author: DOUGLAS, Judge.

text:
    Ex parte Clay Dee PAGE.
    No. 58162.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 5, 1978.
    Emmett Colvin, Dallas, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P. Petitioner was convicted of the offense of unlawful delivery of a dangerous drug, diazepam. His punishment was assessed at two years, probated.

After reviewing the application for a writ of habeas corpus, the trial court made findings that the indictment was fatally defective under this Court’s holding in Henderson v. State, 560 S.W.2d 645 (Tex.Cr.App.1977).

An examination of the record indicates that petitioner was convicted for the offense of delivery of a dangerous drug, diazepam. He is entitled to relief in view of the fact that there is no longer any penalty provided for such offense. See Henderson v. State, supra; Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977); Riddle v. State, 560 S.W.2d 642 (Tex.Cr. App.1977).

A fundamentally defective indictment may be challenged by post-conviction writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1977).

For the reasons stated above, conviction of the trial court in Cause No. F-77-6038KL is set aside and the relief sought is granted.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    DALLAS COUNTY, Texas, Appellant, v. Willie R. ROMANS, Appellee.
    No. 1096.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 26, 1978.
    Rehearing Denied March 3, 1978.

      W. F. Denman, Jr., Asst. Dist. Atty., Dallas, for appellant.
    Leland Dennis, III, Bean, Francis, Ford & Wills, Dallas, for appellee.
   DUNAGAN, Chief Justice.

The appellee, Willie R. Romans, brought this workmen’s compensation case against Dallas County, Texas. Romans was employed as a turn-key at the Dallas County Jail on December 22,1975, when the alleged injury occurred. The medical testimony was to the effect that the pushing on the steel door in the turn-key’s booth brought on a heart attack suffered by Romans.

On the day in question, Romans was scheduled to work an eight hour shift beginning this day at 2:30 p.m. A meeting was regularly held ten minutes before each shift was going on, so Romans was actually set to start work at 2:20 p.m.

Romans actually came to the jail in uniform about 1:15 p.m. He was talking to the turn-key on duty during this time and at about 2:00 p.m. Romans agreed to relieve this turn-key for a few minutes while he excused himself to go to the bathroom. While Romans was relieving the turn-key presently on duty, he suffered the heart injury.

The jury found the injury to be in the course of employment and found all issues submitted in Romans’ favor.

The major question to be determined on appeal is whether or not this injury was suffered in the course of employment. Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8309, sec. 1 provides that the term “injury sustained in the course of employment” shall “include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

This definition embraces two elements: (1) the injury must be of such kind and character as had to do with and originated in the employer’s work and (2) had been suffered while the employee was engaged in or about the furtherance of the affairs of the employer. Kimbrough v. Indemnity Insurance Company of North America, 168 S.W.2d 708, 709 (Tex.Civ.App.—Galveston 1943, writ ref’d); Walker v. Texas Employers’ Insurance Association, 443 S.W.2d 429, 431 (Tex.Civ.App.-Fort Worth 1969, error ref’d); McKim v. Commercial Standard Insurance Company, 179 S.W.2d 357, 358 (Tex.Civ.App.-Dallas 1944, writ ref’d).

In our view, the injury suffered by Mr. Romans falls within both elements of the definition. Mr. Romans was doing the very job that his contract of employment called for him to do. The injury resulted from Romans’ moving the steel door that was an activity his job required him to do. Certainly Mr. Romans was furthering the affairs of his employer in taking the place of the turn-key on duty. No other person was available to relieve the turn-key that was presently in the booth. Mr. Romans testified that when asked by an employee of equal rank to take his place in the booth, he felt compelled to do so. The very nature of the job required someone to relieve the person on duty to enable him to go to the bathroom, and in this instance Mr. Romans was available to take the position in the booth. Romans was not an hourly employee and did not punch a time clock. He was on call twenty-four hours a day, and was required to attend a meeting that began before his scheduled shift was to begin. This fact alone shows that the shift was not rigidly observed even by Dallas County.

The appellant relies upon several cases where an injury has been held to be non-compensable because it was not suffered in the course of employment. We agree with the holdings in these cases but we believe the cases are distinguishable upon the facts. The first of these cases is Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (Tex.1963). In this case, Bottom regularly drove a truck for Safety Convoy Company. Bottom also leased a truck he owned to Safety Convoy Company. The injury occurred in a highway accident involving Bottom as he returned from having his truck greased and repaired. The court in holding that this injury was not suffered in the course of employment stated that Bottom was acting in a personal capacity as lessor at the time of the accident. Therefore, his injuries did not have to do with and originate in the business of his employer as required by art. 8309, sec. 1.

In City of Austin v. Johnson, 525 S.W.2d 220 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.), an employee learned that his job was to be terminated on October 1, 1971. The employee’s widow contended that this news caused emotional distress or worry that caused or contributed to a fatal heart attack suffered by the employee on September 20,1971. The injury was held to be noncompensable in that worry and anxiety over job loss is not connected with what a workman has to do in performing his contract of service.

In Lesco Transportation Co., Inc. v. Campbell, 500 S.W.2d 238 (Tex.Civ.App.—Texarkana 1973, no writ), Campbell filed a common law tort action against Samuel Warren and Leseo Transportation Company. Campbell allegedly suffered personal injuries as a result of the negligence of Warren and Leseo, Inc., at a time when Warren was changing oil in the engine of a truck leased by Warren to such company. Both Campbell and Warren were employees of Leseo. Also, both Campbell and Warren were lessors and by written instruments they had leased trucks they owned to Leseo, Inc. Campbell’s injury was held not to have occurred in the course of employment since changing the oil in a truck was the act of a lessor, and not of an employee of Leseo.

Leseo embodies the requirements of art. 8309, sec. 1, dealing with injuries in the course of employment, in somewhat different language than the statute itself contains and the cases we have previously cited use. In Leseo, it is stated that as a general rule, a compensable injury arises only when it is shown (1) that the injury has to do with and originated in the employer’s business; and (2) was received during a period of time when the injured employee was required or authorized by the contract of employment to be actually engaged about or in furtherance of the employer’s work or business, and is actually so engaged when injured. See also Superior Insurance Co. v. Jackson, 156 Tex. 61, 291 S.W.2d 689, 691 (1956); Jones v. Casualty Reciprocal Exchange, 250 S.W. 1073,1074 (Tex.Civ.App.—Texarkana 1923, writ ref’d).

Whether this second requirement of a compensable injury stated above imposes a stricter requirement than merely being in the furtherance of the affairs or business of the employer is not reached in this case. Romans did receive this injury during a period of time when he was authorized by his contract of employment to be actually engaged about or in the furtherance of the employer’s work or business and he was so engaged.

The testimony showed that Romans had relieved other turn-keys that were on duty before his shift many times before. Also, Romans testified that he had been relieved from his duties in the turn-key booth many times before by other employees. The appellant put on no testimony contradicting these statements. There is no testimony in the record stating that the appellant prohibited this relieving of employees, although it seems reasonable that the appellant would have been aware of such practice. We realize that Romans has the burden of proving that he was acting in the course of employment. However, we feel that the above evidence is sufficient to establish that the appellant impliedly authorized Romans to relieve the turn-key on duty.

In the case of Texas Employers’ Ins. Ass’n v. Davidson, 295 S.W.2d 482 (Tex.Civ. App.-Fort Worth 1956, writ ref’d n.r.e.), Mrs. Davidson was an hourly employee that chose to eat her lunch at her sewing machine. Mrs. Davidson was not paid for her lunch hour and was free to do as she pleased during this period. Her injury occurred after she finished eating her lunch and was walking to deposit her trash in a waste barrel. The injury was held compen-sable on the theory that she was acting in the course of her employment because the employer had impliedly invited or authorized her to eat her lunch on the premises. In our case, we feel that Dallas County impliedly authorized Romans to relieve his fellow employee in the turn-key booth.

“Also, it is not required that the injury should have occurred during the hours of actual service . . . .” Insurance Company of North America v. Estep, 501 S.W.2d 352, 354 (Tex.Civ.App.-Amarillo 1973, writ ref’d n.r.e.); Texas Employer’s Ins. Ass’n v. Anderson, 125 S.W.2d 674, 677 (Tex.Civ.App.-Dallas 1939, writ ref’d).

We are required to give the Workmen’s Compensation Act a liberal construction. Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 74 (1922). In deciding whether there is evidence of probative force to support the finding that Romans was acting within the course of his employment when he suffered this injury, we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We find that there is evidence of probative force to support this finding. Accordingly, appellant’s points of error 2, 3, 4, 5,15,16,17,18, 19 and 20 are overruled.

The jury found that the injury suffered by Romans was received while in the course of employment. The definition submitted in the court’s charge was that “Injury in the course of employment means any injury having to do with and originating in the work, business, trade or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.” This definition follows the language of art. 8309, sec. 1, subd. 4, Tex.Rev. Civ.Stat.Ann., and was approved in Texas Employers’ Insurance Association v. Owen, 298 S.W. 542, 544 (Tex.Com.App.1927). Appellant’s points of error 8, 9, 10, 11 and 12 are overruled.

