author: SPURLOCK, Justice.

text:
    Lilia CAMPBELL, Appellant, v. Recil Aubry CAMPBELL, Appellee.
    No. 17873.
    Court of Civil Appeals of Texas, Fort Worth.
    June 23, 1977.
    Charles E. Tobin, Inc., and William E. Norman, Dallas, for appellant.
    Kelsey & Wood, and R. William Wood, Denton, for appellee.
   OPINION

SPURLOCK, Justice.

Appellant appeals from a divorce decree. Her only point of error is that the trial court abused its discretion by making an unjust and unfair division of the estate of the parties.

We affirm.

Although appellant states that the evidence is insufficient to support the court’s award, she has not attacked any of the trial court’s findings. Accordingly, we are bound by those findings. Arsola v. Arsola, 97 S.W.2d 241 (Tex.Civ.App.—San Antonio 1936, no writ). The trial court found the estate of the parties as follows:

SEPARATE PROPERTY OF LILLA CAMPBELL (APPELLANT) VALUE
1. Colleyville National Bank account $2,139.50
2. 3 acres of land near Grapevine undetermined
3.All personal property possessed by her prior to the marriage, including clothes dryer and Dearborne heater undetermined
SEPARATE PROPERTY OF RECIL AUBRY CAMPBELL (APPELLEE) VALUE
1.1970 Ford pickup truck $ 650.00
(subject to community interest of $432.00)
2.Parties’ savings account at
Lewisville State Bank $1,800.00
3.All personal property possessed by him prior to marriage undetermined
COMMUNITY PROPERTY OF PARTIES VALUE
1. Savings account at Lewisville State Bank $1,284.00
2. Equity in house and lot, Box 933 AA-2, Denton, Texas $2,000.00 (subject to $1,000.00 right of reimbursement in favor of Recil Aubry Campbell)
3. Lincoln automobile (no debt) ‘ $2,500.00
4. RCA color TV, chain saw, washing machine, lawn mower, reclining chair undetermined
5. Checking account in name of Lilia Campbell 207.00
6. Interest in Ford pickup truck $ 432.00 (interest in Recil Aubry Campbell’s pickup which was valued at $650.00)
The court made the following division of the above estate:
PROPERTY AWARDED TO LILLA CAMPBELL (APPELLANT) VALUE
1. Colleyville National Bank account $2,139.50
2. 3 acres of land near Grapevine undetermined
3. Savings & checking accounts at Dallas County State Bank in name of Lilia Campbell & daughter, Mary Bench undetermined
4. Personal checking account at Lewisville State Bank $ 207.00
5. 1971 Lincoln automobile $2,500.00
6.All personal property possessed by her prior to the marriage, except clothes dryer and Dearborne heater undetermined
PROPERTY AWARDED TO RECIL AUBRY CAMPBELL (APPELLEE) VALUE
1. Equity in house & lot, Box 933 AA-2, Denton, Texas $2,000.00
2. All his personal property possessed prior to the marriage undetermined
3. RCA color TV, chain saw, tools & tool chest, washing machine, lawn mower & reclining chair undetermined
4. His personal checking account at Lake Cities State Bank undetermined
5. 1970 Ford pickup truck $ 650.00
6. Clothes dryer and Dearborne heater undetermined

The court further directed that the balance of the parties’ savings account at Lew-isville State Bank (approximately $3,100.00) be applied to any of appellee’s past medical bills not covered by insurance; that appel-lee receive the next $1,000.00 from the account; and that the remaining funds be equally divided between the parties. The court also concluded that appellee had received less than an equal share of the community estate, including the $1,284.00 community interest which the court found in the savings account.

Under the provisions of Tex.Family Code Ann. § 3.63 (1975), the trial court must divide “. . . the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Ordinarily, the community property is divided equally, and the parties’ separate property is restored to them. L. Simp-kins, Texas Family Law, with Forms, § 5:61, “Discretion of trial court — Application of equitable considerations,” at 331 (Speer’s 5th ed. 1975).

It is well settled, however, that the division of the parties’ community estate need not be equal so long as it is not so disproportionate as to be inequitable. Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Bowling v. Bowling, 373 S.W.2d 829 (Tex.Civ.App.—Houston 1963, no writ). Nor must a party’s separate property be restored. Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.—Fort Worth 1968, writ dism’d). The trial court has wide discretion in its division of the parties’ estate, and that discretion will not be disturbed on appeal unless it is clearly abused. Bell, supra.

In appropriate circumstances, equity may dictate an unequal division of community property and an award of one party’s separate property to the other. Among the factors which may be considered are the size of the estates, the age and physical condition of the parties, and their relative abilities and need for future support. Roberts v. Roberts, 535 S.W.2d 373 (Tex.Civ.App.—Tyler 1976, no writ).

Appellant contends that the court may also consider the cause of the parties’ inability to live together as husband and wife, or the conduct that contributed to the divorce, and the benefits that the spouse not at fault would have received from the estate of the other through the continuation of the marriage. In this case, however, there is no determination of fault for the court to consider, the divorce decree having been rendered without regard to fault in accordance with the pleadings. The trial court excluded evidence on the question of fault, and no complaint is made of that action.

Appellee testified he is 100% disabled by severe emphysema and that his only income is a $311.10 monthly social security disability payment. Appellant, on the other hand, testified that she is employed as a restaurant manager, making an average of $190.00 every two weeks, plus tips, and that she receives $100.00 per month in rental income from her separate property near Grapevine. The court found that appellant’s earning capacity is substantially greater than that of appellee and that appellee’s physical condition entitles him to the clothes dryer and Dearborne heater, although both items were appellant’s separate property.

We hold that no abuse of the trial court’s discretion has been shown.

The judgment is affirmed.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. HOLT MACHINERY COMPANY, Appellee.
    No. 6631.
    Court of Civil Appeals of Texas, El Paso, Texas.
    June 29, 1977.
    Rehearing Denied July 27, 1977 .

      Groce, Locke & Hebdon, Thomas H. Crofts, Jr., San Antonio, for appellant.
    Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., Seagal V. Wheatley, San Antonio, for appellee.

       Appellant’s and Appellee’s.

   OPINION

OSBORN, Justice.

This case raises the issue of whether the trial Court erred in sustaining a motion to strike certain paragraphs from Defendant’s Answer. Having concluded that there was no legal basis for the trial Court’s ruling we reverse and remand.

Suit was filed to recover for a loss allegedly covered by a fidelity bond issued by the Travelers Indemnity Company to Holt Machinery Company. In 1968, Herbert Spring applied for and subsequently obtained a Small Business Administration loan. Representations were made that part of the funds would be used to pay for equipment and machinery which Spring had arranged to purchase from Holt. An employee of Holt, with the consent of a vice president, furnished supporting data for the application and was present at the loan closing. In fact, there were no arrangements to buy equipment from Holt, although Spring had previously purchased equipment from that company, and the supporting data consisted of copies of bills of sale of equipment already purchased. Subsequently, Spring was indicted and convicted for making false statements in connection with the loan closing.

The loan was not repaid and the United States sued Holt. Holt requested that Travelers investigate and defend the suit. The Travelers refused to defend, since the fidelity bond did not require that it defend its policyholder but only required that it pay for certain defined losses enumerated in the insuring agreement, unless otherwise excluded. Through counsel, Holt again requested that Travelers defend the suit filed by the United States. The following day, April 23, 1974, Travelers sent claims forms as had been requested. Within a week, these forms for proof of loss were completed and returned to the Travelers. On June 14, 1974, the Travelers supervisor wrote to Holt rejecting the claim because (1) no fidelity loss had been sustained by Holt, and (2) there had been no dishonesty of an employee established.

Shortly thereafter, Holt settled its suit with the United States and, by letter dated August 1, 1974, made demand upon Travelers to reimburse it for the sum paid to the Government. On September 24, 1974, the Travelers adjuster rejected the demand “as there has been no proof submitted establishing employee dishonesty under the terms of this bond.” Holt then instituted this suit to recover the payment it made in settlement with the United States. The Travelers answered with a general denial and special pleas that the payment by Holt was not a loss within the provisions of the bond, and further alleged that an exclusion for “loss due to any fraudulent, dishonest or criminal act by any insured or a partner therein, whether acting alone or in collusion with others,” was applicable in this case because a company vice president had approved and acquiesced in the acts of the company employee who prepared the supporting documents requested by Mr. Spring.

On the day of trial, counsel for Holt filed a Motion to Strike the special pleas, and this motion stated:

“ * * * Defendant has never raised this asserted reason heretofore with its insured, the Plaintiff, as a reason why Defendant’s liability to Plaintiff was denied under the policy, and Defendant now attempts to assert a new reason of its alleged non-liability. The law provides that where an insurance company states to an insured its grounds for denial of coverage or liability, that under the circumstances here, the insurance company waives its rights to assert new and additional grounds at trial. Because the new grounds now attempted to be asserted have never heretofore been given by the Defendant insurance company as grounds for refusing to defend or assume liability for Plaintiffs claim, the new grounds must be deemed waived and stricken from Defendant’s pleading prior to trial.”

The trial Court granted the motion and struck the defenses raised by the special pleas. The record does not reflect what type of hearing was had, and there is no showing of evidence received in support of the motion. The order granting the motion does not reflect that any evidence was presented. The above mentioned letters were offered as part of a Bill of Exception on another issue after both sides had completed their evidence. Thus, we can only assume that the Court acted solely on the recitals in the motion and the pleadings on file. We conclude that this was error.

