author: HALL, Justice.

text:
    John O. MacAYEAL, Appellant, v. Joan Johnson MacAYEAL, Appellee.
    No. 5877.
    Court of Civil Appeals of Texas, Waco.
    Dec. 14, 1978.
    John A. George, Dallas, for appellant.
    Larry C. Roseborough, Roseborough & Curlee, Dallas, for appellee.
   HALL, Justice.

Appellant John 0. MacAyeal filed this suit on February 28, 1977, for reduction of his child support payments. Appellee Joan Johnson MacAyeal pleaded for increase of the child support and for other relief. After a hearing without a jury, the court found there had not been a material change of circumstances since the previous support order and, excepting a reduction of the amount of the support payments for two months, denied the relief sought by both parties. Appellant seeks reversal of the judgment asserting among other grounds that the finding of no change of circumstances affecting his ability to pay the ordered child support is against the great weight and preponderance of the evidence. We sustain that contention and reverse the judgment.

Appellant is a lawyer. He and appellee were divorced on January 2, 1975. At that time he was 47 years of age and appellee was 42. Upon their agreement at the time of divorce, custody of their six-year-old son was awarded to appellee, and appellant was ordered to pay $100.00 per week child support. Seven days after the divorce appellant collapsed and was hospitalized with leukemia and a ruptured spleen. Three surgical operations followed. Thereafter, for the year 1975, his law practice was on a part-time basis only. In October, 1975, he filed a motion for reduction of child support. By agreement of the parties at the time the motion was heard, appellant was ordered to pay $1,162.50 in lieu of then delinquent child support payments in the sum of $2,325.00; the prior support order was set aside; and appellant was ordered to pay $200.00 per month child support from November 1, 1975, until January 1, 1977, and $400.00 per month thereafter. The order was signed February 23, 1976. The present motion sought modification of that order.

The judgment in question was signed on May 14,1977, after a hearing on appellant’s motion on April 25, 1977. Although the court found there had not been a material change of conditions since the prior judgment of February 23, 1976, the court reduced appellant’s support payments to $200.00 for the months of May and June, 1977, and also forgave appellant for $900.00 arrearage under the former order.

We need not detail all the evidence. It shows a commendable relationship of cordiality between the divorced parties, that the primary concern of each is the best interests of their minor child, and that both desire to support their son commensurate with their abilities to do so. Although appellant’s gross income for 1976 of $12,850.00 exceeded his total income for 1975 of $11,-016.00, his undisputed net income for 1976 was $3,166.96. His necessary living expenses, which we believe reflect a bare subsistence level, substantially exceed that income. Additionally, appellant’s physical condition has deteriorated and he is in need of additional surgery for conditions stemming from his prior physical problems. His law practice has suffered accordingly.

Appellee’s income in 1976 in a new job as a real estate salesperson was $3,500.00. Her living expenses exceeded that income.

The trial court is given broad discretion in fixing child support payments, and in decreasing or increasing such payments, and a support order will be modified only where there has been a material change in circumstances. Nevertheless, it is elementary that questions of changed conditions and the amount of child support must be resolved upon the particular facts of each case.

Appellant’s deteriorating physical condition and his need for further surgery, and his resulting inability to maintain a profitable law practice, reflect a material change of his financial circumstances since the prior support order. Too, “[wjhile in cases such as this where hardship is inevitable, the trial court may well determine that the brunt of the sacrifice must fall on the father, still he must be permitted to retain enough of his earnings to pay the necessary expense of living and earning a living. Any other order would be self-defeating and unenforceable. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967).” Kominczak v. Kominczak, 474 S.W.2d 749, 750 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ).

In the light of the entire record, the court’s failure to find a material change of conditions affecting appellant’s ability to pay the child support ordered in the prior judgment is against the great weight and preponderance of the evidence.

The judgment is reversed and this case is remanded for trial.


source: Caselaw Access Project

license: Public Domain

text:
    Betty Jo KENNEDY, Independent Executrix of the Estate of Ernest Albert Draper, Deceased, Appellant, v. Gladys Fry DRAPER, Appellee.
    No. 5940.
    Court of Civil Appeals of Texas, Waco
    Dec. 14, 1978.

      Allan Howeth, Noel C. Ice, Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, Robert F. Salter, Gatesville, for appellant.
    Edwin E. Powell, Jr., Gatesville, for ap-pellee.
   HALL, Justice.

Appellee Gladys Fry Draper is the widow of Ernest Albert Draper. She is 71 years of age. She married Mr. Draper in September, 1976. He died testate in May, 1977. A former wife was the primary beneficiary under his will, but because she predeceased him his property passed under the will to his two children and two other relatives. The will has been admitted to probate. Ap-pellee initiated this suit against appellant Betty Jo Kennedy, Independent Executrix of Mr. Draper’s estate, to have certain exempt property (including a 1976 Buick automobile, some furniture and appliances, and miscellaneous kitchenware) set apart for her use and benefit under the provisions of V.A.T.S. Probate Code, § 271, or, alternatively for a reasonable sum in lieu thereof under the provisions of § 273 of the Code; and for a family allowance for her maintenance for one year under the provisions of § 286 of the Code, which she alleged “should be in the amount of $5,000.00 payable in one lump sum.”

Prior to the hearing on appellee’s application the parties agreed that appellee should have a 1976 Buick automobile and a hutch set aside for her use and benefit under the provisions of § 271 of the Code, and an order was entered by the court approving that settlement. After the hearing, which was without a jury, the court awarded ap-pellee $6,000.00 family allowance.

Appellant first asserts the evidence is both legally and factually insufficient to support the family allowance of $6,000.00 to appellee, arguing that the evidence establishes that appellee has separate property sufficient for her maintenance. We overrule those contentions.

§ 286 and § 287 of the Probate Code provide for the fixing of a family allowance for the widow sufficient for her maintenance for one year from the time of the death of the deceased, but § 288 provides that “no such allowance shall be made for the widow when she has separate property adequate to her maintenance.” Those statutes have been construed by our courts to mean that the widow’s allowance must be made “with reference to the condition of the whole property [of the deceased’s estate] during the first year after [his] death,” and with reference to the widow’s necessities “measured by [her] condition in life, and by what [she] had been accustomed to have during the lifetime of the husband.” Pace v. Eoff, 48 S.W.2d 956, 960 (Tex.Com.App.1932); Ward v. Braun, 417 S.W.2d 888, 893 (Tex.Civ.App.-Corpus Christi 1967, no writ).

Appellee and Mr. Draper married each other late in their lives. Each had lost a spouse previously by death. Mr. Draper owned a home in the City of Gatesville and several rent properties there. He also owned jointly under a survivorship clause with his daughter Betty Jo Kennedy savings and loan certificates of deposit in the sum $80,000.00. The inventory of his estate was not before the court, but appellant stipulated that excluding the certificates of deposit “the estate is worth at least the sum $40,000.00.” Mr. Draper received regular quarterly income from the certificates of deposit. He also received monthly social security benefits. Appellee also owned a home in the City of Gatesville. It was at least thirty years old. Her income totaled approximately $400.00 per month from social security benefits and her former husband’s pension. When she and Mr. Draper first married they lived in his house for two months and then moved into her home. He was solicitous of her financial needs, and assumed payment of most of their household expenses. Over her protests, he also paid the balance of $3,000.00 on her home mortgage. They added a double garage and a bedroom to her home, refinished the kitchen, and made repairs to the sewage system. They became very active in several senior-citizens organizations and made trips almost daily, many out-of-town, in connection with those activities. Also during their short marriage, they made a ten-day trip to California. Inferentially, the record supports the determination that Mr. Draper assumed most of the expenses of those trips.

The evidence shows that appellee’s “actual everyday maintenance costs for groceries and utilities and all of the bills that make up her daily life” total $397.00 per month; that when Mr. Draper died in May, 1977, the balance in appellee’s checking account was $1,050.00; that at the time of trial on March 31, 1978, the checking account balance was $2,964.26; and that her monthly income is $400.00 per month. Appellant emphasizes that evidence in support of her contention that appellee was not in need of nor entitled to the family allowance awarded by the court. However, appellant overlooks the testimony that after Mr. Draper’s death appellee depleted her savings account paying off the costs of the additions and repairs made to her house while Mr. Draper was living, and chat the only money she now has is in the checking account. Also, since Mr. Draper’s death appellee has incurred other expenses for repairs to her house, including rewiring and ceiling insulation, and it is presently in need of wall insulation. Because it is an old house she anticipates other needed repairs might develop anytime.

