author: HUGHES, Justice.

text:
    PHOENIX MECHANICAL PLUMBING COMPANY, Appellant, v. PONDEROSA CONSTRUCTION COMPANY, INC., et al., Appellees.
    No. 17993.
    Court of Civil Appeals of Texas, Fort Worth.
    April 20, 1978.

      Law Offices of F. Ward Steinbach and Michael S. Copeland, Dallas, for appellant.
    A. J. Haffey, Dallas, for appellee Ponde-rosa Const. Co., Inc.
    Blankenship & Potts and Hal Potts, Dallas, for appellee Commercial Standard Ins. Co.
   OPINION

HUGHES, Justice.

Appeal by Phoenix Mechanical Plumbing Company, plaintiff, from a take nothing judgment rendered against it and in favor of Ponderosa Construction Company and Commercial Standard Insurance Company, defendants. The judgment is based on an instructed verdict rendered by trial court for both defendants when Phoenix rested after concluding its case in chief before a jury.

We affirm.

Phoenix, the plumbing sub-contractor, claims that Ponderosa, prime contractor, breached the contract between them in not paying Phoenix the remainder due under the terms of such contract which involved installation and furnishing of all plumbing for new buildings at Northwest High School.

Ponderosa had pleaded a general denial and other matters. Because of the instructed verdict denying recovery to Phoenix, it is incumbent upon us to determine if the statement of facts and transcript in this case reveal that Phoenix has introduced some probative evidence on each of the elements of proof which it must establish. Koenning v. Manco Corporation, 521 S.W.2d 691, 699 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.).

Evidence in the record supporting the position of Phoenix must be accepted as true and all conflicts and inconsistencies must be resolved in Phoenix’s favor. Constant v. Howe, 436 S.W.2d 115 (Tex.1968). Phoenix, in its brief, pointed to statement of fact pages which it said reflected:

1. Existence of the contract;
2. Terms of the contract;
3. Amount Phoenix was paid by Ponde-rosa;
4. Receipt by Ponderosa of McGregor Act claim;
5. Personal knowledge of Jack Sommer-field of project;
6. Letter from Ponderosa to Phoenix to Phoenix offering Phoenix money.

Ponderosa contends that there was no evidence that:

1. The contract was completed or performed by Phoenix according to the terms of the contract;
2. The witness Sommerfield was able or qualified to testify to work done, materials furnished, compliance with contracts’ terms, completion, quality of work, labor or materials actually furnished;
3. Phoenix, at the time of trial, was in existence and there was no evidence of assignment to any other entity or person was offered showing a right to prosecute the action.

Sommerfield, who was a former vice-president of Four Square Construction Company, a former partner in Phoenix, testified in answer to the question “(D)id Phoenix Mechanical or its employees perform all the labor on this project?” as follows: “Yes. Well, we subcontracted a part of the work to another firm toward the completion of the job.” He also testified to supervising the completion of the job from his office through the subcontractor Phoenix had engaged; as well as going on the site twice.

Sommerfield stated that to the best of his knowledge the job was substantially performed based on his knowledge of the contract and his visits to the site. He also testified on cross-examination that: he was executive personnel of Phoenix; and he never had a plumber’s license or a mechanical engineer’s license or degree. In answer to “And when you go out on a job yourself, you really can’t tell a whole lot about what belongs there and what don’t belong there, whether a pipe is in the wrong spot or whether a slab is not proper, you do not have the capability of determining this type of situation do you?” He replied, “I would say not.”

Sommerfield went further to say that he could determine whether materials were on site that were supposed to be and if certain tasks had been accomplished. Also he could see if a lavatory was on a wall where it was supposed to be.

Phoenix introduced plaintiff’s exhibit number 6, a letter typed on Ponderosa stationery which was as follows:

“May 29, 1973
“Phoenix Mechanical & Electrical of Texas
P. 0. Box 18207
Dallas, Tx 75218
“Attn: Messers. James R. Ellis and Jack Summerfield
“Re: Northwest High School—
Justin, Texas
“Dear Sirs:
“We have been instructed by the architect, to paint the shower floors with swimming pool paint, and install vinyl asbestos tile in the remaining area of the dressing rooms in gymnasium area at Northwest High School. The cost for these items amount to $1,234. We are deducting this from your contract balance, which leaves a balance of $7,024.70. “We are meeting with the School Board Friday Night, June 1, during their graduation exercises and dedication of these buildings. If the School Board sees fit to pay me the retainage they are presently holding, I will forward a check to you no later than Monday, June 4, for $7,024.70, that will represent full and final payment on our contract amount.
“Sincerely,
/s/ “Thomas H. Pelt
“President
“cc - Mr. Robert Cobb
Mr. E. Hamilton Guice
Mr. Truett Wilson, Supt. of Schools
“THP/msm”

