author: REYNOLDS, Justice.

text:
    Dick C. MILAM et al., Appellants, v. W. A. LANGFORD, Appellee.
    No. 8641.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 9, 1976.

      McClendon, Richards & Campbell, Jack McClendon, Lubbock, for appellants.
    Willard G. Street, Jr., Littlefield, for ap-pellee.
   REYNOLDS, Justice.

The payee of a dishonored draft, which was payable in Lubbock County and was given for a mineral lease on land situated in the counties of Lamb and Hockley, filed suit in Lamb County to recover damages for the failure to pay the draft. Defendants’ plea of privilege to be sued in Lubbock County where they were domiciled was overruled. Plaintiff failed to prove an exception to defendants’ right to be sued in the county of their domicile. Reversed and rendered.

Dick C. Milam, as agent for D.L.C. Corporation whose franchise had been forfeited, secured from W. A. Langford a mineral lease covering Langford’s tract of land situated in the counties of Lamb and Hockley. The consideration for the lease was $2,983.50 represented by a draft drawn on the corporation and made payable in Lubbock County upon the approval of Lang-ford’s title. The title was not approved, the draft was not paid, and the instruments were returned to Langford.

Langford filed this suit in Lamb County, naming Dick C. Milam, D.L.C. Corporation and J. Blair Cherry, Jr., who had been the corporation’s president and registered agent, as defendants. Defendants pleaded the right to be sued in Lubbock County where all defendants had their legal residence. Langford controverted the plea and sought to maintain venue in Lamb County under the provisions of the subdivision 5, 7, 14 and 23 exceptions of Vernon’s Ann. Civ.St. art. 1995, the general venue statute which, subject to its exceptions, confers upon a defendant the right to be sued in his home county. At the conclusion of the venue hearing, the trial court stated that subdivisions 5, 7 and 23 were inapplicable and thereafter overruled defendants’ plea of privilege, apparently on the determination that subdivision 14 permitted the suit to be maintained in Lamb County.

Defendants have appealed, complying with the rules regarding an appeal. Under proper points of error defendants state the record and cite authority to support their contention that venue is not maintainable in Lamb County for the reasons that: (1) subdivision 5 is inapplicable because the contractual obligation, if any, of defendants was performable in Lubbock County and not in Lamb County; (2) subdivision 7 is not pertinent in that Langford did not prove that actionable fraud was committed in Lamb County; (3) subdivision 14 does not apply because Langford’s suit is not for the recovery of lands or damages thereto; and (4) subdivision 23 is not operative because Langford did not prove either that any defendant was a corporation or that his pleaded cause of action or a part thereof arose in Lamb County.

Langford has not filed a brief. The factual statements contained in defendants’ brief have been neither answered nor challenged. Under these circumstances, Rule 419, Texas Rules of Civil Procedure, authorizes the acceptance of defendants’ statements as correctly stating the facts and the record without resort to the statement of facts or the record, Campbell v. Campbell, 477 S.W.2d 376 (Tex.Civ.App.—Amarillo 1972, no writ), and the acceptance requires that defendants’ contention be sustained. Van Pelt v. McCabe, 236 S.W.2d 685 (Tex.Civ.App.—San Antonio 1951, no writ).

It is noted, however, in connection with the subdivision 14 exception which apparently was applied by the trial court, that Langford claimed that his land was damaged when his minerals were “tied up” for the sixty days the lease was outstanding. The claim is not viable in view of the rule that withholding possession of premises does not constitute injury or damage to land. Smith v. Rampy, 198 S.W.2d 592, 597 (Tex.Civ.App.—Amarillo 1946, no writ).

The judgment of the trial court is reversed, and judgment is rendered sustaining defendant’s plea of privilege and ordering the cause transferred to a district court in Lubbock County. Rule 434, T.R.C.P.


source: Caselaw Access Project

license: Public Domain

text:
    WESTERN NATIONAL BANK OF AMARILLO, Texas, Appellant, v. Bobby Lawrence HIX et al., Appellees.
    No. 8632.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 9, 1976.

      Gibson, Oehsner, Adkins, Harlan & Han-kins, Wayne P. Sturdivant, Amarillo, for appellant.
    W. Doyle Elliott, Friona, Jung & Marley, Harry H. Jung, Jr., Crosbyton, for appel-lees.
   REYNOLDS, Justice.

A national banking corporation appeals from an order overruling its plea of privilege directed to a cross-action filed in a suit commenced by the bank in a forum outside the county of its legal residence. The privilege conferred upon the bank by federal statute to be sued in the county of its legal residence was effectively waived when the bank instituted the suit subject to the cross-action. Affirmed.

The venue record, which consists of the pleadings and an exhibited deed, shows that Bobby Lawrence Hix, the fee simple owner of certain real estate situated in Parmer County, Texas, executed and delivered his promissory note to Western National Bank of Amarillo, Texas, a national banking corporation with legal residence in Randall County, Texas. Dated and recorded nine months later, a warranty deed, upon which are subscribed the names of Bobby Lawrence Hix and wife, Madonna Hix, recites the conveyance of Hix’s real estate to M. Ken Morrison and Alvin C. Morrison. Six months thereafter, the bank recovered a money judgment on Hix’s unpaid note and execution issued.

Prior to the return of the writ of execution, the bank instituted this suit in Parmer County, naming Bobby Lawrence Hix, M. Ken Morrison and Alvin C. Morrison as defendants. The purpose of the suit is to set aside the conveyance made to the Morri-sons in order that the real estate may be liable to sale by execution to satisfy the bank’s judgment against Hix. The grounds alleged are that Hix did not possess the mental capacity necessary to execute or to authorize the execution of the conveyance, and that the Morrisons, or persons known to them, attempted to place Hix’s signature on the deed. After denying the bank’s allegations, the Morrisons filed a cross-action seeking actual and exemplary damages from the bank. The gist of the cross-action is that pursuant to the bank’s threat to do so, the bank maliciously filed its suit for the sole purpose of coercing the Morrisons to pay Hix’s obligation, which they did not owe, in order to protect their investment in the land they had purchased for good and valuable consideration without knowledge of Hix’s mental condition.

The bank addressed its plea of privilege to the cross-action, asserting the right to defend in Randall County under the provisions of 12 U.S.C. § 94 which, insofar as material here, reads:

Actions and proceedings against any association . . . may be had in any State . . . court in the county ... in which said association is located having jurisdiction in similar cases.

The plea was controverted and, following a hearing, the bank’s plea of privilege was overruled. The bank has appealed and the Morrisons have responded as appellees.

The provisions of 12 U.S.C. § 94 are given a mandatory meaning. Mercantile National Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963). Notwithstanding, a national banking corporation may waive the venue privilege by its conduct, and it does effectively waive the privilege with respect to a cross-action arising out of the main suit initiated by the bank in a forum outside the county of its legal residence. Exchange National Bank of Chicago v. Abramson, 45 F.R.D. 97 (D.C.Minn.1968).

While acknowledging the waiver rule, the bank insists that under the pleadings it did not waive its privilege to defend the cross-action in Randall County. Citing Rule 97(g), Texas Rules of Civil Procedure, to-wit:

Tort shall not be the subject of set-off or counterclaim against a contractual demand nor a contractual demand against tort unless it arises out of or is incident to or is connected with same,

the bank argues that the Morrisons’ cross-action neither arises out of nor is incidental to its suit because its suit is predicated on contract and the cross-action is one sounding in tort. We do not agree.

Although the bank’s suit was instituted for the purpose of satisfying its judgment resulting from its contract with Hix, the suit is not predicated on contract, but it is in the nature of an equitable proceeding to cancel a conveyance of its debtor’s land because of fraud. Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 797 (1931). The only basis for the cross-action is the filing of the bank’s suit and, as such, the cross-action arises out of and is connected with the suit itself. Thus, the cross-action is sanctioned by Rule 97(g), T.R.C.P., and the bank’s institution of the suit in a forum outside the county of its legal residence constituted a waiver of the venue privilege conferred by 12 U.S.C. § 94. Fort Worth National Bank v. Stiff, 482 S.W.2d 337 (Tex.Civ.App.—Eastland 1972, writ dism’d), cert. denied 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973).

The judgment is affirmed.


author: CADENA, Justice.

text:
    Eugene W. SMITH, Appellant, v. Andrew M. REYNOLDS et al., Appellees.
    No. 15488.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 11, 1976.

      Thomas S. Terrell, Kerrville, for appellant.
    Earle S. Lilly, Campbell, Lilly, Hamilton, Patrick & Meadows, Houston, for appellee.
   CADENA, Justice.

Plaintiff, Eugene W. Smith, filed this suit against Andrew M. Reynolds and others, alleging, in effect, that Reynolds and one of the other defendants had swindled plaintiff. Plaintiff and all defendants, except Reynolds, are residents of Texas. Reynolds is a resident of the city of Torreon, State of Cohuila, Republic of Mexico.

Reynolds entered a special appearance, as authorized by Rule 120a, Tex.R.Civ.P., alleging that he was not a resident of the State of Texas and that he was not “doing business” in Texas. Reynolds alleged that he was not amenable to process of a Texas court, and that the attempt to confer on the Texas court jurisdiction over his person by serving process on the Texas Secretary of State, as provided in our “long arm” statute, Art. 2031b, Tex.Rev.Civ.Stat.Ann., was ineffective.

After holding two hearings, the trial court concluded that it had no in personam jurisdiction over Reynolds and, after severing plaintiff’s cause of action against the other defendants, dismissed plaintiff’s suit against Reynolds.

It is settled that a defendant filing a special appearance under Rule 120a has the burden of pleading and proving that he is not amenable to process issued by the courts of Texas. Roquemore v. Roquemore, 431 S.W.2d 595, 601 (Tex.Civ.App.—Corpus Christi 1968, no writ); Thode, In Personam Jurisdiction; Article 2031B, The Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challange Jurisdiction in Texas and Elsewhere, 42 Texas L.Rev. 279 (1964).