Appellee testified that Mr. Draper “always said that I would be taken care of. We meant to make a will, but we were busy and hadn’t gotten around to it.” She said that since her husband’s death “my financial situation has been nip and tuck. I have lived off of awfully little since he has been gone. If it hadn’t been for neighbors and friends, I don’t know what I would have done.”

We hold the evidence is legally sufficient to support the award in question; and, in the light of the entire record, we find the evidence factually sufficient to support the award.

As we have previously stated, appellee expressly pleaded that her family allowance under § 286 of the Probate Code “should be in the amount of $5,000.00.” Appellant asserts the award of $6,000.00 cannot stand because it exceeds the amount pleaded for by appellee. We sustain this contention. With exceptions not applicable in our case, the judgment must conform to the pleadings. Rule 301, Tex.Rules Civ.Proc.; Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S.W.2d 751, 756 (1951); Denman v. Stuart, 142 Tex. 129, 176 S.W.2d 730, 733 (1944); Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942).

Appellee’s suggestion that the additional $1,000.00 was intended by the court as an allowance to her in lieu of exempt property under § 273 of the Probate Code is conclusively refuted by the order of the court approving the parties’ settlement of that question, by the stipulations at the beginning of the hearing that the settlement had been effected and that the only issue before the court was the widow’s allowance under § 286, by the evidence adduced at the hearing which related only to the allowance for maintenance, by the parties’ arguments to the court at the close of the hearing, and by the judgment in question which expressly recites that the $6,000.00 award is made under the provisions of § 286.

The judgment is reformed to provide that appellee shall recover $5,000.00 from the estate for her family allowance. As reformed, the judgment is affirmed.

Costs of this appeal are taxed 80% against appellant and 20% against appellee.


author: DICKENSON, Justice.

text:
    John L. EGENBACHER, Independent Executor of the Estate of E. A. Egenbacher, Deceased, Appellant, v. Barbara BARNARD, as next friend for Erwin Andrew Barnard and Payton Ellis Tankersley, Individually, Appellee.
    No. 5226.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 14, 1978.

      Madison Sowder, Hurley & Sowder, Lubbock, Joe Reeder, Jr., Knox City, for appellant.
    John B. Garrett, Garrett & Burkett, Fort Worth, for appellee.
   DICKENSON, Justice.

Barbara Barnard, as next friend of her minor son, Erwin Andrew Barnard, and Payton Ellis Tankersley (plaintiffs) sued John L. Egenbacher, Independent Executor of the Estate of E. A. Egenbacher, Deceased (defendant) to recover $77,119.74 plus interest, being the proceeds of four savings accounts which E. A. Egenbacher had established. Three of the savings accounts named E. A. Egenbacher, Payton Ellis Tankersley and Erwin Andrew Barnard “as joint tenants- with right of surviv-orship and not as tenants in common.” The other one was “E. A. Egenbacher, payable at death to Payton Ellis Tankersley and Erwin Andrew Barnard.” The funds in all four savings accounts were furnished by E. A. Egenbacher. The two survivors are his grandchildren. Defendant took possession of all four savings accounts, but the trial court held, after a nonjury trial, that plaintiffs are entitled to them. Defendant appeals. We affirm.

The trial court made the following findings of fact:

9. That Erwin Andrew Egenbacher, Deceased, was not physically or mentally capable of making decisions on business matters and other acts after on or about July 25, 1973, when he started taking Demerol in the hospital at Knox City, Texas.
10. That Erwin Andrew Egenbacher, Deceased, was not aware of his acts and deeds in signing a letter dated August 7, 1973, to First Savings and Loan Association, Bowie, Texas, wherein he attempted to remove his grandsons’ rights of surviv-orship.

The trial court made the following conclusion of law:

2. That Erwin Andrew Egenbacher, Deceased, was not competent to make decisions on business matters or other acts after on or about July 25, 1973, and the attempted changes on the three (3) accounts at Olney Savings Association and the one (1) account at First Savings and Loan Association, Bowie, Texas, were void and of no effect.

Defendant’s first point of error is that there is no evidence to support findings of fact number 9 and number 10. We disagree. When a party asserts that there is no evidence to support the findings and judgment of the trial court, it is our duty to view the evidence in its most favorable light in support of the judgment. We are to consider only the evidence and inferences which support the findings and the judgment. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). There is evidence that Erwin Andrew Egenbacher was not mentally competent to make decisions on business matters after July 25, 1973. On that date, he was moved from Scott and White Hospital at Temple, Texas, to the Knox County Hospital for terminal care after surgery for cancer. He died on August 27, 1973. Dr. Robert G. Howell and Dr. Ted C. Alexander, Jr., saw him twice each day when they made rounds at the Knox County Hospital. Both of them testified by deposition, and their testimony shows that he was on extensive medication to relieve pain. He was apprehensive and depressed. The medication caused him to be confused, and it caused his mental status to be “cloudy at best.” The doctors kept him sedated while he was in the hospital at Knox City.

Defendant’s second point of error is that findings of fact number 9 and number 10 are against the great weight and preponderance of the evidence. We disagree. We have considered all of the evidence, and we find that those findings are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Conclusion of law number 2 is supported by findings of fact number 9 and number 10.

Defendant’s third point of error is that the trial court erred in holding that the decedent's attorney was not authorized to modify the savings accounts by removing the grandchildren’s names from the accounts. We disagree. The trial court held that decedent became incompetent before he attempted to authorize the attorney to change the accounts, and such finding is supported by the evidence.

Defendant’s fourth point of error is that the trial court committed reversible error in excluding from evidence the testimony of Fred Egenbacher as to the intention of the decedent regarding the savings accounts. We disagree. This lawsuit falls within the prohibition of Article 3716, Tex. Rev.Civ.Stat.Ann. (1926), which provides in part that:

In actions by or against executors . in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator (emphasis added)

Fred Egenbacher was named as co-trustee under decedent’s will, and he is a “party” whose testimony is barred. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956), states that:

As a general rule the word “party” means a person who has a direct and substantial interest in the issue to which the testimony' relates and who is either an actual party to the suit or will be bound by any judgment entered therein. (emphasis added)

Defendant’s fifth point of error is that the trial court erred in finding that the grandchildren were joint owners of the accounts. We disagree. The executive vice-president of First Savings and Loan Association of Bowie testified that the account was originally set up as “E. A. Egenbacher, payable at death to Payton Ellis Tankersley and Erwin Andrew Barnard.” There was no attempt to change this account prior to the time that decedent became incompetent. The three accounts with Olney Savings Association are governed by contracts signed by E. A. Egen-bacher, each of which names E. A. Egen-bacher, Payton Ellis Tankersley and Erwin Andrew Barnard as “joint tenants with right of survivorship.” Each contract provides in part that the association is directed “to pay, without any liability for such payment, to any one or the survivor or survivors at any time.” These three accounts were not changed before E. A. Egenbacher died.

We hold that the grandchildren became the' owners of all four savings accounts, as third party beneficiaries, under the contractual agreements which E. A. Egenbacher had made with the savings associations. Quilter v. Wendland, 403 S.W.2d 335 (Tex.1966); Krueger v. Williams, 359 S.W.2d 48 (Tex.1962).

Quilter makes it clear that the contracts were completed when E. A. Egen-bacher furnished the money to the savings associations and accepted the passbooks; that it was not necessary for the grandchildren to sign the signature cards; and that the grandchildren may recover on those contracts as third party beneficiaries.

The judgment of the trial court is affirmed.


author: EVANS, Justice.

text:
    Lula Belle CONERLY, Appellant, v. Dr. Edward MORRIS, Appellee.
    No. 17240.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      W. Jiles Roberts, Houston, for appellant.
    Fulbright & Jaworski, Charles R. Parker, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a summary judgment in favor of the defendant in a medical malpractice case. The trial court’s judgment is based upon a determination that the plaintiff’s action is barred, as a matter of law, by the two-year statute of limitations.

This action was brought by Mrs. Lula Belle Conerly against Dr. Edward H. Morris, M.D., on July 22, 1975. In her petition Mrs. Conerly alleged that she had been a patient of Dr. Morris’ from October 1970 until July 27, 1973, when, as a result of treatment received from him for a fibroid tumor, she suffered a heart condition requiring her hospitalization. She alleged that during the time she was being treated by Dr. Morris for the tumor condition, she was assured by him that it was “nothing to worry about” and that if surgery ever became necessary, he would send her to a clinic for the operation. She alleged that when she was subsequently hospitalized for the heart condition, it was discovered that surgery was necessary to remove the tumor and that the tumor should have been removed while she was under Dr. Morris’ care in order to prevent the heart condition from developing. Mrs. Conerly alleged that Dr. Morris was negligent in the treatment of her in one or more of the following particulars:

“a. In failing to perform surgery;
b. In failing to advise her that surgery was in fact needed
c. In failing to advise her of the consequences of failing to have surgery.
d. In representing to her that the tumor was ‘nothing to worry about’.”