The appellant requested the following issue and tendered it in writing to the court:

“State whether or not you find the injury claimed by Willie R. Romans was brought about by a risk which is incident to and arose out of the task that Romans had to do in fulfilling his contract for service and to which Romans would not have been subjected but for his contract of service.”

The trial court properly refused to submit this issue. The issue is an inferential rebuttal issue and Rule 277, Tex.R. Civ.P., directs that inferential rebuttal issues shall not be submitted. See also Scott v. Atchison, Topeka & Santa Fe Railway Co., Tex., 21 Tex.Sup.Ct.J. 126, 129; Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971). Appellant’s sixth point of error is overruled.

The appellant also prepared and tendered to the trial court an instruction that was worded in substantially the same form as the issue that the trial court refused to submit and that we have previously discussed. Under the facts in this case, we cannot say that the trial court’s refusal to instruct the jury in this manner was error, and even if such refusal was error, the error was not one that was reasonably calculated to cause and probably did cause the rendition of an improper verdict in the case. Rule 434, Tex.R.Civ.P. Accordingly, appellant’s point of error No. 7 is overruled.

The appellant’s point of error No. 1 deals with the statement made by the ap-pellee’s doctor to the effect that the appel-lee was “not the kind of person who goes into suing people.” This statement is an opinion and is not properly admissible under the rules of evidence. Blanchard v. Blanchard, 293 S.W.2d 825 (Tex.Civ.App.-Waco 1956, err. ref’d n.r.e.). However, its admission is not reversible error under Rule 434, Tex.R.Civ.P., and the point of error is overruled.

Appellant’s points of error Nos. 13 and 14 deal with the reference made by appellee’s counsel during closing argument to “this insurance company.” The pleadings of both parties named Employer’s Self Insurance Service, Inc., as a party to this lawsuit. The judgment recites that the pleadings were presented to the jury. Therefore, from the record before us, it appears that the complained of argument did not inform the jury of anything it did not already know. It is well established that to inform the jury of that which it already knows does not prejudice the right of a litigant. Travelers Insurance Company v. Walston, 436 S.W.2d 582, 584 (Tex.Civ.App.-Tyler 1969, no writ); Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759 (1939). Appellant’s points of error Nos. 13 and 14 are overruled.

Judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

On motion for rehearing, the appellant urges this court to reconsider its holding that no error is shown by the trial court’s failure to submit an additional explanatory definition requested by appellant dealing with the term “injury sustained in the course of employment.” This additional explanatory definition was inadvertently referred to as an instruction in the opinion delivered by this court. We reaffirm our holding that the trial court did not err in refusing to submit the requested definition. In our opinion, the requested definition would add nothing to the definition given previously by the court. The effect of such explanatory definition would be substantially the same. Anchor Casualty Co. v. Patterson, 239 S.W.2d 904, 908 (Tex.Civ. App.-Eastland 1951, writ ref’d n.r.e.). The statutory definition of “injury in the course of employment” as set out in Article 8309, sec. 1, subdivision 4, Tex.Rev.Civ.Stat.Ann., was submitted by the trial court. We feel that this definition was sufficient and that no further definition was required to be submitted by the trial court. Thompson v. Employees Lloyds, 292 S.W.2d 643, 647 (Tex.Civ.App.-Dallas 1956, writ ref’d n.r. e.). Accordingly, we adhere to our original decision. Appellant’s motion for rehearing is respectfully overruled.


author: WARD, Justice.

text:
    FORD MOTOR COMPANY, Appellant, v. K. E. TIDWELL, Appellee.
    No. 6658.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 22, 1978.
    Appellee’s Motion for Rehearing Denied and Appellant’s Rehearing Denied March 22, 1978.
    Appellee’s 2nd Motion for Rehearing Denied April 12, 1978.

      Stubbeman, McRae, Sealy, Laughlin & Browder, Rodney W. Satterwhite, David K. Brooks, Midland, for appellant.
    Dan D. Sullivan, Andrews, Shafer, Gilli-land, Davis, Bunton & McCollum, Inc., Stephen L. Brannan, Odessa, for appellee.
   OPINION

WARD, Justice.

This case is presented on appeal as one involving the breach of an implied warranty in the sale of a new Ford automobile. Trial was to a jury, which determined that the car was not fit for the ordinary purposes for which automobiles are used, and which then fixed the amount of damages and attorney’s fees incurred. Based upon the verdict, the trial Court entered judgment for the Plaintiff against the car manufacturer, Ford, for triple damages and attorney’s fees as provided by Section 17.50, Tex.Bus. & Comm.Code. A take nothing judgment was entered in favor of the car dealer, which had also been joined as Party-Defendant. The manufacturer, Ford, appeals and we reverse and remand.

K. E. Tidwell sued Carl Sewell Motor Company, as the dealer, and Ford Motor Company, as the manufacturer of a 1973 station wagon, which he purchased on September 17, 1973, alleging a breach of the express written warranty given by Ford to the Plaintiff on the purchase of the automobile, a breach of the express verbal warranty given by Sewell that it would fully service and repair any defects in the automobile, and a breach of the implied warranties of fitness and merchantability “that said automobile would be adequate and sufficient for the purposes for which it was manufactured.” Ford answered, alleging that the only warranties involved were express warranties which it denied it had breached. Upon trial, the two Defendants’ testimony was to the effect that they jointly furnished a written warranty to the Plaintiff which provided that for a period of twelve months or 12,000 miles, whichever occurred first, the selling dealer would repair or replace free of charge any part found to be defective. This written warranty provided that it was in place of all other warranties, express or implied, including any implied warranty of merchantability or fitness. Somewhat surprising in the face of his own pleadings, but not so in the face of this testimony, the Plaintiff then denied that he had ever had a written warranty, and relied, instead, only upon the implied warranty of merchantability, Tex. Bus. & Comm.Code Sec. 2.314, claiming the damages for a breach of such an implied warranty under Secs. 17.50(a)(2) and 17.-50(b)(1), Tex.Bus. & Comm.Code. As indicated previously, the jury accepted the Plaintiff’s version and first found that the warranty booklet for the automobile was not delivered to the Plaintiff at the time of the purchase, and then found in favor of the Plaintiff’s theory of breach of implied warranty of merchantability.

Ford Motor’s first point on appeal is to the effect that there was no basis of liability against it, as there was no privity of contract between it and the Plaintiff. The point was written before the decision was made in Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977). The point is overruled as that case decided that a manufacturer can be responsible, without regard to privity, for the economic loss which results from its breach of the Uniform Commercial Code’s implied warranty of merchantability.

Ford Motor’s second point is to the effect that the trial Court erred in its submission of Special Issue No. B regarding the Plaintiff’s theory of breach of implied warranty of merchantability, and that the issue did not inquire as to the unfitness of the automobile at any particular time. No proof was offered that the implied warranty was of any continuing nature or for any fixed period of time. Under such circumstances, any such implied warranty relates to the time of sale and does not cover future defects not in existence at such time or inherent in the article sold. Kriedler v. Pontiac Division of General Motors Corporation, 514 S.W.2d 174 (Tex.Civ.App.-Texarkana 1974, writ ref’d n. r. e.). While that proposition of law as to implied warranty is settled, Ford’s complaint is that Plaintiff’s Special Issue No. B failed to set the specific time of sale as the subject of the inquiry. However, we do not find that Ford Motor ever called the defect to the trial Court’s attention. Tex.R.Civ.P. 272, 274. Ford Motor Company did object to Special Issue No. B on the ground that it was “an incomplete submission of a theory of recovery on the basis of any breach of implied warranty of fitness for an ordinary purpose.” Such an objection was too general, as it nowhere appraised the trial Court that Ford Motor was complaining that the inquiry as to unfitness of the automobile be limited to September 17, 1973, the date of the sale. The trial Court committed no error in overruling that objection. Tex.R.Civ.P. 274; 3 McDonald, Texas Civil Practice, Secs. 12.29.1, 12.29.3.

Appellant next points to paragraph 9 of its Objections to Court’s Charge as a basis for preservation of its claimed error. This objection is to the effect that:

“The Defendants object to the Charge of the Court as a whole for the reason that said Charge does not submit an issue or inquire into whether or not the Ford Stationwagon was reasonably free of material defects and workmanship on the day it was sold to Plaintiff.”

As we interpret this objection, it is in no way related to the issue submitted on the breach of the implied warranty of fitness, but is an objection relating to the charge which did submit a series of issues on the Appellant Ford’s defensive theory that it had given an express written warranty in connection with the sale. In that regard, Special Issue No. 1 inquired from a preponderance of the evidence if the 1973 Ford was “not free of defects in material and workmanship upon the date it was sold to Plaintiff.” This issue, as written, fully complied with Ford’s Objection No. 9, and Appellant Ford cannot now be heard to state that Objection No. 9 was meant to complain of Special Issue No. B, which submitted the wholly separate theory of implied warranty of merchantability. Though that issue on implied warranty did not inquire as to the unfitness of the automobile at any particular time, that complaint was waived and the second point is overruled. Tex.R.Civ.P. 274.

