author: WARD, Justice.

text:
    Richard W. MEANS et ux., Appellants, v. UNITED FIDELITY LIFE INSURANCE COMPANY et al., Appellees.
    No. 6551.
    Court of Civil Appeals of Texas, El Paso.
    March 23, 1977.
    Rehearing Denied April 20, 1977.

      Walker F. Means, Pyote, Ed Keys, Mona-hans, for appellants.
    L. Holt Magee, Monahans, John R. Lee, Kermit, for appellees.
   OPINION

WARD, Justice.

The Plaintiffs, Richard W. Means and wife, Ida G. Means, filed suit against Defendants, United Fidelity Life Insurance Company, Manuel DeBusk, and R. D. Skel-ton, Trustee, to recover the title and possession of an alleged 200-acre rural homestead, to declare the invalidity of two trustee’s sales insofar as they might affect the 200-acre homestead, to declare the invalidity of two security agreements purporting to cover certain horses and personal property, and to recover certain amounts as actual and exemplary damages. United Fidelity Life Insurance Company and Manuel DeBusk, by cross-action, sought to recover title and possession of three tracts of land, one of which included the 200-acre disputed homestead, monetary judgment, and foreclosure of security interest in the horses and personal property. After a jury trial, where special issues were answered in favor of all Defendants and Cross-Plaintiffs, judgment was entered that the Plaintiffs take nothing and that the Cross-Plaintiffs recover on their claims. Plaintiffs appeal and we affirm.

The facts regarding the dispute between the Plaintiffs and United Fidelity Life Insurance Company will be discussed first. The surfaces of three tracts of land were acquired by the Plaintiffs and are involved in the suit, and they are referred to on certain of the exhibits as tracts I, I A, and II. Tract I contains 154.77 acres, and tract IA contains 324 acres, and both are a portion of Survey 20 and were deeded to the Plaintiffs by Mr. Means’ father. No claim of homestead was asserted by the Plaintiffs at this trial as to any portion of these two tracts.

The claim of the alleged 200-acre rural homestead was made as to tract II. This tract II, which lies in a portion of section 19, contains 322.59 acres and was conveyed on March 8, 1969, to the Plaintiffs. The grantors in that deed retained a vendor’s lien, together with a deed of trust lien, to secure the balance of $7,000.00 owed on the purchase price, that being evidenced by a promissory note of even date in said amount and signed by the Plaintiffs. In May, 1971, this note, together with the vendor’s lien and deed of trust liens, was sold and assigned by those original grantors to the First Savings and Loan Association of Odessa, the sum of $6,383.00 being still owed on the note at the time of this transfer.

During the next two years, the Plaintiffs executed three successive mechanic’s lien notes in the amounts of $4,356.00, $7,878.96, and $18,000.00, each being for the purpose of erecting permanent improvements on tract II, and all being secured by respective mechanic’s and materialman’s liens on tract II. All of these notes and liens were eventually transferred to the First Savings and Loan Association of Odessa, where on March 17,1972, a new extension and renewal note was executed in the principal amount of $25,000.00 by the Plaintiffs, the same being secured by a deed of trust which was made in renewal and extension of all of the four previous liens secured by tract II and being additionally secured by tracts I and IA. The validity of this $25,-000.00 indebtedness and its security has not been questioned by the Plaintiffs.

The Plaintiffs next applied to First City Mortgage Company of Dallas for a new loan and proposed to mortgage all of the real estate. In preparing for the loan, they filed of record a designation of their homestead as being on a 1-acre tract containing a stucco house on tract IA, although the evidence was to the effect that they had never moved from their homestead located in the south portion of tract II. Regardless, a loan of $75,000.00 was secured, the promissory note in that amount being executed July 20, 1972. Although this note was supposed to be secured by deed of trust on all three tracts excluding the so-called 1-acre homestead designation on tract IA, all of tract IA was excluded by mistake from the deed of trust. However, tracts I and II were in the deed of trust, and it was this note of $75,000.00 and this deed of trust lien which were thereafter transferred to the Defendant, United Fidelity Life Insurance Company. As shown by the admissions of the Plaintiff Means and the closing statement made at the time of this last loan, the sum of $26,057.02 was advanced from the proceeds of the loan at the request of the Plaintiffs to pay the balance of principal and interest then owing on the $25,000.00 note held by the First Savings and Loan Association of Odessa. After this payment, and after the execution of the deed of trust of $75,000.00, First Savings apparently did not transfer its liens but executed a release, though this is not of record.

Default thereafter occurred in the payment of the $75,000.00 note, as no payment was ever made thereon, and on May 7,1974, Lawrence L. Barber, Jr., acting as substitute trustee and under the terms of the deed of trust, sold the said tracts I and II at trustee’s sale to the Defendant, United Fidelity Life Insurance Company, at their authorized bid of $56,250.00.

No special issues were submitted to the jury regarding any of the facts between the Plaintiffs and United Fidelity, except the jury did determine that the reasonable cash market value of all the land on May 7,1974, was $63,000.00. However, in its judgment, the trial Court made certain findings which were to the effect that: (1) the rural homestead of the Plaintiffs was situated on the southwest 200 acres of tract II on July 20, 1972; (2) the Defendant, United Fidelity Life Insurance Company, is subrogated to all the rights of the First Savings and Loan Association of Odessa by reason of the payment to such Association of the sum of $26,057.02 on July 20, 1972, at the special instance and request of the Plaintiffs, and is subrogated to the valid lien against the southwest 200 acres in tract II; (3) on July 20, 1972, tract IA was omitted from the deed of trust executed by the Plaintiffs for the benefit of the Defendant, United Fidelity Life Insurance Company, due to a unilateral mistake on the part of United Fidelity Life Insurance Company; (4) the foreclosure of tracts I and II had by Lawrence L. Barber, Jr., substitute trustee, and sold to the Defendant, United Fidelity Life Insurance Company, was a valid foreclosure, and the Plaintiffs are entitled to a credit of $56,250.00 bid at such sale; and (5) on May 7, 1974, the Plaintiffs were indebted to the Defendant, United Fidelity, on the note in the principal sum of $75,000.00, interest in the amount of $12,488.85, attorney’s fees in the amount of $8,748.88, for a total of $96,-237.73, less the credit of $56,250.00, leaving a balance due on May 7, 1974, in the amount of $39,987.73, with interest on said balance due from May 7,1974, to January 2, 1976, of $6,621.55.

The decretal portion of the judgment as far as United Fidelity Life is concerned was to the effect that: (1) Plaintiffs take nothing; (2) the Cross-Plaintiff, United Fidelity Life Insurance Company, recover title and possession of tracts I and II, which would include the title and possession of the claimed homestead; and (3) the Cross-Plaintiff, United Fidelity Life Insurance Company, have judgment against the Cross-Defendants, Mr. and Mrs. Means, in the sum of $37,860.40, with interest from the date of judgment of January 19, 1976, at the rate of eight percent per annum, attorney’s fees in the amount of $8,748.88, and for costs of suit.

As to the facts regarding the dispute between the Plaintiffs and Manuel DeBusk, we find that in August, 1973, the Plaintiffs executed and delivered a $15,000.00 note payable to the order of the Winkler County State Bank, the note being secured by a deed of trust lien and a certain security agreement, and the deed of trust covering tract IA. At the time of executing the note and deed of trust, the Appellants also signed a security agreement in blank which was thereafter dated September 20, 1973, and filled in by the Defendant, R. D. Skel-ton, who was employed at the Winkler County State Bank. The security appears as “27 Seven Apaloosa Horses including but not limited to: Equal’s Bob song, Equal Leo, Patsy’s Sugar, Last Hope, Equal Esta, Equal Judy, Stride’s Sugar Babe, Goldberg, and all increases thereof, Machinery, Equipment.”

On December 26, 1973, Means borrowed an additional $5,000.00 from the Winkler County State Bank, executed a promissory note therefor, securing the same by an additional security agreement which he executed in blank, but which appears to cover livestock, horses, and equipment, plus any and all increases thereof. The authority of Mr. Skelton to include the horses in the security agreements of September 20th and December 26th became a disputed issue in the case.

On May 30, 1974, the promissory note for $15,000.00 and the one for $5,000.00, the deed of trust lien securing the first note covering tract IA, and the two security agreements were transferred and conveyed to Manuel DeBusk. The two notes being in default, on July 2,1974, a trustee’s sale was conducted by R. D. Skelton as trustee under the deed of trust, and tract IA was sold at the trustee’s sale to Manuel DeBusk, the consideration in the trustee’s deed being recited at $40,000.00. On May 28, 1975, R. D. Skelton executed a trustee’s correction deed regarding this last described trustee’s sale, and recited that the $40,000.00 figure was inserted in the deed by inadvertence and was error, and that the true consideration was $14,000.00 cash. The amount of the consideration also became a disputed issue in the case.

On August 5, 1974, having accelerated the last two promissory notes, DeBusk executed a notice to Means to assemble collateral and called upon him to produce the Apaloosa horses, the increase thereof, and the machinery and equipment previously secured.

Upon the trial, the jury, by their answers to the special issues submitted, determined that Mr. Means authorized Skelton to include the horses in the security agreements of September 20th and December 26th, 1973; failed to find that Ida Means authorized the inclusion of the horses; found that Skelton bid for DeBusk at the trustee’s sale of July 2, 1974, for tract IA the sum of $14,000.00 in cash; answered “no” to the question that DeBusk, by asserting a claim on the Plaintiffs’ horses effective August 5, 1974, had damaged the Plaintiffs in their horse business; and determined that the reasonable cash market value of tracts I, IA, and II on May 7, 1974, was the sum of $63,000.00.

