author: NYE, Chief Justice.

text:
    Jose Guadalupe V. SANCHEZ, Appellant, v. Ray GARZA et al., Appellees.
    No. 1401.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 26, 1979.
    Rehearing Denied May 17, 1979.
    Polk Hornaday, Harlingen, for appellant.
    Randy W. Friebele, Asst. Dist. Atty., Brownsville, for appellees.
   OPINION

NYE, Chief Justice.

The plaintiff filed suit against the sheriff and two Cameron County deputies alleging unlawful arrest and imprisonment. The defendants filed their motion for summary judgment which was granted by the trial court. Plaintiff appeals.

The record shows that plaintiff Jose Guadalupe V. Sanchez was arrested for a criminal offense of driving under the influence of intoxicating liquor. On March 24, 1976, he entered a plea of guilty and was sentenced to ten days in jail, assessed a fine of $100 and costs. The jail sentence was probated for six months. As a condition of such probation, the plaintiff was ordered to pay the $100 fine not later than June 15, 1976. The evidence shows that the plaintiff paid the costs ($40) on March 24,1976; paid $50 on the fine on May 19, 1976; and paid an additional $50 on June 3, 1976.

The summary judgment evidence indicates that on August 16, 1976, the criminal district attorney of Cameron County filed a motion to revoke Sanchez’ probated sentence. As grounds for such revocation, the motion stated that Sanchez had failed to pay the fine as ordered by the court. Thereafter on the same day, the Honorable Robert Hernandez, Judge of the County Court at Law of Cameron County, entered an order setting a hearing on the State’s motion to revoke the probated sentence. The County Court at Law Judge ordered the county clerk of his court to issue a capias commanding the sheriff to arrest Sanchez.

Pursuant to Judge Hernandez’ order, the clerk of the County Court at Law issued the capias directing the sheriff of Cameron County to arrest Sanchez instanter. The sheriff by and through his deputy sheriffs, Ray Garza and Randy Ramirez (all defendants in this lawsuit), did, on the 29th day of August, execute the capias by arresting Sanchez and transporting him to the county jail in Brownsville. Judge Hernandez’ order setting the hearing and ordering the arrest of Sanchez set an appearance bond in the amount of $1,000.

Plaintiff’s suit alleges that when defendants, deputy sheriffs Garza and Ramirez, appeared at his home to arrest him, he protested the arrest and produced the receipts showing that he had previously paid his fine. The deputy sheriffs arrested Sanchez anyway and took him to the county jail where he later posted the $1,000 bond.

Sanchez appeals contending, in effect, that the trial court erred in granting the motion for summary judgment because the defendants (sheriff and deputy sheriffs) were liable to this plaintiff, and there were fact issues necessitating a trial on the merits.

Rule 166-A, T.R.C.P., permits the granting of a summary judgment for a defending party against whom a claim is asserted if the pleadings, answers and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A defendant who seeks a summary judgment on the theory that the plaintiff’s suit is without merit has the burden of establishing as a matter of law that there is no genuine issue of fact as to at least one essential element of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup.1972). The plaintiff (non-moving party) did not file any affidavits and his answer to the motion was not sworn to. In such a situation, the non-movant has no burden in response to a summary judgment motion unless, as here, the movant has conclusively established his defense. Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.Sup.1974).

The basic civil liability for false arrest or imprisonment is the wrongful interference with a person’s freedom. Generally, the essential elements are: 1) a willful detention of the person; 2) against the consent of the party detained; and 3) a detention without authority of law. 25 Tex. Jur.2d, § 17, p. 250; Tandy Corporation v. McGregor, 527 S.W.2d 246 (Tex.Civ.App.— Texarkana 1975, writ ref’d n. r. e.); J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.).

It is a complete defense to an action for false arrest or imprisonment that the arrest or detention was executed by virtue of a process legally sufficient in form and duly issued by a court having jurisdiction to issue it. 35 C.J.S. False Imprisonment § 27, p. 660; Tandy Corporation v. McGregor, supra. The summary judgment evidence shows that attached to defendant’s motion was an affidavit by deputy sheriff Garza which stated in part:

“On the 17th day of August, 1976, the Sheriff of Cameron County, Texas, received a Capias of Arrest, a certified copy of which is attached and made a part hereof, issued out of the County Court at Law of Cameron County, Texas. In per-suance of this Capias, Sheriff’s Deputies Ray Garza and Randy Ramirez arrested Jose Guadalupe Vasquez Sanchez in Har-lingen on the 29th day of August, 1976, and transported him to the Cameron County Jail in Brownsville, Texas where, on the 29th day of August, 1976, the said Jose Guadalupe Vasquez Sanchez was released after posting a $1,000.00 bond.”

Attached as stated was: a copy of the State’s motion (by the criminal district attorney) to revoke Sanchez’ probated sentence; the order setting the hearing, ordering the arrest and setting bond, all signed by the County Court at Law Judge, Robert Hernandez; and the certified copy of the capias for arrest “directed to any sheriff in the State of Texas commanding the arrest of Jose Guadalupe Vasquez Sanchez” which was filed by the clerk of the County Court at Law of Cameron County, Texas.

We hold that the above summary judgment evidence authorized the trial court to grant the summary judgment because such evidence shows, as a matter of law, that the arrest and detention of the plaintiff was accomplished by virtue of a legally sufficient process issued by a judicial officer of this State. It was never the defendants’ (sheriff and deputies) responsibility to determine whether or not the County Court at Law Judge’s order was wrongfully issued. See: 25 Tex.Jur.2d, § 26, pp. 260-261.

We have considered all of appellant’s points of error and they are overruled. The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Rosa SANCHEZ, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
    No. 1420.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 26, 1979.

      Gerald A. Garcia, Texas Rural Legal Aid, Inc., Harlingen, for appellant.
    Thomas Sullivan, Asst. Dist. Atty., David C. Garza, Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

Suit was brought by the Texas Department of Human Resources (State) to terminate the parent-child relationship between Rosa Sanchez, Appellant, the natural mother, and two of her eight minor children, Jose Antonio and Elojia. After a non-jury hearing, the trial judge entered a decree terminating Appellant’s parental rights to Jose Antonio (born January 20, 1977) and Elojia (born January 18, 1976).

The State based its suit on Section 15.-02(1)(D) and (2) of the Texas Family Code Ann. (Supp.1979) which provides that:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
* * * * * *
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; .
******
and .
(2) termination is in the best interest of the child.”

Appellant answered by filing a plea in abatement, a general denial, numerous special exceptions and the following two “affirmative defenses”: 1) that the Department had failed to meet its obligation to provide adequate child welfare and family services which would assist her in her child care duties; and 2) that she was of “limited intellectual and emotional capacity,” lacked training necessary to improve her circumstances and that she had never “willfully denied her children the care that they need nor has she ever intentionally endangered their well-being.” The trial judge, after hearing all the evidence, made the necessary findings to terminate the parent-child relationship.

Appellant, Rosa Sanchez, brings forward five points of error for our consideration. In points of error numbers one and two, Appellant brings forward “legal sufficiency” and “factual sufficiency” points by complaining that the trial court erred in denying her motion for judgment because there is “no evidence” and “insufficient evidence” to support a finding that Rosa Sanchez knowingly placed or knowingly allowed her children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children. Points of error three, four and five attack Sections 15.02(1)(D) and (2) and the trial court’s actions on constitutional grounds.

In Texas, actions which break the ties between a parent and child “can never be justified without the most solid and substantial reasons.” State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900). First, there is the strong presumption that a child’s foremost interest is usually best served by keeping custody in and with the natural parents. This is based on a logical belief that the ties of the natural relationship of parent and child ordinarily bring about strong assurances and genuine efforts on the part of the custodians to provide the child with the best of care and most beneficial opportunities possible. Usually, the best atmosphere for mental, moral and emotional development of the child is with its natural parent. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.Sup.1976), citing Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963).

