author: MURRAY, Justice.

text:
    John R. CRAWFORD, Appellant, v. Madeline Gold CRAWFORD, Appellee.
    No. 16013.
    Court of Civil Appeals of Texas, San Antonio.
    June 14, 1978.
    Rehearing Denied July 31, 1978.

      Jose C. Rodriguez, San Antonio, for appellant.
    Chilton Maverick, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

Madeline Gold Crawford instituted this suit for the termination of the parent-child relationship between John R. Crawford and their minor daughter.

Madeline and John Crawford were married on January 9, 1971, and had one child by their marriage, Dianna Emmarose, the subject of this suit. On or about July, 1974, respondent, John Crawford, was incarcerated at the State Penitentiary in Huntsville, Texas, and thereafter, petitioner obtained a divorce from respondent which specified that she was to be named managing conservator of the child; that respondent was not to be named possessory conservator; that no rights of visitation would be given respondent and that respondent’s obligations to pay child support were recognized but postponed until thirty days after his release from incarceration. Respondent was ordered not to interfere with petitioner’s possession or managing conservatorship of the child.

Petitioner, Madeline Gold Crawford, based this suit on the general statutory grounds of Sec. 15.02 of the Texas Family Code Ann. (1975). Sec. 15.02, Termination When Parent is Not Petitioner, provides in part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; .
and
(2) termination is in the best interest of the child.

Trial was to the Court without a jury. The district court terminated the parent-child relationship that had existed between respondent and child, Dianna Emmarose Crawford. From this judgment, respondent has perfected his appeal to this Court.

Respondent requested findings of fact and conclusions of law which were filed by the trial court. The court found that John R. Crawford had engaged in conduct which had endangered the physical and emotional well-being of the child. The court concluded that petitioner is entitled to have her petition requesting termination granted and that it would be in the best interest of the child to have the parent-child relationship between the child and her father terminated.

Appellant in his points of error 1 through 3 complains that the trial court erred in terminating the parent-child relationship between the respondent and the child on findings of specific conduct engaged in by respondent which endangered the physical or emotional well-being of the child because these findings were supported by no evidence, supported by factually insufficient evidence and against the great weight and preponderance of the evidence. We disagree.

In considering the point of insufficient evidence, the Court must review all of the evidence and the Court must set the verdict aside only if it is so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In considering the “no evidence” points, we must view the evidence in light most favorable to the findings and disregard all evidence to the contrary. In Re King’s Estate, supra. The evidence in this case, viewed most favorably to the judgment, shows that appellee married appellant when she was pregnant with Dianna. Appellant had a history of criminal conduct prior to his marriage to the child’s mother. In July of 1955, appellant was sentenced to life imprisonment for robbery and was paroled after serving 14 years. In 1974, appellant was convicted of possession of heroin and is presently incarcerated in the state penitentiary. A Bench Warrant allowed appellant to be present for the trial of this case which was held on October 7, 1977.

Appellee testified that she obtained a divorce from appellant on January 30, 1975, and that he was a violent man, had beaten her and threatened her life on many occasions, had beaten the child three different times, and each of those times the child received bruises. She further testified that while they were married appellant would simply disappear for three to ten days at a time and abandon them without food or transportation and that she had to call others to bring milk for the baby and often she and the baby did without meals; that appellant carried a gun with him most of the time and was in the hospital in January of 1974 for stab wounds received in a fight; that appellant was unsuccessful in holding a job. Appellee further testified that many times she would return to the house from work and find appellant passed out in the house with a syringe in his veins and that she would pull the needles from his veins so the child wouldn’t find out.

Appellee was a high school graduate, was currently holding a job, and was attending San Antonio Junior College. Two letters written to appellee by appellant in July of 1977 show appellant’s state of mind and hostility towards appellee. The following excerpts illustrate the contents of those letters:

Enclosed you will find a copy of my reply ....
My advice to you would be to provide your shister lawyer it. .
I’m sorry I have been very busy with a big damage suit and have neglected filing a few on you and your Punk. But rest assured as soon as I’m completed you will need three or four shisters just to answer the suit. That means if you don’t file an answer I receive a default judgment. So if legal-aid is your handle grip it tight.
. I will make a real live fool out of you. ... I will be represented by a more prominent person than your shister. .
I hope you can stand the mental strain I am going to impose on you Whore . your near friends and kin-folk’s belief that you are gay and are willing to testify to the same .
* * * * * *
I will be forced to do what is required to prevent anyone else living there [referring to the house awarded to Petitioner in the Original Divorce Decree] if it means resorting to Violence. Legally if I catch some dude living there I doubt that a jury would convict me if I killed him. So if you wish to continue in the manner in which you are presently living you had better sell or buy the house or obtain an approved agreement with me for him living there. It’s very possible that I’ll be out in a month then it will be to [sic] late.

Appellant in his brief contends that the court’s judgment was erroneously based on the bare fact of his incarceration and that mere imprisonment of a parent, of and by itself, does not constitute engaging in conduct which endangers the physical or emotional well-being of the child. In the present ease, mere imprisonment, of and by itself, would not constitute the conduct described by subparagraph (D) of Sec. 15.-02(1). Jordan v. Hancock, 508 S.W.2d 878 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Hutson v. Haggard, 475 S.W.2d 330 (Tex.Civ.App.—Beaumont 1971, no writ). But if all the evidence in the case, including imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under subparagraph (D) may be justified. H. W. J. v. State Department of Public Welfare, 543 S.W.2d 9 (Tex.Civ.App.—Texarkana 1976, no writ). We hold that the trial court’s finding that the appellant engaged in conduct which endangers the physical and emotional well-being of the child is supported by sufficient evidence. In fact, the evidence taken as a whole, heavily preponderates in favor of the findings of the trial court.

Appellant next complains of the finding by the trial court that termination of the parent-child relationship would be in the best interest of the child on the ground of no evidence. Some of the factors to be considered by the court in ascertaining the best interests of the child have been summarized in the case of Holley v. Adams, 544 S.W.2d 367 (Tex.1976). Applying the factors as set out in Holley and from the evidence as summarized above, we hold that there was ample evidence for the court to find that the best interests of the child would be a termination of the parent-child relationship.

Appellant’s point of error No. 5 contends that the statute involved is unconstitutional because it deprives appellant of substantive due process in its failure to specify the degree of harm necessary to invoke the statutory operability. We find no merit in this point. See D_ F_ v. State of Texas, 525 S.W.2d 933 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ).

Appellant’s other points are without merit and they are overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Edward J. OTTIS et ux., Appellants, v. Charles F. HAAS, Appellee.
    No. 1297.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 15, 1978.
    Rehearing Denied Aug. 29, 1978.

      Larkin T. Thedford, Edna, for appellants.
    Richard B. Collins, Duckett, Bouligny & Collins, El Campo, William J. Tucker, Wood, Boykin & Wolter, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a directed verdict case. Plaintiffs, Edward J. Ottis and wife, Jane, are surface owners of a tract of land that is subject to an oil and gas lease. They brought suit against the lessee, Charles F. Haas, seeking an injunction to prohibit the defendant from installing a set of tank batteries upon plaintiffs’ land and in the alternative, damages to their land caused by the particular location of the tank batteries. At the close of the plaintiffs’ case in chief the trial court granted defendant’s motion for instructed verdict. Plaintiffs perfected their appeal to this Court.

Plaintiffs purchased a fee simple interest in the surface only of a 13.48 acre tract of land in Jackson County, Texas, out of a larger tract of land, owned by the grantors, J. L. and Martha Kopecky. The deed dated February 14, 1975, evidencing the transaction reserved unto the Kopeckys the mineral estate in the 13.48 tract and all executory rights incident thereto.

On April 28, 1975, the Kopeckys and the defendant lessee entered into an oil and gas lease which encompassed 60 acres of land, including the 13.48 acre tract owned by plaintiffs. The lease, in question contains a provision prohibiting the lessee from drilling a well within “two hundred (200) ft. of any residence or barn now on said land without lessor’s consent.” After the signing of the lease, plaintiffs commenced building a brick home on their land. During the time plaintiffs’ home was in the process of construction, the defendant lessee commenced drilling operations. The lessee completed a well approximately 312 feet north of plaintiffs’ homesite, and placed the tank batteries in question approximately 50 feet further to the north of the well.

Plaintiffs instituted this suit seeking to enjoin the defendant from locating the tank batteries on plaintiffs’ land because such location, in close proximity to plaintiffs’ home, constituted a nuisance and unreasonable danger, and because there was no adequate remedy at law. In the alternative, plaintiffs prayed for damages representing the decrease in market value of their land caused by the location of the tank batteries. The plaintiffs contend that the basis for their damages is the provision contained in the reservation clause of their warranty deed. In support of this claim, plaintiffs alleged that the deed had been recorded prior to the execution of the oil and gas lease and, therefore, defendant lessee was charged by law with knowledge of this damage clause.

The lessee filed a general denial and alleged that his liability for damages, if any, should be governed by the damage clause contained in the oil and gas lease and not the damage clause contained in the deed. On the day of trial, the trial court granted lessee’s motion in limine to the effect that plaintiffs should refrain from mentioning during trial the general damage clause contained in the deed on the basis that such damage clause, as a matter of law, constituted a personal covenant which bound only the plaintiffs’ grantors, the Kopeckys, who were not parties to the present suit.

Plaintiffs’ evidence included the testimony of one expert witness who testified to the effect that the general practice of the oil and gas industry in Jackson County, Texas, was to locate tank batteries at a distance of not less than 1200 feet from residential dwellings; that, in his opinion, the location of the tank batteries in question was dangerous; that relocating the tank batteries to the west edge of plaintiffs’ land behind a particular barn would not affect the production of the well; and that the cost of such relocation would be approximately $2,500.00.

