author: YOUNG, Justice.

text:
    A. W. CLODFELTER et al., Appellants, v. David Earl MARTIN et al., Appellees.
    No. 1220.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1977.

      Jack E. A. White, North, White & Black-mon, Corpus Christi, for appellants.
    B. Mills Latham, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lees.
   OPINION

YOUNG, Justice.

This is an appeal from an automobile-pedestrian collision case in which a take nothing judgment was rendered based on jury findings. A. W. Clodfelter and Terry Wayne Clodfelter brought suit against David Earl Martin and Guy E. Martin and alleged, among other things, that: on December 1, 1973, at approximately 12:40 a. m., the vehicle driven by David struck Terry while he was standing on the shoulder of Leopard Street near its intersection with Hart Road; David’s automobile then proceeded forward into the vehicle belonging to A. W. which was parked at the time with its lights on; and David was negligent in several respects which negligence proximately caused bodily injury to Terry and property damage to A. W.’s vehicle.

The jury answered all negligence issues about David’s conduct favorably to the defendants. On the other hand, the jury answered several contributory negligence issues about Terry’s conduct unfavorably to the plaintiffs. The total amount answered as damages suffered by the plaintiffs was $19,382.37. Plaintiffs’ appeal from the trial court’s take nothing judgment. We affirm.

Appellants have brought forward two points of error. In their first point they attack the jury’s finding in response to special issue no. 1 as being so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. This issue inquired whether David Martin failed to keep such a lookout as a person using ordinary care would have kept. The jury answered “We do not.” In considering this factual insufficiency point we shall examine the whole record to determine whether the evidence supports the jury finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In that the jury in the present case answered the issue complained of in the negative, some of the other principles we will be considering during our discussion of appellants’ points follow. The mere fact that we might have reached a different conclusion on the facts does not authorize us to substitute our judgment for that of the jury. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950). It is within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in testimony of any one witness as well as testimony of different witnesses. Further it is within the jury’s province to believe one witness and disbelieve another, or to believe part of the testimony of a witness and disbelieve any other part. Scott v. Gibson Oil Company, 471 S.W.2d 924 (Tex.Civ.App.—Tyler 1971, no writ). Ordinarily, proper lookout in an automobile negligence case is a question for the jury. Arrington v. Paschall, 352 S.W.2d 866 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.).

As we have noted, the jury is the trier of the facts and as such is in a better position to judge these issues than are we. The jury in this instance answered the negligence (lookout) issue for the appellees. From the facts in this case we conclude that the jury finding attacked by appellants merely indicates that the appellants have failed to carry their burden of proving the alleged act of negligence. Stafford v. Hardi, 464 S.W.2d 958 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.). And the jury’s failure to find those facts (of negligence) vital to the appellants’ recovery need not be supported by affirmative evidence; that is, defendants need not prove lack of negligence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973). We hold therefore that the finding complained of is not so against the great weight and preponderance of the evidence as to be manifestly wrong.

In support of their position the appellants have directed our attention to certain testimony of the appellee, David Martin. They argue that the testimony of David shows that he was not keeping a lookout immediately prior to the collision and that it is undisputed that he would have seen Terry long before he actually did, if he had been looking ahead. Some of the typical testimony called to our attention is as follows:

“Q. All right. As you approached the scene of the collision would you tell what happened?
A. I was driving in the right hand side of the lane on the right hand lane over close—
Q. You were driving in the right hand lane?
A. In the right hand lane of our two lanes close to the shoulder. We had crested the hill. I looked over at Ronald (a passenger) and started saying something to him, asked him how he was, and I glanced up, I glanced at my speedometer to see how fast I was going and glanced up, the only thing that I could see was Terry standing in the road, you know, I had drove on that strip ten thousand times since I have lived there. I just don’t expect somebody to be in the middle of the road at twelve-thirty at night.”
* * ⅜ * sfc ⅜
“Q. You say the first thing that you saw was him standing there in front of you?
A. Yes, sir.
* ⅝ ¾: ⅜ ⅜: ⅜
“Q. Was there anything to disturb the visibility? Was it clear visibility?
A. Yes, sir.
Q. Was there anything in between your car and Terry or Terry’s car after you came over the hill that would obstruct your vision?
A. Nothing, except for the fact that I have traveled it so many times and there is a ditch. That’s what that is a ditch right there, you know, I’m so use to it.
Q. Let me get this straight. You said that when you came over the hill— how far away is that hill?
A. I don’t have any idea.
Q. You mentioned it one time a thousand feet, but you don’t really know?
A. No, sir. I have never gone out and measured it.
Q. Pretty good distance though, isn’t it?
A. Yes, sir.
Q. If you recall your testimony, you stated as you came over the hill you turned to talk to Ronald, you looked over at your speedometer?
A. Yes, sir.
Q. How fast were you going?
A. Around 45 miles per hour.
Q. You talked to him and looked at your speedometer, and there Terry was right in front of you?
A. Yes sir.
Q. That is the reason that you didn’t see him before hand, because you were looking out to the side?
A. And the fact that I might have glanced up before I looked down at Ronald.”

The fact, along with all the surrounding circumstances, that David glanced at his speedometer and his passenger before the collision does not compel a finding by the jury of improper lookout on the part of David. See Roth v. Brillhart, 512 S.W.2d 57, 60 (Tex.Civ.App.—Amarillo 1974, no writ). Appellants’ first point is overruled.

In their second point, appellants complain of the refusal of the trial court to define the term “roadway” with respect to special issue no. 12. This issue inquired about that conduct of Terry. Appellants argue that the trial court should have used the statutory definition set out in Tex.Rev. Civ.Stat.Ann. art. 6701d, § 13(c) (1977), which is as follows:

“(c) Roadway. That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways the term 'roadway’ as used herein shall refer to any such roadway separately but not to all such roadways collectively.”

And the appellants further complain of the action of the trial court in later instructing the jury, over plaintiff’s objection, that the “paved portion includes the shoulder.” We can find no error in the charge as given or the instruction.

It is clear that this contributory negligence question was a submission of negligence based upon common law rather than negligence per se and that the issue was clearly not based on an alleged violation of any section of Article 6701d. Appellees’ contention was that a person of ordinary prudence would not have stood on either the road itself or the paved shoulder under the facts presented. Appellants’ second point is overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COULSON, Justice. J. CURTISS BROWN, Chief Justice,

license: Public Domain

text:
    Carolyn Ann DELANEY, Appellant, v. George Jerome DELANEY, Appellee.
    No. 1724.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 18, 1978.
    Rehearing Denied Feb. 22, 1978.

      Roy Ahrens, Satterwhite & Feehan, Houston, for appellant.
    Greg W. Thrower, Vern J. Thrower, Vern J. Thrower & Associates, Houston, for ap-pellee.
   COULSON, Justice.

This is a limited appeal by the wife from a decree of divorce in which error is urged in the property division, the amount awarded as attorneys’ fees, and the amount set for child support. We reverse and remand the property division and affirm the remainder of the decree.

Carolyn Ann Delaney (Mrs. Delaney or Appellant) sued George Jerome Delaney (Mr. Delaney or Appellee) for divorce. Mr. Delaney answered with a general denial and cross acted for divorce. Following trial to the court, Mrs. Delaney was granted a divorce and custody of the children. Mr. Delaney was granted visitation rights and ordered to pay $750 monthly as child support and $2,500 as attorneys’ fees. The court also divided the community property.

As part of the property division, the trial court ordered the Delaneys’ community property homestead sold and the proceeds from the sale applied to the extin-guishment of a variety of community debts, including a number of general unsecured debts. We sustain Mrs. Delaney’s attack on the decree to the extent that the proceeds from the sale of the homestead are ordered to be applied to discharge the general unsecured debts of the marriage, as such order violates the exempt status afforded homesteads and the proceeds from their sale. Franks v. Franks, 138 S.W. 1110 (Tex.Civ.App.—Austin 1911, writ ref’d).

A divorce court may order partition of a community homestead, including partition by sale. Trigg v. Trigg, 18 S.W. 313, 317 (Tex.Sup.1891). It may not, however, order the proceeds of such a sale applied toward general debts. Klein v. Klein, 370 S.W .2d 769 (Tex.Civ.App.—Eastland 1963, no writ). Such an order permits general creditors to look to property previously beyond their reach, and violates the statutory protection afforded the proceeds from the sale of a homestead. Tex.Rev.Civ.Stat.Ann. art. 3834 (1966).

We sustain point of error six and remand the property division to the trial court.

The homestead was the chief asset of the community and the distribution of the proceeds from its sale was central to the property division order. Our holding that such proceeds may not be ordered applied to general debts upsets the property division scheme of the trial court, and will require the development of a new scheme. Because of this, we do not reach appellant’s points of error one, two, three, four, five, seven, eight, and nine, all of which complain of aspects of the property division.

Although we do not rule on the matter, for the guidance of the trial court on remand we note, with respect to point of error nine, that the award of attorneys' fees in a divorce suit rests within the sound discretion of the trial court. E. g., Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523 (1961). Although opinion evidence offered as to what would be a reasonable fee should be considered by the judge, he is not bound by it, ’and he may resort to his own experience and observations in such matters. Hodges v. Hodges, 207 S.W.2d 943 (Tex.Civ.App.—Fort Worth 1948, no writ); Moore v. Moore, 192 S.W.2d 929 (Tex.Civ.App.—Fort Worth 1946, no writ); 3 O. Speer, Marital Rights in Texas § 886 at 320 (4th ed. 1961). During the trial several of Mrs. Delaney’s lawyers testified that the reasonable value of their own and each other’s legal work was $10,500.00. While the trial court may not arbitrarily ignore such testimony, it is not bound by it. The judge may properly consider his own observations and experience in conjunction with the witnesses’ opinions.

