author: YOUNG, Justice. NYE, Chief Justice,

text:
    Frank KATZ, Appellant, v. Domingo RODRIGUEZ et al., Appellee.
    No. 1230.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1977.
    Opinion on Rehearing and Dissenting Opinion Feb. 23, 1978.
    Rehearing Denied March 8, 1978.

      O. B. Garcia, Garcia & Warburton, Brownsville, for appellant.
   OPINION

YOUNG, Justice.

This is a suit to quiet title. Jose Silva and wife, Maria G. Silva, together with Domingo Rodriguez and wife, Minerva S. Rodriguez, claiming fee simple ownership of contiguous tracts of four acres and one acre, respectively, out of Block 33, Rio Hon-do Park Townsite in Cameron County, sued Frank Katz seeking to have a deed conveying to him a certain 208.71 feet X 208.71 feet tract out of the southeast corner of Block 33, containing one acre, cancelled as a cloud on their title. In the alternative, they claimed title to such acreage by virtue of adverse possession under deeds with payment of taxes thereon for five years.

Block 33 contains five acres. The entire block was purchased by the Silvas from Paciano Morin and wife on February 12, 1960. On February 1, 1974, the Silvas transferred an acre out of the block’s southeast corner to plaintiffs Rodriguez. The deed of the one-acre tract to defendant Katz antedates the deed to the Silvas by two years, being dated February 7, 1958. Although the Rodriguez deed and the Katz deed both embrace one acre out of the southeast corner of Block 33, the Katz acre is a square 208.71 feet X 208.71 feet, while the Rodriguez acre is a rectangle 435.6 feet X 100 feet.

The case was tried to the court without a jury. The trial court rendered judgment quieting the plaintiffs’ title to their respective tracts and removing the cloud cast on their title by the defendant’s deed. Katz appeals. We affirm.

The trial court made the following findings of fact.

“1. Defendant Katz purchased the one-acre tract in question on February 7, 1958.
2. Plaintiffs Silva purchased the five acre tract in which the one acre tract in question is situated on February 12, 1960.
3. Plaintiffs Silva conveyed the one acre tract in question to Plaintiffs Rodriguez on February 1, 1974.
4. Plaintiffs have possessed the entire five acre tract since February 12, I960 to this date.
5. Plaintiffs have paid the property taxes on the five acre tract.
6. Plantiffs have traced their title to a date prior to the year 1920 but did not trace title to the sovereignty or a common source.
7. Defendant has not paid for any property taxes since February 7, 1958.
8. Defendant has not been in possession of the one acre tract at no time since February 7, 1958.
9. Defendant has not traced title to any source, other than his deed of transfer.”

From those findings the trial court concluded that the plaintiffs have superior title to the one-acre tract in question.

Appellant brings forward six points of error. His first and second points challenge the judgment because the plaintiffs failed to trace their title to the sovereign or to a common source. Appellant argues that his answer controverted plaintiffs’ averments as to title, therefore plaintiffs were required to trace their title to the sovereign or to a common source; that plaintiffs did not do so and therefore as a matter of law appellant was entitled to judgment.

A suit to remove cloud from title or suit to quiet title is different from an action in trespass to try title. A suit in trespass to try title is statutory and accords a legal remedy, while a suit to remove cloud or to quiet title accords an equitable remedy. Standard Oil Co. v. Marshall, 265 F.2d 46 (5th Cir. 1959), cert. denied, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185 (1959). See Leopold, Texas Land Titles: Part II, 7 St. Mary’s L.J. 58, 116 (1975). Trespass to try title is an action to recover the possession of land unlawfully withheld from an owner who has a right of immediate possession. Standard Oil Co. v. Marshall, supra. In this action no other principle is more pervasive than that which requires the plaintiff to recover on the strength of his own title; proof that the defendant has no title is insufficient for recovery. Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848 (1956); State v. Noser, 422 S.W.2d 594 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). Plaintiff may meet this burden in one of four ways: 1) he can show title emanating from the sovereignty of the soil to himself; or 2) he can show title in himself emanating from a common source to which the defendant claims; or 3) he may show title through limitations; or 4) he can show prior possession antedating defendant’s possession. Reinhardt v. North, 507 S.W.2d 589 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); State v. Noser, supra; Dimwitty v. McLemore, 291 S.W.2d 448 (Tex.Civ.App.—Dallas 1956, no writ).

A suit to quiet title requires the allegation of an adverse claim. The gravity of that claim must be sufficient to place the property owner into a position that if such claim is asserted, it may cast a cloud upon his enjoyment of the property. Mauro v. Lavlies, 386 S.W.2d 825 (Tex.Civ.App.—Beaumont 1964, no writ); Texas Development Co. v. Hodges, 237 S.W.2d 436 (Tex. Civ.App.—Amarillo 1951, no writ). Although claimant must base his action on the strength of his own title, Humble Oil & Ref. Co. v. Sun Oil Co., 191 F.2d 705 (5th Cir.1951), cert. denied 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687 (1952), he is not required to trace his title to either the sovereign or to a common source, as argued by defendant. Dalton v. Davis, 1 S.W.2d 571 (Tex. Comm’n App.1928, holding approved); Texas Development Co. v. Hodges, supra; Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App.—Texarkana 1949, no writ). It is clear that the claimant must show an interest of some kind, but it is error that the claimant must show fee simple or uncontestable interest to prevail in a suit to remove cloud on title or to quiet title. Dalton v. Davis, supra; Lee v. Grupe, supra.

In the present suit the trial court in the findings of fact determined: (No. 6) that the plaintiffs have traced their title to 1920; (No. 2) that they acquired their title through purchase on February 12, 1960; and (No. 4) that the plaintiffs have possessed the five acre tract from February 12, 1960 to April 28,1977. Of those findings of fact only finding No. 4 is challenged on appeal. Even if finding No. 4 is erroneous, the unchallenged findings No. 2 and No. 6 constitute undisputed facts and are binding on the appellant as well as this Court. Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). This evidence constitutes sufficient proof to show that the plaintiffs owned the land described in their petition and that they have superior title thereto. Dalton v. Davis, supra; Lee v. Grupe, supra.

Defendant would have us hold that his answer of “not guilty” controverts plaintiffs’ title thereby placing the burden of tracing their title to the sovereignty or to a common source. This would be true if plaintiff had brought suit in trespass to try title. But the case before us has been pled as a suit to quiet title or to remove cloud. And in that instance, as we have noted, the plaintiffs are not required to trace their title to the sovereignty or to a common source. Appellant’s first and second points are overruled.

Appellant’s third and fourth points attack the trial court’s judgment as based on findings indicating adverse possession by appellees under the five-year statute of limitation, codified as Tex.Rev.Civ. Stat.Ann. art. 5509 (1958). We agree with appellant in that title cannot be claimed under Article 5509 where taxes are paid after becoming delinquent, as is the case here. Houston Oil Co. v. Jordan, 231 S.W. 320 (Tex.Comm’n App.1921, jdmt. adopted); Churchman v. Rumsey, 166 S.W.2d 960 (Tex.Civ.App.— Amarillo 1942 error ref’d w. o. m.). Any error asserted under these points is harmless error, however, in that appellees, as we have previously noted, are entitled to judgment based on other of the trial court’s findings. Appellant’s third and fourth points are overruled.

In his fifth point the appellant contends that the trial court erred in permitting the appellees to testify that they owned the lands embracing the one-acre tract; described in appellant’s deed, because such evidence was hearsay and therefore inadmissible. If the trial court’s action was error, it was harmless error. This is so because the appellees produced certified copies of deeds relied upon by them as affecting the course of their title. Those instruments were admitted into evidence by the trial court and there is no complaint of such action on appeal. See McCormick & Ray, Texas Evidence § 1568 (2d ed. 1956). Appellant’s fifth point is overruled.

Finally, the appellant asserts, in his sixth point, that the trial court erred in rendering judgment removing the cloud cast on appellees’ lands by appellant’s deed because appellees failed to locate the appellant’s one-acre tract in relation to the location of appellees’ lands in Block 33. We have reviewed the record and we are of the opinion that this contention is without merit. Appellant’s sixth point is overruled.

The judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

On motion for rehearing, defendant contends that we erred in finding that only the trial court’s finding of fact No. 4 is challenged on appeal. He says that he specifically excepted to findings No. 3 through No. 9 as shown by the transcript. Defendant did except to all of those findings in the trial court. Unless the trial court’s findings of fact are challenged by point of error on appeal, however, they are binding on the appellate court. Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.—Corpus Christi 1977 writ ref’d n. r. e.); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). Therefore, defendant’s assignment of error relating to findings of fact challenged on appeal is overruled.

Again, in his motion for rehearing, defendant urges that the trial court’s judgment in favor of the plaintiffs should be reversed because the plaintiffs failed to trace their title to the sovereign or to a common source. Other than the reasons we set forth in our original opinion there is another reason why the plaintiffs have superior title. That reason is prior possession. Katz v. Maddox, 256 S.W.2d 249 (Tex.Civ.App.—San Antonio 1953, writ ref d n. r. e.).

In Katz, the plaintiff there had actual possession for no longer than two years, but the plaintiff’s possession was prior to that of the defendants even though not long enough for a limitation title. The plaintiff there paid the taxes, but there is no indication whether the taxes were paid before they became delinquent. One of the defendants obtained a deed from a third party. The appellate court there held that plaintiff was entitled to have title quieted in him by virtue of prior possession despite the plaintiff’s failure to prove title from the sovereign or common source.