The fact that the special appearance “motion” filed by Reynolds was sworn to did not operate to cast on plaintiff the burden of proof and the burden of persuasion on the jurisdictional issue. A pleading raising the question of jurisdiction over the person of defendant is, essentially, a plea in abatement. Roquemore v. Roquemore, supra ; Pyron v. Graef, 31 Tex.Civ.App. 405, 72 S.Ct. 101 (1903, no writ). In the absence of special rules pertaining to the evidence, the usual rule that a plea in abatement must be supported by “competent evidence” must be applied. McDougald v. First National Bank of Beaumont, 239 S.W.2d 145 (Tex.Civ.App.—Beaumont 1951, writ ref’d n. r. e.); Thode, op. cit. at 319, n. 219.

Reynolds did not testify nor did he produce any evidence establishing the absence of acts, contacts or activities on his part within Texas to support the conclusion that Art. 2031b is inapplicable in this case. Reynolds relies on testimony by plaintiff to the effect that plaintiff had never met or talked to Reynolds; that he had not corresponded with Reynolds until after the occurrence of the facts and circumstances on which plaintiff bases his suit; and that, insofar as the transaction involved in this suit is concerned, plaintiff dealt solely with one of the other defendants named Webb. Such evidence falls far short of establishing that Reynolds was not “doing business,” as that term is broadly defined in the statute, in Texas.

Reynolds calls our attention to cases holding that where the judgment appealed from recites that the trial court heard evidence the appellate court must, in the absence of a statement of facts, presume that the evidence heard by the trial court was sufficient to support all findings of fact necessary to support the judgment. That rule is not applicable here, since we have before us the transcript of the testimony heard by the trial judge at both hearings in connection with the special appearance by Reynolds, and, in fact, in his brief Reynolds refers to the statement of facts.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.


author: BARROW, Chief Justice.

text:
    McCRELESS PROPERTIES, LTD., et al., Appellants, v. F. W. WOOLWORTH COMPANY, Appellee.
    No. 15498.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 11, 1976.
    Rehearing Denied March 10, 1976.

      Damon Ball, J. Michael Myers, Groce, Locke & Hebdon, San Antonio, for appellants.
    Emerson Banack, Jr., Edward Kliewer, III, Foster, Lewis, Langley, Gardner & Ba-nack, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee, a tenant in a large shopping center owned by appellants, McCreless Properties, Ltd., and the two general partners thereof, G. S. McCreless and Robert E. Durr, brought this suit to recover for damages sustained as a consequence of the collapse of a portion of the roof over appellee’s store. The jury found that the collapse of the roof was a proximate result of appellant’s failure to make repairs, and that the sum of $58,800.00 would fairly and reasonably compensate appellee for its damages. Both parties moved for judgment, and appellants also moved for judgment non ob-stante veredicto. Judgment was rendered that appellee recover from appellants the sum of $37,209.92. The parties will hereinafter be referred to sometimes as Tenant and Landlord.

Landlord has timely perfected this appeal with six points of error. Two points assert that a take nothing judgment should have been entered because its liability was limited under the terms of the written lease agreement to the cost of repairs of the defective roof. Landlord urges by one point that recovery for breach of any contractual duty to repair is barred by the four-year statute of limitations. Its final three points complain that Tenant failed to prove a proper measure of damages in that there was no evidence of the market value of the damaged merchandise before or after the collapse of the roof. Tenant urges by a cross point that the trial court erred in limiting its recovery to $37,209.92.

On November 30, 1959, the parties entered into a lease agreement prepared by Tenant whereby it agreed to lease as a primary tenant a portion of a large shopping center to be constructed by Landlord. Landlord entered into a construction agreement with Phil Lloyd Shoop, and Noonan & Krocker, architects and engineers, in May of 1960 and with Guido Brothers Construction Company on June 29, 1961. Construction was completed by Guido Brothers, and the final certificate for payment issued by the architects on April 2, 1962. The shopping center consists of ten connected buildings, all joined by a common mall. A total of 500,000 square feet are in the center, 20,000 of which are leased to Tenant. Most of the center consists of one-story connected buildings with a flat roof, which was designed with about a five-inch slope from the west to the east to take care of drainage from the roof. The fatty clay soil under the center shifts as the moisture in the clay varies, and this shifting caused some minor leaks in the roof almost from the outset. The shifting soil also disturbed the planned drainage of the roof over Tenant’s store and resulted in ponds of water accumulating after each rainfall. One such pond would form in a saucer-like sag of the roof around a large air conditioning unit over Tenant’s store. In 1969 substantial damage resulted to Tenant from a leak under this pond and required the replacement of several acoustical tiles in the ceiling of the store. Following this damage, Mike Urtiaga, Landlord’s maintenance foreman, installed a four-inch drain in the roof near the low spot of the pond around the air conditioning unit. In 1971 there was another leak at this area which did significant damage. Following this incident, Mr. Urtiaga patched the roof in several places with hot tar. On September 26, 1973, a heavy rain fell, and at about 9:30 p. m. the roof under the air conditioning unit collapsed and fell into the store along with substantial water, causing the damage which brought about this suit.

Article 16 of the lease relates to “repairs” and provides in part:

The Landlord agrees to make and pay for (a) all repairs, structural or otherwise, to the exterior of the building on the demised premises . . . and (c) all repairs, structural or otherwise, to the interior of the demised premises made necessary by acts of God and the elements and leakage or flowing of water and steam into the demised premises.

Article 12 sets forth “Tenant’s Right to Cure Landlord’s Defaults” and provides in part that if the

Landlord fails to make any repairs or do any work required of the Landlord by the provisions of this lease, . . . then and in any such event or events the Tenant, after the continuance of any such failure or default for ten (10) days after notice in writing thereof is given by the Tenant to the Landlord, may . cure such defaults all on behalf of and at the expense of the landlord.

Under Article 8, Tenant was granted the right, at his own expense, to make such alterations, additions and changes, structural or otherwise, in and to the demised premises as it found necessary or convenient.

Landlord urges that since Tenant had the right to make all necessary repairs upon the failure of Landlord to do so, and to collect the cost thereof, Landlord is not liable for any consequential damages or losses of Tenant, but is liable only for the cost of repairs. In support of this proposition, Landlord cites Hamblen v. Mohr, 171 S.W.2d 168 (Tex.Civ.App.—Galveston 1943, writ ref’d w. o. m.) and McCrory Corporation v. Nacol, 428 S.W.2d 414 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.).

Both of these cases involved suits for personal injuries by an invitee against a tenant-store owner wherein recovery was sought from the landlord for an alleged breach of his obligation under the contract to make repairs. The following rule was recognized as a basis for denying liability in those two cases against the landlord:

The general rule was that the tenant took the premises as they were. When the landlord covenanted to repair, an exception to the general rule was created, and he was thereby rendered liable. But if the covenant to repair be limited to making such repairs as the tenant shall demand be made, and the right given the tenant to make the repairs, if the landlord declines to make then, and to pay for them at the expense of the landlord, then the duty of the tenant to repair is restored, except that he can deduct the cost of such repairs from his rent. (Emphasis ours)

This rule is inapplicable to the lease agreement between these parties under the facts of this case. In the first place, Landlord’s obligation to make repairs to the demised premises is not limited to such repairs as the Tenant shall demand be made. Tenant’s option to repair at Landlord’s expense is not operable until Tenant makes a written demand upon Landlord, but Landlord’s obligation to repair is in no way limited or restricted. Secondly, there was never a refusal by Landlord to make repairs. To the contrary, Landlord inserted a drain in the roof and assured Tenant that such repairs would correct the situation which had resulted in substantial water damage in 1969.

We have been unable to find a case involving the contractual rights between a tenant and landlord in a large shopping center with a number of tenants in connected space. Nevertheless, it is logical that the landlord’s obligations with respect to areas of common use in a shopping center, such as the roof over the center, would be the same as any other situation where the landlord retains possession and control of common areas in multiple tenant structures. The applicable rule would be that set forth in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963), wherein it was held that, where a landlord retains possession or control of a portion of the leased premises, he is charged with the duty of ordinary care in maintaining the portion retained so as not to damage the tenant.

Not only did Landlord have the obligation to repair the roof in the absence of an agreement to the contrary, but it specifically agreed to make all repairs to the exterior of the building on the demised premises and undertook to do so in this case. The agreement does not limit Landlord’s obligation to make only such repairs as Tenant demanded, nor does it limit Landlord’s liability for failure to make same. Landlord’s first and second points are overruled.

Appellants urge by their third point that the trial court erred in denying their motion for judgment non obstante veredicto in that any recovery based upon Landlord’s breach of its contractual duty to repair was barred by the four-year statute of limitations as a matter of law. This contention is largely based upon the assumption that the necessity for repairs to the roof arose because the building was not constructed in accordance with the plans and specifications. Tenant alleged as one cause of action, and introduced evidence in support thereof, that contractor placed a single steel joist in the roof under the air conditioning unit instead of double joists as provided in the plans. There was evidence that the single joist was adequate to support the unit. No issue was submitted or requested regarding the result of the failure of the contractor to provide double joists under the unit. On the other hand, there was evidence that the sag in the roof and the ponding of the water was caused by the shifting of the soil under the building and that this deteriorating situation called for repairs in 1971 to correct the improper drainage.

The jury found that Landlord failed to make such repairs and that this was a proximate cause of Tenant’s damage. The finding that repairs were necessary in 1971 is apparently based upon the evidence that all parties believed the installation of the drain in 1969 was sufficient. This mutual assumption proved incorrect, and substantial damage was again sustained by Tenant from a heavy rain in 1971. This damage demonstrated that additional repairs were necessary. Landlord did not object to the submission of the issue inquiring as to the earliest date repairs should have been performed, and does not now say that there is no evidence to support the jury’s affirmative finding that further repairs were first required in 1971. We cannot say that Tenant’s claim is barred by the four-year statute of limitations as a matter of law. Appellant’s third point is overruled.