After the purchase of the car on September 17,1973, the Plaintiff experienced trouble with the horn, which malfunctioned and blew when he was not in the car; he had trouble with the weather stripping around the windows; the cruise control would go off when other electrical equipment was activated; and a defect was noted in the rear electric window lift. The Plaintiff also noted that something was wrong with the front end as it made a noise and a click when the car was turned to the left. The Plaintiff returned the car to the dealer for repairs of these defects on November 6, 1973, after the car had been driven some 1,194 miles, and, according to the Plaintiff, the horn and the weather stripping were fixed, though he continued to notice window noises when he drove at highway speeds. The cruise control was fixed, but the control for the rear electric window was never repaired. As to the front end, the dealer’s testimony was that at that time the steering gear was removed, all internal parts of the steering mechanism were cleaned, and it was reassembled and installed with new seals. The Plaintiff testified that the clicking noise in the front end was repaired, but that he had to return the car to the dealer again on December 7th after the car had been driven some 2,289 miles. The main complaint at that time was that he was observing a problem with right turns, that is, after making a right turn, it was hard to recover or to straighten out again. Thereafter, on the next three or four occasions that he brought the car in for repairs, his serious complaint was of this defect in making his right turns; that he was experiencing this turning difficulty on approximately half of his turns; and that it was dangerous as it resulted in his wife running off of the road or running into the curb on several occasions. Of most importance as to this turning defect was that he was clear in his statement that it was only after the dealer had worked on the steering gear on November 6th that he first noticed this dangerous problem. Although the car was returned to the dealer three or four other times, and although the dealer at one time installed a complete new steering gear assembly, this defect was never corrected and the dangerous condition in the car continued. Because of this, the Plaintiff stored the car in May, 1974, after driving it some 7,000 miles.

In testifying as to his damages, the Plaintiff stated that in his opinion the car was worth only $1,000.00, and a reading of all of his testimony was that he was making this valuation based upon all of the defects which occurred or developed during the nine months that he drove the car. Further, a fair reading of the testimony is that, of the defects which made the automobile unfit for the ordinary purpose for which it was to be used, the main one was the dangerous condition connected with the steering which did not appear until after the mechanism was worked on by the dealer on November 6th. This is of importance because the Plaintiff and his wife were the only ones that established their complaints, and both readily admitted that they had no mechanical experience. There was no testimony offered as to what caused the serious turning defect.

Because the Plaintiff relied only on the theory of implied warranty, he had the burden of proving that the article was defective at the time it left the hands of the manufacturer or seller. At the same time, he did not have to produce direct or opinion evidence of the defect and when it came into existence, but could rely on circumstantial evidence. Barnett v. Ford Motor Co., 463 S.W.2d 33 (Tex.Civ.App.-Waco 1970, no writ). In this case, the Plaintiff did produce evidence that some of the defects did exist at the time that he bought the automobile. However, as to the main item, the dangerous turning defect, the evidence is not sufficient too negate the possibility that an intermediate act or agency produced that turning defect; that is, that the evidence is not sufficient to negate the possible misrepair or maltreatment of the turning mechanism by the dealer. Kriedler v. Pontiac Division of General Motors Corporation, supra at 176.

Ford Motor Company presents “no evidence” points regarding the matters that we have just discussed. First, that there was no evidence that the vehicle was unfit at the time it left the manufacturer, and, second, that there was no evidence to support the jury finding that the value of the car in the condition in which it was sold and delivered to the Plaintiff was $3,800.00. Having considered only the evidence and inferences arising therefrom which support the jury findings, the two “no evidence” points are overruled, as some defects were present which could have existed at the time of the sale and part of the valuation testimony did relate to those defects that then existed.

However, Ford Motor Company does have insufficient evidence points relating to those two matters. First, that the evidence was insufficient to support the finding of unfitness at the time of sale, and, second, that the evidence was insufficient to support the finding that the value of the automobile at the time of sale was $3,800.00. Having reviewed all of the evidence, and from what we have previously said, those two points are sustained.

We have duly considered Appellant’s 7th and 8th points, and they are overruled as being without merit. We note that the 9th point concerns the admissibility of Defendants’ offered testimony which would have been relevant to the issue of market value of the automobile at the time of the sale. Our opinion is that the testimony was admissible on the ground upon which it was offered, and neither the Parol Evidence Rule, nor the fact that it was contrary to the contractual price, was any bar to the offer. In the event that the offer is made again upon a retrial, the testimony should be admitted.

The judgment of the trial Court is reversed and the cause is remanded to the Court below for a retrial.

ON MOTION FOR REHEARING

The Appellee has filed a motion for rehearing and we feel that three points made in the motion deserve further discussion. In the first place, the Appellee complains that the Appellant, in its motion for new trial, made no complaint that there was insufficient evidence to support the jury finding on Special Issue No. B that the vehicle was unfit, nor did it make any complaint that the finding was contrary to the overwhelming weight and preponderance of the evidence. We have examined the motion for new trial. The Appellee is correct in his present assertion, and the Appellant failed to preserve that evidentiary point for the purposes of this appeal. Rules 374 and 418, Tex.R.Civ.P.; Samford v. Duff, 483 S.W.2d 517 at 526 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

The Appellee also points out that the evidentiary point, made in the Appellant’s brief regarding the finding that the valuation of the automobile at the time of sale was $3,800.00, was in terms that the jury finding was “contrary to the overwhelming weight and preponderance of the evidence,” while the assignment of error in the motion for new trial which complained of that finding was couched in terms that there was “insufficient evidence to support that finding.”

Lastly, the Appellee now complains that the two points which we did sustain were in terms of “contrary to the overwhelming weight and preponderance of the evidence,” and we treated and discussed those points as being “insufficient evidence points.”

We overrule the Appellee’s motion for rehearing. As to the first complaint above discussed, we note that this is the first time that the defect has been pointed out. A similar late complaint was made in Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). There, Justice Osborn pointed out that that appellee chose to do battle on the merits of the issue as it was presented in the appellant’s brief, that he lost, and that on his motion for rehearing he claimed for the first time that there should have been no battle because the issue was not properly raised in the trial Court. In holding that the appellee was not entitled to a second bite of the apple, the rule was made that the objection concerning a proper assignment in the trial Court came too late, was waived, and the motion for rehearing was overruled. Not only does the complaint come too late, but Rule 374, Tex.R.Civ.P., has been repealed effective January 1,1978, and the factual insufficiency complaint in a jury tried case may now be presented for the first time on appeal. See Rule 324, Tex.R.Civ.P. We merely note these changes without determining their specific application to this case, which was submitted before the changes became effective.

As to the other matters raised by the Appellee in his motion for rehearing and pointed out above, we note that the assignment of error and the Appellant’s point should have been stated in terms of “insufficient evidence,” as the Appellant was complaining of a finding on a special issue on which it did not have the burden of proof. That the Appellant used the term “contrary to the overwhelming weight and preponderance of the evidence” matters not. The test is the same. This Court is required to examine the whole record, not only to determine whether there is some evidence to support the jury’s finding to the special issue, but also to determine whether, considering all of the evidence, the finding is not manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 at 662 (1951). Since “insufficient” and “great weight” points invoke the same test of the evidence, a misuse of one for the other should not preclude a determination of the merits of a point of error. See O’Connor, “Appealing Jury Findings,” 12 Hous.L.Rev. 65 at 77, 82 (1974). Since we have been directed to adopt a liberal rule with reference to the construction of points contained in Appellant’s brief, and to pass on the merits of a point of error in the light of the statement and arguments thereunder, we properly treated the points which we discussed as “insufficient evidence” points and sustained them. See discussion in O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 at 114 (Tex.1976).

For the reasons stated, we overrule the points in the Appellee’s motion for rehearing which we have discussed. We have also considered the other points of error in the Appellee’s motion for rehearing, and all of the points are overruled and the motion for rehearing is denied.


author: BISSETT, Justice.

text:
    David RAMIREZ, Appellant, v. NATIONAL STANDARD INSURANCE COMPANY, Appellee.
    No. 1278.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1978.

      Glen A. Barnard, Harlingen, for appellant.
    Paul Q. O’Leary, Brownsville, for appel-lee.
   OPINION

BISSETT, Justice.

This is a workmen’s compensation case. David Ramirez, an unskilled laborer employed by a building contractor, brought this suit against National Standard Insurance Company (the workmen’s compensation insurance carrier for Ramirez’s employer) to recover for total and permanent incapacity allegedly sustained by him on or about September 17, 1975, while in the course of his employment. Suit was filed on May 20, 1976.

The case was tried to a jury. In response to the special issues which were submitted, the jury found: 1) that Ramirez received an injury on September 17, 1975; 2) that such injury was in the course of his employment; 3) that the injury was a producing cause of total incapacity; 4) that such total incapacity commenced on September 17, 1975, and ended December 4, 1975. Ramirez’s motion for judgment non obstante veredicto was overruled April 7, 1977. Judgment was entered April 14, 1977 which denied Ramirez any recovery after December 4, 1975. His motion for new trial was overruled on May 3, 1977. Ramirez has appealed.

