text:
    RICHARDS MANUFACTURING COMPANY, Appellant, v. Robert ASPROMONTE et al., Appellees.
    No. 16913.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 6, 1977.
    Rehearing Denied Nov. 3, 1977.

      Prank J. Knapp, Jeffrey C. Londa, Houston, for appellant; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
    Jamail & Gano, John Gano, Houston, for appellee Robert Aspromonte.
    Michael Paul Graham, Ronald E. Cook, Les Cochran, Houston, for appellee Sears, Roebuck & Company, Inc.; Baker & Botts, Houston, of counsel.
   COLEMAN, Chief Justice.

This is an appeal from a judgment entered on a jury verdict in a suit for damages resulting from personal injuries. The main questions presented concern the form of the damage issue, whether the appeal is moot in part, and questions relating to indemnity and contribution.

Robert Asprpmonte filed suit against Richards Manufacturing Company, Sears, Roebuck & Company, General Motors Corporation, Delco Division of General Motors Corporation and Sam White Oldsmobile, seeking recovery for injuries received when he attempted to “jump-start” his automobile by use of jumper cables. General Motors Corporation, Delco Division of General Motors Corporation and Sam White Oldsmobile were dismissed from the case. Cross-actions for contribution and indemnity were filed by Sears, Roebuck & Company and Richards Manufacturing Company. Judgment was entered on a jury verdict awarding damages to Aspromonte against Sears, Roebuck & Company and Richards Manufacturing Company, and awarding Sears, Roebuck & Company full indemnity against Richards Manufacturing Company. Richards Manufacturing Company has appealed naming Robert Aspromonte and Sears, Roebuck & Company as appellees in his appeal bond.

Sears, Roebuck & Company perfected an appeal by filing its appeal bond. It failed to present a transcript within the time allowed by the Rules of Civil Procedure. Richards Manufacturing Company filed its record within the proper time period after its motion for new trial was overruled. Sears, Roebuck & Company failed to file a motion for new trial within the applicable period provided by the rules and was required to file its transcript in this court prior to the time the transcript filed by Richards Manufacturing Company was presented. Aspromonte filed a motion under Rule 387, T.R.C.P., to have the judgment as to Sears affirmed on certificate because of the failure to file the transcript of the record in the proper time. Where a transcript of record is not timely filed ap-pellees’ right to have the judgment of the trial court affirmed on certificate is absolute. Smith v. Free, 130 Tex. 23, 107 S.W.2d 588 (1937); Jarrell v. Farmers’ & Merchants’ State Bond Bank, 128 Tex. 332, 99 S.W.2d 281 (1936). Accordingly this court granted the motion to affirm on certificate and entered its order affirming the judgment of the trial court as to Sears, Roebuck & Company.

This court has been informed that Aspromonte secured the issuance of an execution against Sears, Roebuck & Company and that as a consequence the judgment has been paid in full by Sears. Aspromonte has now filed in this court his motion to dismiss the appeal of Richards Manufacturing Company so far as it affects the judgment rendered against it in favor of Aspromonte. The basis of the motion is that the judgment has been fully paid and satisfied and, therefore, discharged, extinguished and rendered functus officio. Aspromonte urges that since neither Sears nor Richards has any further liability under the judgment which he recovered, the appeal should be dismissed as moot insofar as it is directed at the judgment between Aspromonte and Richards.

In support of this position Aspromonte cites Employees Finance Go. v. Lathram, 369 S.W.2d 927 (Texas 1963). Lathram recovered a joint and several judgment against Employees Finance Co., United Finance & Thrift Corporation and others. United Finance & Thrift Corporation did not appeal, and upon issuance of a writ of execution, paid in full the amount of the judgment. The Supreme Court held that the appeal by Employees Finance Co. was moot since the judgment was fully satisfied.

The case at hand is not controlled by Lathram. Sears obtained a judgment over against Richards. Richards has presented a point complaining that the court erred in this respect and seeks rendition of a judgment in its favor for contribution. Richards asserts that the trial court erred in refusing to allow as a credit on the judgment against it the amount paid by General Motors to Aspromonte in settlement of his claim against it. If this point should be sustained, this court would be required to reverse the judgment obtained by Aspro-monte against Richards and to render a judgment against Richards for a lesser amount. All issues which have been properly raised by Richards and which would affect the issues of contribution and indemnity between Sears and Richards should be determined on this appeal.

Both Richards and Sears assert that if this court concludes that Richards’ points present reversible error the judgment should be reversed in its entirety and remanded for a new trial as to the liability of Sears as well as of Richards. Richards says that under such circumstances the appeal could not be moot.

It is the general rule that where one party appeals from a judgment, a reversal as to him will not justify a reversal against the other nonappealing parties. This rule does not apply in cases where the respective rights of the appealing and nonappealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment where a part thereof is reversed. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385 (1942).

In Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (1948) the court said:

“The rule has long been established in this court that circumstances may exist which will warrant the court in reversing judgment as between nonappealing parties. Under ordinary circumstances the court would have no jurisdiction to determine a controversy between parties not before it, but in a case where the court sustains an assignment of error, and the petitioner can be given full and effective relief in no other way than by a reversal of the judgment between nonappealing parties, then such reversal will be ordered. . . . ”

The difficulty in applying in this case the doctrine of the cases cited above lies in the fact that Sears did perfect an appeal and that in disposing of that appeal this court has affirmed the judgment of the trial court insofar as it affects Sears. The judgment of affirmance was required by Rule 387, T.R.C.P. Edwards v. Hughes, 377 S.W.2d 235 (Tex.Civ.App.—Corpus Christi 1964, no writ history).

The appeal is not moot. Whether the judgment must be reversed in its entirety depends, at least in part, on the disposition of the points of error raised by Richards.

The trial court submitted this case to the jury on six special issues. In answer to Special Issues Nos. 1, 2 and 3, the jury found that Richards and Sears failed to give adequate warning and cautionary instruction regarding the use of the jumper cables, that the jumper cables were unreasonably dangerous to the ordinary user when put to their intended use without an adequate warning or cautionary instructions, and that the absence of an adequate warning and cautionary instructions was a producing cause of the occurrence in question.

In answer to Special Issues Nos. 4 and 5, the jury found that “Richards Manufacturing Co., the manufacturer, and Sears, Roebuck & Co., the seller, as regards the jumper cable, failed to give the type of warning that a reasonably prudent manufacturer and seller of jumper cables would have given”, and that such failure was a proximate cause of the incident in question.

Special Issue No. 6 reads:

“What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would fairly and reasonably compensate Bob Aspromonte for his injuries, if any, which you find from a preponderance of the evidence resulted from the absence of an adequate warning on the jumper cables in question, if any you have so found?”

By point of error number one Richards contends that the trial court erred in submitting Special Issue No. 6 insofar as said issue attempted to limit the jury’s inquiry of damages to those following from the failure to warn in regard to the jumper cables, and in refusing to submit Richards’ requested special issue inquiring as to the sum of money which would reasonably compensate Bob Aspromonte for his injuries, if any, which the jury might find from a preponderance of the evidence “resulted from the occurrence in question”. Richards argues that the issue submitted by the trial court was an impermissible attempt to limit Richards’ right of contribution or offset from a joint and settling tort-feasor. Objection to the charge on this ground was presented to the trial court.

In his second amended petition the plaintiff alleged that while the plaintiff was attempting to place the jumper cables from his personal vehicle onto another vehicle the Delco battery in that vehicle exploded causing the plaintiff serious injuries to his eyes and face. General Motors Corporation and Delco Division of General Motors Corporation manufactured the automobile in question and the Delco battery contained therein. Sears and Richards designed, manufactured and sold the jumper cables in question. He alleged that the jumper cables and the Delco battery were defective, and also alleged:

“The incident made the basis of this suit and plaintiff’s resulting injuries and damages were caused by the breach of warranties and representations, written, expressed and implied, on the part of the defendants and each of them, such defendants and each of them were negligent, and such negligence was a further cause of your plaintiff’s injuries and damages, and plaintiff further relies on the doctrine of strict liability in tort, as that doctrine is applied in the State of Texas

The answers to Special Issues 1, 2 and 3 provide a basis for a judgment against Sears and Richards for the damage which resulted from “the incident” or “occurrence”. The damage issue, Special Issue No. 6, did not specifically require the jury to find the sum of money which would compensate Aspromonte for the injuries received as a result of “the incident”, or the “occurrence”. Nevertheless, the trial court was authorized to enter a judgment awarding Aspromonte the damages found because the jury found that the “occurrence” was produced by the absence of an adequate warning and cautionary instruction and also found that the same fault resulted in injuries to Aspromonte. Scott v. Gardner, 159 S.W.2d 121 (Tex.Civ.App.—Fort Worth 1942, err. ref.).

Similarly, Special. Issues Nos. 4 and 5 merely established that Sears and Richards were guilty of negligent conduct which was a proximate cause of “the incident in question”. Special Issue No. 6 did not establish that the injuries resulted from the incident. This must be established by a process of reasoning. The jury has found that Aspro-monte was injured as a result of the absence of an adequate warning on the jumper cables and that the absence of such a warning was a proximate cause of the incident in question. The nature of the incident or the occurrence in question can be determined from the pleadings. In determining whether reversible error is present, the evidence must be considered. The jury was not misled by the wording of the damage issue, and did not attempt to apportion the damages. Massíngill v. Henwood, 138 Tex. 317, 159 S.W.2d 118 (1942).

