author: McDONALD, Justice.

text:
    STEAKLEY BROTHERS CHEVROLET, INC., Appellant, v. Hubert WESTBROOK, Appellee.
    No. 5738.
    Court of Civil Appeals of Texas, Waco.
    Nov. 10, 1977.
    Rehearing Denied Dec. 8, 1977.

      Stephen R. Fontaine, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appellant.
    Claude R. Giles, Giles & Makowsky, Maurice G. Walton, Haley, Fulbright, Winni-ford, Bice & Davis, Waco, for appellee.
   OPINION

McDONALD, Justice.

This is an appeal by defendant Steakley from judgment for actual and exemplary damages awarded plaintiff in a suit for conversion of a motorcycle.

Plaintiff Westbrook sued defendant Steakley alleging plaintiff owned a motorcycle; that prior to any payment being due thereon, defendant wrongfully repossessed and wrongfully converted such motorcycle. Plaintiff prayed for actual and exemplary damages.

Trial was to a jury which found:

1) Steakley converted Westbrook’s Honda motorcycle.
2) The reasonable cash market value of such motorcycle on March 26,1974 was $1700.
3) “Do you find from a preponderance of the evidence, if any, that Steakley * * acted wilfully and maliciously in taking the Honda motorcycle of Hubert West-brook on March 26, 1974?
“By the term ‘wilfully and maliciously’ is meant the intentional doing of a wrongful act without just cause or excuse; that is, if a wrongful act is intentionally done without just cause or excuse for believing it to be right or legal, or done with conscious disregard to the rights of others, then such act is wilfully or maliciously done. Willfulness and intent may be inferred by the actions and conduct of the wrongdoer.
“Answer: We Do.”

If you have answered Issue 3 “We do,” then answer Issue 4.

4. “What sum of money, if any, do you find from a preponderance of the evidence that Hubert Westbrook should be awarded against Steakley Brothers Chevrolet as exemplary damages?
“ ‘Exemplary damages’ means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages, and may include compensation for inconvenience and reasonable attorney’s fees.
“Answer: $5000.”
5. Westbrook had not defaulted on the retail installment sales contract covering his purchase of the Yamaha motorcycle.

The trial court rendered judgment on the verdict for plaintiff for $6700.

Defendant appeals on 5 points contending.

1) The trial court erred in overruling defendant’s motion for judgment non obstante veredicto because, as a matter of law defendant was entitled to repossess the motorcycle, and therefore there was no conversion.
2) The trial court erred in overruling defendant’s objection to the charge because the court incorrectly defined the term “exemplary damages” and refused the definition tendered by defendant.
3) There is no evidence to support the submission of Issue 4 on exemplary damages.
4) There is no evidence to support the submission of Issue 3 inquiring whether defendant acted wilfully and maliciously.
5)There is insufficient evidence to support the jury’s answer to Issue 3.

On February 22, 1974, Westbrook purchased a 1974 Yamaha motorcycle from Steakley and signed a Retail Installment Contract-Motor Vehicle and Security Agreement, which Steakley assigned to the Westview National Bank. Westbrook had problems with the Yamaha and returned it to Steakley on March 9. At that time Westbrook traded the Yamaha in on a new 1974 Honda motorcycle signing a second Retail Installment Contract-Motor Vehicle and Security Agreement dated March 9, 1974. Westbrook asked Steakley’s credit manager if a $52.95 payment he had made on the Yamaha had been credited. The credit manager called the bank and was advised that the bank had no record of the check. Mr. Westbrook thereafter stopped payment on the $52.95 check. Steakley in computing the amount Westbrook was to be given credit for on the Honda gave credit for the $52.95. Thereafter the Westview Bank advised Steakley that Westbrook had stopped payment on the $52.95 check (which they had apparently credited) and on March 26, 1974, 3 weeks before the first payment was due on the Honda, at a time when Westbrook had used both motorcycles for a total time of one month and four days, and had paid down in cash some $650., Steakley physically repossessed the Honda motorcycle from the parking lot at TSTI where plaintiff worked as a computer operator.

The second Retail Installment Contract-Motor Vehicle and Security Agreement, on the Honda, was transferred and assigned to Westview National Bank. This instrument provided among other matters that the holder could repossess when the security agreement was in default, and defines default. Thus the bank was the secured party, and Steakley had no authority to repossess even if grounds should exist under which the bank could take such action.

Defendant’s 1st point contending defendant was entitled to repossess the motorcycle as a matter of law, is overruled because Steakley was not holder of the security agreement; and further because there was no showing that the second security agreement was in default. See: Murrell v. Griswold, S.Ct., Okl., 338 P.2d 150.

Contention 2 asserts the trial court erred in not correctly defining “Exemplary damages” in the charge, and that the trial court failed to tell the jury that exemplary damages could only be awarded if defendant’s act partook of a wanton and malicious nature. The trial court submitted Issue 3 (with instruction) inquiring of the jury if defendant acted wilfully and maliciously in taking the Honda motorcycle on March 26; (to which the jury answered “We Do”) and submitted Issue 4 on exemplary damages conditioned on an affirmative answer to Issue 3; and included further instructions as to what might be considered in fixing exemplary damages. Issue 3 with its instruction considered together with Issue 4 and its instruction, contains proper and correct instruction on exemplary damages. Southwestern Investment Co. v. Alvarez, Tex., 453 S.W.2d 138; Ogle v. Craig, Tex., 464 S.W.2d 95; Courtesy Pontiac, Inc. v. Ragsdale, Tex.Civ.App. (Tyler) NRE, 532 S.W.2d 118.

Contention 3 asserts there is no evidence to support the submission of Issue 4 and Contention 4 asserts there is no evidence to support the submission of Issue 3.

Steakley knew or should have known that it had no legal right to repossess Westbrook’s motorcycle having transferred and assigned the security agreement to the Westview Bank. Ill will may be implied from a knowing conversion of another’s property without a legal right thereto. Courtesy Pontiac, supra. And the record reflects Steakley acted wilfully and in disregard for Westbrook’s rights in which event exemplary damages are authorized. Roy Gladen Buick, Inc. v. Sterling, Tex.Civ. App. (Waco) NRE, 524 S.W.2d 590; First Security Bank & Trust Co. v. Roach, Tex. Civ.App. (Dallas) NRE, 493 S.W.2d 612.

Steakley repossessed plaintiff’s motorcycle by picking it up off a parking lot where plaintiff was employed, when plaintiff had paid $650. down on the motorcycle, had it just 34 days, and was not delinquent in a single payment, and when Steakley didn't own the security agreement.

Contention 5 asserts the evidence factually insufficient to support the jury’s answer to Issue 3. This point was not raised in motion for new trial and has been waived; we further hold the evidence is factually sufficient and ample to sustain the jury’s answer.

All defendant’s points are overruled.

AFFIRMED.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Floyd BURSON et ux., Appellants, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 17899.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 10, 1977.
    Rehearing Denied Dec. 8, 1977.

      Ernest L. Sample, Beaumont, for appellants.
    Cantey, Hanger, Gooch, Munn & Collins and William L. Hughes, Jr., Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a venue case. Plaintiffs sued the drivers of two vehicles for damages for personal injuries they sustained in a motor vehicle accident that occurred in Tarrant County. Alleging that one of the motorists did not have liability insurance, plaintiffs also sued their own insurance carrier under the uninsured motorist portion of their insurance policy. Defendant insurance company filed a plea of privilege to be sued in the county of its residence (Dallas County); plaintiffs timely filed a controverting affidavit. After a hearing, the trial court sustained the insurance company’s plea of privilege.

We reverse and render.

On appeal, appellants bring forth one point of error; i. e., they contend that the trial court erred in sustaining the insurance company’s plea of privilege because plaintiffs proved a cause of action against the defendant under Subd. 23 of Art. 1995.

In substance, Sub. 23 of Art. 1995 provides that a suit may be maintained against a private corporation in the county in which the cause of action arose. In order to maintain venue in Tarrant County against this defendant under the uninsured motorist coverage of the policy pursuant to Subd. 23 of Art. 1995 , the plaintiffs were required to (1) establish the existence of the contract of insurance, and (2) establish a breach of such contract by the defendant, which requires proof that an uninsured motorist’s negligence was a proximate cause of the damages sustained. Hightower v. Members Mutual Insurance Company, 494 S.W.2d 285 (Tex.Civ.App. — Waco 1973, no writ).

In Ranger County Mut. Ins. Co. v. Chrysler Credit Corp., 501 S.W.2d 295 (Tex.1973), the supreme court wrote:

“The insured is required to produce the insurance contract upon which he sues or to prove its terms.” Id. at 298.

In the case at bar, the plaintiffs did not introduce the insurance policy itself into evidence. Rather, they introduced an “insurance renewal certificate” into evidence. This renewal certificate continued the insured’s policy in force from January 14, 1975, to January 14, 1976; it also shows that the insured’s coverage included uninsured motorist protection, for which the plaintiffs paid a premium. The statutory requirements of uninsured motorist coverage is found in Tex.Ins. Code Ann. art. 5.06-1 (1977). The insurance contract issued by the defendant company had to contain the required statutory provisions concerning uninsured motorist protection. Since the renewal certificate showed that uninsured motorist coverage had not been rejected but had been paid for by these plaintiffs, we take judicial notice of Tex. Ins. Code Ann. art. 5.06-1 (1977) to supply the required terms of the uninsured motorist contract. Accordingly, we hold that the plaintiffs had proved the terms of the insurance contract.