Phoenix urges that this letter is an offer of settlement of a disputed claim between it and Ponderosa and evidence of its having completed performance. Considering the letter in the context of all the other evidence favorable to Phoenix and the fact that it is conditioned upon the payment from the school board to Ponderosa of re-tainage it was holding, plus the recitation of $1,234.00 to be withheld for painting the shower floors and installation of asbestos tile on the dressing room floors, we hold the letter not to be evidence of substantial completion of satisfactory performance by Phoenix. The inference of completed performance that the letter raises is opposed by an inference of faulty performance which is also raised by the letter and is equally reasonable and plausible. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 365 (1960); Western Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). We overrule point of error number one.

Phoenix sued Commercial Standard alleging it to be the provider of a payment bond provided under Tex.Rev.Civ.Stat.Ann. art. 5160, § A(b), for the protection of claimants supplying labor and material for the Northwest High School project. Trial court refused to admit a Xerox copy (plaintiff’s exhibit number 5) of what Phoenix claimed was the payment bond. Phoenix urged its admission under the best evidence rule. It made no effort to explain the absence of the original or a certified copy thereof. No bill of exception was made to the trial court’s refusal of the exhibit.

Phoenix complains, in its brief, that trial court did not correctly apply the best evidence rule in denying its offer of plaintiff’s exhibit number 5, its alleged payment bond. Commercial Standard correctly points out that this court has no record to consider on this point as to the existence, nature or contents of such exhibit, since no bill of exception was made. Gillum v. Temple, 546 S.W.2d 361 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.). For this reason, as well as the fact that we have overruled point of error number one, we overrule point of error number two.

We affirm.


source: Caselaw Access Project

author: CLAYTON, Justice. KEITH, Justice,

license: Public Domain

text:
    COUNTY OF BRAZORIA, Appellant, v. Gary A. RADTKE, Appellee.
    No. 8099.
    Court of Civil Appeals of Texas, Beaumont.
    April 20, 1978.
    Rehearing Denied May 18, 1978.

      A. B. Crowther, Jr., Angleton, for appellant.
    Vaughan 0. Stewart, Lake Jackson, for appellee.
   CLAYTON, Justice.

Plaintiff below, Radtke, filed suit against the County of Brazoria and George Adkis-son (a deputy sheriff for Brazoria County), under the provisions of Tex.Rev.Civ.Stat. Ann. art. 6252-19 (1970), as amended (Supp. 1978) (hereinafter referred to as the Texas Tort Claims Act), for damages for personal injuries sustained in an automobile accident involving plaintiff and Adkisson. Trial was to a jury, and judgment was entered on the jury verdict in favor of plaintiff and against Brazoria County and Adkisson, jointly and severally, in the amount of $65,-000. Brazoria County only has perfected its appeal.

The evidence shows that the automobile accident occurred while deputy sheriff Ad-kisson was engaged in his duties investigating a criminal offense. Adkisson had lost control of his automobile as it went into a spin and collided with an automobile being driven by plaintiff. It is undisputed that Adkisson was not on an emergency call at the time.

The jury found in answer to special issues that defendant Adkisson was negligent in his operation of the automobile and that such negligence proximately caused the collision. Additionally, the jury found that Brazoria County was negligent in failing to properly train and supervise Adkisson in his operation of the vehicle, and this negligence proximately caused the collision. Adkisson and Brazoria County were held jointly and severally liable on findings that Adkisson’s negligence was 60 percent responsible and Brazoria County’s negligence 40 percent responsible for the accident.

Appellant’s first point of error presents no ground for reversal. Complaint is made that the trial court erred in “refusing to grant defendant’s motion to dismiss and/or motion for summary judgment.” An order denying a motion for summary judgment is interlocutory and not appealable. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966); Haynes v. Dunn, 518 S.W.2d 880, 886 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). This point is overruled.

It is the basic and primary contention of appellant that the County is not liable under the Tort Claims Act for the acts of its deputy sheriff in the negligent operation of a motor vehicle used in the performance of his duties as deputy sheriff. Appellant has admitted, in response to interrogatories, that the vehicle being operated by the deputy sheriff at the time of the collision was leased to the County and was used by the County as a patrol car by the County Sheriff’s Department, that Adkisson was employed by the County as a deputy sheriff, and that on the occasion in question Adkis-son was acting within the course and scope of his employment with the County.