The plaintiff alleged that he was involved in one incident which resulted in injuries, and that he sought compensation for his total injury. Rule 301, T.R.C.P. requires the trial court to render a judgment conforming to the pleadings insofar as they are supported by fact findings. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942). The pleadings reflect that the plaintiffs sought a recovery of damages for the injuries which he suffered in one incident, and that all parties involved in the incident were named in the petition. This is conclusively established by the evidence. If a fact finding be required that the injury suffered by Aspromonte was a result of the incident or occurrence in question, a finding to that effect would be implied in support of the judgment rendered. The plaintiff would be estopped by the judgment in this case from seeking further damages from Richards and Sears, and by the settlement agreement from seeking further damages from General Motors. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937).

Since it is fundamental that the judgment of the court must conform to the verdict, it is necessarily implied that the court must consider the verdict as a whole. Teas v. Republic National Bank of Dallas, 460 S.W.2d 233 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.). After considering the verdict as a whole in light of the pleadings and evidence the trial court has entered a judgment for all the damage which Aspromonte pled that he had sustained as a result of the incident. C. C. Roddy, Inc. v. Carlisle, 391 S.W.2d 765 (Tex.Civ.App.—Fort Worth 1965, writ ref’d n.r.e.); Hartford Accident & Indemnity Co. v. Moore, 102 S.W.2d 441 (Tex.Civ.App.—Dallas 1937, writ ref’d).

In support of their point of error that the damage issue was fatally defective, Richards and General Motors rely on Riley v. Industrial Finance Service Company, 157 Tex. 306, 302 S.W.2d 652 (1957). In Riley the court pointed out that where two or more wrongdoers join to produce an indivisible injury, all of the wrongdoers are jointly and severally liable to the person wronged for the entire damage suffered. Under such circumstances the plaintiff sustains but one injury and may receive but one satisfaction for such injury, although more than one person may contribute to the injury-

The damage issue submitted to the jury in Riley asked what sum of money would compensate the plaintiffs for damages “directly and proximately caused by the collection efforts [of] Industrial Finance Service Company, its agents and employees.” With reference to this special issue the Supreme Court said:

“The submission by the trial court of the damages issue, under the facts of this cause, was error. This is true because the liability of the defendants was joint and several for the total amount of damages inflicted upon plaintiffs by all the defendants. . . . The submission, as made by the trial court, confined their liability to their own acts.”

The court in Riley also dealt with the question of harmless error. The plaintiffs asserted that the' damage issue given was more favorable to defendants than that to which they were entitled. The Supreme Court pointed out that it is a settled rule of law that a judgment rendered against one or all of the defendants in the case must be credited with the amount of money received by the plaintiff in their settlement with other original defendants. The court then held that the harmless error rule could not be applied because the issue, as submitted, will not permit the defendants to have credit for the amount of money paid by the other tort-feasors in settlement. “There being but one injury for which plaintiffs can receive but one satisfaction, defendants are entitled to have credited on the judgment against them all sums paid by others also liable to plaintiffs for the damages resulting from the common acts of all tort-feasors. This credit could not be given under the record as made in this case. Therefore, the defendants were harmed by the submission of the issue on damages in the form used by the court.”

In Riley the plaintiffs filed suit against seventeen loan companies and three credit insurance companies for damages to plaintiffs, both physical and mental, brought about by the concerted action of all defendants by the use of unreasonably harsh collection efforts. The trial court entered an order separating the defendants into four groups and providing for separate trials for each group. Thereafter the court severed the cause of action as to one group and proceeded to trial in that case. Prior to the trial settlements were made with some of the defendants in a sum greater than the damages found by the jury in the case on trial. Plaintiffs were permitted to prove the course of conduct of all of the seventeen original defendants and there was testimony that the resulting injuries and damages could not be allocated among the defendants.

In Riley there were numerous separate incidents involving separate defendants joining to produce an indivisible injury. In the case under consideration there was one incident involving all defendants which produced an indivisible injury. General Motors and Delco Division of General Motors was dismissed from the case by the plaintiff. He informed the court that a settlement had been made and that he had received $100,000.00 in settlement.

Sam White Oldsmobile was named as a defendant in the plaintiff’s petition and was named as a cross defendant by Richards. Richards has filed a motion for non-suit with prejudice as to General Motors, Delco Division of General Motors, and Sam White Oldsmobile. Aspromonte also filed a motion for non-suit with prejudice as to Sam White Oldsmobile. All parties shown by the pleadings and evidence to have participated in the incident causing injury to As-promonte, and from whom Richards might assert a right to contribution were before the trial court. Because of the significant factual and procedural differences, and considerations of judicial economy, this is not a proper case for the application of the rule of Riley.

Aspromonte has recovered a judgment in the sum of $675,000.00 against Sears. No credit was allowed for the $100,000.00 received in settlement by Aspromonte from General Motors. Sears has a judgment against Richards for indemnity. Sears is before this court as appellee defending its judgment for indemnity.

The trial court erred in refusing to credit the $100,000.00 received by the plaintiff in settlement of his cause of action against General Motors and Delco Division of General Motors. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935). Sweep v. Lear Jet Corporation, 412 F.2d 457 (5th Cir. 1969). This error will require a reversal of the judgment of the trial court and the rendition of a judgment reducing the damages adjudged against Sears and Richards to the sum of $575,-000.00. The respective rights of the appealing and nonappealing parties are so interwoven and dependent on each other as to require a reversal of the judgment against Sears as Well as Richards, but only to the extent indicated. Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385 (1942); Henger v. Cotton, 159 Tex. 139, 316 S.W.2d 719 (1958).

It is true that Sears perfected its appeal from the judgment, and this court has affirmed that judgment as required by the Rules of Civil Procedure and the applicable authorities. We have found no case where this precise question has been presented. However, there is no essential difference between a case where a judgment has become final by failure to appeal, and one where the judgment has been affirmed on appeal. To make a distinction in such a case would be to ignore substance in order to respect form. Both Sears and Aspro-monte are before this court in this appeal.

Richards contends that there is no evidence to support the answer made by the jury to Special Issue No. 6. Alternatively, Richards contends that the answer made by the jury is contrary to the great weight and preponderance of the evidence. The contention is also advanced that the verdict is excessive and that a remittitur should be ordered.

The no evidence point is primarily based on the assertion that in order to answer Special Issue No. 6 the jury is required to determine a percentage of the damage which resulted from the faulty cables to the exclusion of the damage resulting from the allegedly faulty batteries supplied by General Motors and Sears. Since we consider that the issue required the jury to find all of the damage sustained by Aspromonte, the points relating to the evidentiary support for the jury’s answer to the damage issue cannot be sustained.

There is testimony that both hydrogen and oxygen gases were accumulated inside the Delco battery as a result of a chemical process. These gases are vented through holes in the caps located on top of the battery. There was testimony that on the occasion in question sparks were produced when one of the jumper cables was manipulated while Aspromonte was in the process of starting his car. Expert testimony was produced that in the event a spark moved near enough to the vent hole the gas would ignite and flash back into the battery causing an explosion. On the occasion in question an explosion occurred propelling one of the battery caps into Aspromonte’s right eye. He immediately suffered pain and lost the sight in that eye and was taken to the hospital. He was hospitalized for thirty days and has no sight in his right eye other than the ability to distinguish between light and dark. Mr. Aspromonte testified that he suffered pain in his eye up to and including the time of the trial.

A cosmetic change has. occurred in the appearance of the right eye. There is evidence that the vision in the left eye has been affected to the point that Aspromonte is now required to wear glasses. He has no depth perception. Mr. Aspromonte was formerly a professional athlete, and at the time of the injury was frequently engaged in athletic pursuits such as golf and tennis. He testified that he can no longer engage in these recreational activities. He testified that his right eye is very sensitive and it “runs”.

Mr. Aspromonte testified that there had been a total change in his life. That he had been very active and very aggressive, but now he feels that he must analyse every move that he makes. He testified that he spent 30 days in the hospital on his back without moving and the next six months in his home doing nothing. He said that the pain in his eye was always there and that he worries about the loss of his other eye. He is now unable to drive his automobile at night. Mr. Aspromonte was 38 years of age and had a long life expectancy. His impaired condition is permanent. There is testimony that he has suffered to a considerable degree physical pain and mental anguish in the past and that he will continue to do so in the future. The jury’s verdict was not so excessive as to require a remittitur.