The facts of Ranger County Mutual, supra, can be distinguished from the facts of the case at bar. The former case involved the construction and effect of an automobile insurance binder. By its very terms, the binder had expired on April 1,1971, and the loss had occurred on July 12, 1971. Recognizing that binders automatically expire at the termination of a given period of time and that the loss had occurred outside that time frame, the supreme court correctly reversed the case and wrote: “[T]he question is whether the binder was in effect at the time of the loss, and on this controlling issue plaintiff made no allegation or proof. . . . ” In the case at bar, however, the renewal certificate issued by the insurance company clearly shows that the uninsured motorist coverage was in effect at the time of the accident. We hold that these plaintiffs have met the requirements of the Ranger County Mutual, supra, case.

Defendant insurance company contends that the judgment of the trial court can be sustained on the additional point of the insufficiency of proof that Mr. Maxey was uninsured at the time of the accident.

The absence of insurance on a driver and the vehicle are conditions precedent to the applicability of the uninsured motorist coverage. State Farm Mutual Automobile Ins. Co. v. Matlock, 462 S.W.2d 277, 278 (Tex. 1970). In their original petition in the instant case, plaintiffs alleged that “[a]11 conditions precedent have been performed or have occurred which are required of Plaintiffs to enable them to recover under the uninsured motorist provision of said insurance policy.” (Emphasis added.) Such language necessarily means that all conditions precedent to bringing the suit have occurred.

Effective January 1, 1976, Tex.R.Civ.P. 93(p) provides:

“In the trial of any case brought against an automobile insurance company by an insured under the provisions of an insurance policy in force providing protection against uninsured motorists, an allegation that the insured has complied with all the terms of the policy as a condition precedent to bringing the suit shall be presumed to be true unless denied by verified pleadings which may be upon information and belief."

The purpose of Tex.R.Civ.P. 93(p) was to simplify the trial of an uninsured motorist case so as to avoid consuming the time of the trial court in the proof of a matter of which there is no good faith contest. Keith, . Comments on the 1975 Amendments to the Texas Rules of Civil Procedure, 39 Tex.B.J. 129, 130 (1976). The amendment was also in response to the realization of the difficulty of proof of a negative fact, such as had troubled the supreme court in State Farm Mutual Automobile Ins. Co. v. Matlock, supra.

Since the defendant-insurer has not brought into issue whether Maxey was insured as required by Tex.R.Civ.P. 93(p), it is presumed to be true since it is a condition precedent to bringing the suit against the uninsured motorist insurer. The effect of Tex.R.Civ.P. 93(p) in an uninsured motorist suit is to give the defendant an opportunity to contest the conditions precedent to plaintiff’s initiation of the suit. When these conditions precedent are in dispute, the defendant may bring them into issue through his denial by verified pleadings which may be upon information and belief. Since the defendant did not bring the uninsured status of the driver into issue as required by Tex.R.Civ.P. 93(p), we hold that plaintiffs have sufficiently proved that Maxey was an uninsured motorist at the time of the accident. In order to resolve any doubt on this matter, the legislature has enacted Tex.Ins. Code Ann. art. 5.06-1, (7), effective August 29, 1977, which provides: “If a dispute exists as to whether a motor vehicle is uninsured, the burden of proof as to that issue shall be upon the insurer.”

We have reviewed the evidence to determine whether the other venue requirements under Subd. 23 of Art. 1995%rl%n have been properly proved; we hold that plaintiffs have proved each of those requirements. We sustain appellants’ sole point of error. We reverse the judgment of the trial court which ordered the case transferred. We overrule the plea of privilege of Employers Casualty Company and order that the case be tried in Tarrant County.

      . Tex.Rev.Civ.Stat.Ann. (1964).


author: RALEIGH BROWN, Justice.

text:
    GRANITE STATE INSURANCE CO., Appellant, v. Gary Dwayne FIREBAUGH, Appellee.
    No. 5089.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 10, 1977.
    Rehearing Denied Dec. 8, 1977.
    Robert D. Batjer, Jr., Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, for appellant.
    Edward E. Cockerell, Abilene, for appel-lee.
   RALEIGH BROWN, Justice.

This case of first impression requires an interpretation of Article 8307, Sec. 6a, V.A. C.S., of the Workmen’s Compensation Act as amended effective September 1, 1973. We must determine whether the amendment permits a claimant to pursue to conclusion a third party claim and then recover workmen’s compensation benefits without accounting to the carrier for sums recovered.

Gary Dwayne Firebaugh lost the effective sight of his right eye as a result of a motor vehicle accident on or about December 31, 1975. At the time of the accident, Firebaugh was a member of a drilling crew employed by DB Drilling Company traveling as a passenger in a vehicle owned and being operated by the driller, Tipton. The crew was on its way to the rig when the accident occurred. When Firebaugh was employed, he was told that transportation to and from the drilling rig would be provided by Tipton and paid for by DB.

Following the accident, Firebaugh made claim against Granite State Insurance Co., the workmen’s compensation carrier for DB Drilling Company. Granite denied liability contending Firebaugh was not within the course and scope of his employment at the time of the accident and communicated such contention to Firebaugh, who then made claim against Tipton asserting negligent operation of the vehicle proximately caused the accident and his resulting injury. The claim was settled and Firebaugh received $12,500 paid by and on behalf of Tipton. A general release in favor of Tip-ton was executed by Firebaugh on March 12, 1976.

This workmen’s compensation case was then brought by Firebaugh in August of 1976. The case was submitted to the court upon an agreed statement of facts. Judgment was entered in favor of Firebaugh in the sum of $8,602 together with interest at the rate of nine percent (9%) per annum from date until paid. Granite State Insurance Co. appeals. We reverse and render.

Article 8307, Sec. 6a, effective September 1, 1973, provides in part:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may proceed either at law against that person to recover damages or against the association for compensation under this law, and if he proceeds at law against the person other than the subscriber, then he shall not be held to have waived his rights to compensation under this law. . . . ”

Prior to such amendment, if the employee elected to proceed at law for damages, he was not entitled to statutory compensation. Garza v. United States Fidelity & Guaranty Co., 251 S.W.2d 781 (Tex.Civ.App.—San Antonio 1952, writ ref. n. r. e.).

Section 6a prior to September 1, 1973 provided in part:

“Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employé may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law . . . ”

In considering the purpose of Section 6a prior to the 1973 amendment, the court in Capitol Aggregates, Inc. v. Great American Insurance Company, 408 S.W.2d 922 (Tex.1966) stated:

“. . . Section 6a was adopted to prevent overcompensation to the employee and to reduce the burden of insurance to the employer and to the public. See Consolidated Underwriters v. Kirby Lumber Co., Tex.Com.App., 267 S.W. 703. These purposes will not be accomplished if the employee is allowed to retain the proceeds of the settlement in addition to his compensation benefits while the carrier is only partially reimbursed for what it has paid ... As pointed out in [Traders General Ins. Co. v.] West Texas Utilities [140 Tex. 57, 165 S.W.2d 713], ‘the right of the association to reimbursement out of the first money paid is statutory; and in event the employee is permitted, without the consent of the association, to settle his claim against the alleged third person tort-feasor, thus eliminating his further interest in the suit, the provision of the statute authorizing the insurance association to enforce for the joint use and benefit of said employee and the association the liability of such tort-fea-sor, is thereby nullified.

The court in Employers’ Indemnity Corporation v. Felter, 277 S.W. 376 (Tex. Comm’n App.1925) considering Section 6a said:

“These sections of the law seem to us to be perfectly clear and unambiguous, so far at least as they have any bearing upon the question at issue here. They do not need the application of the ordinary rules of construction. The language employed speaks for itself ... It was not the purpose of the Compensation Act to protect third parties from the consequences of their negligence. The lawmakers, realizing that much larger recoveries could be had by injured people under the common law than under compensation statutes, very wisely left it to the injured person to exercise an option in the premises and seek to recover what seemed to him to be for his best interests. On the other hand, if the injured person preferred compensation, then the lawmakers decided it was right to give to the insurance company the right to make the guilty party pay; hence the act subro-gates the insurance company to the cause of action which the injured party himself had against the third party. This is a most valuable right. No one could well deny this conclusion. But the Legislature went further and protected the injured employee by restricting the insurance company in its recovery against the tort-feasor to a return of the amount it had paid out in compensation. If it recovered more than such amount from the tort-feasor, the excess goes to the injured employee. So every effort was made to give to the injured employee every possible advantage, at the same time according to the insurance company a right to recoup its loss if the injury was negligently caused by some third party.”

Section 6a as amended includes the following:

“. . . If compensation be claimed under this law by the injured employee or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee or of his legal beneficiaries the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the employee or his legal beneficiaries, then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess so recovered shall be paid to the injured employee or his beneficiaries
It further provides:
“If at the conclusion of a third party action a workmen’s compensation beneficiary is entitled to compensation, the net amount recovered by such beneficiary from the third party action shall be applied to reimburse the association for past benefits and medical expenses paid and any amount in excess of past benefits and medical expenses shall be treated as an advance against future benefit payments of compensation to which the beneficiary is entitled to receive under the Act. When the advance is adequate to cover all future compensation and medical benefit payments as provided by this law, no further payments shall be made by the association but if insufficient, the association shall resume such payments when the advance is exhausted. The reasonable and necessary medical expenses incurred by the claimant on account of the injury shall be deducted from the advance in the same manner as benefit payments.”