As to the DeBusk dispute, the trial Court in its judgment recited that: (1) the Wink-ler County State Bank held a first and valid lien against tract IA, and a first and valid security interest lien against the 27 Appaloosa horses, including the eight previously named and all increases thereof; (2) Manuel DeBusk purchased said note and lien from the Winkler County State Bank and was the owner of the same on July 2,1974; (3) the foreclosure had by Skelton, trustee, on behalf of DeBusk on July 2, 1974, was a valid foreclosure on tract IA, and Mr. and Mrs. Means were entitled to a credit in the amount of $14,000.00 at such sale; (4) De-Busk is entitled to foreclosure of his security interest lien on all the horses, equipment, and chattels; (5) the Plaintiffs were entitled to no damages against DeBusk; and (6) the Plaintiffs were indebted to DeBusk on July 2,1974, on the principal of the notes in the amount of $20,000.00, with interest to such date in the amount of $1,554.05, and attorney’s fees in the amount of $2,155.40, for a total of $23,709.45, less a credit of $14,000.00, leaving a balance due of $9,709.45, with interest on said sum from July 2, 1974, to January 2, 1976, in the amount of $1,456.50

The decretal portion of the judgment as far as DeBusk is concerned was to the effect that: (1) Plaintiffs take nothing; (2) Cross-Plaintiff DeBusk have judgment against the Cross-Defendants, Mr. and Mrs. Means, in the sum of $9,110.55, with interest thereon from date of judgment at the rate of eight percent per annum, attorney’s fees in the amount of $2,155.40, and for costs of suit; and (3) Cross-Plaintiff De-Busk recover title and possession to tract IA and have foreclosure of his security interest in the horses previously described.

Motions for summary judgment were filed by both Plaintiffs and Defendants and argued to the trial Court several weeks before the trial, and no order was made thereon either denying them or granting them in whole or in part. The Plaintiffs’ first two points assert trial Court error in not ruling on their motion for summary judgment prior to trial, and at least in not making an order specifying ahead of trial that the 200-aere homestead in tract II was the Plaintiffs’ homestead, and in not determining at that time that tract IA was omitted from the July 20,1972 deed of trust due to the unilateral mistake of United Fidelity Life Insurance Company. Plaintiffs argue that testimony regarding their false or mistaken designation of homestead as being in tract IA, and the circumstances surrounding the omission of tract IA from the deed of trust of July 20,1972, due to the unilateral mistake of United Fidelity, prejudiced the Plaintiffs in the eyes of the jury; that the trial Court should have ruled in the Plaintiffs’ favor at the time of the hearing on their motion for summary judgment, and if it had, such testimony would then not have been admissible before the jury. The failure to rule presents no error as, at the time of the hearing, the Court was unable to conclude that either movant had shown conclusively a right to even a partial summary judgment. The summary judgment proof on behalf of the homestead claim consisted of affidavits and testimony of the interested parties. The question of intent was involved; the evidence was conflicting and contradictory; the fact that both parties moved for summary judgment did not abolish the duty of the trial Court to determine whether fact issues existed; and if the Court had ruled, it should have entered an order denying both motions completely. No error is presented. 4 McDonald, Texas Civil Practice, Sec. 17.26.8(iii) at 155; Sec. 17.26.12 at 177 (1971).

During both the discovery process and at the presentation of the Plaintiffs’ case, evidence was developed that out of the proceeds of the $75,000.00 loan the sum of $26,057.02 was advanced to pay off the previous note held by First Savings and Loan Association of Odessa. When the Plaintiffs rested, United Fidelity was permitted to file a trial amendment setting up that it had become subrogated to the rights of First Savings and Loan Association, and that the valid lien as to the claimed homestead tract had passed to it by the subrogation. At that time, the Plaintiffs claimed surprise and asserted that the trial Court abused its discretion in permitting the trial amendment. It is noted that at the time, the Court questioned the Plaintiffs’ attorneys as to their desire for withdrawal of their announcement of ready, but that the Plaintiffs’ attorneys, while announcing that they were claiming surprise, also stated that they were ready to proceed with the trial. We find no abuse of discretion under the circumstances and the point advanced is overruled. Rule 66, Tex.R.Civ.P.; Home Indemnity Company v. Draper, 504 S.W.2d 570 at 577 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.); 2 McDonald, Texas Civil Practice, Sec. 8.07 at 334 (1970).

By a series of combined points, the Plaintiffs next attack the trial Court’s action in permitting the foreclosure of their 200-acre rural homestead and holding it valid by reason of United Fidelity Life being subrogated to the rights under the valid deed of trust lien of First Savings and Loan Association of Odessa, the Plaintiffs asserting that the said Defendant had not proven that the deed of trust lien of First Savings and Loan Association of Odessa had continued to be a valid and subsisting lien, and that actually First Savings and Loan Association released its lien on July 27, 1972. While the release is not of record, assertions to that effect are repeatedly made by the Plaintiff-Appellants, and have not been challenged by any of the Appellees. Whether we accept the assertions as establishing the facts or whether we assume the release to have been executed, United Fidelity still acquired a lien superior to the homestead rights of the Plaintiffs in the 200-acre part of tract II. As previously pointed out, the $25,000.00 note held by First Savings and Loan Association of Odessa and its underlying security was valid and superior to the homestead interest of the Plaintiffs. At the request of the Plaintiffs, $26,057.02 of the proceeds of the $75,-000.00 loan was advanced to pay off the principal and interest then owing on the $25,000.00 note. Further,, the deed of trust securing the $75,000.00 note provides as follows:

“4. The proceeds of the Note to the extent that the same are utilized to take up any outstanding liens against the Mortgaged Premises, or any portion thereof, have been advanced by the Note-holder at Grantors’ request and upon Grantors’ representation that such amounts are due and are secured by valid liens against the Mortgaged Premises. The Noteholders shall be subrogated to any and all rights, superior titles, liens, and equities owned or claimed by any owner or holder of any outstanding liens and debts, however remote, regardless of whether said liens or debts are acquired by the Noteholder by assignment or are released by the holder thereof upon payment.”

Subrogation may arise from the agreement of the parties or by implication and equity to prevent fraud or injustice; it is a doctrine of equity, a substitution of another person in the place of the creditor so that the person in whose favor it is applied succeeds to the right of the creditor in relation to the debt. These general principles were expressed in Platte v. Securities Inv. Co., 55 S.W.2d 551 (Tex.Com.App.1932). Where subrogation, arises, it makes no difference whether the party, on the payment of the money, took an assignment of the mortgage or a release, or whether a discharge was made and the evidence of the debt cancelled. Kone v. Harper, 297 S.W. 294 at 297 (Tex.Civ.App.—Waco 1927), aff’d Ward-Harrison Co. v. Kone, 1 S.W.2d 857 (Tex.Com.App.1928). Whether we have a purely equitable subrogation or, as here, a purely contractual one where both Mr. and Mrs. Means agreed to the subrogation, the principles are the same, and the rights of United Fidelity Life Insurance Company after the payment were superior to the homestead rights of Mr. and Mrs. Means in that tract. This same result would have been reached from a purely equitable subro-gation, as occurred in the case of Lewis v. Investors Savings Association, 411 S.W.2d 794 (Tex.Civ.App.—Fort Worth 1967, no writ). The principle is that one not a volunteer who advances money to pay a valid encumbrance on a homestead, under circumstances from which an understanding is to be implied that at least a part of the advancement made is to be secured by a first lien on the land encumbered, is subro-gated to the rights of the prior encum-brancer under his security, unless superior or equal equities of others would be prejudiced thereby. See also 28 Tex.Jur.2d Homesteads, Secs. 95 and 161 (1961).

In connection with the foreclosure of the Plaintiffs’ 200-acre rural homestead, Plaintiffs next complain that it was an unauthorized foreclosure because it was made without adjusting the equities that existed in the Plaintiffs’ favor. We overrule the point.

Regardless of who had the burden of proof, the Defendants introduced the testimony of a real estate appraiser who gave his opinion that on May 7,1974, the reasonable market value of the land, exclusive of improvements in tract II, was $35.00 an acre, and that the improvements which were on the claimed 200-acre portion were reasonably valued at an additional sum of $20,750.00, thus making the total reasonable market value of the 200-aere homestead at $27,750.00. This would have been a sum less than the amount then due and owing on the note, which was secured by a lien prior and superior to the homestead claim. As previously stated, the trustee sold tracts I and II on May 7th for $56,250.00, and at that sale the Plaintiffs were represented by one of their attorneys who merely observed the proceedings. The Plaintiffs made no objection to the sale, made no effort to require the trustee to sell the non-exempt property before offering the homestead tract, and have raised no complaint in that respect at this time. By failing to make such a demand at the time of the sale and by permitting the property to be sold in bulk, the Plaintiffs waived any right to require segregation. Price v. McAnelly, 287 S.W. 77 (Tex.Civ.App.—San Antonio 1926, writ dism’d).