Appellant’s final point of error argues that child support in the amount of $750.00 per month is inadequate. We find no abuse of discretion in setting support at that amount and overrule appellant’s point of error on it.

Affirmed in part and reversed and remanded in part.

J. CURTISS BROWN, Chief Justice,

dissenting.

I have reached the conclusion that I must record my dissent in this case.

Section 3.63 of the Family Code provides: In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

In my opinion, this provision gives the trial court authority over the entire “bundle of sticks,” and it may divide the estate as it may deem just and right. This authority would extend to the homestead rights of the parties. After all, the parties are not undertaking to maintain a “homestead” but are submitting to the court a dissolution of their marriage and estate. No one would question the right of the parties to agree to sell their homestead and apply the proceeds of the sale to the payment of their debts. In this case, where there was no such agreement, I believe that the parties by their conduct submitted their homestead rights to the court for disposition.

The creditors of these parties are not before the court. Their rights are neither diminished nor enhanced by the exercise of the trial court of its power to divide the estate in accordance with law. Any benefits those creditors may derive from the division ordered by the court is only incidental and not direct. There is no violation of Tex.Rev.Civ.Stat.Ann. art. 3834. The trial court has made a reasonable requirement with respect to payment of the debts of the parties for which they each may remain liable unless those debts are paid from some of the available funds.

It is not an abuse of discretion for the trial court to require the legitimate debts of the parties to be paid out of the proceeds of the sale of their home and the remaining funds divided between them as ordered by the court.

It seems to me of utmost importance that the hands of a court not be tied by the “homestead” concept. In many cases the home is the principal, if not the only, asset of the parties. The court may not do indirectly that which it may not do directly. Therefore, the injection of “homestead” concepts into a division of property in a divorce suit may cause grave difficulties in achieving a division that is just and right.

I would affirm the judgment of the trial court.


author: CADENA, Chief Justice.

text:
    Nora I. de ANDA et al., Appellants, v. Blanca G. BLAKE et al., Appellees.
    No. 15826.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.

      Hall & Zaffirini, Laredo, for appellants.
    Ada Cronfel, Goodman & Cronfel, Laredo, for appellees.
   CADENA, Chief Justice.

Defendants, Mrs. Aurora S. de Anda and her daughter, Nora I. de Anda, appeal from a judgment, based on a jury verdict, awarding plaintiffs, Mrs. Blanca G. Blake and her husband, Jack Blake, damages for personal injuries suffered by Mrs. Blake when the automobile which she was driving was involved in a collision with an automobile owned by Mrs. de Anda which, at the time of the accident, was being operated by her daughter, Miss de Anda. Defendants also complain of the fact that the judgment denied them recovery on their counterclaim against plaintiffs, and Mrs. de Anda further assigns as error the failure of the trial court to dispose of her counterclaim against her estranged husband.

The jury found that Miss de Anda was guilty of negligence proximately causing Mrs. Blake’s injuries; absolved Mrs. Blake of negligence; determined that the accident was 100% attributable to the negligence of Miss de Anda; concluded that at the time of the accident Miss de Anda was operating her mother’s vehicle for the benefit of her mother, Mrs. de Anda, who was a passenger in the car when the collision occurred; and answered, “we do not,” to an issue inquiring whether, just before the accident, Mrs. de Anda and Miss de Anda were in a position of peril.

Mrs. de Anda first asserts that the trial court erred in submitting the issue asking whether Miss de Anda was operating the motor vehicle in furtherance of a mission for the benefit of her mother.

The evidence is undisputed that at the time of the accident Miss de Anda was driving her mother to a department store. The purpose of the trip was the purchase of shoes for one of Mrs. de Anda’s sons. The contention is here made that the submission of the issue was error, since, under the rule announced in Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974), Mrs. de Anda and her daughter were not engaged in a joint enterprise because they did not have a community of pecuniary interest in the purpose of the trip.

Shoemaker is not applicable here. Plaintiffs assert liability of the mother for the negligence of her child on settled rules of the law of principal and agent and do not rely on the doctrine of joint enterprise. The undisputed testimony shows that Miss de Anda was operating the motor vehicle with the consent of her mother on a mission which involved the welfare of a minor member of the family. Since Miss de Anda was operating the car at the instance of her mother for her mother’s benefit, the relationship of principal and agent existed between mother and daughter, so that the mother is liable for the negligence of her agent. Smith v. Cox, 446 S.W.2d 52 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Campbell v. Swinney, 328 S.W.2d 330 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.).

Defendants’ second point, like the first, rests on the theory that a parent cannot be liable for the negligence of his child in the absence of a showing that the parent and child were engaged in a joint enterprise. The first two points are without merit.

The third point asserts that the trial court “erred in entering judgment on the jury findings in Special Issues 34-37 (discovered peril) in that same are contrary to the greater weight of the evidence.”

In answer to Special Issue 34 the jury found that defendants were not in a position of peril, and, therefore, left unanswered the remainder of the cluster of issues relating to discovered peril.

The opinion of Chief Justice Greenhill in Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976), left open the question of whether the adoption in 1973 of the doctrine of comparative negligence [Article 2212a, Tex.Rev.Civ.Stat.Ann. (Supp.1976)] abolished the doctrine of last clear chance or, as has been known in Texas, the doctrine of discovered peril. However, as pointed out by Justice Pope in his concurring opinion in Abalos, that doctrine, which applies when both parties are negligent and seek to avoid the harshness of the doctrine of contributory negligence when defendant’s negligence occurred at a later point in time, is completely incompatible with the rule of comparative negligence. The rule of comparative negligence leaves no room for the notion that in a case where both plaintiff and defendant are negligent, the litigation must end in total defeat or total victory. Under the rules applicable in Texas prior to 1973, the existence of contributory negligence had the harsh effect of casting upon plaintiff the entire loss resulting from the negligence of both plaintiff and defendant, while the doctrine of discovered peril, where applicable, had the equally harsh consequence of casting upon defendant the entire loss due to the negligence of both parties. The purpose of the 1973 legislation clearly was to abolish this “all or nothing” approach to negligence litigation. This purpose cannot be achieved merely by abolishing the rule that the contributory negligence of the plaintiff completely precluded recovery. Complete realization of the legislative purpose can be accomplished only by holding that Article 2212a also has the effect of abolishing the doctrine which casts the entire loss on defendant in a case where both parties are negligent. See, in addition to the persuasive concurring opinion by Justice Pope in Abalos, 544 S.W.2d at 633-34, Keeton, Recent Developments in the Law—Torts, 28 Sw.L.J. 1, 15 (1974); Comment, 6 Tex.Tech.L.Rev. 131 (1974).

In any event, the contention that the trial court “erred in entering judgment” on the verdict because the jury findings “are contrary to the greater weight of the evidence,” if it presents any question for review, presents a “no evidence” point. A trial court cannot disregard jury findings merely because a particular finding or findings are contrary to the preponderance of the evidence. Chemical Cleaning, Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). In such a case, the only available procedure is the entry of judgment in accordance with the verdict and the subsequent granting of a motion for new trial.

Since defendants had the burden of proof on the question of discovered peril, the contention that the trial court erred in entering judgment on the verdict must be construed as an assertion that the elements of discovered peril were established as a matter of law. An examination of the evidence reveals testimony to the effect that Mrs. Blake did not have time to weigh possible alternatives. She swerved to the left, after sounding her horn, when she realized that a collision was imminent. She testified that her evasive action would have been effective had not Miss de Anda chosen to accelerate instead of maintaining her speed or applying the brakes when she heard Mrs. Blake’s warning blast of the horn. It cannot be said that the evidence establishes, as a matter of law, that Mrs. Blake, after discovering the perilous position of defendant, failed to use all means available to her, with due regard to her own safety, to avoid the collision.

Mrs. de Anda’s fourth point, contending that the trial court erred in entering judgment without disposing of her “cross-action” against her estranged husband, Juvencio de Anda, presents an interesting problem.

Defendants’ brief states that a cross-action was filed against Juvencio de Anda. The motion for new trial complains of the failure of the judgment to dispose of this portion of the litigation and asserts that if judgment was correctly rendered against Mrs. de Anda, Article 5.61 Tex.Family Code Ann. (1975), requires entry of judgment against Mr. de Anda as well.

Only defendants’ first amended original answer and counterclaim and second amended original answer and counterclaim appear in the transcript. Neither of these pleadings mentions Mr. de Anda, nor does the transcript reflect that he was served with citation or that he filed an answer. However, the reporter’s introduction to the statement of facts recites that a lawyer appeared on behalf of Mr. de Anda, and this attorney made at least one objection during the course of the trial. The record does not reflect whether this attorney participated in the selection of the jury.

In answer to special issues the jury found that Mr. and Mrs. de Anda were still man and wife on the date of the accident; that Mr. de Anda was the father of Miss de Anda; that he was not responsible for maintaining insurance coverage on the car operated by Miss de Anda at the time of the accident; that Mrs. de Anda did not have “a right to rely upon cross-defendant Ju-vencio De Anda maintaining such insurance coverage” on the automobile in question; and that the insurance coverage on such automobile had expired.

