author: ELLIS, Chief Justice.

text:
    Billy H. LEE, M.D., Appellant, v. Brenda ANDREWS et al., Appellees.
    No. 8670.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 13, 1976.
    Rehearing Denied Jan. 10, 1977.

      Stone, Stone & Chambers, John C. Chambers, Gibson, Ochsner, Adkins, Harlan & Hankins, Amarillo, for appellant.
    Gibbins & Spivey, Bob Gibbins, Austin, for appellees.
   ELLIS, Chief Justice.

Brenda Andrews, suing individually and in behalf of her two minor daughters and her deceased husband’s estate, and Joe Bert Andrews, Sr., the father of the deceased, instituted this medical malpractice suit against Plains Memorial Hospital and Dr. Billy H. Lee for the wrongful death of Joe Bert Andrews, Jr. The trial court rendered judgment on the jury’s verdict favorable to the plaintiffs and against Doctor Lee. No liability was found against the hospital. The doctor-defendant has appealed from the judgment. We affirm the judgment of the trial court.

On June 3, 1974, Joe Bert Andrews, Jr. entered Plains Memorial Hospital in Dim-mitt, Castro County, Texas, for the purpose of undergoing a hemorrhoidectomy. Andrews was thirty-eight years old and otherwise in good health. Dr. Billy Lee performed the operation on June 4, 1975, and Andrews was returned to his room in good condition. On June 5, it was discovered that Andrews was retaining urine and at 6:00 p. m., Robert Froehner, a freshman medical student, catheterized Andrews to extract the accumulated urine. This cath-eterization process involved the insertion of a tube into the outer urethral opening, through the urethra and into the bladder. By 10:45 p. m., Andrews’ scrotum was swollen to three or four times its normal size and Doctor Lee was notified of this development. At 11:00 p. m., Andrews was catheterized again and by 12:00 midnight he was awake and complaining of severe pain. Doctor Lee ordered an ice pack applied to Andrews’ scrotal area. The swollen condition continued on June 6 and Andrews continued to require catheterization to void.

On June 7, Brenda Andrews became extremely concerned about her husband. His pulse was not ascertainable that morning. On the previous day she had gone to Doctor Lee and inquired as to the possibility of serious infection in the testicle area. No treatment was administered or directed by Doctor Lee for infection. The next day, June 8, Andrews fainted on three separate occasions; on each such occasion oxygen was administered. Doctor Lee then ordered intravenous feeding for Andrews. His blood pressure was inconsistent and erratic. Later that day Doctor Lee consulted with a doctor from Lubbock, Texas, — Doctor Pap-pas — who saw Andrews and had him transferred immediately by ambulance to Methodist Hospital in Lubbock.

At the Methodist Hospital’s intensive care unit, Andrews was examined by Dr. Robert Salem. He diagnosed Andrews as having a local infection around the scrotum (cellulitis) and a blood infection (septicemia) with accompanying shock.

Andrews died on June. 9. An autopsy by Dr. William H. Long revealed that the probable cause of death was septicemia (blood infection) with shock. In their wrongful death action, the plaintiffs alleged that the negligent acts of Plains Memorial Hospital and Doctor Lee caused Andrews’ death. Although their pleadings contain other specific allegations, proof was adduced at trial which tended to support the plaintiffs’ theory that Andrews’ postoperative catheterization(s) tore his urethra and that urine migrated from his bladder to his scrotum; there an infection allegedly began which spread to other parts of his body. This presumably caused shock and, eventually, death. The plaintiffs contended that Doctor Lee was negligent in not diagnosing and treating Andrews’ infection earlier and in failing to consult a specialist at an earlier time.

After a trial on the merits, the jury exonerated the hospital. The jury found, however, that Doctor Lee’s negligence proximately caused Andrews’ death. Brenda Andrews was awarded $300,000.00 as compensation for the loss of her husband. Each of her two minor children was awarded $85,000.00. The decedent’s estate was awarded $2,000.00 for his conscious mental anguish and pain. Joe Bert Andrews, Sr. (the decedent’s father) was awarded $5,000.00. Also, there was an award of $2,139.25 for reasonable funeral expenses. Judgment was rendered in accordance with the jury’s verdict. In his appeal Doctor Lee has urged seventeen points of error.

In his first point of error, Doctor Lee has directed our attention to some expert testimony which, he has argued, “invaded the province of the jury.” The substance of Lee’s complaints is that the plaintiffs’ medical experts testified to their opinions and conclusions on the ultimate issues in the case — negligence and proximate causation. Lee has argued that conclusions on ultimate issues are for the jury and only the jury to draw.

Initially, we refer to the basic standards in malpractice cases set out in the supreme court’s decision in Bowles v. Bour-don, 148 Tex. 1, 219 S.W.2d 779 (1949). In that case the court held that the medical malpractice plaintiff must meet a two-pronged burden of proof. He must have a qualified expert testify to the effect that (1) the defendant doctor was negligent and (2) that such negligence was a proximate cause of the plaintiff’s injuries.

Although Doctor Lee does not question the foregoing standards, he has argued that the expert testimony in this case was objectionable because of the form in which it was admitted. According to Lee, certain words and phrases cannot be uttered by the plaintiff’s medical expert because of the possibility of invading the province of the jury. In our analysis of Doctor Lee’s contentions, we have considered certain eviden-tiary rules developed since Bowles v. Bour-don was decided and the particular manner in which they have been applied in regard to negligence and causation.

The supreme court’s decision in Snow v. Bond, 438 S.W.2d 549 (Tex.1969) imposed restrictions on the type of expert testimony which can be used to prove a defendant doctor’s negligence. The court stated that “[a] medical expert is not competent to express an opinion . . . .” as to what constitutes “malpractice” or “negligence” or “ . . . what a reasonable and prudent doctor would have done under the same or similar circumstances . . . .” Id at 550-51. These are conclusions which only the trier of facts may draw, and testimony to that effect should be excluded. Following Snow v. Bond, it has been held that the expert cannot testify that the defendant committed “malpractice.” Bender v. Dingworth, 425 F.2d 378 (5th Cir. 1970). He cannot testify that the defendant’s acts constituted negligence or give testimony as to what a reasonably prudent doctor would have done. Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ.App. — Waco 1969, writ ref’d n. r. e.).

On the other hand, he can testify as to what medical practices are “correct” in certain circumstances. Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969). Further, he can testify that certain hypothetical acts (shown by independent evidence to have been committed by the defendant doctor) are “against good [medical] practice. . . ” Cleveland v. Edwards, 494 S.W.2d 578, 580 (Tex.Civ.App. — Houston [14th Dist.] 1973, no writ). He also can testify that a doctor who failed to perform certain acts (shown by independent evidence not to have been performed by the defendant) would fall below the “standard of conduct” of other doctors. Martisek v. Ainsworth, 459 S.W.2d 679, 680 (Tex.Civ.App. — Houston [14th Dist.] 1970, writ ref’d n. r. e.) (holding such testimony sufficient to raise a fact question on the negligence issue). Further, the medical expert can give testimony which indicates that certain steps should have been taken to meet the standards of good medical practice. Seeley v. Eaton, 506 S.W.2d 719 (Tex.Civ.App. — Houston [14th Dist.] 1974, writ ref’d n. r. e.).

In this case, plaintiffs’ counsel questioned Dr. Ray E. Showery concerning possible deviations from applicable standards by Doctor Lee in his diagnosis and treatment of Mr. Andrews’ condition (based upon a review of the record, including hospital, autopsy and depositions). Doctor Showery responded:

I felt there was ample evidence to suggest earlier treatment and referral, and therefore, my conclusion was that, If I— the word ‘malpractice’ was committed, at least timely treatment was not awarded this gentlemen in that errors had been made which went unrecognized, untreated even though they were obvious.

Doctor Showery also testified that treatment should have begun on the evening of June 5; that Andrews should have had a urologic consultation on June 5; and that Doctor Lee should have performed an indwelling catheterization following the scrotal swelling. Later Dr. Daniel P. McCarthy testified that Andrews should have had a urologic examination three or four days sooner.

The above described portions of the testimony of Doctors Showery and McCarthy state, in effect, that Doctor Lee was wrong in the way he treated Andrews. Snow v. Bond and the cases which have followed it preclude the medical expert from passing judgment on the correctness or incorrectness of the defendant doctor’s conduct. He can inform the jury of good medical standards in particular circumstances. He may even express an opinion that some specific act (which the plaintiff may prove by independent evidence to have been done by the defendant) would not conform to good medical practice. He may not, however, declare directly that the defendant doctor committed a breach of good medical practice. That is a matter for determination by the fact finder. With proper application of these rules, the jury will be restrained from “forego[ing] independent analysis of the facts and bow[ing] too readily to the opinion of an expert. . . ” McCormick, Some Observations Upon the Opinion Rule and Expert Testimony, 23 Texas L.Rev. 109, 117 (1945). For this reason, the testimony summarized in the preceding paragraph was inadmissible. Doctor Lee also has argued that some of the medical expert testimony bearing on the subject of proximate causation was inadmissible. We disagree.

The supreme court’s decision in Bowles v. Bourdon not only requires proof of negligence; the plaintiff must also prove that the defendant’s negligence proximately caused his injuries. In the year following the decision in Snow v. Bond (which dealt with the negligence aspect), the court in Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.1970) set down evidentiary rules relating to proof of causation. There the court held in a negligence case such as this one, “ . . . it is essential that the evidence show at least a reasonable probability that plaintiff’s complications were caused by defendants’ negligence.” Id. at 706.

Judicial opinions rendered since Len-ger was decided indicate that proof of a “reasonable probability” of causation can come in two forms of expert testimony. First, the medical expert can offer direct testimony that the defendant’s acts were or were not, as the case may be, in reasonable probability, the cause of plaintiff’s injury. See Lenger v. Physician’s General Hospital, Inc., supra; Gibson v. Avery, 463 S.W.2d 277 (Tex.Civ.App. — Fort Worth 1970, no writ). Cf. Conrey v. McGehee, 473 S.W.2d 617 (Tex.Civ.App. — Houston [14th Dist.] 1971, writ ref’d n. r. e.). In the absence of direct testimony concerning proximate causation, the jury sometimes may be allowed to rely on its general experience and common sense to determine causation. Lenger v. Physician’s General Hospital, Inc., supra; Cleveland v. Edwards, supra; Martisek v. Ainsworth, supra.