Appellant argues that the sheriff is the “unit of government” which is liable for the acts of his deputy under the Tort Claims Act, and the County is a separate “unit of government” and cannot be liable for the acts of the deputy sheriff for the reason that the County does not have the legal right to control the details of the tasks assigned to a deputy sheriff. We do not agree.

Section 3 of the Texas Tort Claims Act provides that:

“Each unit of government shall be liable for money damages for personal injuries when proximately caused by the negligence ... of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle under circumstances where such officer or employee would be personally liable to the claimant . . . .”

Counties are included within the definition of “unit of government” under Sec. 2(1) of the Tort Claims Act. Sec. 2(2) provides: “ ‘Scope of employment’ or ‘scope of office’ shall mean that the officer, agent or employee was acting on behalf of a governmental unit in the performance of the duties of his office or employment or was in or about the performance of tasks lawfully assigned to him by competent authority.”

Sec. 2(3) of the Act provides: “ ‘Officer, agent or employee’ shall mean every person who is in the paid service of any unit of government by competent authority, whether full or part-time, whether elective or appointive, and whether supervisory or non-supervisory, it being the intent of the Legislature that this Act should apply to every person in such service of a unit of government, save and except as herein provided. Such definition, however, shall not include an independent contractor . or any person performing tasks the details of which the unit of government does not have the legal right to control.” (Emphasis added.)

Under the provisions of the Sections 2, 2(1), 2(2), and (3) of the Tort Claims Act, the sheriff of Brazoria County is not a separate “unit of government” against which suit should be brought and recovery be allowed. We note that Sec. 11 of the Act provides: “For the payment of any final judgment obtained under the provisions of this Act, a unit of government . is hereby authorized to levy an ad valorem tax . . . .” There can be no question but that the sheriff of a County has no authority to levy an ad valorem tax for the purpose of paying a judgment awarded against him or his department.

Appellant relies heavily upon that portion of Sec. 2(3) of the Act which excepts from the definition of officer, agent, or employee, “any person performing tasks the details of which the unit of government does not have the legal right to control.” Appellant argues that since the County has no right to control the actions of a deputy sheriff, the deputy sheriff is not an employee of the County, and therefore the County is not liable for his acts under the terms of the Tort Claims Act. To give such a construction to that section of the Act would defeat the express provisions of the same section of the Act wherein it is stated, “. it being the intent of the Legislature that this Act should apply to every person in such service of a unit of government . . .”

In construing an act of the Legislature our Supreme Court in Woods v. Littleton, 554 S.W.2d 662, 665 (Tex.1977), states the rule as follows:

“ ‘The fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof. This Court has repeatedly held that the intention of the Legislature in enacting a law is the law itself; and hence the aim and object of construction is to ascertain and enforce the legislative intent, and not to defeat, nullify, or thwart it. . . . It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather that the strict letter of the act will control.’ City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951).”

In following the rule of construction stated in Woods v. Littleton, supra, it is our opinion that the provision of Sec. 2(3) of the Act wherein it is stated “ ‘officer, agent or employee’ shall mean every person who is in the paid service of any unit of government by competent authority . . . .” is to be construed as meaning any employee who is in the paid service of the county who has been duly appointed or employed by “competent authority” — in this instance the sheriff. The sheriff is an officer within the meaning, of Sec. 2(3) of the Act, and the sheriff has the legal right to control the tasks of his employee. To give this section of the Act any other construction would be to hold that the County is only liable for the acts of the employees directly employed by the members of the Commissioner’s Court. This construction would be in direct contravention of the expressed intentions of the Legislature. We accordingly hold that under the provisions of the Tort Claims Act, the County is liable in damages for injuries or death proximately caused by the negligent acts of a deputy sheriff of the County.

Appellant further contends the plaintiff’s injuries were connected with an act arising out of the method of providing police protection, and for such reason the County is not liable in damages for such injuries.

Sec. 14 of the Tort Claims Act provides:

“The provisions of this Act shall not apply to:
“(9) Any claim based on an injury or death connected with any act or omission arising out of . . the method of providing police . . . protection.”