Both parties complain of the judgment insofar.as the amount of damages awarded Tenant. Only one issue was submitted although the issue refers to two types of damage, and predicates each type by a different test. Question No. 6 asks:

What sum of money, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff for the damages to the plaintiff’s merchandise, fixtures and appliances, and the reasonable and necessary expenses incurred by the plaintiff as a result of the collapse of the roof on September 26, 1973?
The jury found: “$58,800.”

The trial court sustained Landlord’s motion for judgment non obstante veredicto in part and assessed the damages at $87,299.00. This amount is based on the amount of damages to Tenant’s merchandise, fixtures and appliances as shown by uncontradicted exhibits.

Landlord complains of the judgment because there was no evidence of the reasonable market value of the damaged merchandise, fixtures or appliances either before or after the collapse. It further complains that an improper measure of damages was submitted to the jury. The evidence on the question of damages was very minimal and consisted almost entirely of the introduction into evidence without objection of four exhibits prepared under the supervision of Tenant’s regional merchandise manager. Three of these exhibits reflect the cost to Tenant of the damaged merchandise as shown by an inventory following the collapse of the roof less the amount realized from a sale of the salvage. Another exhibit lists the amounts expended by Tenant for salaries and other expenses in connection with the incident.

Landlord recognizes that these exhibits were received into evidence without objection and that no objection was made to the submission of Question No. 6. It urges, however, that complaint was timely made by its motions for judgment and for judgment non obstante veredicto. Rule 279, Tex.R.Civ.P., provides in part that:

A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.

We are concerned here with an improper measure of damages. There is sufficient evidence to raise the issue that Tenant’s merchandise was damaged by the collapse of the roof. The amount of this damage was supported by the exhibits which showed Tenant had been damaged in the amount of $37,209.92. Landlord may not now complain of the submission, without objection, of an improper measure of damages. Rules 272 and 274, Tex.R.Civ.P.; Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956); Employment Advisors, Inc. v. Sparks, 368 S.W.2d 199 (Tex.1963); Pool v. Dickson, 512 S.W.2d 68 (Tex.Civ.App.—Tyler 1974, no writ). Landlord’s points complaining of the damage awarded in the judgment are overruled.

A different situation is presented by Tenant’s cross point complaining of the trial court’s action in striking the “reasonable and necessary expenses incurred by the plaintiff.” There was no evidence that the amounts expended by Tenant for salaries and other expenses following the collapse of the roof were reasonable. These items are listed on the exhibit introduced into evidence. Some have an explanation from which it might be inferred that they were necessary as a result of the incident; however, there is no evidence that any of such amounts were reasonable. Although submitted without objection, Landlord did not waive its right under Rule 279, supra, to complain by its motion for judgment non obstante veredicto that there was no evidence to support the findings as to the reasonable and necessary expenses incurred by Tenant. The trial court did not err in striking these amounts as shown by the exhibits from the finding of damage.

The judgment of the trial court is affirmed.


author: DUNAGAN, Justice.

text:
    Richard A. LEYENDECKER, Appellant, v. SANTA ROSA MEDICAL CENTER, Appellee.
    No. 905.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 12, 1976.
    Jacob G. Hornberger, Laredo, for appellant.
    Joseph Y. Stateson, San Antonio, for ap-pellee.
   DUNAGAN, Justice.

This suit was instituted by appellee, Santa Rosa Medical Center, as an action on a sworn account against Richard A. Leyen-decker, appellant herein, and his son, Gary Leyendecker, for labor and services performed and merchandise sold to the defendant, Gary Leyendecker, in the sum of $1,495, plus attorney’s fees of $490. The appellant answered by a general denial, and thereupon the appellee filed a motion for summary judgment. The appellant, Richard A. Leyendecker, answered plaintiff’s motion for summary judgment alleging that Gary Leyendecker was at the time over 18 years of age and his father, Richard A. Leyendecker, was no longer responsible for any indebtedness incurred by his son, Gary, as Art. 5923b, V.A.T.S., extended to him all the rights, privileges and obligations of majority. Appellant admitted liability for any amounts owing by Gary Leyendecker prior to said date of August 27,1973, the effective date of Art. 5923b, V.A.T.S. The admitted liability amounts to $337. An affidavit signed by the appellant, Richard A. Leyendecker, setting forth these facts was attached to the appellant’s answer to the motion for summary judgment. The trial court granted the motion for summary judgment against both this appellant and his son in the amount of $1,495, plus $500 for attorney’s fees, being the total of $1,995. From this judgment appellant has appealed. Defendant, Gary Leyendecker, did not appeal and the judgment against him is final.

Appellant by his sole point of error contends that the trial court should not have rendered judgment against him in a sum greater than $337 and that the judgment for the sum greater than that was error.

The summary judgment proof shows that Gary Leyendecker was admitted to the Santa Rosa Medical Center on August 26, 1973, as a result of injuries received in a collision between two automobiles and was discharged on October 11,1973; that the medical center made written demand on the appellant and his son for payment of its claim in the sum of $1,495, more than thirty days prior to the filing of the suit against them; and that said claim has not been paid or satisfied.

This appeal can be disposed of on appel-lee’s second counterpoint which states in substance that the trial court did not err in granting judgment in favor of appellee for the reason that the appellant failed to file a written denial under oath stating that each and every item is not just or true or that some specified items are not just and true in accordance with Rule 185, T.R.C.P. Rule 185 provides that when an action “is founded upon an open account or other claim for goods, wares and merchandise, ⅝ * * or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; * ⅜ *. When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.”

Appellee’s suit was upon an open account. Joseph Zukin of California v. Price, 236 S.W.2d 500 (Tex.Civ.App.—Austin 1951, writ of mandamus denied 150 Tex. 158, 238 S.W.2d 171); Hightower Oil and Refining Corporation v. Heyser, 135 S.W.2d 202 (Tex.Civ.App.—Austin 1939, n. w. h.); 1 Tex. Jur.2d sec. 25, p. 286. It was verified in accordance with Rule 185, T.R.C.P. Appellant’s answer consisted only of a general denial and such answer was not sworn to as required by Rule 185.

Where a defendant in an action on sworn account files an answer not in compliance with the Rules of Civil Procedure, he will not be permitted to deny the plaintiff’s claim or any item included therein. Oliver Bass Lumber Company, Inc. v. Kay and Herring Butane Gas Company, Inc., 524 S.W.2d 600 (Tex.Civ.App.—Tyler 1975, n. w. h.).

Appellant’s unverified answer could raise no issues of fact in a suit upon an open account verified in accordance with Rule 185 and, accordingly, appellee was entitled to summary judgment. Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59 (Tex.Civ.App.—Eastland 1964, writ ref’d); McDonald v. Newlywed’s, Inc., 483 S.W.2d 334, 337 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.); A. G. Solar v. Petersoon, 481 S.W.2d 212, 215 (Tex.Civ.App.—Houston, 14th Dist., 1972, n. w. h.). Failure to file a sworn denial of a verified account amounts to an admission that the account is correct. Akins v. Coffee, 376 S.W.2d 953 (Tex.Civ.App.—Dallas 1964, writ dism’d); McDonald v. Newlywed’s, Inc., supra.

Appellant having failed to verify his allegations, summary judgment for appellee was proper under Rules 185 and 166-A, T.R.C.P. King v. United Distributing of Texas, Inc., 463 S.W.2d 456 (Tex.Civ.App.—Dallas 1971, n. w. h.) and Collins v. Kent-Coffey Manufacturing Company, supra.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    GENERAL LEASING COMPANY, Appellant, v. SAXON BUSINESS PRODUCTS, INC., Appellee.
    No. 4860.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 12, 1976.
    John B. Lederer, Schroeder, Guest & Hoffmeyer, Dallas, for appellant.
    Ronald Z. Aland, Dallas, Ungerman, Hill, Ungerman, Angrist, Dolginoff & Teofan, Fort Worth, for appellee.
   McCLOUD, Chief Justice.

Saxon Business Products, Inc., sued General Leasing Company, a corporation, on a verified account for certain goods, wares and merchandise allegedly sold and delivered to defendant by plaintiff. Defendant failed to file an answer and default judgment was rendered for plaintiff. Defendant appeals by writ of error. We affirm.

Defendant contends that since the statement and invoice attached to plaintiff’s petition consists only of numbers and unintelligible letters they will not support a default judgment. We agree that the goods are not described with reasonable certainty and the account on its face, standing alone, would not support a default judgment against a direct attack by writ of error. Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53 (Tex.Civ.App., Dallas 1975, no writ); Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App., El Paso 1973, no writ); Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168 (Tex.Civ.App., Houston (1st Dist.) 1970, no writ).

The judgment, however, in the instant case does not affirmatively disclose that it was rendered only on the plaintiff’s petition and the attached exhibits. The judgment recites:

“. . . all matters of fact, as well as of law, were submitted to the Court, and the Court after having heard the pleadings, the evidence, and arguments of counsel thereon, is of the opinion and finds that Plaintiff’s cause of action is liquidated and proven by a verified account, and Plaintiff is entitled to recover judgment against the Defendant for its debt $1,995.00 principal, $133.80 interest, and reasonable statutory attorney’s fees, which the Court finds and assesses at the sum of $425.00, or a total of $2,553.80.”

When confronted with a similar situation, the court in Alexander v. Texoma Wholesale Jewelers, 307 S.W.2d 631 (Tex.Civ.App., Beaumont 1957, writ ref. n. r. e.) said:

“The petition was undoubtedly defective in failing to specify the items of goods, wares or merchandise sold and delivered and the dates of the sales but we think it was not fatally defective. It charged in general terms that plaintiff was suing for $1,601.82 as the balance due on goods, wares and merchandise sold and delivered by plaintiff to defendant, and we think this was sufficient to support the judgment.”