The standard of our review of legal and factual sufficiency points of error which attack the findings made by the trial judge or jury in an involuntary termination proceeding pursuant to the Texas Family Code is governed by the same general rules applicable to other civil cases. See e. g., Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596 (Tex.Civ.App.— Amarillo 1978, writ ref’d n. r. e); In re E. S. M., 550 S.W.2d 749, 752 (Tex.Civ.App.— Houston [1st Dist.] 1977, writ ref’d n. r. e.). Thus, in deciding the “legal sufficiency” point, we review the evidence only in the light most favorable to support the trial court’s findings, and in deciding the “factual sufficiency” point, we must consider all of the evidence. See Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1951); In re E. S. M., 550 S.W.2d 749 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n. r. e.).

Our review of the evidence herein is directed toward the legal as well as factual sufficiency points of error. Ezequiel Cisne-ros, a Cameron County welfare case worker, testified that he was assigned to assist Rosa Sanchez and her children in September, 1976. During his initial visit to the home, Cisneros discovered that four adult women and approximately twenty-five children were living in one small three-room home containing one bathroom. In addition to Rosa Sanchez and her eight children, Rosa’s mother, three sisters, and approximately seventeen other children occupied the cramped living quarters. Cisneros said he initially was unable to determine which children belonged to Appellant Sanchez. Upon subsequent visits, he testified that he began to identify the various members of each family. He observed that all of the children were dirty, shabbily dressed, and suffered from old scars, scabs and sores indicating that the children received inadequate medical attention.

The case worker testified that as he began to identify which children belonged to Appellant Sanchez, he observed that her children “were always the ones that were hungry; the ones that were never around; or the ones that were out in the streets.” He testified to the effect that the home was always very dirty, cluttered, and had decaying food scattered throughout. He stated that he attempted at the outset to concentrate upon improving the environmental and medical situation of Appellant’s children. He referred the Appellant to a variety of community facilities where public assistance and instructions were available. These included the Texas Employment Commission, the Manpower C.E.T.A. program, vocational rehabilitation (through the Department of Public Welfare), Parents Anonymous; family planning, financial assistance, transportation services, legal aid, food stamps, public housing for supplemental rent and a variety of home management instructions, including the homemaker program available through the Texas Department of Human Resources. The case worker, Cisneros, visited the home where Appellant and her children lived approximately two to three times per week throughout the time from his assignment to the case until the filing of this termination proceeding.

The evidence showed that the Appellant had never been married. There was no evidence as to who the father(s) of all of the children were. Cisneros testified that after Jose’s birth, he observed that the little boy always seemed to be asleep when he visited the house. During a visit in April of 1977, when Jose was approximately three months old, Cisneros paid particular attention to him. He observed that, although Jose was awake, he was lying in his crib in an extremely listless state. At that time, Cisneros observed that the baby had “real skinny arms and real skinny legs and a large protruding belly.” Cisneros recommended to the Appellant that she take Jose to the doctor. Cisneros testified that when he returned to the home, a few days later, he noticed that Jose’s condition was the same. Appellant told him she had taken Jose to the doctor and that he had done nothing because Jose was “all right.”

On May 18, 1977, approximately three weeks later, when Cisneros attempted to visit the Appellant’s home, he was refused entry by Appellant’s mother. Later, he returned and talked to Appellant who told him that her doctor had ordered tests and had given her prescriptions for Jose but that she had not gone back for the results nor had she purchased the prescriptions. Cisneros testified that Appellant indicated that she was dissatisfied and wished to change doctors. Cisneros then made an appointment for her to see a Dr. Bromiley the following day. He requested Appellant to tell him if she needed a ride to the appointment. Four days later (May 23), Jose was finally taken to the doctor after Cisneros checked back with appellant and found that she had failed to keep her initial appointment.

Case worker Cisneros testified that the little girl, Elojia, was almost always in her crib even though she was over sixteen months old at the time. The baby girl also appeared to be extremely undernourished and very listless. Cisneros testified to the effect that, although her condition did not appear to be as serious as that of the younger baby boy, she appeared to be undernourished and recommended that Appellant take her to the doctor as well.

Dr. Abele Bromiley, a pediatrician who had several years experience with malnutrition in Africa, was the next witness. She testified that she had seen Jose and Elojia in her office on May 23,1977. Dr. Bromiley described Jose (the baby boy’s) condition as being in a state of moderately severe malnutrition. Elojia (the baby girl) was described as being extremely underweight, lethargic and unable to walk even though, at the time of this initial visit, she was approximately eighteen months old. Neither Jose or Elojia responded to outside stimulus. Dr. Bromiley testified that Appellant had been feeding the baby only milk from a bottle three times a day, which, for a child of that age, was not sufficient. She testified that she spent an unusually lengthy time explaining and writing out a list of all the solid foods she thought the children should have. In addition, Dr. Bromiley gave Appellant two eases of food stuffs and arranged to have a follow-up appointment with Jose the following Monday.

On Monday when Appellant returned with Jose for the follow-up appointment, Dr. Bromiley testified that Appellant had not fed the children any of the solids that she had recommended and failed to explain why. In response to Dr. Bromiley’s question of “well, why didn’t you give it,” Appellant’s response was, “well, I didn’t.” Dr. Bromiley testified that Appellant told her that there was nothing wrong with the children. It was the case worker who had insisted that they be checked by a doctor.

Dr. Bromiley explained that Jose was hospitalized on June 6,1977, and Elojia was hospitalized on June 8, for the purpose of determining whether or not the children were malnourished due to low caloric intake or whether the malnutrition was a side-effect of some other disease. Dr. Bromiley stated that it was obvious from the children’s responses observed in the hospital that they had not learned to take food from a spoon. During the time of their hospitalization, both children were placed upon a high caloric and protein intake and each gained weight rapidly. The children’s development during their hospitalization was dramatic. They began to respond and form attachments to people. Within a few weeks, the children’s height-weight ratio was within normal tolerances, indicating, according to the doctor, that the cause of their malnutrition was not some side-effect of another disease, but rather, the effect of inadequate feeding while in the custody and care of their mother.

The children were later released from the hospital and were placed in a foster home. On September 15, 1977, they were returned to their mother under an agreed court order. Dr. Bromiley testified that she again saw the children near the end of September or the beginning of October of 1977. On October 13, 1977, both children were again admitted to the hospital because they were suffering from diarrhea, a cold, and they were not gaining or growing as they should. At the time they were admitted into the hospital the second time (in October), they were both again suffering from a state of malnutrition. It was shortly thereafter that these proceedings were instituted to terminate the parent-child relationship between Appellant and her two children, Jose and Elojia.

The record before us shows that during the period of time from June until September 15, 1977, the Appellant received special instructions concerning home care and nutrition from the case worker, Mr. Cisneros, Miss Maria de los Santos, a homemaker for the Cameron County Child Welfare Department, Lucinda M. Flores, a registered dietician with the Brownsville Medical Center, and Dr. Bromiley. Cisneros testified that he continued to visit Appellant in her home during the time period the children were first hospitalized. In spite of the detailed instructions she received, Cisneros testified that Mrs. Sanchez’ home continued to be filthy, food was allowed to spoil, and the other children remained dirty and unkept. Cisneros visited Appellant’s home on September 16, the day after Jose and Elojia were returned to Appellant’s custody, and brought three cans of food, some canned vegetables and one can of meat. He testified that when he returned the next day, the two cans of vegetables were still full and the can of meat was gone. Cisneros investigated the bottle which was lying in the crib with baby Jose. He testified that he opened it and then described an overpowering rotten smell. In response to his inquiries, the Appellant admitted that she had fed the child the can of meat the previous day by placing the meat in the baby bottle and pouring milk over it. This combination had spoiled and had not been removed from the crib.