In the instant case the plaintiffs proved possession for several years by farming and living on the property. The type and manner of possession, however, was not sufficient to establish title by limitation. The plaintiffs paid the taxes, even though not before the taxes became delinquent. The defendant obtained a deed from a third party, but the trial court made a finding, unchallenged on this appeal, that defendant had possession at no time. So the plaintiffs established that their possession was the only possession, as between the parties to this suit. Consequently the plaintiffs here like the plaintiff in Katz, are entitled to recover based on prior possession even though they failed to prove title from the sovereign or common source.

We have carefully considered all of defendant’s assignments of error contained in his motion for rehearing and find that they are without merit. Defendant’s motion for rehearing is overruled.

NYE, Chief Justice,

dissenting.

The original dissent filed in this case is withdrawn and the following dissent is substituted therefor.

I respectfully dissent because the judgment of the trial court cannot be upheld for the reasons that plaintiffs did not prove either a superior title in themselves or the wrongful cloud on that title in the defendant.

The defendant obtained a general warranty deed from the Nycum Gin Company, Inc., a Texas corporation, which conveyed to him by metes and bounds, a tract of land out of Block 33 in a subdivision of Rio Hondo Park Townsite located on the Arroyo, Colorado in Cameron County, Texas, on the 7th day of February, 1958. There were two sets of plaintiffs. Plaintiffs Jose Silva and wife, Maria G. Silva, claimed a portion of Block 33 of this subdivision in a deed dated February 12, 1960. The other plaintiffs Domingo Rodriguez and wife, Minerva S. Rodriguez, claimed a portion of Block 33 in a deed from the.Silvas dated February 1, 1974.

The majority states that it will not consider defendant’s complaints concerning some of the trial court’s findings of fact because the defendant failed to challenge such findings by specific points of error in his brief on this appeal. Although I doubt if the specific complaint is absolutely necessary for a reversal in this case, I hate to see the majority depart from the familiar rules that we have always followed in this court in the past. Rule 422 required us to liberally construe the briefing rules in the interest of justice. We have always been committed to this liberal construction of the briefing rules and in every case we have considered points of error where the brief acquaints the Court with the error relied upon: a) by the arguments; b) by the recitations of the facts; c) and by the law as contained in the appellant’s brief and the answer (if any) of the appellee. Appellant’s brief does exactly this. The appellees on the other hand did not even care to answer the appellant’s brief by written reply nor did they appear for oral argument. The two cases cited by the majority are not even in point for the reason cited in the opinion. But see: Frambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Charlie Thomas Courtesy Ford v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Bookout v. Pugh, 513 S.W.2d 281 (Tex.Civ.App.—Corpus Christi 1974, no writ); Blackmon & Associates, Inc. v. Palmer Building, 463 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Weeks v. Heinrich, 447 S.W.2d 688 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Holzapfel v. Brueggman, 404 S.W.2d 916 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.). The defendant’s brief sufficiently attacks the trial court’s findings No. 6 and 5, in addition to finding No. 4, and he also adequately shows by argument and law the reversible error committed by the trial court.

In a quiet title action to remove a cloud on title, the plaintiff must base his action on the strength of his own title and he must allege an adverse claim in the defendant which makes a charge upon the land of the plaintiff who is the true owner of the land. The burden of proof is always on the plaintiff throughout the trial. He must prove both superior title and a wrongful cloud on that title by the defendant. 7 St. Mary’s L.J. pp. 117-121, Suit to Quiet Title; 47 Tex.Jur.2d, Section 28, pp. 554-555. The majority overlooks the plaintiff’s burden to prove the superiority of his own title in order to be entitled to prevail.

The majority states that in a suit to quiet title the claimant is never required to prove the superiority of his own title by tracing his title to either the sovereign or a common source. This could only be so if there was no evidence of a record title in the adverse party, e. g., City of Dublin v. Tatum, 232 S.W.2d 740 (Tex.Civ.App.—Eastland 1950, no writ); McDonald v. Galt, 173 S.W.2d 962 (Tex.Civ.App.—Forth Worth 1943, error ref’d). In the case before us, however, it was conclusively established that a record title was in the defendant. The plaintiff introduced defendant’s warranty deed into evidence which was prior in time to plaintiffs’ deeds. This showed pri-ma facie legal title in the defendant. Thereafter it was incumbent upon plaintiffs to rebut the prima facie case thus made and show superior title in themselves. Dittmar v. Alamo Nat. Co., 91 S.W.2d 781 (Tex.Civ. App.—El Paso 1936, aff’d); 132 Tex. 44, 118 S.W.2d 298 (1938); and see Hines v. Thorn, 57 Tex. 98 (1882).

The plaintiffs in their suit claim fee simple title to specific acreages and sought to prove superior title in themselves by introducing a series of deeds dating baek to approximately 1920, but not to a common source. Even with such deeds in the record before us, there was a break in the middle of the chain of plaintiffs’ title. The record before us is thus silent as to those missing intervening years where it was possible that defendant grantor could have obtained good title from those in plaintiffs’ prior chain. But we have no way of knowing from the present record. See e. g., United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 226 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Felts v. Whitaker, 129 S.W.2d 682, 685 (Tex.Civ.App.— Fort Worth 1939, aff’d); 137 Tex. 578, 155 S.W.2d 604 (1941). All of the deeds introduced by plaintiffs including defendant’s deed, had been recorded in the deed records of the county. The superiority of plaintiffs’ titles, therefore, could not be determined by a partial tracing of plaintiffs’ chain of title and ignoring entirely defendant’s chain of title. See 6 St. Mary’s L.J. 802, pp. 824-33 “Texas Land Titles”; Olds, the Scope of the Texas Recording Act, 8 S.W.Law J. 37 (1954).

The majority say that plaintiffs’ title was not in issue. This is not so. The plaintiffs’ title was directly placed in issue by defendant’s general denial and by his plea of not guilty. The general rule in Texas is that in suits to quiet title, where the plaintiff’s title has been so controverted, the plaintiff must prove that his title is superior out of a common source or, in the alternative, by deraignment from the sovereignty of the soil. 47 Tex.Jur.2d, Quieting Title § 27 (1963) and cases cited therein. Ellison v. Butler, 443 S.W.2d 886 (Tex.Civ.App.—Corpus Christi 1969, no writ); McGuire v. Bond, 271 S.W.2d 508 (Tex.Civ.App —El Paso 1954, writ ref’d n. r. e.); Perry v. Venable, 112 S.W.2d 1069 (Tex.Civ.App.—El Paso 1938, writ dism’d); Atkinson v. Shelton, 160 S.W. 316 (Tex.Civ.App.—Texarkana 1913, writ ref’d); and Ballard v. Carmichael, 17 S.W. 393 (Tex.Sup.1891). This rule is particularly persuasive in cases such as the present one, where deeds are in evidence which on their faces show fee simple title in defendant as well as in plaintiff.

The only exception to this rule that I could find was in a boundary dispute case where the claimant’s chain of title was actually not in issue and the common source was not important. See Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App.—Texarkana 1949, no writ). There is no relevancy to the issue before us in the other cases cited by the majority. See Dalton v. Davis, 1 S.W.2d 571 (Comm’n App.—1928, holding approved). (Question of whether plaintiffs’ pleadings conformed to the Court’s judgment). Texan Development Co. v. Hodges, 237 S.W.2d 436 (Tex.Civ.App.— Amarillo 1951, no writ). (Plea of privilege case where adverse claimant asserted a sufficient contractual interest in plaintiff’s fee simple title to constitute a cloud for venue purposes under Subdivision 14 of Article 1995). The trial court in its findings of fact admits that plaintiffs failed to trace title to the sovereign or a common source, and the trial court did not make a single other fact finding that would support the legal conclusion that plaintiffs had superior title. At the minimum, plaintiffs’ burden of proof required them to trace both chains of title back to a point where the trial court could determine who had the superior title. This was not done.

Although the plaintiffs attempted to prove title by adverse possession, the record fails to show that they met the statutory requirements either by possession, the payment of taxes, or by proper pleadings.

The original majority opinion holds that the trial court judgment could be affirmed on two bases: 1) that plaintiffs proved a superior title because some of the deeds from plaintiffs’ predecessors in title antedates the defendant’s warranty deed, and 2) that the plaintiffs were not required to prove the wrongful title of the defendant because the general denial and plea of not guilty did not (by way of pleading) controvert the plaintiffs’ alleged superior title or put such title in issue. They do not cite a single authority to substantiate either of these holdings. This, I believe, is error.

In the new opinion on motion for rehearing, the majority is now attempting to rely on prior possession as an additional reason to affirm the judgment of the trial court, based solely on Katz v. Maddox, 256 S.W.2d 249 (Tex.Civ.App.—San Antonio 1953, writ ref’d n. r. e.). The majority’s interpretation of Katz is also error.

A careful reading of Katz reveals the following reason for that court’s finding of superior title based upon prior possession: quoting from Justice Pope’s opinion from the San Antonio Court of Civil Appeals, he said:

“Despite plaintiff’s failure to prove title from the sovereign or common source, he (plaintiff) may recover by virtue of prior possession since there is no proof of title in the defendants.” (emphasis added).

Clearly the rule announced in Katz would not apply to this case where the defendant’s proof of title was in evidence by a general warranty deed to the defendant and such title was filed of record prior to plaintiffs’ deeds. Additionally, the “prior possession” rule is not a rule of property, but a rebut-table presumption of evidence which applies only where there is no showing of title in the defendant. See: Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410, 413 (1943); Turner v. Cunningham, 158 S.W. 176 (Tex.Civ.App.—Dallas 1913, no writ). Accord, Decuir v. Houseman, 310 S.W.2d 591, 593 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.); Dimwitty v. McLemore, 291 S.W.2d 448, 451 (Tex.Civ.App.—Dallas 1956, no writ); Ballingall v. Brown, 226 S.W.2d 165, 171 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.).

