essential prerequisite of a deed. Caples v. Dearborn Stove Co., 231 S.W.2d 669 (Tex.Civ.App.—Dallas 1950) reversed on other grounds 149 Tex. 563, 236 S.W.2d 486 (1951). In the case of deeds, no particular form of words or action is necessary to constitute delivery but manual delivery is not necessary. A deed may be delivered by words without acts, by acts without words or both by words and acts. Any act or declaration of the grantor showing an intention to give present effect to an executed conveyance is sufficient. Delivery may be proved by evidence of acts or words showing that the grantor intended to pass title, and by evidence that after execution the grantor treated and recognized the property as belonging to the grantee although possession of the deed was retained by the grantor. Delivery is a mixed question of law and fact to be determined by the jury. See 19 Tex.Jur.2d Deeds secs. 81, 83 and 89. We see no valid reason why the foregoing rules should not apply equally as well to the delivery of a written lease. Bearing in mind these rules, we will undertake to review the record in order to determine whether there is any evidence of probative force to establish delivery of a written lease by Mrs. Tarrant to Opal Roper.

The record reveals that in May 1972, Mrs. D. J. Tarrant was the owner and operator of a restaurant situated in Frankston, Texas. After some negotiations she and her husband agreed to lease the restaurant to Opal Roper for $250.00 per month and agreed to sell the fixtures and inventory for approximately $13,000.00. Thereafter, Mrs. Roper contacted her banker, Jeff Austin, Jr., seeking a loan to purchase the furniture, fixtures and inventory. Austin agreed to make a $9,000.00 loan provided she could obtain a written lease on the premises covering the period for repayment of the loan. Thereafter, she contacted Mrs. Tarrant and told her that in order to get a loan it would be necessary to obtain a five year lease on the restaurant premises. Mr. and Mrs. Tarrant then had a five year lease on the premises prepared by their attorney. The lease provided for monthly rent in the amount of $250.00 and contained other provisions usually found in leases, including an option to buy during the five year term for $28,000.00. A copy of the unsigned lease was delivered to Opal Roper. The lease was prepared for the signatures of Mrs. Tarrant and Mrs. Roper without the joinder of their respective husbands. An unsigned copy of the lease was offered in evidence at the trial as defendant’s Exhibit D-l.

The testimony of the appellee, Opal Roper, may be summarized as follows: On the date fixed for the closing of the loan, she and Mrs. Tarrant met at the bank with Mr. Austin. Mr. Austin read the lease and said that he felt it was a good lease and, therefore, he would make the loan. She saw Mrs. Tarrant sign the lease and then pass it to her for her signature. She signed the lease. Mrs. Tarrant then gave her a bill of sale to the furniture and fixtures after which she paid Mrs. Tarrant approximately $13,000.00 for the same. She further testified that the unsigned copy of the lease offered as Exhibit D-l was the same lease that Mrs. Tarrant signed at the bank and which she kept. She explained that the reason why she did not receive a signed copy of the lease at the loan closing was because she had left her copy at the cafe, and upon discovering the same, the parties agreed that they would meet at the bank a few days later at which time her copy would be signed. She testified that this later meeting to sign her copy never occurred. According to her testimony the entire transaction of leasing the property as well as the closing of the loan, was conducted by Mrs. Tarrant and her and that neither Mr. Roper nor Mr. Tarrant was present at the closing. Finally, Opal Roper testified she took possession on June 2,1972, and had paid the rental every month since that time. Mr. Roper died prior to the trial.

Jeff Austin, Jr., testified that he agreed to make a loan to Mrs. Roper provided she could get a written lease on the cafe. He was later advised that the lease would be executed along with the closing of the loan at the bank. He testified that Mrs. Roper and Mrs. Tarrant came to the bank without their husbands where he read and discussed the lease with them because he wanted them to understand it. According to his testimony, when both Mrs. Tarrant and Mrs. Roper agreed to the terms of the lease and the bill of sale, he made the loan. Although he testified he did not know whether the lease was signed at the bank or not because he did not actually see them “put the ink to it,” he stated that if there hadn’t been a signed lease he would not have made the loan. Finally, he testified that on two occasions thereafter Mrs. Tar-rant came to him threatening to break the lease because Mrs. Roper was not taking care of the building.

