author: DIES, Chief Justice.

text:
    E. R. SQUIBB & SONS, INC., Appellant, v. Lucille HEFLIN and Helen Heflin, Appellees.
    No. 8195.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 8, 1979.
    Motion for Rehearing Overruled March 8, 1979.

      Norman J. Riedmeuller and Tom Alexander, Houston, for appellant Squibb.
    Rodney V. Steinburg and David H. Burrow, Houston, for appellees.
   DIES, Chief Justice.

On February 1, 1971, Emmett D. Heflin was given a myelogram and a discogram in Hermann Hospital, Houston. Shortly after these procedures he went into convulsions and died about three hours later. His widow, Lucille Heflin, and daughter, Helen Heflin, as plaintiffs below, sued E. R. Squibb & Sons, Inc. (and others not party to this appeal), defendants below. Trial was to a jury, following which judgment was given plaintiffs from which defendant brings this appeal.

Defendant’s first two points contend there was no or insufficient evidence to support the finding in Special Issue No. One. In Special Issue No. • One the jury found that as a result of the discogram performed by Dr. Reeve Renografin-60 entered the subarachnoid space of E. D. Hef-lin.

Before addressing these points, it is necessary to give a brief explanation of the terms involved. The subarachnoid space is that space next to and which surrounds the spinal canal. It is filled with a liquid and “bathes” the spinal canal. Between the vertebrae are “discs” which serve as shock absorbers for the spinal column. Prior to the procedures described herein, the deceased had had all or almost all of the discs removed at the L3 level. Continuing to have problems, the procedures — myelogra-phy and discography — were recommended to try and ascertain the problem.

In a myelogram, a pantopaque with an oil base is injected into the spinal canal. The pantopaque shows on x-ray. In the disco-gram, Renografin-60, manufactured by defendant, was intended to be injected only into the intervertebral disc itself, not into the subarachnoid space.

In passing on a no evidence point, we only consider the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A contention that the evidence is insufficient directs us to all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Dr. John D. Reeve, a radiologist who performed the discogram, testified, “I know that I put the needle where it was supposed to be. It was not put in the subarachnoid space period. The needle was not put there. It traversed. It went where it was supposed to be.” He used x-ray and fluo-roscopy to determine if the needle was in proper position. We believe the jury was entitled to accept this testimony and overrule these contentions.

Defendant’s next two points urge there was no or insufficient evidence to support the jury’s answer to Special Issue No. 6, or that the answer is manifestly unjust.

In Special Issue No. 3 the jury had found that prior to the occasion in question, defendant failed to warn Dr. Reeve that during the procedure of injecting Renografin-60 in performance of a discogram, some of the product might get into the subarachnoid space of the patient and cause convulsions and death. And in Special Issue No. 6 such failure to warn was a producing cause of the injuries and death of E. D. Heflin.

Defendant makes the same contentions concerning Special Issue No. 8, which found that the negligence (in failure to warn) was a proximate cause of Heflin’s death. Since these points of error are closely related, they will be discussed together.

The evidence shows that the pantopaque injected into the spinal canal during mye-lography is seldom toxic. On the other hand, Renografin-60 in the spinal canal is extremely toxic and dangerous, and this was known by the defendant. A doctor on defendant’s staff testified defendant had tested Renografin-60 in the spinal canal of animals and “some if not all” had died convulsively as Heflin. Dr. Reeve and Dr. James E. Butler, the treating orthopedist, gave as the producing cause of Heflin’s death the Renografin-60. Dr. Reeve felt it had somehow gotten into Heflin’s subarach-noid space and said he would not have used it if the insert in the Renografin packet had warned of its danger in this respect. It is undisputed that the insert contained no such warning. The evidence further shows the substance could have found its way into the subarachnoid space without being actually injected into the space.

In Parker v. Employer’s Mutual Liability Ins. Co. of Wisconsin, 440 S.W.2d 43, 46 (Tex.1969), we find:

“In Texas, expert medical testimony can enable a plaintiff’s action to go to the jury if the testimony is that there is a ‘reasonable probability’ of a causal connection between an act and a present injury.”

See Galveston H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491, 493 (1907). Reasonable probability is determined by the substance of the expert testimony. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966).

We believe the jury’s answers to these issues find ample support in the evidence and, so believing, overrule these points.

Defendant’s next point contends the trial court erred in excluding evidence of an agreement of settlement between Dr. Butler and plaintiffs, citing General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977). This case held that a codefendant’s interest in a plaintiff’s recovery is a proper subject of cross-examination to show bias or prejudice. However, there must exist an agreement, and in the case at bar we had none. All we had was a discussion of settlement, never accepted, which is not admissible. See 2 C. McCormick & R. Ray, Texas Law of Evidence § 1142 at 29-30 (Texas Practice 2d ed. 1956), and authorities cited. This point is overruled.

Defendant has a point that the finding of damages for conscious pain and suffering is excessive. The jury awarded $50,-000; the trial court reduced this to $25,000. The evidence shows Heflin was so convulsive he had to be tied to his bed, and at that the convulsions were so extreme he fractured a vertebra in his back. His death was indeed a hard one. We are unable to say that $25,000 is excessive in this respect.

Defendant has other points, which we find are without merit, and they are overruled. All points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Nan L. COBB, Appellant, v. Charles Reed ENGLISH, Independent Executor of the Estate of Mae Cobb English, Deceased, Appellee.
    No. 8222.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 8, 1979.
    Motion for Rehearing Overruled March 15, 1979.
    Clark Anderson, Lufkin, for appellant Cobb.
    Charles L. Carter, Jr., Crockett, for appel-lee English.
   KEITH, Justice.

Defendant below appeals from an adverse judgment entered after a bench trial. Plaintiff is the independent executor of the Estate of Mae Cobb English, Deceased, by virtue of probate proceedings pending in the County Court at Law of Angelina County, Texas. He filed suit alleging the defendant had converted to her own use and benefit the proceeds of a savings account which deceased and defendant had maintained in the Lufkin National Bank as an “or” account — that is to say, one payable to either of the signatories on the bank card.

Plaintiff alleged that after the death of his decedent, defendant did “wrongfully, fraudulently, unlawfully, and without the permission or consent of Charles Reed English, Independent Executor aforesaid, convert and dispose of monies in the said account totalling $15,900.44. She converted and disposed of said monies to her own personal use.”

Further allegations were to the effect that defendant “refuses to return said monies to the Executor, to the Executor’s damage in the sum of $15,900.44 plus Nine (9%) percent interest from the date of conversion, June 28, 1976.” Plaintiff alleged, further, that the conversion was done “willfully and maliciously, with reckless disregard for the Executor’s rights in said monies” for which he sought exemplary damages in the sum of $50,000.

Defendant answered fully and filed a cross-action, the nature of which is immaterial to our decision. In a trial to the court, judgment was for plaintiff in the sum of $15,900.44 with interest at nine percent from June 28, 1976, and defendant was denied any relief on her cross-action. Defendant has duly appealed upon the merits of the controversy.

Although the parties have not raised the question of the jurisdiction of the trial court, we do so sua sponte since ours is derivative jurisdiction. If the trial court had no jurisdiction, we have none; and, if at any time during the progress of a cause through the courts it becomes apparent that the court has no authority under the law to adjudicate the issues presented, it becomes the duty of the court to dismiss it. See City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). Accord: Haskett v. Harris, 567 S.W .2d 841, 843 (Tex.Civ.App.—Corpus Christi 1978, no writ); Longley v. Plummer, 551 S.W.2d 87, 89 (Tex.Civ.App.—Beaumont 1977, writ dism’d); Southwestern Bell Telephone Co. v. City of Kountze, 543 S.W.2d 871, 873 (Tex.Civ.App.—Beaumont 1976, no writ).

Indeed, our Supreme Court in Texas Employment Comm'n v. International Union of Elec., Radio & Mach. Wkrs., 163 Tex. 135, 352 S.W.2d 252, 253 (1961), stated this rule: “Lack of jurisdiction in the district court would be fundamental error and a plea to such effect is subject to review although first presented on appeal.”