The court in Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972) addressing itself to Section 6a and its effect on the matter of limitations as applicable to third party tort-feasors suggested the Legislature’s intent in amending Section 6a saying:

“The rule in Texas may be stated as follows: When a claimant elects to proceed under workmen’s compensation statutes and qualifies for an award thereunder, the cause of action of the compensation carrier does not accrue against a third party until the amount of the award made by the Industrial Accident Board is paid by the carrier or until the claimant obtains a final judgment in a court of competent jurisdiction against such insurance carrier. When either of these events occur, the cause of action matures against the third party and the suit authorized by Section 6a must be filed on such cause of action either by the carrier or by the insured within two years from that date. Fidelity Union Casualty Co. v. Texas P. & L. Co., [Tex.Civ.App., 35 S.W.2d 782] supra. This Court has recognized in the past in other types of cases that limitation runs from the date the cause of action accrues rather than from the date of the original accident or injury. See Hernandez v. Great American Ins. Co. of N. Y., 464 S.W.2d 91 (Tex.1971).
We recognize that this rule may, on occasion, work an injustice on the third-party defendant because of the delay in pursuing the cause of action against him. The fault, however, lies in the requirement of Section 6a, which provides that the employee waives his claim for compensation if he proceeds against the third party prior to final determination of the claim. We would strongly urge that the Legislature consider an amendment of Article 8307, Section 6a, to allow the injured workman to file a third-party action without thereby losing his compensation rights. The third-party rights should then be governed by Article 5526.”

Tex.Rev.Civ.Stat.Ann. art. 5429b-2, Sub-chapter C, Construction of Statutes, provides in part:

“Sec. 3.01. In enacting a statute, it is presumed that:
(2) the entire statute is intended to be effective;
(3) a just and reasonable result is intended;
(4) a result feasible of execution is intended; and
(5) public interest is favored over any private interest.”

The court in Minton v. Frank, 545 S.W.2d 442 (Tex.1976) said:

“The cardinal rule of statutory interpretation is to ascertain legislative intent. State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964). Where the intent is apparent from the words of the statute, it is not necessary for this Court to make any analysis of the extrinsic evidence of legislative intent. Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex.1965).”

Applying the announced rule, we conclude Section 6a as amended effective September, 1973, does not change the purpose of Section 6a. The amendment extended the injured employee the right to proceed against a third party tort-feasor without precluding him from subsequently claiming compensation under the Workmen’s Compensation Act. See Potter v. Crump, 555 S.W.2d 206 (Tex.Civ.App.—Fort Worth 1977, writ filed). It specifically con tinued, however, “the association shall be subrogated to the rights of the injured employee”. Further, the amendment provides, “at the conclusion of a third party action . the net amount recovered shall be applied to reimburse the association . and any amount in excess . . . shall be treated as an advance”.

Even though Section 6a no longer cuts off the compensation rights of an employee who does not pursue his claim for compensation first, we hold the claimant may not be permitted to pursue to conclusion a third party claim and then seek workmen’s compensation without accountability to the carrier for sums recovered. To hold otherwise would render totally ineffective the other sections of Section 6a as amended and permit a double recovery by the employee.

The judgment of the trial court is reversed and judgment rendered that Fire-baugh take nothing.


author: HALL, Justice.

text:
    Richard INMAN, Appellant, v. Waymon WALLACE et ux., Appellees.
    No. 5772.
    Court of Civil Appeals of Texas, Waco.
    Nov. 10, 1977.
    W. B. Phillips, Duncan, Bragg, Barron & Phillips, Killeen, Jeffery L. Lagow, Temple, for appellant.
    Dale E. Muller, Austin, for appellees.
   HALL, Justice.

Waymon Wallace and his wife brought this action against Richard Inman asserting that in October and November, 1974, the parties negotiated a sale of plaintiffs’ taxicab businesses located in the cities of Belton and Temple to defendant; that defendant prepared a comprehensive written “Purchase Agreement” containing the terms of the sale; that defendant represented to plaintiffs that he would sign the Purchase Agreement; that in reliance upon this representation plaintiffs signed the Purchase Agreement, and, on December 1, 1974, turned over their taxicab business and equipment to defendant; that defendant never signed the Purchase Agreement; that in January, 1975, on defendant’s request, plaintiffs executed an instrument denominated “Bill Of Sale” in which they purported to sell their taxicab business and equipment to Belton Industries, Inc., a corporation owned and controlled by defendant; that defendant “first led them to believe that he would execute the Purchase Agreement and then after having taken over the business switched the name of the purchaser to that of Belton Industries,-Inc., to attempt to avoid liability under the Agreement”; that defendant “falsely and fraudulently represented to them as an inducement to get them to execute the Purchase Agreement that he would also execute the Agreement and comply with and fulfill the provisions thereof”; that defendant acted maliciously in the premises; that “as part of the overall transaction” shown in the Purchase Agreement defendant agreed to assume and promptly pay the following:

1. $8,773.00 owed by plaintiffs to Peoples National Bank, Belton, Texas, secured by lien on certain realty owned by plaintiffs;
2. All future payments due to Tiger Leasing Corporation for certain taxicab business equipment leased by plaintiffs;
3. Withholding taxes owed by plaintiffs to the Federal Internal Revenue Service;

that “but for” defendant’s representations and promises plaintiffs would not have let him take control of their businesses; that defendant did not pay the $8,773.00 note to the bank, and plaintiffs were required to pay it to avoid foreclosure on their realty securing it; that defendant did not make payments due to the Leasing Corporation, plaintiffs were sued on the lease for the sum of $6,061.41, it was a just debt, they had no defense, and they must pay it; and that defendant did not promptly pay the past due withholding taxes to Internal Revenue Service, thereby causing plaintiffs to incur additional penalty and interest charges in excess of $1,000.00 which they must pay. Plaintiffs prayed for the recovery of those amounts as damages. They also prayed for damages generally “as may be proven,” and for exemplary damages.

Plaintiffs attached a copy of the pleaded “Purchase Agreement” to their petition. Although a place was provided on the Agreement for defendant’s signature, it was signed only by plaintiffs.

Defendant alleged in his answer that the Purchase Agreement attached to plaintiffs’ petition was never agreed to by the parties “as is indicated by the fact that it is not executed by all the parties”; that the written Purchase Agreement was simply “a stage in the negotiations whereby the parties sought to reach a set of terms to which all parties could agree”; that the final agreement between defendant and plaintiffs “was oral”; that defendant had fulfilled his obligations under the agreement; and that insofar as plaintiffs’ suit was based on alleged promises by defendant to pay plaintiffs’ debts it violated the Texas Statute of Frauds.

The case was tried to a jury. Answering special issues numbered as follows, the jury made these findings of fact:

1. Before plaintiffs signed the Purchase Agreement, defendant represented to them that he would sign it.
2. The representation “was material to plaintiffs signing” the agreement.
3. The representation was false when defendant made it.
4. The representation was made “with the intent to induce plaintiffs to deliver their businesses and personal property pursuant to the written agreement.”
5. Plaintiffs relied upon the representation when they delivered their businesses and personal property to defendant.
6. “Plaintiffs suffered damages as a result of said representation.”
7. $2,500.00 would reasonably compensate plaintiffs for their damages.
8. In making the representation, defendant acted with malice.
9. Plaintiffs should be awarded $7,500.00 for exemplary damages.
10. Defendant agreed to make all future payments to Tiger Leasing Corporation under the equipment lease made by plaintiffs.
11. The promise was false.
12. Defendant “concealed material facts from plaintiffs regarding said promise.”
13. The promise was made with the intent that plaintiffs act upon it.
14. Plaintiffs did act on the promise.
15. “Plaintiffs were damaged due to such promise.”
16. $6,061.00 would reasonably compensate plaintiffs for their damage.
17. Defendant agreed to assume and pay the $8,773.00 note held by Peoples National Bank, Belton, Texas.
18. The promise was false.
19. Defendant “concealed material facts from plaintiff regarding said promise.”
20. The promise was made with the intent that plaintiffs act on it.
21. Plaintiffs did act on the promise.
22. “Plaintiffs were damaged due to such promise.”
23. $8,773.00 would reasonably compensate plaintiffs for their damage.
24. Defendant agreed to promptly pay Internal Revenue Service.
25. The promise was false.
26. Defendant “concealed material facts from plaintiff regarding said promise.”
27. The promise was made with the intent that plaintiffs act on it.
28. Plaintiffs did act on the promise.
29. “Plaintiffs were damaged due to such promise.”
30. $1,000.00 would reasonably compensate plaintiffs for their damage.

Judgment was rendered on the verdict awarding plaintiffs $18,334.00 for actual damages plus $7,500.00 for exemplary damages. Defendant appeals. We affirm.

Defendant asserts that plaintiffs’ suit on his promises to pay their debts to the Bank, the Leasing Corporation, and the Internal Revenue Service is unenforceable under the provisions of V.T.C.A., Bus. & C. § 26.01, the Texas Statute of Frauds, pleaded by defendant, which provides in part as follows:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to
(2) A promise by one person to answer for the debt, default, or miscarriage of another person . . . .”

This contention is overruled. Plaintiffs’ suit is not based upon defendant’s oral promises or agreement to pay their debts. Rather, it is based upon defendant’s fraud in the making of the promises. The applicable rule is set forth in 37 C.J.S. 549 Frauds, Statute Of § 32, as follows:

“The fact that false representations are made in connection with a contract which the general statute of frauds requires to be in writing does not render it necessary that such representations shall be in writing in order that they may sustain an action of deceit, or be relied on as ground for rescinding the contract, where plaintiff does not seek to enforce the contract or sue for a breach thereof.”

Defendant contends that because the misrepresentations relied upon by plaintiffs were only of future events and not of past or present facts, they cannot as a matter of law be the basis of a cause of action for fraud. We disagree. Actionable fraud can be based upon a promise of future action with a present intention not to perform. Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex.Sup.1971). In our case, the jury found in answers to special issues numbered 3, 11, 18, and 25, that each representation relied upon by plaintiffs was false when it was made. There are no points of error or arguments attacking these findings. A finding that a promise was false when made is the equivalent of a finding that the promisor did not intend to keep it when he made it.