The witness, Sharon Reynolds, a waitress at the restaurant, also testified that Mrs. Tarrant came to the restaurant on one occasion while Mrs. Roper was away and threatened to break the lease because Mrs. Roper had removed a door and set it on the outside of the building.

D. J. Tarrant testified that he had the written lease prepared by his attorney at the request of Mr. Roper and delivered all copies of the lease to him. He testified that they never agreed to lease the cafe for five years and had the written lease prepared only as a subterfuge in order to assist Mrs. Roper in leading the banker to believe that she had a five year written lease. Both Mr. and Mrs. Tarrant testified that the only agreement was that Mrs. Roper would lease the premises on a month-to-month basis and that they had never again seen or heard of the written lease after it was delivered to Mr. Roper. They testified that they were present at the loan closing along with Mr. and Mrs. Roper and nothing whatever was said about a written lease. In short, they denied the testimony of each and every witness who gave testimony indicating that a written lease was delivered to Mrs. Roper.

It is a well settled rule that when considering a no evidence point, the reviewing court must view the evidence in support of the jury finding in its most favorable light considering only the evidence and reasonable inferences to be drawn therefrom which support the finding and rejecting the evidence and inferences contrary to that finding. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); Transport Ins. Co. v. Mabra, 487 S.W.2d 704 (Tex.1972). Upon applying the foregoing rules of law we have concluded that there was ample evidence to support the jury’s finding that the lease in question was delivered. Appellants’ first and third points of error are therefore overruled.

By their second point of error the plaintiffs and cross-defendant assert that there was “insufficient” evidence to support the jury’s finding and, therefore, contend that the trial court erred in overruling their motion for new trial. After a careful search of the motion for new trial we fail to find any assignment of error contending that the evidence is factually insufficient to support the judgment. The cases are legion holding that a fact point must be raised in the motion for new trial in order to preserve it for appeal. Tex.R.Civ.P. 324; Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex.1969); Smith v. Texas Pipeline Co., 455 S.W.2d 346, 351 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). It therefore follows that their second point was not properly preserved for review.

This brings us to the controversy with regard to that part of the judgment in which the trial court awarded- Opal Roper attorney’s fees in the amount of $1,000.00 against cross-defendant Mrs. D. J. Tarrant and decreed that such amount was to be paid out of the funds in the registry of the court. The judgment for attorney’s fees stems from the following provision in the lease:

“In the event that either party is required to employ an attorney to enforce the provisions of this Lease Agreement, the party in default shall be responsible for reasonable attorney’s fees for the enforcement of this Lease Agreement.”

The record reveals that after Mrs. Tar-rant sold the restaurant premises to Mr. arid Mrs. Scroggins, Mrs. Tarrant refused to accept further rental payments and advised Mrs. Roper to make future rental payments to the Scroggins. After the Scroggins filed this suit seeking to oust Mrs. Roper from possession, she deposited all rental payments into the registry of the court. Thereafter Mrs. Tarrant asserted no claim to these funds and concedes that such rental funds belong to the Scroggins. The Scroggins were not parties to Mrs. Roper’s cross-action for attorney’s fees and no judgment for attorney’s fees was rendered against them. The judgment for attorney’s fees was rendered only against Mrs. Tar-rant. The trial court, however, ordered that the $1,000.00 judgment against Mrs. Tarrant be paid out of the rental funds which had been paid into the registry of the court.

As we view the record, Mrs. Tarrant makes no attack on the judgment rendered against her for attorney’s fees. After a careful review of the joint motion for judgment notwithstanding the verdict and the joint motion for new trial filed upon behalf of Mrs. Tarrant and the Scroggins, we fail to find any complaint or assignment of error wherein Mrs. Tarrant complains of the judgment rendered against her for attorney’s fees. Moreover, there is no point of error complaining of the judgment for attorney’s fees in the joint brief filed in behalf of the Scroggins and Mrs. Tarrant. While we gather from certain statements in the joint brief that she is dissatisfied with the judgment rendered against her for attorney’s fees, the fact remains that she did not register any complaint of the judgment in this regard in her motion for new trial. In the absence of any assignment of error in cross-defendant’s motion for new trial complaining of the award of attorney’s fees, this court has no authority to disturb that portion of the judgment. Rule 324, Tex.R. Civ.P.; Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958).