More than a century ago, in Withers v. Patterson, 27 Tex. 491, 496-497 (1864), it was said:

“The jurisdiction of the court means the power or authority which is conferred upon a court, by the constitution and laws, to hear and determine causes between parties, and to carry its judgments into effect. It is a plain proposition, that a court has no power to do anything which is not authorized by law.
* * * * * *
[T]he court only exercises its jurisdiction when the facts exist which authorize it to do the thing in question. And the question whether the jurisdiction of a court has been exercised or not, is solved by ascertaining whether or not the facts existed which authorized the court to act as it did act.”

See also: Templeton v. Ferguson, 89 Tex. 47, 33 S.W. 329, 332 (1895); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1069 (1926); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933); National Life Company v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943). Cf. Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex.1969).

The jurisdiction of the County Court at Law of Angelina County is limited by the statute which created such court, Tex. Rev.Civ.Stat.Ann. art. 1970—335, § 1(b) (Supp. 1978—79). It has concurrent jurisdiction with the constitutional county court, concurrent jurisdiction “with the district court in eminent domain cases as provided by general law and in civil cases when the matter in controversy exceeds $500 and does not exceed $10,000, exclusive of interest.” (emphasis supplied)

It has been said that a judgment rendered by a county court on a petition which fails to affirmatively plead facts bringing the case within its jurisdiction presents fundamental and reversible error. Campsey v. Brumley, 55 S.W.2d 810, 812 (Tex.Com.App.1932, holdings approved).

We continue our quotation from Campsey v. Brumley, supra:

“Jurisdiction of a court is the power or authority by which it takes cognizance of, and decides, cases. If the court has no jurisdiction of the subject-matter of the litigation, any judgment it may render is void. 11 Tex.Jur. 711, § 9 et seq., and notes. Jurisdiction may be said to be of two kinds; of the subject-matter, and of the person. Consent may give jurisdiction of the person, but cannot do so as to the subject-matter.”

It is readily apparent that the trial court never acquired jurisdiction over the subject matter of the suit and its judgment is void. Nevertheless, we have jurisdiction over these appellate proceedings to determine and declare, sua sponte, the invalidity of the judgment. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Travelers Express Company, Inc. v. Winters, 488 S.W.2d 890, 892 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.); Brady v. Fry, 517 S.W.2d 304, 308 (Tex.Civ.App.—Beaumont 1974, no writ).

Since the trial court had no subject matter jurisdiction of the cause of action asserted, we have no alternative but to reverse the judgment of the trial court and to dismiss the cause. It is so ordered. We express no opinion as to the merits of the cause of action.

Reversed and cause Dismissed.


text:
    Charles Douglas YORK, Appellant, v. Brenda Sue YORK, Appellee.
    No. 8223.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 8, 1979.
    Jerry V. Pennington, Orange, for appellant.

      Jim Sharon Bearden, Orange, for appel-lee.
   KEITH, Justice.

The husband, respondent below, appeals from an adverse judgment rendered in a bench trial of the divorce and complains only of the division of the community property.

The trial court divided the property as shown in the margin. Appellant’s sole complaint is directed to the award of $6,500 in cash since, admittedly, such constituted one-half of a settlement of appellant’s Worker’s Compensation claim for partial disability for the sum of $13,000.

Our record discloses that appellant was injured on January 13, 1976, while in the course of his employment. He was totally disabled for a short period of time and received maximum Worker’s Compensation Insurance benefits during his period of total disability as well as an advance of $500 on his final settlement. He resumed his employment but did not work every day. Finally, on December 80, 1977, an agreed judgment was entered in his suit for compensation benefits wherein the husband received an additional $13,000 in settlement of all past and future claims for his injury and incapacity. His attorney was awarded one-fourth of such recovery as his fee.

We are unable to determine from the record how much of such settlement was for past due and accrued compensation payments and how much' thereof represented payment for lost earning capacity in the future.

The compensation suit was settled while the parties were separated and not living together but a divorce suit was not filed by the wife until January 16,1973. According to appellant, the entire settlement figure, $13,000, has been kept separate and not commingled with any other funds.

Appellant argues that Tex. Family Code Ann. § 8.63 (1975), has no applicability under the rationale of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). He also contends that under Tex. Family Code Ann. § 5.01(a)(8) (1975), the compensation benefits he received constituted Ms separate property and that the trial court was without authority, under Family Code § 8.68, to divest him of such separate property. See also Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).

Appellant’s reliance upon Eggemeyer is misplaced. The Supreme Court there held that a trial court could not divest a spouse of his title to separate real property; it did not change the rule permitting divestiture of personalty upon the granting’ of the divorce. Muns v. Mans, 567 S.W.2d 563, 565—567 (Tex.Civ.App.—Dallas 1978, no writ). See also J. Sampson, “Common Law Property,” 42 Tex.B.J. 131, 132 (1979). Appellant may not prevail on this appeal by reliance upon Eggemeyer.

Appellant suggests that the trial court should have followed the rationale of Hicks v. Hicks, 546 S.W.2d 71 (Tex.Civ.App.—Dallas 1976, no writ). He argues that appellee did not introduce evidence to indicate that any portion of the settlement was for compensation for loss of earning capacity during the marriage.

We have examined the record carefully and find that while both parties were thoroughly familiar with the settlement negotiations, only appellant gave testimony concerning the basis thereof and, it must be admitted, it leaves much to be desired. The testimony of appellant is not entitled to the weight given to that of the defendant in O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 116 (Tex.1976), mandate recalled and reissued, 551 S.W.2d 32 (Tex.1977).

We turn now to appellant’s claim that the language found in Tex.Rev.Civ.Stat.Ann. art. 8306, § 3 (1967), proscribes a judicial assignment of the compensation benefits. Under different circumstances than those facing us today, such prohibition has been liberally construed to protect the benefits to the worker against claims of others. See authorities cited in Hicks v. Hicks, supra (546 S.W.2d at 73 — 74). See also the general discussion of the section to be found in Highland Park State Bank v. Salazar, 555 S.W.2d 484 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.).

Hicks v. Hicks, supra, contains a discussion of most of the cases on the subject; but, it is factually different from ours. There, the settlement was made after the divorce and the holding turned on the fact that the wife had not discharged her burden of showing that the settlement funds belonged to the community. In our case, it is the appellant who labors under the burden of establishing that the settlement was separate, and not community, property. And, in the discharge of this burden, he is faced with the rule stated in Tex.Family Code Ann. § 5.02 (1975): “Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.”

In our ease, we have no dispute as to the source of the funds and there has been no commingling of such funds with any other funds. But, appellant labored under the burden of proving its separate character by “satisfactory evidence.” Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). Or, as stated in Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975), “the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage.” See also Trevino v. Trevino, 555 S.W.2d 792, 796 (Tex.Civ.App.—Corpus Christi 1977, no writ). As indicated earlier, appellant did not convince the trier of the facts that the settlement funds did not constitute payment for loss of earning capacity during marriage.

Had appellant made the necessary proof that the settlement funds were attributable to loss of future earning capacity, the authorities cited in Hicks, supra, would have been persuasive if not controlling. We simply hold that appellant did not discharge his burden of showing the separate character of the property. Cockerham, supra.

In Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974), the Court quoted Family Code § 3.63, and continued:

“Texas courts have held that such division [of the community property] does not have to be equal, and appellate courts have held it must be presumed that the trial court exercised its discretion properly, and that a ease should be reversed only where there is a clear abuse of discretion. . . . It is well established
that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion, (all citations omitted)

Under the record which we have reviewed, we do not find an abuse of discretion confided in the trial court; and, the judgment is AFFIRMED.

      . The wife was awarded (as her separate property and the husband divested of all right, title, and interest in): a Suburban automobile, a chest of drawers, a washer and dryer, one-half of the 1977 income tax refund and $6,500 in cash. She was directed to assume the indebtedness upon the automobile and to pay all debts she had incurred since the separation of the parties.
      The husband was awarded (as his separate property and the wife divested of all right, title, and interest in): a Ford pickup, a queen-sized bed including mattress, springs and frame; an ice box, one-half of the income tax return for 1977, the Republic of Texas savings account, a house and lot, and $6,500 in cash. He was directed to pay all indebtedness upon the house and lot and upon the truck as well as all indebtedness he had incurred since separation.

      . The most favorable testimony from appellant which we can find in the record is his assent to a leading question by his counsel: “ . then most of the money you have [from the settlement] is for weeks that are still to come in the future in 1978, ’79, '80, ’31, ’82, ’83? Is this correct?”