In the instant case, Doctor Lee complained that certain testimony tending to prove proximate causation was inadmissible because it invaded the province of the jury. From our consideration of Lenger and the cases since decided, it is our opinion that considerable latitude should be allowed the expert who offers testimony tending to prove proximate causation. Testimony may be given that the defendant’s acts in reasonable probability resulted in the plaintiff’s injury and death. In many cases a layman would be incompetent to reach a conclusion on the causation question without assistance from the medical expert. In this case, it is our opinion that the concern that the jury may have attached too much emphasis on the experts’ testimony is outweighed by the jury’s need for the experts’ guidance in connection with the causation issue. For these reasons we hold that the expert testimony admitted tending to prove proximate causation was not error.

Thus, we have concluded that only the testimony by Doctors McCarthy and Showery which tended to declare directly that Lee’s conduct constituted negligence was improperly admitted. If this erroneous evidentiary ruling was not calculated to cause and probably did not cause rendition of a verdict different from the one rendered, the error was harmless. Gasperson v. Christie, Mitchell & Mitchell Co., 418 S.W.2d 345 (Tex.Civ.App. — Fort Worth 1967, writ ref’d n. r. e.). In making this determination, we are obligated to consider the record as a whole. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955).

After reviewing the entire record, we are not convinced that the error resulted in an improper jury verdict. In the light of the whole record, including the medical records and the admissible medical testimony by the various doctors (including Doctor Lee), some of which is reviewed in considering points 4-7, infra, it is our opinion that the result would have been no different had the error not been committed. The amount of inadmissible testimony is rather small when compared with the great amount of other testimony and evidence tending to prove Lee’s negligence, and it came in isolated instances. We, therefore, hold that the asserted error was harmless. Tex.R. Civ.P. 434. Point 1 is overruled.

In his second point of error Doctor Lee has argued that Dr. Daniel McCarthy was incompetent to give expert testimony for the plaintiffs. The crux of Lee’s argument is that McCarthy is a New York pathologist and as such was incompetent to testify against a Texas family practitioner. Lee has recognized that the admission of expert medical testimony is largely discretionary with the trial court. Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.— Fort Worth 1973, writ ref’d n. r. e.). It has been argued, however, that the trial court abused its discretion in admitting McCarthy’s testimony.

The fact that McCarthy was from New York does not disqualify him from testifying. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965). Under Hart, a doctor from another state is competent to testify in Texas proceedings. See also Louis v. Parchman, supra (involving a New York physician’s testimony). Furthermore, the fact that McCarthy specialized in pathology while Lee was a general practitioner does not disqualify McCarthy from testifying, provided he is familiar with the standards applicable to a general practitioner. It was shown that McCarthy was familiar with such standards. The trial court’s action in allowing McCarthy’s testimony was not an abuse of its discretion. See Miles v. Meadows, 309 S.W.2d 284 (Tex.Civ.App. — Dallas 1958, no writ) for an analogous case involving doctors from different schools of medicine. Point 2 is overruled.

In his third point of error, Doctor Lee has complained that the trial court erred in admitting the testimony of Sidney Bullock, a nurse at Plains Memorial Hospital. Bullock testified, over objection, that by 7:00 a. m. on June 7, 1974 “this man [Andrews] was getting in trouble.” Lee, in his brief, had argued that this testimony was inadmissible lay testimony. In his motion for new trial, however, Lee stated only that Bullock’s testimony was “immaterial, irrelevant and/or incompetent.” This objection is tantamount to no objection at all. Capitol Hotel Co. v. Rittenberry, 41 S.W.2d 697 (Tex.Civ.App. — Amarillo 1931, writ dism’d). Under Tex.R.Civ.P. 374, assignments of error must be set forth specifically; general assignments will not support a point of error. Smith v. Brock, 514 S.W.2d 140 (Tex.Civ.App. — Texarkana 1974, no writ). Lee’s assignment that the testimony was “immaterial, irrelevant and/or incompetent” was not sufficiently distinct to support his third point of error. The ground of error was, therefore, waived. Tex.R.Civ.P. 374. Even if this were not the case, however, we are of the opinion that the testimony was admissible. It is not required that a witness be expert in medical matters to give an opinion as to observed physical condition. See 2 C. McCormick and R. Ray, Texas Law of Evidence, § 1427 at 271 — 273 (2d ed. 1956), and authorities cited therein. Additionally, this nurse had many years of experience in reading and interpreting charts reflecting data as to a patient’s condition. In view of the foregoing, appellant’s third point is overruled.

In points 4 — 7 Doctor Lee has complained that there is no evidence or insufficient evidence to support the jury’s affirmative finding on negligence and proximate causation. According to Bowles v. Bour-don, these two elements must be proved “by a doctor of the same school of practice as the defendant.” 219 S.W.2d at 782.

Doctor Lee testified at the trial. He stated that, in his opinion, Andrews’ problems on June 7 were due to a drug reaction although he admitted that the medicine Andrews was taking could not cause scrotal swelling. At one point Lee testified that there was no way Andrews could have been saved although he later admitted that if he had given Andrews antibiotics four days before he died, he might have lived. Lee testified that he never considered that Andrews might have a ruptured urethra although he admitted that Doctor Pappas’ diagnosis was to the effect that the urethra was infected. Lee admitted that Andrews’ elevated white blood cell count and scrotal swelling were symptomatic of infection. He also admitted that he failed to administer antibiotics to Andrews and that if they were required, his failure was a deviation from recognized standards of good medical practice. Lee admitted that on the morning of June 6, Brenda Andrews suggested to him that her husband might be suffering from an infection and that he took no steps to treat the patient for infection. He waited until June 8, the day before Andrews died, to consult another doctor.

Dr. Raymond E. Showery, the plaintiffs’ medical expert, testified to his opinion that Andrews’ urethra was torn when he was catheterized and that urine passed through the tear and into the scrotum. There, an infection developed which eventually caused Andrews’ death. According to Showery, germs are always introduced into the urethra upon catheterization. Hospital records indicated that no antibiotics were administered to Andrews prior to June 8. Showery testified that most doctors routinely administer infection-fighting antibiotics as a part of the catheterization procedure, and with repeated catheterizations, antibiotics are mandatory in order to salvage life.

Dr. William H. Long, the pathologist who performed Andrews’ autopsy, testified that gram negative septicemia (infection) was the probable cause of Andrews’ death. A urethral tear is a “fairly common occurrence” and it is “very likely” that a catheter ruptured Andrews’ urethra and caused a deadly infection (septicemia). Long testified that, according to recognized medical standards, the events which transpired at Plains Hospital should have been sufficient notice that something untoward had happened to the patient.

Dr. Robert Salem agreed that the events at Plains Hospital would have alerted him that something was amiss with Andrews. Salem had examined Andrews upon his arrival at Methodist Hospital. He testified that he had diagnosed Andrews as having cellulitis (local infection) and septicemia (blood infection). At the time he examined Andrews, he suspected that the infection had originated in the urinary tract. If he had been treating Andrews earlier, he would have consulted a urologist about any possible urethral injury. Salem testified that an ordinary general practitioner should be able to recognize infection and treat it accordingly.

Dr. Daniel McCarthy was the last doctor to testify. In his opinion, Andrews died from overwhelming septicemia which had begun developing on the first post-operative day — after the first catheterization.

We have considered all of the medical expert testimony, including that of the defendant’s medical expert, Dr. William Anthony. In our opinion there is sufficient evidence of probative force to support the jury’s finding that Doctor Lee was negligent in treating Andrews. Moreover, the jury’s finding on proximate causation is adequately supported by admissible expert testimony that Andrews would have survived if he had received proper therapy or a specialist’s consultation earlier. Points 4r-7 are overruled.

In his eighth point of error, Doctor Lee has complained that the trial court erroneously defined “ordinary care” in its charge. This point, he states, is germane to assignments of error XII and XIX of his motion for new trial.

Assignment of error XII refers only to the standard of care established by the evidence. It does not complain of the court’s charge and, therefore, cannot form a basis for the eighth point of error. Assignment of error XIX states:

The court erred in overruling this Defendant’s Sixth Objection to the Court’s Charge.

This assignment is not sufficient to support the eighth point of error. An assignment of error in a motion for new trial which merely directs the trial court to scan a party’s objections without setting forth those objections distinctly cannot be a predicate for a point of error on appeal. Tex.R. Civ.P. 320-322, 374; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Because Doctor Lee’s motion for new trial did not set forth specifically the objection now made to the court’s charge, his eighth point of error was not preserved and cannot be considered on appeal. Even assuming the point was not waived, Doctor Lee has failed to cite any supporting authority in his argument. We do not find that the definition submitted constitutes an abuse of discretion under the facts of this case. See Webb v. Jorns, 488 S.W.2d 407 (Tex.1972).

Lee’s ninth point is directed to the form in which the trial court submitted the negligence issue to the jury. The issue was submitted in the following form:

SPECIAL ISSUE NO. 1A

Do you find from a preponderance of the evidence that Dr. Billy H. Lee was negligent in his diagnosis and/or medical care and treatment of Joe Bert Andrews, Jr., deceased, after the operation in question?
Answer “We do” or “We do not”
ANSWER: We do

Lee has pointed out that the pleadings and testimony allege several acts or omissions by Lee which, if proved, would constitute negligence. He asserts that the submission of the negligence issue so broadly has left him unable to ascertain which of the alleged acts or omissions complained of constituted negligence in the jurors’ minds.

Special issue submission in Texas is controlled by Tex.R.Civ.P. 277. The applicable portion of that rule provides:

It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues.

The significant aspects of permitting broad submissions of issues in negligence cases have been discussed in various legal articles. See Pope, A New Start on the Special Verdict, 37 Tex.B.J. 335 (1974); Note, The Revision of Rule 277 Allows a Court to Submit Issues Broadly in a Negligence Case, 7 Tex.Tech.L.Rev. 133 (1975). The decisions construing the rule, however, have been consistent in their approval of the broader charge. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974); Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.). Under these authorities, we hold that the negligence issue was not subject to the objections urged. Point 9 is overruled.

Points 10 and 11 attack the legal and factual sufficiency of the evidence sustaining the jury’s award of damages for Andrews’ conscious pain and suffering. The jury awarded $2,000.00 for this item and Lee has argued that the evidence does not show Andrews’ pain to have been any greater than that which normally attends a hemorrhoidectomy.