Under the fourth and fifth points of error, plaintiffs, James Scroggins and wife, complain of the action of the trial court in ordering the $1,000.00 judgment rendered against Mrs. D. J. Tarrant to be paid out of the rental funds paid into the registry of the court because they contend these funds were owned by them and the court was without authority to compel them to pay a judgment rendered against another party. We sustain the contention.

The proof shows that the funds in the registry of the court were the property of Mr. and Mrs. Scroggins. Mrs. Tarrant makes no contention to the contrary. Consequently that portion of the judgment ordering the Clerk of the Court to pay the sum of $1,000.00 to Opal Roper out of the registry of the court and further ordering the court costs incurred by Opal Roper to be paid out of the funds in the registry of the court is hereby reversed and deleted from the judgment. In lieu thereof, the judgment will be reformed to read as follows:

“It is hereby ordered that the Clerk of this Court pay the funds deposited into the Registry of the Court to Plaintiffs James Scroggins and wife, Mrs. James Scroggins. It is further ordered that the judgment for attorney’s fees, as well as all costs incurred by Opal Roper, be paid by cross-defendant, Mrs. D. J. Tarrant, for which execution shall issue.”

In all other respects the judgment is affirmed.

Reformed and as reformed affirmed.


author: KLINGEMAN, Justice.

text:
    J. William ALLEN, Appellant, v. ALISON MORTGAGE INVESTMENT TRUST and the Woodbridge Corporation, Appellees.
    No. 15662.
    Court of Civil Appeals of Texas, San Antonio.
    March 9, 1977.

      John H. Marshall, Houston, for appellant.
    Andrew L. Jefferson, Jr., Carnegie H. Mims, Jr., Jefferson, Maness, Valdes & Mims, Houston, for appellees.
   KLINGEMAN, Justice.

J. William Allen, a resident of Harris County, Texas, appeals from an order of the District Court of Bexar County, Texas overruling his plea of privilege to be sued in the county of his residence. Suit was filed in Bexar County by Alison Mortgage Investment Trust (Alison) and the Woodbridge Corporation (Woodbridge) against Allen, Broadway National Bank (Broadway), and Aetna Insurance Co. (Aetna) seeking recovery in the sum of $28,097.00, the amount of a check issued by Aetna payable to Alison and Woodbridge for losses sustained in a fire on a condominium project in Bexar County, Texas. Allen filed his plea of privilege to be sued in Harris County, Texas. Alison and Woodbridge filed controverting affidavits asserting that venue is proper in Bexar County under Subds. 4, 7, and 9 of Art. 1995, Tex.Rev.Civ.Stat.Ann. (19 — -). The trial court, after a hearing, overruled Allen’s plea of privilege.

The condominium project involved was being constructed for Woodbridge. Wood-bridge had given a deed of trust to Alison securing a large loan on the premises where the condominium unit was being constructed. The deed of trust contains a provision which provides that money collected from insurance policies on the project is to be applied as a credit on the indebtedness. Aetna was the insurer under a blanket policy which provides for fire and hazard insurance coverage. After a fire in one of the units occurred, a claim was made and Aetna issued a check for such claim in the amount of $28,097.00, made payable jointly to Alison and Woodbridge. The check was sent to Allen, then president of Woodbridge, on or about September 24, 1975. Such check was deposited in Broadway, with the deposit being made to the account of Wood-bridge. Both the cancelled check and deposit slip were introduced into evidence. The back of the check contains a printed notation, “DRAFT MUST BE ENDORSED HERE BY ALL PAYEES.” Under the notation someone had typed therein, “Alison Mortgage Investment and Trust” — “Wood-bridge Corporation.” Thereunder is a handwritten signature, “J. W. Allen, Pres.” The deposit slip is dated September 24,1975 and reflects a deposit of $28,097.00 to the account of Woodbridge.