Assuming that the record reflects that the claim of Mrs. de Anda against Mr. de Anda was tried by implied consent, we conclude that the claim was disposed of by necessary implication under the rule announced in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). The judgment embodies the special issues and the jury’s answers to such issues and recites that the “verdict and findings of the Jury . . . are, approved and adopted by the Court. . . . ”

The judgment in this case is not intrinsically interlocutory in character. It was rendered and entered in a case regularly set for trial on the merits, without entry of an order for separate trial on the issues as contemplated by Rule 174, Tex.R.Civ.P. (1977). For appeal purposes, then, Aldridge required that it be presumed that the trial court intended to, and did, dispose of all parties legally before it and of all issues made between such parties, including claims by defendants against third-party defendants. 400 S.W.2d at 898.

Article 5.61(d) of the Family Code provides that all the comm’ nity property is subject to tortious liability of either spouse incurred during the marriage. We do not construe this provision as requiring that a plaintiff seeking recovery for tortious conduct of a married woman must join such woman’s husband in the suit in which recovery is sought. The statute does not contemplate that a judgment rendered against a married woman must, as Mrs. de Anda insists in her brief, “be entered jointly and severally against the two spouses’ community estate.”

Since the pleadings embodying Mrs. de Anda’s claim against her husband are not before us, we cannot determine the relief she sought. She does not here contend that Article 5.61(d) entitles her to contribution from her husband, and, in any event, the statute does not purport to make the husband a joint tortfeasor or to make him personally liable for the torts of his wife, absent facts calling for application of the rules of principal and agent or the doctrine of joint enterprise.

The judgment of the trial court is affirmed.


text:
    John N. WALSH, Appellant, v. Anne C. WALSH, Appellee.
    No. 15827.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 1, 1978.

      Louis T. Rosenberg, Rocha, Tutt & Rosenberg, San Antonio, for appellant.
    Anne C. Walsh, San Antonio, for appel-lee.
   CADENA, Chief Justice.

In this appeal from a judgment rendered in a divorce case the appellant, Dr. John N. Walsh, originally complained of those portions of the judgment naming appellee, Anne C. Walsh, managing conservator of the minor children of the parties, dividing the marital property and ordering him to pay $2,500.00 as attorney’s fees.

Since the case was argued, appellee, Mrs. Walsh, has died. As a result, the questions concerning custody of the children of the parties have become moot, since upon the death of Mrs. Walsh, Dr. Walsh, as the surviving parent, became the managing conservator of the children. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953).

The trial court awarded Mrs. Walsh community assets having a value of approximately $120,000.00, while Dr. Walsh received property of the approximate value of $82,000.00.

The evidence supports the conclusion that Mrs. Walsh, a licensed attorney who was attempting to engage in the practice of law, had been unable to realize a profit, while Dr. Walsh had an established medical practice which yielded a taxable income of more than $67,000.00 in 1975. The judgment recites that the trial court, in making the property division, considered the nature of the community assets, the relative position of the parties, the consideration of the support of the four minor children, and the potential earning capacity of the parties. See Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

Dr. Walsh’s principal complaint is that the trial court awarded the homestead of the parties, a dwelling located on a tract consisting of four and one-half acres and valued at $103,000.00, to Mrs. Walsh. While not challenging the award of the dwelling house to Mrs. Walsh, he contends that the trial court should have awarded him half of the land, not including the portion on which the dwelling is located.

Although only four of the eight children of the marriage are below age 18, the other four children, who are attending school, were also living with Mrs. Walsh. The homestead is subject to an outstanding lien in the sum of approximately $9,000.00, and the judgment required that Mrs. Walsh pay that obligation.

Viewing the record as a whole and recognizing the wide discretion vested in the trial court in determining the disposition of the marital estate upon dissolution of a marriage by divorce, we cannot say that the trial court’s action is so manifestly unfair as to require that it be set aside. See, in addition to Cooper, Means v. Means, 535 S.W.2d 911 (Tex.Civ.App.—Amarillo 1976, no writ).

The record supports the conclusion that the sum of $2,500.00 is a reasonable compensation for the services performed by the attorney for Mrs. Walsh. The award of attorney’s fees is but a factor to be considered by the court in making an equitable division of the property, considering the needs of the parties and all of the surrounding circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). In Cooper, an award of $41,000.00 to counsel representing the wife in the divorce trial was upheld, despite the fact that under the divorce decree the wife received assets having a value of $478,000.00. The record in this case does not justify the conclusion that the award of attorney’s fees constitutes an abuse of discretion.

The judgment of the trial court is affirmed.

      . The death of a party pending appeal does not abate the case. The appellate court in such a case shall decide the case as if all parties to the appeal are living, and the appellate judgment shall have the same force and effect as if rendered during the lifetime of all parties to the appeal. Rule 369a, Tex.R.Civ.P. (1977).


author: KLINGEMAN, Justice.

text:
    Charles Milford PEEPLES, Appellant, v. Rose Mary PEEPLES, Appellee.
    No. 15893.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 1, 1978.

      Houston C. Munson, Jr., Gonzales, for appellant.
    Daniel R. Rutherford, John L. Ray, San Antonio, for appellee.
   KLINGEMAN, Justice.

This suit was instituted by Charles Milford Peeples, appellant herein, for change of custody of two minor children previously awarded to appellee, Rose Mary Peeples, in a divorce proceeding between such parties. Trial in the herein case was to a jury who found adversely to appellant on the two special issues involving custody; and in answer to the only other special issue submitted, found the sum of $4,100.00 to be reasonable and necessary attorney’s fees for appellee’s attorney, Daniel R. Rutherford, Esq. Judgment was entered by the trial court denying appellant’s application for change of custody and awarding appellee’s attorney, Daniel R. Rutherford, the sum of $4,100.00 as attorney’s fees. On this appeal, appellant complains only of the award of attorney’s fees.

We will first consider appellee’s cross-point that this Court has no jurisdiction to hear this appeal because said appeal was not duly perfected.

The transcript contains a judgment which recites that it was signed and rendered on January 10, 1977. If this date is correct, the appeal has not been timely perfected. Such judgment was filed on February 28, 1977.

The transcript contains an order which was signed on May 25, 1977, which recites that the judgment dated January 10, 1977 and filed February 28, 1977, is incorrect because the date of January 10, 1977 was inadvertently placed in said judgment by a clerical error and said judgment is corrected by changing the date of signing of said judgment to February 28,1977. This order specifically recites that it is rendered nunc pro tune. Based on this date, the appeal was timely perfected.

The right of a court to render a judgment nunc pro tunc in order to correct clerical errors and mistakes in the record concerning the judgment actually pronounced and to make the record conform to the truth, is undoubted. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App.—Amarillo 1953, writ ref’d); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); 33 Tex.Jur.2d Judgments § 28, at 516 (1962); Rules 316, 317, 306b, Tex.R.Civ.P. Where the mistakes in the record are corrected and a judgment nunc pro tunc is properly rendered, the time for appeal runs from the date the trial judge signs the nunc pro tunc order. Rule 306b, Tex.R.Civ.P.

Appellee relies on Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Brown v. Vander Stucken, 435 S.W.2d 609 (Tex.Civ.App.—San Antonio 1968, no writ); Cox v. Payne, 231 S.W.2d 957 (Tex.Civ.App.—Amarillo 1950, no writ). We do not regard these cases as in point. Anderson v. Casebolt dealt with an attempt to change the date of the original rendition with no mention in the second order of a mistake in the original date of rendition. In Brown v. Vander Stucken, supra, the trial court specifically found that there was no error in the date of its original judgment and refused to enter a judgment nunc pro tunc. In Cox v. Payne, supra, the trial court refused to change the date of the original judgment. In the ease before us it appears from the record the trial court found a mistake in its original judgment and took steps to correct it as recited in the nunc pro tunc order. We overrule appellee’s cross-point. Under the record this appeal has been properly perfected.

By seven points of error appellant asserts that the trial court erred (1) in failing to give an explanatory instruction of the word, “necessary,” with regard to Special Issue No. 3; (2) in sustaining the jury’s award of $4,100.00 as attorney’s fees because there was insufficient evidence to support such award; (3) in allowing such award based solely on the testimony of appellee’s attorney; (4) in sustaining such award because it is based in part on the attorney’s work in the divorce suit and is not restricted solely to the work in this suit; (5) in refusing to allow Daniel R. Rutherford to explain how the 82.9 hours was determined; (6) in refusing to grant appellant’s request for a remittitur; and (7) because the submission of Special Issue No. 3, without an explanatory instruction caused an improper judgment in this case.

The pertinent testimony here involved may be summarized as follows: Mr. Rutherford, after testifying as to his qualifications and experience, testified that he was first retained by Mrs. Peeples to represent her in connection with the divorce case; that this employment was terminated; and that some time thereafter he was again employed to represent Mrs. Peeples in connection with the change of custody suit. He discussed three methods of computing and determining attorney’s fees: (1) a quoted fee method; (2) the hourly rate method; and (3) the contingency fee method. He stated that in this type of case — a child custody case — the proper method would be an hourly rate basis; that in his firm they charge $50.00 per hour, which is for the time actually expended by himself and does not include such items as secretarial time and law clerk time; and that the $50.00 hourly charge is for Mr. Rutherford’s time only, but also covers all overhead items, such as office rent, law library, telephone, and secretarial salary. He stated that the bar association has, through exhaustive research and study, determined that $50.00 an hour is a fair and reasonable fee per hour for this type of work.