The appellant in Alexander argued that the judgment showed on its face it had been rendered on the defective exhibit. The court noted:

“. . . The judgment, in pertinent part, is as follows: ‘* * * the court proceeded to call said case, and it appearing that the defendant, Victor Alexander, d/b/a Alexander Jewelry, is in default, the court proceeded to examine and hear the evidence, and it appearing to the court that the defendant is indebted to the Plaintiff in the principal amount of $1,601.82, as evidenced by Plaintiff’s verified account, and that the plaintiff is entitled to recover his costs and attorney’s fees, and the court being of the opinion that $1,000.00 is a reasonable fee in this case, it is, accordingly, ordered, adjudged and decreed that Plaintiff have judgment against the defendant * * * for $2,601.82 * * *.’ ”

The court held the defective account would not support the judgment, but it would be presumed, in the absence of a statement of facts, that the trial judge had before him sufficient evidence to support the judgment since the judgment itself did not affirmatively disclose that it was based on the exhibit alone or that no other evidence was heard.

In the instant case, there is no statement of facts or certificate by the trial judge that no evidence was introduced other than the petition and the attached exhibits. The cases relied upon by defendant are distinguishable. In Benthall and Williamsburg Nursing Home, supra, the transcript contained a certificate of the trial judge that no testimony was heard and no evidence offered other than the itemized verified accounts attached to the petitions. In Has-sler, supra, the court noted that the plaintiff conceded that the only evidence offered in the trial court was the sworn account, therefore, it could not be presumed the judgment was supported by other evidence.

The judgment in the instant case recites that the court heard evidence. The judgment does not disclose affirmatively that it was based on the exhibits alone or that no other evidence was heard. There is no certificate by the trial judge that no evidence was introduced other than plaintiff’s petition and the attached exhibits.

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


author: BREWSTER, Justice.

text:
    G. & H. EQUIPMENT COMPANY, INC., Appellant, v. Perry D. ALEXANDER, Appellee.
    No. 17687.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 13, 1976.
    Rehearing Denied March 5, 1976.

      Brown, Crowley, Simon & Peebles, and M. Hendricks Brown, Port Worth, for appellant.
    Rex McEntire, Port Worth, for appellee.
   OPINION

BREWSTER, Justice.

This is a suit for damages for personal injuries that resulted from an automobile wreck. It was brought by the plaintiff, Perry D. Alexander, against the two defendants, Farest E. Brooks and G. & H. Equipment Co., Inc. The suit was brought on the theory that defendant, Brooks, was an employee of the other defendant and that while Brooks was acting within the scope of his employment for G. & H. Equipment Co., Inc., he was guilty of negligence that proximately caused the wreck in question and the plaintiff’s injuries.

Upon receipt of the jury’s verdict the trial court rendered judgment for the plaintiff and against the two defendants in the amount of $182,104.61 and this appeal is being made by the defendant, G. & H. Equipment Co., Inc., from that decree. The other defendant, Brooks, has not appealed.

We affirm.

Defendant’s first point of error is that the trial court erred in granting the plaintiff’s motion for judgment and in overruling the defendant’s motion for judgment. Defendant’s contention under that point is that the plaintiff failed to get the court to submit to the jury in its charge an issue inquiring as to whether or not Brooks, on the occasion in question, was acting within ‘the scope of his employment for the defendant, G. & H. Equipment Co., Inc., at the time of the wreck, and that that issue was, within the meaning of Rule 279, T.R.C.P., one involving an independent ground of recovery, and that by failing to get it submitted to the jury the plaintiff waived such issue. The defendant contends that by reason of such waiver it was entitled to have judgment rendered in its favor.

We overrule that point.

In its charge the trial court submitted issues inquiring whether defendant, Brooks, committed negligent acts or omissions that proximately caused plaintiff’s injuries and submitted damage issues. Thje trial court did not submit an issue inquiring whether or not Brooks was acting within the scope of his employment for appellant at the time of the wreck. No one requested such an issue and no one objected to this omission until after verdict.

We will refer in this opinion to the defendant, G. & H. Equipment Co., Inc., as appellant, to the defendant, Farest Brooks, as Brooks, and to the plaintiff, Alexander, as appellee.

In a commentary by former Supreme Court Justice Alexander that appears in Vol. 3, T.R.C.P., at page 10 under Rule 279, he says the following: “Let us suppose a negligence suit brought by a plaintiff against a defendant-employer for injuries sustained in a collision between an automobile occupied by plaintiff and a truck driven by a person alleged to have been the defendant’s servants in the course of his employment; and say that the evidence makes it a controverted issue whether the driver of the truck was in fact the defendant’s employee in the course of his employment at the time. In submitting the case the court puts to the jury issues to determine whether the truck driver was guilty of the fault alleged by plaintiff, and whether such act or omission, if done, was negligence, and whether such negligence, if any, was the proximate cause of plaintiff’s injuries, but fails to submit any issue, and none is requested, to have the jury find whether the truck driver was the defendant’s servant acting in the course of his employment at the time of the collision. In my opinion the general understanding of lawyers is that a judgment for plaintiff under said circumstances could not be sustained by indulging a presumed finding that the driver was the defendant’s servant in the due course of his employment at said time. This for the reason that said question is an inquiry distinct and independent from the questions submitted by the court.” (Emphasis supplied.)

In deciding this case we assume that the quoted statement by Judge Alexander is a correct statement of the law. We find no cases directly in point. Even if it is the law, if the issue of scope of employment was conclusively established by the evidence in this case then it was not necessary to submit an issue to the jury on that question. Rule 279, T.R.C.P.; National Security Life & Casualty Co. v. Benham, 233 S.W.2d 334 (Tex.Civ.App., Amarillo, 1950, ref., n. r. e.); and Benefit Ass’n of Ry. Employees v. O’Gorman, 195 S.W.2d 215 (Tex.Civ.App., Fort Worth, 1946, ref., n. r. e.).

We hold that the undisputed evidence in the case conclusively established the fact that on the occasion of the wreck Farest Brooks was acting within the scope of his employment for the appellant and for that reason it was not necessary for the appellee, in order to be legally entitled to a judgment against the appellant, to obtain a jury finding on the issue of scope of employment.

The defendant, Farest Brooks, was the only witness that testified to facts that related to that issue. His testimony is undisputed. He testified that on February 7, 1972, he was an employee of the appellant; he was a heavy equipment operator; that was his first day at work; his employer’s place of business was at Mineral Wells, Texas; that morning he had been trying to start his employer’s dragline; he discovered that its starter was burned out; he left his employer’s place of business at between 11:30 and 11:45 A.M. under directions from his employer’s superintendent to go to a certain business in Dallas, Texas, and there purchase a new starter for the dragline and to then return it to the employer’s business at Mineral Wells on the same day; he left his employer’s business and drove toward Fort Worth on a direct route to Dallas and stopped in Fort Worth and ate his noon meal; he consumed two beers with the meal and bought gasoline; he then resumed his journey to Dallas and while traveling in a direct route to the place of business where his employer had directed him to go to perform the mission for the employer he became involved in the wreck in question. Brooks made the trip in his own pickup.

If this undisputed testimony of the defendant, Brooks, is taken as true, Brooks was acting within the scope of his employment for appellant at the time of the wreck. Chisos Mining Co. v. Huerta, 141 Tex. 289, 171 S.W.2d 867 (1943), and Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154 (Tex.Sup., 1967).

The following is from the opinion in the case of Continental/Moss-Gordin, Inc. v. Martinez, 480 S.W.2d 800 (Tex.Civ.App., San Antonio, 1972, no writ hist.): “Appellant recognizes that the law is to the effect that a person found in the employment of another is presumed to be such person’s employee acting in the course and scope of his employment for such person. . Such presumption is not conclusive but is a rebuttable presumption.”

The fact that a witness is an employee of a party to the suit can be considered on the question of interest or partiality of the witness. 62 Tex.Jur.2d 218, Witnesses, Sec. 254. Brooks was an interested witness in the case at the time he gave his deposition testimony because he was at that time an employee of the appellant and for the further reason that he was a party to the suit.

Brooks’ deposition testimony, taken while Brooks was still an employee of appellant, was introduced into evidence by appellee and he therein testified to the facts above set out which are undisputed. Brooks was later placed on the stand by the attorney representing appellant and himself and he then made no effort to dispute his former testimony and he again testified that on the day of the wreck he was an employee of the appellant. Three months after the wreck, after Brooks had recovered from his injuries, he returned to his job as an employee for appellant and worked there until October 4, 1973.

The record shows that appellant and Brooks were defended in this case by the same firm of lawyers. Those attorneys filed one answer for both defendants. After judgment was rendered in the case those attorneys filed motions for new trial for both defendants.

Although it is true that Brooks was an interested witness for the reasons above stated, his interests were the same as were the interests of the appellant. They both defended the case on the grounds that Brooks committed no act or omission of negligence on the occasion that proximately caused the wreck. They further defended the case by urging that the appellee had been guilty of contributory negligence that proximately caused the wreck. They jointly urged those matters as a defense to the suit that appellee had brought seeking a joint and several judgment against them. The interests of Brooks in the case were in no way adverse to the interests of the appellant, but were adverse to the interests of the appellee, who had offered Brooks’ deposition testimony under the adverse witness rule. (Rule 182, T.R.C.P.)

The general rule is that the testimony of a party to a suit, even though uncontradicted, does no more than raise a fact issue for the jury’s determination. A well recognized exception to that general rule is the following: where the testimony of an interested party is uncontradicted, is clear and positive, and there are no circumstances in evidence tending to discredit such testimony, conclusive effect will be given to it. McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943, opinion adopted) and Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.Sup., 1965). Those eases hold that this exception is especially true and applicable where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.

In this case Brooks was present at the trial to aid his attorney in his own defense and in the defense of appellant. The defense attorney put him on the witness stand during the trial but made no effort to discredit his testimony on the scope of employment issue. Appellant did not offer its superintendent or any other witness to discredit Brooks’ testimony on that issue.

We hold that the exception to the general rule, both stated above, controls a decision of the point being considered. When it is applied to the facts of this case, the scope of employment issue was established as a matter of law in the appellee’s favor and it was therefore not necessary to submit such issue to the jury.

In appellant’s second point of error it contends that as a matter of law Brooks could not have been acting within the scope of his employment for appellant because he was then driving his own pickup and was intoxicated.