There was introduced into evidence a check in the amount of $29,000.00, dated September 25, 1975, payable to J. W. Allen, drawn on the Woodbridge Corp., and signed by J. W. Allen. The back of the check contains the endorsement of J. W. Allen. There is testimony that Allen resigned as president of Woodbridge on Friday afternoon, September 26, 1975. An assistant vice president of Broadway testified that $28,097.00 was deposited into the Wood-bridge account on September 24, 1975 and $29,000.00 withdrawn on September 25, 1975, and that the ending bank account for the month was $227.84. It was stipulated that the Aetna check was deposited in Broadway to the account of Woodbridge and that it went through channels to the Hartford National Bank and Trust Co., who honored the draft and reduced Aetna’s account in the amount of such check. It was stipulated that Broadway is a resident of Bexar County, Texas. Allen did not testify on the plea of privilege hearing.

No findings of fact or conclusions of law were requested of or filed by the trial court. Under such circumstances, a reviewing court must presume that the trial court resolved every disputed fact issue in favor of the winning party, and the judgment implies all necessary fact findings in support of the judgment. Ford Motor Credit Co. v. Garcia, 504 S.W.2d 931 (Tex.Civ.App.—San Antonio 1974, no writ); Kimbell Milling Co. v. Marcet, 449 S.W.2d 100 (Tex.Civ.App.—San Antonio 1969, no writ); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795 (1949).

Allen asserts that there is neither pleadings nor proof necessary to sustain venue in Bexar County, Texas under either Sub. 4 or Subd. 9; that there could be no conversion as to Alison because it was not the owner of the check involved; > that the evidence is legally and factually insufficient to constitute a conversion; and that the evidence is legally and factually insufficient to establish a cause of action against the resident defendant, Broadway.

The material allegations of plaintiffs’ pleadings may be summarized as follows:

(a)Allen received the check in question; that he typed or caused to be typed on the back of the check, “Alison Mortgage Investment and Trust”- — “Woodbridge Corporation”; that beneath the typed names he signed the check “J. W. Allen, Pres”; and that Allen was never president of Alison and had no authority to endorse checks for Alison.

(b) Defendant, Bn^dway, cashed the check on September 24, 1975 despite the fact that the check had two payees and only one endorser.

(c) The entire amount of the check was deposited to the Woodbridge Corp.; and that the following day Allen wrote a check to himself in the amount of $29,000.00, and shortly thereafter resigned as president of Woodbridge.

(d) The check was never sent to Alison nor did Alison ever receive any of its proceeds.

(e) Allen and Broadway both violated the terms and provisions of Art. 3.116 and Art. 3.404 of the Tex.Bus. & Comm.Code Ann. (1968), and in doing so exercised dominion and control over the check involved inconsistent with the rights of co-owner, Alison, and such actions constituted a conversion as a matter of law.

(f) Allen violated the terms and conditions of the contract between Alison and Woodbridge in that he failed to remit the proceeds of the check to Alison for credit on the indebtedness incurred by Woodbridge to finance the condominium project.

(g) Both Allen and Broadway committed a conversion by exercising dominion and control of the proceeds of the check in a manner inconsistent with the rights of Alison.

Plaintiffs incorporated their petition as a part of their controverting plea for all purposes and further summarize the allegations of the petition and alleged that venue is proper in Bexar County under Subd. 4 and Subd. 9 of Art. 1995; that the acts set forth and described constitute a conversion; that under Texas laws a conversion is a form of trespass; and that both Allen and Broadway are proper parties to this lawsuit.

Plaintiffs rely herein on both Subd. 4 and 9, Art. 1995.

Subd. 9 provides that a suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed by the defendant or by his agent or representative.

To sustain venue in Bexar County under Subd. 9, appellees had the burden of showing: (1) a trespass has been committed; (2) it was committed in the county of the suit; (3) the defendant asserting his privilege committed the act, or the act was committed by another under circumstances that made the defendant legally responsible. 1 McDonald Texas Civil Practice § 4.17.1, pp. 442, 443; Sanderlin v. Dransfield, 523 S.W.2d 794 (Tex.Civ.App.—Fort Worth 1975, no writ); Industrial Supply Co. v. Stockton Oil Co., 408 S.W.2d 251 (Tex.Civ.App.—Fort Worth 1966, writ dism’d).