At the close of plaintiffs’ evidence, the defendant presented his motion for instructed verdict. Defendant’s motion, in essence, was predicated upon the following two general grounds: 1) that plaintiffs failed to plead or prove a viable theory of recovery against defendant because defendant’s obligations were governed solely by the general damage clause contained in the oil and gas lease and plaintiffs had failed to plead or prove a breach of said lease provision or a violation of any other duty by the defendant; and 2) that plaintiffs had failed to plead or prove any specific elements of recoverable damages under the damage clause of the lease provision or under any other possible theory of recovery. After hearing the arguments of counsel, the trial court granted defendant’s motion.

Plaintiffs present three general points of error on appeal complaining of the trial court’s action in granting defendant’s motion for instructed verdict. The major difficulty presented in this appeal is that plaintiffs have made multifarious, general arguments in support of more than one theory of recovery under each general point of error. Many of these arguments have not been briefed and many relate to alleged errors committed by the trial court which have not been preserved for appellate review. Consistent with our general-policy of liberally construing the briefing rules in order to give every possible effect thereto, we construe each point of error in light of our understanding of appellants’ arguments and the authorities contained thereunder. See our local rules relative to “Briefs” in Continental Oil Co. v. Dobie, 552 S.W.2d 183, 187 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.) and Rules 414-422, T.R.C.P. We cannot consider some of plaintiffs’ general arguments in spite of our liberal briefing policy because they do not relate to any specific point of error.

First, we consider plaintiffs’ main argument throughout their brief concerning the relationship of the damage clause contained in the deed to their present claims against the defendant lessee. Plaintiffs’ theory at trial was that the general damage clause contained in the warranty deed is a covenant running with the land which obligated the lessee to compensate the plaintiffs for all damages caused to the surface estate, including the alleged decrease in market value of plaintiffs’ 13.48 acre tract of land, notwithstanding a more restrictive damage clause contained in the oil and gas lease. Lessee’s theory, on the other hand, was that the damage clause contained in the deed was, at most, a personal covenant between the plaintiffs and the plaintiffs’ grantors, the Kopeckys, and that, since the grantors were not made parties to the suit, any evidence concerning the damage clause contained in the deed should not be admitted. The trial court, agreeing with lessee’s position, granted lessee’s motion in limine (which precluded plaintiffs from introducing that particular portion of the warranty deed into evidence), and prohibited any testimony offered concerning the damage clause contained therein. Plaintiffs, however, offered into evidence the deed with the damage clause and objected to the trial court’s adverse ruling. On appeal, plaintiffs apparently contend that the general damage clause contained in the deed controls plaintiffs’ cause of action against the lessee. However, the plaintiffs failed to bring forward a point of error complaining of the trial court’s action in granting defendant’s motion in limine and in refusing to allow the particular clause of the deed to be introduced into evidence.

It is not reversible error for a trial court to sustain a motion in limine which requires a party to notify the court and advise counsel out of the presence of the jury of his intention to offer certain evidence, so as to permit counsel to make his objection if he wishes in the jury’s absence. Before a party can correctly claim error, he must thereafter offer his evidence, secure an adverse ruling from the court, and make a proper bill of exception. Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 335 (Tex.Sup. 1963); City of Corpus Christi v. Nemec, 404 S.W.2d 834, 836 (Tex.Civ.App.—Corpus Christi 1966, no-writ). While it is true that, in this case, plaintiffs objected to the exclusion of the damage clause of the deed, plaintiffs’ brief contains no assignments of error and no arguments and authority under any other assignment of error before this Court that the trial court improperly excluded such portion of the deed. Therefore, plaintiffs have waived their right to complain of this ruling. Lout v. Whitehead, 415 S.W.2d 403, 407 (Tex.Sup. 1967); Talbott v. Hogg, 298 S.W.2d 883 (Tex.Civ.App.—Amarillo 1957, writ dism’d). See also, Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App.—Corpus Christi 1976, no writ); Whitson Company, Inc. v. Bluff Creek Oil Company, 278 S.W.2d 339, 347 (Tex.Civ.App.—Fort Worth 1955, aff’d, 156 Tex. 139, 293 S.W.2d 488 (1956). The scope of our review of plaintiffs’ points of error will not include consideration of plaintiffs’ other general arguments relating to the damage clause contained in the deed. The materiality of these arguments was conditioned upon the admissibility of the deed’s damage clause into evidence. This clause is not properly preserved in the record. Therefore, we have no basis upon which to determine whether it was properly excluded. See Rules 434 and 503, Texas Rules of Civil Procedure and authorities cited thereunder.

Having determined the proper scope of our review, we now consider the merits of plaintiffs’ three specific points of error, keeping in mind the familiar rules governing a review of instructed verdict eases. An instructed verdict is proper only under limited circumstances which are: 1) that a defect (specifically indicated) in the opponent’s pleading makes it insufficient to support a judgment; 2) that the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the movant, or negative the right of his opponent, to judgment; or 3) that the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment. Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ); McDonald, Texas Civil Practice § 11.28.1 (1970).

In point of error number one, plaintiffs assert that the trial court erred in granting an instructed verdict by not allowing the jury to answer fact issues that would entitle plaintiffs to injunctive relief pertaining to the location of the tank batteries. As we understand this point of error based on the argument and authorities contained in plaintiffs’ brief, plaintiffs’ theory is that the location of defendant’s tank batteries constitute an unreasonable use of plaintiffs’ surface estate and therefore the defendant should be enjoined from its use. Plaintiffs argue that the “rule of reasonable accommodation” mandates that defendant lessee should be required to relocate the storage tanks in question.

In Texas an oil and gas estate is the dominant estate in the sense that the lessee is impliedly authorized to use as much of the premises as is reasonably necessary to produce and remove the minerals authorized by the lease. Getty OH Company v. Jones, 470 S.W.2d 618, 621 (Tex.Sup. 1971), and authorities cited therein. It is also generally recognized in Texas that the mineral lessee may select any portion of the surface estate covered under the oil and gas lease as a place for his well, subject to whatever restrictions there may be in the lease itself. Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 724 (1941); Hoffman v. Magnolia Petroleum Co., 260 S.W. 950, 952 (Tex.Civ.App.—San Antonio 1924), rev’d on other grounds, 273 S.W. 828 (Tex.Comm’n App. 1925, holding approved); Felmont Oil Corp. v. Pan American Petroleum Corp., 334 S.W.2d 449, 456 (Tex.Civ.App.—El Paso 1960, writ ref’d n.r.e.); cf. O’Neil v. Sun Co., 58 Tex.Civ.App. 167, 123 S.W. 172, 173-74 (1909, error ref’d); 42 Tex.Jur.2d § 209 (1963); Keeton and Jones, Jr., Tort Liability and the Oil and Gas Industry, 35 Texas L.Rev. 1, 4 (1956); Browder, The Dominant Oil and Gas Estate — Master or Servant of the Servient Estate, 17 S.W.L.J. 25, 33 (1963); Grimes v. Goodman Drilling Co., 216 S.W. 202 (Tex.Civ.App.—Fort Worth 1919, error dism’d). The lessee is also entitled to use so much of the land immediately surrounding the well as is reasonably necessary for his operations including the installations of tanks and other surface equipment. Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863, 866-67 (1961). These rights, however, are to be exercised with due regard to the rights of the owner or owners of the ser-vient estate. Getty Oil Company v. Jones, supra and authorities cited therein.

In this case, the lease itself contained a general purpose'clause which impliedly allows the lessee to use so much of the surface as reasonably necessary to fulfill the purposes of the lease, subject, of course, to the express condition, “that no well shall be drilled within two hundred (200) feet of any residence or barn now on said land'without Lessor’s consent.” It is undisputed that the well in question was not drilled within 200 feet from the plaintiffs’ residence, and that the tank batteries in question were located an additional 50 feet further away from plaintiffs’ residence. The undisputed evidence established that the defendant lessee used approximately 3.5 acres of plaintiffs’ surface estate in completing the initial drilling operations and that this amount was reduced to .46 of an acre for production purposes. Plaintiffs do not contend here that the lessee utilized more of the surface estate than was reasonably necessary to accomplish the drilling and production operations and admit that tank batteries were a necessary incident of oil and gas production. Nevertheless, plaintiffs apparently contend that the location of the storage tanks constituted an unreasonable use of the surface estate which substantially impairs plaintiffs’ use of the surface estate.

Plaintiffs rely principally upon the case of Getty Oil Company v. Jones, 470 S.W.2d 618 (Tex.Sup. 1971). We do not agree that plaintiffs’ pleadings and evidence have raised the “rule of reasonable accommodation” as applied by the Supreme Court in the Jones case. In the Jones case, a dispute arose between surface owner and the oil and gas lessee over rights to exclusive use of air space above the surface area occupied by oil pumping units required for the protection of the minerals. Our Supreme Court was faced with seemingly irreconcilable positions regarding the use of the surface and air space above because the surface owner was unable to operate his automatic irrigation sprinkler system and, therefore, unable to fully utilize his surface rights because of obstacles in the form of the lessee’s existing pumping units. In our case, plaintiffs have not raised by evidence a single issue of fact pertaining to conflicting uses of the surface estate. Plaintiffs have failed to show that the location of the tank batteries in question materially interferes with their use of the surface estate. The tank batteries are located on land that plaintiffs used only for grazing purposes. The tank batteries were completely enclosed by a fence. In addition, plaintiffs have failed to show that the location of the tank batteries materially interfered with their use of the surface estate as a residence. Inconvenience to the plaintiffs is not a controlling factor. The burden was on the plaintiffs to demonstrate by some competent evidence that “under all circumstances the use of the surface by [the lessee] in the manner under attack is not reasonably necessary.” See Jones, supra, at p. 623.