Defendant seeks reversal on the ground that special issue number seven did not submit and does not support a proper measure of damages. Defendant did not object to the court’s charge on this ground. The complaint was therefore waived. Rule 274, Vernon’s Tex.Rules Civ.Proc.; Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864, 867 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.).

Most of the remainder of defendant’s contentions question the legal and factual sufficiency of the evidence to support certain jury findings. Some of the remaining complaints are waived because they are not supported by assignments in defendant’s motion for new trial, or because they were not raised with sufficient particularity in the trial court to merit review. All are without merit and are overruled.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    Harmon R. OXFORD, Appellant, v. Honorable John L. HILL, Attorney General, et al., Appellees.
    No. 12580.
    Court of Civil Appeals of Texas, Austin.
    Nov. 16, 1977.
    Rehearing Denied Jan. 4, 1978.

      Brinkley L. Oxford, Royce A. Oxford, Oxford & Oxford, Edinburg, for appellant.
    John L. Hill, Atty. Gen., M. Lynn Taylor, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

Appellant, Harmon Robert Oxford, who was plaintiff below, brought this suit for declaratory judgment, praying for temporary restraining order “until this [trial] Court has time to try the case on the merits,” and seeking to establish invalidity of the Texas Child Care Licensing Act (Art. 695a-3, V.A.C.S.; Acts 1975, 64th Leg., p. 2240, ch. 708, eff. Jan. 1, 1976). Oxford named as defendants the Attorney General of Texas and the Commissioner of the Texas Department of Public Welfare.

The Attorney General, for his office and the Commissioner, answered by exception and general denial, and also by plea in abatement on the ground that the suit is against the State of Texas to which the State has not consented. The trial court found Article 695a-3 constitutional and sustained the plea in abatement and dismissed the case.

Oxford has appealed and brings two points of error. We will overrule both points and affirm judgment of the trial court.

The record shows that appellant is an employee of the Roloff Evangelistic Enterprises, Inc., operating a home in Zapata County “for rehabilitating boys who have been convicted of being juvenile delinquents or whose parents placed them in homes operated by the Plaintiff for correction and rehabilitation.” Oxford contended below and contends on appeal that control over child care homes vested in the State Department of Public Welfare, as set out in Article 695a-3, impinges upon his free exercise of religion guaranteed by the First Amendment of the Constitution of the United States.

Appellees contend on the contrary that the Act is constitutional and that failure of Oxford to obtain legislative consent to sue is fatal to maintenance of this action.

The Legislature declared its intent in Section 1(b) of the Child Care Licensing Act in this language:

“It is the legislative intent to protect the health, safety, and well-being of the children of the state who reside in child care facilities. Toward that end, it is the purpose of this Act to establish statewide minimum standards for the safety and protection of children in child care facilities, to insure maintenance of these standards, and to regulate such conditions in such facilities through a program of licensing. It shall be the policy of the state to insure protection of children under care in child care facilities, and to encourage and assist in the improvement of child care programs. It is the further legislative intent that the freedom of religion of all citizens shall be inviolate. Nothing in this Act shall give any governmental agency jurisdiction or authority to regulate, control, supervise, or in any way be involved in the form, manner, or content of any religious instruction or the curriculum of a school sponsored by a church or religious organization.” (Art. 695a-3, sec. 1(b). (Emphasis added).

Oxford insists that the Act is unconstitutional because it “. . . flagrantly violates the separation of church and state .” The First Amendment to the Constitution of the United States in unqualified language prohibits the establishment by government of religion and protects the free exercise of religion in these words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ”

The Fourteenth Amendment renders legislatures of the states “as incompetent as Congress to enact such laws” as denied to Congress by the First Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

Nearly a century ago the Supreme Court of the United States held that by the First Amendment “. . . Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” (Emphasis added). Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878). The Supreme Court in 1940 broadened the distinction between legislative control of opinion and regulation of action. In Cantwell v. Connecticut, supra, the Court characterized the First Amendment as embracing “two concepts— freedom to believe and freedom to act.” The Court continued, “The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." (310 U.S. 303, 304, 60 S.Ct. 903). (Emphasis added).

The purported conflict between parental control over children based upon religious belief and state child labor laws regulating child.labor was the issue resolved by the Supreme Court in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). There the attack on child labor laws was in behalf of a Jehovah’s Witness, a girl aged nine years, who believed it her religious duty to perform work in contravention of the child labor laws and that failure to perform her work would bring to her condemnation “to everlasting destruction at Armageddon.”

The Court examined at length the state’s interest in protecting children, even when laws, enacted to achieve this goal, were in conflict with the religious belief of the parents. In balancing these opposing interests, the Court made clear that “. . . the family itself is not beyond regulation in the public interest . . . and neither rights of religion nor rights of parenthood are beyond limitation.” The Court declared that the state’s “. . . authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.” 321 U.S. 166, 64 S.Ct. 442. In summary, the Court added “. . . the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that ... includes, to some extent, matters of conscience and religious conviction.” 321 U.S. 167, 64 S.Ct. 442.

We conclude that although Oxford claims the Child Care Licensing Act violates the free exercise of religion, it is reasonable to find that regulation of the child care homes subject to the Act in no way abridges the absolute freedom of religious belief, but that the Act is a regulation of conduct. We hold that the Act being a regulation only of conduct, the law’s purpose and effect are to advance the valid secular goals of the state.

Oxford further challenges the Child Care Licensing Act as an unconstitutional attempt by the Legislature to delegate its law making power to the Department of Public Welfare. Section 5 empowers the department to “. . . promulgate reasonable rules and regulations to carry out the provisions of this Act” and provides specified areas in which the Department may prescribe minimum standards for safety, facilities, health, comfort, and supervision within the child care homes. Sections 23 and 24 prescribe civil and criminal penalties for violations.

The Constitution of Texas expressly provides for separation of powers of the legislative, executive, and judicial branches of government and disallows exercise of the powers of one branch by another, except in instances expressly permitted by the Constitution. (Art. II, sec. 1). This fundamental principle has been carried forward to the present Constitution from its inclusion in the Constitution of the Republic of Texas, adopted in 1836.

It is settled that generally legislative delegation of authority to make rules and regulations must fix standards in order to be valid. Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940), 130 A.L.R. 1053; Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, 921 (1960). The standards set up by the Legislature may be broad where conditions must be considered which cannot conveniently be investigated by the legislative branch. Housing Authority v. Higginbotham, supra, 143 S.W.2d 87.

It is also clear that the Legislature may properly delegate to an administrative agency authority to establish rules and regulations, or minimum standards, which reasonably carry out the expressed purpose of the statutory law in question. Beall Medical Surgical Clinic and Hospital v. Texas State Board of Health, 364 S.W.2d 755, 757 (Tex.Civ.App. Dallas 1963, no writ) citing Higginbotham, supra, and Falkner, supra; Williams v. State, 514 S.W.2d 772, 774 (Tex. Civ.App. Beaumont 1974, writ ref’d n.r.e.).

The Court in Williams v. State, supra, met the contention that an invalid delegation of legislative authority had been attempted in the Texas Water Well Drillers Act (Art. 7621e, V.A.C.S.) with a review of existing case law and examination of various sections of the Act, reaching the conclusion that the Act was sufficiently complete and comprehensive in itself and did no more than delegate to the administrative agency “. . . authority to establish rules, regulations, and minimum standards to reasonably carry out the expressed purpose of the Act.” (514 S.W.2d 776).

Section 5(a) of the Child Care Licensing Act is similar to Section 7(a) of the Water Well Drillers Act under consideration in Williams v. State. In the Act under review here Section 5(a) is followed by sixteen guidelines more specific with respect to standards, as well as by definitive sections on immunization of children, inspection of child care homes, and licensing, thereby overcoming any doubt implying vagueness or generality in the Act. The Court of Criminal Appeals approved a similar delegation of authority by the Legislature to the Department of Public Safety in 1969. (Art. 6701c-3, secs. 2, 7, Y.A.C.S.). Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App. 1969).

We hold that the Legislature did not go beyond its recognized constitutional right to delegate to an administrative agency authority to establish rules, regulations, and minimum standards reasonably to carry out the expressed purposes of the Act which are to guard and protect the health, safety, and well-being of children of the state who reside in child care facilities.

In ordering dismissal of Oxford’s suit, the trial court held that the Act “. . . is constitutional, and . this suit is, accordingly, a suit against the State of Texas to which the State has not consented.” The applicable rule of law is firmly established that acts of officials of the state which are not lawfully authorized are not acts of the State, and an action against the officials, by one whose rights have been invaded or violated by such acts and who seeks determination or protection of such rights, is not a suit against the State within the rule of immunity of the State from suit. (Emphasis added). Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945); W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958).

But, as in the present case, where the purpose of the suit against officials of the State is to control action of the State, or subject it to liability, is a suit brought against the State and is not maintainable without express consent of the Legislature. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960), and cases there cited; Sheffield v. Briscoe, 550 S.W.2d 160 (Tex.Civ.App. Austin 1977, writ ref d n.r.e.).

The Legislative Act under which the officials are acting is valid and constitutional law, as against attacks made by this lawsuit. It follows that this suit is one to control action of State officials and constitutes an action against the State itself. The trial court correctly found the Act constitutional and properly dismissed the suit.

The judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    A. B. McGOWEN et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 1668.
    Court of Civil Appeals of Texas, 14th Dist.
    Nov. 16, 1977.
    Rehearing Denied Dec. 7, 1977.

      James C. Henry, III, Burke & Henry, Houston, for appellants.
    Carol S. Vance, Dist. Atty., Elizabeth Bridges, Assistant Dist. Atty., Vincent J. Rizzo, Jr., Paul D. Filer, Jr., Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order terminating a parent-child relationship.