Ramirez asserts two general points of error on appeal: 1) the trial court erred in overruling his motion for judgment non ob-stante veredicto; and 2) the trial court erred in overruling his motion for new trial. In his argument, Ramirez first asserts that there is no evidence to support the jury finding that total incapacity ended on December 4,1975; and, second, that such finding was contrary to the great weight and preponderance of the evidence.

A judgment notwithstanding the verdict is authorized under Rule 301, T.R. C.P., only when a directed verdict would have been proper. Special issue findings may be disregarded which are immaterial or have no support in the evidence. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.Sup.1967); Newitt v. Camden Drilling Company, 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ).

On or about September 17, 1975, Ramirez was employed by Linbeck Construction Company, a general contractor who was then engaged in constructing the new First National Bank Building in Harlingen, Texas. Linbeck Construction Company had workmen’s compensation insurance on its employees through National Standard Insurance Company, defendant-appellee. On the occasion in question, Ramirez was injured while he was carrying some 2" X 6" lumber across the third floor of the building when he slipped, twisted, fell, and caught his right foot and leg in a depression in the floor. He was taken to the emergency room of Valley Baptist Hospital, where he was examined and given treatment, including an x-ray of the portion of his right leg below the knee. He was then discharged from the hospital. Shortly thereafter, he went to see Dr. Olcott, a general practitioner, who referred him back to the hospital where he stayed for eight to nine days and received treatment for an injury to the right leg. He did not receive any treatment for an injury to his back. He was then released from the hospital and continued seeing Dr. Olcott and also continued visiting the hospital twice a week for physical therapy to his leg. Ramirez testified that while undergoing treatment by Dr. Olcott he complained in Spanish about the pain in his back to Dr. Olcott’s secretary, who acted as an interpreter. He further testified that Dr. Olcott neither examined his back nor treated an injury to it. Neither the hospital records nor the records of Dr. Olcott reflect any complaint by the plaintiff of back pain.

During the period when Ramirez was receiving treatment from Dr. Olcott, he (Ramirez) visited the local Legal Aid Office and filled out an injury report. In that report, no mention was made of a back injury; he complained only of his lower right leg. Ramirez, who does not speak English, also testified that the Legal Aid personnel questioned him, and during the questioning he told them about the pain in his back, but they did not write it down. The report was filled out by someone in the Legal Aid Office.

Dr. Olcott referred Ramirez to Dr. Atchi-son, an orthopedic surgeon, who saw Ramirez on November 28, 1975. Dr. Atchison testified that he asked Ramirez during the examination what areas were giving him trouble, and that he made no complaint of lower back pain. Dr. Atchison stated that his records did not show that Ramirez ever mentioned anything about his back. Ramirez, on the other hand, testified that he did complain of back trouble to Dr. Atchi-son.

Following Dr. Atchison’s examination of the plaintiff, Dr. Olcott advised plaintiff that he could return to work on December 4,1975. Ramirez replied he did not see how he could be sent back to work while he was on crutches and in such terrible pain. He then visited the office of Dr. Billner, a chiropractor, who treated him until February, 1976. In that month, Ramirez went to see Dr. Luis, a neurosurgeon. After examination, Dr. Luis determined that the vertebrae should be excised. He performed a laminectomy on March 3, 1976 to remove the problematic disc. About a week later, Ramirez was discharged from the hospital, but he returned on several occasions thereafter and complained of severe back pains. Dr. Luis then concluded that Ramirez was in pain, and that he couíd not engage in “much work” particularly strenuous “lifting, pushing, pulling, sitting for a long period of time or driving or standing a long period of time.” A further operation, according to Dr. Luis, would under the present circumstances, be of little benefit. Ramirez testified that prior to September 17,1975, he had not experienced any pain in his lower back and that since that time he had not received a new injury of any kind.

Josie Perez, plaintiff’s stepdaughter, testified that prior to September 17, 1975, Ramirez would help with the chores around the house, but that since that date he is constantly in pain; that he was unable to do any work around the house except to water the plants; that he cannot sit down for long periods of time; that he regularly took pain pills; and that he had to go to bed because of pain.

The testimony of an interested witness generally does no more than create a fact issue. Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968). The only evidence of an injury to Ramirez was the accident which occurred on September 17, 1975. Ramirez’s assertion that he complained of his back injury prior to December 4, 1975 must stand solely on his own testimony. This testimony is contradicted by the records of two physicians, and the testimony of one of them. Additionally, the records in the Legal Aid Office do not reflect that Ramirez complained of a back injury at the time he contacted that office. Dr. Olcott and Dr. Atchison each had an opportunity to examine Ramirez thoroughly with regard to the accident and neither detected an injury to Ramirez’s lower back. This evidence, in conjunction with a determination that Ramirez made no complaint concerning his back during the aforesaid period of time, certainly gives rise to an inference that no such injury occurred on that date (September 17, 1975). We hold that Ramirez’s testimony is contradicted by other facts and circumstances and merely creates a fact issue. The jury resolved the fact issue adversely to Ramirez. This Court is bound by the jury’s findings.

From a review of the entire record here presented, we conclude that there was factually sufficient evidence to support the conclusion that Ramirez did not suffer a back injury from the accident on September 17, 1975. See Lopez v. Associated Employers Insurance Company, 330 S.W.2d 522 (Tex.Civ.App.-San Antonio 1959, writ ref’d). There is ample evidence of probative value to support the jury’s finding that Ramirez’s total incapacity ended upon December 4, 1975. The finding is not against the great weight and preponderance of the evidence. Both points of error are overruled.

The judgment of the trial court is AFFIRMED.


author: ODEN, Justice.

text:
    Morris L. ROGERS, Appellant, v. Thomas W. BUTLER, Individually, and Thomas W. Butler, d/b/a Fiesta International, Inc., Appellee.
    No. 8523.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 28, 1978.
    Rehearing Denied March 28, 1978.

      Mark C. Hall, Lubbock, for appellant.
    Donald M. Hunt, Key, Carr, Evans & Fouts, Lubbock, for appellee.
   ODEN, Justice.

Appellant, Morris L. Rogers (Rogers), filed suit against appellee, Thomas W. Butler (Butler), seeking an accounting, damages and to impress a constructive trust on certain real property formerly owned by Fiesta International, Inc. Butler pleaded in defense that Fiesta International, Inc., the business Rogers desired an accounting of, was a corporation and Rogers was estopped to deny either the corporate existence or to complain of any act in which he participated. Trial was to a jury. After each side had rested the court instructed a verdict and a take nothing judgment was entered against Rogers.

In reviewing an instructed verdict case, an appellate court must consider the evidence in the aspect most favorable to the cause of the party against whom the verdict was instructed, who in this case is Rogers. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951). Considered in the aspect most favorable to Rogers, there is evidence that in the summer of 1972 Rogers and B. M. Barron (Barron) decided to open a nightclub in Lubbock, Texas. They caused- a nonexistent corporation to enter into a contract of sale to purchase a building and the lot upon which it was situated. Fiesta International Corporation was the purchaser named in the contract of sale; however, no such corporation existed. Rogers and Barron held themselves out as the president and secretary, respectively, of the nonexistent corporation and personally guaranteed its performance. Rogers and Barron, as president and secretary, respectively, executed the note evidencing the obligation to pay the full purchase price of the real property. The note was personally guaranteed by Rogers and Barron. A checking account was opened in the name of Fiesta International, Inc., and a telephone listing was procured in such name. Fiesta International, Inc., liked Fiesta International Corporation, was nonexistent. Rogers and Barron were unable to secure the requisite financing to start the business on their own whereupon they contacted Butler. Butler agreed to contributed $5,000.00 as capital and loan an additional $10,000.00. Rogers, Barron and Butler entered into an agreement styled “Venture Agreement” under the terms of which Butler agreed to advance the $15,000.00 and Rogers and Barron agreed, among other things, to transfer the contract of sale to an operating entity which would be either a corporation or a limited partnership. Butler was to be the limited partner in the event the operating vehicle was a limited partnership. In October, 1972, the parties to the Venture Agreement caused Fiesta International, Inc. to be incorporated. Rogers and Barron were both officers and directors. Butler was neither an officer nor a director. Shares of stock were never issued. A voting trust agreement was prepared under the terms of which Butler would hold all stock in trust until his loans were repaid; however, the voting trust agreement was not executed. In the fall of 1972, Barron decided to dispose of his interest in the business. Rogers and Butler both objected on the grounds that Barron did not have an equity to sell and Butler had not been repaid. Ultimately, Barron relinquished his rights in the business in consideration of $1,500.00 paid to him by Butler. The business subsisted on loans from Butler. These loans eventually exceeded $70,000.00 in the aggregate. Rogers invested little, if any, money in the business. However, he clearly managed it. In February, 1973, Butler advised that he would not continue to loan money to the business. At that time, to facilitate a sale of the business, Fiesta International Corporation assigned its interest in the contract of sale to Fiesta International, Inc. Rogers executed the assignment as president of both corporations. The business could not be sold and in March 1973, Butler advised that he would not make any additional loans unless he owned the real property. Rogers agreed and Butler purchased the real property in his individual capacity. This was effected by Fiesta International, Inc. entering into a rescission agreement with the seller whereby the contract of sale was cancelled and the seller delivering a deed to Butler. Butler made a considerable down payment on the building and was personally liable on the deferred purchase money note. Rogers executed the rescission agreement as president of Fiesta International, Inc. Butler leased the real property to Fiesta International, Inc. for a year. Rogers executed the lease as president of Fiesta International, Inc. Butler agreed, orally, that he would transfer the real property to Fiesta International, Inc. when the purchase price was paid. (This evidence is controverted; however, the evidence is viewed in the aspect most favorable to Rogers.) Fiesta International, Inc. defaulted in the payment of the monthly rentals whereupon Butler terminated the lease with Fiesta International, Inc. and leased the real property to a third party. The suit ensued shortly thereafter.