He testified that he had been engaged in the active defense of this case for 82.9 hours, and when questioned by the trial judge, he reiterated that the total amount of work done by him was 82.9 hours, which, based on the hourly rate charge, amounted to $4,145.00. On further questioning by the court he testified that this was a reasonable and proper fee in this case. Appellant’s attorney did not cross examine or question Mr. Rutherford as to this testimony and offered no testimony as to attorney’s fee in rebuttal. The transcript also shows numerous trial proceedings and pleadings involved in this matter.

We first consider appellant’s contention that the trial court erred in failing to give an explanatory instruction in connection with Special Issue No. 3. The transcript does not reflect any objections to such issue as submitted, nor does it reflect that appellant requested any definitions or explanatory instructions. Rule 279, Tex.R.Civ.P., provides in part as follows:

Failure to submit a definition or explanatory instructions shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.

There are many cases holding that the failure of a trial court to submit a definition or explanatory instruction is not grounds for reversal unless a substantially correct definition or instruction has been requested in writing and tendered by the complaining party. State v. Harrington, 407 S.W.2d 467, 479 (Tex.1966); Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955); Olivares v. Porter Poultry & Egg Co., 523 S.W.2d 726 (Tex.Civ.App.—San Antonio 1975, no writ); McNutt v. Qualls, 433 S.W.2d 521 (Tex.Civ.App.—Dallas 1968, no writ); Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n.r.e.).

Under the record, we find no reversible error of the trial court in failing to submit any definitions or explanatory instructions.

Appellant’s other points of error pertain to the sufficiency of the evidence to support the jury’s award and the failure of the trial court to order a remittitur.

§ 11.18, Tex. Family Code Ann. (1975), provides that reasonable attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order for fees in his own name. It is settled that the reasonableness of attorney’s fees is a question of fact to be determined by the trier of the facts and must be supported by competent evidence. General American Reserve Ins. Co. v. Brit-ton, 406 S.W.2d 901 (Tex.1966).

Appellant here complains that the only testimony as to attorney’s fees is that of the attorney involved and that this will not support a judgment. We disagree. There are numerous cases of this nature where the only testimony is that of the attorney. The case before us is somewhat similar to Boysen v. Security Lumber Co., 531 S.W.2d 454 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), where the court said:

Appellee’s attorney testified that he was personally familiar with the work that had been done on this ease; that he was personally familiar with the amount customarily charged by attorneys in similar cases; that approximately twenty to twenty-five hours of work were generally required for such cases; that his charge of $45.00 per hour was the usual and customary charge by attorneys; and that based on the usual amount of work required and the customary charge, $1,000 was a reasonable fee. Appellant offered no evidence in rebuttal of this testimony. The evidence outlined above was sufficient to support the award.

See also Industrial Broadcasting Co. v. Broadcasting Equipment Sales Co., 543 S.W.2d 674 (Tex.Civ.App.—Eastland 1976, writ ref’d n.r.e.); Smith v. Horton, 485 S.W.2d 824 (Tex.Civ.App.—Texarkana 1972, writ dism’d); Magids v. Dorman, 430 S.W.2d 910 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.).

The only testimony as to attorney’s fees in this case is that of appellee’s attorney who testified that he had spent 82.9 hours on the case; that his usual charge for this type of work is $50.00 per hour; that the bar association has determined after research and study that a reasonable fee for this type of work is $50.00 per hour; that based on such hourly rate and the number of hours work done by him, the total attorney’s fees aggregated $4,145.00; and that this is a reasonable and proper fee in this case. Appellant offered no testimony in rebuttal of this testimony and appellee’s testimony is uncontroverted.

There is no merit to appellant’s contention that such work included other work done in the original divorce case. Appel-lee’s attorney testified that while he had done work in the original divorce case, this employment was terminated; and that he was subsequently reemployed to represent appellee in the child custody proceedings herein; that in connection with this litigation he has been engaged in the actual defense of this case for 82.9 hours.

Appellant further contends that Mr. Rutherford should have been allowed to explain how the 82.9 hours was determined. Appellant had full opportunity to cross examine appellee’s attorney in this regard, and did not do so, and he cannot now complain of the lack of such breakdown.

We hold that the jury’s award and subsequent judgment as to attorney’s fees is sufficiently supported by the evidence. Under the record, there is no basis or reason for any remittitur.

All of appellant’s points of error have been considered and all are overruled. The judgment of the trial court is affirmed.

      . Special Issue No. 3 inquires as to what sum of money would be reasonable and necessary to compensate Daniel R. Rutherford in the trial of this cause.


author: WARD, Justice.

text:
    Ed TURNER, Appellant, v. Paul BYERS, Individually and doing business as Paul Byers and Associates, et al., Appellees.
    No. 6657.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.

      Gloria T. Svanas, Odessa, for appellant.
    Finley & Scogin, Robert Scogin, Michael L. Fostel, John R. Lee, Kermit, for appel-lees.
   OPINION

WARD, Justice.

Ed Turner sued Paul Byers and two others upon several theories, one being for the wrongful breach of an employment contract. Trial was before a jury and an instructed verdict was entered for the two Defendants other than Paul Byers. Thereafter, the jury, upon special issues submitted, determined that the dismissal of the Plaintiff from his employment by the Defendant Byers was justified, and, further, failed to find that the Plaintiff suffered any damages. Based upon the verdict, a take nothing judgment for the Defendant Byers was entered. We affirm.

Paul Byers was doing business under the assumed name of Paul Byers and Associates as a certified registered nurse anesthetist (C.R.N.A.). He was performing his services under written contracts with the Memorial Hospital of Kermit and other hospitals located in the general area. Finding that he needed additional help, Byers contacted the Plaintiff, who was a qualified C.R.N.A., and written one-year employment contracts were entered into between the parties, the first on May 1,1973, and the second on May 1,1974. The last contract provides that the Plaintiff Turner will perform anesthesia services under the direction of Byers in connection with the various contracts which Byers held with the hospitals, and Byers would pay Turner a sum equal to 50% of the guaranteed base fee received from the hospitals. The contract further provided that Turner was to be responsible for the payment of his own self-employment tax, for the payment of his own federal income taxes, and that Byers was not to be responsible for any such taxes which might be attributed to an employer-employee relationship as Turner was an independent contractor. The second contract was for a period of one year beginning May 1, 1974. While the first contract was in effect, Byers had employed Charles Parsons Clark, III, as an additional anesthetist, and the Plaintiff, under his last contract, had agreed to pay 50% of Clark’s salary.

Soon after the last contract was executed, Plaintiff started appearing on various public programs where he advocated the non-payment of all income taxes. Byers knew that Turner had previously had difficulty with the Internal Revenue Service and had been arrested in February, 1974, for non-payment of income taxes. With the public appearances, Byers became concerned and talked to Turner and informed him that the business was being embarrassed by his remarks. In the conversation, Turner told Byers that he did not have anything, that he would not pay his income taxes, and that the Internal Revenue Service would have to come and get him. Byers then contacted Mr. Hoyer, his certified public accountant, who, after examining, the Turner contract, informed Byers that if Turner did not pay his income taxes or social security, that Byers would then be liable under Internal Revenue regulations as Turner was an employee of Byers whose compensation was subject to withholding and social security payments, and that, because of Turner’s publicity, Byers would be examined by the Internal Revenue Service. Byers again conferred with Turner about the problem of withholding taxes, and after two or three conferences, Byers said that he would have to withhold taxes in the future. Turner insisted that the terms of the contract regarding no withholding of taxes be carried out, and repeated his position that he had no assets and was never going to pay his income tax. Thereafter, on July 11, 1974, Byers informed Turner by letter that their contract was of no further force and effect, and that his services as an anesthetist with Paul Byers and Associates was terminated. Turner then applied for a position as an anesthetist at the Kermit Hospital and claimed thirty allowances for tax purposes. He was never hired and filed suit against Byers, Clark, and Ralph Lennon, who was the Administrator of the Kermit Memorial Hospital.

In the first count of his petition, the Plaintiff sued Byers and Clark for damages for breach of contract and for “violation of the civil rights of Turner by Byers and Clark.” The proof was that Clark was an employee of Byers and did not participate in the dispute between the Plaintiff and Byers. By another count, the Plaintiff sued Byers and Lennon, the Administrator of the Kermit Hospital, on theories of conspiracy, anti-trust, monopoly, right to work, and arrangements to prevent the Plaintiff from working at any hospital. The hospital contracts were not made with Lennon, but were with the various county hospitals, and were to the effect that Byers agreed to provide coverage to the particular hospital in administering anesthesia and to serve as operating room supervisor. Separate contracts with the hospitals provided that Byers would furnish limited supervision of inhalation therapy, full emergency coverage for inhalation therapy and would recommend the hiring and firing of hospital inhalation employees. The proof was that Lennon was notified on July 11, 1974, that Byers had terminated his association with Turner, and that Turner was no longer to work under the Byers-Kermit Hospital contract; and that thereafter the Plaintiff applied for work at the Kermit Hospital as an anesthetist and was never employed. The contracts that Byers had with the hospitals were non-exclusive and did not prohibit any hospital from hiring whomever they chose, and there was no evidence of any conspiracy, price fixing, monopoly, or anti-trust violations. All points presented by the Plaintiff complaining of such matters as against all Defendants, and all points complaining of the granting of the instructed verdict in favor of the Defendants Clark and Lennon, are overruled.