      . Sec. 3.63, “In a decree of-divorce or annulment the court shall order a division of 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.”

      . Sec. 5.01(a), “A spouse’s separate property consists of:

      (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”

      . Sec. 3, insofar as material, reads: “All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.”

      . It is appropriate to note that appellant has no points of error challenging the factual sufficiency of the evidence to sustain the trial court’s action.


text:
    ESTATE of L. W. STONECIPHER, Appellant, v. ESTATE of Thomas BUTTS, Deceased et al., Appellees.
    No. 8221.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 15, 1979.
    Rehearing overruled March 8, 1979.
    Ernest J. Browne, Jr., Beaumont, for appellant.

      Louis Dugas, Jr., Orange, for appellees.
   KEITH, Justice.

Plaintiff below appeals from a judgment non obstante veredicto which denied a recovery in his suit upon a rejected claim against defendants predicated upon a dormant judgment. We affirm.

On December 20, 1950, L. W. Stonecipher recovered a judgment against Thomas and Irene Butts and the Yellow Cab Company (a partnership owned by Thomas and Irene) for the sum of $21,080.36 with interest in the District Court of Orange County, Texas, in Cause No. 9948. Thereafter, on May 1, 1951, Stonecipher had executions issued on the judgment and the writs delivered to the sheriff of Orange County, Texas, who returned them nulla bona. Only $5,000 was paid on the judgment. No other executions were issued after the first.

On May 20,1971, more than twenty years after any execution was issued, Stonecipher as plaintiff instituted this suit against the Estate of Thomas Lee Butts and its independent executor Elmer Newman to have his judgment revived against the estate for the amount of $16,080.36. Later his petition was amended to include a suit for fraud and deceit against the estate, Newman as independent executor and individually, and Irene Miller Butts. He alleged that “Defendant Elmer Newman together with Thomas Lee Butts and his then wife, Irene Miller Butts, conspired and knowingly, willfully, wantonly and fraudulently set about to defraud the Plaintiff herein by conveying property owned by the said Thomas Lee Butts and wife, Irene Miller Butts, into the name of the Defendant Elmer Newman in order to avoid collection of said judgment awarded by said jury.”

Defendants’ pleadings tendered the appropriate pleas to the jurisdiction, limitations, and also pleaded the dormancy of the judgment relied upon by the plaintiff. The jury verdict was favorable to the plaintiff’s version of the facts; but, upon appropriate notice, judgment non obstante veredicto was entered whereby plaintiff was denied any recovery.

Plaintiff complains that the trial court erred if it granted the defendants’ motion for judgment notwithstanding the verdict on basis (a) contained in the motion, i. e., “that the statute of limitation had run and that the judgment made the basis of the suit had become dormant and that as a matter of law Plaintiff did not have a cause of action.”

Tex.Rev.Civ.Stat.Ann. art. 3773 (1966) provides that a judgment becomes dormant if no execution is issued within ten years after its rendition unless such judgment is revived. It further provides:

“If the first execution has issued within the ten years, the judgment shall not become dormant, unless ten years shall have elapsed between the issuance of executions thereon, and execution may issue at any time within ten years after the issuance of the preceding execution.”

Under Art. 3773, plaintiff’s judgment was dormant since no execution had issued thereof for more than twenty years. It is to be noted that there is nothing in the statute which mentions the tolling of limitations for any reason. While Tex.Rev.Civ. Stat.Ann. art. 5532 (1958) provides for the revival of a dormant judgment, it is inapplicable to the case at bar because an execution was issued within twelve months after the rendition of the judgment. And, there is no conflict between the two statutes under discussion. Zummo v. Cotham, 137 Tex. 517, 155 S.W.2d 600, 601 (1941).

Plaintiff’s resourceful counsel declines to accept the no-win position to which he is consigned by the undisputed facts and the two statutes just mentioned. Instead, he argues that his is an action for fraud and deceit and not one to revive a dormant judgment; alternatively, he contends that defendants’ fraudulent acts tolled the limitations embodied in Art. 3773. We disagree on both counts.

Neither party cites Texas authority precisely in point and our research has not disclosed the existence of such case law in this state. However, in a well-considered opinion, the Oklahoma Supreme Court wrote at length on the subject in Thomas v. Murray, 174 Okl. 36, 49 P.2d 1080 (1935). The case involved a judgment debtor who allegedly fraudulently conveyed and concealed his property to prevent plaintiff from levying execution upon it. Plaintiff, relying on the defendant’s representations that he had no property, failed to issue execution and revive his judgment in accordance with the pertinent Oklahoma statute. After plaintiff learned of the concealed property, he filed a fraud and deceit action rather than an action upon a judgment. The court held that in the statutes concerning execution, dormancy, and revival of judgments, “the standard of care and the measures which a judgment creditor must take to keep his judgment in force is fully provided for by our statutes, and inasmuch as they contain no such exceptions [i. e., fraud and deceit] none will be made.” (49 P.2d at 1083) Cf. Morrill v. Madden, 35 Minn. 493, 29 N.W. 193 (1886). See generally Annot., 104 A.L.R. 214 (1936).

Our Supreme Court followed this Oklahoma decision in Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531, 536 (1940). It held that Articles 3773 and 5532 should be “strictly construed”:

“This remedy being purely a statutory one, we think it must be measured by the statute itself, which plainly declares that the action must be brought within ten years after date of judgment, and not after. The courts have no authority to make an exception to this statutory rule.” (citations omitted)

As Judge German pointed out in Ramp, supra, the judgment creditor has a simple and inexpensive remedy to keep his judgment alive. He may “prolong the life of the judgment indefinitely by merely having executions timely issued as provided by Article 3773.” The plaintiff in this instance did not avail himself of the remedies provided by the statutes creating and governing his rights.

Article 3773 plainly declares that execution upon a judgment must be made within ten years of the first execution to prevent the judgment from becoming dormant. Whether plaintiff sued upon a judgment alleging fraud had tolled the statute or sued in an action for fraud and deceit, we agree with the Murray Court that “[t]he ultimate effect in both instances would be to put the judgment in force, and we believe that . it is merely an attempt to do indirectly that which the law would not sanction directly.” (49 P.2d at 1082)

Upon oral submission of the cause, plaintiff’s counsel urged that, in any event, plaintiff had a valid cause of action against the defendant Newman against whom the jury returned findings that he had conspired with the original judgment debtors in concealing assets. Originally, plaintiff cited only Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1944), in support of the contention advanced. Ruebeck, of course, is a valid expression of the law, but it simply does not apply to the facts in our record.

Instead, we turn again to an opinion from the Supreme Court of Oklahoma in a case precisely in point on the facts: Lallathin v. Keaton, 198 Okl. 312, 178 P.2d 101, 103 (1947), from which this quotation is taken:

“The gist of this action is not the conspiracy, but the damage suffered by the plaintiff as a result of the conspiracy. . Since the judgment had become legally dead prior to the time the present action was commenced, there was no recoverable damage suffered as a result of the alleged conspiracy.
“There is no distinction, in legal effect, between a tort action in fraud and deceit as in Thomas v. Murray [49 P.2d 1080], above, to prevent, the collection of a judgment legally dead and a tort action in conspiracy, as here, to prevent the collection of such a judgment.” (citations omitted)

We adopt the rationale and the holding of the Lallathin Court as our own. In so doing, tve overrule plaintiff’s points complaining of the adverse judgment rendered in the claim against Newman.

Finding no error, the judgment of the trial court is AFFIRMED.

      . Stonecipher died in 1973; his independent executor was substituted as plaintiff.

      . Art. 5532: “A judgment in any court of record, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought thereon within ten years after date of such judgment, and not after.”

      . In a post-submission memorandum, plaintiff cites Pruett v. Wichita Falls & S. R. Co., 109 S.W.2d 538, 541 (Tex.Civ.App.—Fort Worth 1937, writ dism’d), and the text found in 28 Tex. Jur., Limitation of Actions § 75, at 164 (1933). We have examined these additional authorities and find neither to be in point or controlling.


text:
    Sandra Sue JOHNSON, Appellant, v. William JOHNSON, Appellee.
    No. 8233.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 22, 1979.
    Motion for Rehearing Overruled March 15, 1979.
    Steven D. Ross, Elizabeth C. Petit, Beaumont, for appellant.
    John Paul Davis, Beaumont, for appellee.
   KEITH, Justice.