To have sustained the motion to strike, the trial Court either sustained a “speaking demurrer” or granted a partial summary judgment without notice or evidence, and, in either event, committed error. As noted in 2 McDonald, Texas Civil Practice Sec. 7.22 (1970):

“The ‘speaking demurrer’ is a special exception which, instead of limiting itself to the allegations of the petition and pointing out defects evident therein, states factual propositions not appearing in the petition and, in reliance upon such facts, seeks to challenge the plaintiff’s right to recover. Speaking demurrers were not permitted under the former practice, and are not allowed under the 1941 rules. Such factual allegations should be ignored in passing on the sufficiency of plaintiff’s pleading. If the defendant must rely upon extrinsic facts, he must raise the point by a plea in abatement or in bar, and not by special exceptions. He also may raise such defensive matters by a motion for summary judgment * *

While this language refers to a plaintiff’s petition, the same rule applies to a defendant’s answer which, in this case, has been stricken by the Plaintiff’s motion based on extrinsic facts not then before the Court. Extrinsic facts cannot form the basis for a ruling on the pleadings. Ragsdale v. Ragsdale, 520 S.W.2d 839 (Tex.Civ.App.—Fort Worth 1975, no writ); McFarland v. Reynolds, 513 S.W.2d 620 (Tex.Civ.App.—Corpus Christi 1974, no writ). Where an exception, or motion as in this case, goes outside the record and sets up a matter which requires proof, it is by its very nature a “speaking demurrer,” which is not a valid pleading under our rules. Tex.R.Civ.P. 90; Friedman v. Cohen, 404 S.W.2d 372 (Tex.Civ.App.-Houston 1966, no writ); Latham v. Mountain States Mutual Casualty Company, 482 S.W.2d 655 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.).

Where a matter is required to be raised outside the pleading with extrinsic evidence, it should be through the use of summary judgment proceedings. Latham v. Mountain States Mutual Casualty Company, supra. As noted in 4 McDonald, Texas Civil Practice Sec. 17.26.3 (1971), a motion for summary judgment “may be effective in limiting the issues to be tried” and “when a defense is shown to be without support, it may be stricken.” In Continental Illinois Nat. Bank & Trust Co. of Chicago v. Ehrhart, 1 F.R.D. 199 (D.C.1940), the defendant pled limitations in a suit upon a note. In a summary judgment proceeding, the Court considered proof outside of the pleadings and, upon the whole record before the Court, concluded that the defense of limitations was not applicable and granted the motion for summary judgment striking the defense and ordering the case tried upon the remaining issues in the case.

We conclude that the Appellee should have followed a similar procedure in this case. By request for admissions or affidavits, the letters from the Travelers could have been properly presented to the trial Court in a summary judgment proceeding with a request to strike those defenses which were not appropriate for trial in this case. But where the answer had been on file for nearly three months, it was not proper to sustain a speaking demurrer the day of trial and strike defenses on the basis of allegations alone where extrinsic proof was required for a proper determination of the issue before the Court.

Since it becomes necessary to retry the case, we do not pass on the issue of whether the letters in question constituted a waiver of certain defenses since that issue must be decided, if it be raised in another trial, upon the evidence presented on the issue at that time.

Appellant’s Point of Error No. One is sustained. The judgment of the trial court is reversed and the case remanded to the trial Court.


author: CIRE, Justice.

text:
    Charles NEWDING, Appellant, v. The KROGER COMPANY et al., Appellees.
    No. 1627.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 29, 1977.
    Rehearing Denied July 20, 1977.

      Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Michael T. Johnson, Associate Dean, University of Houston, College of Law, Houston, for appellant.
    Ervin A. Apffel, Jr., McLeod, Alexander, Powel & Apffel, Charles G. Dibrell, Dibrell, Dibrell, Greer & Brown, Galveston, for ap-pellees.
   CIRE, Justice.

Plaintiff appeals from the granting of a judgment non obstante veredicto denying him recovery of exemplary damages for gross negligence in a products liability action.

Appellant Charles Newding was injured in May 1974 when the twist-off cap on a bottle of quinine water he was carrying popped off and struck his right eye. Newd-ing sued the distributor of the product, The Kroger Company, and the bottling company, appellee Consolidated Foods Corp. His suit was based upon two grounds of recovery: (1) strict liability based upon defendants’ manufacture and distribution of a defective product, and (2) negligence in failing to exercise ordinary care with regard to the design of the twist-off cap. He further alleged the conduct of defendants in knowingly manufacturing and distributing a defective product, which was likely to cause harm to consumers, was willful and gross negligence. He prayed for compensatory damages of $235,000 and punitive damages of double that amount against both defendants.

Trial was to a jury, at which testimony was given establishing the nature and extent of plaintiff’s injuries, and the defect in the capping process, which are not questioned on appeal. It was undisputed that the twist-off cap which caused the injuries had no thread. Plaintiff’s expert in the failure of manufactured products, George Greene, Jr., testified concerning the process by which twist-off caps are placed on soft drink bottles and problems which could lead to a failure of such caps. The caps, in the form of a cylinder closed on one end, are placed over the bottles. Pressure rollers (sometimes called “heads”) form threads in the sides of the cap by pushing the sides into the thread cavities already formed in the bottles. The head also crimps a “pilfer ring” into the base of the cap by forming tabs in the cap under the lip of the bottle, the purpose of which is to show the consumer if the bottle has been opened. He testified that, if the threads were not formed in the cap, the pressure inside the bottle could cause the cap to blow off. He also said that a pilfer ring with eight tabs, as that on the cap in question, could not be relied upon to keep the cap from being blown off by the pressure in the bottle. He offered the opinion that two economically feasible alternative cap designs were better and safer. One alternative was to have no pilfer ring on the cap at all; any caps which were liable to blow off would then fail at the factory. The other design would be a cap with 16 tabs on the pilfer ring, each tab being 50 percent wider than those on the cap in question, which would be adequate to maintain the cap until someone put their hand on it and opened it.

Plaintiff introduced into evidence three bottles and photographs of another bottle purchased at the same time as the bottle on which the cap failed; two of these bottles also had no thread on their caps.

William Leroy Jefferies, production supervisor at the bottling plant testified concerning the process by which bottles were capped and inspected. The machine had eight capping heads, so that the same head picked up one out of every eight bottles coming down the assembly line. As the caps were set and threaded by the head, an operator watched to see that it was set correctly. When the operator found an improperly formed cap, he stopped the machine and notified the quality control foreman, who then stopped the entire assembly line to see if any improperly set caps had gotten beyond that point. The heads sometimes got out of adjustment, as when a bottle with improperly formed threads came through the line. The plant used other checks as well. Each bottle sent down the line was inspected by an operator as a label was placed on the bottle, and a final inspection was performed before the bottle was placed into a carton. Every 20 minutes a set of bottles from every flavor produced was pulled from the line and checked for quality. In addition, supervisors checked the line at all times, walking beside it so that they could pick up bottles for visual inspection. The witness admitted that the only explanation for allowing three or four defectively capped bottles to get out was that someone in the course of their inspection procedure had to have “let down” for “that second of time.”

The case was submitted to the jury on 13 special issues. In its answers to the first six issues, the jury found that the cap was defectively designed with regard to the pilfer ring tabs and defective in not having properly formed threads; that each defect created an unreasonable risk of harm to the user; and that each was a producing cause of the accident. The jury found in issues 7 and 8 that defendants were negligent in distributing the bottle in question and that this was a proximate cause of the accident. In issues 9, 10, and 11, it found that plaintiff was entitled to actual damages of $60,-004.59. In issue 12 it found defendants’ conduct in distributing the bottle was a heedless and reckless disregard of the rights of others affected thereby. In issue 18 the jury found exemplary damages of $32,-000.00 should be awarded against Consolidated Foods Corp. and exemplary damages of $28,000.00 should be awarded against The Kroger Co.

Defendants moved for judgment notwithstanding the verdict as to special issue 12. The court granted this motion and entered judgment awarding $60,004.59 compensatory damages to plaintiff, but denying any exemplary damages.

Appellant has limited his appeal to one defendant, Consolidated Foods Corp., and to the court’s action in granting the motion for judgment n. o. v. on the jury’s finding of gross negligence. The findings of liability and compensatory damages have not been attacked and are not at issue here.

Appellant presents two points of error. The first point asserts the court erred in granting the motion for judgment n. o. v. as to special issue 12 in that there was evidence to support the jury’s finding on gross negligence. We disagree.

A judgment n. o. v. on an issue of damages can be upheld only if there was no evidence to support the jury’s findings on that issue. In reviewing the evidence, it must be considered in its light most favorable to the party against whom the motion was sought (here, appellant), and every reasonable intendment deducible from the evidence must be indulged in that party’s favor. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.Sup.1974).

As part of his negligence action appellant could obtain exemplary damages by proving Consolidated Foods Corp. had acted with gross negligence in distributing the defectively capped bottle. Both parties concede that gross negligence is

that entire want of care which would raise the belief that the. act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.

Atlas Chem. Indus. v. Anderson, 524 S.W.2d 681, 688 (Tex.Sup.1975), quoting Missouri Pac. Ry. v. Shuford, 72 Tex. 165, 170, 10 S.W. 408, 411 (1888). This want of care must be willful and affirmative, not simply passive or negative, or must be so gross as to show wantonness or malice. Bennett v. Howard, 141 Tex. 101, 108, 170 S.W.2d 709, 713 (1943); Texas Pac. Coal & Oil Co. v. Robertson, 125 Tex. 4, 6, 79 S.W.2d 830, 831 (1935).

We do not believe that appellant presented any evidence of gross negligence. The fact that the bottler could have used a safer twist-off cap and failed to do so or that there was a temporary failure of the inspection procedure which would have prevented the distribution of bottles with defective caps does not establish gross negligence. Sheffield Div., Armco Steel Corp. v. Jones, 376 S.W.2d 825, 827 (Tex.Sup.1964).

In view of our holding on this point, it is unnecessary to decide appellant’s other point of error, contending there was ample evidence that Consolidated Foods Corp. approved, ratified, or participated in the gross negligence, nor is it necessary to decide the cross-point presented by appellee.

Affirmed.


author: SHANNON, Justice.

text:
    Delbert HARDIN et al., Appellants, v. TEXAS BOARD OF PARDONS AND PAROLES, Appellee.
    No. 12585.
    Court of Civil Appeals of Texas, Austin.
    July 6, 1977.

      Richard A. Dawson, Staff Counsel for Inmates, Texas Dept, of Corrections, Rosh-aron, for appellants.
    John L. Hill, Atty. Gen., Jack B. Boone, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

This is a consolidated appeal from five summary judgment orders entered by the district court of Travis County. We will affirm the orders of the district court.

Appellants are Delbert Hardin, Clinton S. Smith, Michael Lester Sargeant, Donald A. Garrett, and Mark Dudonis. All appellants are felons presently imprisoned at the Department of Corrections in Walker County. Appellee is the State of Texas through its Board of Pardons and Paroles, termed “the Board” in this opinion.