Arthur B. McGowen (Mr. McGowen) and Margaret McGowen (Mrs. McGowen), appellants herein, were married on August 8, 1969. Of their three children, Arthur McGowen and Ardra McGowen were born on February 2,1973, and Michelle McGowen was born on September 28, 1971.

On January 2, 1974, the appellants, the State of Texas, the Harris County Child Welfare Department (HCCW), and the attorney ad litem for the three McGowen children stipulated to an agreed order of the Juvenile Court of Harris County, Texas. Under the terms of that order, the three McGowen children were temporarily placed in the custody of HCCW; the parents were ordered to pay $150.00 per month to HCCW as child support for the three minor children, were given visitation rights pursuant to rules and regulations set forth by HCCW, and were ordered to submit to psychological testing, evaluation and/or counseling. In accordance with the order, two of the McGowen children, Arthur and Michelle, were placed in foster homes. The third, Ardra, was hospitalized in a nursing facility for profoundly brain-damaged children. On February 21, 1974, the Juvenile Court of Harris County, Texas declared the three McGowen children to be dependent and neglected children and ordered them placed in the custody of HCCW.

HCCW instituted proceedings to terminate the parent-child relationship between the appellants and their children on November 10,1975. The parties proceeded to trial on December 14, 1976, under HCCW’s Amended Petition filed the previous day. At the conclusion of the trial, special issues were submitted to the jury and answered as follows:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that A. B. McGowen, the respondent, failed to support his minor children, Michelle McGowen, Ardra McGowen and Arthur McGowen in accordance with his ability during a period of one year, which ended within six months of the date of the filing of the petition?
ANSWER: We Do
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Margaret McGowen, the respondent, failed to support her minor children, Michelle McGowen, Ardra McGowen and Arthur McGowen, in accordance with her ability during a period of one year, which ended within six months of the date of the filing of the petition?
ANSWER: We Do
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that termination of the parent-child relationship between the respondent, A. B. McGowen, and the minor children, Michelle McGowen, Ardra McGowen and Arthur McGowen, would be in the best interest of the minor children?
ANSWER: We Do
SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that termination of the parent-child relationship between the respondent, Margaret McGowen, and the minor children, Michelle McGowen, Ardra McGowen and Arthur McGowen, would be in the best interest of the minor children?
ANSWER: We Do

In a judgment entered on the verdict on January 17,1977, the juvenile court ordered the parent-child relationship between the appellants and their three children terminated and appointed HCCW managing conservator of the children, from which judgment Mr. and Mrs. McGowen appeal.

We recognize, initially, that the natural right that exists between parents and their children is one of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.Sup.1976). We have carefully scrutinized the termination proceedings in the court below, keeping in mind the strong presumption that the best interest of a child is usually served by keeping custody in the natural parents. Id. Despite these considerations, we are compelled to affirm the judgment of the trial court.

The appellants assert by their first and second points of error that there was no evidence to support the jury’s answers to the special issues or, in the alternative, that there was insufficient evidence to support the jury’s answers. In considering the appellants’ no evidence point, we must review the evidence in the light most favorable to the verdict, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to the findings. Rourke v. Garza, 530 S.W.2d 794 (Tex.Sup.1975). In considering the appellants’ insufficient evidence point, we must review all of the evidence, and we may set the verdict aside only if it is so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. Cramer v. White, 546 S.W.2d 918 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n.r.e.).

We believe that there was ample credible evidence to support the jury’s findings. There was no dispute about the failure of the appellants to pay child support to their children during a period of one year, which ended within six months of the date of the filing of the First Amended Petition. Both appellants admitted that fact. The only dispute concerned the ability of the appellants to pay the support during that period.

According to their testimony, the appellants’ total gross income from December 15, 1975 through December 14, 1976 was at least $14,000.00. Mr. McGowen testified that during most of that time, he and Mrs. McGowen were making purchase payments of $147.50 per month on a house that they neither occupied nor rented. He also testified that in December of 1975, he and Mrs. McGowen entered into a contract with their attorneys for representation in the termination proceedings. Between December 15, 1975 and the commencement of trial, pursuant to that contract, the appellants had already paid “considerably” in excess of $3,000.00 as attorney’s fees. The appellants stipulated that Mrs. McGowen, as a member of the United States Air Force, was entitled to obtain for her dependents free on-base medical treatment and very liberal compensation for off-base medical care.

The appellants admit that uncontradicted evidence demonstrated that they had some ability to support their children during the four months of March 1976 through June 1976. The appellants both testified repeatedly, however, that they were without the financial means to support their children during the other eight months of the one year period from December 15, 1975 through December 14, 1976, because of a total lack of income during December 1975, and because of numerous financial obligations.

Both appellants conceded under questioning that they might have had some ability to pay child support for their three children. They could have paid at least a portion of the $150.00 monthly payments specified in the court order of January 2,1974 had they not made purchase payments on a house that they were not living in. Had the appellants chosen to comply with their duty to pay support rather than pay so much in attorney’s fees, they easily could have paid support during most, if not all, of the one year period. Mrs. McGowen could have applied for and received reimbursement from the Air Force for the major part of her daughter Ardra’s off-base hospitalization expenses.

The appellants contend that their inability to pay child support during any part of the one year period from December 15,1975 through December 14, 1976, operates as a bar to termination of the parent-child relationship. The three cases cited by the appellants as authorities for that proposition are inapposite. In two of the cases, the parents against whom termination was sought had actually paid child support during part of the time period relied upon by the party seeking termination. See Wiley v. Spratlan, 543 S.W.2d 349 (Tex.Sup.1976); Cawley v. Allums, 518 S.W.2d 790 (Tex.Sup. 1975). In the case before us, no payment of any amount was made during the one year period relied upon for termination. In the third case relied upon by the appellants, there was no court order for child support, no request was ever made for payment of child support, and the child was receiving adequate support from the parent seeking termination. See Holley v. Adams, 544 S.W.2d 367 (Tex.Sup.1976). Those factors are not present in the instant case.

Mrs. McGowen testified that during 1976 she never discussed with her husband the possibility of providing support for their three children. We think that the appellants’ statements reflect a conscious disregard of their duty to provide support. Inability to provide support during some months will not interrupt the running of the one year period if no effort is made to pay support during other months in which there is a clear ability to pay. We believe, therefore, that there was some evidence from which the jury could have concluded that the appellants failed to support their minor children in accordance with their ability during a period of one year, which ended within six months of the date of the filing of the petition.

Just as there was sufficient evidence to sustain the jury’s findings that the McGowens failed to support their three children in accordance with their ability, so was there sufficient evidence to support the findings that termination of the parent-child relationship would be in the best interest of the minor children. It was undisputed that during the thirty-five months between the entry of the order requiring child support and the commencement of the termination proceeding, the appellants never made a child support payment. There was testimony that HCCW expects parents to visit with their children at least once a month. During the thirty-five month period, Mr. McGowen visited Arthur three times, Ardra three times, and Michelle once. During that same period, Mrs. McGowen visited Arthur three times, Ardra once, and Michelle once. Although Mrs. McGowen often asked to visit her children, she rarely agreed on a specific time. There was testimony that the appellants were uncooperative in arranging meetings with HCCW personnel and that they were evasive about their whereabouts for long periods of time. There was evidence, finally, that termination of the parent-child relationship and subsequent adoption of the children would give the children a more stable home life.

Although the appellants attempted to rebut each of these points and presented evidence tending to do so, conflicting evidence was presented, from which reasonable persons might have drawn differing conclusions. There was sufficient evidence from which the jury could have found that termination of the parent-child relationship was in the best interests of the three children. We will not disturb that finding on appeal.

The appellants contend in their third point of error that the trial court improperly excluded testimony concerning the specific one year period of time relied upon by HCCW in proving its case. The portion of the Texas Family Code relied upon by HCCW as a basis for termination provides in pertinent part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; .
and in addition, the court further finds that
(2) termination is in the best interest of the child.

Tex. Family Code Ann. § 15.02 (Supp. 1976-77). We read the statute as requiring the party seeking termination to show failure to support during any one year period that ends within six months of the date of the filing of the petition. There is no error in allowing the party seeking termination to offer proof of failure to support during numerous one year periods, provided each of the periods ends within six months of the date of the filing of the petition.

The appellants contend in their fourth, fifth and sixth points of error that the trial court erred in allowing the jury to hear certain testimony, evidence and argument. The appellants state, in this regard, that testimony concerning their failure to support their children during periods of time other than those applicable under section 15.02(1)(F) of the Texas Family Code was irrelevant, immaterial and prejudicial. The appellants claim, likewise, that evidence of a prior court order declaring the children to be dependent and neglected children and testimony and argument regarding the issue of adoption of the children were irrelevant, immaterial and prejudicial. We believe that the testimony regarding failure to support and the prior court order of dependency and neglect were evidence of acts or omissions by the parents that tended to indicate that the existing parent-child relationship was not a proper one. The testimony and argument regarding the issue of adoption of the children was relevant to show the plans made by HCCW in behalf of the children. The evidence concerning failure to support, the court order of dependency and neglect, and the issue of adoption was relevant, therefore, to show that termination was in the best interest of the children. See Holley v. Adams, 544 S.W.2d 367 (Tex.Sup.1976). We sustain the trial court’s conclusion that the probative value of the evidence outweighed its possible prejudicial effect.