Petitioner below appeals from a judgment entered in an equitable bill of review proceeding of a divorce decree previously entered by the trial court. She seeks to include in the decree Bobby Savoy as a child born to her marriage to respondent.

Bobby Joseph Savoy was born on September 23, 1967, to Sandra Savoy, then a single woman. On November 29, 1969, Sandra married William Johnson. Another son was born to Sandra during this marriage. In 1975, William entered into a voluntary support agreement with the Jefferson County District Attorney’s office for both children. In October 1975, Sandra filed a suit affecting the parent-child relationship in which she alleged that both children were born to her and William. On February 17, 1976, a decree was entered in the suit affecting the parent-child relationship which contained the following finding: “Sandra Johnson and William Johnson are separated and are the parents of the following children . Bobby J. Savoy . . . William B. Johnson . . . .” That decree was signed and approved by William’s attorney.

Meanwhile, Sandra filed a divorce petition in which she alleged that two children “were born to the parties to the marriage”: Bobby Joseph Savoy and William Bryon Johnson. William filed a general denial and cross-action for divorce, alleging two children “were born to or adopted by the parties to the marriage”: Bobby Joseph Savoy and William Bryon Johnson. No amended pleadings were filed. On June 25, 1976, a divorce decree was entered which failed to include Bobby Savoy as a child of the parties to the marriage.

Prior to the entry of the divorce decree, Sandra’s attorney notified her by letter that he intended to withdraw from her case if his fee was not paid. William’s attorney received a copy of this letter. Despite this notice of the termination of their attorney-client relationship, William’s attorney forwarded a proposed divorce decree to Sandra’s former attorney, who, without authority or notice to his former client, signed the proposed decree. The decree was entered by the court without notice being given to Sandra. Lacking knowledge of the entry of the decree, Sandra did not file a motion for new trial in the divorce cause. Therefore, she filed a petition for an equitable bill of review.

In a bill of review case, the moving party must allege and prove the following elements:

“(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.”

Petro-Chemical Transport, Inc, v. Carroll, 514 S.W.2d 240, 243 (Tex.1974), and authorities therein cited. The trial court found that Sandra proved elements (2) and (3) but failed to prove a meritorious claim by a preponderance of the evidence, i. e., “she has failed to prove that a Decree in a Suit Affecting the Parent-Child Relationship, wherein Respondent was declared the ‘parent’ of Bobby Savoy, conclusively establishes the child’s paternity for purposes of subsequent divorce proceedings.” Petitioner has perfected her appeal from this judgment.

In her second point of error, petitioner complains that the trial court erred as a matter of law in holding that she failed to establish a meritorious claim for her bill of review. We agree.

In the pleadings for his cross-action, respondent alleged:

“The following children were bom to or adopted by the parties to the marriage:
Bobby Joseph Savoy, born September 23, 1976 [sic];
William Bryon Johnson, born November 2, 1971.
“The children now reside with Cross Respondent. Cross Respondent should be appointed Managing Conservator of the children, and Cross Petitioner is willing to contribute to their support until the youngest child reaches the age of 18, in an amount to be set by the Court.”

These pleadings were never amended.

The facts admitted in a pleading are considered judicial admissions, or “a substitute for evidence”:

“As long as the pleading remains unamended . . . the fact alleged or admitted, for the purposes of the case, is accepted as true by the court and jury and binding on the party making it, i. e., he cannot introduce evidence to contradict it.”

2 C. McCormick & R. Ray, Texas Law of Evidence § 1127, at 25 (1956). See also Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798, 801 (1894); National Farmers Organization v. Smith, 526 S.W.2d 759, 765 (Tex.Civ.App.—Corpus Christi 1975, no writ); Rosse v. Northern Pump Company, 353 S.W.2d 287, 292 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.); McCormick & Ray, supra at § 1144, and authorities therein cited.

Respondent’s allegation that both children “were born to or adopted by the parties to the marriage” was a judicial admission that he was the father of Bobby Savoy. He is bound by this admission. The trial court erred in failing to hold, as a matter of law, that respondent was the father of Bobby Savoy. Point two is sustained.

Consequently, we now render the judgment that should have been rendered by the trial court: The final decree is reformed and now it is declared that Bobby Savoy is the son of the parties to this appeal. We remand the cause to the trial court for the entry of an appropriate order requiring respondent to provide for the support of Bobby Savoy and for the entry of such other orders as may be requisite and proper to afford the petitioner and Bobby Savoy full and complete relief.

REFORMED and REMANDED with instructions.


author: MOORE, Justice.

text:
    Sims W. DUREN, Sr., Appellant, v. U. S. FIRE INSURANCE COMPANY, Appellee.
    No. 1244.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 22, 1979.

      Jerry B. Donaldson, Gatesville, for appellant.
    Paul H. Hubbard, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellee.
   MOORE, Justice.

Appellant, Sims W. Duren, Sr., instituted suit against U. S. Fire Insurance Company, seeking to recover, among other things the proceeds of a $9,000.00 fire insurance policy covering a house situated in Killeen, Texas. He alleged that he purchased the house and lot from Doris Moody after it had been damaged by fire and was entitled to the proceeds of the policy. Alternatively plaintiff sought cancellation of the first lien held by U. S. Fire. Further, pleading in the alternative, appellant sought to recover the value of the repairs made on the house. Ancillary to his main suit, appellant also sought injunctive relief to restrain appellee from selling the property by a trustee’s sale.

Appellee, U. S. Fire Insurance Company, answered with a general denial and by way of a defense affirmatively alleged that the fire insurance policy in question was issued only to Orville J. Moody; that thereafter Moody conveyed the property to Doris Moody, his ex-wife, without giving the company notice of the change in ownership in violation of the terms of the policy; that the property was subsequently destroyed by fire, and that at the time of the fire, the company had no notice of the change in ownership and had never consented to accept Doris Moody as its insured. The company alleged that because of the change in ownership from Orville to Doris Moody without its consent, it was no longer obligated on the policy and therefore was not liable to the appellant who claimed as an assignee under Doris Moody. The insurance company also filed a third party cross-action against Orville Moody, Doris Moody, and Sims W. Duren, Sr., alleging that it had theretofore paid in excess of $8,000.00 to the loss-payee named in the policy, Killeen Savings and Loan Association, the holder of the first deed of trust lien on the property. The company alleged that because of such payment, it became subrogated to the rights of the Killeen Savings and Loan Association on the promissory note and deed of trust lien which it received by assignment from Killeen Savings and Loan Association. The company further alleged that the note had not been paid and that the maker, Orville J. Moody, was in default. The insurance company prayed for a recovery on the note and for a judicial foreclosure of the deed of trust lien.

Trial was before a jury. Upon motion by the insurance company, the trial court disregarded certain jury findings and rendered judgment in favor of appellee, U. S. Fire Insurance Company, decreeing that appellant, Sims W. Duren, Sr., take nothing by his suit. The trial court also rendered judgment in favor of the insurance company against Orville J. Moody in the amount of $11,109.93 on the promissory note, together with interest and attorney’s fees in the amount of $880.00 and ordered a foreclosure of the lien and sale of the property in question. It was further ordered that the appellant Sims W. Duren, Sr., was to receive any amount which the property brought at the execution sale over and above the amount of the judgment. Appel-lee, Sims W. Duren, Sr., perfected this appeal. Neither Orville J. Moody nor Doris Moody appealed and the judgment became final as to them.

We affirm.

The controversy arose in this manner. On October 4,1971, Orville Moody and wife, Doris Moody, purchased the house and lot in question making a down payment with community funds. Orville Moody executed a promissory note payable to Killeen Savings and Loan Association in the amount of $8,800.00 and executed a deed of trust and deed of trust lien to secure the payment of the note. Simultaneously with the purchase of the house and lot, a Texas standard form fire insurance policy was issued by appellee, U. S. Fire Insurance Company, naming Orville Moody as the insured and Killeen Savings and Loan Association as the loss-payable payee. The policy provided as follows:

“Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring following a change in ownership of the insured property.”