Using additional testimony of the Defendants’ real estate appraiser, the Plaintiffs argue that the sale of the unsegregated homestead property brought more than the legal debt properly chargeable against the homestead tract. Pleadings aside, they have secured no such jury findings. The only relevant jury finding is the one that the value of the three tracts on May 7th was $63,000.00, and there is no way to determine from that the part attributable to the homestead. Further, at no time have the Plaintiffs tendered the part of the debt properly charged as a lien against the 200 acres. The fact that the debt secured by the mortgage against the homestead tract might have been in excess of the amount properly chargeable against the property does not affect the validity of the trustee’s sale. To have avoided such a sale, the Plaintiffs should have tendered the amount of the debt legally chargeable against the homestead before the sale of the mortgaged property, and if that tender had been rejected, then the Plaintiffs should have restrained the sale until the equities were adjusted. Having failed in that regard, they have also failed in the present proceedings to plead or secure any findings where the equities could have been adjusted. Lewis v. Investors Savings Association, supra, at 798; Price v. McAnelly, supra, at 81.

The Plaintiffs next assert that DeBusk was not entitled to have foreclosure of any security interest in the horses. The evidence was to the effect that the two security agreements were executed in blank by Mr. and Mrs. Means at the Winkler County State Bank; that Mr. Means authorized Mr. Skelton to put the horses in the security agreement; and that the horses were then listed on the security agreement as they were given to Skelton by Mr. Means. This was a disputed issue, and the jury found that Means authorized Skelton to include the horses in the two instruments. The jury failed to find that Mrs. Means authorized the inclusion. The authorization by the husband was sufficient. We notice that as to commercial paper, if it is signed while incomplete, it can be enforced as completed, if it is completed in accord with the authority given. We find no authority which would prohibit the same ruling as to the security interest in the horses. See Sec. 3.115 Tex.Bus. & Comm.Code Ann.; 15 Am.Jur.2d See. 497 (1976). Means testified that he still had possession of the horses, with the exception of some that had died, and he described their location. We see no error in the foreclosure of the horses.

The Plaintiffs complain of the description in the security agreement of December 26th where the words “livestock” and “equipment” were used. We fail to find where the Court ordered foreclosure of livestock and equipment and that point is also overruled.

The Plaintiffs next assert that the recital in the trustee’s deed to DeBusk that the consideration was $40,000.00 was binding on DeBusk. The evidence was to the effect that the insertion of $40,000.00 was done by mistake and that the true consideration was $14,000.00. The point is overruled. The principles of estoppel by deed generally do not apply to the recitation of the amount of consideration.- 28 Am.Jur.2d, Estoppel and Waiver, Sec. 24 (1966). As to any equitable estoppel, neither facts nor jury findings are present. The recital of the consideration, not being of a contractual nature, could be explained and the real consideration shown. 19 Tex. Jur.2d Deeds, Sec. 55 (1960).

As to the jury’s failure to find that De-Busk damaged the horse business of the Plaintiffs, the Plaintiffs advance both “no evidence” and “great weight” points. In regard to the “no evidence” points, we have considered only the evidence tending to support the findings, and those points are overruled. Insofar as the points complain of the finding being against the great weight and preponderance of the evidence, we have considered all of the evidence, and those points are also overruled.

Having considered all of the Appellants’ points, and having overruled them, the judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    DELTA AIR LINES, INC., Appellant, v. Mildred GIBSON, Administratrix of the Estate of Thelma Eunice Green, Deceased, Appellee.
    No. 6566.
    Court of Civil Appeals of Texas, El Paso.
    March 30, 1977.
    Opinion After Entry of Remittitur April 27, 1977.
    Rehearing Denied April 27, 1977.

      Rassman, Gunter & Boldrick, John E. Gunter, Midland, for appellant.
    Michael L. Fostel, Glen Williamson, John R. Lee, Kermit, for appellee.
   OPINION

OSBORN, Justice.

This case arises from a fall sustained by an air line passenger while changing planes at Love Field in Dallas. Based upon jury findings, judgment was entered against Delta Air Lines, Inc., for damages arising from the personal injury sustained and for incurred medical expense. We affirm on condition of a remittitur.

On July 22, 1972, Thelma E. Green, age 69, a Kermit resident, flew from Midland to Shreveport to visit a sick sister. She traveled via Continental Air Lines to Dallas without incident. Although she felt fine on arriving at Love Field, she got tired on the long walk to change planes, and was eventually taken by wheelchair to board the Delta flight to Louisiana. Because of some mechanical problems, the plane she had boarded was unable to make the scheduled flight and all passengers were required to change planes.

Mrs. Green was then escorted across the ramp and up the stairs by a Delta Passenger Service Agent. Then she was assisted by the wife of a Delta employee who was traveling on the same flight. While proceeding down an escalator, she fell at the last step and sustained the injuries resulting in this suit. According to the testimony of Mrs. Green, she fainted when she reached the bottom of the escalator. Mrs. Rogers, who was assisting her, thought she lost her balance and fell.

After the fall, a Delta Passenger Service Attendant took her by wheelchair to the second plane for her flight to Shreveport. There, she was taken by wheelchair to a car of relatives who met her at the airport. While in Louisiana, she was hospitalized on two occasions. She said before the fall she was a very active person, and thereafter she had to use a walker to get around.

After returning to Kermit, on March 11, 1975, she sustained a fall at home and was hospitalized. Hip surgery was performed and one of the doctors testified she was suffering from an old fracture which he concluded resulted from the fall at Love Field. She never recovered from the surgery and died on May 22, 1975. The doctor testified that: “She developed post-opera-tively a huge ulcer on her sacrum, and this didn’t become evident until it broke open and this infection eroded into her spine canal,' and this caused her encephalitis and killed her.” Her daughter, as administra-trix, was substituted as Plaintiff in this cause.

Delta presents five points of error contending that liability has not been established. It contends that the trial Court should have sustained its motions for an instructed verdict and for judgment non obstante veredicto, and that the Court erred in submitting special issues on its negligence to the jury.

While we recognize that Delta is not an insurer of the safety of its passengers, as a common carrier, it is required to exercise a high degree of care for its passengers. Hill v. Texas, New Mexico & Oklahoma Coaches, Inc., 153 Tex. 581, 272 S.W.2d 91 (1954); Garrett v. American Air Lines, 332 F.2d 939 (5th Cir. 1964); 3 A.L.R.3d 930. This duty extends during the entire passenger-carrier relationship, and includes time spent on station premises and during boarding and unloading operations. Fort Worth & D. C. Ry. Co. v. Kidwell, 112 Tex. 89, 245 S.W. 667 (Tex.Comm’n App.1922, opinion adopted); Brown v. American Airlines, Inc., 244 F.2d 128 (5th Cir. 1957), 61 A.L.R.2d 1108; Tolson v. Pan American World Airways, Inc., 399 F.Supp. 335 (U.S.D.C.Tex.1975).

While Delta has operating procedures which provide extra precautions for sick or disabled passengers when requested, no one used those procedures and the Air Lines was not advised of a need to provide special care for Mrs. Green. It contends that it had no knowledge of any infirmities on her part, and that in fact she did not know she was going to faint until she did in fact fall at the bottom of the escalator. Had a request for a wheelchair been made, that service would have been provided by a Passenger Service Agent.

The jury found that Delta failed to discover Mrs. Green’s infirm physical condition when she got on its airplane, that it failed to discover her infirm physical condition when she was changing planes, and that it failed to provide her with a wheelchair when changing planes. Each of the three acts were found to constitute negligence and be a proximate cause of the occurrence in question.

While the evidence is disputed as to Delta’s exact knowledge about Mrs. Green’s physical condition, the jury could reasonably believe that a Delta employee took her to the first Delta plane in a wheelchair, thereby knowing of her infirm physical condition. There is no dispute but that a Delta Passenger Service Agent helped her leave the first plane and go up to the concourse where she was to proceed to another gate to board the second plane. At that time, the wife of a Delta employee helped her until she fell. We believe a jury could reasonably conclude that Delta exercised a high degree of care in assisting Mrs. Green from the plane and to the concourse, but was not exercising such care when she fell. If Delta was not aware of her need for assistance, it seems most unlikely that a Passenger Service Agent would have assisted her as he did on this occasion. The jury could have concluded that had such assistance continued all the way to the second plane, she would not have sustained a fall on the escalator. While Delta did exercise care for her safety, we conclude that there is sufficient evidence to support jury findings that it did not exercise a high degree of care and was negligent.

We also believe the evidence was sufficient to establish the issue of foreseeability. All that is required is that the injury be of such a general character as might reasonably have been anticipated. Motsenbocker v. Wyatt, 369 S.W.2d 319 (Tex.1963). If Delta knew she needed assistance out of the first plane and up to the concourse, certainly the company should have foreseen that the use of the escalator would be even more of a hazard than just walking down the concourse, and it could be a real danger to a 69-year-old lady. Appellant’s Points of Error 3 through 7 are overruled.

Appellant asserts in its first and second points of error that the trial Court erred in permitting the administratrix to testify as to the medical bills and expense incurred by Mrs. Green, and in entering judgment upon a jury finding as to the amount of those bills when there was no proof that such expense was reasonable and necessary.

At a hearing in chambers before the trial began, objections to certain deposition testimony were considered and acted on by the trial Court. Appellant objected to testimony in Mrs. Green’s deposition concerning her medical bills. At that point, it was evident counsel for Appellee was not prepared to prove that all of the medical bills were reasonable and necessary. Nevertheless, the trial Court stated that it would let the evidence be introduced.