Rogers contends that the evidence, when viewed in the aspect most favorable to him, would support the submission of an issue inquiring if Rogers and Butler were either partners or joint ventur-ers at the time Butler acquired title to the building. We do not agree. The burden of proof to establish the existence of a partnership or a joint venture relationship was on Rogers and the intention of the parties is the real test as to the existence of such relationships. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1946); Holman v. Dow, 467 S.W.2d 547 (Tex.Civ.App. Beaumont 1971, writ ref’d n. r. e.). The evidence in the case establishes that neither party intended to be a partner or a joint venturer with the other. The agreement preceding the incorporation of Fiesta International, Inc. specifically provided that the contemplated business would be operated as either a corporation or a limited partnership. The parties elected to incorporate and following the date Fiesta International, Inc. came into existence all business was transacted by that entity. In fact, Rogers was transacting business in the names of both Fiesta International Corporation and Fiesta International, Inc. before he approached Butler with a view toward obtaining financing for the contemplated business. The only duty imposed upon Butler by the document styled “Venture Agreement” was to contribute and loan an aggregate of $15,000.00 to either a corporation or a limited partnership. He performed this duty and more inasmuch as he ultimately loaned the corporation in excess of $70,000.00. Rogers concedes that everything once owned by the parties as individuals or as joint venturers was owned by Fiesta International, Inc. after it came into existence. At this time the joint venture, if there ever was one, terminated under the terms of the “Venture Agreement.” Thereafter, the parties neither intended to be partners nor joint ven-turers. Rogers and Butler were stockholders in Fiesta International, Inc., even though certificates of stock were never issued. Greenspun v. Greenspun, 194 S.W.2d 134 (Tex.Civ.App. Fort Worth 1946), affm’d., 145 Tex. 374,198 S.W.2d 82 (1946). Butler’s and Rogers’ relationship was that of shareholders in a corporation rather than either partners or joint venturers.

Rogers next contends that the voting trust agreement, which was prepared but unexecuted, created a partnership. A voting trust agreement to be operative must be signed. Tex.Bus.Corp.Act Ann. art. 2.30. There is no evidence that Butler, as trustee under the proposed voting trust, ever attempted to act as trustee. The stock which should have been issued could not have been held by Butler as trustee under a voting trust until a voting trust agreement was executed by all parties. Since there was no voting trust agreement, Rogers’ point with respect thereto will be overruled. In any event, the existence of a voting trust agreement is immaterial inasmuch as we have already held that Rogers and Butler did not intend to be partners.

Rogers’ Point of Error No. 3 pertains to the duty Butler would have owed him had their relationship been that of either partners or joint venturers. This point is immaterial inasmuch as we have already held there was no such relationship.

Assuming that Butler was a de facto officer and director, which we are not prepared to do, the only duty he would owe in connection with the purchase of the building would be to the corporation, not Rogers. That duty would be to act fairly and free of fraud. A contract between a corporation and one or all of its officers is not void per se but may be avoided for unfairness and fraud. Zorn v. Brooks, 125 Tex. 614, 83 S.W.2d 949 (1935); Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715 (1961); Western Inn Corporation v. Heyl, 452 S.W.2d 752 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.). There is no evidence in the record that Butler acted unfairly or fraudulently when he purchased the real property. Fiesta International, Inc. cannot complain of the sale because all of its shareholders participated therein. Popperman v. Rest Haven Cemetery, Inc., supra. Butler and Rogers were the only shareholders at the time Butler purchased the real property and they both participated in the sale and purchase. Rogers’ participation was in his capacity as an officer, director and shareholder of Fiesta International, Inc. Butler’s participation as a shareholder of Fiesta International, Inc. is implied inasmuch as he purchased the real property.

Rogers next contends that the court should impress a constructive trust on the real property because of certain oral statements attributed to Butler. The evidence viewed in the most favorable aspect to Rogers established that Butler agreed to reconvey the building to Fiesta International, Inc. when the purchase money debt was paid. A constructive trust escapes the unquestioned general rule that land titles must not rest in parol but before the court will impress a constructive trust on land there must be strict proof of a prior confidential relationship and unfair conduct or unjust enrichment on the part of the wrongdoer. Rankin v. Naftalis, 21 Tex.Sup.Ct.Jour. 9 (Oct. 5, 1977). The evidence establishes that the promise was made in favor of Fiesta International, Inc. The corporation is not a party to this case. Furthermore, there is no evidence which would support a finding that Butler acted unfairly or that he was unjustly enriched. The trial court correctly held that Rogers was not entitled to impress a constructive trust on the real property.

Rogers’ last complaint is lodged against the court granting Butler’s motion in limine that» Rogers be prohibited from introducing an appraisal report into evidence. The erroneous granting of a motion in limine is not of itself reversible error. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963); Zoner v. Hertz Equipment Rental Corporation, 523 S.W.2d 765 (Tex.Civ.App. Houston—14th Dist. 1975, writ ref’d n. r. e.). Error is not shown in the exclusion of evidence unless the record clearly shows by bill of exception or otherwise what the evidence would have been if admitted. Central Power & Light Company v. Martinez, 493 S.W.2d 903 (Tex.Civ.App. Corpus Christi 1973, no writ). The record in this case does not disclose what the evidence would have been and Rogers’ point is overruled.

The judgment of the trial court is affirmed.


author: CIRE, Justice.

text:
    JOHN P. MaGUIRE & CO., INC., Appellant, v. James A. HANNON, Appellee.
    No. 1769.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 1, 1978.

      Wendell S. Loomis, Houston, for appellant.
    Jim N. Vratis, Charles B. Kirklin, Houston, for appellee.
   CIRE, Justice.

John P. MaGuire & Company, Incorporated (MaGuire) appeals from an equitable bill of review proceeding which resulted in a judgment for appellee, James A. Hannon.

In September 1975 MaGuire filed suit on a sworn account against James A. Hannon, Marianna L. King, and John D. Moore, Sr., all trading as Northline Carpet and Floor Covering. A default judgment was taken against King and in November 1975 the court granted a summary judgment against Hannon. A non-suit was taken as to defendant Moore.

In September 1976 Hannon filed a bill of review with the trial court alleging that he had not been served with citation in the suit; that he had not authorized anyone to file an answer in his behalf; and that he first became aware of the judgment when he was served with a “motion for contempt” in June 1976. The case proceeded to trial in May 1977 and thereafter the trial court entered its final judgment on June 3, 1977, setting aside the 1975 judgment against Hannon and ordering that MaGuire take nothing as against him. The judgment against Marianna King for $3,337.39 was reaffirmed.

Counsel for MaGuire, in its brief, asserts seven points of error committed by the trial court. Appellee, however, in its first three counterpoints, challenges the sufficiency of appellant’s brief. We have examined appellant’s brief and conclude that it is inadequate. Appellant neither cites nor relies on any cases, but, instead, indulges in hypotheses to support his propositions. This method of briefing is improper, is not condoned, and the points are waived. See Austin Lake Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 343 (Tex.Civ.App.-Austin 1973, writ ref’d n. r. e.); Doss v. Blackstock, 466 S.W.2d 59 (Tex. Civ.App.-Austin 1971, writ ref’d n. r. e.). The brief fails to state the alleged errors with specificity and the textual arguments are not correlated with the proper points. See State Reserve Life Ins. Co. v. Ives, 535 S.W.2d 400 (Tex.Civ.App.-Fort Worth 1976, no writ); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.-Austin 1974, writ ref’d n. r. e.); Schad v. Williams, 398 S.W.2d 603 (Tex.Civ.App.-Dallas 1965, writ ref’d n. r. e.); Tex.R.Civ.P. 418. Additionally, appellant’s brief fails to contain a short statement of the nature of the case, the pages are not numbered, and the brief fails to contain either a subject index or list of authorities, all in violation of Rule 418. Appellee’s counterpoints challenging the sufficiency of appellant’s brief are sustained.