In her petition, Mrs. Conerly stated that she last saw Dr. Morris on January 23,1973, that she had received treatment from his office on February 2,1973, and that she was .to return to see him in about six months.

In his motion for summary judgment Dr. Morris alleges that Mrs. Conerly’s action is one for damages based upon an alleged negligent “misdiagnosis”, which occurred no later than January 1973, and that more than two years elapsed between the date of such misdiagnosis and the date suit was filed in July 1975. Alternatively, Dr. Morris alleges that Mrs. Conerly’s deposition testimony shows she knew of the existence of the tumor in her body and was therefore fully aware of the injury prior to the last time she saw him in January 1973.

The first question to be determined is whether the so-called discovery rule is applicable to the action alleged by Mrs. Conerly. If the discovery rule is applicable, Mrs. Conerly’s cause of action must be considered to have accrued when the nature of the injury was or should have been discovered by the plaintiff, rather than upon the date of the alleged wrongful act or omission causing the injury. Hays v. Hall, 488 S.W.2d 412 (Tex.1972); Weaver v. Witt, 561 S.W.2d 792 (Tex.1977).

Dr. Morris contends that the discovery rule is not applicable because Mrs. Conerly’s action is founded not upon allegations of negligent treatment, but rather upon a negligent misdiagnosis. He relies upon the holding in Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977).

In the Robinson case the defendant practitioner, concluding that the plaintiff had a herniated disc between the fourth and fifth lumbar vertebrae, performed surgery to repair the disc at that location. The plaintiff continued to have back pains, and after subsequent testing, a herniated disc was found between the third and fourth lumbar vertebrae. Thus, the plaintiff claimed that the defendant had erroneously diagnosed her condition and had operated on the wrong disc. The Texas Supreme Court held that since the plaintiffs action was founded upon an alleged misdiagnosis, subject to proof only by “expert hindsight”, the discovery rule was inapplicable.

In the case at bar, Mrs. Conerly states in her deposition that in the early part of 1972, she found a knot in her side and went to see Dr. Morris, who had treated her for a prior injury. Dr. Morris found a tumor about the size of an orange and also determined that Mrs. Conerly was anemic. He prescribed shots and tablets and advised Mrs. Conerly to eat plenty of meat to build up the iron in her blood. Dr. Morris told Mrs. Conerly that if he ever thought she needed surgery for the tumor, he would recommend it and that there were clinics she could go to since she did not have insurance coverage. She made several visits to Dr. Morris’ office thereafter, and she last saw Dr. Morris in January 1973. At that time the tumor was quite a bit larger. She was not told how large it was, but she could tell it was larger since she had to change her dress and pant size. Prior to her last visit to Dr. Morris, she was feeling depressed because she had .been “worried to death, about the tumor.” Her menstrual periods were not normal and on such occasions she hemorrhaged excessively. After her first visit Dr. Morris never mentioned surgery and just told her to “eat plenty of meat, take my vitamins.” She had never told Dr. Morris that she wanted to go ahead with surgery. “I was waiting on him. He was the doctor. I was waiting for him.” When she last saw Dr. Morris in January 1973, he told her to come back in six months; she saw no other doctor from that time until she was hospitalized in July 1973. When she first learned of the tumor in 1972, she could feel it herself and it was then about two or three inches in diameter. When she told Dr. Morris it was getting larger he said not to worry about it, that it would get to a certain size and then stop.

In considering the propriety of a summary judgment, the reviewing court must accept as true the non-movant’s version of the facts as evidenced by the summary judgment proof and must make every reasonable inference in the non-movant’s favor. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). It matters not that the court may surmise that the party opposing the motion is unlikely to prevail upon the final trial on the merits. Herold v. City of Austin, 310 S.W.2d 368 (Tex.Civ.App.—Austin 1958, writ ref’d n. r. e.). McDonald, Texas Civil Practice, Vol. 4, Section 17.26.12 pp. 177.

The record in the case at bar shows that the issue raised by Mrs. Conerly’s action is not whether Dr. Morris negligently diagnosed her condition, but whether his treatment of her condition was reasonable and prudent. Dr. Morris accurately diagnosed the growth in Mrs. Conerly’s body as a fibroid tumor, and he prescribed certain treatment for her. The fact that this treatment consisted of waiting and observing the further development of the tumor and the improvement of her bodily condition through diet and nutritional control, rather than surgery or physical therapy, does not mean that it was any less “treatment”, as distinguished from “diagnosis”. Thus, the discovery rule is applicable in determining whether the statute of limitations is shown to bar the cause of action as a matter of law.

The discovery rule is not a plea of confession and avoidance of the statute of limitations. Where the “discovery rule” is raised by the pleadings, the defendant seeking a summary judgment has the burden of establishing, as a matter of law, that there is no genuine issue of material fact concerning the time when the plaintiff discovered or should have discovered the nature of the injury. Weaver v. Witt, supra.

It is Dr. Morris’ contention that since Mrs. Conerly knew of the existence of her tumor and that it was growing in size, she was aware of the “injury” no later than January 24, 1973, even though she may not have been aware of the extent of such injury. In support of this contention, Dr. Morris relies upon the holding in Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.—El Paso, no writ). In that case the plaintiff had been examined by the defendant in June 1970 for a pain in his right leg, and he was hospitalized for further tests. No evidence of arterial disease was found, and the plaintiff thereafter had no further contact with the defendant. In April 1971, the plaintiff was hospitalized again, and was advised by another physician that he had arterial insufficiency, that he would lose his leg and that there was little that could be done for the leg. In May 1973, approximately three years after the plaintiff had seen the defendant, and more than two years after he had been advised of the condition of his leg, but less than two years from the date of the amputation of his leg, he brought a malpractice action against the defendant. The court held that the plaintiffs action was barred by the two-year statute of limitations, evidently concluding that the summary judgment proof established, as a matter of law, that the plaintiff had been fully aware of the condition of his leg for more than two years prior to the date of filing suit.

The record in the present case shows that Mrs. Conerly had an awareness that she had a fibroid tumor growing in her body more than two years prior to July 1975, the date she instituted this action against Dr. Morris. However, the summary judgment proof does not establish, as a matter of law, that at any time prior to July 1973, she was aware of an “injury” or that the condition of the tumor had reached the point that surgical treatment was required. Thus, the summary judgment proof reflects a genuine issue of material fact concerning the date when Mrs. Conerly first discovered the injury.

The trial court’s summary judgment is reversed and the cause is remanded for further proceedings.


author: COLEMAN, Chief Justice.

text:
    Robert L. AMOS et al., Appellant, v. CENTRAL FREIGHT LINES, INC., Appellee.
    No. 17244.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 14, 1978.

      Combs, Archer & Peterson, Stephen L. Swanson, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Robert C. Floyd, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment. Robert L. Amos brought suit as next friend for five minor children alleged to be the surviving children of the deceased, Mamie Diggins Amos, under the Wrongful Death and the Survival Statutes. The issue is whether children alleged to have been adopted by estoppel have a cause of action under Articles 4671, et seq. and 5525, V.A. T.S. The trial court determined that they did not and we affirm.

On or about August 28,1974, Mamie Dig-gins Amos was killed in a pedestrian accident on Interstate Highway 10, in Houston, Texas, when she was struck by a truck driven by an agent of Central Freight Lines, Inc. She was survived by her husband Robert L. Amos, who filed suit for damages in his individual capacity, as representative of the estate of Mamie Diggins Amos, and as next friend of five minor children who are alleged to be the surviving children of the deceased. These children were not the natural born nor legally adopted children of Mamie Diggins Amos at the time of her death, but they had lived with Mr. and Mrs. Amos for a period of years and at the time of the death a petition for adoption had been filed by Mr. and Mrs. Amos.

After the suit was instituted, Central Freight Lines, Inc., filed a Motion for Summary Judgment based upon allegations that the five minor children were not entitled to recover damages because they were not the natural born nor legally adopted children of the deceased.

Two separate and distinct causes of action may arise where injuries wrongfully inflicted result in death. One is a common law action for damages sustained by the decedent and his estate as a result of the injuries. This cause of action survives to the heirs or legal representatives under the survival statute. The other right of action is conferred by the Wrongful Death Statute on named beneficiaries. Landers v. B. F. Goodrich Co., 369 S.W.2d 33 (Tex.1963).