I would reverse the judgment of the trial court and render a take nothing judgment.


source: Caselaw Access Project

author: WALTER, Justice. WALTER, Justice.

license: Public Domain

text:
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Appellant, v. Curtis REED et al., Appellees.
    No. 5060.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.
    Charles R. Griggs, Nunn, Griggs & Beall, Sweetwater, for appellant.
    Davis Scarborough, Abilene, for appel-lees.
   WALTER, Justice.

This appeal involves a life insurance policy issued by Southern Farm Bureau Life Insurance Company on the life of Curtis Reed. Southern Farm sought cancellation of the policy because of several alleged fraudulent and material written representations made by Reed on which Southern Farm relied. Reed died before trial. His widow, Frances Reed, and two sons, Lee Reed and Scott Reed, intervened. Trial was before the court and judgment rendered against Southern Farm. Southern Farm appeals. We affirm.

Southern Farm brought this suit seeking to cancel life insurance policy # 605402 issued to Curtis Reed and life insurance policy # 605403 issued to Reed’s employer, The Shoe Tree, Inc., and to annul the waiver of premium disability benefit endorsement to insurance policy # 599092 issued to Reed. Prior to his death, Reed agreed to set aside the waiver of premium disability benefit. A default judgment was rendered against The Shoe Tree, Inc. Policy # 605402 is the only policy in issue on this appeal.

Reed died of emphysema on October 28, 1976. Mrs. Reed testified her husband had pneumonia in 1972 and had shortness of breath for which he used a bronchial dilator. After moving to Abilene, Reed entered a hospital in January of 1973 for diagnostic tests conducted by Dr. Johnny B. French. Dr. French’s diagnosis was that Reed was suffering from a severe obstructive ventilatory impairment with restricted flow rates, hyperinflation, wasted ventilation, elevated dead space and elevated airway resistance. Dr. French informed Reed of his condition and told him “our hopes with him would be mainly one of trying to stabilize his problem, that the chances of improving it would be minimal.” Reed’s condition was termed “chronic obstructive lung disease, primarily pulmonary emphysema, severe.” Dr. French recommended Reed stop smoking, use a different bronchial dilator, take prescribed medication, and purchase a home intermittent positive pressure breathing machine if he could afford one.

Reed visited Dr. French in February of 1973 for a posthospital visit. Dr. French stated: “He (Reed) related that he was feeling better, had improved with his exercise regimen of walking and playing golf, and had not been smoking. I noted at this time that he was very encouraged as to how he was doing.” After an examination in April, 1973, Dr. French stated: “ . clinically the man was stable, subjectively improved, although clinically and laborato-rily stable.”

Mrs. Reed testified that Reed was a “real vivacious person” and that his shortness of breath “was more of an aggravation to him more than anything else. . . . ” Reed played golf regularly with the son of the insurance agent, Maurice Newton, who sold Reed the policies. Reed also worked with Mr. Newton’s son. Mrs. Reed said her husband never missed a day of work.

At the suggestion of Mr. Newton, Reed was examined by Dr. James Allen Crow. Dr. Crow was. selected by Mr. Newton and had previously made medical examinations for Southern Farm. The examination was initially used by Southern Farm in issuing policy # 599092, but was later used in issuing policies # 605402 and # 605403.

Reed and Dr. Crow signed a form entitled, “Statement to Medical Examiner” dated May 20, 1974. This form contains the representations on which Southern Farm has based its cause of action. Another form entitled, “Report of Medical Examiner” was signed by Dr. Crow only. In this report, Dr. Crow diagnosed Reed as “normal” and stated he had “clear” lungs.

Southern Farm contended Reed answered the following questions in the “Statement to Medical Examiner” willfully and with the intent to deceive Southern Farm: (1) “Have you ever been in a hospital, clinic, sanatorium, or institution for observation, diagnosis, operation or treatment?” Reed answered “No.”; (2) “Have you ever had x-ray, electrocardiogram, blood studies, or other diagnostic tests?” Reed answered “No.” ; (3) “To the best of your knowledge and belief, have you ever had or been told that you had: asthma, emphysema, hayfever, chronic cough, spitting of blood, tuberculosis, or any disease or disorder of the lungs or respiratory system? ” Reed answered “No.” ; (4) “Have you ever had high blood pressure, chest pains, shortness of breath, heart murmur, or any disease or disorder of the heart or circulatory system? ” Reed answered “No.”; (5) “Have you consulted or been treated or examined by any physician or practitioner for any other causes in the past five (5) years? ” Reed answered “No.”; and, (6) “Do you now have any abnormality, deformity, disease or disorder, or, are you receiving treatment or taking medication of any kind? ” Reed answered “No.”

In order to avoid a policy of insurance on the grounds of misrepresentation, the insurer must plead and prove (1) the making of the representation; (2) the falsity of the representation; (3) that the false representation was material to the risk; (4) that the insurer relied on the false representation in issuing the insurance policy; and (5) that the false representation was made willfully and with the intent to deceive or defraud the insurer or made willfully and with the intention of inducing the insurer to issue the policy. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (1947); Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.1964); Bynum v. Signal Life Insurance Company, 522 S.W.2d 696 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); First Continental Life & Accident Co. v. Bolton, 524 S.W.2d 727 (Tex.Civ.App.—Houston (14th Dist.) 1975, writ ref’d n. r. e.). The insurer must prove each of these five elements. If it does not meet its burden on any one, the cause of action fails.

The trial court found in favor of Southern Farm on elements one and two, but against it on elements three, four and five. Neither party contends the trial court erred in its findings on the first two elements.

With respect to element five, the trial court found Reed did not make any of the false representations willfully and with the intent to deceive Southern Farm.

Southern Farm contends the trial court erred because the intent to deceive was established as a matter of law. Southern Farm relies on Texas Industrial Trust v. Lusk, 312 S.W.2d 324 (Tex.Civ.App.—San Antonio 1958, writ ref’d). There the court stated: “ . . . The utterance of a known false statement, made with intent to induce action, in our opinion, is equivalent to an intent to deceive. . . . ” Southern Farm urges that since it is certain Reed knew his representations were false and the false representations were made with the intent to induce the insurer to take action in the form of an insurance contract, it follows that the intent to deceive is established as a matter of law. We disagree.

Element five requires a finding that the false representation was made willfully and with the intent to deceive or defraud the insurer or that the false representation was made willfully and with the intention of inducing the insurer to issue the policy. In Lusk, there was a finding on inducement but not on deception. The court concluded that a finding on inducement was equivalent to a finding on deception in view of the other affirmative findings. In the present case, the trial court did not make a finding on inducement, but did make a specific finding on the issue of intent to deceive. The holding in Lusk is therefore distinguishable and inapplicable.

We disagree with Southern Farm’s contention for the additional reason that the issues of intent to induce and intent to deceive are questions of fact and not of law. First Continental Life & Accident Co. v. Bolton, 524 S.W.2d 727 (Tex.Civ.App.— Houston (14th Dist.) 1975, writ ref’d n. r. e.); Bynum v. Signal Life Insurance Company, 522 S.W.2d 696 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); Empire Life and Hospital Insurance Company v. Shannon, 415 S.W.2d 532 (Tex.Civ.App.—Amarillo 1967, no writ).

Southern Farm also contends the trial court’s findings on intent to deceive are against the great weight and preponderance of the evidence. We have considered the entire record and conclude the trial court’s findings are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660 (1951).

In its last point of error, Southern Farm contends the award of attorney’s fees to appellees is improper because the appellate fees are not conditional on the appel-lees prevailing at the appellate level. The judgment provided:

“It is further ordered, adjudged and decreed by the Court that FRANCES REED do have and recover judgment of and from SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY in the sum of Three Thousand Seven Hundred Fifty and No/100 ($3,750.00) Dollars as attorneys fees.
It is the further order of this Court that if such case is not appealed, the said judgment must be credited with the sum of One Thousand and No/100 ($1,000.00) Dollars on the attorney’s fee leaving recovery for attorneys fees herein in the sum of Two Thousand Seven Hundred Fifty and No/100 ($2,750.00) Dollars.
It is the further order of this Court that if this case is appealed to the Court of Civil Appeals and said case is not carried by appeal or writ of error to the Supreme Court of Texas, that said judgment must be credited with the sum of Five Hundred and No/100 ($500.00) Dollars leaving a recovery for attorney’s fees in the sum of Three Thousand Two Hundred and No/100 ($3,250.00) Dollars.”

Southern Farm cites King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.) and T. L. Hastings v. American General Insurance Company, 547 S.W.2d 360 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.) in support of its contention. King Optical and Hastings are distinguishable from the present case in that the party awarded the attorney’s fees was not completely successful on appeal. Appellees here have been successful. See Liberty Sign Company v. Newsom, 426 S.W.2d 210 (Tex.1968). In view of the disposition of this case, we hold any error in awarding attorney’s fees is not reversible error. Rule 434, T.R.C.P.

We have carefully examined Southern Farm’s remaining points of error and find no merit in them. They are overruled.

Judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

WALTER, Justice.

The appellant insurance company has called our attention to the fact that our opinion contains a misstatement of the facts in that we said, “Prior to his death, Reed agreed to set aside the waiver of premium disability benefit”. We acknowledge the mistake and it is deleted from our opinion. Mrs. Reed’s testimony reveals policy # 599092 was in fact paid and is not in issue on this appeal.