On the day of submission counsel for appellant filed a “Suggestion of Fundamental Error for Nonjoinder of Necessary Party” brief with this court. Specifically, appellant claims that since Marianna King was not served or joined as a party in the bill of review case, the original judgment could not properly be revised. Appellant cites several cases to support this contention. See, e. g., Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358 (1937); Wells v. Stonerock, 120 Tex. 287, 37 S.W.2d 712(1931); Tex.R.Civ.P. 39 (1967). Rule 39, however, has been amended, thus initiating a new method for resolving the question of joinder of parties. No longer are we concerned with the terms “proper,” “necessary,” “indispensable,” “insistible,” or “conditionally necessary.” It is no longer a truly jurisdictional matter; “what is involved is a question of whether the court should decline to adjudicate the dispute because certain persons are absent.” Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.Sup.1974), quoting 7 C. Wright & A. Miller, Federal Practice and Procedure § 1601, at 16 (1972). The supreme court in Cooper fully discussed the matter:

Under the provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined. Although not of controlling importance, the very title of the rule has been changed from “Necessary Joinder of Parties” to “Joinder of Persons Needed for Just Adjudication.” Subdivision (a) provides that certain persons “shall be joined,” but there is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions.

513 S.W.2d at 204. Cases subsequent to Cooper reason that nonjoinder of other parties is not fundamental error. In re Estate of O’Hara, 549 S.W.2d 233 (Tex.Civ.App.—Dallas 1977, no writ history); see McBurnett v. Gordon, 534 S.W.2d 370 (Tex.Civ.App.-Beaumont 1976, writ ref’d n. r. e.); Mere a, Inc. v. Sipkowski, 517 S.W.2d 655 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref d n. r. e.).

The trial court’s judgment is affirmed.

Affirmed..


author: CORNELIUS, Chief Justice.

text:
    Randall Dean OGILVIE, Trustee, et al., Appellants, v. Bill HILL, Appellee.
    No. 8559.
    Court of Civil Appeals of Texas, Texarkana.
    March 7, 1978.
    Rehearing Denied March 28, 1978.

      Stephen B. Early, Longview, for appellants.
    Earl Sharp, Sharp, Ward & Ross, Long-view, for appellee.
   CORNELIUS, Chief Justice.

Appellee Hill, as seller, entered into a contract of sale with Appellant Ogilvie, Trustee, as buyer, which provided for the sale of 21.37 acres of land in Gregg County, Texas. Some six months later, appellee filed suit against Ogilvie and his trust beneficiaries seeking a cancellation of the contract on the grounds that the property description was insufficient to comply with the statute of frauds, and that a certain condition relating to the construction of a road had not been fulfilled. After several amendments of the pleadings had been filed and certain discovery was accomplished, both appellants and appellee moved for summary judgment. On May 10, 1977, based upon its conclusion that the contract of sale did not comply with the statute of frauds because the property description was insufficient, the district court rendered summary judgment cancelling it.

Appellants urge that the property description was sufficient, and even if not sufficient, summary judgment should not have been granted because they were entitled to a trial on their plea for reformation of the contract.

The contract of sale described the property as follows:

“A certain 21.37 acre tract to be determined by actual survey and resulting in metes and bounds description to follow; said 21.37 acre tract being a part of the Will Davis 151.0 acre tract in the Robert H. Foote Survey, Gregg County, Texas.”

Field notes were neither attached to nor included in the contract.

For a conveyance or contract of sale to meet the requirements of the statute of frauds, it must, insofar as the property description is concerned, furnish within itself or by reference to other identified writings then in existence, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); 5 F. Lange, Texas Land Titles Sec. 762, at 154 (1961); 26 Tex.Jur.2d, Frauds, Statute of, Sec. 95, p. 252. The rule is easy of statement but difficult of application. There is considerable disparity among the decisions of our courts on the question, and it is difficult if not impossible to reconcile all of the cases, but the better and more recently accepted view is that a land description such as the one involved here, standing alone, is insufficient to comply with our statute of frauds. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948); Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264 (1886); Norris v. Hunt, 51 Tex. 609 (1879); Brown v. Mitchell, 225 Ga. 115, 166 S.E.2d 571 (1969); Laurens County Board of Education v. Stanley, 187 Ga. 389, 200 S.E. 294 (1938). It fails to furnish within itself, or by reference to other identified writings, the means whereby the land may be specifically located, and it does not fall within the recognized exception which allows a purchaser of an undescribed portion of the seller’s larger described tract to select and locate the portion so conveyed. See Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688 (1938); Dohoney v. Womack, 1 Tex.Civ.App. 354, 19 S.W. 883 (1892); Nye v. Moody, 70 Tex. 434, 8 S.W. 606 (1888); Dull v. Blum, 68 Tex. 299, 4 S.W. 489 (1887); and cases discussed in An-not., 117 A.L.R. 1086. In testing the sufficiency of the description here we have considered the contract as a whole, including the references contained in the hereinafter quoted provision concerning construction of a road. Neither can the description be deemed adequate under the rule that a reference to the ownership of the tract being conveyed may render the description sufficiently definite to comply with the statute of frauds. Although the summary judgment proof showed that the land referred to in the contract of sale was owned by appellee and was the only tract he owned in the Robert H. Foote Survey, that alone is not sufficient to bring this case within the rule. A reference to ownership must be contained in the writing itself. Kmiec v. Reagan, 556 S.W.2d 567 (Tex.1977); Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308 (1953); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Wilson v. Fisher, supra; 5 F. Lange, Texas Land Titles Sec. 762, at 159 (1961). In the contract involved here there is no reference to the ownership of the tract being conveyed, and it cannot be inferred, from the mere fact that appellee signed a contract of sale, that he was the owner of the land described. Wilson v. Fisher, supra; Starkey v. Texas Farm Mortgage Co., 45 S.W.2d 999 (Tex.Civ.App. Waco 1932, writ ref’d).

Nevertheless, in the posture of this case at the time of its disposition in the trial court, summary judgment cancelling the contract was not proper. When the minds of the buyer and seller meet as to the identity of the specific tract of land which is the subject of their contract, but by mutual mistake they misdescribe it or omit a correct description thereof, the contract may be reformed to correct the error or to supply the omission. 49 Tex.Jur.2d, Reformation of Instruments, Sec. 22, pp. 622, 623; compare National Resort Communities, Inc. v. Cain, 526 S.W.2d 510 (Tex.1975), and see also Gilbert v. Smith, 49 S.W.2d 702 (Tex. Comm.App.1932, judgmt. adopted), and Burress v. Byrd, 69 S.W.2d 529 (Tex.Civ. App. Texarkana 1934, writ dism’d). And the mutual mistake which will warrant such reformation may be either that the parties mistakenly believed the description in the contract was legally sufficient, Morrow v. Shotwell, supra; Foster v. Bullard, 496 S.W.2d 724 (Tex.Civ.App. Austin 1973, writ ref’d n.r.e.), or that field notes were intended to be, but were not, attached to the contract either at or after its signing. Shotwell v. Morrow, 498 S.W.2d 432 (Tex.Civ.App. Eastland 1973, writ ref’d n.r.e.); compare Foster v. Lessing, 346 S.W.2d 939 (Tex.Civ.App. Waco 1961, writ ref’d n.r.e.), and Norton v. Conner, 14 S.W. 193 (Tex.1890).

In the instant case, answers to interrogatories, admissions and certain statements in appellants’ affidavits opposing summary judgment make clear that the parties contracted with reference to a specific, identified, segregated tract of 21.37 acres in the Robert H. Foote Survey of Gregg County, Texas, with which all of them were familiar and which was the only tract owned by appellee in that survey. The survey had already been run and the surveyor’s field notes describing that tract were before the parties when the contract was signed, although they were not attached. Considerably in advance of the entry of judgment, appellants advised the trial court of their claim for reformation due to a mutual mistake pertaining to the omission of the field notes description, and amended their pleadings setting up that right. In those circumstances, a genuine issue of fact existed as to appellants’ right to reformation, thus precluding summary judgment of cancellation. Tex.R.Civ.P. 166-A.

The fact that the description in the contract spoke in terms of a future survey, rather than an existing one, cannot defeat appellants’ right to a trial on the merits of their claim for reformation. At most, it would raise a fact issue as to whether the scrivener erroneously referred to a future survey when the one in existence was intended, or whether the parties actually intended to have a new survey performed.

Appellee argues that even if the court erred in granting summary judgment on the ground of insufficient property description, its judgment should nevertheless be affirmed because the undisputed summary judgment evidence shows a failure to comply with a condition, the violation of which would result in the termination of the contract. The alleged condition is the following provision of the contract:

“Seller shall provide and construct a road from U. S. 259 on a line centering on the property lines of a certain 12 + acre tract belonging to Foster T. Bean and Hugh Camp to the south of said road, and a tract belonging to Johnny Cace to the north of said proposed road. Said road to extend on the same line across creek of the southeast corner of subject property. This road shall be dedicated to the County and be constructed to the specifications of the County, and shall be completed on or before closing, but not to exceed 60 days from acceptance date of this contract; however, this date may be extended if mutually agreed upon in writing by both parties.”

Conditions which may result in forfeitures or in the termination of contracts are not favored by the law and will not be decreed unless the contract contains clear and specific provisions to that effect. Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948 (1958). The contract here contains no stipulation for termination or forfeiture with reference to the road obligation. In those circumstances the provision will be construed to be not a condition but a covenant, the breach of which will result in a cause of action for damages rather than for termination. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451 (1952). Moreover, it was appellee who was obligated to construct the road. A party will not be allowed to seize upon a breach of his own agreement as grounds to terminate a contract when the other party wishes to affirm it. 17A C.J.S. Contracts Sec. 423, p. 524.