Appellant argues the above quoted Sec. 14 of the Tort Claims Act applies to this case and relies upon Lloyd v. University of Texas, 524 S.W.2d 958 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.—Amarillo 1972, no writ); and Little v. Schafer, 319 F.Supp. 190 (S.D.Tex.1970). In the cases cited by appellant the claimant was actually under arrest or incarcerated at the time the acts complained of were committed — all of such acts being properly determined by the court as being a method of police protection. Since these cases do not involve motor vehicle accidents, they are not dispositive of the issue in our case.

In determining the meaning of this section, we must ascertain the legislative intent by reviewing the entire act. See Woods v. Littleton, supra at 665. Sec. 3 establishes governmental liability for the negligent operation of a motor vehicle by a government officer or employee. Sec. 14(8) exempts governmental units from liability for “[a]ny claim arising out of the action of an officer, agent, or employee while responding to emergency calls or reacting to emergency situations . . . .” After considering these provisions in conjunction with Sec. 14(9), we conclude that the Legislature did not intend to exempt governmental units from liability for claims arising out of the negligent operation of a motor vehicle by a police officer in a non-emergency situation.

Appellant’s third point urges “the trial court erred in failing to grant Brazoria County’s motion for judgment N.O.V.” The reason for such error argued by appellant is that the County cannot be liable for the failure to perform a discretionary act, i. e., the training and supervision of a deputy sheriff. We agree.

Sec. 14(7) of the Tort Claims Act states in part:

“Sec. 14. The provisions of this Act shall not apply to:
“(7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.”

We have not found any statute requiring the County to train and supervise a deputy sheriff. However, in our view heretofore expressed as to the liability of the County, the issues with reference to the training and supervision do not constitute reversible error. This point is overruled, and appellant’s points Nos. two and four are overruled for the same reasons.

Even though the jury found the County 40 percent negligent and defendant Adkisson 60 percent negligent, the County being liable for the damages sustained by plaintiff, the trial court properly entered judgment against the County and Adkisson, jointly and severally, for the entire amount of damages awarded by the jury.

No error being shown, the judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

concurring.

I adopt the words of Chief Justice Green-hill, used in a different context, as applicable to my difficulty with the provisions of the Texas Tort Claims Act now under review. In Lowe v. Texas Tech University, 540 S.W.2d 297, 301 (Tex.1976), our Chief Justice, concurring, said:

“Speaking at least for myself, it is difficult to understand the language of the present statute and to apply it.”

Sec. 14(8) of the Act exempts police officers only when responding to emergency calls or situations and then only when such action “is in compliance with the laws and ordinances applicable to emergency action.” This provision does not aid either Adkisson or Brazoria County under our record.

Sec. 14(9) may have application to this case since the plaintiff sustained his injury because of Adkisson’s negligent act of operating the automobile and that such injuries arose out of the method of providing police protection which had been adopted by Bra-zoria County.

However, under the liberal construction provision (Sec. 13) of the Act, I am persuaded that such a construction should not be adopted. In this instance, Brazoria County has suffered a judgment amounting to $65,000 — the next time, a small or poorer county may be subjected to a judgment up to $300,000. I quote again from the Chief Justice’s comments in Lowe, supra: “[I]t would be very helpful if it [the Legislature] would give litigants and the courts guidelines which are easier to follow.” (540 S.W.2d at 303)


author: AKIN, Justice.

text:
    Cliff SLAGLE, Relator, v. Ron KESSLER, Respondent.
    No. 22274.
    Court of Civil Appeals of Texas, Dallas.
    April 25, 1978.

      Ronald A. Dübner, Dubner, Weinstein & Bell, Dallas, for relator.
    F. Michael Prince, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for respondent.
   AKIN, Justice.

Relator, a Democratic precinct chairman of Dallas County, has asked leave under Tex.R.Civ.P. 383 to file a writ of mandamus pursuant to Tex.Rev.Civ.Stat.Ann. Art. 1735a (Vernon Supp.1978) against Ron Kes-sler, Dallas County Democratic Party Chairman. Relator seeks to compel Kessler to call a meeting of the Dallas County Democratic Executive Committee to obtain approval of the committee for monies spent from the primary fund and other funds. We deny leave to file because we lack jurisdiction under art. 1735a.