After hearing, the Board recommended to the Governor that the parole of each of the appellants be revoked. After the Board overruled appellants’ respective motions for rehearing, appellants filed respective petitions in the district court of Travis County. Appellants pleaded that the district court of Travis County had jurisdiction of their administrative appeals from the determination of the Board by reason of Tex.Rev.Civ. Stat.Ann. art. 6252-13a (1970), commonly termed the Administrative Procedure and Texas Register Act.

In his petition each appellant claimed that the Board was without jurisdiction to consider the revocation of his parole inasmuch as “. . . more than forty-five days had elapsed . . . ” from the time he had been arrested on the parole violation warrant to the time of the Board’s hearing. Tex.Code Crim.Proc.Ann. art. 42.12 § 22 (1966). By way of relief, appellants prayed that the district court of Travis County order each of them “reinstated on parole, or, in the alternative, that a trial de novo pursuant to Section 19 of the Administrative Procedure Act be set and held in this matter.”

Appellee responded to appellants’ petitions by filing motions for summary judgment. The basis for the motions for summary judgment was that the Administrative Procedure Act did not confer upon the district court the authority to review the Board’s recommendation to the Governor that appellants’ paroles be revoked.

The Board makes no final determination as to the revocation of parole. Its role is to recommend appropriate action to the Governor. “When the Board has heard the facts, it may recommend to the Governor that the parole be continued, or revoked, or modified . .” Tex.Code Crim.Proc.Ann. art. 42.12 § 22. The Governor, as chief executive, alone, possesses the power to revoke parole. Tex.Const. art. IV, § 11.

Furthermore, section 19(a) of the Administrative Procedure Act provides that one who has been aggrieved “by a final decision in a contested case” is entitled to judicial review. A determination by the Board is but a recommendation to the Governor who alone possesses the power to make the final determination concerning revocation. As a result, the Board’s determination is not a final decision in a contested case within the purview of Sec. 19(a) of the Administrative Procedure Act.

The summary judgment orders are affirmed.

Affirmed.

      . Article 42.12 § 22 was amended in 1973 to provide that the hearing shall be held within sixty days of the arrest of the parolee.


author: PHILLIPS, Chief Justice.

text:
    Alfred E. PAMPELL et al., Appellants, v. Edward M. PAMPELL, Appellee.
    No. 12590.
    Court of Civil Appeals of Texas, Austin.
    July 6, 1977.
    Edward E. Lindsay, J. E. Scanlan, Jr., Houston, for appellants.
    Allan I. Schneider, Giddings, for appellee.
   PHILLIPS, Chief Justice.

Appellee, Edward M. Pampell, brought this suit contending that under the terms of a holographic will executed by his mother, he was entitled to purchase certain described land pursuant to an option clause in the will. Appellee also sought to have the will construed to determine the rights and obligations of the parties, to have an administrator appointed to carry out the terms of the will, and to have a partition of the real property belonging to his parents. His father had died intestate leaving his share of the estate to pass under the laws of descent and distribution.

The answer of appellants, Alfred E. Pam-pell, Pampell Interests, Inc., and Clara H. Gerstenberger, included a plea in abatement alleging that all of the necessary parties were not before the court. This plea was overruled by the trial court.

The cause proceeded to final judgment construing the will and partitioning the realty in question. Inasmuch as we sustain appellants’ first point of error which complains of the trial court’s overruling their plea in abatement, we need only address this point.

It is a fundamental rule that jurisdiction over indispensable parties to a cause of action is essential to the court’s right, power or authority to proceed to judgment. City of Arlington v. Bardin, 478 S.W.2d 182 (Tex.Civ.App.1972, writ ref. n. r. e.), and Bledsoe v. Beard, 516 S.W.2d 207 (Tex.Civ.App.1974, writ ref. n. r. e.). As there is no litmus paper test for determining whether or not a party is indispensable, the facts in each case should determine whether or not an indispensable party has not been joined as plaintiff or defendant in a suit. This determination should be made in conformity with the provisions of Tex.R.Civ.P. 39. City of Arlington v. Bardin, supra.

Under the facts of this case, we see that appellants did not make a bill of exception after their plea in abatement had been rejected by the trial court; however, we note from the will itself that all of the children of the testatrix were to share in the estate. The record further discloses that the testatrix had eight children. Although there are statements in appellee’s petition that all of the interests of the children not joined have been conveyed to the parties hereto, the record does not so disclose. There is nothing further in the record indicating that any disposition has been made of all of these interests in the estate.

All of the beneficiaries under a will having an interest in the estate are indispensable parties to any suit to construe the will or to partition the estate. Since the record does not show that all of the interests of the beneficiaries were represented at trial, and since the record does show that a proper application of Rule 39 may have required the joinder of additional parties, appellants’ plea in abatement should have been sustained.

Consequently, we have no choice but to reverse the judgment of the trial court and remand the cause for a new trial.

      . Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App.1975, no writ); Hay v. Hay, 120 S.W. 1044 (Tex.Civ.App.1909, no writ); Amend v. Amend, 299 S.W.2d 759 (Tex.Civ.App. 1957, no writ).

      . In this respect see: Buffalo Bayou Ship Channel Co. v. Bruly, 45 Tex. 6 (1876).


author: ELLIS, Chief Justice.

text:
    Sondra JACKSON et al., Appellants, v. Robert Joseph LEWIS, Appellee.
    No. 8755.
    Court of Civil Appeals of Texas, Amarillo.
    July 11, 1977.

      Crenshaw, Dupree & Milam, J. Orville Smith and Cecil C. Kuhne, Lubbock, for appellants.
    H. Deloyd Bailey, Wichita Falls, for ap-pellee.
   ELLIS, Chief Justice.

Sondra Jackson, individually and as next friend of Julie Jackson, a minor, and for and in behalf of the Estate of Robert La-Var Jackson, brought suit against Robert J. Lewis for damages resulting from the wrongful death of her husband, Robert La-Var Jackson, who was killed in a head-on automobile collision. Lewis counterclaimed for damages to compensate him for personal injuries and property loss he sustained as a result of such collision.

The case was tried before a jury. In response to questions or issues submitted the jury found no damages for either party. Upon Lewis’ motion, the trial court disregarded the jury’s finding of no damages for Lewis’ medical and hospital expenses and entered judgment in his favor for certain medical and hospital expenses.

Jackson’s appeal challenges the trial court’s construction of the parties’ stipulation as to evidence regarding Lewis’ medical and hospital expenses, as well as the validity of the judgment against the estate of a deceased person. We have concluded that the stipulation did not establish the amount of damages as a matter of law and that the judgment entered should be reversed and rendered in accordance with the jury’s verdict.

The collision occurred on May 14, 1974. This suit was instituted in September, 1974 and proceeded to trial in March, 1976. The facts of this unfortunate occurrence will not be detailed further than to note that one driver (Jackson) was killed and the other (Lewis) was seriously and permanently injured. The jury found that Lewis had not been guilty of the acts of negligence alleged. Jackson, however, was found to have been negligent in two respects — both of which proximately caused the collision. The jury apportioned negligence 80% to Jackson and 20% to Lewis.

Four damage issues (or questions) were submitted to the jury. Questions 4 and 5 inquired as to the amount of damages for the deceased driver’s wife, Sondra Jackson, and their minor child, respectively. Question 6 inquired as to Lewis’ damages by reason of his injuries (including physical pain and mental anguish and lost earnings and earning capacity). Question 7 inquired as to the reasonable expenses for necessary medical and hospital care received by Lewis for treatment of his injuries resulting from the collision. The jury answered each of these four damage questions or issues “None.” The stipulation pertained only to Question 7 regarding Lewis’ medical and hospital expenses.

Despite the jury findings that he had •suffered no damages, Lewis filed a “Motion for Judgment” asking the court to disregard Question 7 and its answer and alleged that the parties had stipulated and established the amount of his damages for medical and hospital expenses as a matter of law and that there is no evidence to justify the answer of the jury to Question 7. Also, the motion sought rendition of judgment in favor of Lewis notwithstanding the verdict. Lewis’ motion for judgment was dated April 14, 1976, and it was indicated thereon that a copy had been mailed to Jackson’s lawyer. On April 20, 1976, the trial court rendered judgment for $18,555.79 (80% of Lewis’ medical bills) in favor of Lewis. Both the “Motion for Judgment” and the court’s judgment were filed on April 26, 1976. Jackson has appealed on two points of error.

In her first point of error, Jackson has argued that the trial court erred in rendering judgment for Lewis because the jury found that Lewis had sustained no damages. It is Jackson’s contention that the trial court substituted its own finding for. that of the jury and that this action was erroneous. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). According to Jackson, the court also erred by disregarding the jury finding and granting judgment non obstante veredicto or notwithstanding a jury finding without a motion and notice as required by Tex.R.Civ.P. 301. Continental National Bank v. Hall Page Tire Co., 318 S.W.2d 127 (Tex.Civ.App.-Fort Worth 1958, no writ). Jackson has argued that Lewis filed neither a motion for judgment non obstante veredicto nor a motion to disregard the jury’s finding. Furthermore, Jackson has contended that no notice of the Motion for Judgment was given her before the court entered its judgment on the motion. Lastly, Jackson has urged that even in the event there was no evidence on the issues and once the Court set aside the findings, there was no verdict, and under such circumstances the trial court should have granted a new trial instead of granting judgment for Lewis.

Lewis has agreed “that the law and argument stated by Appellant would be applicable and controlling in the case at bar” if not for a certain stipulation between the parties which had been entered of record and approved by the court. Thus, the significant inquiry under point 1 focuses upon a determination of the effect to be given the following stipulation:

(Counsel for Lewis): Your Honor, we have agreed that these charges that are not duplicitous — correct me if this is wrong, that they are reasonable, customary usual and necessary charges in the vicinities in which they were rendered. Is that correct?
(Counsel for Jackson): Yes, sir, that is correct. We want this to go to the jury, I doubt if any medical charge these days is reasonable, but we are not going to argue about that. But we would like this all to go to the jury, we just don’t raise any objection on that.
(Counsel for Lewis): Okay, Your Hon- or, in other words, so we wouldn’t have to call the doctors to testify.
THE COURT: Let the record so show.
(Counsel for Lewis): We will offer then those bills into evidence.
THE COURT: They will be accepted.