Mike de Sozarraz, a psychologist for Tropical Texas M.H.M.R. in Edinburg, Texas, testified that the Appellant had been referred to him by the Brownsville Child Welfare Department for psychological evaluation. He was requested to test her for her abilities to nurture her children and find out how much she could retain information. De Sozarraz testified that the Appellant had grown up emotionally deprived herself, and that it was typical of such a “neglect syndrome” that adults who, when as children, had not received enough warmth emotionally were unable to provide care for other people, including their own children. He further testified that she had an inability to think in abstract terms. He described her prognosis for learning to care for her children as poor. He testified that Appellant was within the normal range of intelligence, but she lacked understanding of her children’s physical condition. He testified that she seemingly considered them to be only underweight and not ill.

Miss de los Santos, a homemaking consultant with Cameron County, was assigned to the case by Cisneros in July, 1977, for the purpose of providing Appellant with training sessions on child care. After the children were returned to Appellant's care, de los Santos visited the home almost daily from September 26 on. She testified that the Appellant made no effort to clean the house, to feed or bathe the children. She stated that the Appellant refused to take her instructions and that she only made “fun of me all the time I was there.” De los Santos’ testimony included a detailed description of the special training program the Welfare Department provided for Appellant and Appellant’s apparent indifference to the sessions as well as her indifference to the children’s care when they were returned to her.

By October 13, 1977, the children’s conditions had deteriorated seriously enough to warrant hospitalization and both were admitted to the hospital in a state of malnutrition again. The children were finally taken by the Texas Department of Human Resources on October 31, 1977. The record shows that the Appellant was informed of her visitation rights while the children were in the hands of the Department of Human Resources, but she made no effort to visit the children until advised that she should do so by her attorney, nearly five months after the date the children were taken from her.

Appellant testified in her own behalf. At the time of trial, she stated that she had moved to another home and now lived with one of her sisters and her sister’s seven children. She testified that she cared about her children and stated that she had “never done anything to purposely hurt them. She further testified that she worked well with and cooperated with her other case workers, Debbie Guynn and Frank DeGeer, but that she felt “confused and uncomfortable” with Mr. Cisneros because she felt he was trying to take away her children. Concerning the youngest two children’s state of health, Appellant stated on cross-examination that, in May, before the children went to the hospital, she did not believe that they were sick. She thought that they were all right and thought she was feeding them correctly. She considered the baby boy’s condition to be caused from diarrhea and teething problems. She admitted, in effect, that she knew that rotten food was unhealthy. She stated that she would think that anyone who gave her rotten food was trying to hurt her. She stated that she resented anyone interfering with her life and telling her how to run her home.

The Appellant contends that the evidence introduced at the hearing does not justify termination of her parental rights because the evidence showed only that her failure to provide a desirable degree of care and support for her children was due solely to her lack of intelligence, training and misfortune, citing the dicta in D. F. v. State, 525 S.W.2d 933, 940 (Tex.Civ.App.— Houston [1st Dist.] 1975, no writ). We agree that termination of the parent-child relationship might not be warranted in instances where the parent, through lack of intelligence or training, illness or misfortune, is unable to provide a desirable degree of physical care and support for his or her children. Here there is substantial evidence which indicates that the Appellant’s inability to care for her children was not due to those factors alone. While there is some evidence which suggests that Appellant was unable to follow even the most basic child care instructions, there is ample evidence that the Appellant was indifferent to her children’s physical condition and uncooperative with the workers who attempted to assist her in providing proper care. The children were so malnourished that they required hospitalization. The children were infrequently fed and the food offered to them was often rotten or spoiled. The Appellant admitted, in effect: that she knew rotten food was harmful; that she permitted such food to be available to the babies; and that she resented interference with the manner in which she raised her children. She told the trial judge that “the first time, I didn’t want to take care of them.”

There is ample evidence in the record, including Appellant’s own testimony, from which the trial judge could reasonably conclude that Appellant knowingly placed or allowed Jose and Elojia to remain in an environment which endangered their physical or emotional well-being. The trial judge from his van^ge point, had the opportunity to observe the Appellant herself and all of the other witnesses and could judge their demeanor throughout the course of this trial. We have, with this in mind, reviewed the entire record, first under the rules concerning legal insufficiency (first point of error) and then by the rules of factual sufficiency (second point) and conclude thereby that the evidence is “solid” and that the trial court had “substantial reasons” for terminating the “ties” between this parent and these children.

We therefore hold that there is ample evidence of probative force in this record that the Appellant knowingly allowed these two children to remain in a state of condition and in surroundings which endangered their physical as well as their emotional well-being. The trial judge was justified, from the evidence in the record, in deciding that it would be in the best interest of the children that such termination be ordered. Appellant’s points of error number one and number two are overruled.

In point of error five, Appellant attacks Section 15.02(1)(D) and (2) of the Texas Family Code as being void for vagueness and violative of the due process of law. As a general rule, there is a presumption that the Legislature has not acted unreasonably or arbitrarily in enacting its legislation. The burden is on the one who challenges an act to establish its unconstitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.1974); Smith v. Craddick, 471 S.W.2d 375 (Tex.Sup.1971). The United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (Tex.Sup. 1972), summarized and identified several dangers inherent in vague laws:

“Vague law offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Footnote omitted.] Second, if arbitrary or discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them. [Footnote omitted.] A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attended dangers of arbitrary and discriminatory application.” [Footnote omitted.]

The language of a statute cannot be so broad and vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). See Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.Sup.1970); Lone Star Gas Co. v. Kelly, 165 S.W.2d 446 (Tex.Sup.1942).

In considering the provisions of Section 15.02(1)(D) pursuant to these standards, we find that this section is not unconstitutionally vague. In accordance with the express provisions of Section 15.-01(1)(D), not only must the evidence show that the parent has placed or allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, but also, the evidence must show that the parent knowingly placed or knowingly allowed the child to remain in such conditions or surroundings. Thus, the legislative standards which justify termination of the parent-child relationship pursuant to this section, require knowledge on the part of the parent that the child’s conditions or surroundings seriously endanger the child’s physical or emotional welfare. We believe that our Legislature would have had extreme difficulty in being more specific in this instance. See State v. McMaster, 259 Or. 291, 486 P.2d 567, 570 (1971).

In support of Appellant’s contention that the sections in question are void for vagueness and thus, violate her procedural due process rights, Appellant relies primarily upon the case of Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10 (S.D.Ia.1975), aff’d 545 F.2d 1137 (8th Cir. 1976). In that case, the Federal District Court ruled an Iowa termination statute to be unconstitutional on several grounds. This Iowa case is not persuasive authority for the precise constitutional issue before us. We initially observe that the Iowa statute in question did not require any of the prohibited acts to be committed “knowingly.” In addition, a careful reading of the opinion of the Eighth Circuit panel in affirming the case reveals that the appeals court expressly declined to affirm the district court’s opinion on the basis of the “vagueness and overbreadth attacks upon the facial validity” of the statute. See Alsager v. District Court of Polk County, Iowa, 545 F.2d 1137 (8th Cir. 1976). The result we reach in this case is consistent with the results reached by several other jurisdictions considering constitutional “void for vagueness” attacks upon similar termination statutes. See e. g.,In re D. T., 237 N.W.2d 166 (So.Dak.Sup. 1975); State v. McMaster, 259 Or. 291, 486 P.2d 567 (1971); In re Cager, 251 Md. 473, 248 A.2d 384 (1968).