Relator Slagle predicates his motion for leave to file his petition for a writ of mandamus on the ground that art. 13.43b(5) of the Texas Election Code provides that mandamus will lie to enforce the rules of the Democratic Party. Relator in his petition for mandamus alleges that respondent during his tenure as chairman has collected monies, both privately and from the State, and has made expenditures of “primary funds” and general revenues of the executive committee without obtaining approval of fifty-one percent of the committee, citing art. 3, sec. B(7) of the rules of the Democratic Party. Thus, the petition raises two questions concerning the alleged duties of the county chairman, one with respect to the funds for holding the primary, and the other with respect to other funds collected by the chairman.

With respect to funds other than primary funds, we have no jurisdiction to grant mandamus because any duty he may have with respect to these funds is not a duty “in connection with” the holding of the primary election. Our jurisdiction under art. 1735a to grant mandamus against party officers is clearly limited by law to a duty “in connection with the holding of any general election.” Oney v. Ammerman, 458 S.W.2d 54 (Tex.1970).

With respect to the primary funds, a different question is presented because these obviously are funds specifically to be used for the conduct of the primary elections. Relator, in support of his petition for mandamus, points to art. 13.08a(d) which provides that “expenses properly incurred by or on behalf of the county executive committee for the conduct of the primary elections shall be paid from the primary fund, in the manner authorized by the committee.” [Emphasis added] He argues that although the county chairman may be responsible for the payment of the primary election expenses under art. 13.08a(e), this responsibility comes only after authorization by the executive committee. In this respect, he reasons that since art. 13.43b(5), pertaining to party rules, states that “rules as filed with the Secretary of State shall govern the conduct of . meetings of the executive committee,” and since art. 3, sec. B(7) of the party rules provides that “expenditures of funds by the county executive committee, unless otherwise specified by law, shall require the approval of at least fifty-one percent (51%) of the members of said committee,” [emphasis ours] it follows that the chairman has a duty to call a meeting of the executive committee in advance of the primary election in order to obtain approval by the committee of the manner in which he proposed to spend the primary funds in holding the election, and that this court has jurisdiction to compel the performance of that duty under art. 13.43b(5). We cannot agree.

The question is whether the Democratic Party rule requiring approval by 51% of the executive committee imposes a duty on the county chairman “in connection with the holding of an election.” We hold that it does not because the Secretary of State of Texas, not the county executive committee, has authority to approve or disapprove all primary election expenses. Article 13.08a provides that each county chairman shall submit to the secretary of state at least thirty days prior to the primary election a sworn statement of all filing fees and contributions received and an itemized estimate of the cost of holding the primary. This section then provides:

The secretary of state shall review the estimate and shall notify the chairman of any items which he has disallowed as unauthorized or excessive expenditures. Expenditures may be allowed only for those purposes which are properly payable out of the primary fund under existing law as established by the statutes, court decisions, and administrative rulings of this state. Any other provision of this code notwithstanding, the secretary of state shall pay for expenditures which in his discretion, are reasonably necessary for the proper conduct and supervision of the primary elections under the provisions of this code, [emphasis added]

Since the payment and the amount of expenditures necessary for holding a primary election are within the authority of the secretary of state, we conclude that neither the code nor the party rules impose a duty on the county chairman to obtain a vote of fifty-one percent of the executive committee to approve these expenditures. This is true since the provision of the party rules, relied upon by relator, contains the proviso “unless otherwise prescribed by law” and the legislature has “otherwise prescribed by law” the precise and detailed method for providing adequate funds for holding primary elections. In so doing, the Legislature has placed this responsibility upon the secretary of state rather than the county executive committee.

To hold as relator would have us do would permit a majority of the executive committee to frustrate the legislative intent to provide adequate funds for holding primary elections. If the view advanced by relator were law, fifty-one percent of the executive committee could prevent, at least for all practical purposes, a primary election by refusing, for whatever reason, to approve expenditures. Indeed, the same would be true if less than fifty-one percent of the committee attended a meeting to approve expenditures of the primary fund. To ascribe such an intent to the Legislature would be absurd. We hold, therefore, that whatever duty the county chairman has to seek authorization by the executive committee before spending party funds, that duty is not one “in connection with the holding” of the primary election. Accordingly, we have no jurisdiction under art. 1735a.

If the majority of the executive committee desires an accounting from the county chairman of expenditures made by him out of the primary fund and other funds, they may seek relief in a court of proper jurisdiction.

Motion denied.

      . All references are to the Tex.Election Code Ann. (Vernon 1967) unless otherwise specified.