The jury, however, was instructed not to compensate Andrews for any pain attributable to the hemorrhoidec-tomy. We presume that the jury’s award was limited according to the court’s instruction. Patton v. Chapmond, 464 S.W.2d 467 (Tex.Civ.App. — Fort Worth 1971, writ ref’d n. r. e.). Pain and suffering are compensa-ble items of damages in a personal injury action. The jury is entitled to use its good sense and common knowledge to arrive at a figure which fairly compensates the plaintiff for his injuries. Hernandez v. Baucum, 344 S.W.2d 498 (Tex.Civ.App. — San Antonio 1961, writ ref’d n. r. e.); Texas Utilities Co. v. Dear, 64 S.W.2d 807 (Tex.Civ.App.— Amarillo 1933, writ dism’d). Various notations on the nurses’ records indicate that Mr. Andrews was in extreme pain. Furthermore, he received various intramuscular injections and medications for severe pain and nausea. The evidence further indicates that the treatments and medications administered did not serve to relieve the extreme pain from which he was obviously suffering. We have concluded that the evidence supports the jury’s award of $2,000.00. Points 10 and 11 are overruled.

In Doctor Lee’s twelfth point of error, he has complained that the trial court erred in permitting the plaintiffs to amend their petition within seven days of trial. Such an amendment is permitted under Tex.R.Civ.P. 63. Further, the record does not reflect that the appellant supplemented his objections to the amendment by a motion for continuance. See 2 R. McDonald, Texas Civil Practice, § 8.06 at 236. The trial court’s decision to allow amendment of pleadings cannot be overturned except upon showing of an abuse of discretion. Missouri — Kansas—Texas Railroad Co. v. Gage, 438 S.W.2d 879 (Tex.Civ.App. — Fort Worth 1969, writ ref’d n. r. e.). The appellant has not demonstrated that he was harmed by the trial court’s ruling, and we find no showing of an abuse of discretion on the part of the trial court. Point 12 is overruled.

In points 13-16 Doctor Lee has argued that the-respective awards of damages are too much, or alternatively a remittitur should be ordered. He has contended, among other matters, that if the lump sum damage award ($475,000) were invested and earned interest at 6% per year, the yearly interest would be greater than Andrews’ yearly income before he died (approximately $20,000).

In a wrongful death action, however, compensation is proper for intangible as well as tangible elements of damage. These include services, advice, counsel, nurture and care in addition to the financial contributions the plaintiff could expect from the victim. Austin v. Setter, 415 S.W.2d 489 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). In the light of the instructions given to the jury, we do not agree that a prospective return from “investment” of the award should be regarded as controlling with respect to the propriety of the award made. The amount of the award should be determined on a case-by-case basis and the jury should be given considerable latitude and discretion in fixing the amount of damages. Cameo, Incorporated v. Evans, 377 S.W.2d 703 (Tex.Civ. App. — San Antonio 1963, writ ref’d n. r. e.). Moreover, a remittitur should not be suggested unless (1) the verdict is shown to be the product of passion, prejudice or other improper motive; (2) the amount fixed was not the result of a deliberate and conscientious conviction in the minds of the jury; or (3) it shocks the conscience of the court. J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.). See also, Structural Metals, Inc. v. Impson, 489 S.W.2d 740 (Tex.Civ. App. — Corpus Christi 1972, no writ); Mclver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943); Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830 (Tex.Civ. App. — Waco 1960, writ ref’d n. r. e.).

In this case, all of the evidence showed Andrews to be a hardworking, vigorous and resourceful man. With his wife and children he was generous with his time and money. He assisted his father financially and in business matters. It was indicated that his income would have increased as time passed. Although the jury may have been liberal when it calculated the plaintiffs’ damages, we find nothing to indicate that the award was the product of an improper motive. We do not feel that the verdict is so large as to require the ordering of a remittitur. Points 13-16 are overruled.

In his seventeenth point of error, Doctor Lee has complained of the trial court’s action in accepting a ten to two jury verdict in this case. He has argued that Tex.R.Civ.P. 292 — allowing such verdicts— is an unconstitutional judicial invasion of the legislative function. We believe the correct rule is found in Sherrill v. Estate of Plumley, 514 S.W.2d 286 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ ref’d n. r. e.). There, rule 292 withstood a similar constitutional attack. Following that authority, we overrule point 17.

From a consideration of the entire record and the various contentions of the appellant, we find no reversible error. Accordingly, the judgment of the trial court is affirmed.

      . For example, Doctor Showery testified:
      Q. . Now, Dr. Showery, based on those same qualifications, that is, your familiarity with the general recognized, accepted standards of good, ordinary medical care for a general practitioner in that area in question as well as the entire state, your review of the hospital records, the autopsy, these depositions, do you have an opinion as to whether or not in reasonable medical probability Mr. Joe Bert Andrews would have, in fact, recovered and be alive today had proper diagnosis and treatment of his infection been made or a timely referral to a specialist been made:
      A. I have an opinion.
      Q. What is that opinion, please, Doctor?
      A. That had timely treatment been instructed even here in Dimmitt or early referral, there would have been survival for Mr. Andrews.


source: Caselaw Access Project

author: CADENA, Justice.

license: Public Domain

text:
    D. F. SAUNDERS et ux., Appellants, v. ALAMO SOIL CONSERVATION DISTRICT et al., Appellees.
    No. 15653.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 15, 1976.
    Rehearing Denied Jan. 12, 1977.

      Earle Cobb, Jr., Cobb, Thurmond & Bain, San Antonio, for appellants.
    Ralph Brown, Harvey L. Hardy, San Antonio, for appellees.
   CADENA, Justice.

This is an appeal by plaintiffs, D. F. Saunders and wife, Pauline Ruth Saunders, from a summary judgment rendered in favor of defendants, Alamo Soil Conservation District and San Antonio River Authority (SARA), denying plaintiffs’ recovery for damages allegedly done to their land as a result of the activities of defendants.

Plaintiffs alleged that on February 1, 1962, defendants “entered into a contract with Plaintiffs for an easement over Plaintiffs’ property,” and that such easement expired “by its own terms on February 1, 1967, for the reason that no improvements had been made on Plaintiffs’ property, and the improvements which were promised on Plaintiffs’ property and adjacent Plaintiffs’ property were not made.” In the alternative, plaintiffs alleged that if the easement had not expired by its own terms, “said easement is null and void for failure of consideration and fraud.”

The next paragraph of the petition alleges that defendants, for the two years preceding the filing of plaintiffs’ petition “and currently are flooding Plaintiffs’ property and otherwise depositing trash and other harmful substances upon Plaintiffs’ property.” This was followed by the allegation that such acts “constitute a wilful trespass and have resulted in damage to Plaintiffs’ property in the sum of” $120,000.00.

There follows a paragraph alleging that defendants made material misrepresentations and false promises “in connection with real estate,” which “induced Plaintiffs to sign a contract” to their damage and that, under the provisions of Article 27.01 of Tex. Bus. and Comm.Code Ann. (1968), plaintiffs are entitled “to recover their damages together with doubled exemplary damages and attorney’s fees.”

In addition to general and specific denials, defendants’ answer included pleas of limitations and laches and alleged that all improvements contemplated by the easement contract were completed in 1966, prior to expiration of the five-year period specified in the instrument.

Both plaintiffs and defendants filed motions for summary judgment. The trial court denied plaintiffs’ motion and rendered summary judgment in favor of defendants. Plaintiffs complain only of the action of the trial court in granting defendants’ motion for summary judgment.

At the outset, we reject plaintiffs’ second point of error, which asserts that the trial court erred in holding as a matter of law that plaintiffs’ cause of action for damages resulting from defendants’ negligence subsequent to August 28,1973, is barred by the statute of limitations. Nowhere in plaintiffs’ pleadings is there any allegation of negligence on the part of defendants.

The only relief sought by plaintiffs is recovery of damages. Their first ground of recovery is clearly in the form of an action for “wilful” trespass. The second ground of recovery is based on material misrepresentations and false promises by which they were induced to sign a contract “in connection with real estate.”

The “trespass” theory rests on two assumptions. (1) Defendants acquired no rights under the contract since the contract was “null and void” because of fraud and failure of consideration. (2) The easement automatically terminated because the promised improvements were not commenced within five years after February 1, 1962, the date of execution of the easement contract.

Assuming the existence of fraud, it is well settled that fraud does not render the agreement tainted by the fraud “void.” The transaction is merely voidable until the defrauded party initiates appropriate action to obtain relief. 25 Tex.Jur.2d, Fraud and Deceit § 10, p. 624.

A suit to set aside an instrument on the ground that its execution was induced by fraud is governed by the four-year statute of limitations, Article 5529, Tex. Rev.Civ.Stat.Ann. (1958). Limitations begin to run from the date the fraud is discovered or from the date when, in the exercise of reasonable diligence, the fraud should have been discovered. McMullen Oil and Royalty Co. v. Lyssy, 353 S.W.2d 311 (Tex. Civ.App. — Austin 1962, no writ). Here, where the alleged fraud consists of defendants’ failure to commence the promised improvements within five years after the execution of the easement contract, it is clear that the breach alleged to constitute fraud should have been discovered on February 1, 1967, after the expiration of the five-year period. Suit was not filed until August 28, 1975, more than eight years later. The record establishes as a matter of law that plaintiffs’ action for rescission or cancellation based on fraud was barred by limitations.

The contention that the easement contract was not supported by consideration is untenable. Plaintiffs’ whole theory is that the instrument imposed on defendants an obligation to commence construction of the improvements within the specified time. This obligation could arise only as the result of a promise, express or implied, by defendants to perform such obligation. This is clearly sufficient consideration. 13 Tex. Jur.2d, Contracts § 51.

The trial court did not err in concluding that the rights acquired by defendants under the easement contract did not terminate automatically.

In their brief, plaintiffs point out that they alleged and filed an affidavit to the effect that the “works” which defendants were obligated to commence within the five-year period, included “a recreational lake, ... a park area and clubhouse” adjacent to the lake. Plaintiffs’ pleadings contain no such allegations. The petition merely recites that no improvements had been made on plaintiffs’ property, “and the improvements which were promised on Plaintiffs’ property and adjacent Plaintiffs’ property were not made.” However, the affidavit filed by plaintiff, D. F. Saunders, does aver that, prior to the execution of the contract, a representative of SARA orally represented that the recreational lake, park area, and clubhouse would be constructed.

Assuming, for the purpose of determining the propriety of the summary judgment in favor of defendants, that the oral representations were made, there is no basis for plaintiffs’ contention that the contract terminated automatically because of defendants’ failure to construct, or commence construction of, the recreational lake, park area, and clubhouse within the specified period.