At the time the house was purchased, Doris and Orville Moody were separated and at no time did he ever live in the house. On January 10, 1972, Doris and Orville Moody were divorced. The divorce decree shows that the court divided the various items of community property between the parties. The judgment in the divorce suit recites that the house and lot in question was awarded to Orville Moody as his separate property and that he was to assume and pay in full any community indebtedness existing thereon. After the divorce Doris continued to live in the house along with the parties’ minor child and Orville continued making the monthly payments thereon. On October 1, 1973, almost two years after the divorce, Orville conveyed the property to Doris by warranty deed. Under the terms of the deed, Doris agreed to assume and pay in full the unpaid balance due on the deed of trust note held by Killeen Savings and Loan Association.

There is nothing in the record indicating that either Orville or Doris Moody notified the insurance company of the change of ownership. The policy contains no endorsement in favor of anyone except Orville Moody.

On March 10, 1974, the house was severely damaged by fire while being occupied by Doris Moody. Shortly after the fire, appellant, Duren, purchased the property from Doris Moody. The conveyance was made by a warranty deed together with an assignment of all of her right, title and interest to the fire insurance policy, including any claims she might have had for fire loss as a result of the fire. Thereafter, appellant made improvements on the house and made a claim for the proceeds of the policy. The company denied liability. After U. S. Fire posted notice to foreclose its lien on the property, appellee instituted the present suit.

Appellant, Duren, attacks the judgment by ten points of error. The threshold question to be determined is whether the policy became ineffective and void because of a violation of the change of ownership provisions of the policy.

Under the first and second points of error, appellant contends that the trial court erred in disregarding the jury’s findings and entering a judgment in favor of the appellee. He argues that he was entitled to a judgment for the proceeds of the policy based on the jury’s findings that (1) the risk to the insurance company was not substantially increased at any time between the inception of the insurance coverage and the date of the loss; (2) nó change of ownership actually occurred because Orville Moody bought the property for his use and benefit and he continuously owned equitable title through a resulting trust; (3) the insurance company knew or should have known of the change in ownership to Doris Moody and therefore the change in ownership provision of the policy was waived; and (4) the appellant was misled by the insurance company prior to the time he purchased the property and as a result the company was estopped to deny liability on the policy, or in the alternative was estopped to deny liability for the improvements made by him. Each contention will hereinafter be discussed in that order.

To sustain the action of the trial court in granting a motion to disregard the jury’s answers to special issues, it must be determined that there is no evidence upon which the jury could have made the findings relied on. In acting on the motion, all testimony must be considered in a light most favorable to the parties against whom the motion is sought and every reasonable intendment deductible from the evidence is to be indulged in that party’s favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Douglass v. Panama, Inc., 504 S.W.2d 776, 777-78 (Tex.1974).

Notwithstanding the foregoing rule, however, the trial court is authorized to disregard the jury’s answer to special issues where the finding made by the jury is immaterial or has no support in the evidence. Rule 301, Tex.R.Civ.P.; Eubanks v. Winn, 420 S.W.2d 698 (Tex.1967); Isaks v. National Bank of Commerce, 547 S.W.2d 345, 349 (Tex.Civ.App.-Tyler 1977, no writ history); City of San Augustine v. Roy W. Green Co., 548 S.W.2d 467, 472 (Tex.Civ.App.-Tyler 1977, writ ref'd n. r. e.).

First, appellant argues even though there was a violation of the change of ownership clause, he was entitled to a judgment for the proceeds of the policy because the jury found the risk was not substantially increased. In response to Special Issue No. 8, the jury found that the risk to U. S. Fire Insurance Company was not substantially increased at any time from the inception of the policy to the date of the fire. Appellant argues that since there was some evidence that the risk was not substantially increased, the trial court erred in disregarding this finding. We find no merit in this contention.

“The validity of a provision of an insurance policy declaring the policy void in case of any change of interest, title, or possession is not open to question.” 32 Tex. Jur.2d Insurance sec. 268, p. 447. Texas courts recognize that a contract provision which voids the coverage in the event of a change of ownership is a valid and enforceable one, and relieves the insurance company of liability if a change of ownership occurs. Bucher v. Employers Casualty Company, 409 S.W.2d 583, 586 (Tex.Civ. App.-Fort Worth 1966, no writ history) citing cases.

Where there has been a change of ownership without notice to the insurance company and without an endorsement to that effect on the policy, a violation of the policy provisions occurs, and a party who is a complete stranger to the contract is not in a legal position to recover any interest in the policy proceeds. The contractual agreement between the insurer and the insured, embodied in the policy, is not an insurance of property without regard to the ownership. Rather it is an agreement of indemnity against such loss or damage as the insured owner might sustain by reason of his ownership of the property covered by the policy. Under the terms of the policy, coverage does not depend on whether or not the change of ownership increases the insurance hazard. The question of whether or not the hazard was increased is immaterial. The policy provision provided that upon the failure of the insured to comply with its obligations, the company would not be liable. That provision was not complied with and therefore the appellant has no interest in the policy proceeds by way of the assignment or by way of the conveyance from Doris Moody. Rio Grande Nat. Life Ins. Co. v. Hardware Dealers Mut. F. Ins. Co., 209 S.W.2d 654, 657 (Tex.Civ.App.-Amarillo 1948, writ ref’d n. r. e.); Bucher v. Employers Casualty Co., supra; Home Insurance Company v. Brownlee, 480 S.W.2d 491 (Tex.Civ.App.-Eastland 1972, no writ history); 32 Tex.Jur.2d Insurance secs. 268, 269, pp. 447-53; also see New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945). Since the question of whether or not the hazard was increased is immaterial, it follows that the trial court did not err in disregarding the jury’s finding to Special Issue No. 8.

Next, appellant argues that the evidence shows that no change in ownership actually occurred. In support of this proposition appellant relies on the jury’s findings to Special Issue No. 5 wherein the jury found that the house and lot in question was purchased by Orville Moody for the use and benefit of Doris Moody and on Special Issue No. 6 wherein the jury found that Orville Moody continued to hold title to the property for the use and benefit of Doris Moody until October 2, 1973 (the day after he conveyed her the legal title). He argues that under these findings the equitable title remained in Doris Moody at all times after the property was purchased because Orville Moody purchased it for her use and benefit. Based on this premise appellant contends that a resulting trust was created, thereby giving her continuous ownership of the equitable title and therefore there was no violation of the change in ownership clause.

It would serve no useful purpose to delineate the facts and circumstances relied on by appellant as establishing a resulting trust since such facts and circumstances transpired prior to the time Orville Moody was awarded the full legal and equitable title to the house and lot in the divorce decree dated October 1, 1973. Suffice it to say that we do not believe that the facts and circumstances relied on by appellant were sufficient to create a resulting trust. But even so, we hold that it terminated when Orville Moody was awarded the complete and unrestricted title to the property in the divorce decree. The complete legal and equitable title vested in Orville Moody and Doris no longer had any interest therein. At the time he conveyed the property to her, she was a complete stranger to the title. Thus, the conveyance from Orville to Doris Moody operated as a complete change of ownership.

Special Issues Nos. 5 and 6 and the jury’s findings thereon relate to facts relied on as creating a resulting trust prior to the divorce decree. In view of the subsequent divorce decree awarding the complete title to Orville Moody, these findings are immaterial. It follows that the trial court was authorized to disregard such findings and committed no error in refusing to enter judgment for appellant on the theory that there had been no change in ownership because Doris Moody’s ownership continued under a resulting trust.

Nor can we agree with the appellant’s contention that no breach of the change of ownership occurred because of the jury’s finding in response to Special Issue No. 7 that the company or its agents knew or should have known, prior to the fire, that the property in question had been transferred from Orville to Doris Moody. Essentially, appellant’s argument here is that upon proof of actual or constructive knowledge of change in ownership, the company must be held to have waived its right to rely upon the change of ownership provisions of the policy. Therefore appellant contends that the trial court erred in refusing to render judgment awarding him the proceeds of the policy. We find no merit in this contention.

The only evidence relied on by appellant in support of the above finding consists of the following notations found on the face of the insurance policy, to-wit: “Doris Moody transferred 10/2/73” and “notified FW and Company and Doris Moody.” According to the testimony of the employees of the Kil-leen Insurance Agency, the foregoing notations were made on the policy on March 18, 1974, after they learned of the fire and discovered that there had been a change in ownership. They explained that the notation “notify FW and Company” meant that Floyd West & Company, the insurance company's claims adjuster, had been notified of the change in ownership. They testified unequivocally that they had no knowledge whatever of the transfer of ownership from Orville to Doris Moody prior to the time of the fire. There is no evidence to the contrary.