Richards asserts that the trial court erred in refusing to submit to the jury certain requested special issues relating to the battery which Aspromonte had purchased from Sears, Roebuck & Company and installed in his automobile. One series of issues was designed to determine whether or not Sears was negligent in failing to give adequate warning and cautionary instructions regarding the use of the sears battery and whether such a failure was negligence and a proximate cause of the occurrence in question. Another series of issues was requested designed to secure findings that the Sears battery was defective by reason of the absence of adequate warnings. Richards requested these issues on the theory that favorable answers to them would form a basis for indemnity or contribution in its favor as against Sears. There is nothing in the evidence to suggest that the Sears battery was unreasonably dangerous to its users in the sense that there was a danger to its user because of a possibility of explosion such as the one in question. It was not equipped with caps and there is no evidence that a flammable gas emanated from it. In connection with the occurrence in question its role was passive. The contention was made that had the battery been equipped with instructions relating to the proper procedure for its use in connection with jumper cables the injury may not have occurred. Aspromonte did not specifically plead that Sears was negligent with regard to a failure to equip the battery with proper warnings or instructions. Richards plead generally a denial that the instance in question was caused by its negligence or that of any other defendant and asserted that if it be found that some negligence was involved “such negligence was the responsibility of cross-defendants herein.” Richards pleadings failed to put in issue the negligence of Sears, if any, in failing to place appropriate warnings on its battery. Aspromonte did not request issues concerning the Sears’ battery. The issue was not tried by consent. The trial court did not err in refusing the requested issues. Rule 279, T.R.C.P.; Texas Employers Ins. Ass’n v. Patterson, 144 Tex. 573, 192 S.W.2d 255 (1946); City of Austin v. Selter, 415 S.W.2d 489 (Tex.Civ. App. — Austin 1967, writ ref., n. r. e.).

Both Sears and Richards have been found guilty of negligence in failing to give adequate warnings and cautionary instructions regarding the use of the jumper cables in question. Richards contends that since it manufactured cables to Sears’ specifications, Sears has breached a duty owing to it to specify that appropriate warnings be placed on the battery cables. Reasoning from this premise it contends that it was entitled to a judgment awarding it indemnity against Sears, and, in the alternative, it was entitled to receive contribution from Sears.

A written contract was entered into between Sears and Richards for the sale and purchase of the battery cables. This contract includes detailed specifications which the merchandise must meet. The contract provides:

“Such merchandise shall conform to the specifications set below or otherwise applicable to said merchandise . . ..”

It provides:

“Each item of merchandise covered hereby is to be equal in quality, workmanship, finish and design to samples submitted to and approved by purchaser or to samples furnished to seller by purchaser . ..”

The term merchandise is defined in the contract as including all packaging and containers employed in connection therewith and literature pertaining to such merchandise. The contract includes an indemnity agreement reading: “Seller agrees to protect, defend, hold harmless and indemnify purchaser from and against any and all claims, actions, liabilities losses, cost and expenses arising out of . actual or alleged injury to any person, ... resulting or claimed to result in whole or in part from any actual or alleged defect in such merchandise, whether latent or patent, including actual or alleged improper construction of or design of merchandise or the failure of such merchandise to comply with . any express or implied warranties of seller, or out of any actual or alleged violation by such merchandise, or its manufacture, possession, use or sale, of any law, statute or ordinance or any governmental administrative order, rule, regulation . . ”

“Seller agrees to obtain and maintain, at its expense, a policy or policies of products liability insurance, vendor’s endorsement naming purchaser, in amounts and in such companies and containing such other provisions which shall be satisfactory to purchaser, covering merchandise sold to purchaser hereunder . . A paragraph is included specifically placing on Richards the duty to comply with certain rules, regulations and statutes relating to labeling of products. No specific provisions relating to warnings concerning, or instructions relating to, the user of the cables are included in this paragraph. There is a provision in the specifications that each cable set is to be packaged “in a sturdy corrugated display box with two color design approved by Sears, Roebuck and Company.” The contract contains no provision directly requiring or prohibiting Richards from attaching to the cables appropriate cautionary warnings or instructions.

The indemnity provision in general terms requires the seller to hold the purchaser harmless against any and all liability for injury to any person arising from a defect in the merchandise. It does not specifically require the seller to indemnify the purchaser against the purchaser’s own negligence.

Richards has by contract agreed to indemnify Sears for the liability which it has sustained insofar as the judgment is based on the findings related to products liability. The question arises as to whether this result is affected by the fact that the jury found both Sears and Richards joint tort-feasors. The jury has determined that both violated duties to the plaintiff. Ordinarily indemnity between joint tort-feasors is appropriate in Texas only when they are not in pari delicto as to each other. If Richards has violated a duty owed to Sears as well as the plaintiff and the plaintiff’s injury resulted from the violation of this duty, then the trial court’s judgment awarding indemnity to Sears is appropriate. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949). In Borg Warner Corporation v. White Motor Company, 344 F.2d 412 (5th Cir. 1965), Borg Warner Corporation manufactured a clutch assembly which it furnished to White Motor Company for use in a Reo truck which it manufactured. The jury found White guilty of negligence in failing to provide proper specifications and design for the truck and its components. The clutch as such was not found defective. The jury found both White and Borg Warner guilty of negligence in failing to determine the suitability of the clutch for use in the truck. The court analyzed the findings of the jury and determined that both Borg Warner and White breached duties to each other resulting in injuries to the plaintiff. The court said:

“ . . .It does not seem reasonable to conclude that a failure to provide proper specifications and design for the truck and its components was a breach of duty to the plaintiffs only and not to Borg, when Borg was the party from whom the clutch was obtained. Little would have been accomplished by furnishing such information to the plaintiffs.”

The court found that White and Borg were in pari delicto and reversed a judgment of indemnity in favor of White against Borg.

We have no doubt that the court was correct in its analysis of the facts and application of the law in the case discussed above. It does not follow, however, that the analysis made by the court in that case is applicable to facts in our case. We have no jury finding that Sears was negligent in failing to furnish proper specifications to Richards. The contract between the parties clearly evidences an intent to place the duty to provide a safe product on the manufacturer, Richards. The circumstance rendering the cables defective was the failure to attach a proper cautionary warning and instructions. The jury finding of negligence on the part of Sears is based upon that same failure. We conclude that Richards breached a duty to Sears in failing to furnish it a safe product. Richards owed a duty to furnish a safe product both to Sears and the ultimate user. The evidence does not establish that Sears owed a duty to Richards to include in its specifications the requirement that cautionary warning and instructions be attached to the jumper cables. The trial court did not err in awarding Sears indemnity against Richards.

We have examined the photograph marked plaintiffs’ exhibit 11, a picture taken by the operating surgeon after the eye was prepared for the operation, and do not find it inflammatory. We also conclude that a proper predicate was laid for its admission. In any event we do not consider that the admission of this photograph was reasonably calculated to and probably did influence the verdict of the jury.

The judgment is modified to decree that the damages found by the jury, $675,000.00, be reduced by the sum of $100,000.00, the amount received by Aspromonte in settlement of his claim against General Motors Corporation. In all other respects the judgment is affirmed.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Don M. SMART, Appellant, v. Dean CARLTON, Appellee.
    No. 7999.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 6, 1977.
    Rehearing Denied Nov. 10, 1977.
    Don M. Smart, S. L. Lewis, Dallas, for appellant.
    Don C. Alexander, Dallas, for appellee.
   KEITH, Justice.

This is an appeal from a summary judgment, and, for convenience, we will speak of the parties by their surnames. Prior to December 9, 1966, Don Smart and Jessie Smart were husband and wife but, upon such date, were divorced by decree which incorporated a property settlement agreement. Thereafter, and on December 16, 1974, Jessie Smart filed a bill of review proceeding claiming that Don Smart had committed fraud in omitting certain items of property from the divorce accounting several years earlier and sought a reformation of the decree and judgment so as to award her all of her rightful share of the community property.

Carlton was Jessie Smart’s lawyer in the bill of review proceedings and continued to represent her until he was permitted to withdraw by an order dated January 6, 1976. In the meanwhile Smart, who is both an attorney and a physician (according to his pleading), filed a cross-action on January 13,1975, against Jessie Smart and Carlton, alleging that Jessie’s suit “is merely for purposes of vengeance, harassment and intimidation and does not state a cause of action as a matter of law and is barred as a matter of law.” Further allegations were made to the effect that “[s]aid action was malicious and for the purpose of harassment and to gain money from Defendant [Don Smart]” and Smart asserted “his cause of action for abuse of process.”

Carlton answered by a general denial, a special pleading that the cross-action of Smart was a suit for malicious prosecution of a pending suit and that his only relief would be a dismissal thereof; and, finally, that he was acting only as an attorney in the cause.

Carlton filed his motion for summary judgment supported by his affidavit. He averred that there was no cause of action stated but “[w]hat is urged is a suit for malicious prosecution which as a matter of law is not a proper suit in the absence of process actually attaching to the person or property of the aggrieved party.” Smart filed his affidavit in opposition to Carlton’s motion in which he alleged, inter alia, that had Carlton investigated the court records he would have found that an earlier bill of review by Jessie had been denied; that in Smart’s opinion (as a lawyer) Carlton failed to “meet the standard of care for the practice of law in Dallas County” and had filed the suit for the purpose of obtaining money from Smart.

On June 8, 1976, the trial judge entered an interlocutory order granting a summary judgment in favor of Carlton by dismissing him from the litigation. Jessie Smart was served with citation on the cross-action on April 13, 1976, under Tex.R.Civ.P. 106, but filed no answer. Thereafter, on January 13,1977, Smart’s motion for summary judgment was granted and Jessie’s bill of review was denied. It was further ordered that Smart’s “counter-claim is dismissed.” Smart has perfected an appeal only against Carlton.

Smart now contends that his suit against Carlton was one for legal malpractice; and that his summary judgment evidence showed the existence of fact issues precluding the grant of the summary judgment. We disagree and affirm.