Mrs. Gibson, the administratrix, testified, over objection by Appellant’s counsel, that the medical bills incurred by her mother totalled $12,125.98. Part of this expense had been incurred in Louisiana and the remainder in Kermit. Dr. Gibson, husband of the administratrix, testified that the bills were a result of the fall in 1972. But, there was no evidence that any of the bills were for treatment that was necessary or that the amounts were reasonable. The Court entered judgment against Appellant for $12,125.98 for medical expense (Special Issue No. 11), and for $20,000.00 for pain and suffering and disability (Special Issue No. 10). Clearly, this was error. In Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956), the Court said:

“ * * * it is now well settled that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable. Wheeler v. Tyler, S. E. R. Co., 91 Tex. 356, 43 S.W. 876; Houston, E. & W. T. R. Co. v. Jones, Tex.Civ.App., 1 S.W.2d 743 (wr. ref.); Annotation 82 A.L.R. 1325, and authorities cited therein. We hold that testimony showing only the nature of the injuries, the character of and need for the services rendered, and the amounts charged therefor does not constitute evidence of probative force that the charges are reasonable.”

This rule has been consistently followed by our Courts. Coca-Cola Bottling Company of Plainview v. White, 545 S.W.2d 279 (Tex.Civ.App.—Waco 1976, no writ); American Central Insurance Company v. Melton, 389 S.W.2d 177 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); Texas & Pacific Railway Company v. Leatherman, 351 S.W .2d 633 (Tex.Civ.App.—Eastland 1961, writ ref’d n. r. e.), and Davis v. Safeway Stores, Inc., 532 F.2d 489 (5th Cir. 1976). Appellant’s Points of Error 1 and 2 are sustained.

Next, we must determine what our judgment should be as a result of the error in admitting the medical bills and entering judgment based upon the jury finding. Ap-pellee urges that if such evidence was not admissible, the error may be cured by a remittitur for the amount of such medical bills. Appellant urges that the error was so harmful as to affect the jury finding on the other damages sustained and that a new trial should be ordered. Clearly, that part of the judgment based upon the answer to Special Issue No. 11 is erroneous. The next question is whether the inadmissible evidence was reasonably calculated to probably cause an improper answer to Special Issue No. 10.

Under Rule 434, Tex.R.Civ.P., the complaining party has the burden of showing at least that the error probably resulted to its prejudice. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949). The Rule does not require that the complaining party demonstrate that but for the error, a different judgment would have resulted. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958). “If the erroneously admitted testimony had such force as would be reasonably calculated to have affected the jury finding in question, the complaining party has suffered harm through the error and he is entitled to a reversal on appeal.” McCarty v. Gappelberg, 273 S.W.2d 943 (Tex.Civ.App. — Fort Worth 1954, writ ref’d n. r. e.).

We conclude that the testimony that Mrs. Green incurred over $12,000.00 in medical expense was reasonably calculated to have affected the jury finding as to the amount of damages to be awarded for pain and suffering and physical impairment. Having considered the whole record, we believe such error can be cured by a proper remittitur. Accordingly, the judgment of the trial Court for $32,125.98 will be affirmed upon the Appellee filing with the Clerk of this Court a remittitur of $15,-000.00 within fifteen (15) days from the date of this opinion. Otherwise, the case will be reversed and remanded for a new trial.

OPINION AFTER ENTRY OF REMITTITUR

On the 8th day of April, 1977, the Appel-lee filed a remittitur of $15,000.00 in compliance with the suggestion of remittitur in our opinion of March 30, 1977. On this date, the trial Court’s judgment in favor of Mildred Gibson, Administratrix of the Estate of Thelma Eunice Green, Deceased, is reformed by deducting $15,000.00 from the judgment, and as so reformed, the judgment of the trial Court is affirmed.


author:
GUITTARD, Chief Justice.
      ROBERTSON, Associate Justice,

text:
    Carolyn G. CROSLAND, Appellant, v. TEXAS EMPLOYMENT COMMISSION and ITT Aetna Corporation, Appellees.
    No. 19122.
    Court of Civil Appeals of Texas, Dallas.
    March 30, 1977.
    Rehearing Denied April 28, 1977.

      Randall Grubbs, Garland, for appellant.
    John L. Hill, Atty. Gen., Michael E. Stork, Asst. Atty. Gen., Austin, for appel-lees.
   GUITTARD, Chief Justice.

This suit for unemployment compensation was filed by appellant Carolyn G. Crosland nine days after the Texas Employment Commission mailed to her its decision overruling her motion for rehearing of its decision denying her claim. The trial court dismissed the action for lack of jurisdiction on the ground that the filing was premature under Tex.Rev.Civ.Stat.Ann. art. 5221b — 4(h) and (i) (Vernon 1971). That article reads:

(h) Appeal to Courts: Any decision of the Commission shall become final ten (10) days after the date of mailing thereof, unless, within such ten (10) days, the appeal is reopened by Commission order or a party to the appeal files a written motion for rehearing, and judicial review of any final decision of the Commission shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies (not including a motion for rehearing) before the Commission as provided by this Act.
(i) Court Review: Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure a judicial review thereof by commencing an action . [emphasis added].

We conclude that premature filing of the action did not deprive the court of jurisdiction under the circumstances shown in this record.

As we interpret the statute, judicial review is permitted only after the decision of the Commission has become final, and the decision does not become final until ten days after the date of mailing. Within that ten days the Commission itself may reopen its order, or any party may file a motion for rehearing. When a motion for rehearing has been filed within the ten-day period allowed, the Commission’s order overruling the motion for rehearing does not become final until ten days after mailing that order.

The difficulty arises from the provision of subdivision (i) that permits judicial review by commencing an action “[wjithin ten (10) days after the decision of the Commission has become final, and not before.” What is the effect of filing the petition for judicial review before the time permitted by this subdivision? The statute does not specify. It does not, by its terms, provide that the court can never obtain jurisdiction of an action prematurely filed, even if the petition is on file with the clerk within the ten days permitted for commencing the action. Therefore, we must construe the statute, and we are reluctant to construe it as a strict jurisdictional requirement that the same suit be filed again.

Crosland relies on Texas Employment Commission v. Stewart Oil Co., 153 Tex. 247, 267 S.W.2d 137 (1954), which held that such a premature filing was not fatal under the statute as it stood before it was amended in 1955. In that case, the supreme court said that since the petition was in the possession of the clerk at the end of the ten days, to insist upon the subsequent filing of a duplicate set of papers and obtaining a new filing stamp would be a “retreat into formalism,” and consequently, premature delivery of the petition to the clerk did not prevent it from taking effect when the Commission’s ruling became final.

The Stewart Oil case would control here but for the 1955 amendment, which added the words “and not before.” The Commission insists that this amendment shows the intent of the legislature to change the law as declared in Stewart Oil and, therefore, to deny jurisdiction of an action prematurely commenced, even though the effect of this construction is to require the filing of another petition identical to the one already in the official custody of the clerk.

We are not convinced that the legislature intended to require this meaningless formality. A statute will not be interpreted so as to lead to a foolish or absurd result unless there is no alternative interpretation. McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 698 (1955); Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070, 1074 (1927); Petroleum Casualty Co. v. Williams, 15 S.W.2d 553, 555 (Tex.Com.App.1929, jdgmt adopted). Neither will a statute be construed to require a useless or idle thing if it is susceptible to any other construction. Connally v. Continental Southland Savings & Loan Ass’n, 121 Tex. 565, 51 S.W.2d 293, 298 (Tex.1932); Dovalina v. Albert, 409 S.W.2d 616, 621 (Tex.Civ. App.—Amarillo 1966, writ ref’d n. r. e.). A construction leading to a harsh or unjust result should be avoided, even when the literal text of the statute seems to require it. State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 936 (1942); Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455, 459 (1942); Austin v. Strong, 117 Tex. 263,1 S.W .2d 872, 876 (1928). If adherence to the strict letter of the statute would lead to injustice of absurdity, the court’s duty is to seek the true meaning of the legislation. Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935). These principles of construction are applied even when the question is whether the legislature has granted permission to sue the State. State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 735 (1941); Commercial Standard Fire & Marine Co. v. Commissioner of Insurance, 429 S.W .2d 930, 934 (Tex.Civ.App. — Austin 1968, no writ).

We recognize that the legislature múst be presumed to have intended to change the statute by amending subdivision (i) in 1955. American Surety Co. v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715, 719 (1931). Accordingly, we must construe the amendment so as to give it some effect. In this connection we must determine what the legislature intended to accomplish by the amendment and whether the legislative intent can be given that effect without requiring, as a jurisdictional prerequisite, the second filing of a petition already on file. We believe that the evident legislative intent can be given effect without such a harsh and absurd result. It is reasonable to conclude that after the opinion in Stewart Oil, the legislature was concerned that the filing of a suit before the decision of the Commission became final might be held to pre-empt the jurisdiction of the Commission, and thus to prevent the Commission from reopening its order, and that such premature filing might also prevent other parties from invoking further administrative action by filing a motion for rehearing as authorized by subdivision (h). Whether the Stewart Oil decision would have had that result is beside the point. The legislature was evidently concerned that no doubt be left as to whether the jurisdiction of the Commission might be pre-empted by filing of an action in court before expiration of the full ten days after the date of mailing. Thus, it amended subdivision (i) to provide that an action may be commenced “[w]ithin ten (10) days after the decision of the Commission has become final, and not before.”

