author: SHANNON, Justice.

text:
    The SUPERIOR OIL COMPANY, Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 12484.
    Court of Civil Appeals of Texas, Austin.
    Jan. 12, 1977.
    Rehearing Denied Feb. 9, 1977.
    Philip F. Patman, Patman & Patman, Austin, for appellant.
    John L. Hill, Atty. Gen., Linward Shivers, Asst. Atty. Gen., Austin, for Railroad Commission of Texas.
    Dee J. Kelly, Fort Worth, for Kimball Production Co.
   SHANNON, Justice.

This appeal concerns the approval by the Railroad Commission of the bottom hole location of a deviated gas well and involves the construction of the Commission’s Rule 11.

Appellant, Superior Oil Company, filed suit in the district court of Travis County appealing an order entered by the Railroad Commission. The order approved the bottom hole location of Kimball Production Company’s Kellison Gas Unit Well Number One and assigned to that well a permanent allowable under the field rules in effect for the Block 16 Field in Ward County. After trial to the court, the court entered judgment that appellant take nothing. Appel-lees are Miles Kimball Company, doing business as Kimball Production, and the Railroad Commission of Texas. We will affirm the judgment of the district court.

In July, 1973, the Commission granted Kimball a Rule 37 permit authorizing Kim-ball to drill its Kellison Gas Unit Well Number One at a surface location 990 feet from Superior’s leaseline. After drilling had begun, Kimball lost a drill bit in the hole. After “fishing” for the bit for eight days, Kimball received permission from the Commission to deviate the hole around the lost bit. At that time the Commission advised Kimball that no allowable for the well would be assigned until after a “Rule 11” hearing establishing the reasonableness of the bottom hole location. Deeper in the hole Kimball lost more equipment. After searching for the equipment for nine days it was again necessary to sidetrack the hole around the lost equipment. The well was finally drilled to a total depth of 12,544 feet. The subsurface location of the well deviated 820 feet from the vertical, although the location was still within Kim-ball’s lease.

After notice the Commission conducted a hearing under its Rule 11 concerning the bottom hole location of the Kimball well. The applicable provisions of Rule 11 are as follows:

“RULE 11. INCLINATION AND DIRECTIONAL SURVEYS REQUIRED (From Old Rule 54)
“I. GENERAL
All wells shall be drilled as nearly vertical as possible by normal, prudent, practical drilling operations. Nothing in this rule shall be construed to permit the drilling of any well in such manner that it crosses property lines (or unit lines in cases of pooling) without special permission.
“III. DIRECTIONAL SURVEYS
(a) When such directional survey shows the well to be bottomed within the confines of the lease, but beyond the prescribed limits, an application may be made to the Commission and exception may be granted for such bottom hole location if, after notice and hearing, it is established that the bottom hole location is a reasonable location.
“IV. INTENTIONAL DEVIATION OF WELLS
(2) If the necessity for directionally deviating the well arises unexpectedly, after the drilling has begun, the operator shall give, written notice by letter or telegram of such necessity to the District Office and to the Commission Office in Austin, and upon giving such notice, the operator may proceed with the deviated drilling. However, before any allowable shall be assigned to the well, a permit shall be obtained from the Commission for such well under the provisions set out in the Commission Rules. The operator proceeds with the drilling of a deviated well under such circumstances at his own risk, and should he fail to show good and sufficient cause for such deviation, no permit will be granted for the production of the well.”

At the hearing Superior, as protestant, requested permission to present evidence regarding fair share of recoverable hydrocarbons, alleged net uncompensated drainage, and the competitive advantage that Superior claimed would be enjoyed by the Kimball well as a result of its deviation. The Commission refused to permit Superior to introduce that evidence.

After the hearing the Commission approved the bottom hole location of the well and assigned a permanent allowable to it. In doing so the Commission did not consider the issue of waste and confiscation, nor any evidence with respect to such issues. Superior appealed from the Commission’s order to district court.

By its suit Superior contended (1) that the Commission’s order approving the final subsurface location was arbitrary and capricious because the Commission refused to consider evidence of drainage and unfair competition allegedly resulting from the deviated location; (2) the Commission’s order was not supported by substantial evidence; and (3) the Commission’s order is invalid because the well was not drilled in substantial compliance with the authorizing permit.

Upon trial and over appellees’ objection, the district court received into evidence testimony of Superior’s witnesses relating to drainage, but by its final disposition of the case, the court necessarily determined that evidence of drainage is not admissible in a Rule 11 hearing.

Upon request, the court filed “findings of fact” and conclusions of law. The court found, among other things, that Kimball used all of the normal, customary, and recommended industry procedures in drilling the well in order to maintain a straight hole. The gas well was bottomed within its unit boundary and was never off the unit boundary at any time during the drilling operations. The well was intentionally deviated on two occasions in order to avoid drilling through lost equipment in the hole, and on both occasions the deviation was away from Superior’s leaseline. Before deviating its well, Kimball applied for and received permission from the Commission to deviate the well around the lost equipment. There were no bottom hole restrictions contained in the Rule 37 permit granted by the Commission for the gas well.

The district court concluded that Rule 11, as construed and applied by the Commission in this case was a valid rule. The court concluded further that the order approving the bottom hole location of the well was supported by substantial evidence in that Kimball utilized all of the normal, customary, and recommended industry procedures in drilling the well in order to maintain a straight hole. Finally, the court concluded that the amount of allowable to be assigned the well was not an issue in the bottom hole location hearing before the Commission, only whether the well should be assigned an allowable at all or removed from the Commission’s proration schedule.

A Rule 11 hearing, as viewed by Superior, contemplates a consideration of evidence of drainage and unfair competition. As the Commission refused to admit such evidence, Superior says the Commission’s order approving the bottom hole location was arbitrary and capricious. In support of its position Superior says that the determination of a “reasonable location” under Rule 11 necessarily involves a consideration of evidence concerning correlative rights. Superior argues further that when a well is drilled and completed in a manner so as to give it an “unfair competitive advantage” over its neighbors, such as by closely approaching its offsetting property line, the Commission, in a Rule 11 hearing, has the duty to adjust its allowable production in order to maintain the fair-share rule and protect the correlative rights of offset operators.

A reading of Rule 11 demonstrates that it is concerned with the causes of deviation and the justification for such deviation. There is no provision in Rule 11 which requires the operator to justify its allowable in order to obtain approval of the bottom hole location of the well. Rule 11 permits the operator to have an allowable assigned to the well under the field rules if it can demonstrate “good and sufficient cause” for the deviation and if the bottom hole location is a “reasonable” location. If the operator cannot demonstrate good and sufficient cause for deviating the well, the Commission is empowered to cancel its allowable and to order the well removed from the proration schedule for the field.

Superior relies mainly upon some language in Stewart v. Humble Oil & Refining Co., 377 S.W.2d 830 (Tex.1964), for the proposition that evidence of drainage must be considered in determining the reasonableness of a bottom hole location under Rule 11. Although the wells in Stewart were drilled prior to the adoption of Rule 54, the predecessor of Rule 11, the court had to determine the reasonableness of the bottom hole location of deviated wells. The Commission had approved the bottom hole location of Stewart’s wells, but the district court entered judgment that the Commission’s order was unreasonable and arbitrary and had enjoined the Commission from approving any allowable for the wells. On direct appeal, the Supreme Court reversed the judgment and dissolved the injunction.

The Court held that the determination of proper well location is a function of the Commission, and not the courts. It is important to observe that the court rejected Humble’s contention that Stewart had to prove again that the bottom hole location of the well, as deviated, was necessary to prevent confiscation. The Court viewed the issue as one whether there was substantial evidence to support the Commission’s determination that the subsurface locations reasonably complied with the permits issued for drilling the wells. The Court held that Humble had failed to discharge its burden of showing that there was no substantial evidence to support the Commission’s determination.

It is true that the Court in Stewart discussed evidence of drainage from Humble’s property. It does not follow, however, that the Court held in Stewart that a consideration of evidence concerning drainage is mandatory when determining the reasonableness of a bottom hole location under Rule 11. Before the discussion of drainage in the opinion the Court had previously held that the district court had erred. The subsequent discussion of drainage by the Court did not form the basis for the Court’s holding but was an effort by the Court to support its holding by relating additional facts.

Superior has presented no reasons which justify requiring the Commission to consider evidence of drainage in a Rule 11 hearing. Before Kimball’s Rule 37 permit was issued, notice was given Superior and other adjoining landowners. Superior had an opportunity in that hearing to present evidence of drainage and unfair competitive advantage. The Rule 37 hearing is designed for the sort of adversary proceeding in which parties may assert their interests in and to the subsurface minerals. The Commission had authority to issue the Rule 37 permit only after finding that the permit was necessary to protect Kimball’s property from confiscation. Superior could have appealed the order granting the Rule 37 permit to the district court of Travis County, and it is our understanding from the briefs that Superior did so.

As is apparent, our view is that a Rule 11 hearing does not contemplate a consideration of evidence of drainage, and therefore the Commission did not err in refusing to receive that evidence.

In connection with Superior’s second contention, the Commission’s order approving the bottom hole location of the well was supported by substantial evidence. Kimball showed good and sufficient cause for the deviation and Kimball utilized the normal, customary, and recommended industry procedures in drilling the well in order to maintain a straight hole. It follows that under these circumstances the bottom hole location was a reasonable one.

Finally, Superior contends that the Commission’s order was invalid because the well was not drilled in substantial compliance with its permit to drill. Superior relies upon Railroad Commission v. Magnolia Petroleum Co., 125 S.W.2d 398 (Tex.Civ.App.1939, writ ref’d), for the proposition that if Kimball’s well were not drilled in compliance with its drilling permit, the well was illegal and was not entitled to have an allowable. The operator in Magnolia attempted to commence drilling forty-nine feet south of the surface location authorized by the drilling permit. The bottom hole location of the well was not involved in Magnolia. In the case at bar, Superior does not claim that the surface location of the Kimball well was different from that authorized in the drilling permit.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Joe E. DIXSON, Appellee.
    No. 7949.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 13, 1977.
    Rehearing Denied Feb. 3, 1977.

      James S. Fuller, Port Arthur, for appellant.
    William E. Townsley, Beaumont, for ap-pellee.
   PER CURIAM.