In our view the foregoing testimony is not of sufficient probative force to establish that the agents of the insurance company had actual or constructive knowledge of the-change in ownership prior to the time of the fire. Moreover, even if it were conceded that they had knowledge of the change in ownership, there is no evidence that they did or said anything indicating that they approved of the change and accepted Doris Moody as their insured.

“There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intention to rely upon such right.” Maryland Casualty Company v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex.1966), citing Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958).

In our view, the evidence is not of sufficient probative force to support the finding of actual or constructive knowledge on the part of the appellee. But even so, this finding, standing alone, falls short of establishing a waiver of the policy provisions in question because there is no evidence and no finding that the company or its agents consented or acquiesced in the change of ownership. In the absence of such a finding there can be no waiver. Thus the finding on this issue is meaningless and immaterial. It follows that the court was authorized to disregard the finding and therefore did not err in refusing to render judgment for appellant based on a waiver of the change of ownership clause.

Finally, appellant contends that appellee should be estopped from denying liability for the improvements made to the property after its purchase from Doris Moody. The basis of his claim of equitable estoppel is that the company’s agents represented to him that the insurance claim would be paid, and that in reliance thereon he purchased and improved the property to his detriment. In this connection the jury found' that: (1) the agent of U. S. Fire represented to appellant’s attorney that the fire claim in question would be paid; (2) that but for such representation appellant would not have purchased and improved the property; but (3) the appellant failed to establish by a preponderance of the evidence that the representation was false.

The following elements must be proved in order to establish an estoppel: that the party to be estopped made (1) a false representation or concealment of material facts, (2) with actual or constructive knowledge of the facts, (3) to a party without knowledge or the means of obtaining knowledge of the real facts, (4) with the intention that it be acted on, (5) which was relied on or acted on by the party to whom it was made to his detriment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952); Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635 (Tex.1965); Lunsford v. Sage, Inc. of Dallas, 438 S.W.2d 615 (Tex.Civ.App.-Houston [1st Dist.] 1969, writ ref’d n. r. e.). The burden of proving the essential elements of estoppel is on the party asserting it. Concord Oil Co. v. Alco Oil and Gas Corp., supra at 639. Failure to prove one of the essential elements is fatal. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834, 838 (Tex.1968).

In view of the fact that appellant failed to obtain a finding that the alleged representation was false, appellant failed to discharge his burden of proof on the issue of estoppel. Accordingly, appellant’s first and second points are overruled.

All remaining points briefed by appellant have been considered and found to be without merit and are overruled.

The judgment of the trial court is affirmed.

      . After the fire, the insurance company paid the mortgagee, Killeen Savings and Loan Association, the balance due and owing on the property, and took an assignment of the note and deed of trust lien thereon.


author: McDONALD, Chief Justice.

text:
    James Russell PAUGH, Appellant, v. Jona Rae Newton PAUGH, Appellee.
    No. 6013.
    Court of Civil Appeals of Texas, Waco.
    Feb. 22, 1979.

      Clarence T. Williams and Patrick Lee Hoskins, Schwartz, Judice, Farrell, Laviage & Williams, Houston, for appellant.
    Earle S. Lilly and George W. Covington, Lilly, Hamilton & Short, Houston, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant (petitioner) James Russell Paugh from that portion of a divorce judgment which required him to pay appellee $500. per month child support for the parties’ 3 month old child, and $2,500. attorney's fees.

Appellant (petitioner) filed suit for divorce against appellee (respondent) November 28, 1977 alleging the parties separated in October 1977; and that the parties were parents of a child, Kelly Angela Paugh, born November 10, 1977; that the parties’ property had been “divided by respondent in a manner acceptable to petitioner”; sought divorce; and appointment as managing conservator of the 18 day old child.

Appellee (respondent) cross petitioned for divorce, division of community property, appointment as managing conservator of the child, $500. per month child support, and attorney’s fees.

Trial was before the court which decreed divorce to the parties, divided the community property, appointed appellee managing conservator of the child, appointed appellant possessory conservator of the child with visitation rights, decreed appellant pay appellee $500. per month child support, and $2,500. for legal services rendered.

Appellant’s first point asserts the award of $500. per month child support is against the great weight and preponderance of the evidence, and amounts to an abuse of discretion.

The parties married November 13, 1976; separated in October 1977, and the minor daughter was born November 8, 1977. Divorce decree was entered February 23,1978. Appellant has custody of and is managing conservator of his two minor boys age 8 and 7, by a prior marriage; has a gross monthly income of $2,000.; a net monthly income of $1,580.; owns one car; has no revenue producing assets; and no savings. Appellee has just given birth to a child, is unable to work at this time, although she will later seek employment. Appellee testified she needed $900. per month to support the child. Such testimony was unrefuted and unchallenged. Appellee, if she keeps the home awarded her will have $464. monthly house payments, and $204. monthly car payments to make.

The amount of money a father is required to pay for the support of his minor children should be based on the needs of the children and the father’s ability to pay, having due regard for all of his lawful obligations including those assumed to another wife and to his other children. Gully v. Gully, 111 Tex. 233, 231 S.W. 97; Anderson v. Anderson, Tex.Civ.App. (Corpus Christi) NWH, 503 S.W.2d 124; Nixon v. Nixon, Tex.Civ.App. (Texarkana) NWH, 540 S.W.2d 740; Holmes v. Tibbs, Tex.Civ.App. (Corpus Christi) NWH, 542 S.W.2d 487. Further the trial court’s child support order will not be disturbed on appeal unless there is a clear abuse of discretion. Brito v. Brito, Tex.Civ.App. (El Paso) NRE, 346 S.W.2d 133; Holmes v. Tibbs, supra; Cunningham v. Cunningham, Tex.Civ.App. (Corpus Christi) NWH, 515 S.W.2d 345. And the fact that a trial judge may exercise his discretional authority in a manner different than an appellate judge would have done under similar circumstances does not demonstrate that an abuse of discretion has occurred. Bokhoven v. Bokhoven, Tex.Civ.App. (Tyler) NWH, 559 S.W.2d 142.

Appellant was earning $2,000. per month; appellee has no income; appellee has a three month old baby to look after; the evidence is that it will require $900. per month to keep the child; appellee has substantial house and car payments to make each month; appellant has car payments to make and two small sons to keep. Under the record we are unable to say that the trial judge abused his discretion in fixing the child support at $500. per month.

Appellant’s second point complains of the trial court’s award to appellee of $2,500. attorney’s fees.

The record reflects appellant sued appel-lee for divorce and custody; that it was necessary for appellee to employ an attorney; that she employed a “family law specialist”; that he charged a cash fee of $5,000. which was paid by appellee’s parents; that the assets of the parties consisted of a home (with an equity of some $300.), household furnishings (much of which was appellee’s before marriage) and two automobiles (with substantial indebtedness on each). The trial court awarded appellee substantially all of the property, (but which as noted was of small net value); custody of the 3 month old child; child support of $500. per month; and $2,500. attorney’s fees.

The divorce, property division and custody were uncontested; the transcript consists of 30 pages, the statement of facts of 81 pages. Trial took less than one day.

We recognize that the reasonableness of attorney’s fees awarded is a question of fact normally to be determined by the trier of fact. Peeples v. Peeples, Tex.Civ.App. (San Antonio) NWH, 562 S.W.2d 503; Great American Res. Ins. Co. v. Britton, Tex., 406 S.W.2d 901.

Nevertheless, attorney’s fees should be reasonable under the circumstances of the respective case on its own merits, and should bear some reasonable relationship to the amount in controversy.

From the record we are of the opinion that the judgment is excessive in the sum of $1,000. (as to the attorney’s fees), and that this cause should be reversed for this reason only. Appellee is given 10 days from this date to file a remittitur of $1,000. Rule 440 TRCP. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Caswell v. Satterwhite, Tex.Civ.App. (Waco) NRE, 277 S.W.2d 237; Big Town Nursing Home v. Newman, Tex.Civ.App. (Waco) NWH, 461 S.W.2d 195. If such remittitur is filed within 10 days the judgment of the trial court will be reformed and affirmed.