The judgment of the trial court is reversed and the cause is remanded for trial on the merits.

      . Ogilvie was trustee for John Franklin O’Dell and Jerry Clark under the terms of a certain trust indenture.

      . Tex.Bus. & Comm.Code Ann. Sec. 26.01.

      . The statements are to be taken as true in determining whether a material issue of fact exists so as to preclude summary judgment. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972); 4 McDonald’s, Texas Civil Practice, Sec. 17.26.12, p. 172.


text:
    UNITED TRACTOR, INC., Appellant, v. CHRYSLER CORPORATION, Appellee.
    No. 6714.
    Court of Civil Appeals of Texas, El Paso.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    Law Offices of Guy H. Allison, Jack K. Dahlberg, Jr., Corpus Christi, for appellant.
    Clark, Thornton & Summers, Robert B. Summers, San Antonio, for appellee.
   OPINION

WARD, Justice.

The sole question before us is whether a manufacturer-assembler, who became liable to an injured third party for negligence in failing to correct a known defect in a component part of the product, was entitled to indemnity from the manufacturer of the component part who became liable to the injured party because of strict liability under Section 402A of the Restatement of Torts 2d. The issue was submitted to the trial Court on stipulation of the facts and indemnity was denied. We affirm.

Jessie Guerrero, Jr., sued the Appellant and the Appellee, alleging that he was injured and damaged when a tow tractor struck him. The tow tractor was manufactured by Appellant, United Tractor, Inc., and contained a motor and throttle linkage manufactured by Appellee, Chrysler Corporation. Prior to the verdict, the Plaintiff settled the ease for a total sum of $30,-000.00, with United Tractor paying $7,500.00 and Chrysler paying $22,500.00. It was agreed that the issue of indemnity and/or contribution between United Tractor and Chrysler would be decided by the trial Court in accordance with the stipulated facts that:

(1) Appellee Chrysler designed and manufactured the throttle linkage in a defective condition, unreasonably dangerous to the user or consumer, and such defective condition was a producing cause of the Plaintiff’s injuries;
(2) Appellant United Tractor discovered the defect in the throttle linkage and negligently failed to take remedial or corrective action, and such was a proximate cause of the Plaintiff’s injuries.

United Tractor filed its cross-action and prayed for indemnity or, in the alternative, for contribution against Chrysler, and alleged that the Plaintiff’s injuries were caused by Chrysler’s manufacturing and design defects. General allegations were made regarding the basis for this recovery, but, according to the stipulation, Chrysler was liable only under Section 402A. Contrary to certain statements made by the parties in their briefs, contribution is not before us as United Tractor paid the lesser share of the judgment and can complain only of the refusal to indemnify.

Appellant recognizes the proposition that under the common law, as a general rule, joint tort-feasors have no right to indemnity among themselves. However, the Appellant insists that it is within the recognized exception in that it is not in pari delicto with its joint tort-feasor Chrysler, has violated no duty which it owes to Chrysler, and, under the test stated in Austin Road Co. v. Pope, 147 Tex. 430 at 435, 216 S.W.2d 563 at 565 (1949), it is entitled to recover against its co-tort-feasor, who in turn has violated a duty which it owed when it sold to it the motor with the defective throttle linkage. See Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962); Heil Company v. Grant, 534 S.W.2d 916 at 927 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.).

Depending upon the relationship existing between the parties, the theory of recovery sustained by the injured third party, and the theory of recovery used to maintain the recovery of indemnity between the tort-fea-sors, the manufacturer-assembler has sometimes been entitled to indemnity from the maker of the component part. 3A Frumer and Friedman, Products Liability, Sec. 44.-02(3)(e) (1960). In one case, indemnity was refused where the injured third party recovered against the manufacturer-assembler for negligence for having failed to provide proper specification and design for both the truck and its components. In that case, the injured party recovered against the maker of the part for negligence in failing to determine the suitability of the part in its use in the truck. There, the Court found the parties in pari delicto and refused the indemnity. Borg Warner Corporation v. White Motor Company, 344 F.2d 412 (5th Cir. 1965).

In the case now before us, we refuse the request of indemnity under the authority of General Motors Corporation v. Simmons, 558 S.W.2d 855 (Tex.1977), and for the same reasons set out therein. In the first place, United Tractor’s claim against Chrysler is for the $7,500.00 monetary damage it paid to the injured Guerrero, and is attempting to recover this economic loss under Section 402A of the Restatement of Torts 2d. This item of recovery under that Section is prohibited by Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977). In the second place, United Tractor discovered the defect and negligently failed to take corrective action, thus knowingly participating in the creation of the danger which caused the harm to Guerrero. In the third place, Chrysler’s liability was based only upon the lesser standard of proof required under Section 402A as compared to the liability of United Tractor, which was based on common law negligence.

The judgment of the trial Court which denied the indemnity is affirmed.


author: MURRAY, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Marlowe BIGLER and Wife Beatriz M. Bigler, Individually and d/b/a Dairy Kreme, Appellees.
    No. 15967.
    Court of Civil Appeals of Texas, San Antonio.
    March 8, 1978.

      Jerry R. Tucker, San Antonio, for appellant.
    Sharon Trigo, Laredo, for appellees.
   MURRAY, Justice.

This is an action for an injunction against Southwestern Bell Telephone Company, appellant, to enjoin it from laying an underground cable on or adjacent to property owned by Marlowe Bigler and wife, Beatriz M. Bigler, appellees. Upon hearing for a temporary injunction, the court below entered an order granting the temporary injunction and appellant has perfected an appeal to this Court.

Appellant, in furtherance of its business of providing long distance telephone service in the State of Texas, was in the process of laying an underground cable for long distance toll service within the public right-of-way from Zapata, Texas to Falcon Heights, Texas. Appellees are the owners and operators of a fast food service at the comer of U. S. Highway 83 and 3rd Avenue in Zapata. Appellees contend that in laying its underground cable adjacent to their property, appellant would cause “irreparable injury to appellees’ business by causing inconvenience of patrons of plaintiffs’ business through noise, dust, and inaccessability to the business.” Appellees’ contentions can be summed up by stating that they feel that they will lose some business while the actual excavation and laying of the cable is in progress, and after that, the pavement will not be adequately repaired, and that they will have future problems when holes and cracks appear where repairs were made. It is undisputed that the cable is to be laid within the right-of-way of public streets, and would not extend onto appel-lees’ property.

Appellant presents its points of error one and two under one submission. These points contend the court erred in granting the temporary injunction because the appel-lees failed to show a probable right and a probable injury and that the statutory right of appellant to use a public right-of-way cannot be restricted contrary to Art. 1416, Tex.Rev.Civ.Stat.Ann. (1962).

Art. 1416 provides as follows:

Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this State, in such manner as not to incommode the public in the use of such roads, streets and waters.

Appellees agree that this statute is applicable to the instant case where the appellant was in the process of laying a toll cable for long distance telephone service between Zapata and Falcon Heights, Texas. Since appellees sought only injunctive relief in the pleadings as filed at the time of the hearing, they must show a right superior to that of appellant to use a public street adjacent to their property. Appellees fail to allege to prove any public inconvenience and only claim that the temporary inconvenience would be to their private interest only. The right granted appellant by Art. 1416 cannot be denied because it may cause damage or inconvenience to private interests. Roaring Springs Town-Site Co. v. Paducah Telephone Co., 212 S.W. 147 (Tex.1919). In this cause the Supreme Court said, at page 147:

As heretofore construed, article 1231 [1416] of our Revised Statutes declares it to be the public policy of the state that corporations created for the purpose of constructing and maintaining long distance telephone lines shall be authorized to construct their poles, wires, etc., upon any of the public roads, streets and waters of the state, in such manner as not to incommode the public in the use of the roads, streets, and waters, and this statute is a declaration that the Legislature considers the interest of the public in convenient telephone service superior to any private interest.

We hold that the right of appellant to bury its long distance telephone line at the location in question is an absolute right subject only to reasonable regulation by the proper authorities. City of Brownwood v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163 (1913). In City of Brownwood, the Supreme Court said, at page 1165:

It is apparent that the right of the telephone company to pass through the city or town, over and upon its streets, is absolute, and a city has no authority to deny that right. The interest of the pub-lie in convenient service by such means of communication is the basis of the grant, and is superior to any private interest.

The judgment of the trial court is reversed and the temporary injunction heretofore entered by the trial court is ordered dissolved.

KLINGEMAN, J., did not participate in the disposition of this case.


author: PHILLIPS, Chief Justice.

text:
    R_ M_, a minor, Appellant, v. The STATE of Texas, Appellee.
    No. 12745.
    Court of Civil Appeals of Texas, Austin.
    March 8, 1978.

      Thomas N. Bluntzer, Bartram, Reagan, Burrus & Dierksen, New Braunfels, for appellant.
    Bill M. Reimer, Asst. County Atty., New Braunfels, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from an order of the district court of Comal County sitting as juvenile court waiving its juvenile jurisdiction and transferring juvenile to district court for criminal prosecution.