The easement contract contains no reference to a recreational lake, park area, or clubhouse. The defeasibility clause speaks of failure to commence “the above-described works of improvements” within five years from the date of execution of the instrument. The term “works of improvement above-described” necessarily refers to the works described in the instrument. It is not possible to extend the clause to include works not described in the instrument. The failure to commence construction of works not described in the instrument cannot constitute a breach of the condition.

The instrument contains a recital of consideration received and language creating a promissory consideration. A recital or acknowledgment of consideration received is no more than a statement of fact which may be contradicted by parol evidence. State v. Keeton Packing Co., 487 S.W.2d 775 (Tex.Civ.App. — Amarillo 1972, writ ref’d n.r.e.). But it is not permissible to prove by parol additional consideration in the form of promises not contained in the instrument. The instrument here states a promissory consideration and appears to have been intended as an all-embracing expression of the transaction. In such a case, even if parol promises not contained in the writing formed part of the inducement for the execution of the instrument, parol proof of such promises cannot be relied on for the purpose of enlarging the promises contained in the instrument. See Chalk v. Daggett, 257 S.W. 228, 230 (Tex.Com.App.1924); 2 McCormick & Ray, Texas Law of Evidence §§ 1613, 1633 (1956).

It must be concluded that there is no possibility of reading the alleged oral promises into the provisions for defeasance. Necessarily, then, the breach of the oral promises cannot constitute a breach of the condition.

Even if it be assumed that a breach of the condition occurred, plaintiffs’ contention that such breach automatically terminated the easement is without merit.

In order for the occurrence of the condition (failure to commence construction within the specified time) to bring about an automatic termination of defendants’ interest without any action on the part of plaintiffs, the defeasance clause must be construed as creating a special limitation of the interest conveyed. However, we agree with plaintiffs when, in their brief, they characterize the clause as creating a condition subsequent rather than a special limitation.

In their pleadings, plaintiffs speak of the failure of defendants to make the “promised” improvements, and in their brief they complain of the trial court’s action in summarily denying their claim for damages based on breach of contract. If, as plaintiffs insist, the instrument imposed a duty on defendants to commence construction within five years, the provision in question cannot be characterized as a special limitation, since a thing that a grantee is under a duty to do cannot constitute the subject matter of a special limitation. Since the ■instrument imposes on the grantees an obligation to see to it that the stated condition does not occur, it must be construed as creating a condition subsequent. Walker, The Nature of the Property Interests Created by an Oil and Gas Lease in Texas, 8 Texas L.Rev. 483, 487-90 (1930).

In order to terminate the grantee’s interest because of the breach of a condition subsequent, it is essential that the grantor reenter or take equivalent action. This requirement of affirmative action by the grantor is not dispensed with by the fact that the clause embodying the condition subsequent contains language to the effect that the interest of the grantee shall automatically revert to the grantor in case of breach of the condition. McCarthy v. City of Houston, 389 S.W.2d 159 (Tex.Civ. App. — Corpus Christi 1965, writ ref’d n.r. e.); 1 Restatement, Property § 45, comment m (1936).

Plaintiffs call to our attention the following statement found in 19 Tex.Jur.2d, Deeds § 194, p. 521: “A condition subsequent, attached to land with apt language, has the effect upon the breach thereof of reinvesting the grantor with a full title.” This statement is taken from Guinn v. Clay, 324 S.W.2d 254, 257 (Tex.Civ.App. — Amarillo 1959, writ ref’d n.r.e.), which involved neither a special limitation nor a condition subsequent, but a covenant. It appears that the Court in Guinn was, perhaps, differentiating between a condition precedent and a condition subsequent, and did not have in mind the distinction between a special limitation and what is technically known as a condition subsequent insofar as the former creates a possibility of reverter while the latter creates a right of entry or power of termination. In any event, a statement to the effect that a condition subsequent ipso facto reinvests the grantor with title on its breach is an incorrect statement of the law. Loose judicial statements failing to distinguish between the two types of defeasance clauses are not uncommon and have been the subject of comment by various legal writers. 2 Powell, Real Property § 188, p. 54, n. 11 (1965 rev.).

If, because of the failure of plaintiffs to exercise their power of termination, the easement continued in existence, the acts complained of by plaintiffs cannot be characterized as trespasses. The record before us conclusively establishes the absence of a cause of action for trespass.

Plaintiffs allege no cause of action for damages based on the use of the easement for an unauthorized purpose or the misuse or excessive use of the easement.

Insofar as a possible suit for damages resulting from breach of contract is concerned, the breach, if any, occurred more than eight years prior to the time the suit was filed and the cause of action is clearly barred.

The cause of action for misrepresentations made in connection with a real estate transaction is also clearly barred. As already pointed out, the falsity of the misrepresentations was apparent more than eight years before this suit was filed.

The judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    ROBINSON WATER COMPANY et al., Appellants, v. Mrs. Ray SEAY, Individually and as Community Survivor of the Estate of Ray Seay, Deceased, Appellee.
    No. 5526.
    Court of Civil Appeals of Texas, Waco.
    Dec. 16, 1976.

      Everett H. O’Dowd, Waco, for appellants.
    Tony E. Duty, Waco, for appellee.
   HALL, Justice.

This lawsuit was initiated by the Robinson Water Company against Mr. and Mrs. Ray Seay on July 17, 1973. Thereafter, on March 21, 1975, the City of Robinson, Mr. and Mrs. S. L. King, and Mr. and Mrs. Ray Lewis joined the Robinson Water Company as plaintiffs. The plaintiffs alleged that a forty-five foot strip running along the south boundary of a 1.64-acre tract and a 0.915-acre tract owned by the Seays, and located inside the tracts, was reserved by the Seays’ grantors as a roadway; that the strip is now a public roadway; and that the Seays have constructed a chain link fence (enclosing an area in front of their house) within the roadway. They prayed for a judgment declaring the alleged forty-five foot strip across both tracts to be “a public street and roadway in the City of Robinson,” for an order requiring the removal of the chain link fence, and for an injunction prohibiting the Seays from interfering with the public’s use and maintenance of the alleged street. Among other defenses pleaded by the Seays was the ten-year statute of limitation (Article 5510, Vernon’s Tex.Civ.St). While the case was pending trial, Mr. Seay died. The suit was then prosecuted against Mrs. Seay, individually, and as community survivor of the estate of Ray Seay, deceased.

Trial was held without a jury in May, 1975. Judgment was rendered on November 5,1975, that the plaintiffs take nothing, and declaring (1) “that the 45-foot perpetual easement for roadway purposes retained by Grantors, running along the south side of the [Seay 1.64-acre tract] has been extinguished by operation of the ten-year statute of limitations,” and (2) “that the roadway presently being used by the public along the south boundary line of the [Seay 1.64-acre tract], and located outside the chain link fence enclosing Defendant’s front yard, has been established by prescription as an easement for roadway purposes for use by the public.” Nothing was said in the judgment relating to the asserted roadway in the defendant’s 0.915-acre tract.

The plaintiffs are the appellants. In 28 points of error, they raise these five major contentions:

1. That there is no evidence to support the implied findings upon which the court based its holding that the portion of the reserved roadway easement within the chain link fence has been extinguished by the ten-year limitations statute.
2. That the court erred in failing to declare the area in the roadway easement east of the chain link fence to be a public road.
3. That the evidence establishes as a matter of law that all of a forty-five foot strip through both Seay tracts is a dedicated city street.
4. That the evidence establishes as a matter of law that the public has acquired all of a forty-five foot strip through both tracts as a public street by prescription.
5. That the court erred in amending its judgment after the appellants had perfected their appeal to this Court.

We sustain contention number two in part, overrule the others, affirm the judgment in part, reverse it in part, and render judgment accordingly.

In their brief, the appellants refer to and rely upon only the evidence favorable to their positions. However, all of their contentions relating to the sufficiency of the proof question only the legal sufficiency of the evidence. A proper testing of complaints that the evidence is legally insufficient to support findings upon which a judgment is based, or that findings which would defeat the judgment are established as a matter of law, requires the reviewing court to consider the evidence and its inferences in the light most favorable to the factual determinations that support the judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). Our review of the evidence is made in this fashion.

The following diagrams, while not drawn to scale and possibly not accurate in every detail, reasonably depict the problem area.

In January, 1945, J. Weldon Youngblood purchased a rectangular-shaped 10-acre tract near the east side of the community of Robinson, Texas. This tract is shown in bold, black lines in Fig. 1, above. At the time of purchase by Youngblood it was separated from the land bordering it on the south by a wire fence. That fence still stands. At that time, Youngblood also owned substantial acreage adjoining the 10-acre tract on the east, on which he was operating chicken farms. In November, 1945, Youngblood conveyed an undivided one-half interest in the ten acres to Robert M. Hague and wife. In 1951, Youngblood drilled a water well on the tract designated “O’Dowd 0.35 Ac.” in Figs. 1 and 2, above. Soon thereafter, Robert Hague and Young-blood constructed a fence with concrete posts inside the southern portion of the 10-acre tract. This fence extended from the western border of the tract to the west boundary line of what is now the Seay 1.64-acre tract. There is evidence the distance this fence was placed from the south boundary of the 10-acre tract varied from 28 to 45 feet along the length of the fence. At the west boundary of what is now the Seay 1.64-acre tract this fence joined a barbed wire fence which was constructed around the front (the south side) of the house now owned by Mrs. Seay as her residence on the 1.64-acre tract. This provided a front yard for the house. The barbed wire fence then continued easterly to and through the east line of the 10-acre tract to a point in the west line of what is now the O’Dowd 0.35-acre tract. The barbed wire fence is located about the same distance from the south line of the 10-acre tract as is the concrete post fence as this latter fence nears the west side of the Seay property. As shown on Fig. 2, this distance varies between 40 and 45 feet with the length of the fence. The front line of Mrs. Seay’s chain link fence is located on the exact line where the barbed wire fence passed in front of the house.