Here, plaintiffs sought to discharge this burden by showing that the tank batteries could be relocated without substantially interfering with the production of oil under the lease and at a minimal cost. It was undisputed that relocation of the tank batteries would require additional use of the surface estate due to additional pipe lines and an additional access road. There must appear to be more than a question of inconvenience to the surface owner to invoke the rule of “reasonable accommodation”. See Jones, supra, at p. 628.

Plaintiffs’ pleadings raised generally an issue of whether the location of the tank batteries in question constituted a nuisance which would entitle the plaintiffs to injunctive relief. Such an issue has not been preserved on appeal by a proper point of error or supported by arguments and authorities contained in the brief. Therefore, any complaint concerning this issue has been waived.

Next, we consider plaintiffs’ points of error concerning the verdict in defendant’s favor on plaintiffs’ claims for damages. Absent an express or implied lease provision obligating the lessee to restore the surface, a person who seeks to recover from the lessee for damages to the surface has the burden of alleging and proving either specific acts of negligence or that more land was used by the lessee than was reasonably necessary. Humble Oil & Refining Company v. Williams, 420 S.W.2d 133, 134 (Tex.Sup. 1967); Warren Petroleum Corporation v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 363 (1957). Where the lease contains an express restoration clause or one is supplied by necessary implication, pleadings and proof of negligence are unnecessary because recovery would be predicated upon the contract. Warren Petroleum Corporation v. Monzingo, supra.

Plaintiffs generally complain that the trial court erred in granting an instructed verdict by not allowing the jury to answer fact issues concerning plaintiffs’ claim for damage predicated upon negligence and/or unreasonable use of the surface estate. Plaintiffs argue only the negligence theory. We will, therefore, consider this point of error as complaining of the trial court’s failure to submit negligence issues to the jury.

Plaintiffs failed to plead a cause of action based upon negligence. On appeal, however, plaintiffs contend that negligence issues should have been submitted to the jury because the following evidence was admitted at trial: 1) that a salt water leak developed in defendant’s equipment which damaged plaintiffs’ pasture; 2) that defendant failed to properly level the surface after completing drilling operations and caused substantial water to be retained during rains; 3) that defendant allowed mud to accumulate dangerously close to plaintiffs’ residence; 4) that defendant failed to place firewalls around the tank batteries; and 5) that defendant installed used pipe in a portion of the equipment installation.

Actually, some of these alleged ' negligent acts are probably related to the lessee’s express lease obligation to restore the leased premises, whereby the plaintiffs would have a contractual basis for recovery from the defendant lessee. To be entitled to recovery under either a contract or tort theory, however, the burden was on the plaintiffs to prove up the amount of damages they suffered. This they failed to do. The trial court excluded plaintiffs’ proffered testimony concerning the estimated damages caused to the surface estate caused by defendant’s lease operations. Plaintiffs then failed to preserve the substance of this testimony by a formal bill of exception or by testimony elicited outside of the presence of the jury and transcribed into the record. In addition, plaintiffs have failed to complain on appeal, by point of error or by arguments and authority, that the trial court erred in excluding this evidence. Without evidence concerning actual damages plaintiffs might have suffered, there is no basis upon which to support the submission of damage issues, either on a breach of contract theory or tort theory. There was no basis upon which to award a judgment for damages in favor of plaintiffs even if all of the issues were submitted except the damage issues.

The only evidence in the record that plaintiffs suffered monetary damage is testimony that the location of the tank batteries in question decreased the market value of plaintiffs’ entire tract by some $20,000 to $25,000. This reduction of the market value is alleged by the plaintiffs to be caused solely by the location per se of the tank batteries in question. Plaintiffs did not contend at the trial level nor do they contend here that any of the above mentioned acts caused this market value reduction. It is proper, as a general rule, for the trial court to direct a verdict where there is no evidence to support a material fact issue. Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, no writ); McDonald, Texas Civil Practice, § 11.28.1 (1970).

In point of error number three, plaintiffs assert that the trial court erred in not allowing the jury to determine the reasonable cash market value of plaintiffs’ 13.-48 acre tract immediately prior to and after the installation of the tank batteries in question. Under this point of error, plaintiffs cite no authorities and present only a general argument. A point of error that is not briefed does not meet the minimum requirements of Rule 418, Texas Rules of Civil Procedure, and is considered to be waived. Crutcher-Rolfs-Cummings, Inc. v. Ballard, supra; Inman v. Padrezas, supra; Whitson Company, Inc., v. Bluff Creek Oil Company, supra. The gist of this argument, as we understand it, is that the damage clause contained in the deed obligates lessee to compensate plaintiffs for any damages caused to the plaintiffs’ surface estate by lessee’s drilling operations. As we have previously determined, there is no basis upon which we can' review this contention.

Plaintiffs also make some general arguments that lessee had previously orally agreed to place the tank batteries in question on the land of plaintiffs’ grantors. If plaintiffs are attempting to establish either an oral contract between the plaintiffs and the defendant or an oral modification of the lease between the defendant and plaintiffs’ grantors, as it pertains to plaintiffs’ tract of land, there are no pleadings, admissible evidence, or points of error on appeal to support this contention. Plaintiffs’ points of error are overruled.

Judgment of the trial court is AFFIRMED.

      . The reservation provision of the deed containing the general damage clause in question provides as follows:
      “SAVE AND EXCEPT the Grantors reserve to themselves, their heirs and assigns all of the oil, gas and other minerals together with all leasing rights for a period of twenty (20) years from date hereof and until production ceases should production be had on the premises or lands pooled therewith at the end of the 20 year period. The Grantees to be paid for all surface damages or any other type of damage that might arise or be caused to surface of property by reason of this provision.”

      . The damage clause contained in the lease provides as follows:
      “Lessee agrees that within ninety (90) days after drilling or re-working operations are completed on each well, to level all dumps, fill all pits not being used in Lessee’s operations, remove all debris and put the surface of the land in substantially the same condition as it was prior to the commencement of such operations. Lessee further agrees to pay surface owner or surface owner’s tenant thereon, as their interest may appear, for actual damages to grasses, growing crops, livestock, water wells, tanks, reservoirs or other improvements situated on the leased premises, resulting from Lessee’s operations hereunder . . ”

      . This clause provided, in relevant part, as follows: . . hereby grants, leases and lets exclusively unto Lessee for the purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building roads, tanks, power stations, telephone lines and other structures thereon and on, over and across [the surface estate] to produce, save, take care of, treat, transport and own said products . ” (Emphasis added).


author: DIES, Chief Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Homer W. HENSON, Appellee.
    No. 8105.
    Court of Civil Appeals of Texas, Beaumont.
    June 22, 1978.
    John P. Venzke, Houston, for appellant. Richard P. Hogan, Houston, for appellee.
   DIES, Chief Justice.

This is a workers’ compensation case. Texas Employers’ Insurance Association appeals from a judgment based on a jury finding that Homer Henson would be totally incapacitated from June 25, 1976, until July 7, 1982.

Henson was employed by Tekeede & Company as a carpenter on June 24, 1976, and alleged he suffered an accidental injury to his back on June 25, 1976. Texas Employers’ Insurance Association (TEIA) contested the fact that Henson sustained an injury.

Appellant’s (TEIA’s) first point of error urges that the trial court erred in allowing Henson (appellee) to read from the Employer’s First Report of Injury [Form E-l] filed by Henson’s employer before the Industrial Accident Board because that document is made inadmissible by Tex.Rev.Civ. Stat.Ann. art. 8809, § 5 (1967).

Appellee first attempted to introduce the entire E-l report into evidence, but the trial court sustained appellant’s objection. Appellee then read the following portion of the E-l report into evidence:

“ ‘Describe and state what employee was doing when injured?’
ANSWER: ‘Don’t know when it happened and don’t know nothing happened till Monday, June 28th. He called the job that day and said he hurt his back.
‘He said he hurt his back when he picked up a 12 foot two by twelve up.’ ”

Appellee contends this only emphasized the admission by appellant that appellee reported his injury to his employer. We disagree. It implies that appellee was in fact injured and that the injury occurred within the scope of his employment, both vigorously contested by appellant.

In requiring the employer to file this report with the Industrial Accident Board, the Legislature realized an employer would be reluctant to disclose all the facts he had, if the report could later be used as an admission to corroborate evidence of a disputed fact or facts. See Liberty Mut. Ins. Co. v. Boggs, 66 S.W.2d 787, 795 (Tex.Civ.App.—Eastland 1933, writ dism’d); Maryland Casualty Co. v. Davis, 181 S.W.2d 107 (Tex.Civ.App.—Galveston 1944, no writ); Texas Employers Ins. Ass’n v. Shiflet, 276 S.W.2d 942 (Tex.Civ.App.—Texarkana 1955, writ ref’d n. r. e.). Tliis point is sustained.

Appellant has other points complaining of jury misconduct. Since it is unlikely these actions will occur at another trial, we do not address them, and they are overruled.

To prevent difficulty arising in a new trial, we do address appellant’s second point.

Interrogatories of Dr. Frank Yelin, who had performed surgery on appellee for a previous injury, were offered. Dr. Yelin apparently misunderstood the questions propounded by appellee and answered concerning a 1975 back injury for which he treated the appellee instead of answering concerning the 1976 injury that is the subject of this action. Appellant attempted to introduce these interrogatories at trial in support of its defensive issue of sole producing cause, but appellee objected on the basis that the answers were unresponsive to the questions. The trial court sustained appel-lee’s objection.