The cross-action filed by Smart was one for malicious prosecution of a civil suit, defined in Morris v. Hargrove, 351 S.W.2d 666, 667 (Tex.Civ.App.—Austin 1961, writ ref’d n.r.e.), as “the instituting of a criminal prosecution or a civil suit filed maliciously and without probable cause.” One of the necessary elements in the maintenance of such a suit is that it must be shown that the suit alleged to have been prosecuted with malice and without probable cause terminated in favor of the plaintiff-claimant. Forke v. Homann, 14 Tex. Civ.App. 670, 39 S.W. 210, 212 (Austin 1896, writ ref’d); Beaurline v. Smith, 426 S.W.2d 295, 298 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n.r.e.).

Smart did not allege, as indeed he could not, that the suit filed by Jessie with Carlton as the lawyer, had ended in his favor. Such an event did not occur until more than seven months thereafter. Thus, at the time of the summary judgment, Smart failed to allege a cause of action and our record conclusively establishes that no such cause of action then existed.

But, it may be argued that the failure to allege and prove termination of the suit was only ground for abatement of his claim against Carlton and not ground for dismissal. Cf. Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

Should such argument be sustained, Smart would then be confronted with an even more serious, and insurmountable obstacle, the series of rules enunciated in Salado College v. Davis, 47 Tex. 131, 135 (1877), which we quote with citations omitted:

“To bring an action, though there be no good ground, is not actionable. .
“An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent. .
“In ordinary cases, where no further wrongful act is complained of than the institution of a groundless suit, though done knowingly and with intent to harass, the award of costs is, in contemplation of law, full compensation for the unjust vexation. .
“In such cases, the defendant recovers his costs, ‘but no allowance is made for his time, indirect loss, annoyance, or counsel fees.’ ”

The Salado College Case has been cited and followed as late as Louis v. Blalock, 543 S.W.2d 715, 719 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.).

Our Supreme Court in Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920), reiterated the rule enunciated in Salado College, supra, saying:

“The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits, with malice and without probable cause, unless the party sued suffers some interference, by reason of the suits, with his person or property.” (emphasis ours)

Smart has never hinted at any interference with his person or property.

The Court in Pye continued:

“If it is not an actionable wrong for one person to bring an unfounded suit, to harass a defendant and extort money from him, it cannot be actionable for two or more to join in the same sort of suit. The single actor is certainly no less culpable when he proceeds alone and the injury is the same when he acts alone or with others.”

Smart argues vigorously, pro se, that his claim against Carlton was one of legal malpractice; that if Carlton had used ordinary care he would have learned that a prior bill of review filed by Mrs. Smart had been denied for want of merit. From this premise, he contends that Carlton was guilty of legal malpractice and liable for compensatory and punitive damages flowing therefrom, citing several cases from California in support of the argument.

We disagree. Even a cursory examination of the trial pleading discloses that it is one sounding in malicious prosecution and the authorities cited earlier dictate the result which- we have reached. If the rule sought to be established by Smart is to be adopted as the law of this State, such a declaration should be made by our Supreme Court, not by this intermediate court.

We recognize that we are dealing with a summary judgment and that our Supreme Court has written many opinions in recent years relating to the extremely onerous burden placed upon the movant for a summary judgment. See, e. g., Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970), and its progeny. Nevertheless, having reviewed the record in this case under the applicable standards and under the prevailing substantive law, we are of the opinion that the trial court acted properly in entering the summary judgment. Thus, the judgment is AFFIRMED.


author: WALTER, Justice.

text:
    B. J. GIST et al., Appellants, v. STAMFORD HOSPITAL DISTRICT et al., Appellees.
    No. 5090.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 13, 1977.
    Rehearing Denied Nov. 3, 1977.
    J. R. Black, Jr., Scarborough, Black, Tarpley & Scarborough, Abilene, for appellants.
    John L. Hill, Atty. Gen., David A. Talbot, Jr., Austin, J. Shelby Sharpe, Brown, Herman, Scott, Dean & Miles, Fort Worth, for appellees.
   WALTER, Justice.

B. J. Gist, Lem Ruark and Anita Harvey MacGregor filed their petition for a declaratory judgment complaining of the Stamford Hospital District and its Board of Directors, Sam Baize, A. C. Humphrey, A. J. Mills, Don Rose, Eugene Swenson, Eugene Watts, and Earl Smith, and the Attorney General of Texas seeking to have Senate Bill # 450, being Chapter 563 of the regular session of the 63rd Legislature authorizing the expansion of the Stamford Hospital District, declared null and void and unconstitutional under the Fourteenth Amendment of the United States Constitution. They also sought injunctive relief.

Defendants pleaded res judicata and contended Stamford Hospital District v. Billy Vinson et al., 517 S.W.2d 358 (Tex.Civ.App. —Eastland 1974, writ ref. n. r. e.) is determinative of all issues pleaded by the plaintiffs. The court granted defendants’ motion for summary judgment and plaintiffs have appealed.

Appellants contend the Vinson case is not res judicata because they were not parties to that suit and a United States constitutional question is involved in the case at bar.

Able counsel for appellants vigorously contend the court erred in refusing to follow that part of the declaratory judgment act that provides, “No declaration shall prejudice the rights of persons not parties to the proceeding.” We disagree.

In Seibert v. City of Columbia, 461 S.W.2d 808 (Mo.Sup.1970), the court said:

“We are in full accord with the doctrine of virtual representation. It would be unthinkable in our system of jurisprudence to hold that each taxpayer of a municipality could bring a suit to attack an annexation and that res judicata would not apply because there was not an identity of parties. Of necessity, absent fraud or bad faith, all residents and taxpayers must be bound by the result of litigation of a public nature carried on by one in similar circumstances and having a common interest . . . ”

We hold appellants were parties to the Vinson case under the doctrine of virtual representation.

In Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App.—Amarillo 1930, writ ref’d), the court said:

“It is true that in attacking the election and the bonds in the Caldwell Case [Caldwell et al. v. Crosser et al., Tex.Civ.App., 20 S.W.2d 822] the question of the validity of the- bonds, because notice of the election had not been published in accordance with the provisions of Revised Statutes, art. 28, was not specifically raised, but Judge Jackson held that the bonds had been validated by the act of the Legislature, cited in the opinion, which we think is conclusive of all contentions which might be urged here, touching the regularity of the election proceedings. Moreover, that judgment is conclusive of all issues which might and should have been urged in that case.
What this court said in the case of Montgomery v. Huff, supra [Tex.Civ. App., 11 S.W .2d 237], quoting from the case of Crane v. L. & H. Blum, 56 Tex. 325, to the effect that the good of society, the preservation of rights and good order, require that when the rights of parties have once been determined by the ultimate tribunal provided by law, the same should pass from the field of strife forever, is peculiarly applicable to this case.
The general rule is that, in the absence of fraud or collusion, a judgment for or against a county or other municipality is binding and conclusive upon all residents, citizens, and taxpayers, in respect to the matters adjudicated which are of general and public interest, and that all other citizens and taxpayers similarly situated are virtually represented in the litigation and bound by the judgment, and this applies especially to judgments relating to the validity of county bonds. 34 C.J. 1028 § 1459.
The reason for this rule is stated by the same authority on page 1029, as follows: ‘If this were not so, each citizen, and perhaps each citizen of each generation of citizens, would be at liberty to commence an action and to litigate the question for himself. * * * If a judgment against the county in its corporate capacity does not bind the taxpayers composing the county, then it would be difficult to imagine what efficacy could be given to such judgment.’ See, also, 15 R.C.L. 1035, § 510.
The Supreme Court has adhered to the rule in the case of Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224, 225, in which it is said: ‘The interveners were not parties to the suit of the K. C., M. & O. R. Co. v. City of Sweetwater, (62 Tex.Civ.App. 242, 131 S.W. 251; Id., 104 Tex. 329, 137 S.W. 1117) at the time the judgment of the court was entered, but they were citizens of that municipal corporation, and the important question in the case is reached by the announcement of the well-settled proposition of law that, if the matter adjudicated affected the interest of the public as distinguished from the private interest of the citizens of the city, although not parties to the suit, all citizens are concluded thereby.’ ” (Emphasis added)

In Hodgkins v. Sansom, 135 S.W.2d 759 (Tex.Civ.App.—Fort Worth 1939, writ dism’d jdgmt. cor.), the court said:

“It is elementary that the parties in the prior suit are to be held to the rule that all issues and questions which could have been raised in such suit are now deemed to have been raised and litigated.
The only question raised in the instant suit that was not presented in the prior suit is the fact issue that Hodgkins had moved out of the school district and had thereby vacated his office as Trustee when the acts of the Board complained of were had and done. This fact could have been ascertained and was one easily ascertained by the plaintiffs, in the prior suit, if such a condition obtained. Mercer et ux. v. Rubey, Tex.Civ.App., 108 S.W.2d 677, writ refused; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 130 S.W.2d 332, writ refused.”

We held the statute was constitutional under the State Constitution and the election was valid in Vinson. We hold appellants and all other citizens and taxpayers similarly situated were virtually represented in Vinson and that the judgment is “conclusive of all issues which might and should have been urged in that case.”

We have examined all of appellants’ points of error and find no merit in them. They are overruled.

The judgment is affirmed.


author: RAY, Justice.

text:
    H. B. BROWN, Jr., d/b/a Brown Development Company, Appellant, v. Merriel E. CLARK, d/b/a Clark Brick Sales, Appellee.
    No. 8459.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 18, 1977.