A conversion of personal property is a ‘trespass’ within the meaning of Subd. 9. Conlee Seed Co. v. Brandvik, 526 S.W.2d 795 (Tex.Civ.App.—Amarillo 1975, no writ); Sanderlin v. Dransfield, supra; Loomis v. Sharp, 519 S.W.2d 955 (Tex.Civ.App.—Texarkana 1975, writ dism’d); Powell v. Forest Oil Corp., 392 S.W.2d 549 (Tex.Civ.App.—Texarkana 1965, no writ); 14 Tex.Jur.2d Conversion § 43 (1960).

To constitute a conversion it is not necessary that there be a manual taking of the property in question. The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner’s rights, is in law a conversion. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971); American Surety Co. of New York v. Hill County, 254 S.W. 241 (Tex.Civ.App.—Dallas) affm’d, 267 S.W. 265 (Tex.Comm.App.1924).

Art. 3.116, Tex.Bus. & Comm.Code Ann., provides in part that an instrument payable to the order of two or more persons “(2) if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.”

Art. 3.419, Tex.Bus. & Comm.Code Ann., provides “(a) An instrument is converted when ... (3) it is paid on a forged indorsement.”

In Tubin v. Rabin, 382 F.Supp. 193 (N.D.Tex.) supplemented, 389 F.Supp. 787 (N.D.Tex.1974), affm’d, 533 F.2d 255 (5th Cir. 1976), the Court recognized that the Texas law applied, and in holding that the defendant collecting bank was liable to the plaintiffs upon a conversion theory, stated:

When the defendant collecting bank paid the proceeds to a forger, the payee’s specific wishes were not carried out and under § 3-419(l)(c) it converted the payee’s funds.

We have concluded that there is adequate proof of a conversion by both Allen and Broadway and that venue is sustainable in Bexar County, Texas under Subd. 9.

Subd. 4 of Art. 1995 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants reside. To prove venue in Bexar County under Subd. 4. appellees had the burden of proving three venue facts: (1) one defendant resides in the county of the suit; (2) the party asserting his privilege is at least a proper party to the claim against the resident defendant; (3) plaintiff has a bona-fide claim against the resident defendant. 1 McDonald Texas Civil Practice § 4.102, p. 434; Zurich Insurance Co. v. Wiegers, 527 S.W.2d 511 (Tex.Civ.App.—Austin 1975, no writ); Town & Country Mobile Homes, Inc. v. Benfer, 527 S.W.2d 523 (Tex.Civ.App.—San Antonio 1975, no writ); Cage v. Guerra, 511 S.W.2d 397 (Tex.Civ.App.—San Antonio 1974, no writ).

To maintain venue under Subd. 4, where two or more defendants reside in different counties in the county where one of the defendants resides, plaintiff must: (a) allege a joint cause of action against the resident and nonresident defendant, or a cause of action against the resident defendant so intimately connected with the cause of action against the nonresident defendant that the two may be joined to avoid a multiplicity of suits; (b) prove by independent evidence that the resident defendant in fact resides in such county; (c) introduce evidence at the venue hearing sufficient to establish the cause of action alleged against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Von Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W.2d 375 (Tex.Civ.App.—Dallas 1975, no writ); Ford Motor Credit Co. v. Garcia, supra.

A defendant is a proper party under Subd. 4 where the plaintiffs petition shows that the cause of action against the resident defendant and the nonresident defendant grows out of the same transaction, or a series of closely related transactions, and are so intimately connected that they should be joined to avoid a multiplicity of suits. State Farm Mutual Automobile Insurance Co. v. White, 461 S.W.2d 476, 479 (Tex.Civ.App.—Tyler 1970, no writ); Stockyards Nat. Bank v. Maples, supra; 1 McDonald Texas Civil Practice § 4.10.2.