This precise contention as to Section 15.-02(2) has previously been considered and rejected by another Texas appellate court. See D. F. v. State of Texas, 525 S.W.2d 933 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ). In addition, similar attacks against Sections 15.02(1)(E) and (F) have also been rejected. See Crawford v. Crawford, 569 S.W. 505, 508 (Tex.Civ.App. — San Antonio 1978, no writ); McGowan v. State, 558 S.W.2d 561, 566 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ ref’d n. r. e.); Lane v. Jefferson County Child Welfare Unit, 564 S.W.2d 130, 133 (Tex.Civ.App. — Beaumont 1978, writ ref’d n. r. e.). We find there is no merit to Appellant’s attack upon the constitutionality of Tex. Family Code Ann. § 15.02(1)(D) (Supp.1979). Appellant’s point of error number five is overruled.

In points of error numbers three and four, Appellant complains that: 1) the State failed to show a compelling State interest in the termination of her parental rights; and 2) the State failed to show that termination of the parental rights was the least drastic alternative for fulfilling the State’s interest to protect the children and strengthen the family. The major contention under these points of error is that the State failed to exhibit the threshold harm necessary to give the State a compelling interest sufficient to justify permanent termination of the parent-child relationships, and thus, under the evidence of this case, the statutes as applied violated her constitutional rights. Appellant also argues, in effect, that the State failed to prove that it pursued “less drastic” alternatives, such as “counseling, therapy, day care, nutrition advice and temporary foster care,” prior to resorting to termination. The record does not support these contentions.

Our Texas Supreme Court has recognized that the natural right which exists between parents and their children is one of constitutional dimensions. See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.Sup.1976), citing Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Appellant concedes that the State seeks to further a legitimate State interest when it sets out to protect the welfare of its child citizens. Indeed, as the United States Supreme Court has recognized, the State has the “right” and the “duty” to protect minor children. Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

The record in this case indicates that the State attempted to assist the Appellant by providing access to every possible resource and service organization available in order to provide services, assistance, instruction and monitoring. Appellant’s points of error three and four are overruled.

The judgment of the trial court is AFFIRMED.


author: JAMES, Justice.

text:
    Rodolfo A. REYES, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 6031.
    Court of Civil Appeals of Texas, Waco.
    April 26, 1979.
    Rehearing Denied May 24, 1979.

      Mark S. Smith, Mickey J. Blanks and Ed McConnell, law student, Mark Smith & Associates, Lubbock, for appellant.
    Harvey F. Cohen, Barham E. Bratton and Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   OPINION

JAMES, Justice.

This is a venue matter growing out of a workmen’s compensation case. Rodolfo A. Reyes, Defendant-Appellant herein, sustained an injury in Robertson County, Texas, while in the course and scope of his employment with Texas Bitulithic Company. Plaintiff-Appellee Texas Employer's Insurance Association was at all times material to this suit, the insurance carrier for Texas Bitulithic Company.

The Industrial Accident Board made its final ruling and decision in the matter on June 1, 1978, and the next day, to wit, on June 2, 1978, Texas Employers filed suit in Robertson County to set aside the final ruling and decision of the Industrial Accident Board. Thereafter, on August 15, 1978, Defendant-Claimant Reyes, filed his Plea of Privilege requesting that venue of the suit be transferred to Maverick County, the county of his residence. In this connection, Reyes mailed his Plea of Privilege to the District Clerk of Robertson County for filing on August 11, 1978; and on said last-named date, a copy of said Plea of Privilege was deposited in the U.S. Mail, addressed to the attorney for Texas Employers, and sent certified mail, return receipt requested. Said attorney’s office received the copy of the Plea of Privilege on August 15, 1978. Said copy of the Plea of Privilege was misfiled by the secretarial staff into another office file, and not in the file concerning the case at bar. The file containing the copy of the Plea of Privilege (which was not the file of the case at bar) was sent to another attorney representing Texas Employers, during the week of August 21, 1978; whereupon the second attorney thought the file containing the copy of the Plea of Privilege needed no attention. The mix-up and error made by the secretarial staff was discovered by one of the attorneys in the law firm on September 6, 1978; and thereupon the next day, September 7, 1978, the attorney for Texas Employers filed a Controverting Plea accompanied by a Motion for Determination of Good Cause for Late Filing of said Controverting Plea. In other words, twenty-two days passed between the time the attorneys for Texas Employers received the copy of the Plea of Privilege and the time Texas Employers filed its Controverting Affidavit and Motion to Show Good Cause, hereinabove referred to. On November 13, 1978, the trial court after hearing determined that good cause existed, and overruled Defendant Reyes’s Plea of Privilege, from which order Reyes appeals.

All of the facts and chronology herein-above set out are undisputed, and those facts concerning the venue aspects are established by Findings of Fact and Conclusions of Law made by the trial court. In the Conclusions of Law, the trial court held that the secretarial staff of Plaintiff Texas Employers’ attorneys was guilty of negligence, because of the failure to file the copy of the Plea of Privilege in the proper office file; however, the trial court further concluded that the attorneys for Texas Employers were not negligent in failing to file their Controverting Plea within ten days after their receipt of the copy of the Plea of Privilege. The trial court further concluded that nothing Defendant Reyes or his attorneys did or failed to do contributed in any way to the misfiling of the copy of the Plea of Privilege in Plaintiff’s attorney’s office, nor contributed in any way to Plaintiff’s failure to file its Controverting Plea within ten days after receipt of the copy of the Plea of Privilege. The trial court further concluded that no over-reaching or misleading act was done by Defendant or his attorneys which prevented Plaintiff or Plaintiff’s attorneys from filing its Controverting Plea within the ten day period.

Defendant-Appellant Reyes complains in five points of error that the trial court erred in holding that good cause existed for late filing of the Controverting Plea, in permitting Plaintiff-Appellee to file said Controverting Plea twenty-two days after receipt of the copy of Defendant-Appellant’s Plea of Privilege, and in overruling Defendant-Appellant’s Plea of Privilege. We sustain Defendant-Appellant’s contentions and thereby reverse and render the trial court’s judgment.

Article 1995, Subdivision 30, Vernon’s Texas Civil Statutes provides:

“Special Venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 8307, Sec. 5, V.T.C.S., a part of the Workmen’s Compensation Act, as amended effective August 29, 1977, in its pertinent parts provides:

“Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, filed with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred, or in the county where the employee resided at the time the injury occurred . . .

We see that Art. 8307, Sec. 5, as amended effective August 29, 1977, gives any interested party appealing from the award of the Industrial Accident Board the choice of one of two counties in which to file suit, namely, either (1) the county where the injury occurred, or (2) the county where the employee resided at the time the injury occurred. Prior to the 1977 Amendment, Art. 8307, Sec. 5, did not give the party filing suit such a choice of counties in which to file suit, but said prior law required such suit to be brought only in the county where the injury occurred.

Article 8307a, V.T.C.S., which was enacted in 1931 and has remained unchanged thereafter, in its pertinent parts provides:

“Any interested party who is not willing and does not consent to abide by the final ruling and decision of the Industrial Accident Board shall, in the manner and within the time provided by Section 5 of Article 8307, Revised Civil Statutes of 1925, file notice with said Board, and bring suit in the county where the injury occurred to set aside said final ruling and decision; however, in the event such suit is brought in any county other than the county where the injury occurred, the Court in which same is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, transfer the case to the proper Court in the county where the injury occurred.”

As seen, Article 8307a requires the bringing of such (workmen’s compensation) suit in the county where the injury occurred, and said statute was not amended as was Art. 8307, Sec. 5 so as to allow a choice of counties of either (1) where the injury occurred, or (2) where the employee resided at the time of the injury.