      M. Mark Lesher, Lesher & Franks, Texar-kana, for appellant.
    David L. James, Keeney, Anderson, Miller, Oliver & Carter, Inc., Texarkana, for appellee.
   RAY, Justice.

This is a summary judgment case. Merriel E. Clark, d/b/a Clark Brick Sales, appellee (plaintiff), brought suit against appellant (defendant), H. B. Brown, Jr., d/b/a Brown Development Company, seeking sums of money due for goods sold to Brown on open account. Clark filed a motion for summary judgment which was granted by the trial court. Appellant Brown has perfected his appeal and submits three points of error for our consideration.

Appellee Clark filed his sworn petition with attached accounts for services rendered and materials furnished. Appellant Brown replied with a sworn answer raising the affirmative defenses of payment and waiver. The answer did not contain a denial stating that any or all of the account items were not just and true as required by Rule 185, Tex.R.Civ.P. On the basis of this omission, the appellee filed his motion for summary judgment. The appellant filed no response. The motion was directed only towards the pleadings and was unsupported by affidavit. Following a hearing on the motion, summary judgment was granted, and the appellee was awarded damages and attorney’s fees.

The judgment of the trial court will be affirmed as to the award of damages on the sworn account, but reversed and remanded as to the award of attorney’s fees.

The rules governing actions on a sworn account are narrow and certain. A claim on a sworn account when properly styled and verified, constitutes prima facie evidence of the validity of the claim unless the opposing party files a written denial

under oath stating that some or all of the account items are not just and true. Tex.R. Civ.P. 185; Tex.R.Civ.P. 93(k). Strict adherence to the requirements of these rules is required. Edinburg Meat Products Co. v. Vernon Co., 535 S.W.2d 432 (Tex.Civ.App. Corpus Christi 1976, no writ). A defendant’s failure to file his answer in the language of Rule 185 can be fatal. McDonald v. Newlywed’s, Inc., 483 S.W.2d 334 (Tex. Civ.App.Texarkana 1972, writ ref’d n. r. e.; Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App.Dallas 1973, writ ref’d n. r. e.). Such a failure amounts to an admission that the account is correct and therefore no issue of fact as to the validity of the claim is presented. Akins v. Coffee, 376 S.W.2d 953 (Tex.Civ.App.Dallas 1964, writ dism’d); Bruce v. McAdoo, 531 S.W.2d 354 (Tex.Civ.App.El Paso 1975, no writ); Leyendecker v. Santa Rosa Medical Center, 533 S.W.2d 868 (Tex.Civ.App.Tyler 1976, no writ). See also 2 McDonald’s, Texas Civil Practice, Sec. 7.31.-(f). The absence of any issue of fact related to the validity of the claim which stems from the deficiency in the appellant’s pleadings, forms the basis for an award of summary judgment on the pleadings. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 543 (Footnote No. 1) (Tex. 1971); Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App.Houston-14th Dist. 1973, writ ref’d). When a motion for summary judgment is directed solely to the pleadings, no supporting affidavits are necessary. 4 McDonald’s, Texas Civil Practice, Sec. 17.26.8(b)(i).

By his second point of error, the appellant opposes the award of summary judgment by the assertion that genuine issues of material fact regarding payment on the account and waiver of payment were raised by his sworn answer. Such defenses of confession and avoidance are available in a suit on a verified account even in the absence of a sworn denial. 1 Tex.Jur.2d, Accounts and Accounting, Sec. 85; Television Broadcasters, Inc. v. Motion Pictures for Television, Inc., 368 S.W.2d 851 (Tex. Civ.App.Beaumont 1963, no writ); Rose v. Shearrer, 431 S.W.2d 939 (Tex.Civ.App.San Antonio 1968, no writ).

The appellant failed to substantiate his defensive pleadings with summary judgment proof. The mere pleading of an affirmative defense in the nature of confession and avoidance to a verified pleading seeking recovery on an open account is not sufficient to raise a genuine issue of material fact such as would preclude a summary judgment. Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App.Houston-14th Dist. 1972, no writ). When a movant produces summary judgment evidence establishing his rights to a judgment, such right will not be denied merely because of the pleading of matters, which, if proved, would require the rendition of a different judgment. King v. United Distributing of Texas, Inc., 463 S.W.2d 456 (Tex.Civ.App.Dallas 1971, no writ); Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958); Jeffrey v. Larry Plotnick Co., Inc., 532 S.W.2d 99 (Tex.Civ.App.Dallas 1975, no writ).

Under the peculiar rules governing causes of action on sworn accounts, the burden of going forward with evidence on affirmative defenses falls upon the one asserting such defenses, particularly in summary judgment proceedings. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974). The failure of appellant to come forward with summary judgment proof supporting his affirmative defense was a fatal error. Appellant’s second point of error is overruled.

The appellant’s third point of error is similarly found to be without merit. The appellant has asserted for the first time on appeal that the account sued upon was usurious. This assertion is not understood to raise a claim of such fundamental error as to except the appellant from the general rule of appellate courts against consideration of questions not raised in the trial court. The appellant does not assert matters of public interest or judicial action without jurisdiction. See generally 3 Tex. Jur.2d, Rev., Appeal and Error — Civil Cases, Sec. 98, et seq. The appellant’s third point of error is overruled.

In point of error number one appellant complains of the award of attorney’s fees. Article 2226, Tex.Rev.Civ.Stat., permits an award of attorney’s fees to the successful claimant on sworn accounts. The appellant, however, contends that the appellee has not adduced the requisite proof to warrant the assessment of attorney’s fees through summary judgment.

The question of what sum constitutes reasonable attorney’s fees is a fact issue that cannot ordinarily be determined in a summary judgment proceeding. Coward v. Gateway National Bank of Beaumont, 525 S.W.2d 857 (Tex.1975). In the present case, it was error for the trial court to determine the amount of attorney’s fees as a matter of law. That portion of the summary judgment related to attorney’s fees is reversed and remanded for further consideration by the trial court.

Affirmed in part and reversed and remanded in part.


author: MURRAY, Justice.

text:
    MAINTENANCE MANAGEMENT, INC., Appellant, v. TEXAS EMPLOYMENT COMMISSION et al., Appellees.
    No. 15857.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 19, 1977.
    Rehearing Denied Nov. 16, 1977.
    S. Ancil Middlebrook, San Angelo, for appellant.
    John L. Hill, Atty. Gen., Martha E. Smiley, Austin, for appellees.
   MURRAY, Justice.

This suit was filed by appellant, Maintenance Management, Inc., against appellees, Texas Employment Commission et al., in the district court of Val Verde County, Texas, wherein appellant sought relief from the administrative ruling of the Texas Employment Commission holding that appellant had not timely contested the claims filed with the Texas Employment Commission by the named individual employees of appellant. The final orders of the Texas Employment Commission dismissed appellant’s appeals on jurisdictional grounds.

Appellant is a corporation with its principal office located in San Angelo, Texas and is engaged in janitorial work, property management, and apartment rentals. Appellant had been in operation over 12 years and had expanded to the cities of Del Rio and others. Appellant obtained a contract with the Val Verde Memorial Hospital in Del Rio to perform cleaning maintenance and had employed at that site between 12 and 14 people.

On or about April 8, 1974, appellant was notified that its contract with Val Verde Hospital had been cancelled. Mr. John L. Iman, who was president of the corporation and its working manager, was in Del Rio on Monday following Easter Sunday of 1974, and at approximately noon on that day visited the Texas Employment Commission office in Del Rio, which is located in a community center and consisted of one room with numerous desks and no partitions. There was a sign on the door which stated “Texas Employment Commission” and one person in the room who introduced himself as Juan Gaitan. Mr. Iman explained to Mr. Gaitan that his corporation had lost the contract with the hospital; that it was likely that his employees would be filing claims; and that he would like to know how they should be handled. Mr. Gaitan stated “[wjait and handle all the claims at one time.” Mr. Iman left and returned to San Angelo.

Mr. Iman had had dealings with the Texas Employment Commission before and was aware of the procedures to be followed when an unemployment claim was filed with the Commission. However, this occasion was the first time that he contemplated numerous claims being filed at approximately the same time. Some time passed and the claims began to come in, and when they were received by the corporation, Mr. Iman kept them and waited for all of them to be filed. During this period, Mr. Iman learned that Mr. Juan Gaitan was not employed by the Texas Employment Commission, that he was some type of employee of the State of Texas, but was at no time an employee of the Texas Employment Commission. After the discovery that Mr. Gai-tan had no authority in the Texas Employment Commission, appellant commenced filing appeals from the refusal of the Texas Employment Commission to entertain hearings on the merits. After the trial of this cause before the court, without a jury, the court held in favor of the Texas Employment Commission, from which judgment of the trial court appellant has timely perfected this appeal.

Appellant’s point of error in this case is that the court erred in dismissing the suit for lack of jurisdiction on the ground that appellant had not filed its objections to the individual employees’ claims timely, as prescribed by Art. 5221b-4.(b), Tex.Rev.Civ. StatAnn. (1971), and had not timely protested the notice of chargeback regarding the individual employees’ claims, as prescribed by Art. 5221b-5.(c)(2)(B).