Defendant below appeals from an adverse judgment entered after a jury trial wherein plaintiff recovered workmen’s compensation benefits. Plaintiff below has filed a motion to dismiss the appeal and such motion is granted for the reasons now to be stated.

Judgment was entered on June 24, 1976, and defendant timely filed its original motion for new trial on July 2, 1976. Defendant’s amended motion for new trial was likewise filed in time, on July 22, 1976. On August 16, 1976, counsel for the parties filed an agreement extending the time for the hearing and determination of the amended motion for new trial until September 10, 1976. Tex.R.Civ.P. 329b, § 3.

The trial court did not act upon the amended motion on September 10; instead, the trial court signed an order on October 7, 1976, overruling the amended motion for new trial. This order was a nullity. Heldt Brothers Trucks v. Alvarez, 477 S.W.2d 691, 693 (Tex.Civ.App. — San Antonio 1972, writ ref’d).

Since the trial court did not grant the motion for new trial on September 10, 1976, it was overruled by operation of law upon said date. Sanders v. West Texas Utilities Co., 537 S.W.2d 787, 788 (Tex.Civ.App. — Eastland 1976, writ ref d). Thus, defendant’s appeal bond was required to be filed within thirty days from and after the date said motion was overruled by operation of law. Tex.R.Civ.P. 356. The rule is mandatory and jurisdictional and cannot be waived. Alvarez Case, supra. Defendant did not file an appeal bond until November 3, 1976, long after the expiration of the thirty-day period provided by Rule 356. Therefore, the appeal was not timely perfected. Alvarez, supra.

But, defendant contends that since the delay in acting upon the motion for new trial was to accommodate counsel for the plaintiff, plaintiff is now estopped to urge the jurisdictional point found in the Sanders Case, supra.

Although the argument is persuasive and appealing to the conscience, we do not write upon a clean slate. Our acts in this case must be in accordance with the rules laid down for our guidance by the Supreme Court. Notwithstanding the dissent of Mr. Justice Greenhill, our Supreme Court has answered the question adversely to the defendant in the ease of Texas & New Orleans Railroad Co. v. Arnold, 388 S.W.2d 181, 184-185 (Tex.1965).

All courts are reluctant to deny a litigant his day in court or to dismiss an appeal. Thus, we adopt the rule enunciated by the court in Allen v. United Supermarkets, Inc., 467 S.W.2d 616, 621 (Tex.Civ.App. —Amarillo 1971, no writ):

“It is a rule of this court, where consistent with Rule 1 and the authority granted us under our rules of procedure, to give each litigant every opportunity to be heard upon the merits of the case, and we will not deny such right to any litigant unless compelled to do so. Yet in this case we have no authority to consider the appeal upon the merits of the case and only have authority to dismiss the appeal for want of jurisdiction.”

Accordingly, the appeal is dismissed.


author: WALTER, Justice.

text:
    Billy D. CRADDOCK, Appellant, v. William Roy HICKMAN, Appellee.
    No. 4961.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 13, 1977.
    Rehearing Denied Feb. 17, 1977.

      Dicky Grigg, Gibbins & Spivey, Austin, for appellant.
    Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellee.
   WALTER, Justice.

Billy D. Craddock recovered judgment against William Roy Hickman for personal injuries resulting from an automobile collision.

The jury answered the damage issue as follows:

“Answer separately in dollars and cents, if any, with respect to each of the following elements:
(A) Doctor, hospital and medical expenses incurred in the past.
ANSWER: $200.00
(B) Loss of earnings in the past.
ANSWER: $300.00
(C) Loss of earning capacity in the future.
ANSWER: $2000.00
(D) Physical pain, mental anguish in the past.
ANSWER: $500.00
(E) Physical pain and mental anguish which in reasonable probability he will suffer in the future.
ANSWER: $1000.00”

The court sustained defendant’s motion to disregard the $2000 answer to subpara-graph (C) for the reason:

“First, the question was not based on the proper standard for recovery of loss of earning capacity in the future and therefore was an immaterial issue

The plaintiff has appealed and contends there is some evidence of probative force to support the finding for loss of future earning capacity.

Craddock pleaded injuries to his cervical spine, lacerations from glass and injuries to his lower spine and to his body in general; that he had undergone mental and physical pain and suffering and loss of enjoyment of life and will continue to so suffer in the future; and that he had sustained a loss of income earning capacity, in the past and in the future.

No exceptions were made to these general allegations and conclusions of loss of future earning capacity.

No objections were made to the special issues submitted.

Craddock testified substantially as follows:

I am employed by Raymond Hicks. I am married and have six boys. I have a high school education. On September 9, 1974, I was involved in an automobile accident.

He was asked the following questions and he gave the following answers:

“Q . But what did it do to you physically to your body there in the cab when he hit you from behind?
A When I was hit it knocked me back — my head back through the rear glass and broke it, and throwed me into the windshield.
Q All right, at that time did you experience any pain?
A Not right at the moment, but I did when I kinda began to revive myself.
Q All right, did it knock you complete out?
A No, sir, not completely.
Q Did it, what, more or less addled you?
A Yes, sir.
Q All right. Now, what part of your body did you injure in this accident?
A My neck and lower back.”

Craddock testified further substantially as follows:

Dr. Meador prescribed a soft collar for my neck.
I knocked a wisdom tooth loose, broke a cap off and loosened several others. When I was about 11 or 12 years old, I roped a hog off a horse and it jerked me off and I hurt my back. But in the last twenty years before the wreck, I have had no trouble with my back. During World War II, I was shot up pretty bad, but I had recovered from these injuries before the wreck.
Mr. Hicks has a construction crew of five or six men and I am his foreman. I have worked for him about 9 years. I missed about ten days work on account of the accident. Since the accident I am making $3.25 per hour, 25<f an hour more than I was making before the accident. I supervise the jobs and help maintain the equipment. Some of the boys fail to show up for work about once a week and I am forced to run their equipment. I wear this collar and this brace every day especially if I am running a piece of equipment. My work requires me to do heavy lifting and I just can’t do it any more. Before the accident, I could lift anything. Before the accident, I had no trouble operating the bulldozers and could operate one ten or twelve hours a day. Since the accident, I can’t run one only about 5, 6 or 7 hours a day. I give out. The vibration hurts my back and neck. The pain in my head comes from my neck. The pain in my low back hurts “mostly twenty-four hours a day”. Some nights I don’t get much sleep because my back and neck hurts. I am still taking the medicine that was prescribed for me.

When a plaintiff seeks damages for impairment of earning capacity he must establish such damages with the degree of certainty to which it is susceptible. King v. Skelly, 452 S.W.2d 691 (Tex.1970). Crad-dock introduced evidence of his earnings prior to the accident. In City of Houston v. Holden, 336 S.W.2d 193, at page 196 (Tex.Civ.App.- Eastland 1960, writ ref. n. r. e.), we said:

“ . . . Future physical pain, future mental anguish and future loss of earning capacity can be implied from such an injury and it is within the province of the jury to determine the extent of damages. St. Louis Southwestern Ry. Co. of Texas v. Marshall, Tex.Civ.App., 120 S.W. 512 (Writ Ref.); Dallas Ry. and Terminal Co. v. Enloe, Tex.Civ.App., 225 S.W.2d 431; Jarbet Co. v. Hengst, Tex.Civ.App., 260 S.W.2d 88. The loss of earning capacity rather than loss of earnings resulting from an injury is in such cases the determining factor. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710. . . ”

In the case at bar, Craddock has pleaded, proved and secured a favorable finding for “Loss of earning capacity in the future”.

Hickman says because this issue was not limited to “in reasonable probability” it becomes an immaterial issue and cites 3 McDonald, Texas Civil Practice § 12.27.2(b) (1970):

“ . .It should be noted, however, that in its application to special issues, this rule rests upon an implicit assumption that the special issue in question undertakes to submit a material issue and if answered would form a basis for judgment, either alone or in connection with the other findings. Consequently, where the proposed special issue is based upon an incorrect legal theory, and if answered would not affect the outcome of the case, it is immaterial. ‘Failure to object to an immaterial issue cannot convert the immaterial finding into a material finding.’ ” (Emphasis added)

We agree where the proposed special issue is based upon an incorrect legal theory and if answered would not affect the outcome of the case, it would be an immaterial issue. However, we hold the loss of earning capacity in the future issue was a material issue. We are of the opinion the issue was subject to the objection that it was not limited to “in all reasonable probability”. However, no such objection was made and appellee does not have a cross point complaining about the form of the issue; therefore, we are compelled to render rather than remand the cause.

We hold Craddock has introduced some evidence of probative force of the extent and probable permanency of his injuries that will affect his loss of future earning capacity. We hold the record contains some evidence to support the jury’s answers to such issue.

That portion of the judgment denying appellant a recovery of $2,000.00 for loss of future earnings is reversed and judgment is rendered for appellant. In all other respects, the judgment is affirmed.


author: CORNELIUS, Justice.

text:
    In the Interest of Eric Keith SOLOMON, a child. Hardy S. SOLOMON, Appellant, v. Elaine F. SOLOMON, Appellee.
    No. 8397.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 18, 1977.
    Rehearing Denied Feb. 8, 1977.

      Thomas A. Melody, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, Gerdes W. Rice, Asst. Dist. At-tys., Dallas, for appellee.
   CORNELIUS, Justice.

The opinion formerly delivered in this cause is withdrawn and the following is substituted therefor.

Hardy S. Solomon has appealed from a judgment of the Juvenile Court No. 2 of Dallas County which ordered him to pay future child support payments and arrear-age due by the terms of a previous divorce decree. The judgment in question resulted from a proceeding instituted by appellee, Elaine F. Solomon, pursuant to the intrastate or inter-district provisions of the Uniform Reciprocal Enforcement of Support Act. By virtue of those provisions, one claiming that another person owes an obligation of support to a child may file, in a court of this state, a verified petition showing such obligation and seeking enforcement thereof. If the initiating court finds that the petition sets forth facts from which it may be determined that the defendant owes a duty of support, and further finds that another court in this state may obtain jurisdiction of the defendant or his property, the petition and the court’s certificate may be forwarded to the judicial district in which the defendant or his property is found, which court shall act as the responding court in enforcing the support obligation.