Plaintiff-Appellee Texas Employers contends that venue in a workmen’s compensation suit such as the case at bar is statutory and is governed by Article 8307, Sec. 5, and Article 8307a, V.T.C.S., and that the basic venue rule that a defendant may only be sued in the county of his domicil has no application. In other words, Appellee argues that under Article 8307, Sec. 5, as amended in 1977, venue is proper in either Robertson County (the place of injury) or Maverick County (the place of Reyes’s dom-icil); that such statute created a “race to the courthouse” in workmen’s compensation cases; that if both parties are dissatisfied with the ruling of the Industrial Accident Board, the first party to file suit has his choice of forum; that in the instant case, Texas Employers “won the race” by bringing the suit in Robertson County, thereby precluding Reyes from any right to venue in Maverick County, the county of his residence. Moreover, Appellee says that Article 8307a still requires that if a suit to set aside a final ruling of the Board is brought in any county other than the county where the injury occurred, unless that court has jurisdiction, it must transfer the case to the county where the injury occurred. In short, Appellee asserts that a plea of privilege is not the proper way to challenge venue in a workmen’s compensation case, and that “the only proper way to transfer cases brought under Article 8307, Sec. 5 is by a plea to the jurisdiction made under Art. 8307a.” We do not agree with Appellee’s arguments.

In the first place, our Supreme Court in Texas Highway Dept. v. Jarrell (Tex.1967) 418 S.W.2d 486, same being a suit to set aside a workmen’s compensation settlement, made this unequivocal pronouncement:

“ ‘Venue cannot be put in issue by pleas to the jurisdiction, pleas in bar, or pleas in abatement, but only by a plea of privilege, (citations).’ ” Also see Texas Employers Ins. Assn. v. Ellis (El Paso CA 1976) 543 S.W.2d 397, no writ, where in a workmen’s compensation case involving a choice of counties for venue under Article 8306, Sec. 19, V.T.C.S., the El Paso Court of Civil Appeals held that the proper procedure for determination of venue is by plea of privilege.

Under the rule laid down by our Supreme Court in Jarrell and as interpreted and applied by the El Paso Court of Civil Appeals in Ellis, we are of the opinion and hold that in the case at bar, the proper procedure for determination of venue is by plea of privilege.

Where Article 8307, Sec. 5, and Article 8307a use the term “jurisdiction” in connection with where a workmen’s compensation suit should be filed (that is, in what county or counties such a suit should be brought), such term really means “venue.” Our Supreme Court has held in interpreting Article 8307a that courts outside the county where the injury occurred, otherwise having jurisdiction of the subject matter of the litigation, have potential jurisdiction of workmen’s compensation cases. Federal Underwriters Exchange v. Pugh (Tex.1943) 141 Tex. 539, 174 S.W.2d 598, 600. Therefore, since the problem before us is essentially “venue” as opposed to “jurisdiction,” then a plea of privilege is the proper procedure to be employed. See Texas Employers Ins. Assn. v. Ellis (El Paso CA 1976) 543 S.W.2d 397, no writ.

This being so, we next proceed to the questions presented by the late filing by Plaintiff-Appellee of its Controverting Plea. As stated above, Defendant-Appellant Reyes filed his Plea of Privilege on August, 15, 1978, and Plaintiff-Appellee’s attorneys received a copy of same by certified mail likewise on August 15, 1978. Rule 86, Texas Rules of Civil Procedure, in its pertinent parts provides:

“When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant’s right to change of venue; . . . . A copy of such plea of privilege shall be served on the adverse party or his attorney of record by actual delivery in person to him or by mailing a copy of such pleading to him by registered mail return receipt requested. If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.”

Under this record, Plaintiff had ten days after August 15, 1978, in which to file its Controverting Plea, unless an enlargement of time was permitted under Rule 5, T.R. C.P. Plaintiff did not file its Motion for Determination of Good Cause for Late Filing of Controverting Plea (and the Controverting Plea itself) until September 7, 1978, some twenty-two days after Plaintiff’s receipt of the copy of the Plea of Privilege.

Rule 5, T.R.C.P. in its pertinent parts provides:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion . (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act; . . .

Did Plaintiff’s Motion to permit late filing of the Controverting Plea show good cause? We think not. For good cause to exist, a plaintiff must free himself of any implication of negligence, and show that some mistake or overreaching or some actual or constructive fraud upon the part of the defendant or his attorney induced delay. Eagle Life Ins. Co. v. Owens (Texarkana CA 1977) 549 S.W.2d 243, 245, writ dismissed; 1 McDonald’s Texas Civil Practice, Section 4.48.

In the case at bar, it was undisputed, and the trial court expressly found, that the secretarial staff of Plaintiff’s attorneys was negligent in misfiling the copy of Defendant’s Plea of Privilege in the wrong office file, which occasioned the late filing of the Controverting Plea. Since the secretarial staff of Plaintiff’s attorneys was undisput-edly negligent, then it is well-settled that such negligence on the part of the secretarial staff is imputed to Plaintiff’s attorneys, and in turn imputed to Plaintiff. See Agristor Credit Corp. v. Donahoe (Waco CA 1978) 568 S.W.2d 422, NRE, and the cases cited in support of this proposition at page 426; 38 Tex.Jur.2d, “Master and Servant,” par. 240, pp. 489 et seq.

It was the duty of Plaintiff under Rule 5 to both plead and prove good cause for late filing of the controverting plea. This Plaintiff did not do. Plaintiff’s Motion for Late Filing shows on its face the absence of good cause, which requires that Defendant-Appellant’s Plea of Privilege be sustained. Bond v. Lewis (Waco CA 1973) 496 S.W.2d 181, no writ; Lindsey v. Chanslor (Waco CA 1976) 538 S.W.2d 675, no writ; LPG, Inc. v. Development Associates, Inc. (El Paso CA 1973) 498 S.W.2d 736, no writ. The above-cited three authorities hold that when a controverting affidavit to a plea of privilege is not filed within ten days after the adverse party has received a copy of the plea of privilege, the trial court is required to sustain the plea of privilege, unless for good cause shown by pleading and proof, the court extends the time within which to file the controverting affidavit.

In the case at bar, we are of the opinion and hold that good cause was not shown by Plaintiff; therefore, the filing of the Controverting Plea was a nullity, and the trial court’s overruling of the Plea of Privilege was erroneous.

We therefore reverse the trial court’s order and render judgment ordering the cause to be transferred to Maverick County for trial on the merits.

REVERSED AND RENDERED.


author: MASSEY, Chief Justice.

text:
    Naida CRAHAN, Appellant, v. N. R. and L. R., Appellees.
    No. 18124.
    Court of Civil Appeals of Texas, Fort Worth.
    April 26, 1979.
    Rehearing Denied May 24, 1979.

      Geoffrey M. Gay, West Texas Legal Services, Fort Worth, for appellant.
    Roy A. Davis, Irving, for appellees.
   OPINION

MASSEY, Chief Justice.

In a suit by Naida Crahan to regain custody of her natural born minor child the judgment of the trial court, sitting without a jury, denied transfer and deprivation of such custody from N. R. and L. R., who had continued in possession of the child since it was three days old. She appealed.

We affirm.

Actually the form of suit was as by petition for relief by habeas corpus. By the subject matter it was a simple suit for custody of a child; it will so be treated.

Naida Crahan conceived and bore the minor child in question by a man other than her husband. Her husband was not made a party to this suit for custody. She will hereinafter be termed as the natural mother, with N. R. and L. R., husband and wife, referred to as the existing custodians.

The natural mother bore the child in Ohio on May 2, 1977. By pre-arrangement with L. R. she had registered with her doctor and the hospital under the name of L. R., giving the name of her husband as N. R. When the child was born it was given the name to which the parties had agreed, so that at all times it appeared on the records of birth in Ohio as the natural child of N. R. and L. R.

Three days after the child was born it was delivered over to N. R. and L. R., and a few weeks thereafter they moved from Ohio and became residents of the State of Texas. January 17, 1978 in Texas, in another suit in District Court, N. R. and L. R. filed a petition to adopt the child. In that proceeding an attorney was appointed to represent the child, with another appointed attorney ad litem to represent the “unknown parents”. Through efforts of the ad litem attorney the natural mother was notified. Thereafter she answered in the adoption suit, and caused it to be abated pending disposition of the instant custody suit which she filed in the interim on April 20, 1978. This state of affairs presently persists pending disposition of the appeal of the custody decree.