Art. 5221b-4.(b) provides:
If the individual or organization to which such notice is mailed has knowledge of any facts that may adversely affect such claimant’s right to benefits, or that may affect a charge to its account, it shall notify the Commission of such facts promptly. If such individual or organization does not mail or deliver such notification to the Commission within ten (10) days from the date notice of claim was mailed to it by the Commission, such individual or organization shall be deemed to have waived all rights in connection with such claim, .
Art. 5221b-5.(c)(2)(B) provides:
If any such employer desires to protest his potential chargebacks, he shall, within ten (10) days after such notice was mailed to him, mail his protest, including a statement of the facts upon which his protest is based, to the Commission at Austin, Texas. Any employer who does not protest his potential chargebacks within ten (10) days after notice was mailed to him shall be deemed to have waived his right to protest such chargebacks.

It is conceded that appellant did not comply with the ten day provisions, but appellant claims that the appellees are estopped to invoke the ten day provision because of the action of Mr. Gaitan.

It is the settled law of this State that the actions and decisions of the Texas Employment Commission are governed by the substantial evidence rule; a rule of law by which the courts have limited their power to review an administrative agency’s orders and decisions in the exercise of the discretion granted to the particular agency by the Legislature. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Todd Shipyards Corp. v. Texas Employment Commission, 245 S.W.2d 371 (Tex. Civ.App.—Galveston 1951, writ ref’d n. r. e.).

A decision was handed down on January 29,1976 by the Commission dismissing appellant’s appeal for lack of jurisdiction. The order of the Commission clearly shows that it considered appellant’s claim of estop-pel.

We hold that there was reasonable evidence to support the decision of the Commission that appellant waived its right to contest the claims by failure to respond within ten days of mailing.

The judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    CENTRAL NATIONAL BANK OF McKINNEY, Texas, Appellant, v. Mrs C. F. BOOHER, Appellee.
    No. 7989.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 20, 1977.
    Rehearing Denied Oct. 11, 1977.

      Roland Boyd, McKinney, for appellant.
    Douglas A. Barnes, Dallas, for appellee.
   CLAYTON, Justice.

This is an action to recover proceeds of a passbook savings account. Mrs. C. F. Boo-her, as plaintiff, instituted this suit against Central National Bank of McKinney, Texas, defendant, to recover the proceeds of a passbook savings account. Trial was to the District Court sitting without a jury, and judgment was rendered for the plaintiff.

The evidence presented to the trial court briefly stated is as follows: The passbook involved in this cause was issued to the plaintiff and had been in the possession of plaintiff since it was issued and delivered to her in 1932, showing an initial deposit of $1,000. The plaintiff did not make any additional deposits, did not make any withdrawals, did not authorize anyone else to make withdrawals, and was never contacted by the Bank concerning the account. Plaintiff made demand on defendant Bank for the proceeds of the account in February 1975. The defendant introduced into evidence that among the records found by Bank employees were three account cards on a savings account for a Mrs. C. F. Book er which he assumed was the same account as Mrs. C. F. Booher’s. These cards show an initial deposit of $1,000 on July 1, 1932, three small additional deposits, and approximately thirty small withdrawals, closing out the account February 18, 1935. The Bank did not have any record of a power of attorney from Mrs. Booher, no affidavit of lost passbook and no authorization from plaintiff to give the money in the account to anyone else.

Defendant complains of the action of the trial court in rendering judgment for the plaintiff because it contends the undisputed evidence shows that the account was withdrawn and paid to plaintiff, thereby closing the account.

The trial court, in its Findings of Fact, found that:

1. The savings account passbook belonged to plaintiff and had been in her possession since 1932.

2. Plaintiff did not make any withdrawals from her account.

3. Plaintiff did not authorize anyone else to make withdrawals from her account.

4. Plaintiff did not make an affidavit of lost passbook.

5. Defendant’s record of withdrawals and deposits was not a record of the savings account of plaintiff.

It is well-settled that the trial court’s findings carry the same weight as jury findings by which we are bound, if such findings are supported by probative evidence. In a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Johnson v. Lane, 524 S.W.2d 361, 363 (Tex.Civ.App.—Dallas 1975, no writ), and cases cited therein; accord, Gulf States Theatres of Texas v. Hayes, 534 S.W.2d 406 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). From a review of the evidence we are of the opinion the findings of the trial court are supported by probative evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The next point raised by defendant is that recovery should be denied on the doctrine of “prescription” or “presumption of payment” because there was a lapse of forty years without recognition of the account or without demand by plaintiff on such account.

Defendant urges that a presumption of payment arises after a lapse of time that is by common consent usually placed at twenty years; and cites 44 Tex.Jur.2d Payment § 59 (1963). In the case of Griffin v. Hale, 131 Tex. 152, 112 S.W.2d 1042, 1044 (1938), the Court, in holding this doctrine is recognized in Texas, states:

“ ‘[TJhere is no doubt that after a long lapse of time, by common consent usually placed at 20 years, there arises a presumption of payment. * * *
“ ‘If by reason of lapse of time there arises in the case a presumption of payment amounting to prima facie proof of such issue, it of course logically follows that in the absence of evidence rebutting this presumption and overcoming this pri-ma facie case, the defendant must recover.’ ”

It is conceded that this is a rebuttable presumption. The passbook issued to plaintiff provides:

“Money shall be paid to the depositor personally, or to another person holding the depositor’s written order, duly witnessed, or power of attorney, duly authenticated. In either instance the passbook must be presented in order that the payment may be entered therein; provided, however, that payment may be made without the production of the pass-book, if the depositor shall prove to the satisfaction of the Board of Directors that his book has been lost, stolen or destroyed, and shall give to the Bank a written discharge, with satisfactory indemnity against loss, for any payment made without the production of such book.”

Under the findings of the trial court that plaintiff made no withdrawals, did not authorize anyone else to make withdrawals, made no affidavit of lost passbook, and did not receive payment of such account, we are of the opinion that any presumption of payment was rebutted so as to defeat such presumption. A presumption of law, as such, is not in the nature of evidence and has no probative force, and that when some evidence of probative nature has been introduced tending to overcome the presumption, it disappears entirely from the case. White v. Smyth, 147 Tex. 272, 214 S.W.2d 967, 974 (1948); Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 857 (1942); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768 (1940).

There was no error in the action of the trial court in entering judgment for the plaintiff.

AFFIRMED.


text:
    GARDAL, INC., et al., Appellants, v. The LIFE INSURANCE CO. OF VIRGINIA, Appellee.
    No. 8000.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      Ron Edmondson, David Lair, Dallas, for appellants.
    Atwell, Cain & Davenport, B. J. Stephens, Dallas, for appellee.
   CLAYTON, Justice.

This is a summary judgment case involving a promissory note and guaranty agreement. The trial court granted summary judgment against the maker and guarantors of the note, and also granted summary judgment in favor of three of the guarantors (R. L. McSpedden, Charles C. Shaver, and Paul Hamby) against the other two (0. K. Jones and Ted Hunt, Jr.) on an indemnity contract. Gar-Dal, Inc. (maker of the note), Jones, and Hunt have appealed from this judgment; McSpedden, Shaver, and Hamby have not appealed.

Plaintiff filed its first motion for summary judgment with supporting affidavits, and subsequently filed its amended petition, amended motion for summary judgment, and amended affidavit with exhibits. The amended petition alleges that “[a] true and correct copy of said Note is attached to Plaintiff’s Original Petition as Exhibit ‘A’ and incorporated herein by reference.” An affidavit in support of plaintiff’s amended motion for summary judgment sworn to by plaintiff’s Vice President states that plaintiff “has been and is the sole owner and holder of the Note. A true and correct copy of the Note is attached hereto as Exhibit ‘A’.” The copy of the note was not a “sworn or certified copy” as required by Tex.R.Civ.P. 166-A(e).

Defendants’ first two points complain of the granting of the summary judgment because plaintiff failed to present any proof that it is in possession of the original promissory note which is the basis for plaintiff’s case, nor does it include a sworn or certified copy of such note attached to a proper affidavit.

Tex.R.Civ.P. 166-A(e) provides that

“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Neither the original nor a sworn copy of the note was attached to the amended motion for summary judgment or the affidavit in support of the motion as required by Tex.R.Civ.P. 166-A(e). A copy of the note was attached to the original petition and to the affidavit.

The original petition, to which an unsworn copy of the note was attached, could not be considered as summary judgment proof. In Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 543 (Tex.1971), the plaintiff moved for summary judgment on the matters sworn to in its petition. The Court held it was error to grant the plaintiff’s motion for summary judgment. The reasoning was that matters sworn to in the pleadings are not summary judgment proof. The Court states, “Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes.”

The affidavit, to which a copy of the note was attached, does not meet the requirements of Tex.R.Civ.P. 166-A(e). The copy of the note was not sworn to or certified.

The Supreme Court of Texas has pointed out, in cases involving summary judgments on promissory notes, the great desirability of attaching the original note to the affidavit in support of the motion. In discussing a series of opinions on the subject, the Court reaffirmed this principle in Texas Nat. Corp. v. United Systems Internat’l, Inc., 493 S.W.2d 738, 741 (Tex.1973):

“And the opinions in LaRue, [367 S.W.2d 162 (Tex.1963)], majority and dissenting, point out the high desirability of attaching the original of the note to the motion or affidavit.”