Byers did not claim that he had any right to terminate the Turner-Clark contract because of any express written provision contained therein. That alone does not prohibit an employer from discharging an employee, although this seems to be the main theme of the Plaintiff’s appellate complaint. There are implied obligations in all employment contracts, including one that an employee will not do an act that has a tendency to injure the employer’s business or financial interest. A serious breach of this implied obligation will justify the employer in discharging the employee. 38 Tex.Jur.2d Master and Servant, Sec. 13, p. 151 (1962). C.P.A. Hoyer testified as an expert and without objection that from his experience it was almost certain that, because of the publicity generated by the Plaintiff’s tax revolt, Byers would have been examined by the Internal Revenue Service had he continued to employ Turner, and would have been liable for all the income tax and social security tax that the Plaintiff did not pay. It was his opinion that in spite of the terms of the written contract, the Internal Revenue Service would have determined that the Plaintiff was an employee since he came within the scope of two critical tests used by IRS in making their determination of an employee. First, Byers had the legal right to control both the method and result of the services performed by Turner, and, second, the Plaintiff performed services for only one employer. It was also shown that the Plaintiff had purchased his home under an assumed name, and, since he made the statement that he would not pay his taxes and had no assets from which they could be collected, this potential financial injury to the employer was submitted to the jury as good cause for the discharge. Legal and factual insufficiency points have been presented by the Plaintiff concerning these findings. In considering the legal sufficiency points, we have considered only the evidence and inferences therefrom which support the jury findings, and, in reviewing the factual sufficiency points, we have considered all the evidence, and those points are overruled. We further hold that good cause then existed for Byers to discharge Turner since Turner would under no circumstances permit Byers to withhold his taxes.

The Plaintiff complains that the jury’s answer to the actual damages issue of “None” was against the great weight and preponderance of the evidence. Upon examination by Byers’ attorney, the Plaintiff first testified that he could not tell how much he earned from the date of his discharge until April 30, 1975. Thereafter, upon examination by his own attorney, he testified that he had only been employed part-time as a manual laborer in construction, and that he had applied for work as a certified registered nurse anesthetist in all area hospitals, but had not been employed. Byers, on the contrary, testified that certified nurse anesthetists were hard to come by and that jobs were readily available. The general rule is that an employee who has been wrongfully discharged and seeks to recover damages cannot recover for losses which, in the exercise of reasonable diligence, he could avoid, and that, upon a wrongful discharge before the termination of the contract of employment, the employee must endeavor to reduce the, loss or damage by seeking other employment. Mr. Eddie, Inc. v. Ginsberg, 430 S.W.2d 5 (Tex. Civ.App.—Eastland 1968, writ ref’d n. r. e.). The jury was so instructed in connection with the issue and undoubtedly found that the Plaintiff did not use reasonable diligence in mitigating his damages by seeking other employment, and that such employment was available. We have reviewed all of the evidence and the point is overruled.

Plaintiff complains that the trial Court would not permit testimony to the effect that Byers had obtained certain of his drugs by prescription in West Virginia and had brought them to Texas in violation of the Texas Drug laws. We are at a loss to determine under what theory of impeachment this testimony would have become admissible and the point is overruled.

After evidence was introduced that the Plaintiff had claimed thirty allowances for withholding tax purposes when he made his application for employment at the Kermit Hospital, the Plaintiff testified that they were allowable under Internal Revenue Service rules and regulations, and he made a detailed explanation as to why they were legal. On cross-examination and over the Plaintiff’s objection, he then testified that in the early part of the year 1974, he had been indicted, and in December, 1975, had been convicted in federal Court of income tax violation for having claimed the same thirty exemptions earlier in 1973. This proof became admissible as impeachment of the testimony offered by the Plaintiff in claiming that the allowances were perfectly legal and justified. Further, the conviction of wilfully attempting to evade payment of federal income taxes by filing false and fraudulent income tax returns was a conviction for an offense involving moral turpitude and would be admissible under the general rule. 1 McCormick & Ray, Texas Law of Evidence, Sec. 660 (2d ed. 1956). The point regarding this matter is overruled.

We have examined the balance of the Plaintiff’s points and we find that they are without merit. All points are overruled and the judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    GIBSON DISCOUNT CENTER, INC., Appellant, v. Guadalupe CRUZ, Appellee.
    No. 6663.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.

      Rassman, Gunter & Boldrick, John E. Gunter, Midland, for appellant.
    Dan D. Sullivan, Andrews, for appellee.
   OPINION

OSBORN, Justice.

The Appellee, Guadalupe Cruz, was charged with misdemeanor theft for “shoplifting” in Appellant’s store in Odessa, Texas. A jury acquitted him of the charge. In this suit alleging false imprisonment and malicious prosecution, the jury awarded Mr. Cruz $5,000.00 in actual damages and $5,000.00 in exemplary damages. We affirm.

The Appellee is employed by Andrews County as a supervisor in the maintenance of its golf course. He has worked for the County for about five years and has six employees working under his direction. On November 2, 1974, he drove his mother and sister to the Gibson store on West County Road in Odessa to shop for groceries. After his mother completed the shopping, she told Guadalupe to bring the car to the front of the store while she checked out. After walking out of the store, Mr. Cruz was stopped by a security agent who asked him if he had forgotten to pay for something and asked him to come back into the store office. At that time, Mr. Cruz, and subsequently his mother and sister, were all questioned about a hat he was wearing and which he had not paid for as he left the store to go to his car. All three said the hat had been previously purchased at the Gibson store.

The security personnel did not believe Mr. Cruz or the other members of his family and the police were called. Mr. Cruz was taken to town, booked for a Class “C” misdemeanor, and jailed until a cash bond was posted the following day. Mr. Cruz retained an attorney, and upon a jury trial he was found not guilty.

Upon the trial of this case, as well as in the criminal case, Mr. Cruz was able to present in evidence a cash register tape from the Gibson store, apparently for purchases in October, 1974, which by code number and price reflected a purchase of a hat with the same code and price as the hat he wore out of the store in November, .1974. Mr. Cruz testified that the tape reflected the sale of the hat which had been purchased just a month before his arrest.

The jury obviously believed this testimony and found (1) Gibson restrained Mr. Cruz of his physical liberty; (2) without his consent; and (3) without legal justification; (4) that Gibson set in motion the criminal prosecution; (5) that such was instituted maliciously and without probable cause; (6) the prosecution resulted in an acquittal; (7) $5,000.00 in actual damages; (8) that in restraining Mr. Cruz, Gibson’s employees acted wilfully, intentionally and without regard to his rights; and (9) $5,000.00 in exemplary damages.

The Appellant presents four “no evidence” points of error, the first two attacking the two findings of damage, and the last two attacking the jury’s answers to Special Issues Nos. 2, 3, 5, and 8. In considering these “no evidence” points, we must view the evidence in its most favorable light in support of the jury findings, considering only the evidence and inferences which support those findings, and rejecting the evidence and inferences contrary to those findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.1974); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

With regard to the actual damages, the proof established that Mr. Cruz was jailed overnight, was required to post a cash bond of $102.50, and agreed to pay an attorney’s fee of $1,000.00 plus the expenses for investigation of the charges and trial of the criminal case. The incident of his arrest was published in a daily newspaper sold in Andrews County where he lived and worked. In such a case, one is entitled to compensation “for his loss of time, for physical discomfort or inconvenience, and for any resulting physical illness or injury to his health. Since the injury is in large part a mental one, he is entitled to damages for his mental suffering, humiliation, and the like. The recoverable damages range further afield, and extend also to the interruption of the plaintiff’s business, the harm to his reputation or credit, loss of the company of his family during imprisonment, and expenses, such as attorney’s fees, to which he has been put by reason of a false arrest.” Prosser, Law of Torts, 4th Ed. pp. 43-44 (1971).

In Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970), the Court, in a similar case, affirmed a verdict twice as large for the same offenses and noted that elements of damage include mental suffering, humiliation, shame and fright which cannot be measured by a definite standard, but must be left to the sound discretion of the jury.

Exemplary damages must be reasonably apportioned to the actual damages sustained. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). In this case, the two are identical. The award is not so large as to indicate that it is the result of passion, prejudice, or corruption, or that the evidence has been disregarded, and should not be set aside. Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.). The first two points of error are overruled.

As to the attack on the findings 2, 3, 5, and 8, we conclude that there is some evidence to support the jury’s answers. Throughout the questioning, Mr. Cruz, his mother and his sister all said that the hat was not stolen but had been purchased earlier at the same store. Mr. Cruz said that the hat was soiled at the time he was stopped by the security personnel, thus indicating it had not been picked up off the shelf that day. He said he had the hat on when he entered the store, and he never took it off while in the store. Although there was evidence to the contrary, we may not consider it since Appellant presents only “no evidence” points. We conclude that there was some evidence of a restraint without consent or legal justification, and Appellee does concede a false imprisonment commenced when the police officers took Mr. Cruz into custody at the direction of Gibson’s security agents. There was no warrant for his arrest, and Article 14.01, Tex.Code Crim.Proc.Ann., did not authorize an arrest without a warrant. The jury apparently concluded that there was no basis to reasonably believe the hat was stolen and thus found the restraint was without legal justification, even though they were instructed as to the privilege to investigate ownership of the property under Article Id, Tex.Rev.Civ.Stat.Ann.