We have considered appellant’s other assignments in its motion for rehearing and find no merit in them. The motion is overruled.


author: WALTER, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. James H. ASHLEY et ux., Appellees.
    No. 5105.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 16, 1978.
    Rehearing Denied March 9, 1978.

      Hubert W. Green, Jack Hebdon, James E. Barden, San Antonio, Wayne E. Babler, St. Louis, Mo., Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for appellant.
    Pat Maloney, San Antonio, for appellees.
   WALTER, Justice.

James H. Ashley and wife, Bonnie Ashley, filed suit against Southwestern Bell Telephone Company, Chester L. Todd, David E. Burchett, and Joe Cochran alleging the defendants entered into a conspiracy to invade their privacy, wrongfully invaded their privacy by the unlawful use of their long distance records, and were guilty of wiretapping and eavesdropping. The court directed a verdict in favor of all the individual defendants on all claims. The court instructed a verdict for Bell on the conspiracy and the unlawful use of plaintiffs’ long distance records and overruled its motion for an instructed verdict on the wiretapping and eavesdropping count.

The Ashleys recovered a $1,000,000 judgment against Bell for actual and exemplary damages based on their alleged cause of action for wiretapping and eavesdropping. Bell has appealed.

Special Issue No. 1 and the jury’s answer thereto are as follows:

“SPECIAL ISSUE NO. ONE
After November 15, 1974, did Southwestern Bell Telephone Company, acting by its agents, servants and employees, engage in the furtherance of its business, by wire tapping and/or eavesdropping, intercept telephone conversations between Plaintiffs, James H. Ashley and Bonnie Ashley, and other persons?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer: Yes ”

In Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), the court said:

“Measured by these considerations, we follow the rule that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted.
In an alternative holding, the court of civil appeals denied petitioner’s recovery of damages for mental suffering in the absence of resulting physical injury, citing Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, and Fisher v. Carrousel Motor Motel, Inc., 424 S.W.2d 627 (Tex.1967). These cases do not support the court of civil appeals holding in view of our present holding that the invasion of privacy is a willful tort which constitutes a legal injury. Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done to the plaintiff’s body. Olan Mills, Inc. of Texas v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962); Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438; Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 291 P.2d 194; Prosser, Torts 4th Ed., Right of Privacy, § 117. The right of privacy is a right distinctive in itself and not incidental to some other recognized right for breach of which an action for damages will lie. A violation of the right is a tort.
Petitioner next contends the trial court erroneously disregarded certain jury findings because such findings were supported by the evidence. The trial court granted the judgment non obstante vere-dicto, not because the jury findings were not supported by the evidence, but because petitioner’s cause of action was for invasion of privacy, that wire tapping is an invasion of privacy and no cause of action can be maintained in the courts of this State for an invasion of privacy. As noted, we are of the view this was erroneous.”

The telephone company contends the court erred in rendering judgment for the Ashleys because there is no evidence to support the jury’s answer to Special Issue No. One.

Appellees say:

“The Appellant makes much of the fact that pictures of an employee climbing the pole were not obtained by the Appellees and, therefore, such claim against them as to invasion of privacy is meaningless. It is untrue that the matter was proven by Appellees only circumstantially, but, to the contrary, much ‘hard evidence’ was obtained through the comments and testimony of executives holding sensitive managerial positions involving security operations, including Mr. Louis Bailey, superior to T. 0. Gravitt, Deceased; Mr. T. 0. Gravitt, head of Texas, Mr. Ashley’s closest friend; Mr. Sommer, division manager of Waco; Mr. Hohman, division manager of Austin; Mr. Brookmole, division manager of Midland; Mr. Robinson; and Mr. Mason, executives in Dallas, Texas; all with strong evidence and testimony that Bell was wiretapping.”

The Ashleys sought recovery in this case for wiretapping and eavesdropping after November 15, 1974. James H. Ashley was an employee of Southwestern Bell for about twenty-five years. He was general commercial manager in San Antonio at the time of his dismissal in 1974. He testified he had listened to thousands of conversations at the direction of “Mother Bell”; he professed to be as expert in the field of interception of oral communication as anyone he knew; and, he considered himself to be an expert with reference to the functioning of the telephone company. He was asked:

“Q After living in that house for over a year in which you contend you were wiretapped day after day, you don’t have a single photograph, you don’t have a note, you don’t have a scratch of the pencil, you don’t have anything to evidence those claims and contentions, do you?”
He answered:
“A I don’t have anything but the certain knowledge that I was wiretapped.”

James H. Ashley testified substantially as follows:

T. 0. Gravitt was a well-known company official, but I did not meet him until December, 1964. I consider him to be the most outstanding executive I ever met in the Bell system. At the time of his death, he was vice-president of Texas and held that position a little over a year prior to his death. I was a close confidant of Mr. Gravitt. Mr. Gravitt and I discussed intimate matters about the operation of the company. He and I discussed the matter of wiretapping within the Bell system during the weeks prior to his death. He told me Bell was wiretapping me personally. He told me this on several different occasions. Sometime in the spring of 1974 was the first time he told me I was being wiretapped. He stated he had incurred the enmity of the security organizations and they were attempting to find anything on any of his friends that could be used against him and he was aware they had embarked on a campaign of wiretapping me.
The next time Gravitt told me Bell was wiretapping me was during a discussion about Bell using the F.B.I. in an attempt to get some information to discredit Gravitt.

Ashley was asked:

“What did Mr. Gravitt say?”

And he answered:

“He was angry, hurt. He expressed the opinion to me that there was absolutely nothing at all that the ex-intelligence agents of the security people would stop at in order to achieve their ends or the ends of those who gave them instructions, and he again informed me that, I remember, that I was wiretapped, and that from then on we must begin a system of talking to one another by code and by safe telephone.”

Ashley continued to testify substantially as follows:

The next time Mr. Gravitt told me that I was being wiretapped by Bell was the week of the Oklahoma-Texas game “after my suspension on June the 9th”. Gravitt told me about a conversation he had with L. C. Bailey, Vice-President of Bell, who was Gravitt’s boss.

Ashley was asked:

“What did he say, Mr. Ashley?”

And he answered:

“He was angry. He said, ‘Jim, I told you to use safe telephones. You didn’t.’ I said, ‘What do you mean, I didn’t?’ He said, ‘What does the name ‘Ralph Nader’ do to you?’ I advised him that I thought and I advised him that upon recollection I had only used that one time in a conversation, and I had used it on a conversation from my home and I had jokingly at the time indicated that perhaps I would just become the Ralph Nader of the telephone company or something to that effect. He informed me that Mr. Bailey had used those exact words and told him that ‘Ashley is like a puppet dangling on a string and we know more about him — ’ And he had a big laugh over it. That they knew more about me than I knew about myself and he knew everything I was doing and he knew everybody I was calling and knew what I was saying. And Gravitt protested it most strongly. He totally demanded he stop. Bailey said, ‘Stay out of it, Gravitt, it is not your affair.’ ”

Ashley continued to testify substantially as follows:

Gravitt told me that Bell was wiretapping him. He told me that a number of times.

Ashley also testified to statements made to him by people representing Bell in positions of responsibility and in managerial capacities who allegedly told him they had been confronted with evidence of his contacts with them on long distance calls by Bell. Ashley testified these people informed him that Bell knew all about their conversations and they could not afford to talk to him.

The court admitted this hearsay evidence as declarations against interest or as admissions as an exception to the hearsay rule. He also admitted this hearsay evidence not for the truth of the matter but only on the question of whether the conversations occurred.

T. 0. Gravitt died in October, 1974. Ashley’s testimony relative to his conversations with Gravitt took place sometime in the spring of 1974. The court ruled, “The only purpose for which all of this line of testimony, and all of the questioning that predates November 15th is permitted is simply to set the stage for what is happening after November the 15th”.

In Le Sage v. Pryor, 137 Tex. 455, 154 S.W.2d 446 (1941), the court said:

“Declarations of an agent or employee are admitted against the principal or employer as an exception to the hearsay rule and to make them admissible the facts must bring them clearly within the limitations of the exception. Not only must such declarations be made within the course of the employment, but they must bear close relation to the performance of an authorized duty or act in connection with which they are made. They must not be purely voluntary or made merely in casual conversation. Hinson v. Ely Walker & Co., 65 Tex. 103; Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197; McCormick & Ray’s Texas Law of Evidence, pp. 658-662, Sec. 508.”

In Deaton & Son v. Miller Well Servicing Co., 213 S.W.2d 944 (Tex.Civ.App.—Amarillo 1950, no writ), the court said:

“Some very definite rules governing the admissibility of declarations of agents or employees as against the principal or employer are laid down in Fletcher Cyclopedia Corporations, Volume 2, beginning on page 723, Section 734. Such authority is recognized by the Texas courts as well as many other jurisdictions. Some of the pertinent rules there stated are: (1) that the fact of agency must be established before the declarations can be admitted and such agency must be established by evidence other than the declarations of the alleged agent; neither can the authority of an alleged agent be established by the declarations, acts or conduct of such agent alone; (2) that the admission or declaration must have been made in regard to a matter within the scope of the authority of the agent; (3) that it must appear that the alleged agent, at the time he made the declarations, was engaged in executing the authority conferred upon him, and that the declaration related to and was connected with the business then pending; such declaration must be made officially and not as an individual; (4) that the declaration must be made contemporaneously with the act to which it relates or practically so and a declaration as to past events is not admissible; (5) that the declaration must be of such a nature as to be part of the transaction, either accompanying the act or must be of such a nature as to unfold its character or quality; (6) that the declaration must be one of fact as distinguished from a mere expression of an opinion.”