The objection that answers in a deposition are unresponsive to the question is an objection going to the manner and form of taking the deposition, and not to the actual substance of the answers. Harris v. Nations, 79 Tex. 409, 15 S.W. 262 (1891); Harris v. Sadler, 55 S.W.2d 173 (Tex.Civ.App.—Fort Worth 1932, writ dism’d); Dillingham v. Currie, 92 S.W.2d 1122 (Tex.Civ.App.—Amarillo 1936, writ dism’d). An objection to the manner and form of taking a deposition must be made in writing with notice to opposing counsel, if the deposition has been on file with the court for one day or more. Tex.R.Civ.P. 212; Morgan v. Morgan, 519 S.W.2d 276 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). If such an objection is made for the first time at trial, the objection is untimely, and the defect is waived. Missouri Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S.W. 509 (1892); Bankers Multiple Line Ins. Co. v. Gordon, 422 S.W.2d 244 (Tex.Civ.App. Houston [1st Dist.] 1967, no writ).

In its third point of error, appellant argues that the trial court erred in overruling appellant’s objections to testimony by appellee regarding his willingness to submit to a medical examination, because such testimony is inadmissible pursuant to Tex.R. Civ.P. 167a(c). The disputed testimony is as follows:

“Q. Did the insurance company ever ask you to be examined by any doctor they chose?
“A. No.”

At this point the trial court sustained appellant’s objection that such question and answer violated Rule 167a(c). The following question and answer were then admitted over appellant’s objection:

. “Q. Have you ever refused to be examined by anybody for anything since you have made this claim following your injury of Tekeede?
“A. No sir.”

This was a violation of Rule 167a(c) and reversible error. C. E. Duke’s Wrecker Service, Inc. v. Oakley, 526 S.W.2d 228 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.).

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

REVERSED and REMANDED.


text:
    TRUCKER’S EQUIPMENT, INC., Appellant, v. Aurora SANDOVAL, a widow, et al., Appellees.
    No. 1253.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 22, 1978.

      Ballard Bennett, Adams, Graham, Lewis, Jenkins, Jones & Graham, Harlingen, for appellant.
    James DeAnda, Flores, Sanchez, DeAnda & Vidaurri, McAllen, for appellees.
   OPINION

NYE, Chief Justice.

This is a venue case. Aurora C. Sandoval, individually and on behalf of her minor daughter, brought suit against defendant Trucker’s Equipment, Inc., under the Texas Wrongful Death statute for the death of her husband. The accident allegedly resulted when a hydraulic hose, which defendant Trucker’s Equipment, Inc., had assembled to a coupling, broke loose from the coupling causing a cotton shredder to fall on the decedent. Suit was filed in the District Court of Cameron County, Texas. Defendant filed a plea of privilege to be sued in Nueces County, the county of its alleged general office and principal place of business. The trial court, after hearing evidence, overruled the defendant’s plea of privilege, and this appeal resulted.

Plaintiffs are residents of Cameron County, Texas. Defendant Trucker’s maintained a place of business in Harlingen, Cameron County, Texas. Defendant’s general business activities included the sale, distribution and assembly of hydraulic hoses and fittings for tractors and trucks. The decedent, at the time of his death, was employed as a farm worker on the McElwrath farm in Cameron County, Texas. On August 14, 1974, the date of his death, the decedent was working underneath an elevated cotton shredder. The shredder was held aloft by hydraulic pressure through hoses attached to a tractor. When the hydraulic hose, which held the shredder in the elevated position, tore loose from its coupling, it caused the shredder to drop and crush the decedent. There were no eyewitnesses to the accident.

Plaintiffs alleged that defendant Trucker’s Equipment sold the specific coupling to McElwrath farms and assembled the offending coupling to the hydraulic hose in question. Plaintiffs alleged that, as assembled, the hydraulic hose and coupling were defective, unreasonably dangerous, and not reasonably suitable for the purposes for which such assembled hose was intended. Plaintiffs further alleged that the defendant negligently assembled the coupling to the hydraulic hose and that such negligence proximately caused the decedent’s death. In response to defendant’s plea of privilege, the plaintiffs filed a controverting affidavit and a supplemental controverting affidavit alleging venue to be maintainable in Cameron County under subdivisions 9a, 23 and 31 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1965).

At the plea of privilege hearing, David McElwrath, Jr., the McElwrath farm manager, testified that he purchased the specific hydraulic hose in question with its original fittings from Aldridge-Washmon in Harlin-gen, Texas, on August 12, 1974. He delivered the hose to the decedent late that night. He further testified that the hose was purchased for the purpose of replacing an old hydraulic hose on the cotton shredder in question. The next day certain witnesses observed the decedent using the tractor and cotton shredder on the McElwrath farms. Late that same afternoon, the decedent stopped his wife, who was also working on the farm, to inform her that he was in a hurry to reach Trucker’s Equipment, Inc. prior to closing time in order to have some hydraulic hoses repaired. Defendant Trucker’s place of business was located approximately 10 miles away from the farm.

The next afternoon, the decedent’s body was found pinned beneath the cotton shredder, which, at that time, was located inside a barn on the farm. The decedent had apparently been greasing the shredder. The decedent was still clasping a grease gun in his right hand. The hydraulic hose connecting the tractor to the cylinder that lifted the cotton shredder had pulled loose from one of its couplings. The coupling in question remained attached to the tractor but the hydraulic hose had pulled away from this particular coupling. It was dangling off to one side of the shredder. The other end of the hydraulic hose remained attached to the shredder. Hydraulic oil from the detached hose had drained onto the barn floor. Testimony at the trial established that the loss of hydraulic oil would cause the cotton shredder to drop from a raised position. The tractor and cotton shredder, otherwise, were in good working order.

McElwrath identified the hydraulic hose which had separated from its coupling as being the same hose he had purchased on August 12, two days before the death of the decedent. He further testified that the coupling from which the hose separated was not the same coupling that was on the new hose when he purchased it. The coupling from which the hose separated was a “Stra-toflex” brand. The manager of Trucker’s Equipment, Inc. in Harlingen testified that Trucker’s Equipment, Inc., and Cummins Sales and Service in Brownsville were the only two area stores carrying this particular brand of couplings. McElwrath further testified that the McElwrath Farms limited their purchase of hoses and couplings to two sources: Trucker’s Equipment, Inc., in Harlingen, and Burton’s Auto Supply. The only exception was the single hose that was purchased from Aldridge-Washmon on August 12th. In addition, there was introduced into evidence, an invoice issued by defendant to “McElwrath” or “McElwreth” on August 13, 1974. This was the day the deceased went to defendant’s place of business to get some hydraulic hoses repaired. This invoice contained a charge for the purchase of a Stratoflex coupling as well as a charge for fitting the coupling on a hydraulic hose. The serial number of the coupling shown on the invoice matched the serial number stamped on the particular coupling in question which was on the cotton shredder that crushed the decedent.

Plaintiffs’ evidence included the testimony of a professional mechanical engineering consultant who was experienced in the field of determining the causes of failures of hydraulic equipment, including hydraulic hoses as they are fitted into couplings. He testified that the hydraulic system on the tractor in question which raises and lowers the shredder operated between 1800 pounds and 2000 pounds per square inch of pressure. The identifying number on the hydraulic hose indicated that the hose was designed to operate at 2000 pounds of working pressure, to withstand a standard in-use test of 4000 pounds of pressure and to expand or burst only at a pressure of 8000 pounds. The identification marks on the coupling in question indicated that it was designed to be used on the particular hydraulic hose in question. When properly assembled, the portion of the hose inside the coupling would withstand more pressure per square inch than the portion of the hose outside of the coupling. This expert witness further testified that he had examined the hose and the fitting in question for the purpose of determining why the specific hose separated from the coupling. He had taken x-rays of the coupling in question to determine its internal configuration. Based on all of his examination and his expertise, the consultant testified, in effect, that the failure resulted from the manner in which the hydraulic hose was attached to the coupling. He stated specifically that the failure was due to excessive turning of the hose inside the coupling while being assembled, which damaged and tore the outer rubber jacket of the hose. This rendered it unsuitable for use in a hydraulic system with a pressure designation of between 1800 and 2000 pounds. He compared the effect on the hose in the coupling to that of stripping the threads of a nut and bolt. The expert testified that the jacket of the hose as fitted into the coupling would not, in his opinion, withstand 200 pounds of pressure.

Based on all of this evidence, the trial court overruled defendant Trucker’s plea of privilege. Defendant brings forward legal and factual insufficiency points directed toward the trial court’s implied findings that venue was maintainable in Cameron County under each subdivision of Article 1995 relied upon by plaintiffs.

Findings of fact and conclusions of law were not requested or filed. In such a case, the trial court’s judgment should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup. 1962); Mobile County Mutual Insurance Co. v. Jacobs, 531 S.W.2d 436, 438 (Tex.Civ.App.—Corpus Christi 1975, no writ); Life & Casualty Insurance Company of Tennessee v. Rivera, 420 S.W.2d 788 (Tex.Civ.App.— Corpus Christi 1967, no writ). We must presume, therefore, that the trial court resolved every issue of fact that was supported by evidence in appellee’s favor. We view such evidence in the light most favorable to such findings, disregarding all evidence that is contrary thereto. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Mobile County Mutual Insurance Co. v. Jacobs, supra; Loyd W. Richardson Construction Corporation v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, no writ).

We first consider whether or not venue is properly maintainable in Cameron County under subdivision 31. Plaintiffs’ pleadings and controverting affidavits were sufficient to show plaintiffs’ reliance upon each venue provision of subdivision 31. Subdivision 31 provides as follows:

“Suits for breach of warranty by manufacturer of consumer goods may be brought in any county where the cause of action or part thereof accrued, or in any county where such manufacturer may have an agency or representative, or in the county in which the principal, office of such company may' be situated, or in the county where the plaintiff or plaintiffs reside.”