While the evidence to support the finding of malice and wilful, intentional conduct without regard to the rights of Mr. Cruz may be weak, we conclude that there is some evidence to support the findings. Police were called even though three people all said the hat had been purchased at an earlier date. The hat itself apparently reflected some wear over the period of the preceding month. Upon trial of the case, one of the security agents said she thought Mr. Cruz stole the hat, even after seeing the tape which indicated the earlier sale. We conclude that this is some evidence of malice and that the employees did act without regard to the rights of Mr. Cruz. The employees of Gibson never acknowledged that they might have made an honest mistake or that they should have investigated further before filing theft charges on merchandise valued below $5.00. Instead, they steadfastly refused to believe Mr. Cruz, his mother and his sister, and at least one of the employees was unwilling to accept the jury finding as to his innocence even when confronted with the evidence of a prior sale of the hat. The last two points are overruled. There being no points of error with regard to the legal sufficiency of the special issues as submitted, we do not pass on such issues in this case.

The judgment of the trial Court is affirmed.


author: ODEN, Justice.

text:
    John C. BRADFORD, d/b/a Brad’s Petroleum Co., and the United States of America, Appellants, v. Robert E. RAIN, Jr., Trustee, and National Distillers and Chemical Corporation, Appellees.
    No. 8519.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Pat C. Guillot, Collie, McSpedden & Roberts, Dallas, Charles D. Cabaniss, Asst. U. S. Atty., Dallas, for appellants.
    Marshall M. Searcy, Jr., Rain, Harrell, Emery, Young & Doke, Dallas, for appel-lees.
   ODEN, Justice.

John C. Bradford, d/b/a Brad’s Petroleum Company, and the United States of America, have perfected the appeal from the portion of the judgment entered by the 44th Judicial District Court of Dallas County, Texas, decreeing, pursuant to the Uniform Declaratory Judgments Act, Article 2524-1, Tex.Rev.Civ.Stat, that National Distillers and Chemical Corporation was the equitable owner of certain oil producing properties held in trust by Robert E. Rain, Jr., Trustee, free and clear of certain tax liens filed by the United States of America. A monetary judgment was also awarded in favor of National Distillers and Chemical Corporation against John C. Bradford, however, there have been no exceptions levied against that portion of the judgment. Appellants will be referred to as “Bradford” and “USA.” Appellees will be referred to as “National” and “Rain.”

Bradford was the chief executive officer and sole shareholder of Brad’s Machine Products, Inc. Brad’s Machine Products Company, a California corporation, is not involved in the lawsuit. On August 1, 1969, Brad’s Machine Products, Inc., owed Bridgeport Brass Company, a division of National, $630,000.00 for materials purchased. During the month of August, 1969, National advanced an additional $600,000.00 to Brad’s Machine Products, Inc. as a loan and simultaneously agreed to defer payment of the $630,000.00 account receivable. Two (2) notes were executed to evidence the indebtedness owed National and Bradford personally endorsed both notes. Bradford personally owned certain oil producing properties. On August 25, 1969, Bradford assigned these properties to National. The assignments of August 25, 1969, were in fact mortgages and were not recorded until after the USA filed the notices of tax lien hereinafter alluded to.

Shortly after the August 25, 1969, assignments National discovered that Bradford was indebted to numerous trade creditors for materials furnished in improving the oil producing properties. The aggregate claims exceeded $600,000.00 and the trade creditors were threatening to file mechanic lien claims against the oil producing properties. On October 10, 1969, Bradford and National, following several weeks of negotiations, transferred legal title to the oil producing properties to William D. Neary, Jr. in trust. The assignments were recorded on October 15, 1969, in the deed records of the counties in which the oil producing properties were located. The aggregate of the creditors’ claims at this time was $530,-493.25 and Bradford executed a promissory note in favor of each creditor to evidence the obligations.

The trust agreement pursuant to which William D. Neary, Jr., Trustee, held legal title to the oil producing properties is quite lengthy and we will only summarize and quote those portions which we consider to be pertinent. It provided that William D. Neary, Jr., Trustee, would collect all income from the oil producing properties and disperse the net collections on a pro rata basis among the creditors. National was not considered a creditor under the terms of the trust agreement. Both National and Bradford executed the trust agreement as set-tlors, however, National only owned a mortgage at that time. The trustee was not authorized to convey the oil producing properties to third parties if $25,000.00 per month was made available for distribution among creditors, however, if such sum was not available per month the trustee was authorized, upon direction from the creditors’ committee, to convey the oil producing properties to third parties with the proceeds derived from such transfer to be divided among the creditors on a pro rata basis. The trust agreement is silent as to what disposition the trustee should make of any excess funds in the event the proceeds from a sale of the oil producing properties exceeded the aggregate claims of the creditors. The trust agreement did provide that:

“In the event the net amount of $25,000 is made available to the Trustee and the Creditors are paid in full, together with interest, the amount of their indebtedness as shown in Exhibit A then the Trustee shall reconvey and assign the producing properties subject to the Assignment to National.”

The principal basis for the appeal involves a construction of the foregoing quoted paragraph.

On March 25, 1971, the USA filed notices of tax lien against Bradford in the appropriate records of the counties in which the oil producing properties were located in an attempt to secure an indebtedness in the amount of $3,112,951.30 plus interest owed by Bradford. The notices of federal tax lien were filed before the assignments dated August 25, 1969, were filed for record, but after the assignments dated October 10, 1969, were recorded. The net amount of monies collected by William D. Neary, Jr., Trustee, for distribution among creditors fell below $25,000.00 per month well in advance of March 25, 1971, the date the USA filed its notices of federal tax lien, however, the creditors’ committee did not direct the trustee to dispose of the oil producing properties and apply the net sale proceeds toward liquidation of their indebtednesses. At the time of trial, National was the owner and holder of the notes executed by Bradford in favor of the trade creditors and Rain was the substitute trustee under the trust agreement.

National contends that it owns equitable title to the oil producing properties by virtue of the quoted provision of the trust agreement dated October 10, 1969, subject only to the right of the trustee to collect the income in order to discharge the indebt-ednesses formerly held by the trade creditors but now held by it. The USA and Bradford contend that the provision that a net amount of $25,000.00 per month be available to the trustee for distribution among the trade creditors is a condition precedent to equitable title vesting in National and upon failure of the condition prior to March 25, 1971, the date the USA filed its notices of federal tax lien, title to the oil producing properties, subject to the right of the trustee to collect the income to pay the trade creditors, reverted to Bradford, as owner, and National, as mortgagee, under the August 25, 1969, assignments which were not filed for record prior to the date the USA filed its notices of tax lien. In effect, appellants claim that National only holds a mortgage which is subordinate and inferior to the liens held by the USA. The jury found that the October 10, 1969, agreement superseded the agreement of August 25, 1969, and that both Bradford and National had an expressed mutual intent in executing the documents dated October 10, 1969. As stated, judgment was entered that National held equitable title to the oil producing properties free and clear of the tax liens asserted by the USA.

The effect of the jury’s finding that Bradford and National had an expressed mutual intent in executing the trust agreement on October 10,1969, is that such document should be construed as written. In construing the trust agreement we have followed the rule that instruments of conveyance should be interpreted so as to ascertain and effectuate the intention of the parties. City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640 (1952).

In our opinion, the provisions in the trust agreement pertaining to the trustee collecting $25,000.00 per month for distribution among creditors are in fact limitations on the power of the trustee to sell the oil producing properties rather than an event which must take place before the estate held by National is affected. The trustee was not authorized to sell the oil producing properties if the amount available for distribution among creditors exceeded $25,-000.00 per month and if the sum collected fell below $25,000.00 per month, the oil producing properties could only be sold at the direction of the creditors’ committee. The event in the document under review which must take place before the estate held by National in the oil producing properties is affected is a sale of the oil producing properties. An occurrence of this event would vest title to the oil producing properties in third parties free of all claims of the parties to the appeal.

The principal distinctions between reversionary interests and remainder interests are (1) a reversion interest arises by operation of law apart from the intent of the grantor whereas a remainder is created only by express limitation and by the same instrument which creates the particular estate, and (2) a reversion interest arises only in favor of a grantor whereas a remainder interest can be created only in favor of a stranger. C. Moynihan, Preliminary Survey of the Law of Real Property, Sec. 5, at 58 (1940). Analyzing the interest held by National in the oil producing properties in light of the foregoing principles, it is obvious that the interest held by National in the oil producing properties was that of a re-mainderman. The interest was created by the quoted provision of the trust agreement. While it is true that National executed the trust agreement under which it claims title as an assignor, the sole purpose for its joining in the execution was to relinquish the mortgage which was created by the assignments dated August 25,1969, and for purposes of classifying its interest in the oil producing properties it would be a stranger to the transaction as opposed to a grantor.