In Southland Corporation of Texas v. Doss, 408 S.W.2d 557 (Tex.Civ.App.—San Antonio 1966, no writ), the court said:

. . Since the statement by the manager was made two or three days after the accident, it amounted to a mere narration of past facts and was not admissible against defendant. Southwestern Telegraph & Telephone Co. v. Gotcher, 93 Tex. 114, 53 S.W. 686 (1899); Edwards v. Montgomery Ward & Co., Tex.Civ.App., 270 S.W.2d 432, wr. ref. n.r.e.”

In 2 McCormick & Ray, Texas Evidence § 1121 (1956), it is said:

“Leading text-writers have taken the view that the sole purpose of admissions is to impeach the contentions made by the admitter in the present action. In other words, they perform the same function against a party which prior contradictory statements perform against a witness. They are used, not to prove the truth of the facts asserted, but to discredit the party. This contention, however, is contrary to the overwhelming weight of authority. The courts have not only drawn a distinction between prior contradictory statements of witnesses and admissions of parties but have relied upon admissions as affirmative substantive evidence, sufficient in many instances to support a cause of action or defense.
It being an established fact that admissions are received as evidence of the truth of the matter asserted in them, the conclusion is inevitable that they fall within the prohibition of the hearsay rule and are received as an exception to that rule . . ."

Ashley’s testimony that Gravitt told him that Bailey told Gravitt, “Stay out of it, Gravitt, it is not your affair” and Ashley’s testimony that Gravitt told him, “that from then on we must begin a system of talking to one another by code and by safe telephone” would indicate Gravitt was not acting within the scope of his authority in making admissions on behalf of Bell. It does not appear that Gravitt was engaged in exercising authority conferred upon him by Bell or that his declarations related to Bell’s then pending business. Neither does it appear that such declarations were made officially. All of the declarations were made with reference to past events.

We hold Ashley’s testimony relating to conversations he had with Gravitt concerning wiretapping and eavesdropping by Bell was erroneously admitted. Ashley’s testimony relative to statements made to him by district managers and people in responsible positions with Bell was also erroneously admitted because it did not come within any exception to the hearsay rule. Big Mack Trucking Company, Inc. v. Dickerson, 497 S.W.2d 283 (Tex.1973).

The record conclusively establishes Bell has the technological capacity to wiretap, eavesdrop, and intercept telephone conversations. However, we find no evidence to support the Ashleys’ allegations that Bell wiretapped their telephone and intercepted telephone conversations between them and others. The evidence of wiretapping related to instances when Bell cooperated with law enforcement officials and toll fraud matters, and instances unrelated to the fact submitted in Special Issue No. One.

Mrs. Duval, a next-door neighbor of the Ashleys for about two years, testified substantially as follows:

Beginning in October of 1974 through March of 1975, Mr. Ashley frequently used our telephone. He would use our phone on an average of once a day. Some days they would make several calls. He had an active telephone at the times he was using our telephone. The reason he used our phone rather than his own was “They felt their phone was tapped”. After Mr. Ashley was dismissed, he sold their home to Mrs. O’Mara.
In the summer of 1975, three of us were by our driveway by the flower bed and there was an instrument found. By the three of us, I mean Mrs. O’Mara, a telephone serviceman and me. The instrument appeared to be something like a battery. It looked like a battery to me. “I am not sure what it was.”- It was about six or seven inches tall and approximately four across. The serviceman dropped the instrument back into the flower bed where we were discussing it. It was not dug into the flower bed. It was just laying by an air conditioning unit. This was in the yard where the Ashleys used to live. The Bell telephone man said this instrument could have been something used for wiretapping. In about three weeks, the Ashleys came to our house and I gave them the instrument or battery that we found.

With reference to the methods of wiretapping, James H. Ashley testified:

“A Mr. Maloney, there are two ways to wiretap. Number one is at the customer’s physical premises. That is the only way you can do it, right at the customer’s premises without the cable pair numbers. If you want to wiretap at any other location it’s an impossibility without cooperation of the telephone company to get the exact cable pairs. There’s no way you can do it. No way.
Q Now is that because the telephone company alone has a cable pair number? Is that what you’re telling us?
A In their assignment office, in .their cable records, they have the pair number and there is no way, and I recognize I’m setting myself up to challenge later, but I’ll say again, there’s no way outside of doing it right at the customer’s house that it can be done without the cable pairs and cooperation of someone within the telephone company. So if there’s any wiretap located anywhere outside of right at the customer’s premises, there has to be telephone company personnel help or they have to get the records from the telephone company.”

Mr. Ashley testified about the battery substantially as follows:

We had the battery. It was just a regular battery. I had seen dozens. It had two screw-type terminals. That is all I know about it. I was advised to lock it in a safe place and I did. I placed this battery in this locked place sometime in September or October of 1975. My contention is that somebody placed the battery in the flower bed and it was left there for someone to find in conjunction with the wiretap. I knew the battery was a Bell product and I think it is a Bell product used in a wiretap. I don’t-know whether it was placed by a Bell service representative or a hired agent. I don’t have any idea who placed it there.
I locked the battery in a file drawer in my office in Blanco, Texas, and it disappeared.

Ashley’s expert witness, Patterson, testified substantially about the battery:

In my opinion, the battery found in the flower bed could be significant in the field of wiretapping, but without examining it I could not give an absolute opinion. No one showed me the battery. Today is the first time I have been asked about the battery.

Mrs. Duval’s testimony concerning the use of her telephone by the Ashleys does not constitute any evidence of probative value on the facts submitted in Special Issue No. One. Her testimony the Ashleys “felt their phone was tapped” was erroneously admitted because it was not admissible under any exception to the hearsay rule.

The court’s charge on circumstantial evidence informed the jury: “A fact may be established by circumstantial evidence when it is fairly and reasonably inferred from other facts proved.”

May we infer from this circumstantial evidence relating to the battery in connection with other circumstances in evidence that Bell’s agents, servants or employees wiretapped or eavesdropped and intercepted conversations between the Ash-leys and other persons? We hold this cannot fairly or reasonably be inferred and the battery evidence does not constitute any evidence of probative value.

Appellees rely on Garrett v. Standard Fire Insurance Company of Hartford, Connecticut, 541 S.W.2d 635 (Tex.Civ.App.— Beaumont 1976, writ ref. n.r.e.). The court said:

“. . . See Joy v. Liverpool, London & Globe Ins. Co., 32 Tex.Civ.App. 433, 74 S.W. 822, 825 (San Antonio 1903, writ ref’d), wherein the court held:
‘In the proof of an issue of such a character as arson, involving, as it does, such moral turpitude and criminal intent, every circumstance tending to prove the guilt of the party charged with the commission of the offense is admissible in evidence.’ ”

We approve the authority quoted, but hold the battery evidence does not constitute a circumstance tending to prove any of the facts set out in Special Issue No. One.

Mrs. Stokes’ testimony about letting two men, one a Bell repair man, into the Ash-leys’ home to repair their telephone in October, 1974, the testimony about noises and cross-talk on the Ashleys’ telephone, and all the other circumstantial evidence relied on by appellees has been considered, and we find these circumstances do not tend to prove the facts in issue in Special Issue No. One. The evidence has been considered according to the standard set out in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974):

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is more than a scintilla of evidence. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (1960).”

Referring to their expert witness, Patterson, in their Response to Appellant’s Reply Brief, appellees say:

“. . . Mr. Patterson’s opinion that Appellees’ phone had been wiretapped had technical and scientific support, namely, the two wires near the telephone in the wall of the house. Because of Mr. Patterson’s experience with wiretaps and phone electronics in general, his opinion that the Ashleys’ phone had been tapped was helpful to the jury . . . ”

Patterson was asked:

“Q Right. With reference to your electronics background, do you hold yourself out as an expert in that field insofar as the ascertainment of wire tappings is concerned?”

And he answered:

“A I have been considered by most everybody to be in an electronics expert in the field of wire tapping.”

Patterson testified substantially as follows:

I met Mr. Ashley and he requested me to determine if his telephone was wiretapped. I didn’t have any equipment with me at the time, but I went to his house and examined several of his instruments and particularly one that we found that had a wiring problem. This was in the latter part of 1974. I examined two or three of his telephones. I found nothing significant about the telephones in the garage and bedroom. I examined the telephone in the kitchen area between the kitchen and the den and found a built-in two-line set. I took this one out of the wall and found a maze of wiring there. Not having my equipment, I could not determine what I had found. I found an attachment to the black and red wire “which it is possible to turn a telephone into a room bug, and I advised him of this.” This significant attachment had two extra wires. This was the first time I had ever seen a telephone like that. It was a unique phone that fit into the wall and had the ability to have two lines on it. I could see no reason why those two wires should be attached to the black and red wire.
Over a month later, I made a further investigation of the two wires and that would have been the first or second week in January, 1975, when I was over here with my equipment.
“. . . It’s not like a regular hand set. It was built into the wall, so we took it out of the wall and I went directly to the place where the — where these microphone wires terminate that goes around the hook switch so that — to determine whether or not that indeed it was tapped at the time.
THE COURT: At that time.
—at that time. And I then traced the two wires out by placing a 1,000-cycle tone so that I could trace the wires, and we traced this particular extra wires out that had been drilled through to the back of the wall to the outside of his house. Now, when I went around to the outside of the house I found these two wires that had been cut at that time, so they were going nowhere, and — ”
I arrived at an opinion as to whether or not Ashley’s telephone had been tapped. My opinion was “that there’s no other explanation that could be made for those particular extra wires ... for those two particular extra wires being on that telephone other than someone trying to receive some type of surreptitious interception of oral communication within the house itself.”
It is my opinion it had been tapped at some time.