The concrete-post fence still stands, and the barbed wire fence still exists east of the Seay garage as shown on Fig. 2. These fences were erected to provide a vehicular way for Youngblood and Hague and their employees to and from the chicken farms, and to protect the remainder of the 10-acre tract for cattle grazing. Beginning with customers of the water well in the early 1950’s, the public has traveled this way without permission from anyone and created a well-defined road about twenty feet wide within it. As the road traverses the original 10-acre tract and approaches the west side of the Seay 1.64-aere tract, it is located fairly well in the center of the area between the concrete-post fence and the fence along the south line of the 10 acres. However, as it nears the Seay 1.64-acre tract from the west, the road bends to the south, passes straight in front of the Seay house and yard and garage, then bends north again and centers fairly well between the barbed wire fence east of the Seay garage and the 10-acre tract south line fence, and then continues on straight into the 0.35-acre tract. This is now and has always been the location of the road. Pictures in evidence show the road is well-traveled, well-defined, and unpaved. The county graded the road from 1959 until 1973. At one time this road joined another road at some point beyond the 0.35-acre tract, and together they formed a through road, but the other road is now closed at some point uncertain in the proof.

In January, 1961, Youngblood and Robert Hague and wife sold Mr. and Mrs. Seay the 1.64-acre tract by general warranty deed. This was the first sale out of the 10-acre tract. It was off the east end of the tract for a depth of 228 feet. The deed contained this reservation: “Grantors reserve unto themselves, their heirs or assigns, a 45-foot perpetual easement running along the South side of the property conveyed for roadway purposes.” (Emphasis supplied). This conveyance is recorded in volume 874, page 509, of the deed records of McLennan County, Texas.

In June, 1961, Youngblood and Mr. and Mrs. Robert Hague made the second sale from the original 10-acre tract. It was of adjoining 1.13-acre and 1.05-acre parcels off the west end of the tract to Robert G. Reimer, Jr., and wife. This conveyance did not reserve anything to the Hagues, but it provided that, “J. W. Youngblood reserves unto himself, his heirs and assigns, a forty-five foot roadway easement running along the South line of this property where a road now exists." (Emphasis supplied).

No further conveyances were made off the 10-acre tract until after July, 1972.

In June, 1966, Youngblood conveyed the 0.915-acre tract adjoining the east side of the 10-acre tract (see Fig. 1) to Mr. and Mrs. Seay. The south line of this tract is an extension to the east of the south line of the 10-acre tract. The deed contained a reservation reading, “Grantor does hereby expressly reserve unto himself, his heirs and assigns, the following: ... (3) The existing road running along the South side of the above-described property.” (Emphasis supplied). This conveyance is recorded in volume 990, page 113, of the deed records of McLennan County, Texas. It should be noticed that, unlike the reservations in the conveyances from the 10-acre tract, this conveyance does not specify a width of the roadway excepted, but simply reserves “the existing road” along the south side of the tract.

In May, 1972, Youngblood conveyed approximately 34 acres adjoining the east side of the Seay 0.915-acre tract to Hugh C. Hague and wife, but excepted from the conveyance the 0.35-acre parcel on which the water well is located (now the O’Dowd 0.35-acre tract). The south line of this tract is an extension to the east of the south line of the 10-acre tract and the Seay 0.915-acre tract.

In July, 1972, Youngblood and Mr. and Mrs. Robert Hague executed an instrument in which they recited that they had made the conveyances listed above to the Seays (1.64 acres and 0.915 acre), the Reimers (1.13 acres and 1.05 acres), and the Hugh C. Hagues (34 acres excepting the 0.35-acre tract); that they (Youngblood and Robert Hagues) were the owners of the residue of the 10-acre tract; that in the conveyances to the Reimers and the Seays (of both the 1.64 acres and the 0.915 acre) they reserved a “forty-five foot perpetual easement running along the South side of said tracts for roadway purposes”; and in which they then “granted, sold and conveyed unto the said Hugh C. Hague ... a non-exclusive right to use” the 45-foot easement along the south side of the 10-acre residue, the Reimer tracts, and both Seay tracts for roadway purposes, “as well as a non-exclusive right to use for roadway purposes the road running along the South side of [the 0.35-acre tract].” (This instrument was erroneous in its recitations in these two particulars: (1) it stated that the 1.64-acre tract was conveyed to the Seays in January, 1951, when in fact the conveyance was in January, 1961; and it recites that Young-blood reserved a 45-foot strip for roadway purposes in his conveyance of the 0.915-acre tract to the Seays, when in fact the reservation was only of “the existing road”).

In November, 1972, Youngblood conveyed the 0.35-acre tract adjoining the east side of the Seay 0.915-acre tract to E. H. O’Dowd and wife.

In December, 1972, Hugh C. Hague and wife conveyed 2.55 acres adjoining the east side of the Seay 0.915-acre tract and the north and east sides of the O’Dowd 0.35-acre tract to Jimmie E. Hanks and wife. This deed refers to a 40-foot roadway across the 0.35-acre tract along its south line.

On December 14, 1973, Youngblood and the Robert Hagues sold 2.631 acres (adjoining the east side of the Reimer 1.05-acre tract) from the original 10 acres to Tom B. Heaton and wife. The deed of conveyance expressly “reserved unto grantors, their heirs and assigns, a non-exclusive easement for roadway purposes 45-feet in width running along the South line of the above-described property where a road presently exists.”

In February 1974, Youngblood, alone, executed a quitclaim deed to the City of Robinson, Texas, of any “equity, interest, right, and title” owned by him in a “forty-five foot (45') perpetual easement running along the South side” of the Reimer 1.13-acres and 1.05-acre tracts, the Seay 1.64-acres and 0.915-acre tracts, the 0.35-acre tract, “and along the south side of the tract conveyed to Ray Lewis and wife” (which plats in evidence show is located between the Seay 1.64 acres and the Heaton 2.63 acres), but “without any type or character of warranty, either expressed or implied.”

When Mr. and Mrs. Seay purchased the 1.64-acre tract in January, 1961, the house on the tract in which Mrs. Seay now resides and the road along the south line of the tract were located exactly as they are now. Immediately after the purchase, they moved into the house. Very soon thereafter (in 1961) they replaced the barbed wire fence around the front yard of the house with a wooden picket fence. This fence was placed on the exact line of the barbed wire fence, and it completely enclosed the front yard. In 1973, Mr. and Mrs. Seay replaced the picket fence with the chain link fence now in question. Again, the chain link fence was placed on the exact line of the picket fence. It completely encloses the front yard of the house. The southwest corner of the fence is located in the west line of the 1.64-acre tract at a point 25.5 feet from the southwest corner of the tract. From that point, the fence is constructed in a northerly direction along the west line of the tract to a point (uncertain in the proof), north of the Seay house. From its southwest corner the fence crosses in front of the Seay house in an easterly direction for a distance of 69 feet along a line apparently parallel to the south line of the 1.64-acre tract to a point for the southeast corner of the fence. From that point, the fence runs in a northerly direction apparently parallel with the west line of the 1.64-acre tract, along the east side of the house to a point uncertain in the proof, but probably north of the house. The evidence shows that the chain link fence closes, but it does not show where.

Mrs. Seay testified that the 45-foot strip, if extended across the front of her house, would include her front porch as well as the front yard. She said that she and her husband always claimed the area enclosed in the picket fence, and now in the chain link fence, as their property, that they grew grass in it, planted trees in it, kept their dog in it, and used it as the front yard of their house. She said that they held it adversely to Mr. Youngblood or anyone else, and that they would have taken legal action against anyone who tried to take it or destroy their yard. She also testified that she has always recognized the public’s right to use the road running along the south line of her property, and that she has no right to control the road or its use. The record shows that on occasions she has attempted to exercise control over a part of the easement in front of and just east of her garage, but there is no evidence that she has acquired or claimed any right to this part by adverse possession.

Mr. and Mrs. Robert Hague testified that they were aware that Mr. and Mrs. Seay were claiming the property inside the picket fence, and that they have always considered it the property of the Seays and not a part of the roadway easement. They also acknowledged that the road in the remainder of the easement is, and during the life of the easement has always been, a public road. Mr. Youngblood did not testify.

The 45-foot wide roadway across the 1.64-acre tract reserved by Youngblood and the Robert Hagues for “themselves, their heirs and assigns,” in their deed to the Seays was a private easement, and remained so (with the exception of that part of it outside the Seay fence which was actually used by the public as a road) until Youngblood assigned his interest in it to the City of Robinson in February, 1974. As a private easement, it was subject to being lost by the ten-year statute of limitation. Walton v. Harigel, 183 S.W. 785, 787 (Tex. Civ.App. — Galveston 1916, no writ hist.). The evidence we have recited supports implied findings that Mr. and Mrs. Seay possessed and used that part of the easement inside their front yard fence adversely, openly, peaceably, and continuously against any other claimants from 1961 until 1973. These findings, in turn, support the portion of the judgment to the effect that the easement inside the chain link fence has been extinguished under the ten-year statute of limitation by Mr. and Mrs. Seay’s adverse possession. See Calfee v. Duke, 544 S.W.2d 640 (Tex.Sup.1976). Accordingly, the appellants’ first and fourth contentions, supra, are overruled.

The evidence we have recited also establishes, conclusively, that the public has acquired by prescription the right of use of most of the remainder of the easement across the 1.64-acre tract, thereby effectively extinguishing this part of the easement, and of a strip about 35 feet wide along the south line of the 0.915-aere tract. This is so because, as we have said, east of the chain link fence the traveled portion of the road is approximately twenty feet in width and, for most of its distance, is reasonably centered between the barbed wire fence and the south boundary of the tracts; and it is the rule that where a road is established by prescription, the right is not limited by the beaten path used, but includes sufficient land, where reasonably available, for drainage ditches, repairs, and the convenience of the traveling public. Nonken v. Bexar County, 221 S.W.2d 370, 374, (Tex.Civ.App. —Eastland 1949, writ ref. n. r. e.); Haby v. Hicks, 61 S.W.2d 871 (Tex.Civ.App. — San Antonio 1933, writ dism.). An additional five feet for these purposes along the north side of the existing road, plus the area between the existing road and the south boundary of the Seay tracts, is not unreasonable, here, making the roadway easement for the “existing road” across the 0.915-acre tract 35 feet wide. This easement for a public roadway was fully ripened prior to Youngblood’s attempted reservation in his conveyance of the 0.915-acre tract to the Seays in 1966, and prior to his quitclaim grant to the City of Robinson in 1974 of his interest in the 45-foot roadway easement across the 1.64-acre tract. Coupled with the grant, it gives the public an easement for roadway purposes in all of the 45-foot strip outside the chain link fence and in all of the 35-foot strip across the 0.915-acre tract. The trial court should have declared this area to be a public road. To this extent, the appellants’ second contention is sustained.