It is well settled that a remainder is vested when there is a person in being who would have an immediate right to possession upon the termination of the intermediate estate. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948); Reilly v. Huff, 335 S.W.2d 275 (Tex.Civ.App. San Antonio 1960, no writ); Grohn v. Marquardt, 487 S.W.2d 214 (Tex.Civ.App. San Antonio 1972, writ ref’d n. r. e.). The character of a remainder as vested is not affected by an uncertainty as to the question of a quantum which will be received by the re-mainderman when he becomes entitled to possession. A remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the preceding estate, but by uncertainty as to the persons who are to take. Chadwick v. Bristow, supra; Reiliy v. Huff, supra; Caples v. Ward, 107 Tex. 341, 179 S.W. 856 (1915). An analysis of the facts in this case in light of the foregoing principles leads us to the conclusion that National held a vested remainder interest in the oil producing properties subject to complete divestment in the event the trustee exercised his power of sale in accordance with the terms of the trust agreement. National was in existence at the time the trust agreement was executed on October 10, 1969, and it had an immediate right to possession of the oil producing properties upon the creditors being paid in full. The uncertainty was related to the quantum of the estate National would receive and not to whether it would receive the oil producing properties if the trustee did not exercise his power of sale. The event of sale is a condition subsequent inasmuch as it operates upon an estate which has already been created and vested. City of Dalias v. Etheridge, supra. This affirms our belief that National held a vested remainder interest in the oil producing properties subject to complete divestment inasmuch as an estate limited upon a contingency, to which the effect of a condition subsequent only is given, vests at once, subject to being divested upon the happening of the contingency. Caples v. Ward, supra. Accordingly, Bradford had no interest in the oil producing properties to which the USA’s tax liens could attach when notices thereof were filed March 25, 1971. Under no circumstances would title revert to Bradford. The trustee would either sell the properties to third parties or convey them to National.

The liens asserted by the USA are ones imposed by 26 U.S.C.A. § 6321. Such liens are not valid against a purchaser of real property unless notices thereof are filed in accordance with the laws of the state in which the real property is located. 26 U.S.C.A. § 6323; Enochs v. Smith, 359 F.2d 924 (5th Cir. 1966). The assignments whereby title was transferred to the trustee were recorded in advance of the filing of the notices of the federal tax lien. The question thus presented is whether National was a purchaser on October 10, 1969, when it acquired the vested remainder interest. If it was the USA’s lien is clearly invalid as to it. A determination of who is a purchaser depends on federal law. Enochs v. Smith, supra. The Supreme Court of the United States in United States v. Scovil, 348 U.S. 218, 75 S.Ct. 244, 99 L.Ed. 271 (1955), declared that a purchaser usually means one who acquires title for a valuable consideration in the manner of vendor and vendee. National released its mortgage against the oil producing properties when it joined in executing the documents dated October 10, 1969. It is possible that the claims of the trade creditors were superior to National’s mortgage, however, National released its claim of superiority when it joined in executing the documents. We hold that the release of this claim constituted a valuable consideration. An effect of our ruling that National acquired a vested interest under the trust agreement is that Bradford was a vendor and National a vendee. The trial court did not err in decreeing that National and Rain own the oil producing properties free and clear of the tax liens asserted by the USA. Furthermore, the jury found that there was consideration for Bradford executing the documents on October 10, 1969. This finding is supported by the evidence.

Bradford and the USA claim that National’s interest in the oil producing properties is that of a mortgagee. It is well settled that a conveyance absolute on its face may be shown by parol evidence to have been intended as a mortgage. Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607 (1960); Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972 (1949). The assignments dated October 10,1969, were conveyances absolute on their faces. Bradford and the USA had the burden to obtain a finding that the documents dated October 10,1969, were intended as mortgages. Fulbright v. Culbertson, 429 S.W.2d 179 (Tex.Civ.App. Fort Worth 1968, writ ref’d n. r. e.). They failed in their burden. On the contrary, the jury found that Bradford and National had an expressed mutual intent when they executed the documents on October 10, 1969.

Bradford also complains of the form of a special issue submitted to the jury pertaining to whether or not the USA had actual notice of National’s claim against the oil producing properties. The jury found that the USA had such notice, however, that finding should not form a basis for the judgment inasmuch as we have held that National was a purchaser as that term is used in 26 U.S.C.A. § 6323.

John Salisbury, an employee of and witness for National, testified that National lost some $5,060,000.00 in its dealing with Bradford due to Bradford’s inability to pay and that the value of the oil producing properties in 1969 was less than $500,000.00. Bradford offered into evidence a document purportedly executed by an officer of National which indicated National made a profit in its dealings with Bradford and two engineering reports which indicated that the market value of the oil producing properties was $493,000.00 in 1970 and $550,-000.00 in 1974. National’s objections to these documents being introduced into evidence were sustained. Bradford complains that the documents should have been admitted into evidence for the limited purpose of impeaching the witness, John Salisbury. We do not agree. The statements and conclusions contained in the proffered documents were not inconsistent with the challenged testimony and accordingly were not admissible for the purpose of impeachment. Bituminous Casualty Company v. Martin, 478 S.W.2d 206 (Tex.Civ.App. El Paso 1972, writ ref'd n. r. e.). The document which supposedly indicated National made a profit in its dealings with Bradford was based on the assumption National would collect its debt. Since this simply is not the case, it could not be contradictory. The engineering report reflecting value in the year 1974 could not contradict Salisbury’s testimony as to value in the year 1969. The report prepared by the engineering firm reflecting value for the year 1970 indicated a value of $493,000.00 and the witness testified to a value of less than $500,000.00. Again, there is no contradiction.

The judgment of the trial court will be affirmed.


author: SHANNON, Justice.

text:
    Ann Joy Bettis NOLAN, Appellant, v. James Jay BETTIS et al., Appellees.
    No. 12624.
    Court of Civil Appeals of Texas, Austin.
    Feb. 8, 1978.
    Rehearing Denied March 1, 1978.

      Robert L. Templeton, Templeton & Garner, Amarillo, for appellant.
    Milton L. Bankston, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for ap-pellees.
   SHANNON, Justice.

Appellees, James Jay Bettis, individually and as independent executor of the estate of James W. Bettis, Jr., and his brother, Douglas Dewey Bettis, sued appellant, Ann Joy Bettis Nolan, their stepmother, and four local attorneys. Appellees’ suit sought damages and an order canceling a trustee’s deed to appellant of three hundred and sixty-one acres of land located in Travis County. A different aspect of the controversy was litigated previously. 518 S.W.2d 396 (Tex.Civ.App.1975, writ ref’d n. r. e.). After trial to a jury, in the case at bar, judgment was entered for appellees canceling the deed and for damages for $27,000.

In the outset, we must determine whether or not this Court has jurisdiction to entertain the appeal. Jurisdiction of this Court turns upon determination that (1) the district court was empowered to entertain the suit; (2) the nunc pro tunc judgment entered by the district court was valid; and (3) the nunc pro tunc judgment was final.

Appellant argues that the district court was without power to entertain the suit. This is so, argues appellant, for the reason that appellees’ suit was “. . . for trial of the right of property incident to an estate . . . ” Tex.Prob. Code Ann. § 5(d) (Supp.1978), and, accordingly, exclusive jurisdiction was vested in the courts in Travis County “exercising original probate jurisdiction.”

The Tyler Court of Civil Appeals held that matters or proceedings “incident to an estate,” under § 5, apply to those matters or proceedings in which the controlling issue is the settlement, partition, or distribution of an estate. Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.1977); see Schwartzel & Wilshusen, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Texas L.Rev. 372, 382-83 (1976). In the case at bar appellees sued appellant for fraud. In their suit, appellees sought recovery of $250,000 in actual and exemplary damages and an order canceling the trustee’s deed to the acreage.

The Corpus Christi Court of Civil Appeals held that § 5 conferred on the probate court concurrent jurisdiction with the district court to entertain a suit to cancel a trustee’s deed to land of an estate. Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App.1975, writ ref’d n. r. e.). The basis for the holding was that § 5 must be read in conjunction with Tex.Rev.Civ.Stat.Ann. arts. 1906 and 1951 (1964).

Under either Sumaruk or Folliott the district court had jurisdiction.

Appellees argue the invalidity of the judgment nunc pro tunc. A recitation of post judgment events is necessary to understand the argument. Judgment was originally signed by the district court on October 14, 1976. Eleven days later, and in the absence of a motion for new trial, the district court entered an order attempting to set that judgment aside. In that order, the court recited appellant’s counsel had not received notice of entry of the judgment dated October 14, 1976 “. . . and in the interest of justice so that the defendant will not be deprived of her right to file a motion for new trial and for good cause shown, the court finds that said judgment dated October 14,1976, should be set aside.”

A second judgment, identical in terms to that of October 14, 1976, was signed by the court on November 22, 1976. Appellant then filed timely a motion for new trial and an amended motion for new trial. The district court entered an order on February 2,1977, purporting to overrule the amended motion for new trial. Appellant filed a cost bond on February 25, 1977.

On February 5, 1977, the district court entered judgment nunc pro tunc.

Unless the nunc pro tunc judgment is valid, this Court has no jurisdiction of the appeal since the judgment of October 14, 1976, is final. The district court may not enter a judgment that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal. Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Stewart v. Firemen’s Relief & Retirement F. Tr. of Austin, 489 S.W.2d 743 (Tex.Civ.App.1973, no writ). The judgments of October 14, 1976, and of November 22, 1976, are identical except for dates of entry, and the second judgment could serve no purpose other than to enlarge the time for appeal. This conclusion is supported by the district court’s recitation in its order of October 25, 1976. The signing of the second judgment on November 22, 1976, did not extend the time for perfecting the appeal, and it was necessary for the bond to be filed within thirty days after the original judgment was signed on October 14, 1976. The filing of the bond on February 25, 1977, was, of course, too late.

We have concluded that the judgment nunc pro tunc is valid. The function of judgment nunc pro tunc is to correct clerical errors in the entry of judgment. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 293 (1953). A clerical error is one which does not result from judicial reasoning or determination. See Reavley and Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 195 (1973). For the judgment nunc pro tunc to be valid, the error must arise in the entry of judgment, and not in its rendition. Id. at 195; see Finlay v. Jones, 435 S.W.2d 136 (Tex.1969). As a result, whenever the judgment entered by the court incorrectly records the judgment rendered, the error is clerical, so long as a product of judicial reasoning is not involved.