He was asked the following questions and he gave the following answers:

“Q All right, sir. Could you be definitive as to what time it had been tapped—
A No, sir.
Q —in the way of a time frame?
A No, sir, I couldn’t because there’s no way I could have — in other words, the first that I — that I looked at the phone I knew the wires should not be there. The second time that I checked it with the instruments to trace the wires the exterior wires in the back of the house had been cut, so there’s no way I could say definitely at what time it was there.” I am going to say at some time that telephone was tapped. “I said before in 1975 that there was a high degree of probability that it was indeed tapped.”
“A I say could, but I am going to say stronger than could, and only because I wasn’t pinned down and asked. You’ve pinned me down and asked. I’m going to say that at some time somebody — I don’t know who it was — tapped that phone.
Q You haven’t the slightest idea who that was?
A I have no idea.
Q If it was?
A There’s no way I could, no sir. I never found the wire going anywhere; I found them cut.”

He continued to testify substantially as follows:

I did not find a tap the first time I checked Ashley’s telephone and I didn’t find a tap when I came back in January of 1975. The last time I checked it, I found evidence that it had been tapped at some time.

We have concluded the evidence creates nothing more than a mere surmise or suspicion on the Ashleys’ allegations of eavesdropping and wiretapping. We find no evidence to support the answers to Special Issue No. One.

The judgment is reversed and judgment rendered that the Ashleys take nothing.


author: ROBERTSON, Justice.

text:
    Mrs. Manuel MENDOZA, Individually and as next friend for her minor daughter, Andrea Mendoza, Appellant, v. Dr. Harold H. VARON, Appellee.
    No. 19403.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 17, 1978.
    Rehearing Denied March 22, 1978.

      Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Jerry P. Jones, Robert D. Campbell, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   ROBERTSON, Justice.

Mrs. Manuel Mendoza, individually and as next friend of her minor daughter, Andrea Mendoza, sued Dr. Harold H. Varon, seeking damages for injuries sustained by Andrea as a result of Dr. Varon’s alleged medical malpractice. A take-nothing judgment was rendered upon a jury verdict that found that Dr. Varon was not negligent in his treatment of Andrea, and Mrs. Mendoza now appeals. We affirm.

The chain of events underlying the present dispute began when Mrs. Mendoza took her daughter, Andrea, to her pediatrician for treatment of a rash on her leg. During that visit, Andrea was seen by another physician who, after noting Andrea’s obesity and obtaining an elevated blood pressure reading, referred her to Dr. Varon for treatment. After examining Andrea, Dr. Varon prescribed a combination of drugs which was apparently intended to reduce Andrea’s weight without blood pressure stimulation. After a few weeks of treatment, Andrea began to experience nausea, which became increasingly severe after several months on continued medication. The testimony regarding Dr. Var-on’s knowledge and reactions to Andrea’s difficulties is in conflict. Shortly before treatment by Dr. Varon was discontinued, Andrea’s nausea attacks began to occur more frequently, and often included violent vomiting and stomach spasms which lasted throughout the night. According to expert testimony adduced at trial, the result of this repeated vomiting and nausea was an inflammation and scarring of the sphincter valve between Andrea’s stomach and esophagus. This inflammation and scarring allegedly limited the effectiveness of the valve so that it could no longer keep the contents of the stomach from entering the esophagus. The entry of stomach contents produced further scarring, which, in turn, led to further regurgitation. At trial, Mrs. Mendoza claimed that Andrea’s condition resulted from Dr. Yaron’s negligence in prescribing treatment for various unjustified conditions, prescribing the particular combination of drugs for the treatment period, failing to monitor Andrea’s response to treatment, and in failing to discontinue or reduce the drug therapy after learning of Andrea’s nausea.

The appeal presents four basic issues: first, we must decide whether the trial court erred in overruling Mrs. Mendoza’s motion for mistrial when one of the jurors on the panel was disqualified pursuant to article 2133(6) of the Texas Revised Civil Statutes; second, we must determine whether the trial court erred in excluding testimony that Dr. Varón and one of his expert witnesses were insured by the same insurance company, and that the expert’s insurance premiums would be affected by any judgment rendered for Mrs. Mendoza; third, we must decide whether portions of material which underlay the testimony of Dr. Varon’s expert witness was improperly excluded from evidence; and finally, we must determine whether the jury’s findings of no negligence are against the great weight and preponderance of the evidence.

The Motion for Mistrial

Mrs. Mendoza’s first argument is that the trial court erred in overruling her motion for mistrial when one of the jurors was disqualified under the provisions of 'article 2133(6) of the Texas Revised Civil Statutes. On the fourth morning of the trial, the court was informed that sheriff’s deputies were present with an arrest warrant for one of the jurors. The alleged offense was a felony. According to Mrs. Mendoza’s arguments, the juror was disqualified to serve under the provisions of article 2133(6), which provides that, in order to be a competent juror, a person “must not be under indictment or other legal accusation of theft or any felony,” and the trial court erred in allowing the trial to continue.

Whatever the merits of this argument may be in other cases, we conclude that Mrs. Mendoza has waived her right to present it here. After being informed of the warrant, the trial judge advised counsel that he would discharge the juror and proceed to trial with eleven jurors. However, after discussing the potential problems of continuing the trial with an eleven-member panel when a 10-2 verdict is permissible, counsel for both parties agreed that the trial should proceed without discharging the disqualified juror. The trial court honored the agreement and the sheriff’s officers were asked to wait until the verdict was returned and the jury discharged before making the arrest. Mrs. Mendoza did not move for a mistrial based upon the disqualification until an adverse 10-2 verdict had been returned. By urging the court to continue the trial, Mrs. Mendoza not only waived her right to assert error by failing to object, but also expressly consented to the action; a party may not secure reversal for an error that she invited. Dickson v. J. Weingarten, Inc., 498 S.W.2d 388 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Yaeger v. Long Bros. Drilling Co., 147 S.W.2d 276 (Tex.Civ.App.—San Antonio 1941, writ ref’d).

Although Mrs. Mendoza urges that the doctrine of waiver is not available to defeat the rights of the minor in this case, we cannot accept this contention. Rule 44 of the Texas Rules of Civil Procedure provides that a next friend or her attorney may settle suits and agree to judgments “and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.” If the next friend is authorized to settle and agree to judgments on the minor’s behalf, surely she can also make binding strategic decisions in an effort to secure relief. We recognize that the next friend may not agree to anything which benefits her individual claim at the expense of the minor’s right to recover; see Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795, 797 (1954); cf. Greathouse v. Fort Worth & Denver City Ry. Co., 65 S.W.2d 762 (Tex.Com.App.1933, holding approved) (next friend cannot agree to judgment under circumstances where his interest conflicts with that of the minor, and record shows that agreement was fraudulently induced); Wright v. Jones, 52 S.W.2d 247 (Tex.Com.App.1932, holding approved) (next friend’s attorney cannot waive issuance and service of citation on minor); however, there is no evidence in this case that Mrs. Mendoza’s decision to proceed with trial was designed to further her individual claim to the detriment of her daughter’s rights. The interests of Mrs. Mendoza and her daughter were not in conflict, and the record shows that, at the time the decision to proceed was made, both counsel felt that it was in the best interest of all parties to retain the juror on the panel despite his technical disqualification. Under these circumstances, we hold that Mrs. Mendoza’s agreement to proceed with the trial waived any right to subsequently challenge the presence of the disqualified juror on the panel, either in her individual capacity or as next friend of her minor daughter.

Insurance

As her second argument, Mrs. Mendoza urges that the trial court erred in excluding testimony that Dr. Varón and one of his expert witnesses were insured by the same insurance company. She asserts that this exclusion violated the rule that facts tending to show interest or bias on the part of a witness are admissible even though they disclose that the defendant may be protected by insurance. See South Texas Natural Gas Gathering Co. v. Guerra, 469 S.W.2d 899, 914 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Barton Plumbing Co. v. Johnson, 285 S.W.2d 780, 781 (Tex.Civ.App.—Galveston 1956, writ ref’d); Aguilera v. Reynolds Well Service, Inc., 234 S.W.2d 282 (Tex.Civ.App.— San Antonio 1950, writ ref’d). However, the rule established by these cases is substantially more limited than that urged here. In each of the cases, the witness was either an agent, employee or owner of the defendant’s liability insurer. The holdings thus properly state the established rule that the relevancy of showing that a witness is an employee or agent of the defendant’s liability insurer outweighs the danger of prejudice from injecting the element of insurance into the proceedings. See 2 McCormick and Ray, Texas Law of Evidence § 1539 (2d ed. 1956); McCormick, Evidence § 40, at 83, v. 5 (1954); see also Annot., 4 A.L.R.2d 761, 779 (1949).

In the present case, however, the witness had no direct interest in the outcome of the litigation, as would an agent, owner or employee of the defendant’s insurer. While it is true that a large judgment against any doctor will probably affect the insurance rates of other physicians, this interest is remote, and any proof of bias básed upon that interest is outweighed by the prejudice caused by informing the jury of the defendant’s insurance protection. Accordingly, this case falls within the rule that testimony calculated to inform the jury of the' defendant’s insurance coverage is inadmissible, Rhoden v. Booth, 344 S.W.2d 481, 487 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.), and the trial court did not err in excluding this line of inquiry.