We overrule that point.

The fact that Brooks was driving his own pickup is not controlling in deciding the question. The undisputed evidence showed that he was working as an employee of appellant at the time of the wreck and that he was at that time acting in furtherance of his master’s business in that he was on his way to Dallas to buy the dragline starter for his employer as he had been instructed by his boss to do. Those facts put Brooks in the scope of his employment for appellant at the time of the wreck. 38 Tex.Jur.2d 502, Master and Servant, § 247.

Even if Brooks had been intoxicated on the occasion of the wreck, as is contended by appellant, this fact would not of itself take Brooks out of the scope of his employment for appellant as is contended by appellant.

The rule of law that controls in that situation is stated in 57 C.J.S. Master and Servant § 570 Note 55, p. 306, as follows: “Where an act inflicting an injury on a third person is committed by a servant acting within the scope of his authority, the fact that the servant . . was intoxicated at the time of inflicting the injury complained of does not exonerate the master from liability.” The following cases hold in accordance with the rule just quoted: American Nat. Ins. Co. v. Shepherd, 91 S.W.2d 439 (Tex.Civ.App., Galveston, 1935, reversed on other grounds in 128 Tex. 229, 95 S.W.2d 370); Cleveland Nehi Bottling Co. v. Schenk, 56 F.2d 941 (Ct. of App., 6th Cir., 1932); Cahlmers v. Harris Motors, Inc., 104 N.H. 111, 179 A.2d 447 (Sup.Ct., 1962); Erdman v. Henry S. Horkheimer & Co., 169 Md. 204, 181 A. 221 (Ct. of App., 1935); and Central Truckaway System v. Moore, 804 Ky. 533, 201 S.W.2d 725 (Ct. of App., 1947).

The reason for the rule is stated in the opinion in Chesapeake & O. Ry. Co. v. Francisco, 149 Ky. 307, 310, 148 S.W. 46 (Ct. of App., 1912) as follows at page 48: “Though the person injured and the master may both be innocent, yet it is the master’s servant who causes the injury, and therefore the master should bear the loss.”

In appellant’s third point of error it contends that the trial court erred in considering appellee’s so-called bystander’s bills and in permitting Alexander to introduce into evidence at the hearing of the motions for judgment an affidavit from a juror and in hearing evidence from a juror and Alexander concerning defendant’s counsel having allegedly admitted during the course of the trial that Brooks was acting within the scope of his employment.

In its fourth point of error appellant contends that the trial court erred in making the following finding in its order overruling appellant’s motion for new trial: “Court specifically finds that the attorney for defendants admitted in open court during the trial of this cause that the defendant Brooks was acting in the course of his employment for the defendant, G. & H. Equipment Company, Inc., at the time of the collision . . .

We overrule appellant’s third and fourth points of error because we are convinced that none of the complaints therein made reflect reversible error.

The matters complained of in both points relate solely to the question of whether Brooks was at the time acting within the scope of his employment for appellant. If we are correct in our holding that the undisputed evidence upon the trial of the case established as a matter of law that Brooks was acting within the scope of his employment for appellant at the time of the wreck, then these two points are immaterial.

On this appeal appellee contends that one reason why the trial court did not submit to the jury an issue on scope of employment was because during an occasion when appellant’s counsel was addressing the jury panel, either on voir dire examination of the panel or during final arguments or both, he admitted such fact by telling the jurors that he did not deny that Brooks was on his way to Dallas to pick up a starter for the appellant when the wreck happened. He also contends that the scope of employment issue was not submitted to the jury for the additional reason that the undisputed evidence established that fact as a matter of law in appellee’s favor.

The statement of facts filed in connection with the appeal showing the trial proceedings does not show that appellant’s counsel ever made any such admission. The voir dire jury examination and the final arguments were not reported and no attorney asked that they be reported. It is permissible to include in a statement of facts jury arguments and the voir dire examination of the jurors. Rule 372(1), T.R.C.P.

After the large verdict was returned both appellee and the appellant filed motions for judgment. Appellant’s motion was based on the proposition that in so far as appellant is concerned, the scope of employment issue was an independent ground of recovery under Rule 279, T.R.C.P., and since such issue was not submitted to the jury and no request was made by appellee that it be submitted that such issue was waived and appellant was by reason of such waiver entitled to judgment. The trial court overruled appellant’s motion for judgment and granted the appellee’s motion for judgment.

In an effort to make the record show that appellant’s attorney did make such admissions before the jury appellee procured affidavits from three of the jurors that tried the case, and from a Wayne Sparks, who swore he was in the courtroom during the trial, and they all swore in those affidavits that appellant’s attorney did at the time contended make statements to the jury in effect admitting that Brooks was acting within the scope of his employment for appellant. Appellee’s counsel has denominated these affidavits as “Bystander’s Bills”. He filed all four of them among the papers in this case in the District Clerk’s office and they appear in the transcript.

Bystander’s bills are authorized by Rule 372(j), T.R.C.P., under certain circumstances. The judge in this case filed no bill of exceptions as is contemplated in that rule relating to bystander’s bills. The affidavits were not filed, as contemplated by that rule, in order to refute statements made in a bill of exceptions filed by the trial court. We hold that the four affidavits filed in the district clerk’s office, under the circumstances present in this case, cannot be considered by this Court on appeal for the purpose of determining what, if anything, counsel for appellant said by way of admitting the scope of employment question because the filing of such affidavits as those are not provided for by Rule 372 or by any other legal rule. They are hearsay and do not qualify as bystander’s bills under the facts of this case.

A court of civil appeals may receive evidence in the form of affidavits or otherwise only to supply jurisdictional facts that are not apparent in the record. Gist v. Holt, 173 S.W.2d 216 (Tex.Civ.App., Beaumont, 1943, ref., w. o. m.) and Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App., Tyler, 1975, no writ hist.).

The attorneys for both sides and the trial court each signed a certificate attached to the statement-of facts that reflects the trial proceedings in this ease certifying that it is a “full, true, and correct statement of the facts adduced in this case.” It did not reflect that appellant’s attorney made statements either in voir dire exam of the jury panel or during arguments to the jury admitting that Brooks was at the time of the wreck acting within the scope of his employment for appellant.

In the case of Halifax Fire Ins. Co. v. Columbian Nat. Fire U. Agency, 63 S.W.2d 750 (Tex.Civ.App., Galveston, 1933, writ dism.), the court said the following at page 754: “Since the statement of facts filed in this court, approved by the trial judge, purports to contain a full and fair statement of all the facts proven on the trial of the cause, we must look to such statement alone to determine what facts were proven.”

In the case of Williams v. Kuykendall, 136 S.W. 1158 (Tex.Civ.App., 1911, no writ hist.) the trial judge made out and certified to a statement of facts after the parties could not agree on one. It was contended that the parties made an agreement during the trial as to title to some land involved, but the agreement was not put into the statement of facts. The court held that the statement of facts is the only thing the court can look to in deciding what facts were proven or agreed to at the trial. The statement of facts is conclusive on the question of whether the claimed stipulation was introduced into evidence.

In Holder v. Scott, 396 S.W.2d 906 (Tex.Civ.App., Texarkana, 1965, writ ref., n. r. e.), the appellee filed a motion for rehearing contending that in the trial court the parties had stipulated that the divorce decree entered in Arkansas was a valid decree of divorce between the parties. This stipulation was not in the statement of facts. The appellee attached a certificate from the trial court to his brief in support of the fact the parties had so stipulated. The statement of facts on file had the court reporter’s certificate, the approval of both attorneys and the certificate of the trial judge. The court held that under those facts the appellate court was without jurisdiction to go behind the statement of facts.

And in Johnson v. Brown, 218 S.W.2d 317 (Tex.Civ.App., Beaumont, 1948, writ ref., n. r. e.) the court held: (1) that plaintiff’s lawyer’s affidavit attached to a second motion for rehearing cannot be considered by the Court of Civil Appeals; (2) the affidavit of the court reporter for the trial court and (3) affidavit of special trial judge cannot be considered in support of argument that ap-pellee was wrongfully deprived of a statement of facts.

The record shows that in its order overruling appellant’s motion for new trial the trial court found as follows: “ . . . the Court specifically finds that the attorney for Defendants admitted in open Court during the trial of this cause that the Defendant, Brooks, was acting in the course of his employment for the Defendant, G. & H. Equipment Company, Inc., at the time of the collision . . . .” This is the finding complained of in appellant’s fourth point of error. There is nothing in the statement of facts showing the trial proceedings that supports that finding.

Rule 279, T.R.C.P., provides in part: “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived . . .

We hold that the trial court’s finding as to the alleged admission of scope of employment by appellant’s counsel is ineffective and cannot be considered by this Court on the question of whether or not such admission was in fact made.

This is true because Rule 279 does not authorize the trial court to make such a finding and we know of no other rule of law that would authorize this appellate court to consider the trial court’s finding that appellant’s counsel had admitted the scope of employment issue.

This appellate court, under the facts of this case, can look only to the statement of facts to determine what facts, if any, were admitted, stipulated to, or proven during the trial of the case. It is conclusive, under the facts of this case, on the question of whether or not such an admission as that claimed here was made. Williams v. Kuykendall, supra; Halifax Fire Ins. Co. v. Columbian Nat. Fire U. Agency, supra; Holder v. Scott, supra; and Johnson v. Brown, supra.

We are convinced and hold that the trial court’s finding being discussed and the four alleged bystander’s bills (affidavits) can in no way be considered by this Court in deciding this appeal.

These matters all relate to the scope of employment issue and in view of our holding that scope of employment was established by the undisputed evidence in appel-lee’s favor as a matter of law they are immaterial to a decision of this case.

In the appellant’s 5th, 6th, 7th and 8th points of error it contends that there was no evidence, or in the alternative wholly insufficient evidence to support the jury’s finding (1) of $100,000 for loss of earning capacity in the future; (2) of $25,-000 for physical pain and mental anguish in the past; (3) of $25,000 for physical pain and mental anguish in the future; and (4) of $7,500 for future medical expenses. In those points appellant further contends that such findings were motivated by bias and prejudice and are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong. In its ninth point of error appellant contends that it is entitled to a substantial remittitur.