In order to maintain venue under subdivision 31 “in the county where the plaintiff or plaintiffs reside,” the burden was on the plaintiffs to allege and prove the following venue facts: 1) that the plaintiffs’ suit is one for breach of warranty; 2) that the defendant is the manufacturer of the product in question; 3) that the product in question is consumer goods; and 4) that the suit is brought in the county where the plaintiffs reside. The Court can look to the pleadings to determine whether the nature and character of the suit is one for breach of warranty. The plaintiffs must establish the remaining venue facts by proper extrinsic evidence. Hall v. Ford Motor Company 565 S.W.2d 592 (Tex.Civ.App.—Corpus Christi 1978, no writ); Maintenance & Equipment Contractors v. John Deere Company, 554 S.W.2d 28, 31 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dism’d). In the case before us, the plaintiffs’ petition, which was incorporated by reference into the controverting affidavits, alleged that the hydraulic hose and its fittings, as assembled and sold by the defendant, were “not reasonably suitable for the purposes for which such assembled hose was intended” thereby alleging breach of an implied warranty. See Lilly Distributing Company of San Antonio v. Associated Milk Producers, Inc., 553 S.W.2d 2 (Tex.Civ.App.—El Paso 1977, no writ).

Regarding the second venue fact above, the plaintiffs made certain requests for admissions which the defendant answered in the affirmative:

1)“That during the entire year of 1974, Defendant was engaged in business in the State of Texas, which business included the sale, distribution and assembly of hydraulic hoses, fittings, and other parts and equipment for trucks and tractors”;
2) “That Exhibit No. 1, attached hereto, is a true and correct copy of an invoice or receipt issued by Defendant on August 13,1974, for a hose fitting and for assembly of such fitting to a hydraulic hose”;
3) “That the assembly and sale referred to in [No. 2 above] was done by the Defendant, acting through its employees of Defendant acting within the course and scope of their employment for Defendant and that such assembly and sale was done in the regular course of business in which Defendant was engaged at the time of such assembly and sale.”

In addition to these admissions, plaintiff and her adult son both testified that on August 13, 1974 the decedent informed them that he intended to go to Trucker’s Equipment, Inc., in Harlingen to have certain hydraulic hoses repaired. Plaintiff testified that the decedent briefly conversed with her at the end of the work day on the 13th. The decedent told her that he was in a hurry to reach Trucker’s prior to the time that they closed. These statements made by the decedent to his wife and to his son were admissible as declarations tending to show the state of mind, the immediate purpose, and the destination of the decedent on August 13th. See Davis v. Argonaut Southwest Ins. Co., 464 S.W.2d 102, 104 (Tex.Sup.1971); Great American Indemnity Company v. Elledge, 159 Tex. 288, 320 S.W.2d 328, 329 (1959); Prater v. Traders & General Ins. Co., 83 S.W.2d 1038, 1039 (Tex.Civ.App. — Waco 1935, no writ); 1 McCormack & Ray, Texas Practice, Evidence, §§ 861-863, 868 (1956).

A manufacturer such as this defendant, within the meaning of subdivision 31, includes an entity which assembles articles or fabrics that someone else has made and by reason of the assembly produces a useful article. So, in order to maintain venue under subdivision 31, the product in question must also be properly classified as a consumer good. “Consumer goods” within the meaning of subdivision 31 of Article 1995 has been recently held to include goods used for agricultural purposes, and more specifically, a tractor. Maintenance & Equipment Contractors v. John Deere Company, supra. Unquestionably, the cotton shredder in question used with a tractor is within the category of goods used for agricultural purposes. The hydraulic hose and the coupling as assembled is a component part of the shredder and tractor. We see no sound reason for differentiating, in this instance, component parts from the entire product in question. We hold that the hydraulic hose with the coupling, as assembled by Trucker’s Equipment, Inc., is properly classified as consumer goods, as contemplated under subdivision 31 of Article 1995. The undisputed evidence established that at all relevant times, plaintiffs were residents of Cameron County. Plaintiffs thus established all of the venue facts necessary to maintain venue under subdivision 31 in Cameron County.

Plaintiffs also relied upon subdivision 9a to maintain venue in Cameron County. It has been universally held by our appellate courts that in order to maintain venue under subsection 9a of Article 1995 that plaintiff must allege and prove facts that an act or omission of negligence of the defendant or his servant, agent, or representative, acting within the scope of the employment proximately caused plaintiffs’ injuries and that such negligence occurred in the county where the suit was filed. Sunset Brick & Tile, Inc. v. Bushong, 419 S.W.2d 386, 388 (Tex.Civ.App.—Corpus Christi 1967, no writ); Sunset Brick & Tile, Inc. v. Miles, 417 S.W.2d 93, 95 (Tex.Civ.App.—Corpus Christi 1967, no writ); 1 McDonald, Texas Civil Practice, § 4.17.2 (1965).

In points of error three through six, defendant Trucker’s Equipment, Inc., contends that the trial court erred in overruling its plea of privilege because there was no evidence or, in the alternative, factually insufficient evidence to support the trial court’s implied findings that 1) defendant negligently assembled the coupling to the hose in question, and 2) that such negligence, if any, was a proximate cause of the injury and death of the decedent.

Defendant Trucker’s owed a duty, to the decedent to use reasonable care in assembling the coupling to the hose in question. See Restatement of the Law on Torts 2nd §§ 404, 395, and comment f. (1965). The negligence of the defendant was in the manner in which the fitting was attached to the hose end, and specifically due to the excessive turning which damaged and tore the rubber jacket rendering the hose unsafe for its intended use. The expert witness testified and demonstrated to the trial court in detail, the configuration of the tear, the manner in which it occurred, the precautions which could have easily been taken to prevent the occurrence and the result. The defendant does not challenge the witness’ qualifications nor his competence to express his opinions, based on his observations, studies and findings. Although defendant had its own expert examine and study the hose and fitting, it made no attempt to dispute the testimony of plaintiffs’ expert in any respect. There was ample evidence, both direct and circumstantial, to support the court’s implied finding that the defendant was negligent.

Proximate cause embraces two distinct concepts: 1) cause in fact and 2) foreseeability. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 (1961). In this case the direct and circumstantial evidence was sufficient to support the trial court’s implied findings of proximate cause. The decedent was crushed by the cotton shredder because the hydraulic hose which connected the tractor outlet to the cylinder that lifts the cotton shredder separated from within the coupling which attached the hydraulic hose to the tractor. The connection attaching the other end of the hydraulic hose to the cylinder remained intact. The failure of the coupling to hold the hose released the hydraulic oil and caused the shredder to drop on the decedent. The defendant was engaged in the business of the sale, distribution and assembly of hydraulic hoses, fittings, and other parts for tractors. The defendant knew that the hose assembly would be used to raise and lower heavy farm equipment and that the improper assembly of a coupling to a hydraulic hose could cause a failure of the hydraulic system and imperil anyone working around or beneath the equipment. It is not necessary that the precise manner or means of the injury resulting from the negligence be foreseen. All that is necessary is that a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act. The rule does not require that he anticipate the specific injury that might grow out of that dangerous situation. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 364-365 (1957).

We have carefully examined all of the evidence contained in the record and find that it is sufficient to support the trial court’s implied findings that the defendant was negligent in the manner in which it assembled the coupling to the hydraulic hose and that such negligence proximately caused the accident in question.

In view of our disposition of these points of error, it is unnecessary for us to consider appellants’ remaining contentions.

The judgment of the trial court overruling defendant’s plea of privilege is AFFIRMED.


text:
    Richard N. MacCONNELL et al., Appellants, v. Curtis HILL d/b/a City Exxon, Appellee.
    No. 1260.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 22, 1978.
    Rehearing Denied Aug. 29, 1978.

      Thomas M. Andrews, Aransas Pass, for appellants.
    B. Mills Latham, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a suit for personal injuries sustained by Richard MacConnell, a six-year old child. The boy’s father, Edward P. MacConnell, individually and on behalf of his minor son, brought this suit against Curtis Hill d/b/a City Exxon to recover damages for the personal injuries the boy sustained when he was burned by scalding radiator water which gushed out of an automobile radiator hose that defendant Hill was removing. The jury convicted the defendant of negligence which was found to be a proximate cause of the accident and found contributory negligence on the part of the plaintiff child. In response to the comparative negligence issue, the jury found the child to be 60% negligent and the defendant 40% negligent. The trial court entered a take nothing judgment from which the plaintiffs appeal.

The evidence is virtually undisputed. The boy, with prior consent of his father, accompanied Randy Smith, an adult, to Ar-ansas Pass, Texas, for the purpose of transporting Randy’s younger brother to a Little League baseball practice session. Upon arrival at the practice field, Smith noticed that his automobile engine was overheating. They drove to the City Exxon Service Station in Aransas Pass to have the car repaired. Smith parked his car near the repair stalls at the station, opened the hood of the car and discovered a puncture in the main large radiator hose connecting the radiator to the engine.

Defendant Hill, the lessee and operator of the service station, did not want to repair Smith’s car as it was almost time for him to close. However, Hill reluctantly agreed to make the repairs although Smith did not have any money, but did have an Exxon credit card in his possession. Smith’s car was a 1973 model Pontiac. It had a pressure release system whereby pressure on the radiator and the connecting hoses could be pre-released by loosening the radiator cap. The repairs could then be accomplished by simply removing and replacing the punctured hose. Smith and the plaintiff child stood near the car as Hill commenced the repairs. Without first releasing the pressure in the radiator hose, Hill removed the end of the hose attached to the top of the radiator, spraying the boy with hot water and steam which gushed out of the hose.