REVERSED AND REMANDED.

OPINION AFTER FILING REMITTITUR

Appellee having filed remittitur of $1000. as suggested by this Court, the judgment of the trial court is reformed in conformity with such remittitur.

Costs of appeal taxed against appellant.

REFORMED AND AFFIRMED.


author: BISSETT, Justice.

text:
    Raul R. VILLARREAL, Contestee, v. Jo Ann HEDRICK, Contestant.
    No. 1429.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 22, 1979.
    Rehearing Denied March 15, 1979.
    Raul Garcia, Armando Cavada, Alice, for appellant.
    Perkins, Oden, Warburton, McNeill & Adami, Alice, for appellee.
   OPINION

BISSETT, Justice.

This is an election contest, wherein Jo Ann Hedrick was contestant in the trial court and Raul R. Villarreal was contestee. Trial was to the court. Judgment, which was favorable to Jo Ann Hedrick, was rendered on June 28, 1978. Raul R. Villarreal has appealed.

The election in question was held on April 1, 1978, for the purpose of electing a Mayor and four Commissioners for the City of Kingsville, Texas. The results of that election were canvassed on April 3, 1978. Dr. R. M. “Dick” Botard was elected Mayor, and Nerio C. Garza (3,518 votes), Mary C. Hill (3,079 votes), Cassie Flagiello (2,594 votes) and Jo Ann Hedrick (2,425 votes) were declared to be the duly elected Commissioners of the City.

Thereafter, Raul R. Villarreal, who received 2,422 votes, timely requested a recount. A recount committee was duly appointed. Upon a tabulation of the votes by the recount committee, it was declared that Raul R. Villarreal received 2,429 votes and that Jo Ann Hedrick received 2,423 votes. Based on the tabulation by the recount committee, Raul R. Villarreal was declared to have been elected as a City Commissioner at the election held on April 1, 1978.

Jo Ann Hedrick then timely filed her election contest petition in the District Court of Kleberg County, Texas. As already stated, judgment was rendered in her favor by the trial court. Raul R. Villarreal will henceforth be referred to as “appellant” and Jo Ann Hedrick will be referred to as “appellee.”

Appellant challenges the judgment by asserting four points of error. In points 1, 2 and 4, he complains of the action by the trial judge in ordering the ballot boxes opened and in conducting a recount of all ballots cast at the election on the sole ground that appellee’s petition is insufficient to permit such action by the trial judge since she alleged only “fraud or illegality” in the conduct of the election. Specifically, he says in his brief: “mere allegations of fraud will not justify re-entry into a ballot box and a complete re-count,” and that “it was error to proceed to open all of the ballot boxes and said error resulted in the rendition of an improper judgment.” Although there are no specific points to the effect that there was “no evidence” or the evidence was “factually insufficient” to warrant the opening of the ballot boxes, he does take such position in his argument under the points. Appellant says in Point 3 that the court abused its discretion in the method or manner it ordered a recount.”

In summary, appellee (contestant) alleged: 1) the recount committee was not composed of three disinterested parties, but was composed of a person or persons who had a keen interest, bias and prejudice against her in the outcome of such election recount; 2) that such bias or prejudice actually contributed to a tabulation of the votes in such a manner that changed the results of the election in favor of contestee; 3) throughout the vote recount procedures, there, were numerous irregularities, inconsistencies and mistakes which materially altered the results of such recount in favor of the contestee; 4) numerous ballots were questioned by the Chairman of the recount committee and those ballots were not counted, nor were they seen or passed on as a proper or improper vote by other members of the committee; 5) in addition to the improper and erroneous tabulation and count of the ballots, the recount committee, in some instances, failed to count and tabulate several ballots where the true intent of the voter could be determined from the face of such ballot, or ballots, and, in other instances, counted several ballots for contes-tee where the true intent of the voter could not be determined from the face of the ballot; 6) the above mentioned mistakes, irregularities or inconsistencies permeated the entire election recount; and 7) had the recount committee conducted the recount properly and in accordance with law, she would have prevailed over contestee in the recount. In the alternative, appellee alleged that such irregularities, mistakes or inconsistencies made by the recount committee in the tabulation of the ballots rendered it impossible to determine the will of a majority of the voters who voted in the election in question without a court ordered recount of the votes cast at the election.

The trial court made findings, which are set out in the judgment, as follows:

. . the Court, having considered the evidence and argument of counsel, is of the opinion and did find sufficient evidence of inconsistencies in the counting of specified ballots and the not counting of other specified ballots by the Election Recount Committee in said election, so that it was impossible to determine the true will of the majority of the voters participating in said election without opening the ballot boxes of said election and recounting all of such ballots cast therein.”
***** *
“Whereupon, in accordance with the appropriate Court order, a recount of ballots cast in said election having been conducted . . . and the Court further finding that the parties hereto have contested 70 ballots cast in said election; the Court finds that 33 of said ballots contained valid votes for the Contestant and that 28 of said ballots contained valid votes for the Contestee, and the Court further finds that Contestant received a total of 2,432 legal and valid votes in said election and that Contestee received a total of 2,427 legal and valid votes in said election, and that as between the two parties, the Contestant, Joanne Hedrick, has received a majority of the votes cast in said election.”

The findings are not attacked in this appeal.

The recount committee consisted of Mr. Rosendo Munoz, Mr. Bob Odom and Ms. Rosanna Ochoa. Mr. Munoz was chairman of the committee. All committee members were appointed by Mr. Gilbert Acuna, the then Mayor of Kingsville.

Paper ballots were used at the election. The ballots had printed thereon the names of nine candidates for the offices of City Commissioner. At the election, 6,223 valid and legal votes were cast. Each of the nine candidates for the four officers received more than 2,000 votes. Several other write-in candidates for City Commissioner received 1 or 2 votes each.

Appellee testified that politics played a role in who was chosen for the recount committee, in that she was in political opposition to Mayor Acuna, and that he selected the recount committee, which was not composed of three “disinterested persons.” She further testified that her objections concerning the inconsistencies in the tabulation by the recount committee were generally disregarded except for openly obvious mistakes; that the recount committee denied her the opportunity to see questioned ballots any more closely than a mere glance; that on at least two occasions the chairman of the recount committee deliberately miscalled the correct vote tabulation and omitted calling two votes for her, and when the chairman was corrected by her, he stated that he had miscalled the votes on purpose to see if she was alert.

As to the actual method in which the ballots were tabulated, there was evidence that there were numerous occasions when the “tally” (vote count) of each of the two members of recount committee was not the same. It was shown that there was no uniform method utilized to see whose vote count was correct.

Appellee and corroborating witnesses testified that the recount committee had numerous tally discrepancies wherein the ultimate decision on the exact tally or vote count was not resolved by a recount of the .ballots or any other precise method, but rather, the tally discrepancy was resolved by one of the vote tabulators changing his (her) vote count to match the count of the other vote tabulator. There was evidence that on at least four occasions appellant’s vote count was affected, and it was always resolved in his favor, so as to give him the higher number of votes.

None of the members of the recount committee could recall the manner in which any of the ballots were specifically marked; the members admitted that there were tally discrepancies and that mistakes could easily have been made in the vote count. In addition, Mr. Bob Odom, one of the recount committee members and a vote tabulator, testified that different and varying interpretations were given to ballots where voters used scratch marks. He said that on some occasions, the scratch mark was counted as a good vote; and, on other occasions the scratch mark was counted as a strike of a candidate not wanted for office.

One witness, in effect, testified that Munoz, in handling the ballots, made it difficult for observers to examine or look at any questioned ballot because “he flashed them and turned them face down and if you didn’t get a quick look, you couldn’t see anything.” When asked:

“Q You think he was trying to prevent her (appellee) from seeing things as opposed to trying to get through with the recount?”;

the witness answered:

“A little of both of it.”

To describe the type of irregularities and inconsistencies that were made by the recount committee, appellee testified concerning specific ballots, how these ballots were marked, and how the recount committee tabulated such ballots. Such testimony was neither disputed nor rebutted.

Appellee further testified about six specific ballots which were not counted for her and that they should have been good ballots and votes for her, because similar ballots were counted for appellant. She also recalled three specific ballots that were counted for appellant that should not have been counted for him, because similar ballots for her were not counted.