We overrule all of those points.

The jury in its verdict made the findings complained of.

A police officer testified: that he saw the wreck and that Brooks’ pickup was travel-ling between 55 and 65 miles an hour when it struck the rear of the vehicle that appel-lee was in; that the pickup came to rest after the collision 216 feet beyond the point of impact; and that appellee was knocked out of his vehicle and onto the shoulder of the road by the impact.

Dr. Charles Vavrin, a medical doctor and orthopedic surgeon, testified as follows: He treated appellee starting February 18, 1972, for his car wreck injuries; appellee received in the wreck a large hematoma from fracture of transverse processes of thoracic and lumbar vertebrae; he had a marked amount of pain from those injuries; he was given, 75 or 80 physiotherapy treatments by Dr. Warren; his elbow was injured in the wreck requiring surgery; none of the fractures of appellee’s transverse processes ever healed; the bones did not reunite; this injury is 100% disabling to a service station operator; he will not be able to do that type work again; appellee has by the injuries been rendered unable to perform any work requiring manual labor; this condition is permanent; there is nothing that can now be done to cause a healing of the bones that have not reunited in appellee’s back; he has recurrent and persistent pain from the condition which is permanent; ap-pellee’s non-union of transverse process is at vertebrae LI, 2, 3 and 4; he had an injury to the disc at L5 which contributes to his problem; muscles in the low back attach to the transverse processes of the vertebrae that did not reunite and this causes a problem; surgery will not help the condition, and appellee will have to live with the pain from it.

Mrs. Alexander testified that since the wreck appellee has had a lot of pain in his back and left leg and has suffered a lot. His pain has not lessened.

Dr. Don Warren, who also treated appel-lee, testified: the fractures of the transverse process of the vertebrae in his back have never healed; in his opinion he is permanently unable to do the job of a service station operator or anything else that requires physical effort; that in all reasonable medical probability he will in the future require medical treatment that will cost between $5,000 and $10,000; there will be many future days when appellee will have trouble even getting up and getting around because of the pain; appellee has had problems in walking because of his left leg which has just given away several times causing him to fall; this left leg pain is probably from a disc injury.

The plaintiff testified to the following: Brooks’ pickup truck struck the rear of the vehicle that he was in; that he was injured in the wreck; he was born July 18, 1926; the jobs he has held have all required physical exertion, lifting, bending and stooping; since 1962 he had been operating a filling station; the wreck here involved occurred in February, 1972; the trial was had December 4, 1974; following the wreck in February, 1972, he was unable to work because of his injuries until August, 1972; from August, 1972, to February, 1974, he was able to spend 4 to 5 hours a day doing paper work or supervising; he could no longer operate a tow truck and he had 5 of them in operation; his capacities have been so limited since the wreck that Exxon took his outlet from him; he had been working 12 to 16 hours a day but at trial time he could in no way stay on the job more than 8 hours a day and he cannot lift car hoods, mount tires and do the work necessary to operate a filling station; the year before the wreck he earned $18,397.22; the year of the wreck (1972) he made $15,971.40; the next year he earned $14,129.38; in 1973 he paid $14,979.12 to pay extra help to do the work that he had been doing at the filling station; at the time of the trial he still had continuous pain from his injuries; and it is more severe if he lifts 25 pounds or more.

From the evidence listed it is apparent to us that there is no basis for appellant’s contention that there is no evidence to support the jury findings complained of. We hold that the evidence is sufficient to support such findings and that they are not against the overwhelming weight and preponderance of the evidence.

Appellant’s tenth point of error is that the cumulative effect of the complained of errors committed by the trial court was to effect such a denial of the rights of appellant as would be reasonably calculated to cause and probably did cause the rendition of an improper judgment.

We overrule this point. We are convinced that because the undisputed evidence established as a matter of law that Brooks was at the time of the wreck acting within the scope of his employment for appellant, any claimed error that the trial court might have made in connection with that issue was harmless.

Affirmed.


author: SPURLOCK, Justice.

text:
    Patsy JONES, Appellant, v. Leon L. WHITELEY, Independent Executor of the Estate of Mary M. Whiteley, Deceased, Appellee.
    No. 17680.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 13, 1976.
    Rehearing Denied March 12, 1976.

      Simon & Simon, and Henry W. Simon and Mike Liles, Fort Worth, for appellant.
    A. J. Bryan, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a will contest case. Patsy Jones appeals from the order of the Probate Court of Tarrant County admitting to probate as the last will of her mother, Mary Whiteley, the instrument offered by her stepfather, Leon Whiteley. This instrument was not “self-proved” and appellant maintains that appellee has not met his burden of showing it was properly executed.

We affirm.

The document in question is styled “Last Will and Testament”, dated August 26, 1967, and was signed by Mary Whiteley as testatrix; it was also signed by Joe Villalo-bos and Fred Miller as attesting witnesses and notarized on the same date by Lorene Shivers. Mrs. Whiteley died on March 10, 1974.

Neither of the subscribing witnesses testified at the time of trial, but a deposition by Villalobos was introduced in which he claimed not to have signed the instrument in the presence of the testatrix and that the purported signature was not that of Mrs. Whiteley. Although there was some indication that Miller’s deposition had been taken by contestant, neither party introduced it into evidence and there was testimony by his physician and daughter that he was eighty-four years old at the time of trial and at the time his deposition was taken had a badly failing memory. On the other hand, a Mrs. Lorene Thomas testified she was present, along with Mr. Whiteley, when the subscribing witnesses and Mrs. Whiteley executed the will, each in the presence of the others, and that Mr. Whiteley’s will was executed at the same time. (At the time all of these people worked in a drugstore which was owned by the Whiteleys.)

Appellant’s points of error one through eleven claim error by the trial court in allowing the proper execution of the instrument in question to be proved by secondary evidence in the form of testimony by a party who was allegedly present at the time the document was solemnized but who was not a subscribing witness. She maintains that the proponent has not met his burden of proving the testatrix “executed the will with the formalities and solemnities . required by law” since such evidence was not admissible to show the will was signed by the subscribing witnesses in her presence.

We overrule these points of error (1-11).

The Probate Code of our State provides, with certain exceptions not in point, that in order to be properly executed a will must be signed by the testator and two subscribing witnesses, the latter being required to sign in the testator’s presence. Sec. 59, Tex.Prob.Code, Ann. (1956). While there is no requirement that the testator actually sign in the presence of the subscribing witnesses, it is mandatory that the witnesses sign in the presence of the testator. Morgan v. Morgan, 519 S.W.2d 276 (Tex.Civ.App., Austin, 1975, writ ref’d n. r. e.). The proponent of an attested written will which is not “self-proved” may establish its proper execution by the sworn testimony or affidavit of at least one of the subscribing witnesses thereto, taken in open court, assuming at least one such witness is available. Section 84(b), Prob.Code, supra. However, it has been held that the provision relating to proof of the will in court “only furnishes a guide under the conditions stated in the statute, and using the word ‘may’ is a recognition of other methods of proof and of other conditions under which that statute is not applicable.” Massey v. Allen, 248 S.W. 1067 at 1069 (Tex.Comm’n App., 1928, opinion adopted). The same case also observes that the statute setting out the proof necessary to probate a will (Art. 3271, the predecessor of the present Sec. 88 of the Probate Code), “. . . requires certain facts to be proved to the satisfaction of the court, showing, among other things, that the testator executed the will with the formality and solemnity required by the law to make it a valid will. There is no method designated in this article of making such proof, but it is only required that it be done to the satisfaction of the court.”

As to the degree which the court must rely on the testimony of subscribing witnesses where there is some question with regard to whether or not a testamentary instrument has been properly executed, the Supreme Court of Texas has stated: “If from defect of memory, or from corrupt purpose, subscribing witnesses should be unable or unwilling to testify to the facts bearing on the due execution of a will, this ought not to be permitted to defeat the will, if other evidence, admissible under the ordinary rules of law to establish facts, be introduced sufficient to satisfy the court ‘that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make a valid will.’ Cases have arisen in which wills were admitted to probate when the positive testimony of the subscribing witnesses would have defeated this.” Hopf v. State, 72 Tex. 281, 10 S.W. 589 (1888), cited in Sec. 3.10, Texas Estate Administration, p. 78 (State Bar of Texas, 1975); see also Miller v. Miller, 285 S.W.2d 373 (Eastland Tex.Civ.App., 1955, no writ hist.).

In the present case, the deposition of Villalobos was antagonistic to appellee’s position in two ways: he admitted signing the will, but not in the presence of the testatrix; he maintained that the signature on the will was not that of the testatrix (based upon his having witnessed her signature on one other occasion).

There was, however, evidence which was contrary to Villalobos’ recollection of those events. Mrs. Thomas and Mr. Eads, each of whom had known the Whiteleys for many years, testified that the signature on the will was that of Mrs. Whiteley. (Mr. Eads also testified that he had prepared reciprocal wills, including the one in question, for both Mr. and Mrs. Whiteley at the latter’s request and according to her directions.)

Since Villalobos’ memory of the signature could have been inaccurate and given Mrs. Thomas’ testimony that the will was signed by Mrs. Whiteley and the subscribing witnesses in the presence of one another, the trial court could also have concluded that Villalobos’ recollection as to whether or not he signed in the presence of the testatrix was also inaccurate.

Miller did not testify; the record reflects that his deposition had been taken but was not introduced into evidence by either party. However, certain portions of the deposition appear in the record as part of the basis for the proponent’s questioning of Miller’s family physician, Dr. H. C. Thomas, as to Miller’s capability for remembering the circumstances attendant to the execution of the will. These excerpts reflect: Miller could remember neither how old he was nor his home address; he could not recall recent phone conversations with the attorneys in the case; he recalled signing the instrument in question, but could not recall whether or not he signed it in the presence of the testatrix (although he refused to say he did not sign it in her presence). Miller’s daughter, Marion Walker, testified that the signature of the subscribing witness, Fred Miller, was her father’s, but that he had “lost his memory” as to recent events (which would have included the execution of the will).