The reasons for this “high desirability” are rather obvious. The original of the note carries with it evidence of possession and ownership. A copy does not. The reason that accounting for the original note is so important is that the original note is negotiable. Any number of persons may possess photocopies of a note complete with a photocopied signature; however, only the person who is the present owner and holder and who is in possession of the original can be entitled to a judgment thereon.

The verified allegations that a plaintiff “is the sole owner and holder” of the note do not suffice. According to Chief Justice Greenhill in Texas Nat. Corp., supra, evidence of possession is required:

“If a sworn or certified copy, rather than the original of the note, is used, the motion or affidavit should clearly evidence that the plaintiff is the present owner and holder and in possession of the note.” (493 S.W.2d 741)

Plaintiff’s summary judgment proof is totally inadequate because there is not a single word about possession of the original note. The rule is, following the decisions of our Supreme Court, that if a copy of a note, even if sworn to or certified, is used and attached to an affidavit in summary judgment proceedings, then the affidavit or other summary judgment proof must clearly evidence that the plaintiff is not only the owner and holder,-but is also in possession of the note. The summary judgment proof of the plaintiff fails to meet this requirement.

Plaintiff strongly urges that since the defendants did not except or object to this defect in the supporting affidavit at or prior to the hearing, then such has been waived. We agree that such a defect can be waived, if not timely and properly brought to the attention of the trial court. The rule is clearly stated in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963). In that ease, the summary judgment affidavit did not show affirmatively that it was made on personal knowledge, nor did the affidavit have attached thereto a “verified or certified” copy of the agreement that was the subject matter of the suit. The Court stated:

“If petitioner was in any doubt as to these matters or if it was prejudiced in any way by the fact that sworn or certified copies of the operating agreement were not attached to or served with the Johnson affidavit, it should have excepted to the affidavits at or prior to the hearing. The deficiencies which it now urges appear to be purely formal, and it may be assumed that they would have been corrected upon proper exception in the trial court. We hold that objections of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Emphasis added) (363 S.W.2d 234)

See also, Farmers & Merchants Comp. & W. Co. v. City of Dallas, 335 S.W.2d 854 (Tex.Civ.App.—Dallas 1960, writ ref’d n.r. e.); Lobit v. Crouch, 293 S.W.2d 110 (Tex.Civ.App.—Austin 1956, writ ref’d n.r.e.).

We are of the opinion that the rule is, as stated in Youngstown, supra, that the objection may not be raised for the first time on appeal, rather that it must be presented at or prior to the hearing. This is a matter that was and should be cured prior to the final judgment. If the matter is brought to the attention of the trial court before the judgment becomes final, the court retains jurisdiction and control over the final disposition of the case. The defects could be cured before the final judgment is entered, and the problem would not arise. As stated by Chief Justice Greenhill in Texas Nat. Corp., supra:

“The answer pointed out that the plaintiff’s motion for summary judgment and the affidavit were insufficient. . This answer placed the problems squarely before the trial court, and it should have been heeded.” (493 S.W.2d 739)

In that case, the matter was called to the attention of the trial court in the defendants’ answer. But the important point is that the matter is called to the attention of the court prior to the entry of or the finality of the judgment.

In our case under review, the matter of the defect in the affidavit was brought to the attention of the trial court prior to the entry of the judgment. This calls for a brief review of the proceedings in the trial court. On January 9,1976, an interlocutory summary judgment was entered in favor of McSpedden, Shaver, and Hamby against Jones and Hunt on the indemnity agreement. August 20, 1976, an interlocutory summary judgment was entered against all defendants in the main suit. October 21, 1976, a “final” judgment was entered. Defendants (Gar-Dal, Inc., Jones, and Hunt) filed a motion for new trial on November 1, 1976, pointing out specifically the defects in plaintiff’s supporting affidavit. An amended motion for new trial was filed November 8, 1976, again specifically pointing out the defect. Plaintiff filed a reply to defendants’ motion for new trial on November 17, 1976, and the record shows the parties presented their arguments to the court on the amended motion for new trial. On December 4, 1976, judgment was entered setting aside the summary judgment entered October 21, 1976, and entering a new judgment on the same date. Plaintiff filed a motion for new trial again on December 13, 1976, and the court overruled the same on December 16, 1976. Upon a review of these transactions, it is clear that the defects in the affidavit complained of by defendants were presented to the court prior to the entry of a final judgment. They were timely presented, and the trial court could have permitted the defects to be cured. In view of these proceedings, the matters complained of were raised in the trial court timely, and it cannot be said they were raised for the first time on appeal. We hold the matters relating to the defects in the affidavit were not waived.

The question of waiver as presented on this appeal presumably will not arise in the future. We note that effective January 1, 1978, Tex.R.Civ.P. 166-A(e) now reads:

“Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”

The plaintiff is not entitled to a judgment on the note since it has neither shown itself to be in possession of the original nor has it properly authenticated the copy relied upon. These deficiencies in proof with respect to the note itself preclude any recovery on the guaranty securing the note; therefore, plaintiff is not entitled to have a summary judgment entered on any aspect of its claim.

Primary liability on the note not being established, then the summary judgment granted in favor of McSpedden, Shaver, and Hamby against Jones and Hunt cannot stand.

Even though defendants McSped-den, Shaver, and Hamby have not appealed from the judgment of the trial court as to them on the main action on the note, we reverse and remand the entire case, including all parties, to the trial court for trial on the merits, under the authority of Bates v. First National Bank of Waco, 502 S.W.2d 181, 185 (Tex.Civ.App. — Waco 1973, no writ) and cases cited therein. See also, Austin Shoe Stores v. Elizabeth Co., 538 S.W.2d 677 (Tex.Civ.App. — Waco 1976, writ ref’d n.r.e.), and Great Am. Mtg. Inv. v. Republic of Tex. Sav. Ass’n, 538 S.W.2d 146 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ).

REVERSED and REMANDED.


text:
    Linda JOHNSON, Appellant, v. JEFFERSON COUNTY CHILD WELFARE UNIT, Appellee.
    No. 8038.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 20, 1977.

      Steven D. Ross, Beaumont, for appellant.
    Paul N. Buchanan, Beaumont, for appel-lee.
   KEITH, Justice.

The natural mother appeals from a judgment which terminated her parental rights to her six-year-old son while yet another order permitted her to have visitation privileges with him. The judgment was based upon two alleged facts of misconduct on the part of the mother which had occurred thirty-five months before the entry of the decree. We reverse and remand.

Although not articulated by counsel for the appellee, the termination was predicated upon Tex. Family Code Ann. § 15.-02(1)(E) and the “best interest” provision found in § 15.02(2) (Supp.1977).

We first dispose of the best interest base of the judgment. Several of the employees of the appellee welfare unit testified that it would not be in the best interest of the child that the mother’s right of visitation with her son be terminated. The parties presented a joint motion for allowance of visitation rights to the trial judge one day after the entry of the order terminating all of her parental rights. This instrument read in part:

“It appears to all the parties that it would now be in the best interest of Linda Johnson [appellant] and GABRIEL BARCLAY [the minor] if Linda Johnson were granted the right of reasonable visitation with the child. The agreement is evidenced by the signatures of all parties to this cause appearing at the bottom of this Motion.”

We note that while the signatures mentioned were not of the parties but of counsel, the trial court accepted it as such and granted the mother reasonable visitation rights.

We are of the opinion that the trial court erred in terminating the mother’s parental rights one day and entering an order the next day finding that it was to the best interest of the child that she have visitation rights. Under Tex. Family Code Ann. § 15.02(1)(E) (Supp.1977), the moving party below labored under the burden of establishing the existence of the facts alleged by a preponderance of the evidence — and —that the involuntary termination of the parental rights “is in the best interest of the child.” Schiesser v. State, 544 S.W.2d 373, 377 (Tex.1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976).

A court may not deny a parent access to his/her child unless it finds that the parental possession is not in the best interest of the child or would endanger the physical or emotional welfare of the child. Tex. Family Code Ann. § 14.03(c) (1975). Our record shows that on April 20,1977, the trial court terminated the parental relationship under § 15.02(1)(E), and on April 21,1977, granted the mother access to the child under § 14.-03(c). Or, stating it differently, the court found it to be in the best interest of the child that his mother’s parental rights be terminated, but the next day, found that it would be in his best interest that the mother be allowed to visit him. See and compare Holley v. Adams, 544 S.W.2d 367, 373 (Tex.1976), where the Court commented upon the fact that the father — the person seeking to terminate the mother's parental rights — testified that “it would not be in the best interest of the child that he never see his mother again.” On the record which it reviewed, the Court held that there was no evidence “that termination of the parent-child relationship is in the best interest of the child.”

In our view, the two findings, which stand unexplained and unrebutted in our record, are of such inconsistency as to be mutually destructive. Thus, there is no finding that it is in the best interest of the child that the parental rights of the mother be terminated — an indispensable finding to a valid judgment of termination.

Moreover, we remain unenlightened as to the reason for the long delay in bringing the case to trial. As noted earlier, the sole incident forming the basis of the termination proceedings — the alleged hot water incident — occurred on May 17, 1974, yet the trial was not held until April, 1977.

In considering the prior statute, our Supreme Court in Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex.1966), held:

“These provisions do not contemplate that an adjudication may be based solely upon conditions which existed in the distant past but no longer exist.”