Prior to enactment of the Texas Family Code, our law was well settled that the determinative issue in a case of this nature was whether the child’s welfare and best interests would be served by restoring possession and actual custody to the mother, the legal custodian, or by awarding both legal and actual custody to party or parties to whom there had been antecedent surrender of possession. Hendricks v. Curry, 401 S.W.2d 796, 802 (Tex.1966), and authorities cited.

It is the law as stated above which is attacked by Naida Crahan, the natural mother. She seeks to persuade this court to declare unconstitutional, at least in their application under the circumstances of this case, certain provisions of law in the Texas Family Code, which in material part provide:

“Title 2, PARENT AND CHILD; Subtitle A., The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship § 11.11, ‘Temporary Orders’.
“(a) In a suit affecting the parent-child relationship, the court may make any temporary order for the safety and welfare of the child, including but not limited to an order:
“(1) for the temporary conservator-ship of the child; . . .”
§ 14.07, “Best Interest of Child”.
“(a) The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.
“(b) In determining the best interest of the child, the court shall consider the circumstances of the parents”
“§ 15.02, “Termination When Parent is Not Petitioner”.
“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
“(1) the parent has:
“(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or
“(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or . .”

In particular, as regards the foregoing, the natural mother complains of the absence of explicit guidance as to what is to be considered by those who are charged with the duty to apply the “best interests” test. She charges that the sections from which we have quoted permit arbitrary and discriminatory application of ad hoc and subjective determinations of what is the best interests of a child; that in the instant case the application of the best interest test inescapably would be a reflection of a judge’s values and personal and class bias. Further, she charges that, without guidance, the allowable test would lead to forbidden intrusion of family integrity; applicable not only against those individuals who pose a danger to a child, but also to those whose tenets of child rearing differ from those who construe and apply the test, thus infringing upon a fundamental right — or prior right — of a parent to his or her child.

Under pre-Family Code Law in Texas a natural parent, or parents, might voluntarily relinquish right to custody of a child either by agreement or by abandonment; and in a subsequent contest over its custody between the parent and the persons to whom the child has been relinquished the burden would lie upon the non-parental parties to show reason why the child should not be restored to the natural parent. The evidence by which that would be shown would be that which would show that it would be in the best interests and welfare of the child that it not be delivered to the natural parent and/or that the new custodians continue to be such.

The issue would be raised upon presentation by the non-parental parties of any evidence upon the strength of which the trier of the fact might find that the best interests of the child required that by formal decree the custody should remain in those who might be the existing custodians or, in any event, should not be restored to the natural parent. Thereupon the decision would rest upon issues raised by the evidence of facts from which the ultimate conclusion would be derived upon the matter of “best interests”.

The foregoing has long been recognized as the law. Its application has been by force of statutory law enacted upon the premise that the State has such an interest in the welfare of its citizens as to warrant exercise of its authority. De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 690-691 (1944).

It is obvious that as applied to the elements of law upon which there was operation by the statutes in force prior to the Texas Family Code there was not intended any change of the law. We see no justifiable reason to hold the sections of the Family Code which are here attacked to be either unconstitutional generally or to be unconstitutional in their application to the circumstances of this case. There has been like holding to the same effect on an occasion when the use of “best interests”, without limitation, was charged to be a want of “due process of law” and “equal protection of law.” Van Wart v. Van Wart, 501 S.W.2d 359 (Tex.Civ.App. — Austin 1973, no writ).

By the record before us we find that there was evidence which supported the judgment of the trial court by the preponderance of the evidence test, which we hold the proper test. The judgment could not be reversed on any theory of defect in or insufficiency of the evidence. Overlooked on trial was the important matter of the circumstances of the child in its life with N. R. and L. R., but proved were sufficient facts concerning the probable unfavorable circumstances and environment in which the child would live should the court award its custody to its natural mother.

Remaining for consideration are questions upon the law in the State of Ohio, and the applicability of such laws, if in order, to the circumstances of the instant case. The natural mother here, as in the trial court,' has presented Ohio statutes upon which she relies in support of her contention that her agreement and grant of custody to N. R. and L. R., which occurred in Ohio, was illegal, invalid and ineffective to transfer to them any right to the child, or to impair her own prior right. We see no occasion to lengthen the opinion by writing upon the Ohio law. It has been examined and there is nothing in it which impaired the authority of the Texas trial court to render the judgment made in this ease.

The child was in Texas and all parties yielded themselves and were present and participating before the court without reservation. The State of Ohio was not a party to the action. Had it ruled differently the trial court would have risked a degree of hazard. Involved would have been a delivery of the child to a party at a time when the court had concluded that it would not be in the “best interests” of the child so to do. To be observed is that there was no other state prepared to assume responsibility for the welfare of the child. In Texas the responsibility was, and would have remained, devolved upon the courts of such state. There was no point of error which we should sustain based upon Ohio law.

We agree with the natural mother that the circumstances, though indicating proper use against her on equitable grounds the law relative to waiver, estoppel, and guardianship, are nevertheless improper to be used in support of the judgment in this case. However, for us to so declare does not avail her of any right to reversal. The material issue in the case, as we have already held, was the “best interests” of the minor child involved. These are rights of the child which are paramount though they may or may not be in opposition to the interests or the contentions of the parties, either or both.

The proceedings were equitable in nature, but, contrary to the rules in most equity cases the fact that either or even both the formal parties might be appearing without “clean hands” (and that is the condition in which all the parties appeared before the trial court under the circumstances of this case) would not impair the right of the child. The questions thereon arisen are immaterial, and, because they are immaterial, the point of error founded thereon is overruled. 4 Pomeroy’s Equity Jurisprudence (5th Ed.) “Infants”, § 1307 (1941) “(Extent of the Jurisdiction) — Custody of Infants” at 874.

Deeming the points of error to be without merit or immaterial, we conclude our proper order to be one which affirms judgment of the trial court.

Judgment is affirmed.


author: HALL, Justice.

text:
    Charles GOTHARD, Appellant, v. Robert Hill MARR et al., Appellees.
    No. 5985.
    Court of Civil Appeals of Texas, Waco.
    April 26, 1979.
    Charles Holt, Jr., Law Offices of Ralph M. Hall, Rockwall, for appellant.

      Jack Pew, Jr., and Gerald W. Benson, Jackson, Walker, Winstead, Cantwell & Miller, Schuyler B. Marshall, IV, and Gerald H. Grissom, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   HALL, Justice.

Plaintiff-appellant Charles Gothard brought this suit against defendants-appel-lees Robert J. Marr and National Federation of Independent Business for damages allegedly suffered by him as the result of injuries to his neck, left shoulder, back, and right hip in a collision between the automobile he was driving and one being operated by Jerri Lynn Bardin. The collision occurred in this fashion: Defendant Marr drove his vehicle into the rear of the Bardin vehicle, and Miss Bardin’s car was thereby propelled into the left door and quarter panel of plaintiff’s vehicle. Plaintiff pleaded negligent causation against Marr, and alleged that Marr was in the course and scope of his employment with defendant National Federation when the accident happened. Marr expressly admitted his negligence caused the collision, but he denied that plaintiff was injured and pleaded that plaintiff’s physical complaints stemmed from pre-existing injuries and diseases. National Federation answered with a general denial.

The collision in question occurred in the City of Wylie, Texas, on May 9, 1975. The case was tried to a jury in January 1978.

It is undisputed in the record that in 1949 when plaintiff was 16 years of age his right hip joint was fractured in an automobile accident, and that by 1970 he had suffered severe degenerative arthritis in the joint. It is also uncontradicted that in January, 1976, the right hip joint was surgically removed and replaced with a prosthesis made of stainless steel and plastic.