Appellee’s petition, which was filed in the District Court of Travis County, alleged that appellant was a resident of Dallas and had an obligation to support the minor child, Eric Keith Solomon, under the terms of a divorce decree rendered by the Domestic .Relations Court No. 3 of Dallas County. Attached to appellee’s petition was a copy of the divorce decree which ordered appellant to pay $75.00 per month child support for his three minor children. The District Court of Travis County forwarded the petition and its certificate to the Dallas County District Attorney, who in turn filed them in the Juvenile Court No. 2 of Dallas County, requesting it to order appellant to pay the support and arrearage due by the terms of the divorce decree. The Juvenile Court No. 2 of Dallas County then conducted a hearing, in which appellant appeared and answered, and entered judgment ordering appellant to pay $75.00 per month child support, together with other periodic payments toward liquidation of $17,125.00 in arrear-age due under the divorce decree’s support provisions.

Apart from the jurisdictional question discussed below, appellant attacks the judgment on three grounds: (1) The divorce decree’s support provisions are fatally ambiguous and therefore not subject to enforcement; (2) the Uniform Reciprocal Act does not authorize an order to pay arrear-age; and, (3) the Uniform Reciprocal Act violates the Texas constitutional provisions exempting the homestead and certain other property from forced sale.

On original submission we concluded that the Juvenile Court No. 2 lacked jurisdiction to enter the judgment complained of because the Domestic Relations Court No. 3, which granted the divorce and originally ordered the support, had continuing jurisdiction, and under Sections 21.24 and 21.45(d) of the Uniform Reciprocal Enforcement of Support Act, it had exclusive jurisdiction of appellee’s claim. Upon careful consideration of appellee’s motions for rehearing, we have concluded that we were in error in our original disposition and that no court had continuing jurisdiction with reference to appellee’s claim for enforcement of the pre-1974 support order.

Section 21.24 of the Uniform Reciprocal Act provides as follows:

“Jurisdiction of all proceedings hereunder is vested in the district court. If the child for whom support is sought is the subject of a suit affecting the parent-child relationship, the court having continuing jurisdiction under Section 11.05 of this code has exclusive jurisdiction of a suit under this chapter.”

Thus, the exclusive jurisdiction provisions of Section 21.24 apply when there has been a suit “affecting the parent-child relationship” which has vested a court with “continuing jurisdiction under Section 11.05 of this code.” Section 11.05 of the Family Code provides that continuing jurisdiction is afforded only to a court which has entertained a “suit affecting the parent-child relationship.” A “suit affecting the parent-child relationship” is defined by Section 11.-01(5) of the Code as a suit brought under Subtitle A of Title 2. Because the parties here were divorced prior to the effective date of Subtitle A of Title 2, the appellee argues, and we agree, that the divorce was not a “suit affecting the parent-child relationship” as that term is defined in the Family Code, and therefore the divorcing court did not acquire exclusive continuing jurisdiction for the purposes of proceedings under the Uniform Reciprocal Act. In speaking of the effect of the Family Code on pre-1974 decrees, the Texas Supreme Court has written in Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974) that:

“. . .no court could have ‘continuing jurisdiction’ based on its jurisdiction of any suit in which final judgment was entered prior to January 1, 1974.”

A harmonizing of the pertinent provisions of the Family Code indicates that the intent of the legislature was to provide that continuing jurisdiction did not attach to any pre-1974 judgment, and to make the term “suit affecting the parent-child relationship” a term of art referring only to a suit instituted after the effective date of the code. There is policy behind the refusal to afford continuing jurisdiction to pre-1974 divorcing courts. By Section 11.17(a) of the Family Code, the legislature sought to implement a plan whereby any continuing jurisdiction over parent-child relationships could be easily ascertained. The clerk of a court obtaining such jurisdiction was directed to transmit that information and other relevant data pertaining to the suit to the State Department of Public Welfare which would be the central and conclusive source of information as to what court, if any, had continuing jurisdiction for the purposes of the Code. The department’s records, however, date back only until January 1, 1974. In order to make the central registry file the sole definitive source of information, all those judgments which the department could not trace — those entered before it began collecting records — were deprived of continuing jurisdiction status.

As the Domestic Relations Court No. 3 did not have continuing jurisdiction as defined by the Family Code, the Juvenile Court No. 2 properly proceeded to enforce appellee’s claim under the Uniform Reciprocal Act.

In his first attack on the judgment appellant argues that the divorce decree’s support provisions are fatally vague and therefore not subject to enforcement. The divorce decree ordered appellant to:

“. . . pay to the plaintiff for the use and benefit of said children the sum of Seventy-five and No/100 Dollars ($75.00) per week to be paid through the Dallas County Child Support Division on Friday of each week, commencing with Friday, August 30, 1968, and each Friday thereafter, until further order of the court . (Emphasis supplied)

Appellant contends that, as there were three children, and after entry of the decree two of them have reached the age beyond which the court can legally order support, the order is ambiguous because it is not clear whether he was to (1) pay the $75.00 per week while all the children are under eighteen and then proportionately reduce the payment as each child reaches eighteen years, or (2) continue to pay the full amount until the youngest child reaches eighteen years. A support order reasonably subject to those differing interpretations has been held fatally vague for the purposes of enforcement by contempt. Ex Parte Slavin, 412 S.W.2d 43, 45 (Tex.1967). But, aside from the fact that this is not a contempt action, we believe the order here is clearly distinguished from that in Ex Parte Slavin. It does not order payment until the children reach eighteen years of age as the order did in that case. It orders the payment of $75.00 per week “until the further order of the court.” There is nothing vague or misleading about such an order. If appellant felt his payment should be reduced when one or more of the children reached eighteen, he had only to apply for a modification or change in the court’s order. Until the order was changed it was clear that appellant was to pay the full $75.00 per week.

Appellant next urges that the provisions of the Uniform Reciprocal Act do not authorize a judgment for arrearages. This point is expressly covered by Section 21.23 of the Code which provides:

“All duties of support, including arrear-ages, are enforceable by a suit under this chapter, irrespective of the relationship between the obligor and the obligee.” (Emphasis supplied)

Appellant’s last point, which argues that the provisions of the Uniform Reciprocal Act violate the Texas constitutional provisions exempting the homestead and certain other property from forced sale, is overruled. The record shows no attempt to collect the judgment by levy of execution upon appellant’s homestead or other exempt property. The provisions of the Uniform Reciprocal Act do not purport to authorize such levy nor do they conflict in any way with the status of property constitutionally exempt from forced sale.

The judgment of the trial court is affirmed.

      . Texas Family Code Ann. Chapter 21 (1974).

      . Three children were born to Mr. and Mrs. Solomon, but only Eric is of the age that his father still has the obligation to support him.


author: CIRE, Justice.

text:
    Walter E. BOYD, Jr., Appellant, v. LIFE INSURANCE COMPANY OF the SOUTHWEST, Appellee.
    No. 1541.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.

      John T. Bentley, Jeffrey H. Hubbard & Associates, Houston, for appellant.
    Robert H. Fisher, Carl, Lee & Fisher, Houston, for appellee.
   CIRE, Justice.

This appeal is from a take-nothing judgment in a usury case.

On October 26, 1973, appellant Walter E. Boyd, Jr. signed a promissory note payable to appellee Life Insurance Co. of the Southwest for a principal sum of $13,500.00 with ten percent annual interest. The note was payable in 180 monthly installments of $145.08 beginning December 1, 1973. It was secured by a vendor’s lien and deed of trust on a piece of property. Boyd paid nine installments on the note, from December 1, 1973 to August 1, 1974. In August, 1974 appellant sold the property because he had encountered difficulty in making the note payments. The principal balance at this time was $13,196.81. At the time of the closing of this sale, Boyd paid $14,785.31 to the insurance company. He understood that part of this amount was a charge or penalty for payment of the note before maturity. He protested this prepayment penalty in writing.

Boyd sued the insurance company, claiming that the prepayment penalty of $1,535.29 was actually interest, and that this amount brought the rate of interest on the note «over the ten percent allowed on such obligations under the usury statute, Tex.Rev.Civ.Stat.Ann. art. 5069-1.02 (1971). After a nonjury trial, the court rendered a take-nothing judgment. There were no findings of fact or conclusions of law requested.

In his sole point of error, Boyd contends that by its judgment the trial court impliedly held that the prepayment charge was not interest and that this was error. We overrule this point. The statutory definition of interest is “the compensation allowed by law for the use or forbearance or detention of money . . . Tex.Rev.Civ.Stat. Ann. art. 5069-1.01(a) (1971). The charge here was not for the use of money, but for the privilege of repaying the loan before maturity. Boyd could have paid the note under the terms set out and avoided any prepayment penalty. Instead, he chose to prepay the note long before maturity. The insurance company accepted Boyd’s prepayment, but charged him for the privilege. This charge was not interest. Gulf Coast Inv. Corp. v. Prichard, 438 S.W.2d 658, 661 (Tex.Civ.App.-Dallas) writ ref’d n.r.e. per curiam, 447 S.W.2d 676 (Tex.Sup.1969).

Affirmed.


author: BARROW, Chief Judge.

text:
    CITIZENS STATE BANK, Appellant, v. Robert E. STEWART, Commissioner of Banking, Appellee.
    No. 15705.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.

      Arthur Mitchell, Mitchell, George & Belt, Austin, for appellant.
    John L. Hill, Atty. Gen. of Tex., Thomas M. Pollan, David W. Pace, Asst. Attys. Gen., Austin, for appellee.
   BARROW, Chief Judge.

Appellant, a state bank located in Carrizo Springs, has appealed from the denial of its petition for a temporary injunction to enjoin appellee from closing the bank and liquidating its assets pursuant to the authority of Art. 342-803. Appellant sought to prevent liquidation of the assets before final determination of whether the bank is in fact insolvent.

We must consider at the outset the Commissioner’s motion to dismiss the appeal on the ground that it is moot because the Commissioner no longer has the assets under his control. The assets were tendered to, and accepted by, the Federal Deposit Insurance Corporation (FDIC) pursuant to Art. 489b, § 7. An uncontradicted affidavit filed in support of the motion to dismiss establishes that as of October 18, 1976, over 90 percent of the gross deposit liabilities of appellant were settled and over 36 percent of the assets were liquidated by the FDIC. This proposition has given us much concern in that the record demonstrates that appellant and its counsel have vigorously undertaken from the outset to prevent the liquidation of its assets.