We affirm this judgment.

The State of Texas petitioned the juvenile court for a waiver of jurisdiction and transfer hearing. A hearing was held on the motion. At the conclusion thereof, the trial court entered an order waiving its juvenile jurisdiction and transferred appellant to the district court of Comal County for criminal proceeding as an adult. Appellant, represented by his guardian ad litem, appeals from this judgment.

The first question for our determination is whether this appeal has been duly perfected. Appellee contends that appellant failed to perfect his appeal. Appellee bases its contention on either of two reasons. First, appellee argues that no written notice of appeal was filed within the time limit specified in the Texas Rules of Civil Procedure nor was the oral announcement of appeal made in open court noted on the court’s docket. Second, appellee argues that the statement of facts and transcript were not filed within the time prescribed by the Rules and that appellant failed to request an extension of time within the specified time limit.

Article 2276, Tex.Rev.Civ.Stat.Ann., provides that no bond is required on any appeal taken by guardians appointed by the courts of this state taken by them in their fiduciary capacity. The attorney ad litem (guardian ad litem appealing in his fiduciary capacity is exempted from posting a bond. Sheehan v. Southern Pacific Co., 422 S.W.2d 948 (Tex.Civ.App.Houston [1st Dist.] 1967, writ, ref’d n. r. e.). Notice of appeal by guardian acting in his fiduciary capacity perfects the appeal and no appeal bond is necessary. Park v. Hominick, 522 S.W.2d 533 (Tex.Civ.App.Corpus Christi 1974, no writ).

Pursuant to Rule 354(c), Tex.R.Civ.P., when an appeal bond is not required by law, the appellant shall file a notice of appeal with the clerk thirty days after rendition of judgment or order overruling motion for new trial. The rule specifies what shall constitute sufficient notice. Rule 386, Tex. R.Civ.P., provides that appellant shall file the transcript and statement of facts with the clerk within sixty days from the rendition of the final judgment or order overruling motion for new trial. Rule 21c, Tex.R. Civ.P., governs the extension of time allowed for filing the transcript and statement of facts. Subparagraph (1) provides that an extension of time may be granted if a motion reasonably explaining the need therefore is filed within fifteen days of the last date for filing as prescribed by the applicable rule(s).

The record in this case discloses that J. C. Reagan was appointed as appellant’s attorney and guardian ad litem, and appealed from the judgment of the court below in a representative capacity. Rendition of judgment occurred on September 2, 1977, and an Affidavit in Lieu of Cost Bond on Appeal, executed by Reagan as guardian ad litem of appellant, was filed on September 26, 1977. This affidavit contains the notice requirements set forth in Rule 354(c), Tex. R.Civ.P. Thus appellant gave timely notice of appeal.

We also overrule appellee’s contention that appeal was not perfected because the transcript and statement of facts were not filed within the time prescribed by Rule 386, Tex.R.Civ.P., and because appellant did not request an extension within the time allowed. The record discloses that appellant satisfied the procedural steps prescribed under Rules 386 and 21c, Tex.R. Civ.P.

Appellant is before us on seven points of error which, in effect, present the question of whether the court below erred in transferring appellant to criminal district court for prosecution. Specifically, appellant argues that the evidence was insufficient regarding the level of intelligence, sophistieation and maturity of appellant, of appellant’s prior criminal record, and of the absence of the rehabilitative capacity of the Juvenile Court and the danger to the general public to warrant transfer of appellant. We do not agree.

The State alleged that on June 13, 1977, appellant, age fifteen, was charged with resisting arrest by the use of force. The State also alleged that on June 23, 1977, appellant was arrested for the murder of, and deviate sexual intercourse with, a non-consenting male juvenile. Furthermore, the record before us discloses that appellant’s referral record consists of the following incidents: “(1) Shoplifting Class C on February 25, 1976; (2) Truancy in September, 1975; (3) Public intoxication (inhalation of aerosol paint) March 21, 1976.”

On June 29, 1977, the juvenile court ordered that a diagnostic study of appellant be made. The following evaluation of appellant appears in the study: “(1) Is not and has not been enrolled in school for over one year; (2) Behaved in a violent and uncooperative manner with law enforcement officials; (3) Has been referred previously for minor criminal and status offenses; (4) Has not responded positively in past dealings with this office (Juvenile Probation); (5) Does not respect the authority of his mother or stepfather and they have spoken of difficulties in supervising him; (6) Is currently accused of a violent crime against the person of another and has manifested violent tendencies previously; (7) Shows no remorse over the murder incident of which he is accused; (8) Shows no change in tendency toward aggression despite current detained status.”

In summary, the report prepared by the Juvenile Probation Office, depicts appellant as a violent and uncooperative person of low intelligence but one who manifests the maturity of a young adolescent in light of the crime he is accused of having committed.

The record before us also contains psychological evaluations of appellant. Included in the Diagnostic Study are the reports of Dr. C. Lee Lowery and Dr. Harry A. Croft. Dr. Lowery’s report states that appellant’s social age is between fourteen and sixteen years of age. The conclusions reached from personality tests administered to appellant were that appellant is hostile and aggressive, possesses intense destructive impulses and moods, and experiences difficulty in emotional control. Dr. Croft’s report describes appellant as an unsophisticated, immature person of borderline intelligence with antisocial and aggressive tendencies. Dr. Croft suggests that because of the likelihood of antisocial and aggressive behavior in the future, strong consideration be given to closed environment.

A report on appellant from Rusk State Hospital is also in the record. The report states that there is no evidence of mental retardation and no psychosis, and that appellant is competent to stand trial. It describes appellant as “quite streetwise” although deficient in academic skills, and recommends that appellant be handled as an adult.

Under his first point, appellant contends that there is insufficient evidence in the record regarding the sophistication and maturity to support his transfer to criminal district court. We do not agree.

We have considered the entire record and hold that the evidence supports the conclusion that appellant evidences sufficient maturity. Even assuming for the sake of argument, however, that there was insufficient evidence of appellant’s maturity, the sophistication and maturity of appellant is but one factor, among others, to be considered in determining whether or not to transfer him to criminal district court. Meza v. State, 543 S.W.2d 189 (Tex.Civ.App. Austin 1976, no writ).

Appellant contends in his next point that the court erred in failing to find that appellant is mentally retarded, and in failing to dispose of this case as provided by law in that event. This contention is also without merit. The psychological evaluations of appellant in the record together with the testimony of the witnesses indicate that there is no evidence of mental retardation. Accordingly, appellant’s second point is overruled.

Appellant in his third point claims that there is no evidence to show a prior offense by appellant of either public intoxication or “paint sniffing,” and therefore, the court erred in so finding with regard to the record and previous history of the child. The point is overruled.

Officer Wommack of the New Braunfels Police Department testified that on June 13, 1977, he and his partner investigated a report that some juveniles were sniffing glue. The officers went to the location where the juveniles were seen. Upon arriving there, the officers observed four juveniles, one of whom was appellant. Two of the juveniles were detained. Appellant and another juvenile ran off. Officer Wom-mack also testified that the juveniles dropped some cans that they held in their hands. These cans turned out to be beer cans that contained silver spray paint. Officer Wommack stated that he ran after appellant and caught him. At this point, appellant started reacting violently. He was kicking, screaming and yelling obscenities. Five officers were required to subdue him. The court below ruled that the testimony on the paint sniffing incident was admissible for the limited purpose of considering the prospects of adequate protection of the public and the likelihood of rehabilitation of appellant.

The court was required to consider the past history and criminal record of appellant under section 54.02(f) of the Texas Family Code. This past violent occurrence was but one more incident from which the court could have reasonably concluded that appellant could not be rehabilitated or the public adequately protected.

In his fourth and fifth points, appellant contends that there is no evidence that appellant could not be rehabilitated or that the public could not be adequately protected if the juvenile court retained jurisdiction over appellant.

Both points are overruled. After the restatement of the points in the brief, a short discussion that is nothing more than a reiteration of the points follows. The points are neither supported by argument nor authority and, therefore, are waived. Austin Lake Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 343 (Tex.Civ.App. Austin 1973, writ ref’d n. r. e.).

Appellant’s sixth point is that the court erred in specifically failing to make a finding or stating a reason regarding the sophistication and maturity of the child in its order waiving its jurisdiction.

In making its determination the court specifically considered all of the factors set out in section 54.02(f) of the Texas Family Code. Although the court did not make a specific finding regarding the sophistication and maturity of the child in its order in connection with waiver, the reasons why the court waived its jurisdiction expressly appear in the order. Therefore, the order certifying the appellant is adequate to make a valid judgment. As we stated above, the sophistication and maturity of appellant is but one factor, among others, to be considered in determining whether or not to transfer him to criminal district court. Meza v. State, supra.

Appellant claims in his final point that the court abused its discretion in certifying appellant as an adult and entering judgment waiving its jurisdiction over appellant. The point is overruled for the reasons previously stated.

The judgment is in all things affirmed.

Affirmed.

      . Tex. Family Code Ann. § 54.02 (1975).

      . Appellant was arrested for public intoxication (inhalation of aerosol paints).