The principal questions litigated by the parties were whether plaintiff’s right hip was injured in the accident in question, and, if it was, whether the hip surgery was the result of the injury.

During preparation of the court’s charge to the jury, defendants initially requested a special issue on the question of any injury to plaintiff, an issue on the question of injury specifically to plaintiff’s right hip, and an instruction relating to the damage issues on the question of aggravation of plaintiff’s pre-existing condition. The court refused to submit the specific injury issue, stating that the instruction on aggravation would be adequate and that the parties would know whether the jury found hip injury or not by the large or small awards made by the jury in answers to the damage issues. All parties acceded to that submission of the case to the jury.

In connection with the damage issues, the jury was given this instruction by the court:

“You will not allow any sum of money for physical pain and mental anguish, if any, either past or future, or for loss of earnings, if any, in the past, or loss of earning capacity, if any, in the future, to the Plaintiff resulting from any condition, disease or injury, if any, which existed in Charles Gothard prior to the accident of May 9,1975, except as that condition, disease or injury, if any, may have been aggravated by the injuries, if any, sustained by him on said date, and then only to the extent of such aggravation. You are further instructed not to allow any sums of money for any diseases, conditions or injuries, if any, which occurred subsequent to said date which were not caused by the accident made the basis of this suit.”

After finding that plaintiff was injured in the collision and that Marr was in the course and scope of his employment at the time of the accident, the jury made these answers to the damage issues:

1. Past physical pain and mental anguish: $20,000.00.
2. Future physical pain and mental anguish: None.
3. Past medical expenses: $1,666.55.
4. Future medical expenses: None.
5. Loss of earnings in the past: None.
6. Loss of earning capacity in the future: None.

The jurors were unanimous in their verdict.

Judgment was rendered on the verdict and on Marr’s admission of liability in favor of plaintiff against the defendants for the sum $21,666.55.

Only plaintiff appeals. He contends that all the jury’s answers to the damage issues except item number one, above, are against the great weight and preponderance of the evidence. He also asserts that certain insurance forms signed by him were erroneously admitted into evidence over his objection. We affirm the judgment.

After the collision plaintiff was seen by his family physician, Dr. Charles Daniel Hille, a general practitioner, on the day of the collision and again on May 16th, one week later. Dr. Hille treated plaintiff for complaints of injuries to plaintiff’s neck and shoulder. On the May 16th visit Dr. Hille referred plaintiff to Dr. Robert Gibson Winans, an orthopedic surgeon. Dr. Win-ans continued treating plaintiff for complaints of neck and shoulder pain from May 19th until September 17th, when he also began treating plaintiff for complaint of pain in the right hip. Eventually, on January 28, 1976, Dr. Winans performed the hip replacement surgery. Plaintiff’s last visit to Dr. Winans was on September 8, 1977. Dr. Winans’s total bill to plaintiff was $2,610.50. Plaintiff’s hospital bill, which was only for the hip surgery, was $4,896.10. On November 15,1977, plaintiff went to see Dr. William Howard Wisner regarding the need of replacing the prosthesis implanted by Dr. Winans with a new one to alleviate continuing hip pain. Dr. Wisner’s bill to the time of trial was $236.00. He inferred that within two years plaintiff would need the new implant, and stated that plaintiff’s total medical expenses for the surgery and follow-up care would be “roughly $6,000.00.”

The jury’s answers to the damage issues implicitly carry the additional finding that plaintiff’s hip surgery was not precipitated by the collision in question. Accordingly the factual sufficiency of the evidence to support that implied finding is treated by the parties as the principal question under plaintiff’s points of error contesting the awards of damages. Most of the record is devoted to that issue, and the evidence on it is detailed and in great conflict.

Plaintiff testified to these facts: He left school in the seventh grade at the age of thirteen and secured a job as a farm hand to help support his large family of brothers and sisters. He was hospitalized for about a week for treatment of the fracture of his right hip in 1949. Three weeks after the injury, he returned to his job on the farm, and within two months after the injury he had fully recovered and was performing and continued to perform all the duties of hard labor common to a farm hand. In 1952, he left the farm for a job in a hat factory. The work at the hat factory entailed stooping, bending and turning, and some lifting. By hard work and attention to duty he later attained the position of department supervisor at the factory. In 1971, he left the factory to go into business for himself and purchased an automobile service station in the City of Wylie. Although he owned and managed the station and had two full-time employees including a mechanic, and a part-time employee, he also worked as an attendant at the station performing all the duties necessary for servicing automobiles such as pumping gas, fixing flats, changing tires, and making road calls. Those activities required stooping, bending, twisting, and lifting. Plaintiff was operating the station at the time of the collision on May 9, 1975. The collision pushed the left door of his automobile against his left shoulder and also caused his right hip to strike the automotive console located between the front bucket seats of his car. As the result of the collision, he suffered injuries to and pain in his neck and shoulder, left elbow, low back, and right hip. He was incapacitated by the pain and suffering caused by the injuries, especially by the pain in the right hip, to the extent that he could no longer operate the service station. For that reason, he sold the station on July 1, 1975. The gradual worsening of the hip pain forced him to yield to the implantation of the artificial hip joint in January, 1976.

The essence of plaintiff’s testimony was that until the collision in May, 1975, he suffered no pain in his right hip and no physical incapacity as the result of the fracture in 1949; that since the time of the collision he has suffered severe pain in the hip, has limped, and has been physically disabled and unable to work, and that the sale of his business and the hip surgery resulted from the injury. Plaintiff’s testimony that he suffered no physical infirmity prior to the collision was corroborated by the farmer for whom he worked as a boy, by a former co-worker at the hat factory, and by several friends in the City of Wylie, including Ray Rodgers who was the passenger in plaintiff’s car at the time of the accident, plaintiff’s part-time bookkeeper, the policeman who investigated the collision, and the young woman who was driving the car that collided with plaintiff’s vehicle.

In 1970, when plaintiff was being treated for a peptic ulcer, an x-ray was made which included his hip joints. The medical witnesses were in agreement that the x-ray showed that by 1970 plaintiff has suffered severe degenerative arthritis in his right hip in several particulars, and that as a result of that degeneration he was a candidate for hip surgery at some indeterminable time in the future. The time of the surgery would turn solely upon plaintiff’s subjective need of it to relieve pain and incapacity caused by the diseased hip joint. Other x-rays were made of plaintiff’s hip in September and December, 1975. Based upon those x-rays, Dr. Winans said he saw a “suspicion” of change in the condition of the hip between 1970 and 1975. Dr. Wisner said he saw none. Dr. Billy Joe Parnell, a radiologist whose specialty is interpretation of x-rays and fluoroscopy said there had been “definite progression” in the degenerative disease of plaintiff’s hip during the five-year term, and that it would have been expected from the nature of plaintiff’s work during that time.

Dr. Hille, Dr. Winans, and Dr. Wisner all expressed the opinion that in reasonable medical probability the need of hip surgery resulted from the injury to the hip plaintiff said he sustained in the collision. However, the testimony of Dr. Winans and Dr. Wis-ner shows that the need or not of an artificial hip by reason of arthritic degeneration is wholly subjective, and that the implant should not and will not be performed until requested by the patient. Their opinion that plaintiff’s hip surgery was caused by injury in the collision was based solely upon plaintiff’s statements to them to that effect. Additionally, Dr. Winans testified that the connection was “minimal at most”; Dr. Wisner admitted that he has been assigned an interest in plaintiff’s recovery in this lawsuit for payment of his future medical bills which will include a new prosthesis; and Dr. Hille readily conceded that he is not knowledgeable in the field of orthopedics.