In its findings of fact and conclusions of law, the trial court reflected its determination that: the testatrix signed the will in the presence of the subscribing witnesses, Villalobos and Miller; Villalobos and Miller signed the will in the presence of the testatrix; Fred Miller was not a competent witness at the time of trial; the deposition testimony of Villalobos was inaccurate; the testimony of Mrs. Thomas was accurate; the testimony of Mrs. Thomas, rather than that of Villalobos, was accepted as to compliance with the formalities required by law for valid execution of a will; the proponent sustained his burden of proving that the will was properly executed.

There was evidence from which the trial court could have concluded, as it did, that: Villalobos’ recollection of the events in question was inaccurate, and Miller’s testimony, if given, would have been inaccurate also and he was therefore not competent to testify. The facts of this particular case clearly fall within the purview of the cases previously noted which allow wills to be proved by secondary evidence in certain instances. There is sufficient evidence from which the trial court could have concluded that the will was executed with the requisite formalities; the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Worth Finance Co. v. Charlie Hillard Motor Co., 131 S.W.2d 416 (Tex.Civ.App., Fort Worth, 1939, no writ hist.); Southland Life Ins. Co. v. Aetna Casualty & Surety Co., 366 S.W.2d 245 (Tex.Civ.App., Fort Worth, 1963, writ re’d, n. r. e.).

In addition to the foregoing, we note the rule that a full attestation clause reciting compliance with all formalities of execution and signed by the witness is prima facie evidence of the validity of the will, although the witness’ memory is faulty, or he contradicts the facts stated in the clause, or where he is dead. The statements of the attestation clause may, however, be rebutted by proper ^evidence. Wilson v. Paulus, 15 S.W.2d 571 (Tex.Comm’n App., 1929, holding approved); Nichols v. Rowan, 422 S.W.2d 21 (Tex.Civ.App., San Antonio, 1967, writ ref’d, n. r. e.); Seydler v. Baumgarten, 294 S.W.2d 467 (Tex.Civ.App., Galveston, 1956, writ ref’d, n. r. e.).

In the present case, the attestation clause provided, “The above instrument was here and now published as her last will and signed by the said, Mary M. Whiteley, the testator, in our presence and we, at her request, in her presence and in the presence of each other, subscribed our names hereto as attesting witnesses.” It was signed by Joe Villalobos and Fred Miller. As mentioned: Villalobos testified by deposition that he signed the instrument though he denied doing so in Mrs. Whiteley’s presence and maintained the signature of the testatrix not to be in Mrs. Whiteley’s handwriting; Mrs. Thomas and Mr. Eads testified the signature of the testatrix was that of Mrs. Whiteley; the record reflects that Miller remembered signing the instrument, though not necessarily when or where; Miller’s daughter identified the signature of Fred Miller after the attestation clause as being her father’s. The rule discussed in the preceding paragraph clearly applies to the facts in this case.

The proponent having established prima facie that the will was properly executed, the burden of going forward with the evidence as to this element of proponent’s case then shifted to the contestant and it became necessary for her to introduce evidence to the contrary. Thornell v. Missouri State Life Ins. Co., 229 S.W. 653 (Tex.Civ.App., Texarkana, 1921, affirmed 249 S.W. 203, Tex. Comm’n App., 1923, opinion adopted); Texas & Pacific Railway Company v. Moore, 329 S.W.2d 293 (Tex.Civ.App., El Paso, 1959, ref’d, n. r. e.). When the proponent rested, the only “evidence” produced by contestant was the testimony of one of her counsel relative to whether or not an electronic photocopying machine would print out the notary seal on a notarized document which was being reproduced; such testimony had nothing to do with the formalities of execution. The only evidence in support of contestant’s burden on this point was Villalobos’ deposition testimony which has been recounted previously. Contestant did not attempt to introduce the testimony of Miller, nor does the record reflect any other probative evidence in her favor. The trial court therefore properly found the instrument to be a valid will executed in accordance with the requisite “formalities and solemnities”.

We note that in her tenth and eleventh points of error, contestant contends there is no evidence in support of the trial court’s finding/conclusion No. 4 that Fred Miller was an incompetent witness at the time of trial. She complains that no ruling was made or requested during the trial and therefore she was prejudiced by what amounted to an ex post facto ruling on Miller’s competency. We disagree.

Even if proponent’s prima facie case based on the attestation clause were not controlling, there is no requirement that a living subscribing witness who is otherwise available to testify be declared legally incompetent before secondary evidence can be introduced to prove up a will; rather, the law simply requires that the testimony of such a witness be properly accounted for in order to establish a basis for proving up the will in a manner other than that recommended by the statute. Section 84(b), supra; Elnell v. Universalist General Convention, 76 Tex. 514, 13 S.W. 552 (1890); Jones v. Steinle, 15 S.W.2d 164 (Tex.Civ.App., Austin, 1929, ref’d). The practical effect of the trial court’s determination that Miller “was not a competent witness ... at the time of trial” was to account for the absence of Miller’s testimony based on the uncontradicted evidence of his faulty memory; it was not a determination that Miller would have been legally incompetent to testify had he been called.

By her twelfth and final point, appellant contends that the proponent has failed to meet his burden of proving the will was not revoked prior to the demise of the testatrix.

We overrule this point of error (No. 12).

In a will contest instituted prior to admission of the will to probate, the proponent has the burden of proving the will has not been revoked. Sec. 88(b)(3), Probate Code, supra; Section 4.27(8), Texas Estate Administration, supra. However, once it is proved that a will is otherwise valid and has been executed with the requisite formalities and solemnities, a rebuttable presumption of continuity is recognized and it is not necessary for the proponent to produce direct evidence of nonrevocation in the absence of evidence casting suspicion on its being the testator’s last will, or tending to destroy the presumption. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753 (1903); Wilson v. Paulus, supra; Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App., Dallas, 1970, writ ref’d, n. r. e.).

In this case, not only was the presumption of continuity unrebutted, but there was evidence of nonrevoeation as well: Mr. Whiteley testified that his wife had not revoked the will in question; Mr. Eads, the accountant, testified he had been taking care of the Whiteleys’ business affairs for over 30 years, had prepared the reciprocal wills for them at Mrs. Whiteley’s request, and that Mrs. Whiteley never asked him to prepare another will prior to her death. On the other hand, there is no evidence intimating that the will was every revoked.

Each point of error has been considered; each is overruled.

The judgment of the trial court is affirmed.

       Quote refers to Art. 3267, Tex.Rev.Civ.Stat. (1911) which had similar language and on which the present Sec. 84 is based.


text:
    D. L. BRITTIAN, d/b/a, Brittian’s Lumber & Hardware Co., et al., Appellants, v. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellee. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellant, v. D. L. BRITTIAN, d/b/a Brittian’s Lumber & Hardware Co., et al., Appellees.
    Nos. 17688, 17689.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 13, 1976.
    Rehearing Denied March 12, 1976.

      L. Royce Coleman, Jr., Denton, for D. L. Brittian, d/b/a Brittian’s Lumber & Hardware Co., and others.
    Preston, Holt, Goodrum & Harper, and Wayne L. Goodrum, San Angelo, for General Telephone Company of the Southwest.
   OPINION

SPURLOCK, Justice.

This is a class action suit brought by D. L. Brittian, individually, and as a member of the class, against General Telephone Company of the Southwest, for declaratory judgment. Defendant brought a cross-action against Brittian for debt for directory advertising. Trial was before the court without the aid of a jury, resulting in a judgment in which Brittian obtained a declaratory judgment, decreeing the contract terminated on January 28,1975, class action relief was denied, and defendant was denied relief on its cross-action. Brittian appealed in his representative capacity only. That appeal is docketed as No. 17688. Defendant also appealed, which is docketed as No. 17689. By cross-points, plaintiffs, as appellees, assign the same errors complained of in their appeal where they are appellants. Both appeals are consolidated by this Court. The suit involves the construction of contracts between the Telephone Company and its subscribers concerning advertising in the “yellow pages” of the telephone directory.

We affirm in part; reverse and dismiss in part; and in part reverse and render a take-nothing judgment against Brittian.

Plaintiff brought this suit for himself and for a class of persons too numerous to be made party plaintiffs, other than as a class, who are subscribers to directory advertising in the defendant company’s telephone directory. The allegations and proof show that the directory is composed of white and yellow pages. In the yellow pages various businesses and individuals advertise their services or products. The plaintiffs contend that they contracted with the telephone company for directory advertising for one year for which the customers were billed monthly. Each contract was identical except as to the amounts paid for advertising. Plaintiffs allege that each of the subscribers is being billed for the advertising monthly after the contract had expired by its own terms. They pray for declaratory judgment declaring that the contract had expired, for a permanent injunction enjoining defendant from attempting to collect any future sums of money for the expired advertising contract, and recovery of the money paid by Brittian and the class for advertising after the contract had expired. The defendant answered by general denial, special denials, and filed a counterclaim seeking a money judgment against Brittian for all sums due under his contract for advertising from January 28, 1975, to time of trial.

The judgment rendered and signed April 10, 1975, contains a finding that, “. Plaintiff, D. L. Brittian, does not properly and legally represent the class of persons he alleges he represents . . . It further provides, “IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that all class action relief sought by Plaintiff is in all respects denied.

“All other relief not specifically granted herein is in all respects denied . . .

The record reflects that the “yellow pages” consist of 184 pages and that several advertisements appear on each page. There are at least 300 persons in the same class as Brittian. Several of the subscribers testified during the course of the trial as witnesses for plaintiffs. They gave varying reasons why they did not wish to be billed past the alleged contract year ending January 28, 1975. Some had changed a portion of their business, some wanted to reduce their ads for economic reasons, and one had had a heart attack and had severely curtailed his business because of his impaired health. None of these persons were made party plaintiffs to the suit other than as being members of the class.