In their seventh point of error, the appellants attack section 15.02(1) of the Texas Family Code as being vague, ambiguous and violative of due process of law. The appellants argue, in this regard, that the statute does not apprise parents who have not been ordered to pay support of their legal duty to support, and does not inform them of the amount or degree of support that is required. We reject this contention. “Support” is a legal concept that has acquired a well defined and understood meaning. The term encompasses the contribution of money or services necessary for the maintenance of a person. See, e. g., Friedman v. Friedman, 521 S.W.2d 111 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Lockhart’s Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278, 30 S.W.2d 955 (1930); In re Vanderbilt’s Estate, 129 Misc. 605, 223 N.Y.S. 314 (Sur.Ct.1927); Paquin v. Westervelt, 93 Conn. 513, 106 A. 766 (1919). Both of the appellants testified that they were aware of their joint legal duty to pay $150.00 per month in child support. We cannot say, therefore, that the appellants were inadequately apprised of their legal obligation to provide support.

The appellants assert by their eighth and final point of error that the trial court erred in failing to exclude two portions of HCCW’s Amended Petition. The appellants claim, firstly, that references to a prior order of dependency and neglect were irrelevant and should have been excluded. We reject this argument for reasons already stated. The appellants also contend that the Amended Petition misstates the record when it refers to a court order that the McGowens pay $150.00 per month in child support. The record contains an agreed order of the juvenile court, stipulated to by the appellants on January 2, 1974, which recites on its face that the appellants were required to pay $150.00 per month in child support. Both appellants acknowledged that obligation during their testimony.

The appellants’ points of error having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: JAMES, Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. LONE STAR GAS COMPANY, a Division of Enserch Corporation, Appellee.
    No. 5770.
    Court of Civil Appeals of Texas, Waco.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.

      John L. Hill, Atty. Gen.' Martha E. Smiley, Asst. Atty. Gen., Austin, for appellants.
    Michael L. Cook, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   OPINION

JAMES, Justice.

This is a suit for refund of taxes under the Limited Sales Excise and Use Tax Act. The taxes were paid under protest by Plaintiff-Appellee Lone Star Gas Company pursuant to Article 20.10(G) and (H), Taxation-General, Volume 20A, Vernon’s Texas Civil Statutes. Thereafter, Lone Star brought this suit in a District Court of Travis County, Texas, for refund of such taxes against Defendant-Appellants Bob Bullock, Comptroller of Public Accounts, Jesse James, State Treasurer, John L. Hill, Attorney-General of Texas, and the State of Texas.

Trial was had to the court without a jury, after which the trial court awarded judgment in favor of Lone Star against the Defendants for said taxes paid by Lone Star in the amount of $809,102.52 plus interest, from which the Defendants appeal. We affirm.

No findings of fact and/or conclusions of law were requested of or made by the trial court.

Defendant-Appellants assert error on the part of the trial court in holding: (1) that for sales tax purposes the sale of pipe took place outside the State of Texas; (2) that the use tax was unlawfully imposed on the storage of pipe after it arrived in the State of Texas and before it was assembled and used as a carrier; and (3) that Lone Star as a permit carrier was a “licensed and certificated carrier” and therefore exempted from the use tax by Article 20.04(G)(3)(a), Taxation-General, Vol. 20A, V.T.C.S. We overrule all of Defendant-Appellants’ contentions and affirm the trial court’s judgment. Our view of the case is bottomed upon two premises, to wit: (1) that the sale of the pipe in question took place in Europe and not within the State of Texas, to the end that the pipe was not subject to the sales tax; and (2) that Lone Star at the times material to this lawsuit was a “licensed and certificated carrier” within the meaning of Article 20.04(G)(3)(a), Taxation-General, Vol. 20A, V.T.C.S., so that the pipe was exempted from the use tax.

The pertinent facts are these: Lone Star is a Texas Corporation, having its principal place of business in Dallas, Texas, and is engaged in the business of gathering, transporting, and selling natural gas. Pursuant to its business, Lone Star holds permit Number 00578 from the Railroad Commission of the State of Texas. In the early part of 1972, Lone Star determined to construct an intrastate pipeline from the Delaware Basin in Pecos County, Texas, to Dallas County, Texas, which pipeline is designated “Line X,” and is a 36 inch diameter pipeline about 442 miles long. The pipe weighs 141 pounds per foot. Lone Star purchased from domestic producers enough pipe for about the first 200 miles of Line X to be constructed, and this pipe is not in controversy here.

The pipe in controversy is that which was purchased by Lone Star to construct the remaining 242 miles of the pipeline, which was bought by Lone Star from the Crispin Corporation under a written contract.

Crispin is a Texas Corporation with its principal place of business in Houston, Texas. Its major business activity is brokering foreign steel products. Crispin’s normal business procedure is to locate a buyer, then through its overseas contacts to arrange production of the buyer’s order. It does not maintain an inventory of steel products, particularly of the size pipe in question, nor does it purchase such large pipe for its own account. Its assets consist of familiarity of European steel producers, their languages, production methods and schedules, and shipping resources.

The contract between Lone Star and Crispin was signed in July 1972. Pursuant to the contract, Crispin caused the pipe to be manufactured by firms located in France and Italy, bought the pipe from these foreign mills, and sold it to Lone Star for a profit. This pipe had to be specially constructed in order to meet the unique needs of Lone Star for Line X; therefore, by the contract Lone Star provided to Crispin a complete list of specifications, including the chemical properties of the steel from which the pipe was to be produced, the type of steel furnace in which the iron was to be made, inspection of the method for rolling the steel into flat plates prior to manufacture of the pipe, inspection of the flat plates, specification of the method of rolling the flat plates into finished pipe, the weld method for joining the flat plate into the finished pipe, the various physical properties of the pipe, procedures for loading the pipe on rail cars in Europe, procedures for storing the pipe in ships for shipment to the United States, and procedures for shipment of the pipe to the final destination point. Production was a three stage process: (1) the steel was produced, (2) the flat plate was rolled from the steel, and (3) the pipe was manufactured from the flat plate. Steel mills throughout Europe were used in the manufacturing process. The pipe was manufactured by a French firm at plants located in Dunkirk, Sedan, and Belleville in France, and by an Italian firm whose plant was located near Taranto, Italy.

Moody International, an independent inspection firm, was employed by Lone Star to monitor and conduct inspections at every critical phase of the contract from the production of the flat plates through the manufacture of the pipe, then at the phase of loading the pipe from the steel mills to the ships, the loading upon the ships, the transportation by the ships, the unloading of the ships, and then to Ramsey’s Storage Yard near the dock site at Houston, Texas. To be more specific, the contract provided that Moody would conduct five inspections: the first when the steel was rolled into flat plates before the pipe was made, and the last after the pipe was in the ground as a pipeline. Lone star had the right to reject (and did reject) the material at any time, from the date the plate was rolled (in Europe) until the pipeline was operational (in Texas). Lone Star by and through its independent inspection agents did inspect and reject pipe at every phase of the entire operation contemplated and covered by the contract, from the mills in Europe to the operational pipeline in Texas. These rejections caused delays and expense to Crispin and to the manufacturers concerned.

Crispin was responsible for the transportation of the pipe from the European steel mills by rail and water to Houston, Texas, and from there to the final transportation point near Houston. The contract required Crispin to carry insurance payable to Lone Star during this transportation phase.

The contract provided that title of the pipe would pass from Crispin to Lone Star when the pipe was loaded on the railroad carrier at the mill, that is to say, “FOB mill,” which was in Europe. The pipe was stencilled at the mill and there identified to the contract.

The shipments were made pursuant to the contract from August 1972 through December 1972, and in all 1.28 million feet (or approximately 242 miles) of pipe were invoiced and delivered to Lone Star. After the pipe arrived at the port of Houston, Texas, it was first taken to Ramsey’s Storage Yard near the docksite and then to a place in or near Houston operated by a firm called “Surfcote,” which firm coated the exterior and interior of the pipe to protect the pipe from corrosion after it was placed in the ground. The pipe was thereafter loaded upon Lone Star’s trucks and directed to one of six pipe-laying spreads on Lone Star’s right-of-way in West Texas. After all the pipe had been laid, it was subjected to a hydrostatic test for checking against leaks. At this stage there were three failures of the foreign pipe, the expense for all of which were paid by the companies responsible.

Subsequent to the completion of Pipeline X, Lone Star was audited by the State Comptroller of Public Accounts, after which Lone Star was assessed the taxes in question. Lone Star paid these assessed taxes under protest, and thereafter made a claim for refund which was denied. Then after exhausting its administrative remedies, Lone Star filed suit in a District Court of Travis County, Texas, for refund of the taxes paid, which resulted in the judgment in favor of Lone Star for recovery of the taxes paid.

Appellants’ points of error oblige us to deal with these basic questions:

(1) Was the pipe subject to the sales tax, as a sale of taxable items within this State?

(2) If the pipe was not subject to the sales tax, then was it subject to the use tax, or was it exempted from the use tax under Article 20.04(G)(3)(a), on the basis that Lone Star was a “licensed and certificated carrier”?

(3) If the pipe was not subject to the sales tax, was it nevertheless subject to the use tax by virtue of its “storage” in Texas before it was put into the pipeline, even if Lone Star is a “licensed and certificated carrier”?

We revert to the first question, that is, was the pipe subject to the sales tax, as a sale of taxable items within this State. We are of the opinion and hold that the pipe was not subject to the sales tax.

Article 20.02, Taxation-General, Y.T.C.S., provides:

“There is hereby imposed a limited sales tax at the rate of four percent (4%) on the receipts from the sale at retail of all taxable items within this state." (emphasis supplied).

Article 20.01(E) provides in its pertinent parts:

“(l)(a) ‘Sale’ means and includes any transfer of title or possession, or segregation in contemplation of transfer of title or possession, ... in any manner or by any means whatsoever, of tangible personal property for a consideration.”
“(2) ‘Sale’ includes: .
“(e) A transfer for a consideration of the title or possession of tangible personal property which has been produced, fabricated or printed to the special order of the customer.”