On Saturday, June 26, 1976, the directors of appellant were advised by the Commissioner that he had concluded that Bank was insolvent. This conclusion was largely based upon the Commissioner’s classification of $2,787,000.00 of Bank’s loans as a loss. Also, the sum of $1,125,400.00 in loans were classified as doubtful, which resulted in a charge-off of $562,700.00. In addition, there was an unexplained shortage of $515,-000.00 on the books of appellant. The Commissioner’s conclusion should not have come as a complete surprise to appellant’s directors in that several of the State bank examiners, as well as examiners from the FDIC, had been working on Bank’s records for about two weeks. Furthermore, an examination as of October 24,1975, had pointed out deficiencies in appellant’s loan procedures and had resulted in a charge-off of the sum of $397,559.47 in questionable loans.

On Monday morning, June 28, the Commissioner was in Carrizo Springs to close appellant. The attorney for Bank was in Laredo at the same time and he secured from the district judge who presides over Dimmitt County, a temporary restraining order, without notice, which restrained and enjoined the Commissioner from interfering with the lawful operation of the bank. The temporary order specifically restrained the Commissioner from closing or undertaking to liquidate appellant pending a hearing on the merits. The bank had already been closed by the Commissioner before the attorney reached Carrizo Springs and read the temporary restraining order to the Commissioner. The bank was reopened about 11:00 a. m. pursuant to this order and stayed open the remainder of that day. However, late that afternoon a hearing was held in Laredo at the request of the Commissioner, and the temporary restraining order was modified to the extent that while the Commissioner was permitted to close the bank, he was enjoined from disposing of the assets pending a hearing which was set for July 7.

A hearing was held on July 7 on appellant’s petition for a temporary injunction. At the conclusion of a full hearing, the trial court dissolved the temporary restraining order and denied appellant’s petition for a temporary injunction. Following this ruling, the Commissioner tendered, and the FDIC accepted, appointment as receiver and liquidator of appellant’s assets. The order denying appellant’s petition for a temporary injunction was signed on July 13, and shortly thereafter, appellant sought to file an original proceeding in our Court to enjoin the Commissioner from disposing of the assets pending on appeal. Leave was denied after it was established that the assets were no longer in the possession of the Commissioner. No motion to advance was filed and the appeal from the denial of the temporary injunction was submitted to our Court on January 5, 1977.

We adhere to our prior decision that the appeal is moot because the Commissioner cannot be enjoined from disposing of assets which are not in his possession. The FDIC has been in exclusive possession of the assets since July 8 and has liquidated a substantial part of them. This procedure was known to appellant at the time of the hearing, and a substantial part of the argument before the trial court related to whether the Commissioner should be permitted to turn the assets over to the FDIC. Nevertheless, appellant did not join FDIC as a party nor seek to stay the court’s order pending the appeal.

The Texas Banking Code provides for the appointment by the Commissioner of the FDIC as receiver. The statute provides that upon the acceptance of the appointment by the FDIC . . the possession of and title to all the assets, business and property of such banking institution of every kind and nature shall pass to and vest in said Corporation and without the execution of any instruments of conveyance, assignment, transfer or endorsement.” Art. 489b, § 7. It is pointed out by one writer that pursuant to these provisions, the FDIC has acted as receiver for all state banks closed in Texas in recent years. Skillern, Closing and Liquidation of Banks in Texas, 26 Sw.L.J., 830, 833 (1972).

The only issue before us at this time is whether the trial court abused its discretion in not restraining the Commissioner from turning over the assets to the FDIC. This has already been accomplished. Since we could not restrain the Commissioner from doing an act which he has already completed, the appeal is moot. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939).

The appeal is dismissed.

      . The statutory references are to Tex.Rev.Civ. Stat.Ann. (1973). Art. 342-803 provides in part:
      “Whenever the Commissioner, through examination, finds that the interests of depositors and creditors of a state bank are seriously jeopardized through its insolvency or imminent insolvency and that it is to the best interest of such depositors and creditors that the bank be closed, and its assets liquidated, he may close and liquidate the bank, unless its board of directors close the bank and place it in his hands for liquidation.”

      . Art. 342-805 gives a state bank closed by the Commissioner the right to bring suit within five days to restrain the Commissioner from liquidating such bank. The trial court is authorized to restrain the Commissioner from liquidating the assets pending final disposition of the suit on the merits. The court is directed to hear the suit as soon as possible, which would indicate that the suit should be heard on a petition for permanent injunction rather than for a temporary injunction.

      . The attorney for FDIC testified at the temporary injunction hearing that the FDIC would not pay off insured depositors unless an insured bank was closed and the assets ordered liquidated. Otherwise, there would be a possibility of the bank reopening and thus no liability by the FDIC to the insured depositors. See Art. 489b, § 3.


author: STEPHENSON, Justice.

text:
    Malynn H. HOWARD, Appellant, v. Gary R. BRIZENDINE, Appellee.
    No. 7901.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 20, 1977.
    Kenneth H. Keeling, Huntsville, for appellant.
    William E. Hornbuckle, III, Huntsville, for appellee.
   STEPHENSON, Justice.

Gary Brizendine brought this action in the District Court of Walker County to modify a divorce decree by reducing the child support and changing the visitation rights. Malynn Howard filed a cross-action seeking judgment for delinquent child support payments. Trial was before the court and judgment was rendered reducing the child support, changing the visitation provisions and denying judgment on the cross-action. The parties will be referred to here by name. No complaint is made on appeal as to the support reduction or visitation rights.

A brief statement as to the history of this case is necessary in order to understand the points of error raised. These parties were divorced in the District Court of Walker County, July 20, 1970. Mrs. Howard was plaintiff, and she was awarded custody of the two minor children born of such marriage. Brizendine was ordered to pay $100 per month per child until each reached the age of eighteen years. The divorce decree also contained a provision showing that these parties had acquired community property which they had agreed to divide by written agreement and had asked the court to approve. Such agreement was attached to the judgment and approved by this court. That argeement also covered the provision as to custody and support for the children as set forth in the judgment.

October 28, 1974, Mrs. Howard, having remarried and moved to the state of Washington, filed a petition for support under the Uniform Reciprocal Enforcement of Support Act (U.R.E.S.A.) in Washington. Such action was then filed in the District Court in Walker County, and Brizendine was served with a notice to show cause he should not be punished for failure to comply with the child support order. Then on December 17,1974, the District Court in Walker County heard such petition and entered an order denying all relief including denial of a judgment for all arrearages of child support. Mrs. Howard did not appear, but the judgment showed she was represented by the Assistant County Attorney of Walker County.

July 8, 1975, Brizendine filed this present action and Mrs. Howard filed a cross-action, as mentioned above. The trial court filed findings of fact, which included the following in essence: that there was no appeal from the December 17, 1974, judgment in the U.R.E.S.A. action; that such action involved the same subject matter as the cross-action filed by Mrs. Howard in the present suit. The court also filed conclusions of law in part as follows: that the judgment of December 17, 1974, was a final appealable judgment; that such judgment is res judi-cata as to the issue of child support arrear-age from July 20, 1970, until December 17, 1974, when the judgment was entered; that the instant cross-action constitutes a collateral attack upon the December 1974 judgment.

Mrs. Howard’s first series of points of error attack the court’s finding that the U.R.E.S.A. action and the present cross-action involve the same subject matter, and the conclusion that the first judgment is res judicata as to the cross-action and the conclusion that the present cross-action is a collateral attack upon the U.R.E.S.A. judgment.

An examination of the petition filed by Mrs. Howard in the U.R.E.S.A. case reveals that a prepared form was used. The paragraph as to the allegation about the arrears of child support has the words “not established” written in. The prayer contains the following:

“(2) That the respondent be directed to pay petitioner the above-stated arrears of support and that petitioner have and recover judgment against the respondent for said amount.”

The affidavit attached to such petition is also a form, and the paragraph in reference to the amount of arrearage also has the words “not established” written in. The notice to show cause served upon Brizen-dine orders him to appear and show cause why he should not be held in contempt of court. However, in spite of all those matters, the judgment rendered by the trial court contained the following:

“And it appearing to the Court, after full and complete hearing, that all relief should be denied to Petitioner, MALYNN HARDY HOWARD, and that judgment of all arrearages of child support should be and all things denied;
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court that all relief herein is denied, the Petitioner shall recover nothing of and against Respondent, and that Respondent, GARY RICHMOND BRIZENDINE shall go hence without day, and that all costs of this proceeding are to be taxed against Petitioner.”

Tex. Family Code Ann. § 14.09 (1975), which became effective before the U.R.E. S.A. action was filed, provides in part that an order for child support may be enforced by contempt and also that a judgment may be rendered against the defaulting party which may be enforced by any means available for enforcement of judgments for debts. In other words, at the time the U.R.E.S.A. action was filed, the trial court had statutory authority to consider and render a judgment on the issue of child support arrearage. Mrs. Howard invoked that jurisdiction, and the question was adjudicated.

Regardless of whether the trial court in the U.R.E.S.A. case was right or wrong in including the matter of support arrearage in its judgment, there is no question as to whether it had jurisdiction to determine that question and did. That judgment became final and is res judicata as to the issues determined. See the cases collated in Barnett v. Maida, 523 S.W.2d 325, 327 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.).

Judgment AFFIRMED.


author: MOORE, Justice.

text:
    Mary L. SUDDARTH et al., Appellants, v. Laura POOR et vir., Appellees.
    No. 980.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 20, 1977.
    Rehearing Denied Feb. 17, 1977.
    William Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.

      Bill J. Stephens, Stephens & Stephens, Dallas, for appellees.
   MOORE, Justice.