The case was tried to the jury primarily on depositions. In response to special issues, the jury in relevant parts found: 1) that defendant Hill was negligent in failing to release the pressure from the car’s cooling system before removing the radiator hose which was a proximate cause of the accident in question; 2) that Richard Mac-Connell, the child, was negligent by failing to keep a proper lookout for his own safety which was a proximate cause of the accident; 3) that Richard MacConnell, the child, was also negligent in standing in close proximity to the automobile which was a proximate cause of the accident; and 4) that 60% of the negligence was attributable to Richard MacConnell, the child, and 40% to defendant Hill.

Plaintiffs bring forward three points of error on appeal. Plaintiffs’ third point of error complains of the factual insufficiency of the evidence relative to the jury’s answer to the comparative negligence special issue. In deciding such an insufficient evidence point, this Court is required to consider all of the evidence and to determine whether such finding is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The testimony of both the defendant, Hill, and the adult, Randy Smith, who accompanied the child, indicates that these witnesses are in virtual agreement as to the events that culminated in the accident in question.

The evidence is that immediately prior to the incident in question, Hill, who was working on the radiator hose, was standing on the left-hand side of the car (driver’s side) because of the location of the hose in question. Smith was standing near the front of the car by the right fender and the plaintiff child was standing directly in front of the car’s open hood. The record shows that Hill and Smith asked Richard to move away from the car. Richard immediately started to back up after defendant Hill asked him to move back. Smith noticed that Richard was not moving back far enough. He then asked Richard to move clear out of the way. Richard thereafter immediately changed his backward direction by turning to his left. As Richard was starting to move, but before he could reach a position far enough back and to the left, the defendant pulled the radiator hose from the radiator, spraying the child with the hot radiator water and steam.

Defendant Hill admitted that after the time he requested Richard to move, he did not look to see if the child remained in dangerous proximity to the car. Hill also admitted that every day he had to warn adult people to stay out of his way while he was attempting to make repairs. Referring to the people who come to his station to have their cars repaired, he testified as follows:

“I tell them every day to get out of the way when you go to change a tire. I’ll bet you when you go to change your tires at a station somewhere, you’re right up there with your nose right up there to see what is going to happen. Everybody is that way. They ain’t no different from anybody.”

This testimony clearly shows that it was within Hill’s experience that adults regularly position themselves dangerously close to Hill’s work area. This testimony also indicates that Hill had to frequently warn adults of the dangers incident to routine repairs.

The jury found that the defendant Hill was negligent in failing to release the pressure from the car’s cooling system before pulling off the top radiator hose and that such failure was negligence. The jury further found that the six-year old child failed to keep a proper lookout for his own safety and was negligently standing in a position near the automobile while under repair by defendant Hill. The jury found that each of these negligent acts of the defendant and the child were a proximate cause of the occurrence in question. Finally, the jury was asked, conditioned on its finding that these acts or omissions proximately caused the occurrence in question, “what percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to be negligent?” The jury found: “Curtis Hill 40%. Richard N. MacConnell 60%.’’

As a general rule, in Texas, a child who is beneath the age of five is incapable of negligence as a matter of law. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex.Sup. 1971). Where the negligence of a child above the age of five is at issue, the child’s negligence is to be judged by a standard of conduct applicable to a child of the same age (six) and not by that standard that is applicable to an adult. Yarborough, supra; Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959); Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456 (1949); Texas & Pacific Ry. Co. v. Crump, 102 Tex. 250, 115 S.W. 26 (1909); Texas & Pacific Ry. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852 (1897); Missouri, Kansas & Texas Ry. Co. v. Rodgers, 89 Tex. 675, 36 S.W. 243 (1896).

The Supreme Court in Rudes v. Gottschalk, supra, in a well-written opinion by Justice Norvell, outlined the conceptual difficulties inherent in a case when both the negligence of a child and an adult are in issue. There, Justice Norvell said: “We may perhaps safely say that legal liability will not attach to an act or omission unless the alleged wrongdoer could have reasonably anticipated probable harm from his conduct. Foreseeability is undoubtedly a test of negligence, for certainly a prudent man would not do that which he could foresee would result in harm.” Rudes, supra, at 206. The Supreme Court, in Rudes, concluded that when the asserted negligence of a child and that of an adult are in the same occurrence, the standard of care applicable to each must be separately defined. These definitions in substantially the same form were given by the trial judge.

In the case before us, the jury was asked to compare and to assign the percentage of negligence applicable to the adult Hill and to the six-year old child, MacConnell. However, the record indicates to us that the jury did not consider that a different standard of care was applicable to the child, as opposed to that of an adult, when they answered the comparative negligence question.

The evidence shows without dispute that defendant Hill repaired automobiles nearly every day. He admitted that he had to warn adult people to get out of his way to keep from being hurt. He stated that they were always right up there under his nose to see what was going to happen. “Everybody is that way. They (adults) ain’t no different from anybody.” It is obvious that Hill, in telling the child to back away from the car, was treating the child no differently from anybody else. He admitted that after he instructed the child to move away from the car, he did not check further to see if the child had complied.

The evidence shows that Hill was negligent in failing to release the steam pressure in the radiator prior to removing the hose in question. Had he released the pressure, the accident would not have happened. Had he seen to it that the child was out of danger, the steam and hot water would not have reached the child and Richard, obviously, would not have been injured.

Although the child failed to keep a proper lookout for his own safety, as the jury has found, and was negligent in standing near the automobile, it must be remembered that adults also stood close by while repairs were going on and they had to be repeatedly warned to stay at a safe distance. Young boys are very curious as a rule, and no different than adults except as to their ability to foresee and anticipate danger, and the harmful consequences that may happen as a result of their curiosity.

The evidence showed that the child was attempting to comply with Hill and Smith’s instructions. Richard was moving back when first instructed, and moving away to his left as a result of the second admonition at the same instant that the defendant Hill pulled the hose loose from the radiator. Had Hill checked to see if the six-year old child was out of danger, the injury would not have taken place.

Having reviewed all of the evidence in the record, we find that the jury’s answer apportioning 60% of the negligence causing the injuries to the child is so against the overwhelming preponderance of the evidence as to be clearly wrong. This requires us to reverse the case and remand the same for a new trial. In re King’s Estate, supra.

The jury found that the child had incurred expenses for the necessary medical and hospital care in the amount of $653.80. The evidence supplied by Dr. Pounds and Nurse Berry, which was uncontradicted, showed that the child suffered severe pain and discomfort, permanent scarring injuries which were the result of second and third degree burns that he received as a consequence of the event. However, the jury, when asked what sum of money, if any, would reasonably compensate the child for his injuries considering physical pain and mental anguish in the past and physical pain and mental anguish in the future and disfigurement, the jury answered, “none”. This is clearly against the great weight and preponderance of the evidence. Appellants’ first three points of error are sustained.

In the retrial of this case, the court should instruct the jury as to ordinary care, negligence and proximate cause in the same manner as it did in this case immediately prior to the listed negligence issues as to defendant Hill, the adult. When it comes to the submission of issues that affect the child’s negligence, the court should also instruct the jury immediately prior to issues as to ordinary care, negligence and proximate cause concerning a child’s degree of care. The “proximate cause” definition as it affects the child should follow the definition set out by the Supreme Court in Rudes v. Gottschalk, supra. See also Texas Pattern Jury Charges, 2.05, Child’s Degree of Care, comment on page 49.

We are also of the opinion that in any case where the jury is asked to apportion the negligence between a child and an adult, an additional instruction should be given which again apprises the jury that a different standard should be applied in determining the negligence of a child when compared to the negligence of an adult. The Supreme Court, in Rudes, did not consider this precise question because that case was decided prior to the time Texas adopted the comparative negligence statute, Tex. Rev.Civ.Stat.Ann. art. 2212a (Sup. 1978). The Texas comparative negligence statute is based on a similar Wisconsin comparative negligence statute. See e. g., Leyva v. Smith, 557 S.W.2d 169, 170-71 (Tex.Civ.App.—San Antonio 1977, no writ). The Wisconsin Supreme Court recently addressed this problem and approved the following instruction to accompany the comparative negligence special issue:

“ ‘In answering the comparison negligence question, if you are to answer it, you should take into consideration that [name] was an adult and [name] was a child.’ ”

See Gremban v. Burke, 33 Wis.2d 1, 146 N.W.2d 453, 456 (1966). We agree that this instruction would adequately apprise and remind the jury that a different standard should be applied in determining the negligence of a child when compared to the negligence of an adult. Such an instruction is also consistent with the principles outlined in Rudes which, in effect, require that the jury’s attention be directed to the different standards applicable to children as each special issue relates to the child’s conduct is answered.

The judgment is accordingly REVERSED and the cause is REMANDED to the trial court for a new trial in accordance with the instructions contained in this opinion.

      . The term “ordinary care” as applied to the conduct of children has been defined as “such care as an ordinarily prudent child of the age, intelligence, experience and the capacity of [the child in question] would have exercised under the same or similar circumstances.” Rudes v. Gottschalk, supra at 206-207.