Effect may be given to this evident legislative intent without requiring a second action to be filed when the first is filed prematurely. Full effect can be given to that intent by holding that when a suit is prematurely filed, it can have no effect on the jurisdiction of the Commission and is a nullity until the Commission’s decision becomes final. If the Commission’s decision is not final, the Commission may reopen its order or any party may file a motion for rehearing, notwithstanding the premature filing of the suit. In that event the Commission will retain jurisdiction until it finally disposes of the matter. Meanwhile, the petition on file in court has no effect on the administrative process, and the court has no power to proceed until that process is complete. When the Commission’s order becomes final, however, if a proper petition is on file with the clerk, or if such a petition is filed within the ten-day period allowed by subdivision (i), the court then has jurisdiction and may proceed.

Moreover, subdivision (i) does not expressly provide that the petition shall not be filed before the Commission’s decision becomes final. It provides, rather, that the aggrieved party may not commence an action to secure judicial review before that time. An action is not necessarily commenced when the petition is filed. In cases determining when an action has been commenced within the statutes of limitation, commencement is held to require also diligence in service of process. Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970). Under this rule the statutory prohibition of commencing the action before the Commission’s decision becomes final can be given full effect by holding, as we do, that the action is not commenced by premature filing of the petition and cannot be considered commenced until the Commission’s decision becomes final. Then a petition already filed with the clerk will constitute commencement of the action within subdivision (i) if plaintiff ,is diligent thereafter to obtain service of process. Service before the Commission’s decision becomes final would be no more effective than service before the petition is filed. Premature service might have a tendency to discourage other parties from seeking further administrative relief and, therefore, would be within the prohibition of the amended statute. Filing the petition, however, would not, in itself, be likely to have that result. In this case no question of premature service is presented because the record shows that process was not served until after the Commission’s decision became final.

The rule concerning avoidance of absurdity and injustice in the construction of statutes is particularly applicable in this case because of the crucial practical problem facing counsel for Crosland when the petition was filed. He had already filed a motion for rehearing and the Commission had overruled it. Did the Commission’s decision become final when the motion was overruled, or did it become final ten days after the order overruling the motion was mailed? A lawyer accustomed to the procedure for obtaining review of decisions of trial courts and courts of civil appeals under Tex.R. Civ.P. 356 and 468 might have cause for uncertainty as to whether the ten days for commencing the action began when the motion was overruled or ten days later. Counsel might have taken the safe course by filing one action, as he did, within ten days after the motion was overruled, and then filing another more than ten days after the date of mailing the order. In our view it would be unjust and absurd to expect him to file two such identical suits, particularly in such a small matter as a claim for unemployment compensation. To affirm the trial court’s dismissal for want of jurisdiction, we would have to hold that by interpreting the statute as requiring the filing of the petition within ten days after mailing of the Commission’s order, counsel made a fatally erroneous interpretation of the statute. It would be unjust, unreasonable, and absurd to hold that the court did not acquire jurisdiction because counsel did not file the same petition again on the next business day. Consequently, under the authorities cited, we cannot attribute to the legislature an intention to require such a result.

Since the record fails to show that any further administrative proceedings were undertaken that would prevent the decision of the Commission from becoming final within ten days after it was mailed, we hold that the petition in the possession of the clerk after the Commission’s order became final, and before the expiration of the ten-day period allowed by subdivision (i), vested jurisdiction in the court to proceed with the action. Consequently, the court erred in dismissing the action for lack of jurisdiction.

Reversed and remanded.

ROBERTSON, Associate Justice,

dissenting.

I must respectfully dissent. The statute at hand, properly construed, does not allow the filing of a petition before the decision of the Commission becomes final. I do not agree that this strict construction leads to a “harsh and absurd” result, rather, I conclude that the language of the statute is clear and unambiguous, and that the prohibition of premature filing indicates a rational legislative intent to preserve the jurisdiction of the Commission, as well as to protect the rights of other parties to the administrative proceeding.

The court’s holding, as stated by the opinion of the Chief Justice, is that the words “and not before” in the statute are not jurisdictional, but rather merely reflect the legislature’s intention to preclude post-filing procedures in the reviewing court. By this analysis, the court fails to recognize the legislature’s clear intent to avoid such a result, and construes the statute to render the words “and not before” a useless and vestigial appendage.

This interpretation is contrary to established rules of statutory construction. Although Texas Employment Commission v. Stewart Oil Co.„ 153 Tex. 247, 267 S.W.2d 137 (1954) superficially supports Crosland’s claim that the court had jurisdiction to entertain her premature claim, article 5221b-4(i) was amended at the next session of the legislature to insert the words “and not before.” A presumption exists that the legislature is familiar with prior decisions of our supreme court and that if it is not satisfied with the law as declared by the courts, the legislature will enact statutory change to reflect a contrary intention. Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932); State v. Anderson, 119 Tex. 110, 26 S.W.2d 174 (1930); State v. Duke, 104 Tex. 355, 137 S.W. 654 (1911). Courts are obligated to give effect to statutory modification, and legislative annulment of judicial action demonstrates a clear intent to change the law. Smith v. State, 420 S.W.2d 204 (Tex.Civ.App.—Austin 1967) aff’d 434 S.W.2d 342 (Tex.1968).

Unemployment compensation is a right granted by a statute, and legislative grants of rights or privileges must be construed strictly in favor of the state on grounds of public policy. Whatever is not unequivocally granted in clear and explicit terms is withheld. State v. Standard, 414 S.W.2d 148, 153 (Tex.1967); Gilbert v. State, 437 S.W.2d 444, 446 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.). In granting the right to unemployment compensation, the State has also prescribed terms and conditions for its enforcement, and statutes creating rights of action against the State must be strictly construed. State v. El Paso Natural Gas Co., 311 S.W.2d 170 (Tex.Civ.App.—Austin 1957, no writ) . In this instance, the right of appeal has been expressly limited by a mandatory provision, and these statutory proceedings are strictly governed by the statute of their creation. Texas Employment Commission v. International Union of Electrical, Radio and Machine Workers, Local No. 782, 163 Tex. 135, 352 S.W.2d 252, 254 (1961).

Adherence to the terms of the statute does not lead to unjust formality. This court recognizes that premature filing threatens to pre-emp jurisdiction of the Commission by potentially precluding revision of the Commission order. Moreover, such premature filing may also prejudice the rights of other parties to the administrative action by preventing the filing of motions for rehearing under subdivision (h). To rectify these problems, the legislature amended the statute to preclude judicial review before the Commission’s order becomes final. Supposedly, the majority opinion does not construe this prohibition as jurisdictional; however, it goes on to say that “the petition on file in court has no effect on the administrative process, and the court has no power to proceed until that process is complete.” The difference between this limitation and a lack of jurisdiction evades me. Jurisdiction is the power of a court to hear and determine the controversy between the parties, Mitchell v. San Antonio Public Service Co., 35 S.W.2d 140, 143 (Tex.Com.App. — 1931, holding approved), and if a court has no power to proceed in the adjudication of a dispute, as the majority holds, it seems clear that it lacks jurisdiction within the accepted meaning of the term. If we were capable of reviewing the wisdom of legislature enactments, the court could perhaps conclude that the legislature may have had only post-filing activities in mind however, this would not be a proper judicial function. We may not invade the legislative field. The rule which permits departure from the literal meaning of an act does not apply when a statute clearly and unambiguously demonstrates the legislative intent, Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 (1961), and refusal to enforce the statute in accord with that intent is an unwarranted interference with the exercise of lawful legislative authority and an inexcusable breach of judicial duty. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930); Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482, 485 (Tex.Com.App. — 1935, holding adopted). The harshness of a literal construction’s result is no excuse for judicial improvisation. An unambiguous statute should be applied and enforced as it reads, regardless of its policy or purpose or the justice of its effect. Franklin v. Pietzsch, 334 S.W.2d 214, 218 (Tex.Civ.App. —Dallas 1960, writ ref’d n. r. e.). If the legislature wished to qualify its words, it would have done so. Absent such an indication, however, we should not supply judicial provisos.

Moreover, I feel that even if the court was somehow justified to constructively qualify the statute, the new interpretation contravenes accepted authority regarding the jurisdiction of Texas courts. The court seems to conclude that the premature filing of the petition invokes some power of the court to hold the cause in abeyance until its jurisdiction is properly applicable. When the Commission’s order becomes final, the action then spontaneously arises and is then properly before the court. Such a holding fails to recognize that the first consideration of any court is to determine its own jurisdiction of a case, and if a lack of jurisdiction appears, the court should dismiss the case as a matter of law. Hager v. State Ex Rel. TeVault, 446 S.W.2d 43, 52 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Lone Star Finance Corp. v. Davis, 77 S.W.2d 711, 714 (Tex.Civ.App.—Eastland 1934, no writ). The trial court is not authorized to hold causes in abeyance until its jurisdiction is satisfied, nor is it empowered to give later effect to an original filing which was, because of lack of jurisdiction, a nullity.

I am not convinced that forcing a party to refile to meet jurisdictional standards is either unjust or absurd. The legislature evidently was seriously concerned with preventing jurisdictional conflicts and preserving the rights of other parties. It is, not unreasonable to assume that they deemed these considerations of such importance to motivate a strict qualification of the right of appeal. Such a restriction is not absurd and certainly outweighs the fiction that a trial court may retroactively exert its jurisdiction to effectuate that which was originally void. The legislature has acted in a clear and unambiguous manner, and it is not the role of this court to impose its view of the proper procedure in derogation of a manifest legislative intent.

As a personal matter, I am not entirely unsympathetic with the attitude of the majority of the court. My proposed strict construction will result in Crosland’s loss of the right to appeal for lack of timely filing. Despite this hardship, the law is clear, and I cannot decide this case on some vague intuitive feeling of natural justice. I fully share the convictions of the late Justice Roberts, formerly of the Texas Supreme Court, who, in Duncan v. Magette, 25 Tex. 245, 253-54 (1860), said:

Whoever undertakes to determine a case solely by his own notions of abstract justice, breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates law . To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead, is a duty.