Some of the ballots were questioned only by Munoz, the chairman of the election recount committee. It was established that from the first day of the recount until 10:45 a. m. of the second day, only Munoz questioned the ballots and the other two members did not see such ballots. The ballots questioned by Munoz went into the ballot box, so that it became impossible to distinguish such ballots from other ballots which were already on the tally sheet. Appellee complained, but her complaints were disregarded until, according to her testimony, Odom said to Munoz:

“[fjrom now on, if you are going to decide on a ballot, all three of us should have a say whether it qualifies or not.”

Thereafter, all members of the recount committee looked at all questioned ballots.

After both parties closed, the trial court, over appellant’s objection that the proper predicate has not been laid to authorize the opening of the ballot boxes for the purpose of a court recount, ordered:

“[a]n election recount be conducted of all the ballots cast in the City of Kingsville election of April, 1978 . . . ”

The attorneys for the parties were appointed the “official and court authorized representatives” of the trial court to conduct the recount. Procedures in conducting the recount, which are not attacked in this appeal, were set out by the trial court in the order.

The attorneys, in the presence of the trial judge and in open court, opened the ballot boxes and counted all of the votes cast at the election. At the conclusion of the count, it was stipulated that appellant and appellee each received 2,399 valid votes at the election on April 1, 1978. There was a dispute between the attorneys as to 70 ballots. Interpretations of the disputed ballots were argued to the court by the attorneys, and the trial judge, after inspecting each such ballot, made a ruling concerning the same. As a result of such rulings, appellant was awarded 28 votes out of the 70 ballots in dispute and appellee was awarded 33 votes out of such ballots. Accordingly, the trial court then rendered judgment which set aside the results of the recount of the ballots by the recount committee with respect to the votes received by both appellant and appellee at the election, and further decreed that appellee:

“. . .is the legally and duly elected City Commissioner for the City of Kings-ville, Kleberg County, Texas, and that she be, and she is, hereby authorized and ordered to assume the office of City Commissioner that has been heretofore occupied by the Contestee, Raul R. Villarreal, and that upon her qualification for said office in accordance with the Laws of Texas and the City Charter of Kingsville, that she assume the position of the office of City Commissioner above mentioned.”

We do not agree with appellant that appellee alleged only “fraud and illegality” in the conduct of the election. Appellee’s pleading of “irregularities, mistakes or inconsistencies” in the tabulation of the ballots by the recount committee which altered the original and true result of the election, as well as the alternative plea that such “irregularities, mistakes or inconsistencies” rendered it impossible to determine the will of the majority who voted at the election, are sufficient to lay a predicate for the introduction of evidence at the trial relating to such alleged “irregularities, mistakes or inconsistencies.” The evidence, hereinbe-fore summarized, as well as additional evidence of probative value, was properly admitted. There was ample evidence to support the action by the trial court in ordering a “court recount” of the ballots cast at the election in question.

Upon the filing of an election contest in the district court, the scope of inquiry by the court encompasses the entire election process and extends to all matters affecting the final results of the election. Turner v. Lewie, 201 S.W.2d 86 (Tex.Civ.App.—Fort Worth 1947, writ dism’d); Roberts v. Hall, 167 S.W.2d 621 (Tex.Civ.App.—Amarillo 1943, no writ); Border v. Abell, 111 S.W.2d 1186 (Tex.Civ.App.—Galveston 1937, no writ). By necessity, the scope of such inquiry includes a review of the activities, conduct, and tally of the votes of a recount committee, since the tally by the recount committee, when challenged by an interested party by the filing of an election contest in a court of competent jurisdiction (the district court), is a part of the election process which affects the final results of the election.

With respect to the opening of the ballot boxes and recounting the ballots cast at an election, the trial court, in an election contest, is vested with wide discretion in determining all matters necessary or proper to determine the outcome of the contest, including whether the ends of justice require that the ballot boxes be opened and the ballots be recounted. On appeal from such determination, the decision will not be disturbed on any question decided unless a clear abuse of discretion as to a material issue is shown. De La Garza v. Salinas, 255 S.W.2d 396 (Tex.Civ.App.—San Antonio 1953, no writ); Sewell v. Chambers, 209 S.W.2d 363 (Tex.Civ.App.—Fort Worth 1948, no writ); Meriwether v. Stanfield, 196 S.W.2d 704 (Tex.Civ.App.—Beaumont 1946, no writ).

With the abundant and undisputed evidence of irregularities, inconsistencies and mistakes made by the recount committee concerning specific ballots (set out in the preceding footnote), as well as other evidence in the record, the trial court was clearly warranted in ordering that the ballot boxes be opened so that the court could examine the best evidence (the ballots themselves) in resolving the issue. The opening of the ballot boxes and the recount of the ballots did not constitute an abuse of discretion in this case, since the evidence offered by appellee clearly demonstrated that the irregularities, inconsistencies and mistakes of the recount committee were of such nature that it was impossible for the trial court to determine the true will of a majority of the voters who voted in the election of April 1, 1978, without a “court recount” of the ballots. The trial court properly rendered judgment for appellee.

We have reviewed the entire record and have considered all points of error which have been brought forward by appellant. The points are overruled.

We note that execution of the judgment rendered by the trial court was suspended on June 28, 1978, as a result of the filing of a supersedeas bond by appellant. As a consequence, appellee has not had the benefit of the office to which she was elected on April 1, 1978, nor has she been permitted to act as a duly elected Commissioner of the City of Kingsville. We, therefore, terminate the prohibition placed on appellee as a result of the filing of the supersedeas bond, and further order that Jo Ann Hedrick, appellee, upon her qualification under the Laws of Texas and the City Charter of Kingsville for the office to which she has been duly and legally elected, forthwith actively assume the office of City Commissioner of Kingsville.

Since the validity of a statute is not questioned by the decision of this Court, a motion for rehearing will not be entertained. Tex.Rev.Civ.Stat.Ann. art. 1821(4) (1964).

AFFIRMED.

OPINION ON MOTION FOR REHEARING

The portion of the Court’s opinion in this case.which stated: “A motion for rehearing will not be entertained” is deleted.

Appellant’s motion for rehearing, having been timely filed and considered by this Court, is overruled.

      . Ballot # 2321 was a ballot that contained five candidates’s names scratched out and left four unscratched names remaining. Appellee was one of the names unscratched. Although the voter used the “scratch” method of voting, this ballot was disqualified and not counted.
      On ballot # 6752, the voter used the scratch method and had four names scratched out, leaving five names blank; appellant was one of the names scratched out; the ballot was counted as a good vote for appellant.
      On ballot # 8858, the voter used the scratch method and had two names scratched out. Appellant’s name was one scratched out; the ballot was counted for appellant.
      On ballot # 137, the ballot showed four clear and distinct “X’s,” one of which was for appel-lee. On a fifth candidate’s name, the “X” had been scribbled out. The ballot was disqualified and not counted.
      On ballot # 180, there were four clear and distinct “X’s,” one of which was for appellant. On a fifth candidate, there was an “X” with the word “No” over the “X.” The vote was counted for appellant. However, in ballot # 7264, which was marked similarly to ballot # 180, except that one of the four clear and distinct “X’s” was for appellee, the ballot was not counted.
      On ballot #4121, the names of appellant and another candidate were marked and both appeared to have been erased. The ballot was counted as a vote for appellant, but was not counted as a vote for the other candidate.
      On ballot # 4130, there were four clear and distinct “X’s,” one of which was for appellee. A fifth name had a scratch through the name. The committee ruled this to be five votes and disqualified the ballot. Ballot #81 was marked the same as ballot # 4130, except appellant was one of the four clear “X’s.” There was a scratch through a fifth name. The ballot was counted as a good ballot and a vote for appellant.
      Ballot # 4045 was marked with four clear and distinct “X’s,” one of which was for appel-lee, and there was a smudge or questionable mark by a fifth name. The ballot was disqualified on the basis of five votes and not counted. Ballot # 5570 was marked similarly to ballot # 4045, and the recount committee counted it as a good ballot.
      Ballot # 8003 was marked with four clear and distinct “X’s,” one of which was for appel-lee, and appellant’s name was marked with an “X” with a scratch through the name of the appellant and an arrow drawn from appellant’s name to the next clear and distinct “X.” The committee disqualified the ballot as five votes, and did not count it for anyone.