The defendant filed a motion to dismiss this appeal on the grounds that since plaintiff, as an individual, had received all relief he sought and the court had found he did not represent the class, he therefore had no justiciable interest in this appeal. This motion is denied.

Appellants and appellee concede that in No. 17688 the class action alone is appealed.

The basic and underlying issues in No. 17688 are: (1) Where an individual brings a suit as an individual and as a member of the class and the court finds that the individual did not properly represent the class but denies the relief sought by the class, can the class appeal from that judgment by the representative of the class? (2) The next question raised by proper point of error is whether or not the trial court abused its discretion in finding that Brit-tian did not properly and legally represent the class of persons he purportedly represented.

Rule 42, T.R.C.P., provides in part as follows: “(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is . (3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” (Emphasis ours.)

The language used in the Rule is designed to cover a wide variety of situations. It can cover suits to construe wills and trusts. It may involve unborn children. It covers derivative suits, and a wide variety of legal and factual situations. For this reason the rule must be broad and flexible in order for courts to insure that where a class is represented, the members of that class will be properly protected. In Volume 1, McDonald Texas Civil Practice, Sections 3.31.1 through 3.51, pages 338-406, Class Actions, the author illustrates how the rule has been applied and the problems arising in connection therewith. The number of persons required to be joined to fairly represent the class varies in part depending upon whether the suit is in the nature of a derivative, hybrid, or spurious class action.

In general, one of the requirements in a true class action is that parties appearing as representatives must be members of the class and of a sufficient number to assure adequate representation and they must remain members throughout the litigation. Allred v. Heaton, 336 S.W.2d 251 (Tex.Civ.App., Waco, 1960, writ ref., n. r. e.; cert. den. 364 U.S. 517, 81 S.Ct. 293, 5 L.Ed.2d 265 (I960)); Molina v. Sovereign Camp, W. O. W., 6 F.R.D. 385 (Nebraska Dist. Ct., 1947).

The trial court’s finding is entitled to great weight upon appeal. Richardson v. Kelly, 144 Tex. 497, 191 S.W.2d 857 (1945, cert. denied 329 U.S. 798, 67 S.Ct. 487, 91 L.Ed. 683 (1947)).

It is our opinion that the trial court did not abuse its discretion. This point is overruled.

It is fundamental that the court cannot render judgment against parties over whom the court has no jurisdiction because they were not made parties to the suit. The proper order should have been for the court to dismiss the class. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (Tex.Sup., 1954).

The law, in general, is whether a party is the proper representative of a class, such that the interest of other class members will be adequately represented, is a matter addressed to the sound discretion of the trial judge, although his determination is subject to review. Richardson v. Kelly, 191 S.W.2d 857, supra; Ford v. Bimbo Corporation, 512 S.W.2d 793 (Tex.Civ.App., Houston, 14th Dist., 1974, no writ hist.); Allred v. Heaton, supra; Group Hospital Service, Inc. v. Barrett, 426 S.W.2d 310 (Tex.Civ.App., Houston, 14th Dist., 1968, ref., n. r. e.).

It is our opinion that the judgment of the trial court adjudicating that Brittian did not represent the class and denying all relief to the class, and not dismissing the class, is subject to review. Robertson v. Blackwell Zinc Company, 390 S.W.2d 472 (Tex.Sup., 1965). See also City of Arlington v. Cannon, supra. The judgment accordingly should be reformed as indicated herein.

The trial court made the following Findings of Fact and Conclusions of Law:

“FINDINGS OF FACT
“1. The last telephone directory (the directory in question) was published in January of 1974.
“2. Telephone directories are usually published every twelve months and since December, 1962, have been published on a twelve month, or near twelve month basis.
“3. The contract in question, for yellow page advertising, recites that it is for a period ‘normally twelve months.’
“4. Publication of telephone directory with yellow page advertising is solely in control of General Telephone Company, Defendant herein.
“5. Directory Publishing Company is owned by Defendant, General Telephone Company.
“6. At the trial of this cause the Defendant telephone company gave no adequate reason or cause why publication of a new telephone directory was delayed.
“7. As of April 10, 1975, no new directory had been published. .
“8. As of April 10, 1975, no firm date had been announced when another telephone directory would be published.
“9. Plaintiff, D. L. Brittian, was damaged by Defendant’s failure to publish a new telephone directory within the twelve month period contemplated by the parties.
“10. At the time the contract for advertising was entered into between Plaintiff and Defendant, the parties contemplated a new telephone directory being issued in January of 1975, in the usual and normal manner.
“11. General Telephone Company of the Southwest is a monopoly.
“CONCLUSIONS OF LAW
“1. A twelve month period for the yellow page telephone directory advertising was contemplated by the parties when the contract was entered into.
“2. The telephone company overreached its duties to its subscribers by failing and refusing to publish a new telephone directory when it could and should have done so within the twelve month period contemplated by the parties.
“3. Since General Telephone Company of the Southwest is a monopoly the telephone company owes a greater duty to its subscribers to not overreach or take advantage of them as the subscribers have no alternative but to deal with General Telephone Company of the Southwest.
“4. The contract expired on January 28, 1975.”

The contract in question consists of two parts. On the first page is the application listing the nature and type of advertising requested and a schedule of charges, and states that the applicant agrees to pay in advance the total amount per month shown, upon publication of said advertising items in accordance with the terms on the reverse side of the application.

On the reverse side of the application is the paragraph, the meaning of which occasioned this litigation:

“4. Duration. If applicant’s telephone service is discontinued, the charges for directory advertising will be discontinued, provided the telephone service is not superseded. If applicant is subsequently provided with telephone service for the same general type of business within the same directory area prior to the expiration of the directory in which the advertising appears, the charges for directory advertising will commence effective upon the resumption of such telephone service.
“The applicant with continuous telephone service will be billed monthly in advance for the length of the directory issue. In the event the applicant is billed in advance for the entire directory issue (normally 12 months) and the length of issue is changed, the applicant’s billing will be adjusted accordingly.
“If within a period of 12 months from the issuance of a directory an interim directory with a classified section is issued, then the advertising provided for on the face of this application shall be inserted in the interim directory, and the applicant will continue to pay the monthly charges noted on the face of this application for the full period of the directory issue (normally 12 months.)”

The record reflects the last directory was issued on January 28, 1974. Brittian contends that his contract with the Telephone Company expired 12 months from that date, or January 28, 1975. The Telephone Company contends that the contract does not expire until the new directory is issued and it was error for the court to find otherwise.

Mr. Brittian testified that he has had continuous telephone service and is billed monthly. Therefore, the termination clause stating that the contract would be discontinued if the service was disconnected and the clause concerning payment of the entire fee in advance would not apply to Mr. Brit-tian. It is therefore clear that as applied to Brittian the contract for advertising continues for the length of the 1974 directory issue and will continue until a new directory is issued.

The statement of facts indicates that the Telephone Company would probably issue a new directory on May 28, 1975, to approximately coincide with the issue of the Dallas directory. This is for business and economic reasons. Over the last 10 years the directory had either issued on December 28 or January 28 of each year.

The contract provides that if the applicant pays cash in advance he will pay for 12 months, but if the length of issue is more or less than that period of time then the amount of his prepayment would be adjusted accordingly. This language indicates that it is the usual practice for the directory to be issued each 12 months, but it may be issued in a shorter period of time or a greater period of time; in any event, the contract is to pay for the directory advertising until the issuance of a new directory, as applied to the facts in this case.

A contract is not ambiguous nor too.indefinite to be enforced in regards to its duration so long as the language used fixes an ascertainable fact or event by which the term of the duration of the contract can be determined. The expiration of a particular directory issue is an ascertainable event which can be determined upon the publication of a new issue.

In the case of City of Big Spring v. Board of Control, 404 S.W.2d 810 (Tex.Sup., 1966) that court had before it a contract concerning the maintaining of a State hospital in Big Spring. The City agreed to provide water to the hospital at a fixed rate of charge. The duration of the contract was that it would stay in effect as long as the State of Texas shall in good faith maintain and operate said hospital on said site. This contract was held not to be indefinite as to the duration of the contract and it was not invalid and was not terminable at will. It limited the duration of the contract to be in effect “ ‘as long as the State of Texas shall in good faith maintain and operate said hospital on said site.’ ”

The Telephone Company, by its point No. 2, asserts that the finding of the trial court that the contract expired 12 months from the date of the issuance of the directory is error because such is contradictory with the written agreement between the parties. Brittian in his brief states that this is the only issue on appeal in Cause No. 17689. In effect Brittian says that the contract should be construed from its four corners without the aid of extrinsic evidence and that the other findings of fact and conclusions of law are immaterial to this appeal. Brittian then states that parol evidence is not admissible to vary or explain the terms of the contract and that the contract should be construed by the court.

It is our opinion that the contract did not expire 12 months from the date of its issue on January 28, 1974.

The Telephone Company did not appeal from nor assign a point of error to that portion of the judgment denying its cause of action by way of cross-action for debt for directory advertising from January 28, 1975, to date of judgment, which was April 10, 1975.

We have carefully considered all the assignments of error and cross-points asserted in each appeal and our opinion and judgment here rendered disposes of each of them.

That portion of the judgment denying relief to the plaintiffs as a class, other than Brittian, is reversed and dismissed without prejudice to the right of the individual members of the class, or the members as a class, to institute and prosecute suite individually or as a class concerning the subject matter of this cause of action.

That part of the judgment declaring the contract of the Telephone Company had expired and terminated on or about January 28, 1975, is reversed and rendered, and Brittian is hereby denied that relief.

That part of the judgment denying relief on the cause of action asserted by way of cross-action by the Telephone Company against Brittian for debt for directory advertising from January 28, 1975, to April 10, 1975, the date of the'judgment from which part of the judgment the Telephone Company did not appeal nor assign any point of error, is affirmed.

Costs in No. 17688 are assessed against General Telephone Company of the Southwest. Costs in No. 17689 are assessed one-half against General Telephone Company of the Southwest and one-half against D. L. Brittian.