The appellants’ third contention, that the evidence conclusively shows that all of the forty-five foot strip along the south line of both Seay tracts is a dedicated street, is based upon theories that there has been a selling of tracts over the years with reference to the easement as a public roadway, and that the City of Robinson accepted the easement as a street before the Seays ripened any limitation rights. Our consideration of this contention convinces us that it is without merit. The evidence we have recited defeats the theory of an implied dedication by sales of tracts prior to 1972. Both Seay tracts are now in the limits of the City of Robinson, but the evidence is uncertain as to the date of the annexation. Minutes of meetings of the city council of the City of Robinson in January and February, 1973, show that the council was concerned because the strip was not a dedicated street. There is other evidence which also defeats this contention. It is overruled.

The court originally rendered judgment in this case, and signed it and filed it, on October 20, 1975. Thereafter, on November 5th, the court signed and filed an amended judgment replacing the original judgment. Meanwhile, the appellants had perfected an appeal from the original judgment. They say that because of the perfected appeal the trial court was without jurisdiction to amend the judgment. We disagree. The trial court had plenary power to amend the judgment until the expiration of 30 days after its rendition, regardless of the fact an appeal had been perfected. Rule 329b, Vernon’s Tex.Rules Civ. Proc.; First State Bank And Trust Company Of Port Lavaca v. Vector Corp., 427 S.W.2d 958, 959, (Tex.Civ.App. — Waco 1968, writ ref. n. r. e.).

The record fails to show whether the Robinson Water Company is a public or private corporation, and it fails to show how this party is related to this lawsuit. Accordingly the take-nothing judgment against the Robinson Water Company is affirmed.

Inferentially, the record shows that the appellants Kings and Lewises own property in the City of Robinson in the vicinity of the Seay tracts. And, as we have said, the Seay tracts are now in the City of Robinson. The take-nothing judgment against these appellants and the City of Robinson is reversed.

The part of the judgment declaring the private 45-foot roadway easement reserved by Youngblood and the Robert Hagues across the Seay 1.64-acre tract extinguished is affirmed. Judgment is rendered in favor of the appellants City of Robinson, Kings and Lewises, declaring the portion of this 45-foot easement across the 1.64-acre tract located outside of the Seay chain link fence to be a public street in the City of Robinson. Additionally, judgment is rendered in favor of these appellants declaring the private roadway easement reserved by Youngblood across the Seay 0.915-acre tract has been extinguished, and declaring the south 35 feet across this tract to be a public street in the City of Robinson.

The trial court’s assessment of the costs of the trial is affirmed. The costs of this appeal are assessed one-half against all of the appellants and one-half against the ap-pellee.


author: RALEIGH BROWN, Justice.

text:
    KEN PRUITT BUICK COMPANY, Appellant, v. James A. HENDERSON, Appellee.
    No. 4984.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 16, 1976.
    Horace G. Goodrich, Dallas, for appellant.
    Martin F. O’Donnell; Feldman, O’Donnell & Neil, Dallas, for appellee.
   RALEIGH BROWN, Justice.

Ken Pruitt Buick Company, appellant, filed its motion to reverse the trial court’s judgment and dismiss James A. Henderson’s cause of action for lack of jurisdiction.

Effective June 15, 1971, the Legislature enacted Article 1970a, V.A.C.S., which set the jurisdictional amount for County Courts at Law as:

“Amount in controversy
All county courts at law, county civil courts, and other statutory courts exercising civil jurisdiction corresponding to the constitutional jurisdiction of the county court in civil cases shall have jurisdiction concurrent with that of the district court when the matter in controversy shall exceed in value Five Hundred Dollars ($500) and shall not exceed Five Thousand Dollars ($5,000) exclusive of interest.”

The original petition filed by appellee, Henderson, alleged damages of $828.83, cost of repairs, $450, car rental, and $3,000, exemplary damages. His first amended original petition upon which the parties went to trial alleged actual damages of $3,256.57 and $3,000 exemplary damages. This pleading was never properly amended prior to trial.

The court in Universal Life and Accident Insurance Company v. Fields, 422 S.W.2d 722 (Tex.1967) held:

“. . . that the amount in controversy is determined by the factual allegations of the plaintiff’s petition . . . ”

It is apparent that the amount in controversy asserted by Henderson exceeded the jurisdictional limit of the County Court at Law.

The instant cause is distinguishable from Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (1924) and the line of cases following the rule announced therein. In the case at bar, plaintiff’s amended petition sought neither continuing damages nor interest on damages which are permissible under the rule announced in Isbell.

The judgment is reversed and the cause is dismissed.


author: MOORE, Justice.

text:
    Elizabeth SIMS et vir., Appellants, v. Charles Richard BEESON et al., Appellees.
    No. 953.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 16, 1976.
    Rehearing Denied Jan. 13, 1977.

      Frank P. Granberry, Granberry & Hines, Crockett, for appellants.
    Gus E. Meriwether, Sallas & Meriwether, Crockett, for appellees.
   MOORE, Justice.

Plaintiffs, Elizabeth Sims and husband, Sherman Sims, instituted suit against defendant, Charles Beeson, et al, to set aside a deed to a 6¼ acre tract of land executed by Sherman Sims to Charles Beeson. As grounds for a cause of action plaintiffs alleged that they had used and occupied the land as their homestead from the time they acquired it on June 20,1963, continuously to the filing of this suit and that the deed which they sought to set aside was void because it was not signed by Mrs. Sims. Plaintiffs prayed for judgment declaring the deed void and for title and possession of the land. Trial was before a jury. The homestead issue was submitted in Special Issue No. 1 wherein the jury was requested to find whether or not the land in question was a part of the homestead of the plaintiffs on the date Mr. Sims conveyed it to defendant on December 4, 1964. The jury answered: “We do not.” After the motion for judgment notwithstanding the verdict and motion for a new trial had been overruled, plaintiffs perfected this appeal.

We affirm.

The record reveals that on October 24, 1947, plaintiffs purchased a home situated on a 6¼ acre tract of land near Latexo, Texas, on which they have continuously lived and claimed as their homestead (hereinafter sometimes referred to as the home tract). The 6¼ acre tract which is the basis of this controversy is adjacent to their home tract and lies to the rear thereof. The plaintiffs purchased the 6¼ acre tract in controversy on June 20, 1963. Before purchasing the land from the heirs of Mr. Sims’ deceased brother, the testimony shows that the plaintiffs had always considered it to be in the family and had made such use of the land as they pleased since they purchased their home tract in 1947. The common boundary line between the two 6V4 acre tracts was situated approximately 225 yards behind plaintiffs’ home. Approximately sixteen months after the purchase of the unimproved tract in controversy Mr. Sims, for and in consideration of the sum of $1,250.00, executed a deed to defendant, Charles Beeson, without the joinder of Mrs. Sims. A controversy arose almost immediately. Plaintiffs forcibly resisted Beeson’s possession, and the parties have been in continuous litigation since that time. In 1971, Beeson sued Sherman Sims in trespass to try title and obtained a default judgment against him for title and possession to the 6¼ acre tract in controversy. By the present suit Sherman Sims sought to set aside the default judgment by means of a bill of review. The jury, however, found against him and he has now abandoned that branch of the litigation. The sole issue on this appeal involves the question of homestead.

By two points of error plaintiffs seek a reversal contending that the evidence conclusively established, as a matter of law, that the land in controversy was a part of their homestead. Alternatively, plaintiffs urge that the jury’s refusal to find that the land was a part of their homestead is contrary to the overwhelming weight and preponderance of the evidence. We find no merit in either point and accordingly overrule both points.

It is well settled in this state that in order to establish homestead rights, the proof must show a combination of both overt acts of homestead usage and the intention on the part of the owner to claim the land as a homestead. Prince v. North State Bank, 484 S.W.2d 405, 409 (Tex.Civ. App.-Amarillo 1972, writ ref’d n.r.e.); McFarlane v. First Nat'l Bank, 97 S.W.2d 754, 760-61 (Tex.Civ.App.-Beaumont 1936, writ ref’d); Evans v. Fortner, 198 S.W. 626, 627 (Tex.Civ.App.-Texarkana 1917, no writ); see also 28 Tex.Jur.2d Homesteads sec. 74. Before land can be claimed as a homestead, the proof must show that it was used for some one purpose of a home, either by cultivating it for income to be actually used for the purposes of the home, using it directly for the purpose of raising family supplies, or for cutting firewood and the like. Autry v. Reasor, 102 Tex. 123, 113 S.W. 748 (1908); Himes v. Himes, 55 S.W.2d 181, 186 (Tex.Civ.App.-Fort Worth 1932, no writ). In order to recover the plaintiffs had the burden to prove that the 6¼ acre tract in controversy became a part of their homestead at the time or after they purchased it. Saveli v. Flint, 347 S.W.2d 24, 26 (Tex.Civ. App.-Eastland 1961, writ ref’d n.r.e.); Himes v. Himes, supra; Evans v. Fortner, supra; see also 28 Tex.Jur.2d Homesteads sec. 83.

Both Mr. & Mrs. Sims testified with regard to their homestead claim. Mrs. Sims testified that when they bought the 6Vi acre tract in 1964, there was a fence separating it from their home tract and that the remainder of the tract in controversy was enclosed by a fence which they rebuilt after taking possession. She testified that the tract in question had always been “in the family” and that she and her husband commenced using it in 1947 with the permission of Mr. Sims’ brother. Although there was no water on the tract in controversy, she stated that they had kept cows there “off and on” from the date they purchased it until about 1966 or 1967. She also testified that she had maintained a chicken pen on the tract and that they had kept some hogs there “many years ago.” She did not state, however, whether such use was before or after they acquired title to the land. She further testified that after they took the cows out, they had some garden patches on the land but again she did not give the dates. Finally, she stated that they had continuously claimed the land as a part of their homestead since the time of its purchase.

Mr. Sims testified that he and his wife began to use the tract in question when they moved there in 1947. He testified that beginning with their purchase of the land in 1963 they claimed it and used it as a part of their homestead. We find nothing in his testimony, however, concerning any actual use which they had made of the land for homestead purposes. While he testified that they had a few chickens and a cow until 1968 or 1970, he offered no testimony showing that the disputed tract was used for pasture purposes subsequent to the time they acquired it in 1963. Although he testified he had rendered it for taxes in 1964 and each year thereafter as a part of the homestead, the record does not so indicate. While the tax records show that he signed a rendition affidavit each year for the 6Vi acre tract on which his home was situated declaring it to be his homestead, the 1964 tax records listing the acre tract in question contain no such rendition affidavit. The records show that Beeson paid the taxes in 1965 and each year thereafter. According to the tax records, the only year in which Mr. Sims signed a rendition affidavit on the tract in question was in 1970, when he insisted on rendering the property and paying the taxes although he knew the taxes had already been paid by Mr. Beeson.