      . “ ‘Ordinary care’ when used with respect to the conduct of a child, means that degree of care which an ordinary prudent child of the same age, experience, intelligence and capacity would have used under the same or similar circumstances.
      ‘Negligence’, when used with respect to the conduct of a child, means failure to do that which an ordinary prudent child of the same age, experience, intelligence and capacity would have done under the same or similar circumstances doing that which such a child would not have done under the same or similar circumstances.”


author: YOUNG, Justice.

text:
    Victor L. NARANJO, Appellant, v. James H. CULL, Appellee.
    No. 1261.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 22, 1978.
    Rehearing Denied Aug. 29, 1978.
    William H. Berry, Jr., Corpus Christi, for appellant.
    Jack K. Dahlberg, Jr., Law Offices of Guy H. Allison, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is a jury misconduct case. Victor L. Naranjo sued James H. Cull for damages resulting from an automobile accident. Trial was to the jury. The jury awarded $2,000.00 damages to Naranjo, which he claims is grossly inadequate and is the result of a juror’s misconduct; i. e., that a retired nurse on the jury panel interpreted the type and strength of certain prescriptions listed on Naranjo’s medical records which were introduced into evidence without explanation. The court overruled Nar-anjo’s motion for new trial based on jury misconduct, and he brings this appeal. We affirm.

This suit arises out of a rear-end collision between automobiles of appellant and ap-pellee on September 1, 1973. The evidence shows that Naranjo was stopped at a traffic light when Cull struck the left rear corner of Naranjo’s car. Naranjo claimed damage to his car, injuries to his neck and back, and an impairment to his learning ability which forced him to drop out of school.

Insofar as the damage to Naranjo’s car was concerned, a police officer who investigated the accident testified that Naranjo’s car sustained minimum damage; i. e., damage approximating $150.00. Naranjo, who had not had the car damage estimated up to the time of trial in March of 1977 and who was not experienced as an auto body mechanic, estimated the damage at $1,000.

As to his physical condition, Naranjo testified that prior to the accident he had served in Vietnam where he was severely wounded in the head, left shoulder, left elbow, left hip, and left knee. As a consequence of these injuries, Naranjo was discharged in 1969 as being 100% disabled and at the time of trial was classified as 80% disabled. He stated, though, that he had not suffered any neck or back injuries in Vietnam. Following the accident, Naranjo consulted several physicians at the Corpus Christi Naval Air Station complaining of headaches, neck and back pain, and numbness in his left arm. Between September 1973 and July 1975 he visited these physicians 25 times for traction and various medications not explained in the record. From July 1975 to July 1976 he visited these doctors three times and from July 1976 to the time of trial, which began March 21, 1977, he went only twice. In fact, at trial, he stated that he had stopped physical therapy “a while back.” Naranjo contended that at first the medications were insufficient to eliminate his nagging neck and back pain, but that as time went on the pain had diminished and the medications gave relief. The medical bill at the Naval Air Station totaled $687.00 for these visits and medications.

In addition to consulting the physicians at the Naval Air Station, Naranjo saw Dr. Marco T. Eugenio, a neurosurgeon, who examined him. Dr. Eugenio testified that he examined Naranjo on December 14, 1973, two and one-half months after the accident, and found pulled and stretched muscles and ligaments in Naranjo’s neck and spinal column. The doctor further testified that Naranjo had not complained of headaches at the time of the examination. He also stated that Naranjo’s injury was not very serious, and it could be expected to heal naturally.

About his having to leave college, Naran-jo testified that his Vietnam mishap had impaired his ability to remember. This memory problem had forced him to drop out of college once before and he had just reentered a few months prior to the accident. He claimed that the auto accident compounded his memory problem, and his frequent visits to the doctor caused him to miss too many classes to continue attending school. Naranjo’s testimony was uncertain, though, as to whether or not he had dropped out of school prior to the accident. He claimed that he lost $200.00 per month in G.I. benefits from having to drop out of school. There was no evidence that Naran-jo lost any salary or earnings because of his pain or doctor visits.

Appellant brings forward two points of error. The first point alleges the trial court abused its discretion in not granting the motion for new trial based upon jury misconduct. The second point alleges the jury’s answer to the damage issue was against the great weight and preponderance of the evidence.

In considering appellant’s first point we will be guided by some of the rules which we set out in Baucum v. Statewide Hot Shot, 550 S.W.2d 156, 159 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.) as follows:

“It is well settled law under rule 327, T.R.C.P., that the party asserting misconduct must prove misconduct; that it was material; and that it was calculated to and probably did result in harm. .
In applying this test, it is necessary for us to consider the entire record, including evidence presented in the trial on the merits as well as that in the motion for new trial hearing.
Further, in determining if this burden has been met we are limited to considering only the overt acts of .the jury and we must disregard testimony as to their mental processes. . . . ”

No findings of fact or conclusions of law were filed concerning the hearing on motion for new trial, so we must presume that the trial judge found that no jury misconduct occurred, or found that it was not material, or found that it probably did not cause harm. Tees v. Tees, 546 S.W.2d 912, 915 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ), see Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.Sup.1969). The implied finding of no overt misconduct is not binding on the reviewing court, though, when all of the uncontroverted evidence shows that misconduct occurred. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961); Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943).

In the instant case, four jurors testified. Though their statements varied slightly, they generally agreed to the following. The other members of the jury requested that Mrs. Janet Corner, a juror who was a retired nurse, read to the jury Mr. Naranjo’s medical records from the Naval Air Station. Mrs. Corner then read aloud each listed drug and explained the type and strength of each one she recognized. Two or three times she mentioned that a certain drug was no stronger than aspirin. She also stated that some of the drugs were stronger than aspirin, and that she did not know what several of the drugs and prescriptions listed were. She never gave her own opinion as to the seriousness of Naranjo’s injuries as might be indicated from the prescriptions. Each of the testifying jurors stated whether or not Nurse Corner’s comments affected his or her decision on damages, but we need not consider these statements as they constitute mental impressions. Cortez v. Medical Protective Co. of Ft. Wayne, 560 S.W.2d 132 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Baucum v. Statewide Hot Shot, supra. See Pope, The Mental Operations of Jurors, 40 Texas L.Rev. 849, 860-62 (1962).

We find that there was evidence that overt misconduct occurred because evidence not introduced at trial was brought before the jury. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483 (1943), 156 A.L.R. 1033 (1945), 41 Tex.Jur.2d New Trial § 42 (1963). Thus, the primary issue becomes whether the appellant met his burden of showing that this was material misconduct which probably caused harm. We find he did not.

After thoroughly reviewing the testimony at the hearing on motion for new trial we find no indication of the required connection between the explanation of. the drugs and the amount of damages awarded. See Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242 (1955). For example, there is no testimony that the jurors discussed the comments made by Mrs. Corner; we have only mental impressions. See Cortez, supra. Nor is there testimony as to what, if any, actions or comments the jurors made relative to selecting a damage amount either before or after the nurse’s reading. We cannot tell whether there was a change in the vote after the misconduct. The only evidence in this regard is that the jury considered amounts both greater than and less than $2,000.00. There is no testimony as to the jury’s actions or comments relative to Mrs. Corner’s statements concerning drugs which were stronger than aspirin. There is no testimony as to which medications Mrs. Corner was referring when she stated that some were no stronger than aspirin. They could have been the medications prescribed in 1976 or in 1973. They could have been prescribed just for headaches and not for the neck or back pain. Moreover, there is no testimony as to how long the jurors spent considering Mrs. Corner’s comments or whether her comments were made at a crucial point in deciding the damage issue. In sum, there is no indication of a connection between the misconduct and the damages. In addition, after reviewing the entire record, we find that the damages of $2,000.00 awarded to the appellant has ample support in the evidence for the injuries sustained. Especially is this so when we consider that damage issue (hereafter set out) precluded the jury from awarding any damages regarding appellant’s car. See Fountain v. Ferguson, supra and Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.).

Appellant contends, however, that there is sufficient evidence to prove the harmful effect of Mrs. Corner’s comments. He points to the jurors’ mistaken action in placing answers next to a list of elements to be considered when awarding damages in special issue number two which appeared as follows:

“ISSUE NO. 2
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Victor L. Naranjo for his injuries, if any, which you find from a preponderance of the evidence resulted in the occurrence in question?
Do not reduce the amount in your answer because of Victor Naranjo’s negligence, if any. Consider the following elements of damage, if any, and none other.
a. Physical pain and mental anguish in the past. Yes
b. Physical pain and mental anguish which, in reasonable probability, he will suffer in the future. No
c. Loss of earnings in the past. No
d. Loss of earning capacity which, in reasonable probability, he will sustain in the future. No
e. Reasonable cost of medical treatment in the past. Yes
f. Reasonable cost of medical treatment which, in reasonable probability, he will sustain in the future. No Answer in dollars and cents, if any. ANSWER: $2000.00”

Appellant submits that the jury’s unsolicited answer to element “b.” dealing with future pain and suffering clearly shows that Mrs. Corner’s comments caused the jury to underestimate Naranjo’s future pain and suffering. He submits that the only evidence in the record dealing with future pain and suffering was Dr. Eugenio’s statement that Naranjo would “continue having the same problems.” Appellant concludes that, accordingly, the jury could not have answered element “b.” in the negative without being influenced by Mrs. Corner’s comments. We disagree.

Appellant’s assertion overlooks the fact that Naranjo himself stated that he had discontinued his physical therapy and treatments, and that the pain had subsided. Furthermore, Dr. Eugenio indicated that Naranjo’s discontinuing treatments indicated a possible lessening or lack of pain. Even if Dr. Eugenio’s statement that Nar-anjo would “continue to have the same problems” was the only evidence in the record relative to future pain and suffering, the jury was at liberty to accept or reject any or all of his testimony. Mancillas v. Texas Employers’ Insurance Association, 543 S.W.2d 751, 756 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). Consequently, we find that the jury’s answer to element “b.” was not necessarily incorrect and we find no connection between this answer and any jury misconduct. Appellant’s first point is overruled.