After the above stipulation, Lewis’ medical and hospital bills were received into evidence. Lewis would have us construe this stipulation as establishing his damages as a matter of law. Jackson, on the other hand, has argued that the stipulation simply relieved Lewis of the obligation to prove the reasonableness of the medical charges by calling doctors to testify, that it never was intended to take the issue of Lewis’ damages away from the jury, and that no judgment can be founded upon it.

The law, however, regards a stipulation as a contractual agreement. United States Fire Insurance Company v. Carter, 468 S.W.2d 151 (Tex.Civ.App.-Dallas), writ ref’d n. r. e. per curiam, 473 S.W.2d 2 (Tex.1971). It will be given no more force than the parties intended it to have. Id. As with any contractual agreement, the intention of the parties should be determined by the language used in their stipulation. United States Fire Insurance Company v. Carter, supra; Texas Employers’ Ins. Ass’n v. Wright, 297 S.W. 764 (Tex.Civ.App.-Amarillo 1927), modified, 4 S.W.2d 31 (Tex.Com.App.1928, jdgmt. approved). A court will not construe a stipulation to effect admission of something intended to be controverted or to waive a right not plainly agreed to be relinquished. United States Fire Insurance Company v. Carter, supra. If the stipulation is ambiguous or contradictory, it may not be given any effect. Sergeant v. Goldsmith Dry Goods Co., 110 Tex. 482, 221 S.W. 259 (1920).

Clearly, the stipulation did not fix by agreement the amount of Lewis’ damages; instead, it merely established that the medical charges for the services rendered were reasonable and necessary. That the stipulation was not intended to measure Lewis' damages is manifested not only by his lawyer’s statement that its purpose was to prevent the calling of doctors as witnesses to the facts of reasonableness and necessity and by the insistence of Jackson’s lawyer that the question of damages go to the jury, but by the fact that nowhere is it stipulated that these charges were, as question no. 7 required for a jury finding of medical damages “ . . . expenses . resulting from the occurrence in question.” Moreover, the question of damages was submitted to the jury without any objection by Lewis’ attorney, and particularly without the objection that the amount of damages had been legally settled by the stipulation.

Thus, the stipulation that the medical charges were reasonable and necessary presented, together with other evidence bearing on the question of damages, a fact issue for determination by the jury. Consequently, the trial court was not authorized to substitute its finding in place of the jury’s determination. Point 1 is sustained.

Our sustention of this point requires the rendition of judgment on the jury’s verdict, unless as directed by Rules 324 and 420, Texas Rules of Civil Procedure, there are cross-points which, if sustained, would vitiate the verdict upon which a take nothing judgment could be entered. However, Lewis has not brought forward in his brief any cross-points and particularly none questioning the sufficiency of the evidence supporting the jury’s findings on the damage issue here in question or that such finding is against the great weight and preponderance of the evidence. Neither party has contended that the evidence was not fully developed. Accordingly, we must reverse the judgment entered by the trial court and render judgment in harmony with the jury’s verdict. Rule 324, T.R.C.P.; Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967); Westbrook v. Reed, 531 S.W.2d 890 (Tex.Civ. App.-Amarillo 1975, writ ref’d n. r. e.); Robertson v. Alberty, 499 S.W.2d 361 (Tex.Civ.App.-Amarillo 1973, no writ).

For this reason, we do not reach the second point.

The trial court’s judgment is reversed and judgment is here rendered that Lewis take nothing.


author: CHADICK, Chief Justice.

text:
    Hazel Lucile BOWDEN, Appellant, v. Alberta Chandler CALDRON, Appellee.
    No. 8479.
    Court of Civil Appeals of Texas, Texarkana.
    July 12, 1977.
    Rehearing Denied Aug. 9, 1977.

      Dauphin Whitehead, Arlington, Don Ste-gall, Fort Worth, for appellant.
    Milford Lee Hall, Bowie, for appellee.
   CHADICK, Chief Justice.

This is an equitable adoption case. In the course of probate proceedings in the court below the appellant, Mrs. Hazel Lucile Bowden, claimed to be the adopted daughter and heir at law of Stella M. Whitley, deceased. The trial court disallowed the claim and on the basis of the jury’s finding in response to special issues entered judgment that appellee, Mrs. Alberta Chandler Caldron, was the sole and only heir at law of such decedent. The judgment of the trial court is affirmed.

The jury found, in response to Special Issue No. 1, that at the time Appellant Bowden was a six week old infant Stella M. Whitley and her husband did not agree with Appellant Bowden’s natural mother, Maude Franklin, to take the appellant into their home and adopt her as their own child. Additionally, the jury also found, in response to Special Issue No. 2, that Stella M. Whitley and her husband took Appellant Bowden into their home and “reared her as their own child, caring for her, clothing and educating her as their own child.” And, in response to Special Issue No. 3, the jury found that Appellant Bowden rendered Stella Whitley and her husband the “love, obedience, affection and duties of a child from the time she was taken into their home.”

The principle is established in Texas, and it is not challenged in this appeal, that an equitable adoption together with the rights appertaining to that status, will be recognized when the promises, acts and conduct of intestate decedents indicate an attempt or agreement to adopt but efforts to that end are ineffective because of failure to comply strictly with statutory procedures, or an agreement to adopt is not performed through neglect or design. Heien v. Crabtree, 369 S.W.2d 28 (Tex. 1963); Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951); Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72 (1934); Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940); see generally L. M. Simpkins, 2 Texas Family Law, Sec. 14:6 (Speer’s 5th Ed. 1976); 1 Tex.Jur.2d, Adoptions, Sec. 77; 15 Baylor L.Rev. 162 (1963); and Bailey, Adoption “By Estoppel”, 36 Texas L.Rev. 30 (1957). The jury found no agreement to adopt and there is no contention that a statutory adoption was undertaken.

The trial court correctly grounded judgment upon the jury’s answer to Special Issue No. 1. The appellant contends the jury's answer to Special Issue No. 1 is against the great weight and preponderance of the evidence. No direct evidence of an agreement to adopt was admitted by the trial court. The appellant produced testimony that she was not the natural child of Stella M. Whitley and her husband, but that she was reared by them and was treated and acted as their child and gave and received love and care. The jury finding of no agreement to adopt is not contrary to the great weight and preponderance of such evidence.

On direct examination Mrs. Edna Patton, a witness tendered by Mrs. Bowden, was asked if there was an “ . . . agreement to take Mrs. Bowden to be the child of the Whitleys . . . ” between Mrs. Bowden’s natural mother and the Whitleys. The witness replied, “Yes, I know she was accepted with them and that they accepted her ... as their own.” Cross-examination developed that the witness was within a few months of being the same age as Mrs. Bowden and her knowledge of an agreement by the Whitleys to adopt Mrs. Bowden came from overhearing a statement to that effect by Mrs. Patton’s mother. The trial judge withdrew the witness’s testimony of an agreement to adopt from the jury. Another witness testified the Whitleys treated Mrs. Bowden as their own child and still others testified they knew or had heard Mrs. Bowden was an adopted child. The trial judge refused to admit such testimony for jury consideration.

Mrs. Patton’s direct testimony that an agreement to adopt was made constituted hearsay and the testimony of other witnesses that they knew or had heard that Mrs. Bowden was adopted by the Whitleys was a mixture of conclusions and hearsay. Such testimony was properly excluded. McCormick & Ray, Texas Evidence, Secs. 781 and 1391 (2nd Ed. 1956). However, Mrs. Patton’s testimony that Mrs. Bowden, as an infant, was accepted by the Whitleys as their own, etc., and similar excluded evidence of another witness was admissible as a circumstance to prove an agreement to adopt but it was merely cumulative of other substantial evidence of the same nature admitted upon the same issue. Under such circumstance, error in the exclusion of this evidence was harmless. Sherwood v. Medical & Surgical Group, 334 S.W.2d 520 (Tex.Civ.App. Waco 1960, writ ref’d); 4 Tex.Jur.2d, Rev., Part 2, Appeal and Error—Civil Cases, Sec. 854 (1974). The probative value, or lack of it, of evidence similar to that excluded is discussed in Moorman v. Hunnicutt, 325 S.W.2d 941 (Tex.Civ.App. Austin 1959, writ ref’d n. r. e.).

In connection with the exclusion question discussed, appellant asserts that the trial court erroneously refused to allow Mrs. Bowden to be interrogated about or explain why no formal adoption was accomplished. The court based its ruling on Tex. Rev.Civ.Stat. art. 3716, the dead man statute. No bill of exception was made or the excluded evidence otherwise brought forward. To preserve error, the record must show what the proffered evidence is or what the expected answer of the witness would have been by a bill of exception or the statement of facts. The record does not disclose error. Sims v. Duncan, 195 S.W.2d 156 (Tex.Civ.App. Galveston 1946, writ ref’d n. r. e.); Corrigan v. Heard, 225 S.W.2d 446 (Tex.Civ.App. San Antonio 1949, writ ref’d n. r. e.); Johnson v. Poe, 210 S.W.2d 264 (Tex.Civ.App. Galveston 1948, writ ref’d n. r. e.); 4 Tex.Jur.2d, Rev., Part 1, Appeal and Error—Civil Cases, Sec. 475 (1974). Appellant’s Point of Error No. 2 is overruled.

Appellee’s Exhibits No. 10, No. 11 and No. 12 were admitted into evidence over objection of appellant. Exhibit No. 10 is a plaintiff’s petition filed in a suit against the decedent, Stella M. Whitley. The instrument identifies Mrs. Whitley as “the surviving wife and only heir at law of E. W. Whitley.” Exhibit No. 11 is an affidavit of heirship by E. W. Whitley, husband of Stella M. Whitley, made subsequent to the death of this couple’s only natural child. It refers to the deceased child and states, “that deceased had no brother or sister.” Exhibit No. 12 is a quitclaim deed by Mrs. Whitley which begins, “That I, Stella Whitley, surviving wife and only heir at law of E. W. Whitley . .

Exhibits 11 and 12 contain statements of family history or pedigree. Statements such as those noted are admissible as exceptions to the general rule against hearsay. Family history and pedigree are admissible when made by a blood relative having knowledge of the facts, but who is dead or otherwise unavailable at the time of trial. Goldman v. Campbell, 249 S.W.2d 633 (Tex.Civ.App. Forth Worth 1952, writ ref’d n. r. e.); Burrell v. Westbrook, 163 S.W.2d 695 (Tex.Civ.App. Amarillo 1942, writ ref’d w. o. m.); McCormick & Ray, Texas Evidence, Sec. 1341 (2nd Ed. 1956), et seq. Exhibit No. 10 pertained to extraneous matters and was not admissible under any exception to the hearsay rule. Its admission into evidence was error. But when the record as a whole is considered it does not appear that such error was calculated to or did cause the rendition of an improper judgment. Error in the admission of Exhibit No. 10 is harmless.