The pleadings, taken as a whole, detail a series of events that assert a wrongful conversion by both the resident defendant, Broadway, and the nonresident defendant, Allen. Appellees also plead a violation of § 3.116 and § 3.419 of the Tex.Bus. & Comm.Code, both by the resident defendant and the nonresident defendant, and alleged a statutory conversion by such defendants.

The pleadings show a cause of action against Allen, the nonresident defendant, which entangles him in the controversy between plaintiffs and the resident defendant, Broadway; the cause of action against both grows out of the same transaction and is intimately connected.

It is undisputed that Broadway is a resident of Bexar County, Texas, the county of the suit. Under the record: (1) the nonresident defendant, Allen, is at least a proper party to the claim against the resident defendant, and (2) plaintiffs plead and proved a bona-fide claim against the resident defendant. We hold that appellees sufficiently plead and proved the necessary venue facts to maintain venue in Bexar County, Texas under Subd. 4 of Art. 1995.

Venue is maintainable against Allen in Bexar County, Texas under both Subd. 4 and 9, Art. 1995, Tex.Rev.Civ.Stat.Ann. The trial court did not err in overruling Allen’s plea of privilege.

All of appellant’s points of error have been considered, and all are overruled. The judgment is affirmed.

      . Appellees no longer rely on Subd. 7, but assert that the trial court’s ruling is correct under both Subds. 4 and 9.

      . Allen cites Lone Star Beer, Inc. v. Republic Nat. Bank of Dallas, 508 S.W.2d 686 (Tex.Civ.App.—Dallas 1974, no writ), and Lone Star Beer, Inc. v. First National Bank of Odessa, 468 S.W.2d 930 (Tex.Civ.App.—El Paso, 1971, no writ) to support his contention. The facts in the two Lone Star cases are basically similar. The Dallas and El Paso Courts of Civil Appeals ruled and held in each case that Lone Star Beer, Inc. could not recover against the collecting bank for conversion because the testimony of the officers and directors of Lone Star Beer, Inc. repudiated any claim of ownership in the checks which the corporation alleged were converted. We have no such facts here. Alison asserts it is an owner of the check and proceeds, and there is nothing in the record to negate such claim.

      . See Zidell v. John Hancock Mut. Life Ins. Co., 539 S.W.2d 162 (Tex.Civ.App.—Dallas 1976, no writ).

      . Comment 3, speaking of § 3-419(a)(3)’s purpose, says: “It adopts the prevailing view of decisions holding that payment on a forged indorsement is not an acceptance, but that even though made in good faith it is an exercise of dominion and control over the instrument inconsistent with the rights of the owner, and results in liability for conversion.”

      . The Court quoted with approval from Fidelity & Deposit Co. of Maryland v. Fort Worth Nat. Bank, 65 S.W.2d 276 (Tex.Comm.App.1933), a case involving the forged endorsement of a company’s check by an employee, wherein the Court said: “[A] collecting bank which accepts a check on another bank on a forged indorsement acquires no title thereto, and holds the proceeds thereof, when collected from the drawee bank, for the rightful owner, who may recover from the collecting bank as for money had and received, even though such bank has fully paid over and accounted for the same to the forger without knowledge or suspicion of the forgery.”

      . “There is a rational basis for accepting the allegations of the petition as sufficient proof under Subdivision 4 that the nonresident defendant is properly joined as a party to the suit. That subdivision . requires only that the suit be against two or more defendants, and there is no better proof of this fact than the petition itself. A nonresident defendant who is not a proper party to the suit is entitled to go out of the case on a plea of misjoinder, and hence is not prejudiced by permitting the plaintiff to maintain venue without proving by independent evidence that such defendant is a proper party.” Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956).


author: O’QUINN, Justice.

text:
    Auburn T. McFADDEN, Jr., et ux., Appellants, v. BRESLER MALLS, INC., Appellee.
    No. 12502.
    Court of Civil Appeals of Texas, Austin.
    March 9, 1977.
    On Filing of Remittitur March 23, 1977.
    Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellants.
    Ronald L. McKinney, Hoppenstein & Prager, Dallas, for appellee.
   O’QUINN, Justice.