This is a suit to cancel a deed and for conversion of certain funds. The plaintiff, Mary L. Suddarth, brought suit by next friend, A. H. Mohon, against her niece, Laura Poor and husband, Arthur Poor, defendants, to set aside a deed by which she conveyed to defendants her home and approximately 9.5 acres of land and reserved a life estate. Plaintiff alleged that the defendants had unduly influenced her and that she lacked mental capacity to execute the deed. Plaintiff further alleged that the defendants had converted to their own use funds received from two checks totaling $7,200.00 which she endorsed and instructed defendants to deposit to her account. The defendants answered with a general denial and filed a motion for summary judgment asserting that the issues in the present suit had been adjudicated in Cause No. 74-1036-C styled Mary L. Suddarth v. Laura Poor, et vir, and therefore the judgment in that case was res judicata as to all matters pled by the plaintiff. Trial was held before a jury and the case was submitted on three special issues. In response to the special issues the jury (1) refused to find that Mrs. Suddarth signed the deed because of undue influence by the defendants; (2) found that Mrs. Suddarth had mental capacity to execute the deed in question; and (3) refused to find that defendants converted the funds in controversy. Based upon such findings, the trial judge entered a judgment that the plaintiff take nothing, from which the plaintiff perfected this appeal. The parties will hereinafter be referred to as they appeared in the trial court.

We reverse and remand.

Plaintiff, Mary L. Suddarth, was approximately 89 years of age at the time of trial and lived at her home situated on a 9.5-acre tract of land in Dallas. She had been a widow for many years and had no children. The evidence shows that in addition to her home, which was valued at several hundred thousand dollars, she owned a large amount of stock in various corporations. Defendant Laura Poor was her niece and is the daughter of Mrs. Suddarth’s sister, Evelyn Goodnight. Mrs. Suddarth’s nearest relatives consisted of several brothers and sisters. In 1962 she suffered a stroke. Shortly thereafter Laura Poor and her husband prepared a will which Mrs. Suddarth signed. Under the terms of the will she left her home to Laura and left the remainder of her estate to her brothers and sisters. In 1963 Mrs. Suddarth revoked the 1962 will by a new will in which she directed that her entire estate be sold and the proceeds divided among a certain group of designated relatives which did not include Laura Poor. On May 12, 1972, Mrs. Suddarth was hospitalized for a period of twelve days as a result of a fall in her home. According to the testimony of her family physician, Dr. Goode, she suffered from cerebral arteriosclerosis and was not mentally competent at that time. In July 1972, after she had returned home from the hospital, Laura Poor and her husband employed an attorney to prepare a deed conveying the Sud-darth home situated on the 9.5-acre tract of land to Laura Poor and Arthur Poor and reserving a life estate to the same in Mrs. Suddarth. The deed was signed on July 31, 1972. On August 2, 1972, she executed a new will in which she revoked all prior wills and bequeathed to Laura Poor her home situated on the 9.5 acres of land reciting that it was the same property she had deeded to Laura Poor and husband, Arthur Poor, on July 31, 1972. The will was prepared by Wynn Stanton, the same attorney who was employed by defendant to prepare the deed.

Shortly after executing the deed to Laura and Arthur Poor, Mrs. Suddarth decided to give .8 of an acre off her 9.5-acre tract to her gardener, a faithful employee for many years. When she employed an attorney to prepare a deed she found that the .8 acre tract was included in the deed to Laura and Arthur Poor. Prior to this time, Mrs. Sud-darth was apparently under the impression that the deed to the Poors did not embrace 3.61 acres described as being across a small creek that transcended her property and from which the .8 acre tract was to be taken. Her attorney, Wynn Stanton, testified that she became upset and had him prepare a quit claim deed to the .8 acre tract which the Poors subsequently executed at the plaintiff’s request.

In September 1973 Mrs. Suddarth employed E. L. Markham, Jr., attorney at law, to set aside the deed which she executed to Laura and Arthur Poor. On September 28, 1973, Markham addressed a letter to Dr. and Mrs. Poor advising them that he had been employed to regain title for the plaintiff. He advised them that Mrs. Suddarth did not recall signing the deed or the contents thereof and requested them to voluntarily reconvey the property to her. When they refused, this litigation commenced.

The paramount issues in the case were (1) whether Mrs. Suddarth had mental capacity to execute the deed on July 31,1972, and (2) whether she was unduly influenced to sign the same.

The medical testimony pertaining to the issue of the plaintiff’s mental capacity was voluminous and detailed. Dr. James A. Goode testified that he had treated Mrs. Suddarth in 1962 when she had suffered a stroke and from May 31, 1972, until June 11,1972, after she had suffered a fall in her home. According to his testimony she was suffering from organic brain syndrome and arteriosclerosis; and that during the period from May 31, 1972, until June 11, 1972, she was incompetent and unable to understand the nature of her business transactions. He further testified that a person suffering from organic brain syndrome may rapidly return to mental alertness, but such is frequently an intermittent situation. He was unable to express an opinion as to her competency on July 31, 1972, the date on which she signed the deed. Dr. R. M. Flasdick testified he treated Mrs. Suddarth from September 12-19,1972, while in the hospital for dehydration. He was of the opinion that she was mentally incompetent during this time, but expressed the opinion that she was probably competent on July 31 when she signed the deed. Dr. Clay Griffith testified he saw Mrs. Suddarth on October 2, 1974, along with Dr. John T. Hol-brook, and he diagnosed her problem as organic brain syndrome. According to his testimony she did not at that time know the extent of her property and was incapable of making decisions. He was unable to say what her condition was when she executed the deed in 1972. Dr. John T. Holbrook, a psychiatrist, testified that he found Mrs. Suddarth to be suffering from brain damage and loss of memory. He testified she suffered from organic brain syndrome and had suffered such condition for two to five years before his examination. When asked what effect the condition had on Mrs. Sud-darth, he testified that it would affect her ability to transact business in that she would be deprived of her normal elements of judgment and would be more open to suggestion than a person not suffering from such condition. He testified that if she suffered from this condition, prior to the signing of the deed as Dr. Goode found she had, she was probably still suffering from the disease on the date she signed the deed in 1972. Dr. David Webb testified that he saw Mrs. Suddarth intermittently between January 27 and July 11, 1972, and thought she was capable of handling her business transactions. He saw her next on September 21, 1972 and again felt she was competent. He declined to express an opinion as to her mental competence on July 31, 1972, the date on which she executed the deed in question.

Virginia. Upshaw, a practical nurse who was employed to take care of Mrs. Suddarth after she returned home from the hospital on June 12, 1972, testified, in substance, that from the time the plaintiff was discharged from the hospital until she signed the deed, she was unable to manage her affairs and did not know what she was doing. Other lay witnesses were called by both parties. Some of the witnesses testified, in substance, that she was competent while others testified that she was incompetent.

Upon the issue of undue influence, numerous witnesses were called by both parties. While there was sufficient testimony to support the jury’s finding that Mrs. Sud-darth was not unduly influenced, there was also ample testimony to show undue influence.

In view of the fact that we do not decide the case on the basis of whether there was sufficient evidence to support the jury’s verdict, we do not find it necessary to set forth all of the evidence in detail. It will suffice to say that we believe there was sufficient probative evidence to authorize the jury to answer such issues either in the affirmative or the negative.

Under her first point of error, plaintiff seeks a reversal on the ground that the trial court erred in admitting her last will and testament into evidence over her objection that the contents of the will were a privileged communication between her and her attorney E. L. Markham, Jr. We sustain the contention. In connection with this point the record reveals that counsel for defendants called Mrs. Suddarth’s attorney, E. L. Markham, Jr., as a witness and inquired as to whether he had in his possession the most recent will executed by Mrs. Suddarth. After he replied that he had the will, counsel for defendants requested him to produce it for inspection. At this point, both Markham and Mrs. Suddarth objected on the ground that her will was a privileged communication. After a hearing outside the presence of the jury, the trial court ruled that the will was admissible and, accordingly, overruled plaintiff’s objection, thus permitting defendants to offer the same into evidence before the jury.

The courts are in accord upon the general rule that while a client is still alive his communications with his attorney concerning the preparation of the client’s will are privileged. Krumb v. Porter, 152 S.W.2d 495 (Tex.Civ.App., San Antonio 1941, err. ref’d); see 61 Tex.Jur.2d Witnesses, see. 114 and the cases cited therein; see also 81 Am.Jur.2d Witnesses, sec. 201; 66 A.L.R.2d 1302. An instrument which itself constitutes a communication between an attorney and client and owes its existence to an effort to transmit information from one to the other is privileged to the same extent as any other communication between attorney and client and a court may neither require it to be produced nor compel the giving of evidence as to its contents. See 81 Am.Jur.2d sec. 203 and the cases cited therein.

For reasons hereinafter stated, we are of the opinion that the error resulted in harm to the plaintiff as we shall attempt to demonstrate under our discussion of the following point of error.

By her second point of error plaintiff complains of the action of the trial court in permitting defendants to call her attorney as a witness and then permitting defendants to attack his credibility by showing his non-final conviction of a crime. Plaintiff objected to the testimony on the ground that a party is prohibited from impeaching his own witness. The court overruled the objection and Markham was compelled to admit that he had recently been convicted in the United States District Court of making a false statement to an agency of the United States government. He further testified that such conviction was pending on appeal. There is nothing in the record to indicate that the defendants were surprised by any of his testimony pri- or to their attempt to impeach him and defendants do not so contend. Plaintiff, Mrs. Suddarth, contends that such evidence was immaterial to any issue in the ease and was prejudicial and calculated to injure her right to a fair trial. We sustain her contention.

It is an elementary, common rule that a party may not impeach his own witness in the absence of a showing of surprise. See 62 Tex.Jur.2d Witnesses, secs. 323, 327. It is also the rule that a party may not impeach his own witness by showing that the witness has been convicted of a crime even though surprise is shown. Bernard’s, Inc. v. Austin, 300 S.W. 256 (Tex.Civ.App., Dallas 1927, err. ref’d); see also 62 Tex.Jur.2d Witnesses, sec. 329 and the cases cited therein. Markham was not a party to the suit and evidence of his conviction was immaterial to any issue in the case. Obviously, such evidence was improper and prejudicial and its admission constituted error.