In the judgment nunc pro tunc, it is recited that the following sentence in the judgment of October 14,1976, contains clerical errors:

“On the 13th day of April, the Court, upon stipulation of the parties, ordered the trial of the case bifurcated and ordered that the defendants, Charles Babb, Douglass D. Hearne and Tom Black, in their individual capacities, be severed from this cause and be granted a separate trial upon the allegations made against them by the plaintiffs under a new cause number . . . ”

It is further recited in the judgment nunc pro tunc that:

“By a review of the court’s file, and in particular the order of April 9, 1976, the court finds that the separate trial was ordered on the 9th of April, that it was done by order and not by stipulation, that defendants Charles Babb, Douglass D. Hearne, and Tom Black were granted a separate trial but were not severed from this cause, and that the case against defendants Charles Babb, Douglass D. Hearne, and Tom Black is not being docketed under a separate cause number. Accordingly, the court is of the opinion that the motion for judgment nunc pro tunc should be sustained, and that the judgment should be corrected in accordance with these findings.”

On April 9, 1976, the district court rendered an order of “separate trial.” However, in entering the judgment on October 14, 1976, the district court incorrectly recited therein that the order was rendered on April 13. The misrecital of the date represented a clerical error. Hays v. Hughes, 106 S.W.2d 724 (Tex.Civ.App.1937, writ ref’d); Wiegand v. Riojas, 547 S.W.2d 287 (Tex.Civ.App.1977, no writ).

A further procedural problem involves the question of finality of the judgment nunc pro tunc. To resolve the question of finality, it must be determined whether the April order was an order of separate trial or an order of severance. An order of severance divides a lawsuit into two or more independent causes of action, each of which terminates in a separate, final, and enforceable judgment. To the contrary, an order of separate trial results in an interlocutory order determining the claims or issues so tried, but there is only one final judgment that is entered after all claims and issues involved in the suit have been tried. Hall v. City of Austin, 450 S.W.2d 836 (Tex.1970); Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11 (1961).

The October 14 judgment described the April order as “bifurcating” the case and ordering the several defendants “severed” and granting those defendants a “separate trial” under a “new cause number.” The nunc pro tunc judgment “corrects” the recitations in the earlier judgment to reflect that the April order granted the several defendants a separate trial and that the “defendants” were not “severed from this cause,” and that the cause against the defendants was not given a separate cause number.

The terms of the April order, as recited in the October judgment, are inconsistent and ambiguous. The judgment nunc pro tunc attempts to correct the inconsistencies and to clear the ambiguity. Under these circumstances, we refer to the April order which is contained in the record as one of the exhibits. See Hall v. City of Austin, supra, at 838. The order is set out below:

“ORDER FOR SEPARATE TRIAL
“On the 8th day of April, 1976, a day in a regular term of this court, came on to be heard the motion of defendants Ann Joy Bettis, Douglass D. Hearne, Charles M. Babb, and Thomas Black for a separate trial as to the claims against them seeking recovery from them for a conspiracy to defraud the plaintiffs of their inheritance. The court having considered said motion, and the argument of counsel thereon, is of the opinion that said motion should be sustained.
“It is, therefore, ORDERED that the plaintiffs’ claim against defendants Ann Joy Bettis, Douglass D. Hearne, Charles M. Babb, and Thomas Black for damages for fraud and conspiracy be tried in a separate trial from the suit to set aside the foreclosure sale. . . . ”

A reading of the April order shows that it is an order for separate trial. Even though an order of severance, instead of an order of separate trial, may have been proper, that fact “. . . affords no basis . for treating an order for a separate trial as an order of severance.” Hall v. City of Austin, supra. The order alone, no matter if erroneous, determines the finality vel non of the judgment entered. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959); Schieffer v. Patterson, 433 S.W.2d 418 (Tex.1968); Hall v. City of Austin, supra.

The presumption is that when “. . .a judgment, not intrinsically interlocutory in character, is rendered . [with] ... no order for a separate trial of issues having been entered . it will be presumed for appeal purposes [i. e. finality] that the Court . . .” disposed of all parties and issues legally before it. North East Independent School District v. Alridge, 400 S.W.2d 893, 897-98 (Tex.1966); Campbell v. Campbell, 550 S.W.2d 164 (Tex.Civ.App.1977, no writ). In the case at bar, however, there is no presumption of finality since an order of separate trial was entered by the court.

Because the April order is an order for separate trial, the judgment is interlocutory. Accordingly, this Court is without jurisdiction and the appeal is dismissed.

Dismissed for Want of Jurisdiction.


text:
    Rogelio RAMIREZ et al., Appellants, v. ARGUINDEGUI OIL COMPANY, Appellee.
    No. 15851.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 8, 1978.

      J. G. Hornberger, J. G. Hornberger, Jr., Laredo, for appellants.
    Fansler, Reese & Palacios, Laredo, for appellee.
   CADENA, Chief Justice.

This is an appeal from a judgment dismissing plaintiffs’ suit because of their failure to amend their pleadings after special exceptions filed by defendant had been sustained.

The suit was filed by Francisco Ramirez, individually and as next friend of his two minor children, Rogelio Ramirez and Antonio Ramirez, to recover for injuries suffered by the two minors as a result of an automobile collision in Laredo. Although in this opinion the term “defendant” will be used to refer solely to Arguindegui Oil Company, plaintiffs originally sought recovery from eight other parties as well. The suit against the eight other parties was dismissed for various reasons and plaintiffs do not question the propriety of such dismissals.

Paragraph I of plaintiffs’ petition alleged that Manuel Davila and Reynaldo Gonzalez operated a service station in Laredo under an agreement between defendant and three other parties. This paragraph contained the allegation that the nature of the agreement between defendant and the three other parties was unknown to plaintiffs. There was no allegation to the effect that Davila and Gonzalez were parties to such agreement.

In Paragraph II plaintiffs alleged that Davila and Gonzalez instructed Isidro Martinez to take a vehicle which had been left at the station for repairs for a test run, and that at the time Davila and Gonzalez knew that Martinez was highly intoxicated. According to the allegations in Paragraph III, Martinez offered a ride to the injured minors who, ignorant of his intoxicated condition, accepted the offer. According to the facts alleged in Paragraph II, when the minors became aware of the fact that Martinez was intoxicated they asked that he stop and let them get off, but Martinez refused and subsequently crashed into the rear end of another vehicle.

Paragraph IV contained the charge that defendants, Davila and Gonzalez, as well as the three parties with whom defendant had made the agreement referred to in Paragraph I of plaintiffs’ pleading, were guilty of causal negligence in (1) permitting an incompetent and intoxicated person to use the vehicle which had been left at the station for repairs, and (2) in failing to exercise that degree of care and control over said vehicle as would have been exercised by a person of ordinary prudence.

Defendant excepted to plaintiffs’ pleadings on the grounds that (1) the petition in its entirety failed to show any causal connection or relationship between defendant and the accident in question, and (2) the petition failed to allege or show how defendant was responsible for the alleged negligence of Martinez.

The exceptions were sustained, and about two years later plaintiffs’ suit against defendant was dismissed. The order of dismissal recites that plaintiffs refused to amend their pleadings.

Plaintiffs’ first point urges that the trial court erred in sustaining defendant’s special exceptions.

Plaintiffs first contend that defendant’s exceptions do not point out intelligibly and \Vith particularity the defect in plaintiffs’ petition as required by Rule 91, Tex.R.Civ.P. (1977).

The defect at which the exceptions are directed is the failure of plaintiffs to allege facts showing that defendant had any connection with the events leading to the accident or was in any way responsible for the negligence of the driver. It is true, of course, that the first exception was directed at the petition “in its entirety,” while the second exception was directed at paragraphs I, II, and IV. But an exception which rests on the theory that the challenged pleading lacks certain allegations is, of necessity, directed at the entire pleading, or at least to those portions of the challenged pleading in which an attempt is made to allege the circumstances which give rise to the asserted cause of action. The abolition of the general demurrer does not prohibit an exception which points out that no where in the opponent’s pleading is an essential allegation to be found. The exceptions here did not merely challenge the petition on the ground that it failed “to state a cause of action.” The exceptions here specifically pointed out the pleading of plaintiffs failed to allege, even in a conclu-sionary manner, that defendant had any control over the vehicle in question or was in any way connected with the operation of the service station so as to create on the part of defendant a duty to exercise care in the entrustment of the vehicle.

There is nothing in the petition which can serve as a basis for imposing vicarious liability on defendant. The allegations are to the effect that the service station was being operated by Davila and Gonzalez. It does not suggest that either Davila or Gonzalez was the agent, servant, or employee of defendant. There is no hint of any relationship between Davila and Gonzalez, on the one hand, and defendant on the other. The petition does not allege the existence of any contractual arrangement between the operators of the filling station and defendant. The contract referred to in Paragraph I of the petition is alleged to be an agreement among defendant and three other parties.

The exceptions clearly pointed out the omission and, therefore, differ radically from the exceptions condemned in such cases as McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.—Beaumont 1972, writ ref’d, n. r. e.).

Plaintiffs’ second point, which complains of the dismissal of their suit, is without merit. Plaintiffs had almost two years in which to amend their pleadings after the exceptions were sustained. In the absence of a curative amendment, the dismissal was proper. City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.