The contract specifically provides that title to the pipe passed from Crispin as Seller to Lone Star as Buyer at the steel mills where produced, all of which were in Europe, and none of which were “within this State.” The parties had the right to explicitly agree on the manner and conditions under which title would pass, and they did so. See Article 2.401(a), Texas Business and Commerce Code, Y.T.C.S.; Day and Zimmerman v. Calvert (Tex.1975) 519 S.W.2d 106, 110.

The definition of the term “sale” as here-inabove quoted, speaks of a transfer of title or possession, or a segregation in contemplation of a transfer of title or possession. This pipe was “segregated” at the mills because it was specially manufactured for Lone Star and each pipe was stencilled there to identify it for Lone Star.

Our Supreme Court has held that when materials are loaded upon trucks of a common carrier or other means of transportation, a “segregation in contemplation of transfer of title or possession” occurred and a sale takes place between the vendor and vendee under the provisions of the Limited Sales, Excise, and Use Tax Act. Gifford-Hill and Co. v. State (Tex.1969) 442 S.W.2d 320, 323; Day and Zimmerman v. Calvert (Tex.1975) 519 S.W.2d 106, 110.

Appellants argue that the pipe is subject to the sales tax on the theory that there was a “transfer of possession” of the pipe at Houston, Texas, from Crispin to Lone Star. The holdings in Gifford-Hill and in Day and Zimmerman in our view foreclose this argument. Moreover, although Crispin was responsible for the transportation of the pipe from the European mills to Houston, Texas; yet during all those times the pipe was subject to the control of Lone Star by virtue of its inspections. In other words, during these times Crispin was acting as a bailee of the pipe holding possession for the benefit of the bailor and owner, Lone Star. This is further borne out in that the contract provided that Crispin insure the pipe during this phase for the benefit of and payable to Lone Star. For these reasons, we believe and hold that the pipe was not subject to the sales tax.

We now pass to the second question, and that is: Was the pipe subject to the use tax, or was it exempted from the use tax under Article 20.04(G)(3)(a), on the basis that Lone Star was a “licensed and certificated carrier”? We are of the opinion and hold that under this record Lone Star was a “licensed and certificated carrier” and therefore the pipe was exempted from the State use tax.

Article 20.03, Taxation-General, V.T.C.S. in its pertinent parts provides:

“An excise tax is hereby imposed on the storage, use or other consumption in this State of taxable items purchased, . “from any retailer for storage, use or other consumption in this State, at the same percentage rate as is provided in Article 20.02 of this title, on the sales price of the taxable item . . . .”

“Storage” is defined in Article 20.01(N) as follows: “ ‘Storage’ includes any keeping or retention in this State for any purpose except sale in the regular course of business or subsequent use solely outside this State of tangible personal property purchased from a retailer.”

Article 20.01(R) in its pertinent parts defines “use” as follows:

“ ‘Use’ includes the exercise of any right or power over tangible personal property incident to the ownership of that tangible personal property except that it does not include the sale of that tangible personal property in the regular course of business or the transfer of tangible personal property as an integral part of a taxable service rendered in the regular course of business. ‘Use’ specifically includes the incorporation of tangible personal property into real estate or into improvements upon real estate

Article 20.04(G)(3)(a) provides for an exemption to the use tax as follows:

“(3) Special Use Tax Exemption. The use tax imposed herein shall not apply to:

“(a) The use, in this State, of tangible personal property which is acquired outside this State and which is moved into this State for use as a licensed and certificated carrier of persons or property.”

In the case at bar, Lone Star was the holder of a permit from the Railroad Commission of Texas for the operation of gas pipelines, which included “Line X.”

Appellants contend that Lone Star’s “permit” is not to be construed as to be included as a “license” or “certificate” so as to entitle Lone Star to be a “licensed and certificated carrier” within the meaning of Art. 20.04(G)(3)(a). We do not agree. Our Supreme Court has held that the term “permit” is synonymous with the term “license.” Motl v. Boyd (1926) 116 Tex. 82, 286 S.W. 458, at p. 475. Also see Ex Parte Truelock (1940) 139 Tex.Cr.R. 365,140 S.W.2d 167, at p. 174. We therefore believe and hold that the pipe in question was exempted from the use tax under Article 20.04(G)(3)(a).

Finally, Appellants contend that even though Lone Star was a licensed and certificated carrier, that the pipe was subject to the use tax because it was “stored in Texas after it arrived in Texas and before it was used as part of the pipeline. We do not agree. The proof showed that the pipe was stored in Texas at varying periods not less than six days nor more than sixty-nine days before being laid in the ground as a pipeline. It is undisputed that the pipe was intended for use as a gas pipeline (Line X) at all times material to this controversy, and for no other use, including the time it was stored in Texas preparatory to being made into the pipeline. To hold that the pipe was subject to the use tax during the storage phase would render the exemption under Article 20.04(G)(3)(a) meaningless and would, we believe, be a misconstruction of this exemption statute.

We have given careful attention to and consideration of all of Appellants’ points and contentions, and overrule all of same as being without merit. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: MOORE, Justice.

text:
    R. W. CALLOWAY, Attorney-Ad Litem, Appellant, v. ESTATE of Helen GASSER, Deceased, Appellee.
    No. 1051.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.

      R. W. Calloway, Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellant.
    Stephen J. Wilkinson, Asst. Atty. Gen., Austin, Harold B. Sanders, Sr., Clark, West, Keller, Sanders & Butler, Gregory S. C. Huffman, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   MOORE, Justice.

This suit was instituted by First National Bank in Dallas seeking a construction of the last will and testament of Helen Gasser, deceased, acting in its capacity as independent executor. It was stipulated that Helen Gasser died testate in Dallas County, Texas, on February 6, 1975, and that her last will and testament, dated March 20, 1972, had been duly admitted to probate in Dallas County, Texas, on February 24,1975.

The testatrix provided that her estate was to pass to her husband, James P. Gasser, if he survived her, but if he failed to survive her then the estate was to be distributed in trust among numerous relatives with remainder to certain charities. Subsequent to the execution of the will, on July 19, 1974, the Gassers were legally divorced. As all provisions in favor of James P. Gasser, decedent’s ex-husband, were rendered null and void by virtue of Sec. 69 of the Texas Probate Code, the bank was unclear, given the fact that James Gasser survived the testatrix, whether the numerous contingent bequests made to her relatives and certain charitable remaindermen would be given effect or whether her estate passed to her heirs by way of intestacy. It was stipulated that Helen Gasser left no surviving spouse, children or remote descendants, parents, grandparents, brothers, sisters, or descendants of brothers or sisters.

The attorney-ad-litem, appointed by the trial court to represent the unknown heirs of the decedent, alleged that the estate of the decedent passed to her heirs under the statutes of descent and distribution due to the fact that the bequests made to her relatives and the charities were conditioned upon the contingency that James P. Gasser predecease the testatrix, and, since he did not, all bequests lapsed and the estate passed to her heirs-at-law. Several of the contingent charitable remaindermen, as well as the State of Texas by and through its Attorney General, appeared and alleged that the estate of Helen Gasser passed to the contingent beneficiaries even though her ex-husband survived her because under the terms of the will the testatrix intended for her contingent beneficiaries to take in the event her husband could not. None of the parties alleged that the terms of the will were ambiguous and consequently no evidence was offered as to the intent of the testatrix.

After a hearing the trial court rendered judgment reciting, among other things, that all provisions of the last will and testament of Helen Gasser in favor of James P. Gasser were null and void, and that, since it was the intention of the testatrix as determined from the four corners of her will that the contingent beneficiaries were to take if for any reason James Gasser could not, the estate passed to the contingent beneficiaries named under the will. The attorney-ad-litem, representing the unknown heirs of Helen Gasser, perfected this appeal.

We affirm.

The facts, as delineated above, are not in dispute.

Tex.Prob.Code Ann. sec. 69 (1956) provides:

“If the testator is divorced after making a will, all provisions in the will in favor of the testator’s spouse so divorced, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator’s children, shall be null and void and of no effect.”

Under Section II of her will, the testatrix provided as follows:

“All the rest and residue of my estate, consisting of all property, real, personal or mixed which I may own at the time of my death, I give, devise and bequeath unto my husband, JAMES P. GASSER, if he survives me.”

Under Sections III and IV of her will the testatrix provided:

“If my said husband does not survive me, I give, devise and bequeath unto:

(Under Section III she bequeathed $5,000.00 each to a church and cemetery association. Under Section IV she bequeathed cash gifts to twenty relatives of whom none are shown to reside in this State, ranging from $2,500.00 to $10,000.00, provided each devisee survives her.)

Under Section V, she established five trusts of equal value out of the remainder of her estate for the benefit of her uncles and aunts, provided that upon the death of each designated beneficiary of a particular trust such trust would terminate and that the funds remaining therein were to be distributed in fee simple as follows:

(1) one-fourth to Hayward Memorial Hospital, Hayward, Wisconsin;
(2) one-fourth to Southwestern Medical Foundation, Dallas, Texas;
(3) one-fourth to Methodist Hospital of Dallas; and
(4) one-fourth to Baylor University Hospital, Dallas, Texas.

Both sides agree that the bequest to James P. Gasser and his appointment as independent executor were rendered null and void by reason of Section 69 of the Probate Code.