For these reasons, I am unable to concur in the judgment of the court.


author: ROBERTSON, Justice.

text:
    ROBERT G. BENEKE & CO., INC., Appellant, v. Bobby Ray COLE, Appellee.
    No. 19160.
    Court of Civil Appeals of Texas, Dallas.
    March 30, 1977.
    H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellant.
    Schuyler B. Marshall, Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   ROBERTSON, Justice.

Robert G. Beneke & Co. sued for liquidated damages for breach of a restrictive covenant in an employment contract executed by Beneke and Bobby Ray Cole, appellee. After a nonjury trial, the court found that Cole had violated the restrictive covenant, but declined to award liquidated damages because the contractual provision therefor constitutes a penalty. Beneke appeals and contends that the trial court’s finding that the contract contained a penalty provision rather than a liquidated damages provision is erroneous as a matter of law and, alternatively, is contrary to the great weight and preponderance of the evidence. We hold that the provision as written constitutes a penalty as a matter of law, and, accordingly, we affirm the judgment.

Beneke is a public adjuster and, in fact, controls eighty to ninety percent of this kind of business in Dallas County. Cole had been a successful claims adjuster representing insurance companies for many years before his employment by Beneke. The contract in dispute was executed at the time of employment, and Cole admits that he read and understood all provisions. He further admits that he terminated his employment with Beneke and in violation of the contract entered into the same business in Dallas County and presently is in competition with his former employer.

It has long been held that a post-employment restraint is reasonable, assuming that the public interest is not directly involved and if it does not impose on the employee a greater restraint than is reasonably necessary to protect business and good will of the employer. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960). In this case, Beneke does not seek injunctive relief to prevent competition, but instead requests that the provision of the contract concerning damages be enforced by the courts. This provision reads as follows:

In ease of violation of this covenant, Cole will pay to Beneke or its successors, the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000) as liquidated damages here agreed upon because of the difficulty of ascertaining the actual damages, but such payment is not to release Cole from the obligations undertaken hereby or from liability of further breach thereon, [emphasis added]

Consequently, the principal issue on appeal is whether the contract provides liquidated damages or a penalty. In Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952), our supreme court adopted the view of the Restatement of Contracts concerning liquidated damages by requiring that the amount of damages fixed in advance be a reasonable forecast of just compensation for the harm by a breach and that the actual damages from the harm be difficult of accurate estimation. Restatement of Contracts § 339 (1932). In this case, the contract not only provides for a payment of $25,000 for a breach of the covenant, but fails to exclude further liability for any actual damages proved. Apparently, Beneke may seek further compensatory damages. We cannot agree with Beneke that this provision is a reasonable forecast of just compensation, since $25,000 is only the first amount to be collected from Cole. Consequently, this provision must be construed to be a penalty and unenforceable.

Although the contract reads that the parties agreed to the difficulty of ascertaining actual damages, there is no evidence before us to show that the parties actually attempted to determine damages or, in the alternative, fix liquidated damages which would be reasonable. Although a contract expressly declares that a stipulated sum is to be regarded as liquidated damages, it may be held to constitute a penalty, and in such a case the recovery may be limited to the actual damages suffered. Santa Fe St. Ry. Co. v. Schütz, 37 Tex.Civ.App. 14, 83 S.W. 39 (1904, writ ref’d). Beneke has not presented evidence as to any real damages he has incurred because of the competition. Therefore, we hold that the trial court did not err by rendering a take-nothing judgment. Accordingly, we affirm the judgment of the trial court.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    Trudy CARTER, Appellant, v. Gloria CONVERSE, Appellee.
    No. 992.
    Court of Civil Appeals of Texas, Tyler.
    March 31, 1977.
    Rehearing Denied April 28, 1977.

      Mike A. Hatchell, Ramey, Flock, Hutch-ins, Grainger & Jeffus, Tyler, for appellant.
    James N. Parsons, III, Paxton, Whitaker & Parsons, Palestine, for appellee.
   DUNAGAN, Chief Justice.

This is a suit to set aside certain deeds and a deed of trust and for full right, title and possession to a lot and residence in the city of Palestine, Texas, which lot and residence was the homestead of appellee, plaintiff below, and her ex-husband. Appellee brought suit against her ex-husband J. W. Converse, Clarence Ellis and his wife, Cynthia Ellis, Joyce Gilmore, First Savings and Loan Association of Athens, Texas, and Trudy Carter, alleging that the above parties participated in several acts of fraud that culminated in the unlawful alienation of her homestead from her title and possession. Appellee sought damages in addition to her requests that the legal instruments in question be held void and set aside. The case was submitted to the jury which answered special issues generally in favor of appellee, and the court entered its judgment ordering that appellee recover her homestead and that title and possession of same be restored to her, and that appellee have her writ of possession to secure said premises. Appellant Trudy Carter moved for judgment n. o. v. which was overruled, and thereafter made her motion and amended motion for new trial. None of the other defendants appeal. We affirm.

In answer to special issues, the jury found that:

(1) on July 26,1972, when appellee signed a Power of Attorney to her husband, J. W. Converse, she was acting while under duress, while under the undue influence of her husband, and while she was mentally incapacitated (Special Issue No. 1);
(2) the deed from J. W. Converse, individually and as attorney-in-fact for appel-lee, to Melton Ellis and wife was intended by them to be a mortgage (Special Issue No. 2);
(3) appellant’s title attorney finally approved the title to the property in question on October 9, 1972 (Special Issue No. 3);
(4) appellant and/or her attorney, on or before October 9, 1972, “either knew, or knew fact or facts sufficient to show by circumstances or in the reasonable exercise of reasonable diligence should have known fact or facts showing that the deed” from J. W. Converse to Melton Ellis and wife was a mortgage (Special Issue No. 4); and that
(5) appellant Trudy Carter bought the house in good faith, believing she was getting good title to the same (Special Issue No. 5).

Appellant alleges three points of error. In points one and two appellant urges that the court erred in overruling her motion for judgment n. o. v., “because there is no evidence to support the answer to Special Issue No. 4, whereby the jury found actual or imputed knowledge by defendant (appellant herein), or her attorney, that the Converse-Ellis deed was intended as a mortgage,” and alternatively (point of error No. 2) that the jury’s answer to Special Issue No. 4 is either unsupported by factually sufficient evidence or is against the great weight and overwhelming preponderance of the evidence. In her third point of error appellant complains of the court’s admitting into evidence a certain letter and check for the reason that the two items were remote, legally irrelevant, and “reversibly prejudicial to defendant’s position in regard to Special Issue No. 4.”

The facts preceding and giving rise to this controversy were as follows. J. W. Converse and his wife, Gloria Converse (hereafter sometimes called appellee) purchased the home in question by warranty deed in 1961 and continued to occupy the same as their homestead up to the time the events giving rise to this controversy commenced. Appellee and her husband were divorced on October 10, 1975.

During the latter years of the Converse’s marriage their relationship deteriorated, due in principal part to serious medical problems suffered by appellee consisting mainly of digestive tract complications. She underwent numerous operations and extensive treatments and her overall health declined severely. This in turn lead to a deteriorating mental-emotional state and addiction to drugs and narcotics. In 1971 she was placed in a private nursing home for a period of one month. In May, 1972 she was involuntarily committed to the Rusk State Hospital until July 10,1972. On July 24, 1972, she was admitted into a Palestine hospital for two days suffering from a drug overdose.

Because of these chronic health problems and their effect upon the family relationship, it was decided that appellee should spend some time with her brother in Philadelphia, Pennsylvania. On July 26, 1972, appellee was released from the Palestine hospital and left for Philadelphia the next day.

For some time appellee’s husband (hereafter called Mr. Converse) had been trying to sell the family homestead. His intentions were, allegedly in part, to sell the homestead (a very large house) and buy a less expensive home, using the surplus money to pay community debts caused by appel-lee’s illnesses. On several occasions, J. W. Converse had attempted to persuade appel-lee to give him a power of attorney, which she had refused to grant.

On the night of July 26, Mr. Converse again presented appellee with a power of attorney authorizing him to sell, encumber, or lease the homestead for the purpose of raising funds to pay community debts. Since appellee was to leave for Philadelphia the next day, appellee signed the power of attorney and acknowledged her signature before Melt Ellis, a defendant in the trial court and Mr. Converse’s employee and business associate.

The jury found that this power was executed under duress, undue influence, and while appellant was mentally incapacitated (Special Issue No. 1). Appellant does not challenge this finding.

Approximately three months later, Mr. Converse, acting for himself individually and under his wife’s power of attorney, conveyed the homestead to Mr. Ellis and his wife by an instrument entitled a warranty deed dated October 27, 1972, which said instrument was later filed for record on November 16, 1972. The purchase price was stated to be $25,000.00 and was financed in that amount through the Henderson County Savings and Loan Association of Athens by a loan and deed of trust arrangement. Mr. Converse himself paid the loan application fee to the savings and loan and also co-signed the note given to obtain the loan.