Although several disinterested witnesses were called for the purpose of showing that the plaintiffs used the land for homestead purposes, each of them disclaimed any knowledge of plaintiffs’ use of the land. Thus, the question of whether the land in controversy became a part of their homestead must rest solely on the testimony of the plaintiffs.

Plaintiffs argue that their testimony conclusively established that the 6¼ acre tract in controversy was used by them as a part of their homestead because their testimony was not denied or refuted. We do not agree. At most, their testimony created nothing more than a question of fact on the homestead issue. Reed v. Crump, 277 S.W. 737, 738 (Tex.Civ.App.-Texarkana 1925, no writ); see also 28 Tex.Jur.2d Homesteads sec. 83. Since each of the plaintiffs was an interested witness, the matter was still for the jury even though their testimony was not denied or refuted by other evidence.

The general rule is that the testimony of interested witnesses, such as parties to the suit, merely raises a fact issue to be determined by the jury. Simmonds v. St. Louis, B & M Ry., 127 Tex. 23, 91 S.W.2d 332 (1936); Prince v. North State Bank, supra; Himes v. Himes, supra; Hillier v. Howard, 131 S.W.2d 1002 (Tex.Civ.App.-Eastland 1939, writ ref’d). We recognize that the foregoing rule will not be applied when the testimony of the interested witness is clear, direct and positive and there are no circumstances in the evidence tending to be inconsistent or in conflict with the uncorroborated testimony. Great Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). However, we do not believe that this exception to the general rule is applicable here because the testimony with regard to the homestead use cannot be said to be so clear, direct and positive as to become conclusive. We are of the opinion that the testimony merely raised a question of fact on the homestead issue. Prince v. North State Bank, supra; Hillier v. Howard, supra; Wade v. First Nat’l Bank, 263 S.W. 654, 656 (Tex.Civ.App.-Texarkana 1924, writ dism’d). Consequently, we hold that the verdict of the jury on the homestead issue cannot be disturbed.

We find no merit in the contention that the verdict and judgment is against the overwhelming weight and preponderance of the evidence and therefore plaintiffs’ second point is overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    W. L. KISSAM et al., Relators, v. Billy WILLIAMSON, County Judge, Respondent.
    No. 1032.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 16, 1976.

      J. Byron Saunders, Saunders, Caldwell & Schmidt, Tyler, for relators.
    Mary Endres, Asst. Dist. Atty., Tyler, for respondent.
   PER CURIAM.

This is an original proceeding for mandamus. Relators, W. L. Kissam, on behalf of himself individually and others similarly situated, moved for and was granted leave to file a petition seeking a writ of mandamus commanding Honorable Billy Williamson, County Judge of Smith County, Respondent, to rule on Relators’ petition to call an election to incorporate a town to be known as “Jackson Heights” in Smith County, Texas.

By verified pleadings, Relators alleged that on September 12, 1975, they filed a petition with the County Clerk of Smith County requesting the County Judge to call an election to incorporate the area known as “Jackson Heights” under the authority conferred on the County Judge by Tex.Rev. Civ.Stat.Ann. arts. 1133-1136 (1925). They alleged that the said petition was duly signed by 78 residents and qualified voters of the area sought to be incorporated and was accompanied by a list containing the names of more than 200 persons residing in the area, as well as a legal description of the area and a plat showing the area to be incorporated in compliance with the statutes. In response to the petition the County Judge of Smith County held a hearing on November 12, 1975, at which time relators presented evidence in support of the petition. At the conclusion of the hearing, the County Judge announced that he would take the matter under advisement. Rela-tors allege that shortly thereafter the County Judge summoned counsel for Relators and opposing counsel to his office and announced to them that he would neither call nor refuse to call the election, but that he would keep the matter under advisement for a “long time.”

In response to Relators’ petition for mandamus, Respondent alleged that under Articles 1133-36, supra, he was authorized to make a prerequisite determination, independent of the proof submitted, as to whether or not there were the required number of inhabitants residing in the proposed area to be incorporated. He alleged that he had exercised his discretion in determining that the number in the area was below the 200 inhabitants required by the statute. No contention is made that the petition or the proof submitted by Relators did not comply with the statutory requirement, and nowhere in his answer does Respondent challenge Relators’ allegation that no order has been entered either granting or denying the petition for incorporation. The unchallenged averments are accepted as true. Hi-dalgo County Water Improvement Dist No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596 (1957); DeLeon v. Periman, 530 S.W.2d 174, 175 (Tex.Civ.App. — Amarillo 1975, no writ).

By statute the legislature has selected and delegated to the County Judge the authority to set in motion the election procedure to incorporate a town or city or to deny it. Tex.Rev.Civ.Stat.Ann. arts. 1133, 1134 & 1136 (1925). The narrow question presented, therefore, is whether a writ of mandamus will issue to a County Judge to compel the performance of a purely ministerial act of ruling one way or another on Relators’ request for an order calling an election to incorporate.

In proceedings of this character, a Court of Civil Appeals has jurisdiction to compel the judges of the County Courts “to proceed to trial and judgment in a cause,” and in a proper case may direct the character of judgment to be entered. Tex.Rev. Civ.Stat.Ann. art. 1824; Southland-Greyhound Lines, Inc. v. Richardson, 126 Tex. 118, 86 S.W.2d 731, 733-34 (1935); Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296, 299 (1926); American Nat’l Ins. Co. v. Sutton, 130 S.W.2d 441, 443 (Tex.Civ. App. — El Paso 1939, no writ). While the authorization does not sanction the use of the writ to compel an order or judgment which is discretionary with the trial judge, it does authorize the granting and issuance of the writ when the judge improperly refuses to act on a matter within his jurisdiction. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063,1073 (1926); Dozier v. Wray, 222 S.W.2d 178 (Tex.Civ.App. — Waco 1949, no writ); DeLeon v. Periman, supra. The statute also authorizes the granting and the issuance of the writ when there has been a failure to act within a reasonable time, Smith v. Monroe, 2 S.W.2d 929, 930 (Tex. Civ.App. — El Paso 1928, no writ), or a refusal upon request, to proceed to judgment in a cause. Dallas Ry. and Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081 (1935); DeLeon v. Periman, supra; see also 37 Tex.Jur.2d Mandamus sec. 18.

Applying the foregoing principles to the facts in this case we hold that there is no legal excuse for Judge Williamson’s failure to perform his duty to rule on Relators’ petition for incorporation as required by statute. He has a duty to act whether his power to determine the matter be called judicial, administrative or political. Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926, 930-31 (1961). More than a year has now elapsed since the petition requesting an election for incorporation was heard and taken under advisement by the Judge. Such a long delay cannot be sanctioned. The County Judge has no discretion to exercise in such a matter. He must rule in order that the Relators may either accept his ruling or attack it. Relators are therefore entitled to their writ of mandamus commanding Respondent, Judge Williamson, to proceed to enter an order either granting the relief requested or denying the same.

We are confident that Judge Williamson will proceed in accordance with the views expressed herein, but if he does not within 10 days after this order becomes final, writ of mandamus will issue.


author: MASSEY, Chief Justice.

text:
    Patrick Henry HOLLIFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 17833.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 17, 1976.

      R. Drew Furgeson, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Tarrant County, and K. M. Armstrong, Asst. Dist. Atty., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

July 23, 1976 a jury in County Court found (1) Patrick Henry Hollifield to be a mentally ill person and (2) that he required hospitalization in a mental hospital for his own welfare and protection or the protection of others. Both findings were made by “a preponderance of the evidence.” There was no objection to the Charge of the Court. There was no motion for new trial. Mr. Hollifield was immediately confined, for observation not to exceed 90 days, under provisions of V.A.T.S. Title 92, “Mental Health”, Sec. 5547-38, “Order upon hearing”.

Hollifield appealed and had his record filed in this Court August 24, 1976. Upon motion made we advanced the time for submission of the appeal to December 10, 1976 (though it was apparent that the order under which there was the commitment for observation would by operation of law end on the approximate date of October 21, 1976).

By certificate of the hospital it was shown that Mr. Hollifield was discharged as “improved” on October 7, 1976. Immediately thereafter the State of Texas, as ap-pellee, moved for dismissal of the appeal as moot because the controversy theretofore existent was so terminated that any decision by this Court on the merits would be useless or impossible of performance.

Our decision of the motion to dismiss was deferred until there was presentation on the merits of the appeal, Mr. Hollifield contending that under the reasoning of the case of In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973) the question was a continuing one and that the brief duration of the order ought not to operate to deprive him of opportunity for redress.

We have concluded that the appeal is moot. Following the lead of In re Ivey, 534 S.W.2d 163 (Tex.Civ.App., Austin, 1976, writ ref., n. r. e.), in which Ballay and other decisions were discussed, we have concluded that we should not only dismiss the appeal as moot, but that we should furthermore set aside all previous orders, including the commitment, and dismiss the cause itself.

All the arguments made in the instant case were common to those made in Ivey, in which they were discussed. That discussion need not be repeated here. We are not disposed to differ with or qualify declarations thereupon made in the opinion of the Austin Court.

Here, unlike the situation in Ivey, there has been a jury verdict, and the judgment, from which there was appeal was upon the jury’s fact findings. On appeal the complaint is of the adoption of an erroneous burden of proof, i. e., in failing to require any finding upon propriety of commitment to be made “beyond a reasonable doubt” rather than by a “preponderance of the evidence”. There was also the contention that the jury finding was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous. It would appear that by failure to object to any special issue there was waiver of right to complain; on the right to complain of want of necessary support for jury finding without having first filed a motion for new trial presenting the contention to the trial court it was recently held by the Dallas Court that the right did exist. Moss v. State, 539 S.W.2d 936 (Tex.Civ.App., Dallas, 1976).

However, since the appeal is to be dismissed attempt by this Court to write and pass upon the points of error would amount to rendition of an advisory opinion on abstract questions of law, a power not granted. To this principle of law there was consideration in Ivey, and the remarks thereupon made need not receive embellishment here.

In material aspects it would appear that the instant case differs from that in Ivey only in that in such case the appellate record did not reach the Austin Court of Civil Appeals until after Mr. Ivey had already been released. Here it reached the Court before release. The fact that in the instant case the appellate record had been filed before Mr. Hollifield had been released from the hospital makes no difference whatever in the application of the law to the facts. The appeal is proper to be dismissed if confinement is found to have been terminated before action is taken by the appellate court. That a release has occurred is proper to be shown by evidence in support of a motion to dismiss. Here the motion to dismiss was thus supported.