Appellant’s second point, that the jury’s answer to the damage issue (special issue number two) was against the great weight and preponderance of the evidence, was not properly preserved in appellant’s motion for new trial. The only statement in the motion for new trial relevant to the point stated:

“Plaintiff would show that the great weight and preponderance of the evidence would in the interest of justice, warrant the Court’s granting a new trial.”

The jury answered eleven issues, and appellant did not direct the trial court to the error of which he complained. Appellant’s statement was clearly too broad. Rule 322, T.R.C.P., Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.); Kettle v. Smircich, 415 S.W.2d 935 (Tex.Civ.App.—Corpus Christi 1967, no writ). Even considering appellant’s contention upon its merits, we find the jury’s answer to the damage issue was not against the great weight and preponderance of the evidence. Appellant’s second point is overruled.

The judgment of the trial court is affirmed.


text:
    Blanche D. MOORE, Appellant, v. A. T. WHITE, Tax Assessor-Collector, City of Corpus Christi, Texas, Corpus Christi Independent School District, Corpus Christi Junior College District, Richard D. Magee, Nueces County Tax Assessor-Collector, State of Texas, County of Nueces, and the Nueces County Hospital District, Appellees.
    No. 1271.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 22, 1978.
    Rehearing Denied Aug. 29, 1978.
    William J. Tucker, Wood, Boykin & Wol-ter, Corpus Christi, for appellant.
    P. Hal George, Michael J. Westergren, County Atty., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

Appellant, Blanche D. Moore, sued appel-lee, A. T. White, Tax Assessor-Collector representing the City of Corpus Christi, the Corpus Christi Independent School District, and the Corpus Christi Junior College District, hereafter called “City Defendants,” and appellee, Richard D. Magee, Tax Assessor-Collector representing the State of Texas, Nueces County, and the Nueces County Hospital District, hereafter called “County Defendants,” to recover an alleged overpayment of her 1973 ad valorem taxes. Her suit, originally filed on January 14, 1976, claims her payment to the taxing authorities on January 30, 1974, was an overpayment because her property in Nueces County, Texas, was not assessed and taxed pursuant to the agricultural use exemption provided for in Tex.Const. art. VIII, § 1-d. Trial was to the court without a jury. The trial court entered a take nothing judgment. Mrs. Moore appeals. We affirm.

Findings of fact and conclusions of law were requested and filed. These findings set forth the following pertinent facts. Mrs. Moore is the owner of three parcels of land described as tracts A, B and C. On April 19, 1973, Mrs. Moore submitted to the City Defendants a form entitled “1973 Inventory of Property Subject to Ad Valorem Taxes” for tracts A, B and C. Mrs. Moore rendered tract A for $55,900.00 and tracts B and C for $138,937.00 for the 1973 tax year.

On August 1, 1973, the City of Corpus Christi adopted its budget for its fiscal year which comprised the period from August 1, 1973, through July 31, 1974; and on the same day, it levied and assessed the taxes it intended to collect for the 1973 tax year. The City Boards of Equalization completed their task on September 1, 1973, and adopted the tax roll for the 1973 tax year. They assessed Mrs. Moore’s land at its fair market value rather than its “agricultural use” value. Tract A was valued at $1,655,848.00 and tracts B and C were valued at $138,-937.00. The Boards of Equalization for the other two City Defendants adopted these valuations for their assessments. Prior to December 18, 1973, the County Defendants valued tract A at $324,435.00 and tracts B and C at $24,698.00 and Mrs. Moore received tax statements from both the City and County Defendants which reflected the increased values placed upon her property.

On December 18, 1973, Mrs. Moore filed her Sworn Declaration of Land for Agricultural Use with all Defendants herein. For the year 1973, and for at least three years prior thereto, Mrs. Moore grew crops on tracts A, B and C. Also, during that time her primary occupation was farming, and her gross income from farming operations exceeded her gross income from any other occupation or business venture carried on for profit.

On or about January 24, 1974, the assistant Tax Assessor-Collector for the City Defendants and the Tax Assessor-Collector for the County Defendants informed Mrs. Moore’s attorney that her request for an agricultural use designation for 1973 would be denied because it was not timely filed.

On January 30, 1974, Mrs. Moore paid to all defendants herein her ad valorem taxes as assessed but wrote the words “payment under protest” on the checks. Mrs. Moore made this payment in order to avoid the accrual of interest and penalty after January 1, 1974, and to prevent the taxing authorities from seizing and or selling her property.

In April, 1975, Mrs. Moore appeared before the Commissioners’ Court of Nueces County and requested a refund. The request was denied. She did not appear before any other governing bodies or their Boards of Equalization.

Each year the City Tax Assessor prepares estimates of property valuations and submits them to the City Budget Office. The City budget for the upcoming year is prepared from these estimates. According to one of the trial court’s findings, the refund which Mrs. Moore seeks would result in a significant change in the City’s budget.

In their pleadings, and during the trial, the Defendants argued: that Mrs. Moore’s application for the agricultural use exemption was untimely filed; that an April 30th filing cut off date for the year in which the agricultural use exemption is claimed is within the discretion of the taxing authority and is in accordance with Tex.Rev.Civ. Stat.Ann. art. 7151 (Supp.1978); that her payment was made voluntarily and thus she had no right to a refund; that she failed to exhaust her administrative remedies against the City of Corpus Christi; and that Mrs. Moore’s allegation that the assessment was grossly excessive could not be shown unless she proved fraud, want of jurisdiction, illegality or the adoption of a fundamentally erroneous method of valuation by the respective Boards of Equalization.

Appellant brings forward five points of error. In those points she challenges the following holdings of the trial court: 1) that the agricultural use exemption was not timely filed; 2) that the defendant taxing authorities have a discretionary right to require taxpayers to file their sworn statements by April 30th of the tax year in which the exemption is sought; 3) and 4) that Mrs. Moore failed to exhaust her administrative remedies; and 5) that she failed to show the action of the respective Boards of Equalization was fundamentally erroneous. By cross point, appellees contend that the trial court erred in holding that appellant’s payment of her 1973 ad valorem taxes was involuntary.

The central issue in this appeal is whether, under the facts of this ease, the submission of a land use exemption form on December 18, 1973, for the year 1973 was timely filed. We find it was not.

Appellant primarily argues that Tex.Const. art. VIII, § 1-d, is self-executing and therefore an administrative agency cannot impose arbitrary constraints upon the means by which one qualifies for the exemption. While we agree that the amendment is self-executing, we find that the framers did not include any language about when the request for agricultural use should be filed. In this situation, it is the courts’ duty to determine the intent from the other provisions, including the general purpose, from the entire enactment. See Gragg v. Cayuga Independent School District, 539 S.W.2d 861, 866 (Tex.Sup.1976).

The Supreme Court has ascertained the framers’ intent as to when the exemption request should be filed. In Gragg, supra, the Court considered a case in which a school district sued a taxpayer landowner for delinquent ad valorem taxes for the years 1971, 1972 and 1973. The landowner defended by contending the applicability of the agricultural use designation. The trial court entered judgment in favor of the school district and the Court of Civil Appeals affirmed. On appeal by the landowner, the Court set forth at page 869 the rule to follow when determining whether a landowner qualifies for the exemption:

“We hold that a landowner seeking the agricultural use designation and assessment can qualify by discharging his burden of timely showing in a proper administrative or judicial proceeding that his land is designated for agricultural use under the terms of Sec. 1-d of Article 8, . ” (Emphasis supplied.)

The Court then continued at page 869:

“As hereafter shown, [the landowner] Petitioner Gragg failed to carry his burden of proof timely or satisfactorily with reference to his gross income from agricultural as compared to other business ventures.” (Emphasis supplied.)

In reference to its timeliness statement the Court then later explained at page 870:

“. . . Petitioner [landowner] Gragg wholly failed to attack by appeal or seek injunctive relief from the assessment of his property upon which the school district’s suit is based. He sat by and permitted the assessments to be made, the tax rolls to be prepared, and this suit for taxes to be filed against him before challenging the refusal of the tax assessor to give his land the agricultural use designation.”

In Jay v. Devers, 563 S.W.2d 880 (Tex.Civ.App.—Eastland 1978, no writ) Mrs. Jay sued Devers, the Tax Assessor-Collector for the Duncanville Independent School District to recover an alleged overpayment of her 1974 ad valorem taxes resulting from Devers’ failure to assess her property under Tex.Const. art. VIII § 1-d. The case was submitted on an agreed statement which showed that Mrs. Jay had filed her application for a 1974 exemption on December 31, 1974. The application was denied. She later paid the full assessment. The trial court ordered that Mrs. Jay take nothing and the Court of Civil Appeals affirmed. That in addition to the fact that Mrs. Jay could not recover her overpayment because she had “voluntarily” paid the taxes, the Court stated:

“Furthermore, we hold that Jay’s ‘un-sworn’ application filed on December 31, 1974, was not timely filed. Gragg v. Cayuga Independent School District, 539 S.W.2d 861 (Tex.Sup.1976); Tex.Att’y Gen.Op. No. H-988 (1977).”

We therefore hold that Mrs. Moore’s application filed on December 14, 1973, for the 1973 tax year was not timely filed. This is so because she waited until after the Defendants’ plans of taxation were put into effect before filing her claim for exemption. See also Maxwell v. White, 564 S.W.2d 396 (Tex.Civ.App.—Fort Worth 1978, no writ) and Mississippi Valley Life Ins. Co. v. City of El Paso, 131 S.W.2d 191 (Tex.Civ.App.—El Paso 1939, no writ), for discussions of the importance of timely requests by taxpayers for favorable tax treatment. Appellant’s first point is overruled.

Our decision on this point renders it unnecessary for us to consider appellant’s other points and appellees’ cross-point.

The judgment of the trial court is affirmed.