All points of error have been considered. Reversible error is not shown. Accordingly, the judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    MAINTENANCE AND EQUIPMENT CONTRACTORS, Appellant, v. JOHN DEERE COMPANY, Appellee.
    No. 1511.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 13, 1977.
    Rehearing Denied Aug. 3, 1977.

      Dixie Smith, Fulbright & Jaworski, Houston, for appellant.
    James E. Coleman, Jr., Richard A. Sayles, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Dale Harvill, Harvill & Hardy, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is a plea of privilege case involving subdivision 31 of article 1995.

This appeal is brought by Maintenance & Equipment Contractors, appellant, from a judgment sustaining a plea of privilege for John Deere Company, appellee, to transfer the suit to the county of its residence. The original suit was brought by Buck Albert Maynard against appellant in Brazoria County for injuries sustained while operating a tractor leased to Mr. Maynard’s employer by appellant. Plaintiff's cause of action was in negligence and strict liability in tort for leasing a defective tractor. Plaintiff alleged that while being operated over a ditch the tractor overturned causing injury to plaintiff, and that the accident could have been prevented had the tractor been equipped with brakes on the front-end wheels. Plaintiff amended its original petition to include John Deere as a defendant, on the same theories of negligence and strict liability in tort for defective design. Appellee was granted a change of venue to Dallas County, its residence. Appellant then filed a third party action against ap-pellee for contribution and indemnification. Appellee, again, filed a plea of privilege to have this third party action transferred to Dallas County which was duly controverted by appellant under subdivisions 4, 9a, 23, 27, 29a and 31 of our venue statute. The district court ordered the cause transferred to Dallas County. On appeal, appellant contends that the trial court erred in not overruling appellee’s plea of privilege. At the venue hearing appellant failed to establish the essential venue facts necessary under subdivisions 4, 9a, 23, 27 and 29a, his cause of action against appellant being based on hearsay evidence. The only evidence as to how the accident occurred was the testimony of J. L. McDaniel, one of appellant’s officers. His knowledge of the accident was predicated solely on statements made to him by Maynard. Appellant also points to Tex.Rev.Civ.Stat.Ann. art. 2212a § 2(g) (Supp.1976), requiring that all claims for contribution between named defendants in the primary suit shall be determined in the primary suit. However, at the time of the hearing, appellee was not a “named” defendant in the primary suit and, consequently, article 2212a § 2(g) is not applicable.

The controlling point of error in this case, then, is whether appellant proved the essential venue facts necessary under Tex.Rev. Civ.Stat.Ann. art. 1995 § 31 (Supp.1976).

Suits for breach of warranty by a manufacturer of consumer goods may be brought in any county where the cause of action or a part thereof accrued, or in any county where such manufacturer may have an agency or representative, or in the county in which the principal office of such company may be situated, or in the county where the plaintiff or plaintiffs reside.

Due to its relatively recent adoption, few cases have interpreted this addition to the venue statute. Appellee argues that appellant failed to prove the requisite venue facts under this subdivision; that is, it failed to prove a cause of action against appellee or that appellee was the “manufacturer” of the tractor involved in the accident. Appellee also contends that a tractor does not fall within the meaning of “consumer goods” as the term is used under subdivision 31.

In order to deprive a defendant of his right to trial in the county of his domicile, a plaintiff must allege and prove that the case clearly comes within an exception to the venue statute. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950). In this regard, the plaintiff must allege and prove the venue facts which are stated in the particular exception that is applicable to the character of the suit as alleged in the petition. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945). Appellant relied on that portion of subdivision 31 which states:

Suits for breach of warranty by a manufacturer of consumer goods may be brought ... in the county where the plaintiff or plaintiffs reside.

Considering the first issue of whether a cause of action must be alleged and proved, we note that not all venue exceptions require proof of a cause of action. For example, subdivision 27 states:

Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this State, and doing business within this State, may be sued in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in this State, then in the county where the plaintiffs or either of them, reside.

Tex.Rev.Civ.Stat.Ann. art. 1995 § 27 (1964). It is well settled that where plaintiff seeks to establish venue under subdivision 27 in the “county where the cause of action or a part thereof accrued. . . .,” he must prove a cause of action. Zurich Ins. Co. v. Wiegers, 527 S.W.2d 511, 515 (Tex.Civ.App.—Austin 1975, no writ); Charles Pfizer & Co. v. Branch, 365 S.W.2d 832, 834 (Tex.Civ. App.—Eastland 1963, writ dism’d). However, a cause of action need not be proved if the plaintiff establishes that there is a foreign corporation doing business within the state and has an agency or representative in the county where suit is filed. See Home Indem. Co. of New York, N.Y. v. Hicks, 488 S.W.2d 614, 615 (Tex.Civ.App.—Beaumont 1972, writ dism’d); R. McDonald, Texas Practice § 430.4 n. 55 (1965).

It has also been held that under subdivision 14, suits for recovery of land, the only venue facts which need be proved are that the suit is one for recovery of land and for damages thereto, and that a part of the land lies in the county where the suit is brought. Cowden v. Cowden, 186 S.W.2d at 71.

Considering the language of subdivision 31, it is our opinion that a cause of action must be proved if venue is sought in the county where the cause of action or part thereof accrued. However, the cause of action is not an essential venue fact if the plaintiff established that the defendant has an agency, representative or its principal office in the county where suit is filed, or if suit is filed in the county where the plaintiff resides. The court can look to the pleadings to discover that the nature and character of the suit is for breach of warranty.

The plaintiff must establish, however, that the defendant is the manufacturer, and here appellee contends that the appellant failed to sustain this burden. The only evidence offered at the hearing to establish that appellee was the manufacturer was the testimony of J. L. McDaniel. He stated that the tractor which Mr. Maynard was riding at the time of the accident had “John Deere” plates on it and that he bought the tractor from a John Deere dealer. The question raised is whether this evidence standing alone is sufficient to prove that John Deere was the manufacturer of the tractor. Appellee has cited several cases in his brief in which evidence of manufacture was held insufficient to establish that essential venue fact. In Swift & Co. v. Mackey, 216 S.W.2d 242 (Tex.Civ.App.—Eastland 1948, no writ) the court of civil appeals stated that evidence of Swift’s label on a package of ice cream was, by itself, not sufficient to establish that Swift manufactured the ice cream; however, the court also observed that all the evidence other than the label was to the contrary. In San Antonio Tent & Awning Co. v. Martin, 437 S.W.2d 647 (Tex.Civ.App.—Texarkana 1969, no writ) the court found no evidence that the defendant manufactured the tarpaulin other than a box in which the tarpaulin was packed with defendant’s label on it and concluded that plaintiff had failed to establish who manufactured the tarpaulin as well as other essential venue facts. Id. at 648. Finally, in Michlien Tire Co. v. Pendland, 416 S.W.2d 586 (Tex.Civ.App.—Beaumont 1967, no writ) the plaintiff attempted to prove manufacture by testimony that the word “Michlien” was printed on the tire tube which exploded. The court stated that aside from this evidence there was no proof that the defendant, Michlien, had any connection with the tire or with the retailer who sold the tire to the plaintiff’s employer. The court also found that there was no evidence that defendant had a trade name or trademark. In his dissent Justice Stephenson argued that the issue of who manufactured the tube was not disputed; Michlien never denied being the manufacturer. He stated that this issue should have been controlled by the line of cases following the branded car doctrine; that is, where a vehicle bears the name or brand of the defendant, then ownership is presumed. Id. at 591; Henderson Drilling Corp. v. Perez, 304 S.W.2d 172, 173 (Tex.Civ.App.—San Antonio 1957, no writ).

Appellant has cited Falfurrias Creamery Co. v. Sanders, 426 S.W.2d 588 (Tex.Civ.App.—Corpus Christi 1968, no writ) in support of its proposition that there was sufficient evidence that appellee manufactured the tractor. In that ease the court held that in the absence of any evidence to the contrary, the fact that a carton of butter had “Made by Falfurrias Creamery, Falfur-rias, Texas” printed on it was sufficient to establish prima facie that defendant manu- . factored the butter. Id. at 590. The court cited Globe Laundry v. McLean, 19 S.W.2d 94 (Tex.Civ.App.—Beaumont 1929, no writ), another case following the branded car doctrine.

In this case the only proof that John Deere manufactured the tractor was that “John Deere” plates were on the tractor and that the tractor was purchased from a John Deere dealer. We feel that this evidence is analogous to that required under the branded car doctrine. Under this doctrine, evidence that the name of a corporation or individual is printed on the side of the vehicle raises a presumption that the corporation or individual is the owner of the truck and that the driver is the agent of the corporation or individual and was acting at the time in the course of his employment. E. g., Pilgrim Industries, Inc. v. Jones, 503 S.W.2d 861, 863-64 (Tex.Civ.App.—Texarkana 1973, no writ); Walker v. Johnston, 236 S.W.2d 534, 536-44 (Tex.Civ.App.—San Antonio 1951, writ dism’d). Such evidence, of course, is not conclusive and can be rebutted by evidence that the vehicle, in fact, was not owned by the corporation or individual. Kimbell Milling Co. v. Marcet, 449 S.W.2d 100, 103-104 (Tex.Civ.App.—San Antonio 1969, no writ); McGee v. Phillips Petroleum Co., 373 S.W.2d 773, 775 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e.).

We recognize that the branded car doctrine has been limited generally to questions of ownership and/or agency and not, as in this case, to establishing the manufacturer of a product. However, we are inclined to follow the position taken by Justice Stephenson’s dissent in Michlien Tire Co. v. Pendland, 416 S.W.2d at 591, and conclude that the doctrine should apply to cases involving identification of the manufacturer. Cf. Falfurrias Creamery Co. v. Sanders, 426 S.W.2d at 590. The unrebutted evidence that the defendant’s name, “John Deere,” was on the tractor coupled with the testimony that the tractor was bought from a John Deere dealer is sufficient to raise the presumption that appellee was the manufacturer. See 1 R. Hursh & H. Bailey, American Law of Products Liability § 1:42 at 132 (2d ed. 1974), citing International Milling Co. v. Jernigan, 191 S.W.2d 526, 528 (Tex.Civ.App.—Waco 1945, no writ).