The trial court correctly held that as a matter of law these children were not entitled to recover under the provisions of Article 4675, V.A.T.S. because they were not natural born nor legally adopted children of the deceased. Goss v. Franz, 287 S.W.2d 289 (Tex.Civ.App.—Amarillo 1956, writ ref’d). As is the case with workman’s compensation benefits, the right to recover death benefits under Article 4671, supra, is not obtained through inheritance but is conferred by statute. See, Patton v. Shamburger, 431 S.W.2d 506 (Tex.1968).

Article 4675, supra, provides that actions for damages arising from death shall be for the sole and exclusive benefit of and may be brought by the surviving husband, wife, children, and parents of the person whose death has been caused or by either of them for the benefit of all. The cause of action is purely statutory and does not inure to the benefit of the children by reason of inheritance.

Summary judgment evidence in the form of certified copies of court documents in an adoption proceeding pending at the death of the deceased conclusively established two essential facts; first, that none of the children were the natural children of the deceased, and, second, that no formal adoption of any of these children had been consummated at the time of Mrs. Amos death. These two facts were sufficient to demonstrate that no issue of material fact existed as to appellants lack of legal capacity to assert a cause of action under the Wrongful Death Act.

Article 5525, V.A.T.S., does not use the word “children” but provides that a cause of action for personal injury shall not abate by reason of the death of the injured person, and that the cause of action shall survive to “the heirs and legal representatives and estate of such injured party.”

The Texas Probate Code defines “child” as including “an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel—”. Texas Probate Code Annotated, Section 3(b). By reason of this statute a child adopted “by acts of estoppel” is entitled to share the estate of his adopted parent. Such a child would therefore be entitled to participate in any recovery under Article 5525, supra.

While Section 3(b) and Section 40 of the Probate Code, Vernon’s Civil Statutes, would appear to consider children, who are equitably adopted the legal heirs of the adopting parents, this matter is far from clear. In Heien v. Crabtree, 369 S.W.2d 28 (1963) the Supreme Court of Texas considered those sections of the Probate Code and stated that the language used indicated a legislative assumption that our courts had held that a child may be adopted by acts of estoppel, and that a legal status of parent and child is thereby created. The court, however, held that this was not the effect of their prior decisions. The court stated that the descriptive phrases, “equitable adoption”, “adoption by estoppel,” and “adoptive status”, are used in decided cases strictly as a shorthand method of saying that because of the promises, acts and conduct of an intestate person, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child. The question decided in the Heien case was whether a legal status of parent and child is created by parties assuming and living in a relationship of parent and child pursuant to an unperformed agreement to adopt the child. The court held that the legal status of parent and child was not created by those circumstances and refused to sustain the claim of the heirs of Frank and Rosa Fry who were asserting a right of intestate succession to the estate of R. F. Fry, who was alleged to have been the child of Frank and Rosa Fry by reason of estop-pel.

The children in the case before this court might have a cause of action against the heirs or legal representatives of Mrs. Amos for their share of damages recovered under Article 5525, supra, since they could assert an estoppel, a question we do not decide. We are not presented with the question of whether the children can maintain a suit to recover damages as allowed by Article 5525. The petition filed does not allege that these children are heirs of the estate of Mrs. Amos. The petition alleges that they are her children. The summary judgment evidence establishes that they do not occupy the legal status of children, and no other facts are alleged which would bring them within the term “heirs”.

The only damages sought which might be recovered by reason of Article 5525 consisted of damages to an automobile and funeral expenses. The suit was prosecuted by Robert L. Amos, the husband, and a judgment was entered reciting that the controversy between the plaintiff and the defendant has been compromised and settled and that by reason thereof a take nothing judgment was ordered. The petition shows that he sued as representative of the estate of Mamie Amos and the judgment recites that he appeared as the representative of the estate. He was clearly entitled to bring suit in that capacity for all interested parties. The trial court did not err in entering the summary judgment.

The judgment is affirmed.


author: PER CURIAM.

text:
    Simon T. GARZA and E. A. Gonzales, Appellants, v. Dan BERLANGA et al., Appellees.
    No. 16189.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 15, 1978.
    George H. Spencer, Paul M. Green, San Antonio, for appellants.
    Clem Lyons, San Antonio, for appellees.
   OPINION

PER CURIAM.

On October 24, 1978, appellants filed a-motion for extension of time within which to file the statement of facts in this court. The statement of facts was required to be filed in this court no later than October 30, 1978, and the motion for extension requested that the time be extended until April 30, 1979. The stated reason for the requested extension was the inability of the court reporter to complete the statement of facts prior to April 30, 1979.

The motion was supported by the affidavit of the court reporter which stated:

Due to the heavy work load I have been faced with in my official duties, I will be unable to prepare the Statement of Facts in order to have the same filed by October 30, 1978, and due to such official duties and thirteen prior orders for records in other cases will be unable to complete this Statement of Facts until April 30, 1979.

Upon receipt of such motion, this court directed the attorneys for appellant to furnish this court with information showing the cases on which the court reporter was working or in which statements of fact had been requested prior to this case, including the dates on which such prior requests had been made. We now have before us the affidavit of the court reporter listing eight, not thirteen, cases in which statements of facts had been requested prior to the receipt of the request in this case. Omitting the names of the parties, the list set out in this second affidavit may be summarized as follows:

8-09-78 1,200 1-15-79
8-18-78 430 2-20-79
8-25-78 100 2-27-79
8-29-78 25 3-5-79
8-30-78 15 3-9-79
9-06-78 360 4-6-79
9-18-78 50 4-13-79
9-19-78 125 4-27-79

Neither the motion itself nor the court reporter’s affidavit contains any indication of the estimated length of the statement of facts in this case.

Excluding Saturdays, Sundays and holidays, there are 107 days between August 9, 1978, the date on which the statement of facts estimated to contain 1,200 pages was requested, and January 15, 1979, the date on which, according to the reporter’s affidavit, completion of the statement of facts is contemplated. We are, of course, aware of the fact that it is the duty of a court reporter to record testimony given during the course of judicial proceedings. We can, however, take judicial notice of the fact that in Bexar County, the county where this court sits, court reporters do not spend eight hours a day, Monday through Friday recording testimony.

According to the reporter’s affidavit with reference to the 1,200-page document, we deduce that based on his time estimates, the reporter will transcribe between 11 and 12 pages a day, assuming that he will do no work on Saturdays, Sundays and holidays. A statement of facts is normally typed on letter-size paper, 8½ inches wide and 11 inches long, double spaced. The average page contains about 180 words. Assuming a minimum typing speed of 40 words per minute, it would take about 4.5 minutes to type a page. This means that between 13 and 14 pages could be produced in one hour. Of course, it is realized that production would be at a somewhat slower rate if the reporter had difficulty deciphering his notes or understanding the tape recordings.

Courts are aware of the conflicting duties of court reporters, but it has been previously held that Article 2324, Tex.Rev.Civ.Stat. Ann. (Vernon 1971) expressly includes the preparation of statements of fact as part of the reporter’s official duties. Modine Manufacturing Co. v. North East Independent School District, 489 S.W.2d 458 (Tex.Civ.App.—San Antonio 1972, no writ); Figueroa v. Treece, 331 S.W.2d 250 (Tex.Civ.App.—San Antonio 1960, no writ). The statutes, such as Article 2326j-78, Tex.Rev.Civ. Stat.Ann. (Vernon Supp. 1978-1979), which relate to payment of court reporters out of county funds, clearly contemplate that such payment shall be compensation for the time spent by the reporter in recording testimony as it comes from the witness stand during the course of a judicial proceeding. The fact that court reporters are authorized to charge and keep as their personal funds additional amounts for the preparation of statements of facts recognizes that such preparation will, at least to some extent, require that the reporter labor at times when he is not actually present in the courtroom recording testimony. That is, the additional compensation can be considered as a reward for labor performed during what would otherwise be a reporter’s leisure time. It is reasonable to assume that the legislature contemplated that the additional task, for which additional money is received, of preparing statements of facts would, at least to a reasonable extent, be performed during hours not included in the time for which the reporter is receiving compensation from the county.

It thus appears that, in determining the time available for the preparation of a statement of facts, it is unrealistic to exclude Saturdays, Sundays, holidays and the evening hours from the computation of such time. This means that the total number of days between August 9, 1978, the date on which the 1,200-page statement of facts was requested, and January 15, 1979, the date on which the reporter in this case estimates that he will complete the statement of facts, is in excess of 150 days, and not merely 107 days. While we recognize that reporters must have time available for rest and recreation, it is still clear from the affidavit of the reporter that his estimate concerning the date of completion is based on the assumption that he will be able to complete less than 12 pages a day. Assuming, as we did before, a typing speed of 40 words a minute, which demands no unusual proficiency in the use of even a manual typewriter, the reporter’s estimate contemplates that he will devote less than 45 minutes a day to typing. It can justifiably be concluded that the reporter’s estimate contemplates that he will do the necessary typing during the time for which he is receiving compensation from the county and intends to devote little or no portion of the additional time available to him to the task of earning additional compensation authorized by law.