This brings us to a consideration of the question of whether the improper evidence resulted in harm to the plaintiff. In Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216 (1958), the rule for determining harm was stated as follows:

“. . . This question is to be determined as a matter of our judgment in the light of the record as a whole. Pittman, in order to discharge his burden of establishing the inadmissible evidence was prejudicial, was not required to prove or demonstrate that but for the erroneous action of the trial court in admitting the testimony, a different judgment would necessarily have resulted. See Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, 192; Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115. It was only necessary that he establish that the evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. See American General Ins. Co. v. Jones, 152 Tex. 99, 255 S.W.2d 502; Missouri-Kansas-Texas Railroad Co. v. McFerrin, Tex., 291 S.W.2d 931, 944; Rules 434 and 503, Texas Rules of Civil Procedure.”

The record reveals that Mrs. Suddarth employed E. L. Markham, Jr., as her attorney in August 1973. She was referred to him by her nurse, Virginia Upshaw, who had once worked for Markham's mother. According to Markham, he was employed for the purpose of drafting a new will for the plaintiff and for the purpose of setting aside the deed which plaintiff executed to Laura and Arthur Poor on July 31, 1972. Shortly after being employed he drafted a will which was executed by Mrs. Suddarth on September 27, 1973. By this will Mrs. Suddarth revoked her will of August 1972 in which she bequeathed her home to Laura Poor and directed, in substance, that all of her property including her home be sold except for certain specified bequests and that the proceeds therefrom be divided into equal parts and distributed to eight of her relatives named in the will. Although neither Laura Poor nor her mother, Mrs. Goodnight, was among those eight named beneficiaries a specific bequest of some stock was made to Mrs. Goodnight. Laura Poor was named as a contingent beneficiary to the stock bequest, to take only in the event her mother, Mrs. Goodnight, predeceased the testatrix. On January 23, 1974, plaintiff executed another will that Markham had prepared for her. By the 1974 will she again directed her executor to sell all of her property, including her home, except for certain specified items and that the proceeds be divided into ten equal parts and distributed to certain relatives named therein. Defendant, Laura Poor, was not mentioned in this will. In both wills Mrs. Suddarth named E. L. Markham, Jr., as her independent executor. She authorized her executor to sell her home as well as all her other property, except certain specified bequests and to divide the proceeds. She provided that Markham was to receive the usual and customary executor’s fees.

After being called as a witness and being compelled to disclose the contents of Mrs. Suddarth’s last will showing that he had been appointed independent executor and was to receive a fee therefor, Markham testified that he followed Mrs. Suddarth’s instructions in filing the present suit to cancel the deed in question and followed her instructions in preparing the wills. Mrs. Suddarth was not called as a witness and there is nothing in the record indicating that Markham failed to act in accordance with her instructions or that he unduly influenced her in filing suit to set aside the deed to defendants or in preparing the wills. Despite the fact that there was no reason for doing so, defendants nevertheless chose to call Markham as their own witness and then proceeded to discredit him by showing he had been convicted of a crime.

We have found no decision declaring it to be harmless error where a party calls his adversary’s attorney to the stand and requires him to admit that he has been convicted of a crime. While Markham’s conduct is not to be condoned, the fact that he had been convicted of a crime had nothing whatever to do with the merits of Mrs. Suddarth’s cause of action and from its nature was calculated to be damaging to her. It had the effect of showing that her attorney was disreputable and could not be trusted and was therefore calculated to cause the jury to answer the special issues contrary to the way he advocated. He was thoroughly discredited in the mind of the jury and it was reasonably probable that the jury considered such in arriving at a verdict for defendants. We do not believe the error was harmless nor do we believe that an instruction from the court would have removed the mar. To hold otherwise, we believe, would set a precedent that would invite similar attacks on opposing counsel.

Further, we think the error of the court in admitting Mrs. Suddarth’s last will into evidence before the jury showing that she had appointed Markham as her executor to sell her home after her death, which act would increase his executor’s fees, together with the error of the court in permitting defendants to show he had been convicted of a crime was calculated to cause and probably did cause the jury to return a verdict in favor of defendants on the theory that it would be better to leave her home in the hands of Mrs. Poor rather than to turn it over to a disreputable executor. While it may be that Mrs. Suddarth used poor judgment in selecting Markham as her attorney and as her independent executor, proof of such facts would serve no purpose other than to cause the jury to answer the issues favorable to the defendants. For this reason, we think the error of the court in admitting the evidence resulted in harm to Mrs. Suddarth and amounted to such a denial of her rights as was calculated to cause and probably did cause the rendition of an improper judgment.

Under points five and six plaintiff seeks a reversal on the ground that the jury findings (1) that she had mental capacity to execute the deed, and (2) that she was not unduly influenced are against the great weight and preponderance of the evidence. In view of our decision to reverse and remand the cause on other grounds, we do not reach these points. However, if these points were reached, we would hold that the evidence is such that we do not believe we would be justified in finding that the verdict and judgment is contrary to the overwhelming weight and preponderance of the evidence.

By her seventh point plaintiff contends that the finding by the jury that defendants did not convert certain funds which they withdrew from the Oak Cliff savings account in which Mrs. Suddarth was a joint depositor is against the great weight and preponderance of the evidence. The controversy here was brought about by the fact that the City of Dallas purchased a small part of Mrs. Suddarth’s homeplace for right-of-way purposes subsequent to the time she conveyed title to Laura Poor and retained a life estate. While the record is unclear, the City apparently issued a check to Mrs. Suddarth for $4,683.00 in payment for damages to her life estate and issued a check to Laura Poor for $2,517.00 for damage to her remainder interest. Mrs. Sud-darth was the sole payee on the larger check while the smaller check was made payable to Laura and Arthur Poor and Mrs. Suddarth. The undisputed testimony shows that both checks were endorsed by Mrs. Suddarth and turned over to Dr. Poor with the stipulation that the funds were to be used to make sure that Mrs. Suddarth would never be placed in a rest home and to provide a place for her and her sister, with the remainder to be used for repairs for her home. The record reveals that the funds were originally deposited in the Oak Cliff Savings and Loan Association in a joint account of Laura and/or Arthur Poor and/or Mrs. Suddarth. Approximately one year later Laura Poor withdrew the funds and deposited the same in the American Savings Association in the joint account of Evelyn Goodnight and/ or Laura Poor or Arthur Poor. As far as the record reveals, these funds remained on deposit in that account on the date of the trial.

By Special Issue No. 3, the jury was requested to find whether defendants converted the sum of “(a) $4683.00” to which the jury answered “No.” Immediately following this inquiry the jury was instructed that if they had found in response to Special Issues 1 and 2 that Mrs. Suddarth had not been unduly influenced and that she had mental capacity, then they were not to answer “b” which read as follows: “b. 2517.00_” In view of the jury’s finding that plaintiff was not unduly influenced and had mental capacity, section “b” was not answered. As we understand the record, the ownership of the funds to the extent of $2,517.00 depends on a final determination of whether the deed to Laura and Arthur Poor is found to be valid. In view of our decision to reverse and remand for a new trial, the question of the validity of the deed is yet to be determined. Therefore, the take-nothing judgment rendered against Mrs. Suddarth with regard to these funds is superfluous and forms no basis for a judgment in favor of defendants.

With regard to the $4,683.00 which the jury refused to find was converted by the defendants, the undisputed proof shows Mrs. Suddarth was the sole payee on the check issued by the City of Dallas. It is likewise undisputed that defendants took the funds in trust to be used for her benefit. Defendants admit that they had these funds at the time of trial. Whether the deed executed by plaintiff to defendants is valid or not, the $4,683.00 paid to her by the City of Dallas as damages to her interest in her homeplace became her funds. To allow the defendants to retain these funds would constitute unjust enrichment. Under the circumstances, we agree with the plaintiff that the take-nothing judgment denying her a right to recover the $4,683.00 entrusted to the defendants is against the overwhelming weight and preponderance of the evidence. Accordingly, the judgment denying her a recovery on her cause of action for conversion is reversed and remanded.

Other matters complained of by the plaintiff will not be likely to arise upon another trial and for that reason we will forego a discussion of those points.

This brings us to the defendants’ crosspoints. In the first crosspoint the defendants contend that the trial court erred in overruling their motion for instructed verdict after plaintiff rested because there was no evidence of probative force to overcome the presumption of plaintiff’s mental capacity to .execute the deed. Similarly, crosspoint two makes the same complaint concerning the question of undue influence. An instructed or directed verdict is proper only when there is no evidence of probative force to support a necessary issue. Evans Advertising Agency, Inc. v. Morphew, 525 S.W.2d 56 (Tex.Civ.App., Tyler 1975, no writ); Stephenson v. O’Neal, 433 S.W.2d 804 (Tex.Civ.App., Houston [1st Dist.] 1968, writ ref’d n. r. e.); Owens v. Ridgeway, 395 S.W.2d 704 (Tex.Civ.App., Amarillo 1965, writ ref’d n. r. e.). As stated, we are of the opinion that there was adequate testimony on both the issue of mental capacity and the issue of undue influence to raise an issue and create a question of fact for the jury. Consequently, defendants’ motion for an instructed verdict on such issues was properly refused. Crosspoints one and two are overruled.

Crosspoint three complains of the trial court’s refusal to grant an instructed verdict in favor of the defendants on plaintiff’s cause of action for conversion. What we have heretofore said with regard to the issue of conversion renders further discussion unnecessary. The point is overruled.

By their fourth crosspoint, the defendants contend that the trial court erred in refusing to sustain their plea of res judi-cata. Defendants argue the dismissal of Cause No. 74-1036-C hereinabove referred to was a final judgment disposing of all issues in the present suit. We cannot agree with this proposition. Judgment granting the plea in abatement specifically stated that the suit was dismissed due to the plaintiff’s lack of mental capacity to prosecute her suit in her own right at that particular time. Obviously, the judgment entered in that proceeding would not be res judicata and stand as a bar to all issues in the present suit because the only issue litigated in that proceeding was whether Mrs. Sud-darth was non sui juris at that particular time. The crosspoint is without merit and is overruled.

The judgment is reversed and the cause is remanded for a new trial.