Exclusion of the Letters

Mrs. Mendoza next argues that the trial court erroneously excluded from evidence certain letters written by experts who testified at trial. The letters were furnished to Dr. Bailey, an expert witness for Dr. Varón, by Dr. Varon’s attorneys. According to Mrs. Mendoza’s argument, Dr. Bailey testified that he relied upon the letters in formulating his opinion, and the letters were thus admissible to show the basis for his opinion. Even assuming the admissibility of the items, however, their exclusion was not reversible error. Each of the doctors who wrote the letters was present and testified at trial, and Mrs. Mendoza’s counsel was given full opportunity to develop and question their testimony. Substantially all of the admissible evidence contained in the letters was elicited from the authors by direct and cross-examination. Any error in excluding evidence is harmless when the excluded matter is merely cumulative of facts already in evidence. Bolin Oil Co. v. Staples, 496 S.W.2d 167 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.); Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.). Since hypothetical questions based upon previous testimony could have been used to cross-examine Dr. Bailey even though the letters were excluded, Mrs. Mendoza’s right to cross-examination was not prejudiced.

On oral argument, Mrs. Mendoza’s counsel argues that the exclusion also denied him the opportunity to cross-examine Dr. Bailey regarding possible bias against Mrs. Mendoza. The letters contained numerous remarks which strongly disapproved of Dr. Varon’s treatment of Andrea, together with various inflammatory remarks derogating Dr. Varon’s competence as a physician. According to counsel’s argument, these remarks may have prejudiced Dr. Bailey against Mrs. Mendoza’s claim and the exclusion of the letters erroneously precluded cross-examination on this subject. We cannot agree with this contention.

The conduct and extent of cross-examination is entrusted" to the sound discretion of the trial court, and its ruling will not be disturbed unless it is arbitrarily and unreasonably made. Austin Road Co. v. Ferris, 492 S.W.2d 64, 74 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n v. Garza, 308 S.W.2d 521, 523 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.). Although some of the letters strongly disapproved of Dr. Varon’s treatment of Andrea and included various other derogatory remarks, we- cannot say that Dr. Bailey necessarily would have been biased against Mrs. Mendoza because of those statements. Indeed, if these letters influenced Dr. Bailey at all, they are more likely to have prejudiced him in favor of Mrs. Mendoza, than against her. Since they were sharply critical of Dr. Varón, any limited value these statements would have had for cross-examination was more than offset by their prejudicial nature. Consequently, we cannot say that the trial court abused its discretion in precluding these inquiries.

The Evidentiary Challenges

As her final argument, Mrs. Mendoza urges that the trial court erred in rendering judgment upon the jury’s answers to Special Issue No. 1 because the answers were so against the great weight and preponderance of the evidence as to be manifestly unjust. In response to Special Issue No. 1, the jury found that Dr. Varón was not negligent in:

(1) prescribing treatment for labile hypertension without sufficient medical basis to do so;
(2) prescribing treatment for secondary aldosteronism without sufficient basis to do so;
(3) prescribing the types and/or combination of drugs prescribed for the period of time prescribed;
(4) failing to monitor the patient’s response to treatment; or
(5) failing to discontinue and reduce drug therapy upon learning that the patient was complaining of nausea.

Mrs. Mendoza has a heavy burden to discharge under this argument, for she must demonstrate that the verdict was contrary to the great weight of evidence adduced at trial so as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). While her assertions properly invoke the fact finding power of this court, Traylor v. Goulding, 497 S.W.2d 468 (1973), this power is very limited. We may not set aside a jury verdict merely because the evidence is conflicting, or because we might have reached a different result from that attained by the jury. Carter v. Carter, 5 Tex. 93, 101-102 (1849); Ryan v. Morgan Spear Associates, Inc., 546 S.W.2d 678, 685 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). The evidence relating to each finding will be examined separately.

Prescribing Treatment for Labile Hypertension

The jury found that Dr. Varón was not negligent in prescribing treatment for labile hypertension (intermittent high blood-pressure). Mrs. Mendoza argues that the evidence clearly demonstrates the injustice of this finding, citing the testimony of her expert witness, Dr. Eichenwald, and that of Dr. Bailey, an expert witness for Dr. Varón. Dr. Eichenwald testified that he found no evidence of labile hypertension in Dr. Varon’s notes; neither did he find evidence of hypertension in the notes of Andrea’s previous physician. Dr. Bailey agreed with this conclusion. Dr. Eichen-wald further testified that a finding of hypertension would not conform to the accepted standards of practice in the community.

Against this evidence, we must consider the testimony of Dr. Varón and Dr. Maha-ney. Dr. Varón testified that Andrea was referred to him by another physician who informed him of Andrea’s obesity and alarmingly high blood pressure readings. According to Dr. Varón, Andrea’s first blood pressure reading at his office was elevated, although it returned to normal later in the examination. Dr. Varón testified that, at the time of diagnosis, he was under the impression that Andrea had exhibited recurrent tendencies toward high blood pressure readings, and that he had received this impression from conversations with the referring physician. Even Dr. Ei-chenwald, Mrs. Mendoza’s expert witness, admitted that the readings obtained upon Andrea’s initial examination were consistent with a diagnosis of labile hypertension, assuming that Andrea’s medical history disclosed intermittent high blood-pressure.

Dr. Varon’s diagnosis is supported by the testimony of Dr. Mahaney, who stated that both readings obtained in Dr. Varon’s initial examination of Andrea were hypertensive readings, considering Andrea’s age. He further testified that Dr. Varon’s diagnosis was reasonable under the circumstances.

While the evidence relating to the diagnosis of labile hypertension is in conflict, the resolution of this conflict was within the province of the jury. Their finding of “no negligence” is not against the great weight and preponderance of the evidence.

Prescribing Treatment for Secondary Aldosteronism

The jury’s second finding was that Dr. Varón was not negligent in prescribing treatment for secondary aldosteronism (excessive hormonal secretion by the adrenal gland in response to another disorder). Again, Drs. Eichenwald and Bailey testified that Dr. Varon’s notes contained no evidence supporting a diagnosis of secondary aldosteronism, and Dr. Eichenwald further testified that Dr. Varon’s diagnosis did not meet the standard of care expected of physicians in this community. According to Dr. Eichenwald, Dr. Varon’s failure to isolate and treat the underlying disorder which caused the aldosteronism was also not in accord with local practice.

On the other hand, Dr. Varón testified that he diagnosed secondary aldosteronism on Andrea’s initial visit, and based his diagnosis upon a finding of edema (excess fluid retention in the body). Dr. Varón noted the presence of “swelling” on his progress reports, and testified that he indicated the presence of edema by this notation. He testified that frequently no cause can be isolated for secondary aldosteronism, and that this was especially true for women with fluid retention problems in association with obesity.

Dr. Mahaney testified that a finding of edema and Andrea’s historical condition of tiredness were both consistent with a diagnosis of secondary aldosteronism, and that Dr. Varon’s diagnosis was reasonable under local standards. He further stated that Andrea’s weight loss of seventeen pounds in one week would confirm Dr. Varon’s initial impression of edema, and that the extraordinary loss would also be consistent with a diagnosis of secondary aldosteronism.

Again, the evidence is merely conflicting, and, therefore, we cannot say that the jury’s finding of “no negligence” was against the great weight and preponderance of the evidence.

Prescribing the Types or Combination of Drugs

The jury’s third finding was that Dr. Varón was not negligent in prescribing the types and/or combination of drugs for the period of Andrea’s treatment. The drugs prescribed for Andrea were dyazide, aldac-tone, slow-k, and preludin. Dr. Bailey, witness for Dr. Varón, testified that he would not have recommended the combination of drugs prescribed in Andrea’s case. Although Mrs. Mendoza argues that Dr. Bailey also testified that the prescribed combination was not in accord with local standards, his testimony regarding that inquiry is ambiguous, in that he later acknowledged that he really lacked the knowledge to answer that question. Similarly, Dr. Bailey stated in his deposition that the prescription of the combined medication was “reprehensible”, but later reversed his position upon learning of Dr. Varon’s oral instructions to restrict the intake of one of the drugs. Contrary to Mrs. Mendoza’s arguments, even if Dr. Varón did not modify his prescriptions and intended their continued use, this does not negate his giving of oral advice regarding intake.

Dr. Eichenwald testified that the prescribed combination of drugs violated community standards of practice, and particularly noted that the use of preludin, an amphetamine, in a patient with hypertension, such as Andrea, was dangerous. This was because the amphetamine increases blood pressure. Dr. Eichenwald stated that the combination of the four prescribed drugs, or any two of them, could cause nausea, and that it was this drug therapy which caused Andrea’s nausea. In his opinion, Dr. Varon’s treatment constituted “conscious indifference” to Andrea’s welfare.

Dr. Webb, the physician who treated Andrea following her treatment by Dr. Varón, testified that he was amazed at the variety of drugs that Andrea was taking. He further noted his confusion regarding Dr. Var-on’s prescription of dyazide and aldactone, potassium conservatives, in combination with a potassium supplement. He testified that such a combination was not in accord with community practice.

In support of his drug treatment, Dr. Varón testified that the prescribed combination of dyazide, preludin and aldactone reduced both excess fluid and weight without blood-pressure stimulation. According to Dr. Varón, the reason for prescribing slow-k, a potassium supplement, was the major fluid loss expected with the use of dyazide and aldactone. Although dyazide and aldactone are designed to reduce body fluid without substantial potassium loss in most patients, Dr. Varón testified that the combination therapy often produces effects which are difficult to project from the single effect of each drug alone. Presumably, one of these effects was a reduction in the potassium conserving effectiveness of the two fluid-reducing drugs, dyazide and al-dactone. According to Dr. Varón, the combination of dyazide with aldactone is thought to be “very mild” in potassium-conserving qualities, and, in his experience, potassium loss has been more common than potassium excess. He further testified that the use of hypertension drugs such as dya-zide and aldactone simultaneously with the amphetamine, preludin, would offset the tendencies toward higher blood-pressure while allowing appetite suppression.