Dr. Hille testified he saw plaintiff soon after the collision bn the day it occurred (May 9th). Plaintiff complained of pain in the left shoulder and neck, but not in the hip. After x-rays were made, Dr. Hille arrived at a diagnosis of “sprained left shoulder and whiplash of the neck.” Plaintiff had gone to Dr. Hille about two weeks prior to the accident, on April 28th, complaining of “fairly severe pains across the upper neck and back of his head” and “something popping in his neck.” Dr. Hille testified he next saw plaintiff on May 16th; that on that visit plaintiff complained of pain in his neck, shoulder, and left elbow, but not in his hip; and that on that visit he referred plaintiff to Dr. Winans, an orthopedist, for treatment of the neck and shoulder and elbow pain. After Dr. Hille had testified, plaintiff testified that his hip was hurting on both visits with Dr. Hille; that he did not tell Dr. Hille about the hip pain on May 9th, and that he did not remember whether he told the doctor on May 16th. However, in his pre-trial deposition taken in December, 1976, plaintiff testified he told Dr. Hille about the hip pain on both visits.

Dr. Winans testified he first saw plaintiff on May 19th, and that plaintiff gave him a history of injury to his left shoulder and neck in the collision on May 9th, and complained of pain in the shoulder and neck and left arm, but that plaintiff did not mention hip injury nor complain of pain in the hip. Dr. Winans diagnosed plaintiff’s problem as a sprain involving the neck and the nerves leading from the neck into the arm. Dr. Winans saw plaintiff again on May 27th, June 3rd, and June 10th. Plaintiff did not mention hip pain on those visits, but complained only of his elbow, neck, and shoulder. Dr. Winans treated plaintiff with heat, physical therapy, and medication. According to Dr. Winans, plaintiff was “much better” by June 10th, and he released plaintiff to return to work, without limitation. Plaintiff did not thereafter see a doctor until he returned to Dr. Winans two months later, on August 6th.

Plaintiff testified that Dr. Winans was “wrong” when he said he gave plaintiff a general release on June 10th; that on that day and at all times after the accident he was unable to work and was only able to go to his service station “off and on”; that he was required to hire two additional part-time employees; that his business “fell off” in May and June; and that he was forced to sell the station on July 1st' because “I couldn’t take care of it myself.” Plaintiff’s co-worker from the hat factory testified that when he saw plaintiff at the station two or three weeks after the collision plaintiff was in a reclining chair he had moved into the station; and that plaintiff was limping and and “would lean on anything that he could to get to the cash register, which was fairly close.”

Evidence was adduced by defendants which showed that plaintiff’s profits at the station for May and June, 1975, equalled or exceeded the average for the first six months of that year and for the whole year 1974, although his labor costs were also higher during those two months. Plaintiff' was asked why, with those profits, he didn’t “stay and supervise the business and continue to make that kind of money?” He said, “Because I' wasn’t able to.” “Q. You weren’t able to sit there and supervise and watch? A. No, sir, because it hurts to sit.” Immediately thereafter, plaintiff denied that he went to Las Vegas, Nevada, with two men on July 22nd or at anytime since June 30, 1975, and testified that he was “never there.” Later, on redirect, plaintiff changed that testimony and said that he had gone to Las Vegas in July, 1975; that he was confused on the date and had thought it was before the accident, but that during recess his wife had told him it was after the accident; and that the Las Vegas trip in July was made before he began having “severe back problems and hip problems.”

Ronald Dale McMayon gave this testimony: He lived in the City of Wylie during the years 1972 through 1975. He knew plaintiff during that period. They each visited in the other’s home. During that time, prior to the accident in question, plaintiff walked with a limp and complained of pain in his right hip. Although in earlier times plaintiff engaged in manual labor at the station like changing tires, from approximately January, 1975, until the collision in May, plaintiff was “primarily managing it, sitting at his desk, pumping gas on occasions.” McMayon offered to buy the service station prior to May, 1975, but plaintiff would not sell. However, plaintiff sold him the station on July 1, 1975. Plaintiff told the witness that the reason he changed his mind and decided to sell the station was because “he could not maintain his business and pursue the goal that he had in mind at that time ... to acquire some money from that automobile accident.” McMayon also testified that after he purchased the station he accused plaintiff of stealing from him in the transaction, that plaintiff struck him in the mouth, and that they are now “bitter enemies.”

Plaintiff’s next visit to Dr. Winans after June 10, 1975, was approximately two months later, on August 6th. His complaint then was “still stiffness in the left shoulder area, particularly after activity.” The next visit was on September 2nd, when plaintiff complained of the shoulder stiffness and also of low back pain; Dr. Winans said, “He did state then that he had an old injury in 1949 which did not bother him until recently. He had no pain that radiated into the legs.” Plaintiff saw Dr. Winans again on September 17th. The doctor stated, “He hadn’t complained of his hip yet, until this particular visit. He was complaining of his back until this visit and examination at that time revealed limited range of motion in his back. At that time he was describing some pain in the right hip. This he told me at the time. It had been cracked in the accident in 1949 and he was having more symptoms with this hip, particularly with long walking. Examination of the hip at that time revealed quite a bit of limitation of motion in the hip. It just didn’t move normally in any direction. He was having quite a bit of pain. It certainly was disabling to some degree.” He testified that “it would seem reasonable” that if plaintiff’s hip had been injured in the collision plaintiff would have complained to him about pain in the hip “in something less than four months.” He also said the delay could have been caused by decreased activity necessitated by the other injuries, causing stress and weakening of the back which in turn caused the hip to become symptomatic; and that the medications prescribed for the other injuries could also have delayed the hip pain coming forward.

After September 17th Dr. Winans’s treatments included plaintiff’s right hip. He testified plaintiff had fully recovered from the other complaints by October 27th. On December 2nd, plaintiff expressed the wish for the hip surgery and prosthesis. On January 28,1976, Dr. Winans performed the surgery.

Plaintiff stated in his deposition that he complained of hip pain to Dr. Winans on the visits prior to September 17th. At the trial he said that if he did not tell Dr. Winans, then he told Dr. Winans’s therapist, whom he identified as “Dr. Peck.” However, Dr. Peck did not testify. Plaintiff denied that he had signed any statements or forms which in their effect showed that in July and August the only injuries he was asserting he received in the collision were to his neck and shoulder. Three proofs of loss executed by plaintiff for sickness and accident insurance benefits and an accompanying “Attending Physician’s Statement” signed by Dr. Winans were then admitted into evidence on defendants’ tender. One claim was dated July 11, 1975, another August 1st, and the last October 6th. The attending physician’s statement was dated July 1st. In the first two claims and the physician’s statement the injuries received by plaintiff in the collision were stated to be to the neck and shoulder; in the last claim plaintiff’s injuries were described as “neck-shoulder, left arm and found out later [right] hip.”

Although there is much more evidence that is relevant on the issues, we close our recitation of the record with these facts: Plaintiff did not call any of his employees as witnesses in the case. And, he did not call his wife to testify, although she was identified by the witness McMayon as sitting beside plaintiff during the trial. The record does not show why those persons were not called.

Considering the whole record, we hold the jury’s answers to the damage issues are not against the great weight and preponderance of the evidence.

Plaintiff objected to the introduction of the proofs of loss for insurance benefits on the grounds that they violated the “collateral source rule” and that they injected insurance into the case. The objections were overruled. He assigns error to those rulings. The proofs of loss did not show any sums received by plaintiff. Defendants tendered the instruments for the limited purpose of impeaching plaintiff. Under the record at that time, the claims were admissible for that purpose. They met the test of being “clearly relevant and with substantial probative value on [a] disputed issue in the case” enunciated by our Supreme Court in Kainer v. Walker, 377 S.W.2d 613, 617 (Tex.1964), to govern the introduction of such evidence. See also, Griggs Furniture Company v. Bufkin, 348 S.W.2d 867, 870 (Tex.Civ.App — Amarillo 1961, writ ref’d n.r.e.).

Appellant’s points are overruled. The judgment is affirmed.