To deny appellants’ request for an extension of time, we think, would unjustifiably deprive them of their right to have this court review the validity of the judgment of which they complain, although they have taken all steps required by the rules to perfect their appeal within the time prescribed. However, we will not grant the full additional time requested by the reporter.

The time for filing the statement of facts in this case is extended only to March 15, 1979. We decline to consider, at this time, the question concerning the propriety of an order by this court summarily reversing the judgment below and remanding the case for a new trial on the ground that appellant has, for all practical purposes, been deprived of the right to be furnished with a statement of facts. Appellant has not suggested that we exercise the powers vested in this court by Article 1823, Tex.Rev.Civ. Stat.Ann. (Vernon 1964). We do consider it appropriate to note that Rule 376b(c) provides that in case of illness, press of official work, or unavoidable absence or disability of the official court reporter to perform the duties imposed on him by law, the presiding judge of the court may, in his discretion, authorize a deputy reporter to act in place of and perform the duties of the official reporter. Tex.R.Civ.P. It should also be noted that, in order to aid the judge in supervising the work of the court reporter, Rule 376c(b) provides that the court reporter shall submit to the judge monthly written reports reflecting the amount and nature of the business pending in the court reporter’s office. Tex.R.Civ.P.

      . At the present time, this court has before it another motion for extension of time supported by the affidavit of this reporter to the effect that he cannot complete the statement of facts unless he is granted an extension of at least 365 days. The reporter’s affidavit recites that he estimates that the statement of facts will consist of 300 pages. The extension of time which he asserts is necessary will result in the completion of such statement of facts no sooner than 384 days after it was requested.


author: PHILLIPS, Chief Justice.

text:
    In the Matter of R_S_, Appellant, v. The STATE of Texas, Appellee.
    No. 12834.
    Court of Civil Appeals of Texas, Austin.
    Dec. 20, 1978.

      Fred A. Moore, Blundell & Moore, Lock-hart, for appellant.
    Edward L. Jarrett, County Atty., Caldwell County, Lockhart, for appellee.
   PHILLIPS, Chief Justice.

The district court of Caldwell County waived its jurisdiction over the appellant R_S_ pursuant to Tex.Family Code Ann. § 54.02 (1975). Appellant is charged with attempted aggravated rape and kidnapping.

In its order of April 13, 1978, the trial court found that appellant was charged with a felony, that he was sixteen years of age at the time of the alleged offense, and that because of the seriousness of the offense, the welfare of the community required criminal proceedings.

We reverse the judgment of the trial court and remand the cause.

Appellant is before us on numerous points of error;. however, our decision on whether his attorney was furnished access to certain reports is dispositive.

Section 54.02(e) provides in part:

“At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the transfer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the transfer decision.” (Emphasis added).

On March 23, 1978, a hearing was set concerning the transfer of appellant to district court for trial as an adult. The hearing was then reset until March 30,1978. At that time, appellant’s attorney, for the first time, learned of the existence of a written offense report and two other statements which were in the possession of the court. In fact, even appellee’s counsel did not know that the court had a copy of the reports and appellee’s attorney had not intended to furnish copies to either the court or to appellant’s attorney.

Objection was made and overruled to the court’s consideration of this material since copies had not been made available to appellant’s attorney as required by section 54.02(e).

It has been held that rigid adherence to the governing statute is mandatory. See In re J. R. C., 522 S.W.2d 579 (Tex.Civ.App.1975, writ ref’d n. r. e.). The Supreme Court has held that compliance with section 54.02(b) notice requirements is mandatory. Matter of W. L. C., 562 S.W.2d 454 (Tex.1978) (per curiam). Likewise, it is a mandatory requirement of section 54.02(d) that the court order and obtain a diagnostic study and evaluation of the child. See R. E. M. v. State, 532 S.W.2d 645 (Tex.Civ.App.1975, no writ); Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App.1974, writ ref’d n. r. e.).

We hold that appellant’s attorney was not provided access to the written material as mandated by the Legislature. The reports were not filed and there was no reason to suspect their existence. We do not hold that appellant’s counsel should have been provided with copies.

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

Reversed and Remanded.


text:
    REPUBLIC NATIONAL BANK OF DALLAS, Appellant, v. H. Lang ROGERS, Appellee.
    No. 5973.
    Court of Civil Appeals of Texas, Waco.
    Dec. 21, 1978.
    Rehearing Denied Jan. 18, 1979.
    James L. Drought and Calhoun Bobbitt, Brite, Drought, Bobbitt & Halter, San Antonio, for appellant.
    Eugene D. Stewart, Petry & Petry, Carri-zo Springs, for appellee.
   HALL, Justice.

This is a trespass to try title action in which defendant’s plea of the three year statute of limitation was sustained, and summary judgment was rendered that plaintiff take nothing. The single question on this appeal is whether the limitation period relied upon by defendant was tolled by a suit filed by plaintiff against defendant in Federal Court, and dismissed by the Federal Court for want of jurisdiction, during the limitation period. We hold limitation was tolled, and reverse the judgment.

Summary judgment is proper if the proof establishes there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Rule 166-A(c), Vernon’s Tex.Rules Civ. Proc.; Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972).

In the form brought to us by the parties, the facts are undisputed. Resolution of the question on appeal turns on the application of Articles 5507, 5514, 5539a, and 5539b, Vernon’s Tex.Civ.St., to those facts. In pertinent parts the statutes provide as follows:

Article 5507. Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action accrued, and not afterward.
Article 5514. “Peaceable possession” is such as is continuous and not interrupted by adverse suit to recover the estate.
Article 5539a. When an action shall be dismissed in any way . . . because of a want of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal . becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation .
Article 5539b. Whenever any pleading is filed by any party to a suit embracing any cause of action . . . and at the time of filing such pleading such cause of action ... is not subject to a plea of limitation, no subsequent amendment . changing any of the facts or grounds of liability . . . shall be subject to a plea of limitation, provided such amendment ... is not wholly based upon and grows out of a new, distinct or different transaction and occurrence .

This suit was filed on April 11, 1977, in the District Court of Dimmit County, Texas, by plaintiff-appellant Republic National Bank of Dallas, in its capacity as Independent Executor of the Wills of Erin Bain Jones and Sue Bain Groves, against defendant-appellee H. Lang Rogers, who resides in the State of Missouri, to recover title and possession of 56.78 acres of land located in Dimmit County. Plaintiff alleged that on January 7, 1974, defendant unlawfully entered upon the land in question (described by metes and bounds) and dispossessed plaintiff’s decedent Erin Bain Jones thereof; that on that day Erin Bain Jones was owner of the land in fee simple and was entitled to legal possession; that in its representative capacity plaintiff now owns the land in fee simple and is entitled to possession; and that defendant still withholds possession of the property from plaintiff. Plaintiff also pleaded for lost rents at the rate of $3.00 per acre per annum since January 7, 1974, for $1,200.00 damages for destruction of a fence on the property by defendant, and for an injunction to keep defendant off the property pending trial. Plaintiff prayed for judgment for title to and possession of the property and for its damages, and for issuance of the injunction pending determination of title.

Defendant answered with a general denial and a plea of not guilty, and pleaded certain two year statutes of limitation in bar of plaintiff’s claim for money damages. Then, defendant admitted that he has been in possession of the 56.78 acres sued for by plaintiff “since January 7, 1974, and remains in possession thereof,” and alleged that plaintiff’s claim for title and possession of the property was barred under the provisions of Article 5507, “because the Defendant has been in adverse and peaceable possession of the property under title or color of title for over three years prior to the institution of this suit.”

Eventually, defendant moved for summary judgment under the three year statute of limitation. The motion was based on the pleadings which establish defendant’s possession of the property from January 7, 1974, until the filing of this suit on April 11, 1977, and other proof in the record showing that defendant’s possession was under title or color of title. The motion was granted and summary judgment was rendered that plaintiff take nothing. Plaintiff brought this appeal.

Although in the trial court plaintiff questioned the sufficiency of defendant’s proof of title for purpose of summary judgment, it does not do so on appeal. In its single point of error plaintiff asserts that the court erred in holding that a suit filed against defendant in the United States District Court for the Western District of Texas, San Antonio Division, by plaintiff and Sue Bain Groves as Independent Executors of the Will of Erin Bain Jones, which was originally filed on January 17, 1975, and was finally dismissed for want of jurisdiction on February 25,1977 (within 60 days of the filing of the present suit) did not interrupt defendant’s “peaceable possession” of the property during the limitation period relied upon by defendant, and thereby save plaintiff’s present action from operation of the limitation statute under the provisions of Article 5539a.