By a single point of error, the appellant attorney-ad-litem contends that the bequests made by Mrs. Gasser to her relatives were expressly contingent on Mr. Gasser’s predeceasing her, and,' since he did not, the condition precedent to their taking never occurred and thus they could not take under the will. Since Mr. Gasser was precluded from taking under the will by virtue of statute, appellant concludes that there was no one to take and, therefore, the decedent’s estate descended to her heirs under the laws of descent and distribution.

Appellees, the State of Texas (by and through its Attorney General) and the charitable remaindermen, argue that it defies logic and public policy to tie the disposition of testatrix’s estate to the death or survival of her divorced husband when he was no longer a qualified beneficiary and could take nothing under the will. They argue that by the use of the phrase “If my said husband does not survive me” the testatrix intended to say “If my said husband does not survive me as beneficiary” or “If my said husband does not survive me as my husband,” and did not intend for the disposition of her estate to turn solely on his being the survivor. Appellees argue that the testatrix intended that if her husband could not take the property by reason of death or some other cause, the other devi-sees named under the will were to take the property.

Clearly, James P. Gasser, the ex-husband, cannot take under the will because of Section 69 of the Probate Code. The question presented is whether the testatrix intended that the contingent devisees were to take if for some reason other than death her husband could not (e. g., the application of Sec. 69 to an ex-spouse beneficiary) or whether she intended in such event that the bequests to the contingent devisees would lapse and the estate pass to her heirs by way of intestacy.

In support of the contention that the legacy lapsed, the attorney-ad-litem contends that the following Texas cases are dispositive of the issue presented: McFarlen v. McFarlen, 536 S.W.2d 590 (Tex.civ. App.—Eastland 1976, n.w.h.); Volkmer v. Chase, 354 S.W.2d 611 (Tex.Civ.App.—Houston 1962, writ ref’d n.r.e.). We think these cases are distinguishable on the facts and are not controlling for reasons to be pointed out later.

In construing a will, the ultimate function of the courts is to discover, if possible, from the language of the will the intent of the testator, and, having discovered it to give it effect. Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.1967); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955).

In Burton v. King, 459 S.W.2d 663, 667 (Tex.Civ.App.—Tyler 1970, writ ref’d n.r.e.), this court made the following observation:

. “. . .as has been often observed, a will to be construed is rarely in exactly the same language as another will construed in any reported case, but usually is a thing unto itself. Accordingly, when construction is necessary the court will not adhere rigidly to precedent nor will it arbitrarily follow any rule save that which commands it to ascertain and effectuate the testamentary intent; while other rules are observed so far as practical, they are not absolute or controlling. After all, it has been said, each case must depend upon the ascertainment of the intent of the testator as manifested by the language of the will.”

The fact that a person makes a will raises a presumption that he intended to die testate' as to all of his property and, conversely, that he did not intend to die intestate as to any of it. Haile v. Holtzclaw, supra; Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.—Waco 1939, writ ref’d). The presumption is strengthened when the testator has included a residuary clause in his will. Morris v. Finkelstein, 442 S.W.2d 452 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.).

A corollary to the presumption' against intestacy is the rule of construction that if a will is capable of alternate interpretations, one of which causes property to pass by intestate succession and the other causes it to pass by testate succession, the interpretation resulting in intestacy will not be adopted if it can be avoided by reasonable construction. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096 (1931).

Upon applying the foregoing rules of construction to the will in question, we think it apparent from the meticulous manner in which the testatrix attempted to dispose of her estate that she intended to die testate. She wanted her husband to take first, but, if he could not, she wanted her estate to pass to her relatives and the other named beneficiaries with gifts over to certain named charities. The complicating factor is brought about by the subsequent divorce.

At common law a divorce did not operate to revoke a testamentary disposition in favor of an ex-spouse. See Grudziecki v. Starr, 351 S.W.2d 381 (Tex.Civ.App—Waco 1961, writ ref’d); Merritt v. Merritt, 158 S.W.2d 116 (Tex.Civ.App.—Fort Worth 1941, writ ref’d w.o.m.). This rule led to unsatisfactory results as a divorced spouse generally was no longer a natural object of the testator’s bounty. See Smith v. Smith, 519 S.W.2d 152 (Tex.Civ.App.—Dallas 1974, writ ref’d).

In order to rectify the situation, the legislature of this State, as well as a number of other states, enacted statutes specifying that, as a matter of law, a divorce operates as a revocation of that part of a will making provisions for a former spouse. These statutes, being in derogation of the common law, must be strictly construed. Peiffer v. Old Nat. Bank & Union Trust Co., 166 Wash. 1, 6 P.2d 386 (1931). However, while the statutes clearly revoke all provisions in favor of an ex-spouse, they do not extend to operate as an implied revocation of devises and bequests to other objects of the testator’s bounty. Peiffer v. Old Nat. Bank & Union Trust Co., supra.

There being no Texas cases in support of appellees’ position, appellees rely on the following cases from other jurisdictions which hold, in factual situations almost identical to ours, that the will should be construed and given effect as though the ex-husband had predeceased the testatrix, which has the effect of satisfying the condition precedent and thereby passing the decedent’s estate to the contingent beneficiaries. Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975); In re Estate of Fredericks, 311 So.2d 376 (Fla.App.), cert. denied, 320 So.2d 394 (Fla.1975); First Church of Christ, Scientist v. Watson, 286 Ala. 270, 239 So.2d 194 (1970); Steele v. Chase, 151 Ind.App. 600, 281 N.E.2d 137 (1972); Peiffer v. Old Nat. Bank & Union Trust Co., supra. These decisions represent the weight of authority in this country. The minority view holds that, in the absence of death of the ex-husband before the death of the testator, the contingency necessary to bring the contingent bequests into effect never occurs and therefore the decedent’s estate passes by intestacy.

Typical of the holdings following the majority view is the case of First Church of Christ, Scientist v. Watson, supra, wherein the Alabama Supreme Court held:

“. . . The language of these various state statutes would indicate that each was based upon sec. 53 of the Model Probate Code. In fact, the newer Uniform Probate Code, in sec. 2-508, provides:
‘. . . (D)ivorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.’ (Emphasis added.)
“While our statute does not contain all of the provisions of sec. 2-508 of the Uniform Probate Code, we think that property which is prevented from passing to the former spouse because of revocation by divorce should pass as if the former spouse failed to survive the decedent, unless a contrary intention is apparent from the provisions of the will.” 239 So.2d at 196.

While Section 69 of the Texas Probate Code likewise does not contain all of the provisions of Sec. 2-508 of the Uniform Probate Code, we are impressed with the fact that Sec. 2-508 has been approved by the National Commissioners on Uniform State Laws and the American Bar Association in 1969. See Russell v. Estate of Russell, supra. Due to the fact that the issue presented in the cases representing the majority view is the same as the issue presented in the present case, we adopt the rule announced by the majority view because we think it is the better reasoned rule of law.

Upon applying Section 69 of the Texas Probate Code to the will in question, the former spouse, James P. Gasser, could take nothing. He was as effectively barred from taking as if he had predeceased the testatrix. While the testatrix made it clear that she wanted her husband to take her entire estate if he could, we feel she also made it clear that she wanted her estate to pass to her contingent devisees if he could not take. There is nothing to indicate that, in the event her husband could not take, she wanted her estate to pass via intestacy. Her obvious intention should not be defeated just because she failed to anticipate that her husband might not be able to take for some reason other than death. Consequently, we hold that the testatrix’s estate passed to her contingent beneficiaries named in the will in same manner as if her ex-husband had predeceased her. We take this view, not only because it represents the majority view, but also because it is in line with the rationale of early decisions of this state allowing the contingent beneficiaries, as opposed to the heirs-at-law, to take in situations somewhat similar to the present one. Fitzgerald v. Ayres, 179 S.W. 289 (Tex.Civ. App.—Dallas 1915, writ ref’d); Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459 (Tex.Civ.App.1907, writ ref’d). Furthermore, it is consistent with the cardinal rule in will construction cases as well as the policy behind the enactment of Sec. 69 of the Texas Probate Code that effect must be given as far as possible to the testator’s intent.

Appellant’s reliance on McFarlen v. McFarlen, supra, and Volkmer v. Chase, supra, is misplaced. In McFarlen the testator, after divorcing his wife, executed a will leaving his estate to the ex-wife, Velma Beatrice McFarlen. The will provided: “In the event Velma Beatrice McFarlen predeceases me, then, in that event and in that event only,” his estate was to go to his daughter. (Emphasis supplied.) Thereafter he remarried Velma and again divorced her and died without making a new will. The court ruled that the ex-wife was prevented from taking by virtue of Section 69 of the Texas Probate Code and, upon construing the remainder of the will, ruled that his contingent beneficiary could not take since he emphatically provided that she was to take “only” if Velma Beatrice McFarlen predeceased him, and as a consequence, the estate passed to his heirs via intestacy. In Volkmer the court held that the ex-wife was precluded from taking by virtue of Sec. 69 of the Texas Probate Code and further that the contingent beneficiary was precluded from taking because the language used by the testator in stating the conditions under which the contingent beneficiary was to take was ambiguous and his intent could not be ascertained. Accordingly, the court held that his estate passed to his heirs via intestacy.

There is a considerable difference between the wording of the wills in those two cases and the wording of the will in the instant case. Therefore, we think McFar-len and Volkmer are distinguishable on the facts and for that reason have little or no bearing on this cause which, after all, must depend upon the ascertainment of the intent of the testatrix as manifested by the language of the will.

The judgment of the trial court is affirmed.

McKAY, J., not participating.

      . In re Will of Lampshire, 57 Misc.2d 332, 292 N.Y.S.2d 578 (1968); In re Estate of Rosecrantz, 183 Wis. 643, 198 N.W. 728 (1924); In re Estate of McLaughlin, 11 Wash.App. 320, 523 P.2d 437 (1974).