The Converse family continued to occupy the premises after the deed to Mr. Ellis and wife. There is evidence to the effect that Mr. Converse rented the premises from Mr. Ellis through a rental agreement for a monthly rental equal to the monthly payment owed on the Ellis-Converse note to the savings and loan; that Mr. Ellis never exercised dominion or control over the home; that Mr. Converse made all the payments on the Ellis-Converse note; that the savings and loan company contacted Mr. Converse when the note payments were late; that Ellis never depreciated the home as rent property; and that Ellis and Mr. Converse had an agreement that in the event Mr. Converse died, Ellis would deed the premises back to the Converse family. Converse and Ellis both testified that this sale was a legitimate conveyance not intended to be a mortgage, and that Converse’s occupancy was as Ellis’s tenant under a formal rental contract. There is also testimony, however, that the sale was actually a sham conveyance concocted so that Mr. Converse could obtain money through refinancing the homestead. The jury, in its answer to Special Issue No. 3 found that the Converse to Ellis conveyance was intended to be a mortgage. Appellant does not challenge this finding, admitting that some circumstantial evidence exists supporting the jury’s finding.

Appellee returned from Philadelphia to Palestine, Texas in November of 1972 after the Converse to Ellis conveyance and remained there for approximately a year and a half. The Converse family during this time continued to occupy the residence. Appellee testified that one evening during this period Mr. Converse told her that he had refinanced the house through Mr. Ellis and that that was the first time she had heard anything about it; that she didn’t inquire further about it because she didn’t know what she could do about it; and that he told her that if anything happened to him there was a deed for her to file.

After an altercation with Mr. Converse, appellee returned to Philadelphia on the advice of her doctor in January, February or March of 1974. The record is not clear as to the exact date.

Converse, after he mortgaged the property to Ellis through the savings and loan, listed the home for sale with real estate agents in Palestine. Later, in August of 1974, and while appellee was in Philadelphia, appellant became interested in the home as a potential home for the foreman of a nearby ranch owned by appellant’s husband.

In September of 1974, after negotiation with Mr. Converse, who specifically represented to Mrs. Carter that Ellis was the owner of the property and that he (Converse) was acting as Ellis’s agent, a contract of sale was entered into for a total sum of $41,500, with appellant agreeing to assume the existing indebtedness against the home. Converse agreed to do certain repairs to the home, which he did. About this time, i. e. on September 13, 1974, Mr. Converse also filed for divorce.

Upon reaching this sale agreement, appellant employed an attorney, John Davis, to formalize the transaction, examine the title and handle the closing and disburse the funds. Since a contract of sale had already been entered into between Mr. Converse and appellant and a deed actually prepared when appellant’s attorney was employed, he suggested that the net proceeds due the seller be escrowed pending his examination. Appellant then escrowed $16,937.00, which sum was deposited by her attorney in his trust account. The deed from Ellis and wife (the sellers of record) to appellant was delivered to appellant’s attorney’s office later that day or the next day by Mr. Converse.

At no time did appellant ever talk to or otherwise contact Ellis or his wife, and appellant’s attorney stated at different times that he did not contact Ellis or that he could not recall contacting Ellis. Ellis himself stated that he never was contacted by appellant or her attorney. Appellant and her attorney dealt entirely with and through Mr. Converse.

Ellis signed the deed to appellant at Mr. Converse’s office and at that time he did not know either the amount of the sales price of the home or whether or not there was a gain or loss on the home. He did not acquire that knowledge until depositions were taken in this lawsuit.

Appellant, who testified that she was in the property investment business, relied upon' her attorney and abstract company fully in all matters. At the time of her purchase, appellant knew that:

(1) the Converse’s had owned the home prior to the Ellises;
(2) Mr. Converse and appellee Mrs. Converse were getting a divorce;
(3) Joyce Gilmore was having an affair with Mr. Converse;
(4) appellee Mrs. Converse was in Pennsylvania;
(5) Mr. Converse was and always had been in possession of the home;
(6) the alleged rent being paid by Mr. Converse was the amount of the monthly note payment to the savings and loan company; and
(7) Mr. Converse negotiated the transaction entirely and agreed to make certain repairs to the home without checking with Ellis.

As mentioned earlier, Mr. Converse presented the Ellis to Carter deed, dated and completed, to appellant’s attorney. Her attorney testified that his law practice consisted primarily of real estate work and that this particular transaction was the first time he “had a real estate transaction closed in such a way where the person was ready to buy and the deed was there ready to go.” Nevertheless, after examining title, appellant’s attorney drew and required a ratification deed from appellee ratifying the Converse to Ellis transaction. This was allegedly required because the power of attorney was not recorded until September 19, 1974 (the Converse to Ellis deed was recorded on October 27, 1972); and the power of attorney, in its signature line, misstated appellee’s name as “Cynthia” Converse instead of Gloria Converse, and that “in an over-abundance of caution [appellant’s attorney] required a ratification deed.”

It is not clear on what day appellant’s attorney prepared the ratification deed. It was given to Converse who was to have his wife, appellee, execute it. Appellee at this time was in Pennsylvania. The signature of appellee Gloria Converse appearing on the ratification deed is without dispute a forgery.

The ratification deed was forged by ap-pellee’s and Mr. Converse’s daughter, who testified that she signed her mother’s name at her father’s request. The ratification deed was notarized on October 4, 1974, in Anderson County, Texas, by Joyce Gilmore, who had been carrying on an affair with Mr. Converse and is the present wife of Mr. Converse. As mentioned earlier, appellant knew that Mr. Converse was having an affair with Gilmore, and had, in fact, been in their presence while they were together.

The forged ratification deed was returned to appellant’s attorney’s office by Mr. Converse on October 7, 1974 or the day before. Appellant’s attorney testified as follows:

“Q. All right, but the point is, John, that your client, Trudy Carter, by deposition yesterday testified that she knew Bill and Gloria Converse were getting a divorce and similarly she knew that Gloria Converse was in Pennsylvania. Did she tell you either of those two items?
“A. No.
“Q. She did not?
“A. She did not.
“Q. And if she had told you, wouldn’t it have struck you funny that if Gloria Converse is in Pennsylvania, that the Ratification Deed was acknowledged in Anderson County?
“A. You want me to explain the Ratification Deed?
“Q. Explain it.
“A. Like when I made the requirement or when I decided to do this on the title work and I called Mr. Converse and told him that I was requiring, this Ratification Deed, I asked him where his wife was. He told me his wife was in Pennsylvania. I said, ‘Fine are you going to get this up there or how are you going to get it done.’ Answer, he said, ‘She is supposed to be here or Houston or’ — I can’t remember — ‘one day and I’ll get her to sign it on that day.’ After that he brought the thing in.
“A. Well, when the Ratification Deed was delivered to me then my work was completed.
“Q. Do you recall when this was, what point in time?
“A. The letter to Mr. Ellis dated the 7th. It was either that day or the day before. It was before the letter was written.
“Q. Really, your decision [to approve title] didn’t depend on the letter so much as it did the Ratification?
“A. No. The letter was an afterthought after that was done.
“Q. That [the letter] was in regards to the disbursements, is that correct?
“A. That’s correct.”

When Mr. Converse returned the forged ratification deed to appellant’s attorney, Mr. Converse then requested that the net proceeds from the sale, $16,632.77, be paid to him (Converse) and not Ellis. The record shows that appellant’s attorney did not ask Converse why he was to receive the $16,-632.77 even though the record shows there was no support for the payment; that appellant’s attorney did not contact Ellis at any time and ask him why Converse was receiving the funds; that appellant’s attorney required a letter which he drew for Ellis and his wife’s signatures, holding him harmless for paying the funds to Converse. Converse took the letter, had it signed by Ellis and his wife, and returned it to the attorney on October 9,1974. On October 9, appellant’s attorney authorized a check to be made payable to Converse for $16,632.77 bearing the notation “Conveyance to Trudy Carter,” and on October 9, 1974, he had a check issued to the County Clerk of Anderson County, Texas, bearing the notation “Converse to Carter.” Both checks were signed by the attorney’s secretary.

Other items of evidence, which were admitted over appellant’s objection are (1) a letter from Davis to appellant dated October 28, 1974, beginning with “In connection with the purchase of the house here from Mr. Converse . . . ”; and (2) a check drawn on Davis’s trust account paying Davis for his legal fees dated October 30,1974, bearing the notation “Converse to Carter.”

It is undisputed that appellee did not know of the purchase by appellant. Converse, after the sale and as was his habit, forwarded appellee’s medicine to her in Pennsylvania. He would pack it with newspaper in a box. Mrs. Converse testified that while she was in Pennsylvania she was homesick and “wanted to read about Palestine,” Texas. Included within one of the boxes of medicine was a portion of a Palestine newspaper containing the legal records. Appellee read the legal records, recognized the legal description of her home, and obtained her first knowledge of the sale of Ellis to appellant.

Appellant’s “no evidence” and “insufficient evidence” points of error attack the jury’s finding that appellant or her attorney “either knew, or knew facts or facts sufficient to show by circumstances or in the reasonable exercise of reasonable diligence should have known” that the Converse to Ellis conveyance was a mortgage. The absence of actual or imputed knowledge is critical to the preservation of the bona fide purchaser shield cutting off the rights or equities of third parties. A bona fide purchaser of realty is one who buys property in good faith for valuable consideration and without knowledge (actual or imputed) of outstanding claims in a third party or parties. Houston Oil Co. of Texas v. Hayden, 104 Tex. 175, 135 S.W. 1149, 1152 (1911); Socony Mobil Oil Corp. v. Belveal, 430 S.W.2d 529 (Tex.Civ.App., El Paso 1968, ref’d n. r. e.) cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76.