      . The record reveals that in the prior litigation Mrs. Suddarth sought to set aside the deed on the ground of undue influence and lack of mental capacity. Defendants answered that suit with a plea in abatement alleging Mrs. Sud-darth was mentally incompetent and unable to manage her affairs. After hearing the plea in abatement in that cause, the trial court found that Mrs. Suddarth was mentally incompetent and unable to manage her own affairs and had no guardian. For this reason the trial court entered an order sustaining the plea in abatement in Cause No. 74-1036-C on December 23, 1974. The present suit was filed by A. H. Mohon as next friend of Mrs. Suddarth under the provisions of Rule 44, Tex.R.Civ.P. Defendant’s motion for summary judgment in the present suit was overruled in the final judgment entered in the present suit.


author: BISSETT, Justice.

text:
    James Micic BRIGHT, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Appellee.
    No. 1129.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 26, 1977.
    Rehearing Denied Feb. 17, 1977.
    Fisher Alsup, Jr., Alsup & Alsup, Corpus Christi, for appellant.

      Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a summary judgment which was rendered in favor of New York Life Insurance Company, the insurer in a life insurance policy and defendant in the trial court. James Micic Bright, the plaintiff, has appealed.

The facts are undisputed. The plaintiff made application to the defendant insurer for a family life insurance policy on May 29, 1968. The application provided that the insurance applied for would take effect on June 1, 1968. Subsequently, the defendant issued such a policy on June 28,1968, which stated: “Policy date June 1, 1968”. The policy provided for $10,000.00 whole life insurance on the life of the plaintiff, $2,700.00 term life insurance on the life of his wife, and $2,000.00 term life insurance on the life of each of his children.

James M. Bright, Jr., a son of the plaintiff, who was born on August 22, 1953, died on August 3, 1975. Demand was made on the defendant for payment of $2,000.00 because of the death of James M. Bright, Jr. (the deceased). Payment was refused. The plaintiff then filed suit to recover death benefits allegedly due and payable under the policy, plus statutory penalty and reasonable attorney’s fees.

The policy, under the section entitled “INSURANCE BENEFIT”, provides, in part:

“A child of the Insured shall not be covered under this policy . . . after the policy anniversary date on which such child’s age is 22. . . .”
******
“ . . . The insurance provided on the life of each child covered under this policy is, term insurance expiring on the policy anniversary on which such child’s age is 22. . . . ”

The policy, under the section entitled “GENERAL PROVISIONS”, provides, in part:

“Every reference in this policy to . ‘age’ means age nearest birthday. . . ”
******
“ . . . Policy years . . . and anniversaries will be determined from the policy date.”

The plaintiff, in summary, contends that the trial court erred in rendering summary judgment for the defendant because 1) the policy provided coverage for the deceased at the time of his death; 2) the language of the policy when read in the light of everyday meaning of the words used clearly indicates the intention of the parties to be that the deceased was covered by the policy at the time of his death; 3) the trial court, in effect, construed words of limitation in favor of the insurer, rather than against it; and 4) the trial court ignored the rule of construction that a specific provision in the policy, i. e., that a child shall be covered until the policy date on which said child’s age is 22, controls over a general provision, i. e., that is a child shall be covered until he has attained the age of 22, computed to his nearest birthday.

It is the defendant’s position that the policy is clear and unambiguous and that, therefore, the trial court did not have occasion to resort to rules of construction. The defendant argues that under the express provisions of the policy the basic term life insurance upon the life of the deceased expired on the June 1, 1975 anniversary of such policy at which time the deceased’s age, as defined in the policy, was 22 years.

It is settled law that an insurance policy, like any other contract, must be considered as a whole, and effect will be given to each part where reasonably possible. National Security Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943 (1953). When there is uncertainty or ambiguity as to the meaning of any particular provision in the policy, the courts will construe the provisions liberally in favor of the insured and strictly against the insurer, especially so when dealing with words of exception or limitation. Ramsay v. Maryland American General Insurance Company, 533 S.W.2d 344 (Tex.Sup.1976).

However, it is equally well settled that there is no occasion for a court to construe a provision in an insurance policy where the wording thereof is clear and unambiguous, for the courts are bound to adhere to the language contained in an insurance contract as the authentic expression of the intent of the parties, and it must be enforced as written, where its wording is plain and certain. This means that the terms and provisions of an unambiguous insurance contract (policy) cannot be enlarged or diminished by judicial construction, since the courts cannot make a new contract for the insured and the insurer where they themselves have employed express and unambiguous language. General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960).

The policy anniversary date in question was June 1, 1975. On that date, the deceased was alive, and his age was 21 years, 9 months and 9 days. On the day of his death, August 3, 1975, the deceased’s age was 21 years, 11 months and 12 days.

The provisions of the policy here in question are clear and unambiguous. “Age”, for all purposes of the policy, is defined as age according to the nearest birthday of the person in question. The policy does not define “age” as being the attained age of the person in question, and there is nothing in the policy, when considered as a whole, that will support a contention that the parties intended “age” to mean attained age.

With respect to the June 1, 1975 policy anniversary, the deceased’s nearest birthday was August 22, 1975, when he would have reached the age of 22 years had he lived another 19 days. Under the definition of “age” as set out in the policy, the deceased’s age was 22 years on June 1, 1975, and the term policy on his life terminated on that date.

The policy provisions in question in this case do not reasonably lend themselves to the effect contended by the plaintiff. There is no occasion to resort to judicial construction of such provisions. The contract of insurance must be enforced as made. The trial court correctly rendered summary judgment for the defendant.

We have carefully considered all of the plaintiff’s points of error. They are all overruled.

The judgment of the trial court is AFFIRMED.


text:
    The UNIVERSITY OF TEXAS SYSTEM, Appellant, v. Andy HAYWOOD, Jr., Appellee.
    No. 12491.
    Court of Civil Appeals of Texas, Austin.
    Jan. 26, 1977.

      John L. Hill, Atty. Gen., David A. Talbot, Jr., Asst. Atty. Gen., Austin, for appellant.
    Richard F. Jacobs, Colbert & Mullen, Austin, for appellee.
   SHANNON, Justice.

This is a workmen’s compensation case. The University of Texas System is appellant, and Andy Haywood, Jr., is appellee. Appellee, Andy Haywood, Jr., an employee of The University of Texas System, injured his lower back on June 13, 1975, as he was trying to catch a pipe which rolled from a truck.

The trial was to a jury. The jury answered special issue number one that the total incapacity sustained by Haywood as a result of the injury, was permanent. Judgment was entered for total and permanent disability. We will affirm that judgment.

Appellant attacks the judgment by seven points of error. Five points concern claimed error in admitting deposition testimony of Dr. D. A. Baggett. Point six claims that there was insufficient evidence to support the jury’s answer to special issue one. Point of error seven is that the jury’s answer to special issue one was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

By counterpoint appellee maintains that appellant waived appellate consideration of the points of error concerning admission of the deposition testimony because appellant failed to properly object to that testimony.

As a part of its trial strategy appellant wished to avoid objecting to Dr. Baggett’s deposition in the presence of the jury. To that end appellant undertook to object to the deposition in a pre-trial conference held immediately prior to the beginning of the trial.

Before our examination of appellant’s objections, an explanation of the positions of the parties concerning Haywood’s physical condition is necessary. Appellant claimed that Haywood experienced only a back strain or sprain in the accident of June 13. Appellee’s effort, to the contrary, was to develop through the medical testimony that Haywood suffered a much more serious and long lasting injury, an intervertebral disc injury. The character of the back injury, of course, was highly pertinent to the duration of Haywood’s disability.

The following sets out counsel’s objections to Dr. Baggett’s deposition.

COUNSEL: “. . . I think any mention of a disc injury is not admissible, and that is why we are objecting to major portions of the deposition.
“The basis of our objection is that only a doctor and not a layman can testify to a diagnosis of a back injury, and in this case there are three doctors who saw this man and there has been no diagnosis, none, no diagnosis of an injury to the disc. All of them are in agreement that it was a muscle strain or muscle sprain.
“I just make one more point here, your Honor. Number one, we would like to renew our objection to the portion of Dr. Baggett’s deposition dealing with a herniated disc and we want to just find out which way would be most convenient for it. We would like to have a running objection to all the testimony.
THE COURT: “This is all in the record and you will have your objection as you have stated it to any questions of or testimony of Dr. Baggett with reference to a ruptured disc.
THE COURT: “All of the objections that you have stated to any testimony of Dr. Baggett or any questions of Dr. Baggett with respect to herniated disc.
COUNSEL: “Yes, Your Honor, and just one final thing, Your Honor. We would like to move The Court that the facts upon which Mr. Jacobs [appellee’s counsel] relies in asking his hypothetical question about a herniated disc — I think that is probably on the last page of the Direct—
COUNSEL: “ — that if he does not prove the facts upon which that hypothetical question is based, we would like an instruction from The Court that they disregard all testimony regarding any kind of a herniated disc.
THE COURT: “All right. Will you present that request at the time if you think he has not?”

In the trial, appellant permitted Dr. Bag-gett’s deposition to be read into evidence without objection. As is usual in such cases the doctor testified to the anatomy of the vertebral disc, and to the classic signs and symptoms manifested by one suffering a disc injury. Dr. Baggett also explained the physiological consequences of a disc injury to the patient and the physical limitations most likely imposed upon the patient. Based upon such responses, Dr. Baggett was asked several hypothetical questions regarding whether or not Haywood had sustained a disc injury. The answers to the hypothetical questions tended to show that Haywood had sustained a disc injury.

A valid objection to the offer of evidence is one which names a particular rule of evidence which will be violated by the admission of the evidence. De Garca v. Galvan, 55 Tex. 53 (1881), Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (1938). The purpose of requiring a specific objection is, of course, to enable the trial court to understand the precise question and to make an intelligent ruling and to afford the offering party an opportunity to remedy the defect if possible. 1 McCormick and Ray, Texas Law of Evidence, § 24 (2nd ed. 1956).

A reading of appellant’s objections to Dr. Baggett’s deposition shows that counsel did not specify a particular rule of evidence which would be violated by the admission of the deposition. Furthermore, the objection was not directed to a particular question. As a result, the trial court never had the opportunity to understand the precise objection to a particular question. By objecting generally to the deposition as a whole, appellant waived whatever complaints he may have had concerning the deposition testimony.