Accord, Adams v. Herd, 526 S.W.2d 295, 299 (Tex.Civ.App.—Waco 1975, no writ); Hogan v. Roop, 500 S.W.2d 936, 937 (Tex.Civ. App.—Waco 1973, no writ), decided under the present code.

It is apparent from our record that the mother and her child had been living with the grandmother during most, if not all, of the time between the incident forming the ostensible basis of the termination proceedings and the hearing. But, during this almost three-year period, there is no evidence of a repetition of the charged act or one of a similar nature.

The long delay incident to bringing the case to trial does not augur well for the result reached. Indeed, one of the welfare workers assigned to the case testified to another reason (not mentioned in the pleading) which motivated the trial. Upon being questioned as to “why should we terminate parental rights”, the caseworker testified:

“Okay, well, the reason for it mostly would be that if something happened to Mrs. Barclay [grandmother], although her health is good and there are no problems in that area, if something were to happen, all of the parental rights would fall back to Linda [mother], to Mrs. Johnson and at this point I just don’t think that would be good.”

We decline to permit a rights termination judgment to rest, even in part, upon such testimony. See and compare Holley v. Adams, supra (544 S.W.2d at 373).

Having found reversible error, we do not find it either necessary or appropriate to discuss in detail the two charges brought against the mother as set out in footnote 1, supra. We note specifically that there was no evidence that the child was placed in scalding water, the record simply showing a difference of opinion as to whether the bath water was too warm. It is sufficient to state that from our review of the record as a whole, we do not find that the evidence supporting such allegation of misconduct on the part of the mother was factually sufficient to support the trial court’s judgment terminating the parental rights of the mother.

In our review of this record, we have considered carefully the series of cases by our Supreme Court decided late in 1976, see, e. g., Wiley v. Spratlan, supra (543 S.W.2d 349); Holley v. Adams, supra (544 S.W.2d 367); and Schiesser v. State, supra (544 S.W.2d 373).

We invoke the rationale of this trio of cases and, in so doing, find reversible error. We could, as the Supreme Court has done in similar instances, sustain a no evidence point as to the parental termination plea; but, because of the unsatisfactory record which we review, we do not render the judgment in favor of the mother. Instead, we sustain appellant’s points attacking the factual sufficiency of the evidence to support the findings upon which the judgment is based. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The judgment is REVERSED and the cause is REMANDED.

CLAYTON, J., not participating.

      . The trial pleading contained this language:
      “Petitioner further alleges that Linda Johnson has engaged in the above grounds for termination of parental rights by reason of the existence of the following facts:
      “On or about the 17th day of May, 1974, in Jefferson County, Texas, Linda Johnson did then and there do bodily harm to GABRIEL LYNN BARCLAY by immersing him in scalding hot water.
      “Further, prior to May 7, 1974, Linda Johnson had embarked on a course of abusive behavior towards the child by hitting on the face with her fist.”
      No other grounds were alleged in the pleading.

      . § 15.02. Involuntary Termination of Parental Rights:
      “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      (1) the parent has:

      (E) engaged in conduct . . which endangers the physical or emotional well-being of the child; . . . ."


text:
    STATE of Texas, Appellant, v. WOODVILLE LUMBER COMPANY, INC., et al., Appellees.
    No. 8041.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 20, 1977.
    Rehearing Denied Nov. 10, 1977.

      Marvin F. Sentell, John L. Hill, Atty. Gen., Austin, for appellant.
    John H. Seale, Jasper, for appellees.
   KEITH, Justice.

The State appeals from an adverse judgment rendered after a bench trial wherein it sought a permanent injunction and penalties for the alleged violation by the defendants of Tex.Rev.Civ.Stat.Ann. art. 911b, § 16(b)-(c) (Supp.1977), commonly known as the Texas Motor Carrier Act.

The State alleged that upon sixty separate days the defendant Screws acted as a “motor carrier” in transporting lumber and lumber by-products from the manufacturing plant of Woodville Lumber Company, in Tyler County, to various cities in Texas for compensation or hire as a “contract carrier” in violation of the provisions of the Act.

It was agreed between the parties that the goods were transported over the highways upon the several dates alleged by the State and that neither of the defendants was licensed under the terms of the Act to act as a contract carrier. State’s counsel states the question presented by this appeal in this manner:

“The issue between the parties is the interpretation to be given to the contractual agreement between Woodville Lumber Company and Joe P. Screws. Appellant contends that Joe P. Screws was performing a contract carrier service for hire for Woodville Lumber Company and that the form chosen by these Appellees was designed simply to mask the true relationship of the parties. The Appel-lees on the other hand, contend that these transportation movements were ‘private carriage’ by Woodville Lumber Company and that the contractual arrangement between the Company and Joe P. Screws was an ‘incentive plan’ designed by the parties as a means of compensating Joe P. Screws as an employee of Woodville Lumber Company.”

Upon the trial, it was established that before 1971 or 1972, the lumber company engaged the services of a licensed contract carrier in the delivery of its lumber and lumber by-products throughout Texas. A disagreement arose between the lumber company and the contract carrier and an arrangement was worked out between Screws and the company whereby Screws would provide such services to the company. The State has contended throughout the litigation that the agreement between Screws and the lumber company was but a subterfuge to avoid the effect of the Act.

However, there was testimony to the effect that the company purchased the trucks, carried the drivers upon its payroll, paid the workmen’s compensation premiums upon such drivers, and carried public liability insurance upon the trucks which bore the legend of ownership thereon. The company contended that its dealing with Screws, which the State relies upon to show the subterfuge, was simply a profit incentive plan whereby Screws would receive a portion of the savings from the cartage of the lumber for his efforts in supervising such operation.

We concede that the evidence before the court would have supported a judgment for the State for the penalties but, after considering the testimony, the trial court filed its findings of fact and conclusions of law which were adverse to the State’s contentions. The court’s findings tracked the language of the statute from which the court concluded that there was not a violation of the Act.

In Gandy v. Culpepper, 528 S.W.2d 333, 335 (Tex.Civ.App.—Beaumont 1975, no writ), we had occasion to collate the authorities with reference to the effect to be given to findings of fact and conclusions of law in a non-jury trial when an examination of the statement of facts showed such findings to be supported by competent evidence of probative value. We apply this rule in the case at bar.

But, the State contends that it sought additional findings and conclusions of law which were refused by the trial court and it has sought to protect the record by a formal bill of exception. The demand for the additional findings was made twelve days after the filing of the original findings of fact. A request for additional findings must be made within five days after the filing of the original findings. See Tex.R. Civ.P. 298 and the authorities cited in Vanity Fair Properties v. Billingsley, 469 S.W.2d 453, 455 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). See also Elrod v. Elrod, 517 S.W.2d 669, 675 (Tex.Civ.App.—Corpus Christi 1974, no writ). In this case, counsel did not seek an extension of time within which to file the request for the additional findings under Tex.R.Civ.P. 5(b). No error being shown, point three complaining of the failure to file additional findings is overruled.

State’s counsel has filed a scholarly brief supporting the thesis that the activities of the defendants were in violation of the cited statute. Most of the pertinent authorities are discussed in detail, and we have given careful consideration to the argument and supporting authorities. However, our problem is factual—not legal.

State’s counsel places much emphasis—in the brief and upon oral argument—upon Reavley v. State, 124 Tex.Cr.R. 528, 63 S.W.2d 709 (1933), and Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436 (1959). We find that while there is language in each opinion favorable to the State’s position, neither is controlling in the case at bar. In Reavley, the appeal was from a final conviction of a misdemeanor; and, obviously, the trial judge had accepted the State’s version of the facts as being true. Berry was an appeal from a summary judgment and only deposition testimony was considered in the trial court; and, as noted by Justice Norvell, the depositions must be construed “in the light most favorable to petitioners.”

In the case under review, the trial court did not accept the State’s version of the facts, but found against the State on a factual basis. Under the line of authorities discussed in Gandy v. Culpepper, supra, this finding is controlling upon appeal. After reviewing the facts under the applicable standards [see, e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)], we find no error.

The judgment of the trial court is affirmed.

AFFIRMED.

      . The statute defines a “motor carrier” in § 1(g) defined in § 1(h) of the Act [1964]. [Supp.1977], while a “contract carrier” is

      . The court made these findings:
      (1) “At all times mentioned in plaintiff’s pleadings, Woodville Lumber Co. had a regular, separate, fixed, and established place of business, other than a transportation business, where goods, wares and merchandise are kept in stock and where lumber and lumber byproducts are manufactured in the ordinary course of the manufacturing business.”
      (2) “Merely incidental to the operation of such business, Woodville Lumber Co. transported such goods over the highways of this state, at the times mentioned in plaintiff’s pleadings and at all such times, Woodville Lumber Company was the bona fide owner of such goods and transported same by means of motor vehicles of which Woodville Lumber Co. was the bona fide owner."

      . We do not approve of findings which consist of pure factual and legal conclusions, as was done in the case at bar. Such a procedure thwarts the purpose of the rule requiring findings and is of little assistance in an appellate court. But, no complaint is made of this procedure on this appeal.
      We suggest that trial courts should follow the procedure outlined in 4 McDonald, Texas Civil Practice, § 16.05, p. 10, fn. 29 (1971 Rev. Vol.), wherein the author discusses the rule prevailing in the federal practice.