Authenticated copies of the proceedings in the Federal Court case, including a copy of the federal appellate court’s opinion, are parts of the summary judgment record. That proof shows that on January 17, 1975, plaintiff Republic National Bank of Dallas and Sue Bain Groves, acting in their capacities as Independent Executors of the Will of Erin Bain Jones filed suit against defendant H. Lang Rogers, a citizen of the State of Missouri, alleging that on January 7, 1974, defendant unlawfully tore down a fence and entered upon the 56.78 acres in question (described by metes and bounds) and dispossessed Erin Bain Jones of the property; that on that day Erin Bain Jones was owner of the land in fee simple and was entitled to possession; that plaintiffs in their representative capacities were entitled to legal possession of the property; that defendant withheld possession from them; and that plaintiffs were entitled to rental on the property from defendant at the rate of $3.00 per acre per annum during defendant’s occupation of the premises and to $1,200.00 for damage to the fence. Plaintiffs prayed for judgment for possession of the property and for their damages.

On January 31, 1975, plaintiffs filed their first amended complaint, containing two counts, in the Federal Court. The first count was a verbatim restatement of the pleadings set forth in the original complaint. The second count contained pleadings for “injunctive orders restoring and maintaining the status of said property as it existed prior to January 7, 1974.” Plaintiffs prayed “for possession and title to the property,” for damages, and for an injunction restoring plaintiffs “to their prior and exclusive possession of said property.”

On October 2, 1975, plaintiffs filed their second amended complaint. In it they abandoned their prayer in the prior pleading for title to the property.

On April 2, 1976, on defendant’s motion, the Federal District Court dismissed plaintiffs’ suit because the amount of damages they sought was below the court’s jurisdictional amount. In its order of dismissal, the Court stated that although the assertion was made “that the amount in controversy is measured by the value of the land,” that “nowhere is the value of the land mentioned by plaintiffs.”

Apparently to avoid dismissal of their suit, on May 20, 1976, plaintiffs filed their third amended complaint in the Federal Court. In it they reasserted their pleas for damages for rent and fence destruction and for injunctive relief, and pleaded for additional damages based upon the market value of the property. They alleged that on January 7, 1974, and for many years prior thereto, Erin Bain Jones was the owner in fee simple of the 56.78 acres and she and her tenants were in peaceable, lawful and exclusive possession of the property; that on that day defendant forceably, unlawfully, and maliciously tore down a fence on the property owned by Erin Bain Jones and entered upon and fenced off the property “and totally dispossessed her of same”; that “said trespass is so complete that it totally deprives the Plaintiffs of the use and enjoyment of the property”; and that the fair market value of the property was $13,343.30. Plaintiffs also ' pleaded for $5,000.00 exemplary damages. They prayed for the injunction restoring them “to their prior and exclusive possession of said property” and restraining defendant “from interfering with their peaceable and exclusive possession,” and for their damages.

Notwithstanding the additional pleadings for damages set forth in the third amended complaint, the order of dismissal was continued in effect by the Federal District Court, and plaintiffs prosecuted an appeal to the United States Court of Appeals, Fifth Circuit. The order of dismissal was affirmed by that Court. In the course of its opinion [Groves v. Rogers] (reported at 547 F.2d 898) the Court of Appeals stated:

“This action stems from a boundary line dispute between the late Erin Bain Jones and the appellee
“The proceedings below were initiated by a complaint and subsequently an amended complaint in which appellants requested possession and title to the 56-acre area in dispute. Appellee filed a motion to dismiss on the grounds that under Rule 19 of the Federal Rules of Civil Procedure appellants failed to join indispensable parties and if joined those parties would destroy the diversity between plaintiffs and defendants. Appellants filed a second amended complaint with their response to the motion deleting the prayer for title and seeking injunc-tive relief and damages. The court below dismissed the action because the amount in controversy was insufficient to invoke federal court jurisdiction. A motion to alter judgment was subsequently filed by appellants with a third amended complaint; however, upon consideration, the district court affirmed its order of dismissal. It is that dismissal that appellants have appealed to this court.
“The facts indicate this is really a title dispute and the Supreme Court of Texas has decided that ‘. . . the issue of ownership which includes boundary disputes between adjacent landowners could not be decided by a suit to enjoin the erection of a fence but should be adjudicated in a suit for trespass to try title.’ Frost v. Mischer, 463 S.W.2d 166, 168 (Tex.1971). If suit had been brought to try title (as it originally was) as required under Frost the value of the property in question would as a matter of law be included in determining the amount in controversy under 28 U.S.C. § 1332 . However, in this case if appellants had continued their suit for trespass to try title, diversity jurisdiction would have been extinguished [for the reason that] in this case ownership of the mineral estate is shared by appellee [Rogers], Sabine Royalty Corporation, and two others. As mentioned above, Sabine Royalty Corporation is a Texas corporation and as an indispensable party its joinder in the action would destroy diversity between the parties. For this reason, the trial judge would have to dismiss for lack of subject matter jurisdiction.
“Appellants, in a deliberate attempt to avoid the diversity problem, dropped the suit for trespass to try title. In so doing they have reduced the amount in controversy to below that mandated by the statute. This attempt to invoke federal court jurisdiction is futile because none exists. For the above reasons we affirm the decision of the Court below.”

We agree with plaintiff that the suit in Federal Court was an “adverse suit” within the meaning of Article 5514 sufficient to interrupt the limitation period relied on by defendant. Rule 783, Vernon’s Tex.Rules Civ.Proc., sets forth the following requisites of the petition in a trespass to try title action:

(a) The real names of the plaintiff and defendant and their residences if known.
(b) A description of the premises by metes and bounds .
(c) The interest which the plaintiff claims in the premises, whether it be a fee simple or other estate .
(d) That the plaintiff was in possession of the premises or entitled to such possession.
(e) That the defendant afterward unlawfully entered upon and dispossessed him of such premises, stating the date, and withholds from him the possession thereof.
(f) If rents and profits or damages are claimed, such facts as show the plaintiff to be entitled thereto and the amount thereof.
(g) It shall conclude with a prayer for the relief sought.

All the complaints filed in the suit in Federal Court contained those allegations basic to a title action. The only pleading lacking in each except the first amended complaint was a prayer for title. Under the provisions of Article 5539b that prayer could have been added at anytime by amendment. True, seeking to maintain the suit in the Federal Court, plaintiffs deliberately dropped that prayer from their complaint, but the record does not show and defendant does not assert that was not done in good faith by the plaintiffs. The point we make is that from the beginning of the suit in Federal Court on January 17,1975, until the present time, plaintiff’s pleadings have contained every count essential to a trespass to try title action, including counts of superior title in plaintiff and unlawful dispossession by defendant. Under the savings provisions of Articles 5539a and 5539b, those allegations are now properly before the court in our case with a prayer for judgment for title. Those statutes are remedial, designed to protect a litigant from loss of his cause of action by a plea of limitation under circumstances under which that would otherwise occur. They should be liberally construed and applied to effect that purpose. Butler v. Express Pub. Co., 126 S.W.2d 713, 714 (Tex.Civ.App.-San Antonio 1939, writ ref.); Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex.Civ.App.-Austin 1945, writ ref. W.M.). It is noteworthy that in Burford, the suggestion that Article 5539a did not apply to suits dismissed by federal courts was expressly rejected.