All previous orders in the cause, including the judgment of commitment, are set aside, and the cause is dismissed.


author: JAMES, Justice.

text:
    Sarah P. KNICK, Appellant, v. Cone B. GREEN, Appellee.
    No. 5659.
    Court of Civil Appeals of Texas, Waco.
    Dec. 23, 1976.
    Rehearing Denied Jan. 20, 1977.

      Brock, Waters & Galey, Lubbock, for appellant.
    Allison & Davis, Levelland, for appellee.
   OPINION

JAMES, Justice.

This is a suit on an unsecured promissory note. Trial was had to a jury. After both sides closed, pursuant to Plaintiff’s motion for instructed verdict, the trial court withdrew the case from the jury and entered judgment for Plaintiff for the face amount of the note plus interest, from which judgment the Defendant appeals. We affirm.

Plaintiff-Appellee Cone B. Green filed this suit against Defendants Hockley County Equipment Co., Inc., (hereinafter called “the Company”), Jerry McMillan and Appellant Sarah P. Knick seeking to recover upon a promissory note in the principal sum of $25,000.00. Said note was payable to Green and executed by Hockley County Equipment Co., Inc. as maker, and signed by Jerry McMillan as president thereof; and thereunder a guaranty agreement was executed by Jerry McMillan and Sarah P. Knick, both individually. The language of the guaranty read: “We, the undersigned, hereby personally guarantee payment of the within stated note,” and then was signed by McMillan and Knick. Summary judgment was rendered in favor of Plaintiff Green against Hockley County Equipment Co., Inc. and McMillan, from which no appeal was taken. As stated, after both Plaintiff Green and Defendant Knick closed, the trial court withdrew the case from the jury and entered a judgment for Plaintiff Green against Defendant Knick for $25,000.00 plus penalty interest as provided in said note at ten percent per annum from July 1, 1974, until the date of judgment, together with interest after judgment at the rate of nine percent per annum, and costs. From this judgment Defendant Knick appeals upon fifteen points of error. We overrule all of Defendant-Appellant’s points of error and affirm the trial court’s judgment.

The note in question is dated August 2, 1971, in the principal amount of $25,000.00, bearing 8V2% interest from date, with past due principal and interest bearing interest at 10% per annum, said note being payable upon demand or five years from date, or upon the death of Green, and providing for attorney’s fees. It is undisputed that at or about the time of execution of said note, Green advanced the company $25,000.00 in money, and that none of the principal of said note has been paid. A short time after the note was executed and the money advanced pursuant thereto, Green transferred and assigned the note to the First National Bank of Levelland, Texas. No money or other consideration passed from the Bank to Green in connection with Green’s assignment of said note to the Bank. The note thereafter remained in the possession of the Bank until February 28,1975, at which time the Bank assigned the note back to Green, after which time Green filed this suit. Likewise, there was no consideration paid in connection with the Bank’s transfer of the note back to Green.

The Company did their principal banking business with the First National Bank of Levelland, and Green was a director of said Bank. The note provided that the interest was payable monthly, and said interest amounted to $177.07 per month. From the time the note was assigned by Green to the Bank, the Bank deducted the monthly interest payments from the Company’s account and credited same to Green’s account, until July 1, 1974. After said last-named date, no more interest was paid upon the note, and none of the principal was ever paid.

During all periods of time pertinent hereto, the primary financing of the Company was handled by the Bank. Some time after execution of the note the Company began to fail financially, and later went completely out of business. The Company owed the Bank two notes, each secured by Deeds of Trust, totalling $270,000.00, one note being for $110,000.00 dated April 8, 1974, and one note for $160,000.00 dated March 8, 1974. The note for $110,000.00 represented a consolidation of all notes previously carried as floor-plan notes, capital notes, and the like; whereas the $160,000.00 note represented a first lien note on the real estate owned by the Company.

Prior to the time the Company went out of business, the Bank took several steps to reduce the corporate debts. Two auction sales were held selling off the Company’s personal property, the proceeds of which were applied upon the note for which the personal property was security, same being the $110,000.00 note hereinabove described. On November 5, 1974, the deed of trust (securing the $160,000.00 note) was foreclosed upon the Company’s real estate. The Bank bought in the Company’s real estate at $133,884.24, which amount when taken with the other prior credits was sufficient to pay off and discharge both the $110,-000.00 and the $160,000.00 notes in full. In other words, earlier deductions had reduced the amount owed on the $160,000.00 note, prior to the foreclosure on the Company’s real estate. No proceeds of any of the sales or payments by the Company or the foreclosure by the Bank was applied to any personal or unsecured debt.

As stated, after the $110,000.00 note and the $160,000.00 note had been satisfied, to wit, on February 28, 1975, the unsecured $25,000.00 note in question was transferred by the Bank back to Green. No money or other consideration was given by Green to the Bank for such transfer. None of the principal had been paid to either the Bank or Green by either the Company, McMillan or Knick.

Appellant’s points one through nine contend the trial court erred in withdrawing the case from the jury and entering judgment for Plaintiff, asserting that Appellant pleaded and raised fact issues in the evidence of affirmative defenses, thereby causing the instructed verdict to be improper. These affirmative defenses upon which Appellant says she offered evidence to raise fact issues are summarized as follows:

(1) Green and the Bank misapplied, mismanaged, and manipulated funds which were collateral or security for the payment of the debt on which Defendant-Appellant Knick is being sued as a guarantor;

(2) Green and the Bank were negligent in that they failed to use ordinary care resulting in a waste or loss of funds, collateral and security for the payment of the note sued upon;

(3) Green and the Bank unjustifiably impaired existing collateral for the note sued upon to the detriment of Defendant-Appellant Knick;

(4) Green and the Bank appropriated and converted a special deposit in which Knick had an interest;

(5) Green and the Bank impaired the sub-rogation rights of Knick against the primary obligor, the Company;

(6) Green and the Bank breached the fiduciary relationship existing between Knick, Green, and the Bank.

(7), (8) and (9) Green and the Bank are estopped because they failed to exercise diligence in efforts to collect the indebtedness from the primary obligor upon the note sued upon; that Green and the Bank failed to give notice that Plaintiff Green was seeking payment on the note sued upon, thereby causing Knick “to take action prejudicial to her”; and that Green and the Bank “are precluded from making any claims against Knick due to laches in seeking payment of the note sued upon.”

A careful examination of the above contentions reveals that they are all without merit. All of these asserted affirmative defenses are predicated upon the assumption that the Green note in question was secured by collateral as were the other Company notes owing to the Bank which were discharged by the auction sales of the Company’s personal property and foreclosure upon the Company’s real estate as hereinabove described. But this is simply not the case. The Green note was clearly and unmistakable an unsecured note. The Bank’s action in applying the auction sale and foreclosure proceeds to pay off and satisfy the $110,000.00 and $160,000.00 secured notes was entirely proper. Indeed, had the Bank applied this money to pay off any notes not secured by the mortgage instruments, such action would have been improper. That is to say, proceeds of sale of mortgaged property cannot be applied to the payment of a debt not covered by the mortgage, without the consent of the debt- or. Howard v. Schwartz (1900), 22 Tex.Civ. App. 400, 55 S.W. 348, no writ.

The evidence is undisputed, and the Appellant has admitted that Green proved up a promissory demand note in the amount of $25,000.00, that the note was in default, that Defendant-Appellant Knick signed the note personally guaranteeing payment, and that no notice of default must be given such guarantor. A guarantor who enters into a guaranty providing that he unqualifiedly guarantees payment, as did Mrs. Knick here, becomes liable as the original obligor. See Article 3.416, Texas Bus. and Comm. Code, and comment thereunder; Rice v. Travelers Express Co. (Houston, Tex.Civ. App., 1966) 407 S.W.2d 534, 536, no writ, and the authorities therein cited.

The evidence may have been conflicting as to whether Knick received notice that Green was seeking payment prior to his filing suit; however, this raises no fact issue or affirmative defense. This being a demand note, it was actionable immediately without demand. Henry v. Roe (1892) 83 Tex. 446, 18 S.W. 806; Donald v. Bennett (Fort Worth, Tex.Civ.App., 1967) 415 S.W.2d 450, NRE; Davis v. Dennis (Tyler, Tex.Civ.App., 1969) 448 S.W.2d 495, 497, no writ; 9 Tex.Jur. 2, “Bills and Notes,” par. 62, p. 70. This demand provision, along with the guaranty of payment, is a waiver of not only presentment, notice of dishonor and protest, but also demand upon the maker. Thus, notice that Green was seeking payment was not required and no issue of estoppel is raised. Moreover, there was no evidence that the alleged failure of notice caused Mrs. Knick to take any actions at all, much less any actions prejudicial to her. Likewise, there was no evidence raising the issue of laches, nor was there any evidence of any lack of diligence on the part of Green or the Bank in attempting to collect this indebtedness. There is no evidence raising a fiduciary relationship between Green and the Bank on the one hand, and Mrs. Knick on the other. In short, there is no evidence in the record that raised any fact issue concerning any affirmative or other defense.

Appellant’s remaining points (ten through fifteen) assert error of the trial court in sustaining Plaintiff’s Motion in Li-mine, wherein the trial court prohibited Defendant-Appellant from offering certain testimony not necessary to detail here. We overrule these points, because Appellant has brought forward no record showing what the excluded evidence would have been.

Error is not shown in the exclusion of evidence unless the Appellant brings before the appellate court a record that shows clearly, by bill of exceptions or otherwise, not only what the evidence would have been if admitted, but also its relevancy. Merrifield v. Seyferth (Dallas, Tex.Civ. App., 1966) 408 S.W.2d 558, 562, no writ; Central Power & Light Co. v. Martinez (Corpus Christi, Tex.Civ.App., 1973) 493 S.W.2d 903, 906, no writ. Also see Rule 372, Texas Rules of Civil Procedure; Hartford Accident & Indemnity Co. v. McCardell (Tex.1963) 369 S.W.2d 331, 335; Johnson v. Reed (Dallas, Tex.Civ.App., 1971) 464 S.W.2d 689, NRE, certiorari denied, 405 U.S. 981, 92 S.Ct. 1197, 31 L.Ed.2d 256.

Finding no reversible error in the record, we affirm the trial court’s judgment.

AFFIRMED.