This appeal is the second from judgment of a county court at law in Travis County awarding attorney’s fees in a forcible entry and detainer suit.

We considered the first appeal in 1975 (526 S.W.2d 258, Tex.Civ.App.) on appellants’ point of error that there was “insufficient evidence to support the award of attorney’s fees” and that the fees awarded were “grossly excessive and contrary to the great weight and preponderance of the evidence.”

In that decision we stated, “The award is grossly excessive, but this Court reverses the judgment of the trial court by reason of the insufficiency of evidence to support the award. If the judgment were reversed on the sole ground that the award is excessive,” we pointed out, “this Court would be under mandatory duty to suggest a remitti-tur under provisions of Rule 440, Texas Rules of Civil Procedure.”

In the first appeal the trial court had awarded attorney’s fees of $4,990. In this appeal the award is for $4,950, a reduction of $40, or less than one percent of the figure considered by this Court to be grossly excessive.

We regard as grossly excessive award of $4,950 as attorney’s fees in this forcible entry and detainer case, and will proceed to perform our mandatory duty to suggest a remittitur, which if filed within the time allowed, will obviate remand of the cause for another trial.

In oür first opinion we examined in detail the simplicity of a proceeding in forcible entry and detainer, its long establishment in the jurisprudence of this State, and listed elementary guides available to lawyers which render needless extensive and exhaustive research in preparation for trial. We pointed out, for guidance of the trial court on retrial of the case, that opinion testimony of attorneys would not be conclusive, but that the trier of facts should take into consideration facts in relation to services.

In this appeal attorneys for appellee appear to rely on evidence of their research in franchise law, antitrust law, and rules of law pertaining to purpose clauses in lease agreements. We perceive in this evidence research performed for Bresler Malls with a view to future problems suggested by this suit, but not at issue in this case. The hours spent on these subjects are not properly chargeable to appellants in a proceeding in forcible entry and detainer under Rule 752, Texas Rules of Civil Procedure.

In their elaborate preparation for the first trial of this case, in which after stipulations the only main issue remaining was possession, attorneys for Bresler Malls hold a position not much unlike the soldier General Grant told of in his Memoirs. The soldier “ . . . boasted that he had cut off the leg of one of his enemy. When asked why he did not cut off his head, he replied: ‘Some one had done that before.’ ” (U. S. Grant: Personal Memoirs (1885), v. 1, p. 98).

A court of civil appeals has authority, in looking at the entire record to determine whether an award of attorney’s fees is excessive, to draw on the common knowledge of the justices of the court and their experience as lawyers and judges, and to view the matter in the light of the testimony, the record, and the amount in controversy. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767, 769 (Tex.Com.App.1928, holding approved), remittitur ordered 9 S.W.2d 752, 753; Capitol Life Ins. Co. v. Rutherford, 468 S.W.2d 535, 537 (Tex.Civ.App.Houston (1st) 1971, no writ).

The Supreme Court held in 1972 that the question of whether an award is excessive is a fact question over which that court has no jurisdiction, and that the cause would be remanded to the court of civil appeals to pass on the question. Impson v. Structural Metals, Inc., 487 S.W.2d 694, 697 (Tex.Sup.1972).

Pursuant to our duty under Rule 440, and proceeding as approved in South-land Life, we reach the conclusion that award of attorney’s fees in excess of $1,500 is excessive. If appellee files in this Court, within fifteen days from the date of this opinion and judgment, a remittitur of $3,450, the judgment of the trial court will be reformed and affirmed for the sum of $1,500 as award for attorney’s fees. If remittitur is not so filed, the judgment will be reversed and the cause remanded.

Judgment affirmed on condition remitti-tur be filed.

ON FILING OF REMITTITUR

Bresler Malls, Inc., appellee, filed a remit-titur of $3,450.00 on March 18, 1977, in compliance with the suggestion of remitti-tur by this Court in our opinion of March 9, 1977. The judgment of the trial court awarding attorney’s fees is reduced by the amount of such remittitur, and as so modified the judgment of the trial court is affirmed.

Remittitur filed.

Judgment modified and as modified, affirmed.