Defendant argues that because plaintiff dropped the issue of title from its pleadings in the Federal Court, and because that issue was not before the Court when the case was dismissed, it was effectively abandoned and not brought forward in the case at bar under the provisions of Article 5539a. Defendant emphasizes the words “such action dismissed” in the statute. We reject that argument. Under the statute, the case before us is a continuation of the suit originally filed in Federal Court. The “action” brought forward was the one pleaded there, and any permissible amendments to it under Article 5539b. As we have previously stated, the pleadings in Federal Court contained all allegations necessary to try title to the property simply by tacking on a prayer for that relief. In Spears v. Bankers Mortg. Co., 191 S.W.2d 807 (Tex.Civ.App.-San Antonio 1946, writ ref’d n.r.e.) the owner of vendor’s lien notes filed an action on August 30, 1937, against the vendees who were in possession of the land securing the notes. The plaintiff’s petition contained two counts: one seeking a recovery in trespass to try title upon the superior title which plaintiff claimed to hold, and the other, alternatively, seeking a judgment upon the notes executed by defendants and foreclosure of the vendor’s liens given to secure the notes. Thereafter, a subsequent purchaser of the notes was substituted as plaintiff by the filing of an amended petition on September 15, 1941. The petition, however, did not contain a count in trespass to try title, but sought judgment upon the notes and foreclosure of vendor’s liens. Later, Bankers Mortgage Company purchased the notes and'it was substituted as plaintiff by an amended petition filed March 26, 1945. That petition, upon which the case was tried, contained a count in trespass to try title, as well as counts seeking foreclosure of the vendor’s liens. Defendants pleaded the ten year statute of limitation (Article 5510). In submitting limitation to the jury the trial court restricted defendants to “any period of ten consecutive years” prior to the filing of the suit in 1937, and refused defendants’ request that the issue relate to any ten year period prior to March 26, 1945, the date of the filing of Bankers Mortgage Company’s petition. The trial court’s ruling was affirmed on appeal where it was held that the suit filed in 1937 was an adverse suit under Article 5514, which from and after its institution prevented the possession of defendants from being regarded as peaceable under the statute. The court said, “The right to recover judgment for the land upon the superior title is a right which arose out of the transaction or occurrence which also gave rise to a right in the vendor or his assigns to recover judgment upon the notes (in the event of nonpayment) and have a foreclosure of the vendor’s lien ordered.” It was held that the omission of the trespass to try title count from the amended petition “did not work a discontinuance” of that cause because the petition was subject to amendment “and the amendment which was made by reasserting the right of recovery based upon the superior legal title came within the provisions of Article 5539b, Vernon’s Ann.Civ.Stats. Consequently a successful plea of limitation cannot be asserted against it.”

If it can be said that the original complaint in the Federal Court did not set up a trespass to try title action, the first amended complaint filed on January 31, 1975, expressly did so and interrupted defendant’s “peaceable possession” under Article 5514 at that time. Under the holding in Bankers Mortgage Company plaintiff’s amendment of its pleadings in our case reasserting that action comes within the provisions of Article 5539b.

Let us suppose, as defendant asserts, that under Article 5539a plaintiff was committed to refiling the identical pleadings on which the dismissal was based, and that it did so. Those pleadings sought determination by way of injunction of what is essentially a boundary dispute between the parties. In Frost v. Mischer, 463 S.W.2d 166 (Tex.Sup.1971) the Court held such disputes cannot be determined by injunction, but must be adjudicated by a trespass to try title action, and sustained the trial court’s dismissal of plaintiffs’ suit for injunction after they refused over exception to amend their pleadings and incorporate the title issue. Accordingly, in our case, after refiling by plaintiff under defendant’s construction of Article 5539a, defendant surely would except to plaintiff’s petition under the holding in Frost, plaintiff would amend (properly, under Article 5539b and Frost) to plead for title, and the pleadings would then stand in their present position.

Defendant’s remaining arguments for affirming the summary judgment are also without merit.

The judgment is reversed and this case is remanded for trial.


author: MOORE, Justice.

text:
    CITY OF TEXARKANA, Texas, Appellant, v. Amos NARD, Appellee.
    No. 1213.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 21, 1978.
    Rehearing Denied Jan. 18, 1979.

      Gregory S. Torrance, Asst. City Atty., Texarkana, for appellant.
    Errol N. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   MOORE, Justice.

This is a suit under the provisions of the Texas Tort Claims Act for personal injury and property damage as a result of an intersection collision. Amos Nard, plaintiff below, brought suit against the City of Tex-arkana and Marvin Watson, defendants below, alleging that he suffered personal injuries and property damage as a result of an automobile collision proximately caused by the negligence of Marvin Watson. He further alleged that the City of Texarkana was also guilty of negligence proximately causing the collision in failing to repair a malfunctioning signal light at the intersection where the collision occurred. The City of Texarkana answered with a general denial and a plea of contributory negligence on the part of both Nard and Watson. Further, the City denied liability on the ground that neither of the claimants had given the City notice of their claims within the 60-day period required by the City Charter. Defendant, Marvin Watson, is not a party to this appeal and therefore it will not be necessary to delineate his answer.

After a trial before a jury, the trial court entered judgment on the verdict awarding the plaintiff, Amos Nard, the sum of $32,-336.33 against both defendants jointly and severally. After the judgment had been entered, defendant, City of Texarkana, filed a motion for judgment n. o. v. and a motion for new trial. Both motions were overruled, whereupon the City of Texarkana perfected this appeal. As stated, defendant, Marvin Watson, did not appeal.

We affirm.

The record reveals that the collision occurred at the intersection of West 13th and Bowie Streets in the City of Texarkana on April 18, 1977 at approximately 11:10 a. m. Shortly before the collision, appellee, Amos Nard, was proceeding in a westerly direction on West 13th Street. The driver of the other vehicle, Marvin Watson, was proceeding north on Bowie Street. The traffic signal regulating traffic on Bowie Street had burned out and was not working. The traffic light on West 13th Street, however, was in working order and at the time Amos Nard, appellee, approached the intersection it showed a green light, thereby giving him the right-of-way. At about the same time, Marvin Watson, the driver of the other vehicle, having observed that the traffic light was not working, pulled into the intersection and struck the appellee’s vehicle on the left-hand side which resulted in personal injuries and property damages made the basis of this suit.

In response to the special issues, the jury found that (1) the City was negligent in failing to repair the traffic light located at 13th and Bowie Streets within a reasonable time after notice was given that the same was malfunctioning, which was a proximate cause of the accident between Amos Nard and Marvin Watson; (2) defendant Marvin Watson was negligent as to yielding of the right-of-way, which was a proximate cause of the accident in question; (3) Amos Nard was negligent as to his lookout, which was a proximate cause of the collision; (4) that 80% of the total negligence was attributable to the City; 15% attributable to Marvin Watson, and 5% was attributable to appel-lee, Amos Nard; (5) that the City had “actual notice” at or near the time of the collision that Amos Nard had received an injury as a result of the collision; (6) that at or near the time of the collision the City had “actual notice” that Amos Nard had sustained property damages; and (7) that the sum of $32,924.00 would fairly and reasonably compensate him for his personal injuries. It was stipulated that he sustained property damages in the amount of $1,114.24.

The City does not attack any of the foregoing findings on this appeal, except the findings that the City had “actual notice” of appellee’s personal injuries and property damage at or near the time of the collision.

Under the first and second points, the City asserts the court erred in overruling its motion for judgment n. o. v. because it contends there was no evidence to support the jury’s finding to Special Issues 5 and 6 that the City had notice of the personal injury and the property damage sustained by appellee as a result of the collision in question. The City argues first that the appellee failed to give written notice of his claim within sixty days in accordance with the provision of the City Charter and secondly, that there is no proof showing that the City had “actual notice” of his personal injury and property damage and therefore he cannot maintain a cause of action pursuant to the provisions of sec. 16 of the Texas Tort Claims Act, supra. In reply, appellee admits that he failed to comply with the 60-day notice required by the City Charter, but insists that there was sufficient evidence of probative force to show that the City had “actual notice” of his injury and damages within six months from the date of the incident and therefore the notice requirements of sec. 16 of the Texas Tort Claims Act had been satisfied.

Thus, the question to be determined on appeal is whether there is any evidence of probative force to support the jury’s findings that the City had “actual notice” of appellee’s injury and damages within six months of the date of the collision under the provisions of the Texas Tort Claims Act, sec. 16, providing that where the City has actual notice of injury or damages it is not necessary for the claimant to give notice describing the damages or injury.

Section 13 of the Texas Tort Claims Act provides that, “The provisions of this Act shall be liberally construed to achieve the purposes hereof.”

In considering the City’s “no evidence” points, we, of course, must view the evidence in its most favorable light in support of the jury findings on the issues of notice, considering only the evidence and inferences which support those findings and rejecting the evidence and inferences contrary thereto. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Miller v. Riata Cadillac Co., 517 S.W.2d 773, 777 (Tex.1974).

The record reveals that shortly after the accident, Police Officer George Frei arrived upon the scene after having been directed to do so by the Dispatcher at the City Police Department. He testified that he was a commissioned officer on the police force assigned to the Traffic Section and that his duties and responsibilities included the investigation of automobile collisions and making a report of his findings. He testified that his investigation revealed that the drivers of the automobiles involved in the collision were Amos Nard and Marvin Watson; that the automobile driven by Marvin Watson struck the automobile driven by Amos Nard in the intersection; and that after the Nard vehicle had been struck it spun around and when it came to rest it was facing back in the direction from which it came on West 13th Street. He talked to Mr. Watson at the scene who told him that the light was out on Bowie Street and he testified that he confirmed this fact by observing that the traffic signal was not in working order in that it gave no signal to motorists approaching the intersection on Bowie Street.