Appellee has argued that to hold such proof sufficient to establish the manufacturer would unnecessarily open liability to sellers who place their name on products that are manufactured by other companies. However, one who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were the manufacturer. Ford Motor Co. v. Mathis, 322 F.2d 267, 273 n. 9 (5th Cir. 1963); S. Blickman, Inc. v. Chilton, 114 S.W.2d 646, 649 (Tex.Civ.App.—Austin 1938, no writ); Restatement of Torts (Second) § 400, comment d (1965). Therefore, our ruling does not create a greater liability on this type of seller.

Finally, appellee contends that a tractor does not fall within the definition of “consumer goods” as used in subdivision 31. They submit that the applicable definition of “consumer goods” is that found in article 9 of the Texas Business and Commerce Code.

Goods are

(1) “consumer goods” if they are used or bought for use primarily for personal, family or household purposes; .

Tex.Bus. & Comm.Code Ann. § 9.109 (Supp. 1976). Appellant, on the other hand, relies on the definition found in the Texas Deceptive Trade Practices Act.

(1) “Goods” means tangible chattels or real property purchased or leased for use.
(4) “Consumer” means an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services.

Tex.Bus. & Comm.Code Ann. § 17.45 (Supp. 1976).

Since the term “consumer goods” is not defined in our venue statute, it should be construed in the sense in which it is understood in common language. See Ex parte Mehlman, 127 Tex.Cr.R. 257, 75 S.W.2d 689, 690 (Tex.Cr.App.1934); that is, a broad interpretation should be used. The Uniform Commercial Code distinctions between consumer goods, equipment, farm products and inventory are very narrow and have been written into article 9 which applies generally to transactions involving security interests. Tex.Bus. & Comm.Code Ann. § 9.102 (Supp.1976). We also note that subdivision 5(b) of our venue statute appears to accept a broad definition of consumer goods and specifically mentions goods used for agricultural purposes.

In an action founded upon a contractual obligation of the defendant to pay money arising out of or based upon a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household or agricultural use, suit by a creditor upon or by reason of such obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract, or in the county in which the defendant resides at the time of the commencement of the action. No term or statement contained in an obligation described in this subsection shall constitute a waiver of this provision. [Emphasis added.]

Tex.Rev.Civ.Stat.Ann. art. 1995 § 5(b) (Supp.1976); See Castleberry v. Acco Feeds, etc., 525 S.W.2d 282 (Tex.Civ.App.—Eastland 1975, no writ). It is our opinion, then, that the John Deere tractor involved in the accident is a consumer good as contemplated under subdivision 31 of article 1995.

Having decided that appellant established all of the necessary venue facts under subdivision 31, we hold that the trial court erred in sustaining the plea of privilege. All other points of error being considered, we reverse the judgment of the trial court. The appellee’s plea of privilege is overruled.

Reversed and rendered.


text:
    Dale BOMAN et ux., Appellants, v. Jim WOODMANSEE, d/b/a Aztec Pools, Appellee.
    No. 12510.
    Court of Civil Appeals of Texas, Austin.
    July 13, 1977.
    James G. Boyle, Austin, for appellants.

      Donald F. Nobles, Austin, for appellee.
   SHANNON, Justice.

Appellants, Dale Boman and wife, Marlene Boman, filed suit in the district court of Travis County against appellee, Jim Wood-mansee, doing business as Aztec Pools. Appellants sought treble damages for breach of warranty under Tex.Bus. & Comm.Code Ann. § 17.41, et seq., commonly termed the Deceptive Trade Practices-Consumer Protection Act. After trial to a jury, appellants moved for judgment for $16,-069.50 in damages, that sum representing three times the amount of actual damages found by the jury. The district court overruled appellants’ motion for judgment, and instead, entered judgment for appellants for $5,356.50 actual damages and $7,300 for attorney’s fees. We will reverse the judgment.

Appellants entered into a contract with appellee for the construction of a swimming pool. In their pleading appellants alleged that appellee breached his warranty of good workmanship in the construction of the pool and alleged that appellants were entitled to three times the actual damages resulting from the breach.

In response to the special issues the jury answered, among other things, that appel-lee failed to install the swimming pool in a good and workmanlike manner and that this failure was a producing cause of the damage. The jury responded further that appellants had been damaged in the sum of $5,956.50.

Appellants’ single point of error is that the district court erred, as a matter of law, in failing to treble the actual damages as required by Section 17.50(b)(1) of the Deceptive Trade Practices Act. Appellee does not complain that the judgment for attorney’s fees is excessive.

Appellants’ point of error is well taken. The trebling of actual damages is mandatory under Section 17.50(b)(1). Woods v. Littleton, Tex.1977, - S.W.2d -.

In fairness to counsel and to the district court, it should be observed that the opinion in Woods v. Littleton, supra, was delivered by the Supreme Court long after the entry of judgment in the case at bar. At the time of the entry of the judgment in the case at bar, the only existent authority indicated that pursuant to Section 17.-50(b)(1), the trial court, in its discretion, could determine whether or not to enter a judgment for three times the amount of the actual damages. Mallory v. Custer, 537 S.W.2d 141 (Tex.Civ.App.1976, no writ). In Woods the Supreme Court disapproved Mallory to the extent that Mallory suggested the trial court had the discretion to determine whether or not to enter a judgment for treble damages.

The judgment is reversed and judgment is here rendered for appellants for $16,-069.50 in damages and for $7,300 in attorney’s fees and for interest.


text:
    Leroy LEVIEN, Appellant, v. Arthur G. RUMMEL et al., Appellees.
    No. 12595.
    Court of Civil Appeals of Texas, Austin.
    July 13, 1977.
    Rehearing Denied Aug. 10, 1977.

      Robert J. Kuhn, Kuhn, Collins & Rash, Austin, for appellant.
    Richard T. Halpain, Hart & Halpain, La Grange, for appellees.
   PHILLIPS, Chief Justice.

Appellees, the heirs of Edgar Rummel brought this suit in the court below against appellant, Leroy Levien, formerly administrator of Rummel’s estate, to recover the value of a silver bar alleged to be part of the estate of the deceased. With permission of the court appellees filed a trial amendment to recover the bar itself. Ap-pellees also sought damages against appellant under the provisions of Tex.Prob.Code Ann. § 414 (1956).

The case was tried to a jury, and after both parties had rested, the court withdrew the case from the jury and instructed a verdict for appellees herein awarding them full title to and possession of the silver bar. The court also denied appellees any damages under Section 414 of the Probate Code.

We affirm this judgment.

The facts necessary to the disposition of this case are as follows. Appellant agreed to act as administrator of Edgar Rummel’s estate. Compensation for appellant’s duties was not agreed upon until after appellant had begun performance of his duties. At the close of the administration, each of the appellees executed an instrument supposedly showing that each had received his portion of the estate and allegedly releasing appellant, the court and appellant’s bondsman from liability.

It is undisputed that the deceased owned the silver bar at the time of his death. However, it was not included in the inventory and appraisement nor was it included in the final accounting. At the time of trial the silver bar was deposited in the registry of the court.

The record disclosed that all parties hereto were aware of the existence of the silver bar. Why the heirs signed the release which they knew or should have known did not include the bar and why appellant failed to include the bar in the inventory are matters of conjecture.

Nevertheless, when appellees brought suit against appellant alleging that he had converted the bar to his own use, appellant countered by asserting that appellees had agreed to include the bar as payment for his services to the estate. At trial, appellant admitted that there was no such agreement; however, he apparently maintains, under some theory as yet to us unclear, that the court should have awarded title and possession of the bar to him.

We cannot agree. Under Section 37 of the Probate Code, the legal title to the silver bar vested in Edgar Rummel’s heirs at the instant of death. The release appel-lees signed, at most, was directed toward whatever liability appellant and his bondsman may have incurred by virtue of their respective obligations under the administration. The releases in no way affected ap-pellees’ title in the bar.

Appellees have a cross-point, which we overrule, complaining of the trial court’s denying them damages against appellant under Section 414 of the Probate Code.

Section 414 provides that personal representatives of estates, under certain circumstances, may be made liable for special damages should they fail to deliver property of the estate to the person entitled to it.

In our judgment the trial court was correct in refusing to grant damages to appel-lees under this section for at least two reasons. First, the statute contemplates that a court must have ordered delivery before any liability may be incurred for neglecting to deliver any portion of the estate or funds or monies due thereunder. This was not the case here.

Secondly, at a hearing held to recover damages under the section, the court must find that the representative is guilty of the neglect charged. We have no such finding here.

The judgment of the trial court is in all things affirmed.


author: JAMES, Justice.

text:
    Fred VICKREY et al., Appellants, v. Alleene GILMORE, Appellee.
    No. 5740.
    Court of Civil Appeals of Texas, Waco.
    July 14, 1977.
    Wade Hutto, Ñaman, Howell, Smith, Lee & Muldrow, Waco, Floyd Wilson, Cureton & Wilson, Meridian, for appellants.
    William J. Hix, Gatesville, for appellee.
   OPINION

JAMES, Justice.

This is a suit for declaratory judgment to construe a joint will. The trial court granted summary judgment in favor of Plaintiff-Appellee Alleene Gilmore, holding the joint will in question to be mutual and contractual as a matter of law. We affirm.

The purpose of the suit was to construe the joint will of John F. Vickrey and his wife Belle F. Vickrey, dated October 10, 1954, and to determine the legal effect, if any, a codicil executed by Belle F. Vickrey dated July 31, 1971, had upon such will.

As stated, the suit was filed by Plaintiff-Appellee Alleene Gilmore against her sisters and brothers, to wit, Fred Vickrey (individually and as Independent Executor of the Estate of Belle F. Vickrey, deceased), Maurine Peterson, J. M. (Buster) Vickrey, Mrs. Claudine Armstrong, Mrs. Corinne Johnson, and Weldon Vickrey. Plaintiff and Defendants are all of the children of John F. and Belle F. Vickrey, both deceased. The trial court rendered a summary judgment for Plaintiff-Appellee Alleene Gilmore, holding in effect that the terms of the joint will of John F. and Belle F. Vick-rey established as a matter of law that said will was mutual and contractual, and that the death of John F. Vickrey on April 4, 1971, put effective revocation by testamentary disposition beyond the legal right and power of the survivor, Belle F. Vickrey; and that, therefore, the codicil in question made by Belle F. Vickrey on July 31, 1971, after John F. Vickrey’s death, had no legal effect.