Although Dr. Mahaney testified that he did not totally agree with Dr. Varon’s treatment techniques, and that he considered Dr. Varon’s drug combination “unusual”, he concluded that Dr. Varon’s overall approach was reasonable. According to Dr. Maha-ney, the dosage of slow-k potassium supplement prescribed by Dr. Varón was small, an amount similar to the potassium contained in two bananas. He testified that most physicians who prescribed fluid-reducing medication would prescribe potassium supplements, and that fluid-reducing drugs may be prescribed over long periods of time.

Again, we cannot say that the jury’s finding was against the great weight of the evidence. Although we may have reached a different result under the same evidence, that is not a basis for reversal on appeal.

Failing to Monitor Response to Treatment

The jury’s fourth finding was that Dr. Varón was not negligent in failing to monitor Andrea’s response to treatment. Andrea had only four appointments with Dr. Varón over the five-month treatment period. Mrs. Mendoza testified Dr. Varón first learned of Andrea’s nausea and other symptoms on the third visit, in September 1975, at which time Mrs. Mendoza complained of Andrea’s problems. According to her testimony, Dr. Varón did not respond to her complaints or change his prescription scheme at that time. Andrea’s nausea became increasingly severe in December, and Mrs. Mendoza made a fourth appointment in January, 1976. She testified that she informed Dr. Varón about the severity of Andrea’s problems at that appointment and that Dr. Varón only “shrugged and said it could have been something she ate.”

Dr. Varón, however, disputes these assertions of his indifference. According to his testimony, he advised Andrea to reduce her intake of medication and to take antacids if her problems continued. He stated that he gave this advice at the third visit at which Mrs. Mendoza first complained of Andrea’s problems. Dr. Varón further testified that, from the beginning of Andrea’s treatment, he made it clear that Mrs. Mendoza was to telephone him if Andrea needed assistance. However, Andrea admitted on cross-examination that neither she nor Mrs. Mendoza ever tried to call Dr. Varón to inform him of her difficulties.

The major risk associated with the drug therapy was hyperkalemia (high serum potassium), and Dr. Varón testified that he ran a serum-potassium test on Andrea’s third visit in September, 1975. At that time, she was not hyperkalemic. Mrs. Mendoza was concerned with the cost of testing, and had advised Dr. Varón that she did not want any tests conducted unless they were absolutely necessary. Dr. Mahaney testified that, in view of Mrs. Mendoza’s limited financial resources, Dr. Varon’s monitoring of Andrea’s conditions was reasonable under local community standards.

The jury’s finding on this issue is not against the great weight of the evidence. It was within the jury’s province to accept the testimony supporting Dr. Varon’s characterization of the facts over that urged by Mrs. Mendoza.

Failing to Discontinue or Reduce Drug Therapy

The final jury finding was that Dr. Varón was not negligent in failing to discontinue or reduce drug therapy upon learning that Andrea was complaining of nausea. Dr. Eichenwald testified that he normally discontinued medication as soon as a patient reported nausea. However, Dr. Varón testified that, pursuant to Andrea’s complaints at her September, 1975 appointment, he instructed her to reduce her intake of medication. Neither Mrs. Mendoza nor Andrea contacted Dr. Varón again until January, 1976, even though Andrea’s nausea had substantially increased well before that appointment. Significantly, the issue asks whether Dr. Varón was negligent in failing to discontinue or reduce Andrea’s drug therapy; since Dr. Varón testified that he instructed Andrea to reduce her intake, the jury was entitled to believe him, especially since he was not contacted for further treatment until after Andrea’s condition had become much more severe. We cannot say that the jury’s finding of no negligence was against the great weight and preponderance of the evidence.

Affirmed.


text:
    Garry E. ADAMS, Individually, and d/b/a Famous Carpet Mills, Appellant, v. Joe E. MARSH et ux., Appellees.
    No. 5117.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 23, 1978.

      Thomas L. Hooton, Dallas, for appellant.
    Guy W. Hull II, Guy W. Hull II & Associates, Garland, for appellees.
   WALTER, Justice.

Mr. and Mrs. Joe E. Marsh recovered a judgment in a nonjury trial removing cloud from title to their real estate caused by the recording of a purported affidavit for Mechanic’s and Materialman’s Lien by the defendant, Garry E. Adams. Plaintiffs also recovered $1,000.00 damages for slander of title. Adams has appealed.

In his findings of fact, the court found:

“3) that Defendant on the 27th day of January, 1975, filed in the office of the County Clerk of Dallas County, Texas, a document entitled Affidavit for Mechanic’s and Materialman’s Lien and that said document on its face showed it was signed by Defendant on the 22nd day of January, 1975, and notarized on same said date;
4) that there existed no prior written contract for services signed by Plaintiffs and Defendant;”

Adams contends the court erred in his findings of fact No. 3 for the reason Adams was not acting in his individual capacity when he signed the affidavit for the Mechanic’s and Materialman’s Lien but was acting in his capacity as president of Famous Carpet Mills, a corporation. The defendant in this case is Garry E. Adams and not Famous Carpet Mills. He also contends the court erred in not applying the two-year statute of limitations.

Adams did not plead the two-year statute of limitations. A plea of limitations is an affirmative defense which must be pleaded or it is waived. Rule 94, T.R.C.P.; McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ).

The affidavit is signed as follows:

“s/ Gary Adams Claimant
Bv s/ Thomas Hooton Attorney
SUBSCRIBED AND SWORN TO BEFORE ME on this date 22nd day of January. 1975.
s/ Sunnv S. Wilson
Notary Public in and for Dallas County, Texas”

The only evidence in this record that Adams was acting for the corporation and not in his individual capacity comes from Adams who is an interested witness. The general rule is that the testimony of an interested witness does no more than raise an issue of fact. There are exceptions to this rule which do not apply because the documentary evidence contradicts Adams’ testimony. Cochran v. Wool Growers Central Storage Co., 166 S.W.2d 904 (Tex.1942).

We hold there is evidence of probative value which supports the court’s finding of fact No. 3.

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

The judgment is affirmed.


text:
    L. C. WILSON et ux., Appellants, v. George GOLMAN et al., Appellees.
    No. 5126.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 23, 1978.
    Don Hinds, Yarborough, Hinds, Shahan & Snyder, Dallas, Robert H. Fields, Fields, Fields & Hardee, Athens, for appellants.
    Thomas C. Unis and John E. Phillips, Strasburger & Price, Dallas, for appellees.
   WALTER, Justice.

L. C. Wilson and his wife, Ruth Hayn Wilson, filed an application for a permanent injunction and sought damages against George Golman, Don Golman, Julius H. Coleman, individually and d/b/a By-Lo Wine Beer and C G & G, Inc., a corporation, seeking to enjoin them from selling liquor, to-wit: beer, wine, ale and malt liquor on property conveyed to them subject to a covenant contained in a deed to a predecessor in title which provided:

“. . . that the premises hereby conveyed shall not for a period of twenty-five (25) years from the date hereof be used for the operation of a liquor store thereon. . . .”

The court denied the injunction and the Wilsons have appealed.

No findings of fact or conclusions of law were requested by the appellants.

In City of Abilene v. Meek, 311 S.W.2d 654 (Tex.Civ.App.— Eastland 1958, writ ref’d), the court said:

“It is elementary that when the appellant contests the trial court’s judgment without requesting findings of fact or conclusions of law, we must assume that the trial court’s findings were all in support of its judgment; and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law.”

Does the term “liquor store” contained in the restrictive covenant prohibit By-Lo Wine Beer from selling beer, wine, ale and malt liquor?

Appellees operate a business located on the premises in question. They sell beer, wine, ale and malt liquor. Their business is also referred to as a convenience store and they sell gasoline, snack foods and other non-food items. The total sale of beer and wine constitutes 48.93 percent and other merchandise constitutes 51.07 percent of their total sales volume. Appellants contend by securing a permit from the Texas Alcoholic Beverage Commission and selling beer, wine, ale and malt liquor, appellees are violating the restrictive covenant in that they are using the property “for the operation of a liquor store thereon.”

Joe Darnall, Assistant Administrator for the Texas Alcoholic Beverage Commission, testified substantially as follows:

A business with a permit to sell beer and wine which sells groceries, gasoline, beer and wine, but not distilled spirits is referred to as a convenience store as distinguished from a liquor store. A liquor store is one where distilled spirits are sold by the package for consumption off the premises. This is the commonly known and accepted definition of that term in Texas, both within the industry and the general public.

In Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941), the court said:

“Restrictive clauses in instruments concerning real estate must be construed strictly, favoring the grantee and against the grantor, and all doubt should be resolved in favor of the free and unre-strictive use of the premises.”

In Atkins v. Fine, 508 S.W.2d 131 (Tex.Civ.App.—Austin 1974, no writ), the court said:

“Words used in restrictive covenants are to be taken in their ordinary and popular sense. 26 C.J.S. Deeds § 163. A further aid to construction, if necessary, is expert testimony. It may be considered to establish the meaning of trade terms or terms that are used in a local sense, if the meaning is not otherwise plain. . . . ”

We hold the court properly concluded the sale of beer, wine, ale and malt liquor was not a violation of the restrictive covenant prohibiting the property from being used for the operation of a liquor store.

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

The judgment is affirmed.