Any actual or imputed knowledge held by appellant’s attorney is chargeable to appellant. See Wellington Oil Co. of Delaware v. Maffi, 136 Tex. 201,150 S.W.2d 60, 63 (1941); Hexter v. Pratt, 10 S.W.2d 692 (Tex.Com.App.1928); Bouldin v. Woosley, 525 S.W.2d 276, 279 (Tex.Civ.App., Waco 1975, n. w. h.); Portman v. Ernhart, 343 S.W.2d 294, 299 (Tex.Civ.App., Dallas 1960, ref’d n. r. e.). It is this combined knowledge that is the standard by which we must decide what evidence, if any, supports the jury’s findings that appellant or her attorney had knowledge of facts which would have put them on further inquiry. “Since the principal, if he had conducted the transaction for himself, would in all probability have ascertained the facts which came to the knowledge of the agent in making the transaction, he should not be allowed to avail himself of the circumstance that he acted through an agent, and to say that, although his agent was affected with notice, he acted in good faith.” Teagarden v. R. B. Godley Lumber Co., 105 Tex. 616, 154 S.W. 973, 975 (1913).

To allow appellant to contend successfully that since her attorney did not know facts which she knew, she could not be bound by his failure to make further inquiry because he did not know those facts, would, in effect, circumvent the above quoted rule of the Teagarden case. Such a situation would, in effect, allow appellant to insulate her knowledge from the knowledge of her attorney.

Appellant contends that the deed record existence of the Converse to Ellis deed precluded constructive or imputed knowledge of the mortgage situation even though Mr. Converse remained in possession of the premises after the Converse to Ellis conveyance, relying on the doctrine laid down in Eylar v. Eylar, 60 Tex. 315 (1883). Appellant attempts to limit notice to one fact— that being the continued possession of Mr. Converse. Quoting from her brief, appellant states “So, under Eylar v. Eylar, no imputed or constructive knowledge of an adverse claim could be visited upon Mrs. Carter merely by Converse’s possession and, by virtue of the recorded Ellis deed, she was further, as the cases say, ‘. relieved of further inquiry’ . . . barring some actual knowledge of a fact inconsistent with the purport of the Ellis deed.’ ”, citing cases. Appellant further contends that in addition to the fact that she had no actual knowledge, even if she had been under a duty to inquire, she and her attorney pursued the inquiry that would have been pursued by an ordinary prudent person. We disagree.

In the ease of Hexter v. Pratt, supra, 10 S.W.2d at p. 693, it is stated:

“Notice in law is of two kinds — actual and constructive. These descriptive terms need but little explanation. In common parlance ‘actual notice’ generally consists in express information of a fact, but in law the term is more comprehensive. In law, whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge, itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. So that, in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise, those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed. Actual notice is always a question of fact.”

Hexter v. Pratt, supra, has been cited with approval by the Supreme Court in Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376, 388 (Tex.Sup.1965); Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 289 (1951); Flack v. First Nat’l Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 632 (1950). In the Champlin Oil case the Supreme Court, 403 S.W.2d at page 388, stated that “It has been determined by Texas authority that imputed actual notice carries with it the same legal consequences as conscious knowledge.”

We agree with appellant’s statement in her brief that the scope of Special Issue No. 4 and this appeal is limited to whether or not appellant or her attorney had notice that the Converse to Ellis conveyance was a mortgage, and that “the judgment stands or falls upon knowledge of that fact.” Thus, the fact that there was an outstanding homestead claim due to the invalid power of attorney and forged ratification deed will not support the judgment on appeal if there was no actual knowledge of a mortgage situation.

However, the chief issue here concerns the extent of inquiry made by appellant and her attorney. Any inquiry of appellee made by them would have revealed the following evidence, as testified to by appel-lee:

“Q. . . . Now, Gloria, when did you find out that he [Mr. Converse, ap-pellee’s husband] had deeded the house [to Ellis] and that he obtained a new loan through Athens [savings and loan company]?
“A. One evening he [Mr. Converse] was talking to me in bed and he said— he told me if anything should happen to me he says you’ll find the deed in the safe over at the lumberyard.
“Q. What deed was that?
“A. That’s what I asked him, what deed? And he says it’s to this house. And I said what am I supposed to do with it? He said, ‘Just go file it.’ T had refinanced the house and used Melt Ellis.’ And that’s the first I heard about it.”

Accordingly, we find there is some evidence to support the jury’s answer to Special Issue No. 4. When considering a no evidence point, the reviewing court must view the evidence in support of the jury findings in its most favorable light considering only the evidence and reasonable inferences to be drawn therefrom which support the finding and rejecting the evidence and inferences contrary to that finding. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); Transport Ins. Co. v. Mabra, 487 S.W.2d 704 (Tex.1972).

Each conveyance of real property is, in its very nature, a different set of circumstances from any other conveyance. We are not prepared to say that in each real estate transaction, the purchaser or his agent should inquire directly to the seller, or the seller’s predecessor in title. There is no uniform standard of diligence in checking title beyond the usual record title search. Beyond the usual record title search, purchasers must use that diligence which fits the situation. In light of the circumstances of this case, we feel that appellant and/or her attorney should have inquired directly of appellee or Ellis. There are enough facts supporting the jury’s answer to Special Issue No. 4 to support the inference that had appellant or her attorney inquired of appellee and Ellis, the fact that the Converse to Ellis conveyance was a mortgage would have been discovered. Certainly an inquiry of appellee would have prevented the forged ratification deed and probably would have discovered the facts surrounding the execution of the power of attorney, which was found to have been executed under duress, undue influence and while appellee was mentally incapacitated. This aside, appellant or her attorney or both knew, individually and collectively. that:

(1) the Converses were the predecessors in title to Ellis and had remained in possession of the home;
(2) Ellis notarized the power of attorney, which was not filed for record until approximately two years after the Converse to Ellis conveyance;
(3) Mr. Converse and Joyce Gilmore were having an affair;
(4) the Converses were getting a divorce;
(5) Joyce Gilmore notarized the ratification deed;
(6) appellee was in Philadelphia, Pennsylvania;
(7) the alleged rent paid by Mr. Converse was the amount of the note payment to the savings and loan;
(8) Mr. Converse agreed to make repairs to the home;
(9) a homestead declaration was on file; and
(10) Mr. Converse at his request was to receive the proceeds from the sale to appellant.

In considering a factual sufficiency point, this court must consider and weigh all evidence in the case and set aside the judgment and remand only if we conclude that the judgment is against the great weight and preponderance of the evidence and is manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Cox Enterprises, Inc. v. Filip, 538 S.W.2d 836 (Tex.Civ.App., Austin 1976, n. w. h.). We have reviewed the entire record and are of the opinion that the evidence is of sufficient strength to support the jury’s findings and such findings are not against the great weight and preponderance of the evidence. The above listed facts, alone, support our opinion that appellant or her attorney knew “facts sufficient to show by circumstances or in the reasonable exercise of reasonable diligence should have known fact or facts showing that the deed from Converse to Ellis was a mortgage.” Appellant’s second point of error is overruled.

Appellant’s final point of error complains of the admission of two instruments into evidence. One instrument was a letter from Davis to appellant dated October 28, 1974, containing the phrase “In connection with the purchase of the house here from Mr. Converse . . . .” The second instrument was a check dated October 28, 1974, payable to Davis and his partner, drawn upon their trust account apparently reimbursing them for certain expenses in connection with the sale, and bearing the notation “Converse to Carter.” Appellant in her brief states that the objections were made on the grounds of remoteness, irrelevancy, and immateriality. Actually, the objection that was made was that the instruments were “inadmissible . . . as to any notice that may have been acquired after September 27, 1974.”

The exhibits were offered by appellee’s attorney while appellant’s attorney was testifying. Appellant’s attorney had testified that he never considered, nor indicated to appellant, that the sale was from Mr. Converse to her as opposed to a sale from Mr. Ellis to her. The exhibits were thus clearly admissible for impeachment purposes. Appellant could have made a limited objection, objecting to the exhibits’ admissibility for purposes other than impeachment, but he failed to do so. Thus, he cannot now object to the admissibility of the evidence for general purposes. Blum Milling Co. v. Moore — Seaver Grain Co., 277 S.W. 78, 81 (Tex.Com.App., 1925, jdmt. adopted); Union Transports, Inc. v. Braun, 318 S.W.2d 927, 934 (Tex.Civ.App., Eastland 1958, n. w. h.) and cases cited therein; McEntire v. Baygent, 229 S.W.2d 866, 868 (Tex.Civ.App., El Paso 1950, n. w. h.). The fact that these instruments were dated approximately twenty days after October 9, 1972 (the date on which the jury found that legal title passed) does not render them inadmissible on the grounds of remoteness. The executions of these instruments were done in continuance of or in winding up the transaction within reasonable proximity to the date title changed hands. Furthermore, the exhibits were similar to other instruments bearing the same or similar notations which were admitted into evidence, and are not attacked on appeal. There is a reasonable nexus among" all the instruments such that these exhibits are not remote. Moreover, the question of remoteness of evidence is to a great extent within the discretion of the trial court. Union Transports, Inc., supra; also see Miller v. Alexandria Truck Lines, Inc., 273 F.2d 897, 79 A.L.R.2d 812 (5th Cir. 1960), opinion corrected, rehearing denied, 274 F.2d 942, 5 Cir. In any event, if the admission of the instruments complained of into evidence was error, in the light of the record as a whole, it is our opinion that the admission of such instruments did not probably cause and was not reasonably calculated to cause the rendition of an improper judgment. Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.