Appellants’ sole point of error asserts the trial court erred in holding that the 1954 joint will of John F. and Belle F. Vickrey in question was contractual as a matter of law, and in granting summary judgment to Plaintiff based upon such holding. We overrule this contention and affirm the trial court’s judgment. Therefore, the only question presented on this appeal is whether or not the terms of the “Joint and Mutual Will” of John F. and Belle F. Vickrey, dated October 10, 1954, establish as a matter of law that such will is mutual and contractual, and executed in furtherance of a binding contractual arrangement.

The 1954 will in question is headed and denominated at the top thereof “Joint and Mutual Will,” and in three separate and distinct places in the body of the will, it is referred to as a “joint and mutual” will. In said will John F. Vickrey and Belle F. Vick-rey devised all their property to the surviv- or of them for life, “with full and complete authority and dominion thereover, including the right to execute leases, oil and gas leases, and all other instruments pertaining thereto without joinder by any other party.” The will further provided that upon the death of the survivor, each of their seven children was devised a specific tract of land, with a specific value placed upon each such tract. The will further states: “Taking said valuations as stated herein, we desire to equalize each of same at the figure of $8500.00. To that end we will, devise and bequeath to each of our said children whose specific bequest in the above land is valued at less than that figure sufficient of our remaining estate to equal that figure.”

The will devises to Plaintiff-Appellee Al-leene Gilmore a specific 320 acre tract of land, valued in the will at $5000.00. Said will devises to Defendant-Appellant Buster Vickrey a 147 acre tract of land, being valued in the will at $8000.00; and another 147 acre tract to Defendant-Appellant Maurine Peterson, valued in the will at $5000.00.

John F. Vickrey died on April 4,1971, and the joint will was probated as his last will and testament. Following his death, Belle F. Vickrey executed a codicil on July 31, 1971 wherein it is stated:

“It was the purpose of myself and my said husband, now deceased, at the time of the execution of our said joint will, to give to each of our said seven children a tract of land of equal value. We went to great lengths to have the same surveyed and the tracts which we considered of equal value set apart to each of our said children. However, in the intervening years between the time of the executing of said will and the present time, because of changed conditions, I feel that there has been a change in the values in that the pasture lands are now worth approximately the same per acre as cultivated lands, and that by reason of such changed condition, there are certain inequities in said will. I realize that my husband’s will has already been probated and his half interest in our said property has fully vested in accordance with the terms thereof. However, for the purpose of equalizing the amount that goes to each child so that we will accomplish the purpose that we set out to do in said original will, I hereby by this codicil amend paragraph No. 5 under paragraph “THIRD” thereof wherein we attempted to bequeath to our daughter, Alleene Gilmore, a tract of 320.2 acres out of the T. J. Callahan Survey in Coryell County, Texas. Since said tract of land is now worth considerably more in dollars and cents than some of the other tracts, and as above stated for the purpose of equalizing the same, I hereby change and modify such bequest and I will to said Al-leene Gilmore out of my half interest into said tract of 320.2 acres of land only one-half (V2) of my half interest or one-fourth (Vi) thereof. I will and bequeath the remaining one-half (V2) of my one-half (V2) (or one-fourth Vi) to my daughter Maurine Peterson and to my son Buster Vickrey jointly, willing two-thirds (2/s) of same to Maurine Peterson and one-third (Vs) thereof to Buster Vickrey, all in fee simple.”

Belle F. Vickrey died on May 6, 1975. After her death, the Joint and Mutual Will of John F. Vickrey and Belle F. Vickrey was again filed for probate as her last will and testament, and attached thereto was the Codicil of Belle F. Vickrey hereinabove referred to. That is to say, on July 10, 1975, Fred Vickrey filed Application to probate said joint will and codicil. Thereafter, Plaintiff-Appellee Alleene Gilmore filed this suit for Declaratory Judgment Ancillary to Probate, asking the court to determine the legal effect that the codicil in question had on the joint will, and prayed that the court find such will was contractual in nature and that Belle F. Vickrey as the survivor of John F. Vickrey, was bound by its terms and that therefore her codicil was of no legal effect.

Plaintiff-Appellee Gilmore thereafter filed a motion for summary judgment, contending that the 1954 joint will was by its terms and on its face a contractual will as a matter of law, and that there was no genuine issue as to any material fact.

Defendant-Appellants Maurine Peterson and J. M. Vickrey filed an answer to the motion for summary judgment and attached thereto the affidavit of Hon. H. J. Cureton, Jr., attorney at law, who stated that he drew up the 1954 will of John F. and Belle F. Vickrey; that he never conferred with Belle F. Vickrey; that he was not present at the execution of said will; that at no time did he ever have any discussion with either Belle F. Vickrey or John F. Vickrey about a mutual contract or agreement between them to make a contractual will; that most of his discussions concerning the will were with Fred Vickrey for his parents; and that the term “joint and mutual” as used in such will was his (Mr. Cureton’s) terminology without such terminology being discussed with either of the parties.

The trial court granted summary judgment in favor of Plaintiff-Appellee Gilmore, holding that the terms and recitals in the 1954 joint will established as a matter of law that such will was mutual and contractual, and that the death of John F. Vickrey put effective revocation by testamentary disposition beyond the legal right and power of Belle F. Vickrey as survivor, thereby rendering the codicil of no legal effect.

The 1954 joint will of John F. and Belle F. Vickrey shows on its face to be mutual and contractual. The will as a whole sets forth a comprehensive plan for the disposition of the property of the testators and was clearly made in pursuance of a contract between them. See Harrell v. Hickman (1948) 147 Tex. 396, 215 S.W.2d 876; Murphy v. Slaton (1954) 154 Tex. 35, 273 S.W.2d 588. After John F. Vickrey died, Belle F. Vickrey caused the joint will to be probated and accepted the benefits under it. The rights of Belle F. Vickrey and all of the seven children-devisees became fixed by the terms of said 1954 will as to any property covered by said will, and it was beyond the power of Belle F. Vickrey to make and execute the codicil in question changing said 1954 joint will. See Dougherty v. Humphrey (Tex.1968) 424 S.W.2d 617; Holmes v. Holmes (Waco, Tex.Civ.App. 1969) 447 S.W.2d 423, no writ.

Moreover, the 1954 joint will in question recites in its heading that it is a “Joint and Mutual Will,” and that term is used three additional times in the instrument. Appellants contend, however, that the supporting affidavit of Hon. H. J. Cure-ton, Jr. as hereinabove described, raises a material fact issue relative to whether the joint will was contractual in nature, precluding summary judgment. We do not agree. Extrinsic evidence would not be admissible to show an intent contrary to the plain language of the will itself. As our Supreme Court said in Kirk v. Beard (1961) 162 Tex. 144, 345 S.W.2d 267 at page 273: “ . . . extrinsic evidence may be admitted to explain what the testator wrote as to the disposition of his property where the language used in the will is uncertain or creates an ambiguity, either latent or patent. The question is not what the testator intended to write but what is the meaning of the words he actually used." Also see Russell v. Adams (Tex.Com.App. 1927) 299 S.W. 889, opinion approved; Magids v. American Title Insurance Co. (Tex.1971) 473 S.W.2d 460 at p. 467.

Appellants rely heavily on Magids, supra, and Reynolds v. Park (Amarillo, Tex.Civ.App. 1975) 521 S.W.2d 300, N.R.E., as controlling the case at bar. In both Magids and Reynolds the wills in question were held to be not contractual, and in each case the court distinguished its decision from the rulings cited above. In our opinion, neither Magids nor Reynolds has any application to the case at bar.

Finding no reversible error, the judgment of the trial court is affirmed.

AFFIRMED.


author: McKAY, Justice.

text:
    Mrs. Lester DAWSON, Appellant, v. James T. DAWSON, Appellee.
    No. 1030.
    Court of Civil Appeals of Texas, Tyler.
    July 14, 1977.
    Rehearing Denied Aug. 4, 1977.

      Paul E. Tatum, Jr., Holt, Tatum & Mee-han, Nacogdoches, for appellant.
    John 0. Sutton, Stripling & Sutton, Nac-ogdoches, for appellee.
   McKAY, Justice.

Appellant, Mrs. Lester Dawson, and ap-pellee, James T. Dawson, were granted a divorce in Harris County on June 18, 1956. The judgment recited that the parties had divided their community property by agreement, and made no adjudication of it. On the same day appellee executed a deed to appellant conveying two tracts of land in the Louis Sanches Grant, Nacogdoches County, Texas. The deed also contained the following language in the description: “And all other property, of whatever description, as revealed by the records in the office of the County Clerk of Nacogdoches County, Texas, in which I now own or may at any future date own, any interest, right or title.”

On July 5, 1971, appellee’s mother, Mrs. Ida Dawson died, leaving two tracts of land to several residuary beneficiaries, one of which was appellee, under a will duly admitted to probate on August 31, 1971.

On July 11,1972, appellee brought suit in the 145th District Court of Nacogdoches County (the same court as the trial court in the present case) against appellant seeking to have the court find and determine that the above quoted provision in the deed was invalid and of no legal effect. Appellee’s Motion for Summary Judgment was granted, and the District Court in Cause No. 15,200-72-7, on November 20, 1973, rendered judgment that the deed of June 18, 1956, “conveyed no property other than the two tracts described in the Deed situated in Nacogdoches County, Texas, and property owned by James T. Dawson as of the date of said Deed.” There was no appeal from such judgment.