In the meantime, the ambulance operated by the City had arrived and had taken appellee to the hospital. Officer Frei testified that he later went to the hospital and talked to appellee Nard with regard to the accident in order to complete his report of the investigation. After his investigation had been completed he filled out a report on a form titled “Texas Peace Officer’s Accident Report,” by filling in the blank spaces listed thereon. The report was offered in evidence and he identified the same as the report of the accident in question. The report shows that in addition to filling in the blank spaces listing the names, addresses and the descriptions of the vehicles occupied by each of the participants in the accident, the officer noted thereon that appel-lee, Amos Nard, had been injured and also noted that the automobile driven by him had been damaged. On June 15, 1977, the City mailed appellee a bill demanding payment for the ambulance service furnished him by the City in transporting him to the hospital.

Police Chief, William H. McGee, after testifying that the records of the Police Department were under his supervision and control, testified that the reports made by the investigating officer are kept in the regular course of business by the Police Department. He identified the report made by Officer Frei as being a part of the business records of the Police Department. He also identified an instrument titled a “Complaint and Control Card” as a part of the business records of the Police Department. In connection with this card, he testified that it was made out by the Dispatcher at the Police Department and showed that the Dispatcher had been notified of a major accident at 13th and Bowie Streets on April 18, 1977, at approximately 11:10 a. m. The Police Chief testified that this report showed that an ambulance had been dispatched to the scene and also showed that a wrecker was sent to tow away a damaged vehicle. He acknowledged in his testimony that the attorney representing the appellee had visited his office for the purpose of discussing the accident in question, but that he could not remember the date thereof. He further testified that prior to the time appellee’s attorney- had discussed the accident with him, the City Attorney had come to his office for the purpose of discussing reporting procedures and the accident.

Marvin Watson, the driver of the other vehicle, testified that within a few days after the accident a representative of the City’s Public Works Department called on him stating that he was investigating the accident in question and testified that as they discussed the accident, the investigator took down notes on a yellow pad.

The Texas Tort Claims Act, sec. 16, supra, deals with the subject of notice of death or injury and provides as follows:

“Except where there is actual notice on the part of the governmental unit that death has occurred or that the claimant has received some injury or that property of the claimant has been damaged, any person making a claim hereunder shall give notice of the same to the governmental unit against which such claim is made, reasonably describing the damage or injury claimed and the time, manner and place of the incident from which it arose, within six months after the date of the incident. Provided, however, except where there is such actual notice, charter and ordinance provisions of cities requiring notice within a charter period permitted by law are hereby expressly ratified and approved.”

The City takes the position that appellee failed to comply with the foregoing notice provisions of the Texas Tort Claims Act because, even if the evidence recited above was sufficient to establish that the employees of the City had actual notice of appel-lee’s injury and damages, there is no proof that the City as a municipal corporation had actual notice of appellee’s personal injury and damages. The City seems to argue that in order to comply with the actual notice provisions of the Texas Tort Claims Act, it must be shown that some officer or other official of the City had actual notice of appellee’s injury and damages and that actual notice to a mere employee is not sufficient to subject the municipal corporation to liability. In 39 Tex.Jur.2d (Revised) Municipal Corporations sec. 221, p. 604, we find this statement:

“Inasmuch as a municipal corporation can receive notice only through its officers, agents, or representatives, notice or knowledge of any fact on the part of an officer is imputed to the city where it is received by the officer while on municipal business in circumstances imposing on him the duty of making the fact known to the city.”

The case of the City of Fort Worth v. Davidson, 117 Tex. 89, 296 S.W. 288 (Tex.Com.App.1927, holding approved) is cited by the foregoing treatise as authority for the above proposition of law. In that case the City of Fort Worth was sued for damages resulting from personal injuries sustained by the plaintiff in a collision with a wagon loaded with lumber which had been left on one of its public streets during a dark night with no light to warn travelers of the dangers of coming in contact with it. The suit was based on the negligence of the City in failing to have the obstruction removed from the street or in failing to provide warning lights. A police officer employed by the City saw the wagon on the street but did nothing about it and failed to report it to his police sergeant or any other official of the City. The following question was certified to the court for a determination, City of Fort Worth, supra, 296 S.W. at 289:

“ . . [W]e deem it advisable to certify to your honorable court whether or not actual notice to the police officer, Burnett, of the presence of the obstruction on the street as noted above would, as a conclusion of law, be actual notice to the city, and binding upon it?”

The court held as follows at 289:

“Cities, like other corporate entities, can only act through agents or representatives. Likewise, they can only receive notice through officers, agents, or representatives. But it is the general principle in the law of notice that, before notice of an agent or representative will be imputed to his principal, or superior, such notice must have come to the representative at a time when he was engaged in the business of his principal under circumstances imposing upon him the reasonable duty of making known the facts to his superior. Concretely stated, in a case like this, before notice to an individual officer or representative of the city will be considered as notice to the city, such officer or representative of the city, at the time he received actual notice of the obstruction in the street, must have been charged with some duty pertaining to the removal of such obstruction.”

The court went on to hold that the obstruction complained of in this case pertained to a matter fittingly within the control and supervision of the Police Department of the City. The court further pointed out that it appeared that the Police Department was the instrumentality through which the City had elected to deal with such matters, and therefore notice to a member of that department is peculiarly fitting as notice to the City itself.

In Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex.Com.App.1928, holding approved), it is stated:

“In common parlance ‘actual notice’ generally consist in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. . Actual notice is always a question of fact.”

' Upon applying the foregoing rules of law to the facts in the case before us, we are of the opinion that there is evidence of probative force to support the jury’s finding that the City had actual notice of the appellee’s injuries and damages at or near the time of the incident in question and appellee was not required to give the formal notice contemplated by the Act. The undisputed evidence shows that the Police Department was the instrumentality through which the City elected to deal with the investigation of accidents.

It is likewise undisputed that the Investigating Officer Frei was charged with the duty of making investigations of this type and making a report thereof to the City Police Department. The evidence shows without dispute that he carried out his assigned duty, made a report and turned the same over to the Police Department. The report shows that Officer Frei had actual knowledge that the appellee had sustained both personal injuries and damages to his automobile as a result of the accident. This information was placed in the files of the Police Department which were under the direct control and supervision of the Chief of Police. Thus, the report was sufficient to give the Chief of Police actual notice of appellee’s injury and damages. At least the means of knowledge of appellee’s injury and damages were in the hands of the Police Chief by reason of the report and he could have ascertained the truth of the matter on proper inquiry.

Moreover, the evidence shows that the City sent an investigator to talk with Marvin Watson, one of the participants in the accident. While the evidence does not show that this investigator gained any knowledge of the personal injury or damages of the appellee, the facts and circumstances surrounding the accident were sufficient to put them on inquiry, which if pursued would have revealed the fact that the appellee sustained an injury and damages to his automobile.

The testimony also shows that the City Attorney discussed the accident and reporting procedures with the Chief of Police. Thus the City Attorney having knowledge that the accident occurred as a result of a malfunctioning traffic signal was put on inquiry, and had he pursued the matter he could have ascertained that appellee suffered injuries and damages.

In any event, we think that the fact that Officer Frei had actual notice that the ap-pellee had received injuries and damages must be imputed to the City because such notice came to him as a representative of the City at a time when he was charged with a duty to gather the facts surrounding the accident and make known to the City that injuries and damages were sustained in the collision. City of Fort Worth v. Davidson, supra. See also 2 Tex.Jur.2d Agency, sees. 182, 183. Thus actual notice to Police Officer Frei of appellee’s injury and damages would, as a matter of law, be actual notice to the City. The first and second points are overruled.

After a review of the entire record and after weighing and balancing all of the evidence relating to the jury’s findings that the City had actual notice of appellee’s injury and damages, we find that we are unable to agree with the City’s contention that the evidence is factually insufficient to support such findings. Accordingly, points three and four are overruled.

Under the fifth and final point the City contends the trial court erred in overruling its objection to the definition of the term “actual notice” given in connection with Special Issues 5 and 6.

In view of our conclusion that actual notice to the Investigating Officer Frei of appellee’s injury and damage would, as a conclusion of law, be actual notice to the City and binding upon it, the submission of Special Issues 5 and 6,&as well as the definition of “actual notice” submitted in connection therewith, was superfluous and unnecessary. Thus the error, if any, in submitting the definition could not have resulted in any harm to the City, and therefore the fifth point will be overruled in accordance with the mandate of Rule 434, Tex.R.Civ.P.

The judgment of the trial court is affirmed.

      . Article 6252-19. All statutes are referred to by the article number under which they appear in Vernon’s Annotated Texas Civil Statutes.