Points of error six and seven require a review of the statement of facts to determine whether the jury’s answer of permanent disability was supported by the evidence. Andy Haywood is a twenty-four year-old laborer who has an eighth grade education. His total employment experience consisted of heavy work at Hobby Horse Stables, the Villa Capri Restaurant, and the University of Texas. For example, at the University of Texas his duties consisted of handling a jackhammer, washing walls, digging ditches, and driving a dump truck. At the time of his injury he was working as a laborer at the University’s plumbing shop.

After the injury, the pain was so severe that Haywood cried. Upon examination, Dr. Baggett placed Haywood in Bracken-ridge Hospital where he remained for ten or eleven days. After he was released from the hospital, Haywood saw Dr. Baggett several times. Dr. Baggett prescribed pain pills and recommended that he return to work. Haywood returned to work for about three and a half days during which time he was “hurting.” Haywood then was examined by two orthopedic surgeons.

After the injury Haywood has experienced pain in his back and legs when he lifts heavy things, stands for long periods of time, rides in automobiles, or sleeps. He has resorted to sleeping on the floor in an effort to ease the pain.

Being unable to continue work at the University, Haywood has endeavored to obtain other employment. He has been unable to hold a job because the pain in his back has hampered his performance of the job duties. Also, he has tried unsuccessfully to find employment involving lighter work.

Magnolia Haywood, appellee’s mother, testified that Haywood was unable to do chores around the house such as moving the furniture, and mopping and waxing the floors.

At the least, the medical testimony was that Haywood suffered a strain or sprain to his lower back. Further, there was some medical testimony which supported appel-lee’s thesis that Haywood had experienced a disc injury.

The jury’s answer that Haywood’s total disability was permanent was supported by the evidence.

The judgment is affirmed.

Affirmed.

      . The points of error concerning the admission of evidence are as follows:
      (1) “The district court erred in admitting into evidence, over defendant’s objection, the testimony of Dr. D. A. Baggett relating to and regarding a herniated or ruptured interverte-bral disc.
      (2) The district court erred in admitting into evidence, over defendant’s objection, certain hypothetical questions regarding the possibility that plaintiff had a herniated or ruptured intervertebral disc injury, because the facts upon which the hypothetical questions were based did not include facts essential to a fair opinion.
      (3) The district court erred in admitting into evidence over defendant’s objection, certain hypothetical questions regarding the possibility that plaintiff had a herniated or ruptured intervertebral disc injury, because the facts upon which the hypothetical questions were based did not include facts enabling Dr. D. A. Baggett to formulate an intelligent answer.
      (4) The district court erred in admitting into evidence, over defendant’s objection, the answers of Dr. D. A. Baggett to certain hypothetical questions regarding and relating to the possibility that plaintiff had a herniated or ruptured intervertebral disc injury, because the facts upon which the hypothetical questions were based did not include facts essential to a fair opinion.
      (5) The district court erred in admitting into evidence, over defendant’s objection, the answers of Dr. D. A. Baggett to certain hypothetical questions regarding and relating to the possibility that plaintiff had a herniated or ruptured intervertebral disc injury, because the facts upon which the hypothetical questions were based did not include facts enabling Dr. Baggett to formulate an intelligent answer.”


author: KEITH, Justice.

text:
    Danny THORNHILL, Appellant, v. SHARPSTOWN DODGE SALES, INC., et al., Appellees.
    No. 7896.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 30, 1976.
    Bob Chrane, Houston, for appellant.
    Stephen S. Mims, Michael A. Henry, Houston, for appellee.
   KEITH, Justice.

Plaintiff below appeals from an adverse judgment rendered after the trial court peremptorily instructed the jury to return a verdict in favor of the defendants. We affirm.

Plaintiff purchased a van from Sharps-town Dodge, Inc. (“Sharpstown”) and the vehicle was financed by Chrysler Credit Corporation (“Chrysler”). A few months later, after he had sold the van and the indebtedness had been paid off, he sued Sharpstown and Chrysler under the Texas Consumer Credit Code, Chapters 7 and 8, to recover the statutory forfeiture (under § 8.01) for alleged violations by Sharpstown in (a) charging a time price differential greater than that authorized by law (under § 7.03, subdivisions 1 and 2) in connection with the retail credit sale of a new vehicle, and in (b) requiring plaintiff to carry physical damage property insurance and charging for credit life, accident, and health insurance while failing to state in the contract the kind, coverage, term and amount of premium for such insurance (under § 7.06, subdivisions 1, 2, and 5).

As against Chrysler, plaintiff sought to modify the amount of the contract in Chrysler’s hands by the amount of the penalty or forfeiture he recovered against Sharpstown.

Under the undisputed record, the amount financed was $5,292.38 and the finance charge was $1,403.26, making a total of $6,695.64 to be paid in forty-two monthly installments of $159.42, commencing April 9, 1975, with the last installment to mature September 9, 1978. Plaintiff contended that Sharpstown charged him forty-two cents too much interest on the principal balance with the credit extending over a forty-two month period. Thus, he invokes his right to the statutory penalties on his calculation of an excessive charge of one cent per month.

At the time plaintiff purchased the van, he was informed that he would have to carry physical damage insurance and he procured the necessary coverage a week later from Allstate Insurance Company by deleting his trade-in, adding the new van, and paying an increased premium on his existing policy.

Plaintiff also complained that Sharps-town did not make a full disclosure in writing of the nature of the credit life and accident and health insurance for which it charged a premium.

At the close of plaintiffs case, the trial court sustained the oral motions for peremptory instruction made by the two defendants below.

Since the appeal is from an instructed verdict, we must follow the rule laid down in Constant v. Howe, 436 S.W.2d 115, 116 (Tex.1968), by accepting as true the evidence in the record supporting plaintiff’s allegations, by resolving all conflicts and inconsistencies in his favor, and drawing all inferences therefrom most favorable to his alleged cause of action.

But, there is an equally well established rule in our jurisprudence, de minimis non curat lex: “The law does not care for, or take notice of, very small or trifling matters.” Black’s Law Dictionary (Rev. 4th Ed. 1968, p. 482. Whether plaintiff’s calculations are used or those of the defendants, it appears that the difference is so slight that competent mathematicians might disagree as to which, if either, is the absolutely “correct” amount.

The definition of “month” as it appears in Art. 5069-2.01(j), reproduced in the margin, for instance, shows the difficulty of achieving absolute accuracy. Then, too, the period involved in this particular note even included a leap year.

Plaintiff was frank to admit that he used the alleged forty-two cents overcharge as a means of getting Sharpstown into court: He testified: “That [the interest calculation] is the only thing they had—they messed up on. . That is the only way I could get them to court”—presumably, for some unrelated purpose.

Many years ago, the rule governing this case was laid down in Peightal v. Cotton States Bldg. Co., 25 Tex.Civ.App. 390, 61 S.W. 428, 432 (Tex.Civ.App.—San Antonio 1901, no writ):

“The contention of appellants that the taking by appellee as interest of $4.20, instead of $4.16% per month, ipso facto shows usury cannot be maintained. ‘Where the amount of interest taken above the legal rate is trivial, the maximum “De minimis non curat lex,” is applicable. The taking of an insignificant amount would have a tendency rather to disprove than to prove usury; for any one intending to take more profit upon a loan of money than the law would hardly be content with an exceeding small amount.’ Webb, Usury, § 210.”

In the three quarters of a century ensuing5 since this pronouncement, the rule has never been challenged. Indeed, this court in Miller v. Gibralter Sav. & Bldg. Ass’n, 132 S.W.2d 606, 607 (Tex.Civ.App.—Beaumont 1939, writ dism’d, jdgmt. cor.), followed the rule set out above, saying:

“The fact that the contract imposed as interest 4 cents per year more than the legal rate did not render it usurious. In such case the slight excess is disregarded. Peightal v. Cotton States Bldg. Co., 25 Tex.Civ.App. 390, 61 S.W. 428.”

All of plaintiffs points of error contending that the contract was usurious are overruled.

We also overrule plaintiff’s contentions that he is entitled to prevail because Sharpstown did not advise him of the amount of the premium upon the physical property damage insurance policy and the coverage for the health and accident policy. In his testimony, plaintiff said:

“Q. They [Sharpstown] asked you about insurance?
“A. They said, ‘What about insurance?’ And I said, T will get my own.’ ”

Earlier, plaintiff had testified that he knew the cost of the physical damage insurance since he had purchased it from an agent of Allstate Insurance Company at Sears and had paid the premiums therefor. He readily acknowledged that he knew that the premium was higher upon his new van than it was upon the older car which he traded in on the van.

Thus, it is clear, from plaintiff’s own testimony, that he did not “procure” his insurance from Sharpstown and it is equally certain that he learned the extent of his obligation concerning physical damage insurance from Allstate, not Sharpstown.

Thus, we are in accord with the statement in McDonald v. Savoy, 501 S.W.2d 400, 404 (Tex.Civ.App.—San Antonio 1973, no writ), where that court conceded that “it would be unreasonable to require a disclosure of the cost of the insurance when it is not procured from or through the seller.”

Finally, plaintiff complains of the refusal of the trial court to allow his attorney’s fees which he sought. Since plaintiff made no recovery, he was not entitled to recover attorney’s fees. See Art. 5069-1.06.

The judgment of the trial court is affirmed.

STEPHENSON, J., not participating.

      . Tex.Rev.Civ.Stat.Ann. art. 5069-7.01, et seq., and art. 5069-8.01, et seq. All statutory references hereinafter will refer to the articles in the code and to the subsections herein noted unless otherwise indicated.

      . Plaintiff has no point of error complaining of the failure of defendants to include the specific grounds of their motions for peremptory instruction. See Tex.R.Civ.P. 268. Thus, the informality of presenting the motion has been waived. Routte v. Guarino, 216 S.W.2d 607, 610 (Tex.Civ.App. — Galveston 1948, writ ref’d n. r. e.); Bell v. Currie, 404 S.W.2d 321, 324 (Tex.Civ.App. — Amarillo 1966, no writ).

      . Chrysler’s counsel, including his detailed mathematical calculations in his brief, argues that Sharpstown actually left some money on the table, charging plaintiff sixty-seven cents less than the statutory maximum.

      . “ ‘Month’ means that period of time from one date in a calendar month to the corresponding date in the following calendar month, but if there is no such corresponding date then the last day of such following calendar month, and when computations are made for a fraction of a month a day shall-be one-thirtieth of a month.”