The present suit was filed January 8, 1974, in Cause No. 15,511-74-1, by appellant against appellee seeking a correction deed as well as judgment for the undivided interest in a tract of land inherited by ap-pellee from his mother, and in the alternative, a money judgment for $3,991.01 alleged to be the value of such undivided interest. She alleged that appellee, pursuant to the division of community property upon divorce and pursuant to the support of their minor child, “agreed to assign to Mrs. Lester Dawson any and all property to which defendant may have an interest in Nacogdoches County, Texas, including that property which he may receive from inheritance from Mrs. Ida Dawson.” She acknowledged the execution of the deed and the court’s prior action with respect to the clause in question. Appellee in his answer filed a general denial, plead the ten-year statute of limitations, and further plead that the judgment in Cause No. 15,200-72-7, between the same parties relating to the same subject matter, was still in force and effect, not reversed or void, and that such judgment was a bar by res judicata of or to the present suit.

The trial court heard the case without a jury, and on September 27, 1976, rendered judgment that appellant take nothing. We affirm.

Appellant brings one point of error contending that “The trial court erred in failing to enforce the agreement between appellant and appellee wherein appellee agreed to convey any interest which he might inherit in a certain tract of land located in Nacogdoches County, Texas, as part of a property settlement and consideration of child support entered in a divorce decree between appellant and appellee.” Appellant argues that there was an agreement dividing their property rights and setting child support, and that the agreement was that she would receive any real property located in Nacogdoches County that ap-pellee would inherit from his father or his mother.

No findings of fact or conclusions of law were requested or filed. A statement of facts has been brought forward with the record.

Appellant asserted in her original petition “that this suit is brought for correction deed,” but in her prayer she asked for judgment for title to the undivided interest in real estate inherited by appellee, or, alternatively, a money judgment. On appeal, however, appellant contends and argues that the trial court erred by failing to enforce an agreement by appellee to convey any interest in land he might inherit from either of his parents, and that such agreement was a part of a property settlement and child support in their divorce decree. As pointed out, the trial court in the divorce case found that the parties “have divided their community property by agreement, and the Court makes no adjudication thereof.”

Where findings of fact and conclusions of law were not requested or filed, the judgment of the trial court should be affirmed if it can be upheld on any legal theory that finds support in the evidence, Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex. 1962), and we must presume on appeal that every fact issue and such implied findings as were necessary to support the judgment were found by the trial court. Morris v. Texas Elk’s Crippled Children’s Hosp., Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.-El Paso 1975, writ ref’d n. r. e.). Where the trial judge is the trier of fact he may draw reasonable inferences and deductions from the evidence, and his findings, including implied findings, may not be disregarded by an appellate court if the record discloses evidence of probative value which, with inferences that may be properly drawn from the evidence, will reasonably support such findings. Johnson v. Buck, 540 S.W.2d 393, 411 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.).

The record reveals that there is an existing final judgment rendered upon the merits by a court of competent jurisdiction between the same parties on the same question of the validity of a clause in the deed from appellee to appellant dated June 18, 1956. We believe the previous judgment is conclusive of the rights of the parties in any other action on the points at issue in the first suit, and the rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which diligently might have been tried in a former action as well as those actually tried. Russell v. Moeling, 526 S.W.2d 533, 536 (Tex.1975); Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971). In our opinion the prior judgment constitutes a bar of res judicata to the present suit since the record reveals that the parties are the same, the issues are the same, and the prior suit resulted in a judgment for appellee who here pleads res judicata.

We also conclude that the implied findings of the trial court are supported by ample evidence of probative value. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    Sarah Boyd RANSOM, Appellant, v. Lorine ISELT et al., Appellees.
    No. 5034.
    Court of Civil Appeals of Texas, Eastland.
    July 14, 1977.
    Rehearing Denied Aug. 11, 1977.
    Allan I. Schneider, Giddings, Robert E. Perman, Smithville, for appellant.
    Ralph A. Rash, Kuhn, Collins & Rash, Austin, for appellees.
   McCLOUD, Chief Justice.

This is a will contest case wherein contestants, Lorine Iselt and Carolyn Dube, alleged that testator, George Brade, was acting under undue influence and lacked testamentary capacity when he executed his will dated August 28, 1975. The jury found that George Brade had testamentary capacity but that the making and executing of the instrument was procured by undue influence on the part of proponent, Sarah Boyd Ransom. Judgment was entered denying probate. Proponent, Sarah Boyd Ransom, has appealed. We reverse and render.

Contestants are the two daughters of George Brade. Proponent started dating Mr. Brade in 1974. Mrs. Luke Turner testified that she visited with Mr. Brade and proponent in September, 1975, and on that occasion Mr. Brade referred to proponent as his wife. They were never married, but proponent testified that she and Mr. Brade had on various occasions discussed marriage and they planned to marry “after Christmas.” Dr. Robert Burns testified that Mr. Brade was “very depressed” around August and September of 1975. Mr. Brade died in December, 1975.

The rules to be followed are discussed in Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963):

“. . . Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (8) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.
The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.”

Proponent contends there is no evidence to support the jury finding that the will was procured by undue influence on her part. We agree.

In considering this “no evidence” point, we will consider only the evidence and inferences which tend to support the jury finding under attack and disregard all evidence and inferences that would lead to a contrary finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The will in question was signed by the decedent in the presence of Henry Harmes and Milton Brosch, officers of the Citizens State Bank, who signed the will as witnesses and who had known Mr. Brade for many years as a customer of the bank. The proponent was not present when the will was executed.

The will was prepared by the decedent’s regular attorney, Michael Simmang, who testified that the will was prepared at the direction of Mr. Brade. He stated that proponent, Sarah Ransom, was not present when the will was prepared and she in no way told the attorney how the will was to be written. The attorney was not present when the will was executed.

Simmang stated that at the time he was preparing the will, Mr. Brade generally knew the nature and extent of his property; knew his two children and those who would have a natural claim on his bounty; and, knew that he was signing a will. Contestants rely upon the following testimony given by Simmang:

“Q. Okay. Do you think that by this last instrument we’re talking about that’s involved in this lawsuit, at the time you discussed the matter with him he understood the disposition of his property?
A. No, sir, I don’t.
Q. On what do you base this conclusion?
A. I base it upon the fact when I discussed it with him the first time he wasn’t sure of Mrs. Ransom’s name.
Q. At any time during your discussion with Mr. Brade, in other words, the only reason you’re basing your opinion that he didn’t understand the disposition of his property, based on his statement to you he didn’t know the correct spelling of the lady’s name?
A. Well, not only that, when we discussed this—
Q. Uh-huh.
A. —evidently Mr. Brade had been consulting with another attorney. Later, I demised that this was probably a Roy Martin. Mr. Brade picked up this Will from the office, and I don’t recall whether he got it from me or got it from my secretary, but at any rate it was picked up and was not signed and was not witnessed; and then several days later he brought it back with a handwritten note on a piece of paper that it looked like was torn off the bottom of the sheet,—
Q. Uh-huh.
A. —with certain corrections that I was to make in the Will. Namely, I was to add, I think, Mrs. Ransom’s son, in the event that she preceded Mr. Brade. This note was signed by Roy Martin, and at that time I absolutely refused to have anything further to do with it; and I never saw it again until after Mr. Brade’s death, and we went, I think with Mr. Durrow at the Citizens State Bank and got it out of his box, because the Will did name me as Executor.”

The attorney’s testimony discloses that the will was not signed when Mr. Brade picked it up, but his testimony is silent as to whether it was signed when Mr. Brade brought it back with the “handwritten note.”

Roy Martin, an attorney in Austin, Texas, who had represented Sarah Ransom in the past, stated that he first got acquainted with Mr. Brade at Sarah’s tavern or hamburger stand. He said that on one occasion while he and Mr. Brade were talking, Mr. Brade asked him to look over his will which he said had been prepared by somebody in Giddings. Martin testified he looked at it and “didn’t like it.” He testified he didn’t remember the name of the lawyer who had written the will, but he wrote a note to him and made two or three suggestions. He said his suggestions dealt with the mechanics of the will. They were not to change “who he gave the property to or anything like that.” He remembered that he suggested the will be made a self-proved will, and suggested other “mostly mechanical things.” He testified that when George Brade showed him the will it had been executed. On cross-examination, Martin stated that it was possible that Sarah Ransom handed him the will. He said he did not think she was the one that had it, but he could be mistaken. Martin’s “handwritten note” was introduced in evidence. The note suggested: (1) in case of Sarah’s death, the property should go to her son; (2) will should be made self-proved; and, (3) witnesses should give addresses.

Sarah Ransom testified that Mr. Brade left a will with her and she asked him if she could show it to a lawyer. She showed it to Roy Martin. Martin and Mr. Brade “talked” about it at her place. This occurred in September and the will had been signed at that time. She stated she had no knowledge of the will whatsoever until it was shown to her by Mr. Brade. She said she had nothing to do with the preparation of the will.

The jury could disregard the testimony of Sarah Ransom and her attorney, Roy Martin, that when they first saw the will it was executed. The jury could not, however, properly find the converse of their testimony when there was no independent evidence to support such finding. Briscoe v. Laminack Tire Service, Inc., 546 S.W.2d 695 (Tex.Civ.App.—Texarkana 1977, writ ref. n.r.e.). The testimony by the attorney who drew the will that “evidently Mr. Brade had been consulting with another attorney,” who he later “demised” was “probably a Roy Martin,” is no evidence that Martin was discussing the preparation of the will with Mr. Brade before the will was signed.

Contestants have merely shown that proponent had an opportunity to exert influence upon Mr. Blade. Our Supreme Court in Estate of Woods, 542 S.W.2d 845, 848 (Tex.1976) recently said:

“. . . It is not enough to show that proponents had ample opportunity to exert influence upon Mr. Woods as to the execution of the instruments. This Court said in Rothermel:
‘. . . It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. Burgess v. Sylvester, Tex.Civ.App. (1944), 177 S.W.2d 271; affirmed, 143 Tex. 25, 182 S.W.2d 358. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing. Price v. Taliaferro, Tex.Civ.App. (1952), 254 S.W.2d 157, wr. ref. n.r.e. The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself.’ ”

The record in this case shows that the will in question was prepared by Mr. Brade’s regular attorney. It was executed by Mr. Brade. Proponent was not present when it was prepared or executed. Some suggestions were made by Roy Martin, proponent’s attorney, after the will was executed. The suggestions were not complied with and the will was filed for probate as initially prepared by Mr. Brade’s attorney. Contestants have failed to meet the test announced in Rothermel and Estate of Woods.

We hold there is no evidence to support the jury’s finding that the will in question was procured by undue influence of Sarah Ransom.

The judgment of the trial court is reversed and rendered.