      . Primary funds are defined in art. 13.18(5) of the Texas Election Code (Vernon Supp.1978).


author: GUITTARD, Chief Justice.

text:
    Ronald W. KESSLER et al., Appellants, v. Don RAINES et al., Appellees. Don RAINES et al., Petitioners, v. Ronald W. KESSLER, Chairman of the Dallas County Democratic Executive Committee, et al., Respondents.
    Nos. 19630, 19626.
    Court of Civil Appeals of Texas, Dallas.
    April 26, 1978.
    George W. Bramblett, Jr., William R. Al-lensworth, Haynes & Boone, Dallas, for appellants in No. 19626.
    Kelsoe & Ayers, Robert L. Kelsoe, Dallas, for appellees, in No. 19626.
    G. H. Kelsoe, Kelsoe & Ayers, Dallas, for petitioners, in No. 19630.
    William R. Allensworth, George W. Bramblett, Jr., Haynes & Boone, Dallas, for respondents, in No. 19630.
   GUITTARD, Chief Justice.

Both of these proceedings present the question of whether Don Raines is entitled to have his name placed on the ballot in the Democratic primary for nomination to the office of County Commissioner. We hold that he is so entitled.

The material facts are undisputed. Petitioner Raines presented to respondent, Democratic County Chairman Ronald Kes-sler, a nominating petition in lieu of the filing fee, as permitted by Tex.Election Code Ann. art. 13.08(d) (Vernon 1978). The notary public certifying the affidavits of some of the persons who authenticated the signatures on the petition was the candidate’s wife, who was herself active in soliciting other signatures. On the sole ground of disqualification of the notary, the Dallas County Democratic Executive Committee, acting on the recommendation of its primary committee, denied petitioner Raines a place on the primary ballot. Raines filed an action in the district court against Kes-sler, as Democratic County Chairman, and Harris Hill, as Secretary of the Dallas County Democratic Executive Committee, for a judgment declaring his petition sufficient. Larry Scott, a member of the executive committee, was permitted to intervene. The district court rendered judgment declaring the petition sufficient, and the in-tervenor, as well as the chairman and secretary, have appealed.

The intervenor, as appellant in this court, moved to dismiss the declaratory judgment action for mootness on the ground that not enough time remained for action by this court on a motion for rehearing and by the supreme court on an application for writ of error before the statutory date for beginning absentee voting. In response, appellee Raines filed in this court an original petition for mandamus under article 1735a, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978) to require the party officers to place his name on the ballot. Intervenor Scott is named as a respondent in this proceeding, although no relief is sought against him. Oral argument in both matters was heard in this court on April 14, 1978. In the course of the argument, counsel for Raines and counsel for the party officers stipulated for the purpose of the mandamus proceeding that Raines’s nominating petition is sufficient unless his wife was disqualified to act as notary. Intervenor did not join in this stipulation.

After the argument we deliberated and then announced our decision granting the writ of mandamus and dismissing the action for declaratory judgment as moot because all matters presented in that action have been disposed of by granting the writ. We now state our reasons for that decision.

Respondents contend that the candidate’s wife could not act as an impartial officer to administer the oath to the persons who swore to the authenticity of the signatures and the other requirements of article 13.-08(d) and to make a proper certificate of their sworn statements, because of her relationship to the candidate and also because she was herself active in obtaining other signatures on the petition. They rely on authorities from other jurisdictions concerning petitions having to do with elections and on Texas cases concerning acknowledgments on deeds and other legal instruments.

We conclude that none of the authorities cited are persuasive here. The principal authority cited by respondents, Citizens’ Committee to Recall Rizzo v. Board of Elections, 367 A.2d 232 (Penn.1976), concerned a petition for recall of the mayor of Philadelphia. In that case the petition was held invalid on various grounds, including the ground that one of the notaries who certified the signatures on the petition was himself active in soliciting signatures. This holding is not helpful in determining the validity of a nominating petition under article 13.08(d) because Texas election officials have no authority to inquire into such matters. In Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954), the supreme court held that the secretary of state, in determining the sufficiency of a nominating petition for an independent candidate in a general election, could not consider affidavits showing that certain signatures were procured by fraud. The court pointed out that the authorities charged with the responsibility to make up the ballot would have an impossible task if they were required to look beyond the public records to determine the validity of petitions that appear sufficient on their face. Likewise, in Garcia v. Carpenter, 525 S.W.2d 160, 161 (Tex.1975), the supreme court held that a candidate for mayor could not be kept off the ballot on the ground that he had given testimony in a previous case indicating that he had not satisfied the residence requirement of the Code.

By the same reasoning, we hold that the county executive committee, in determining the sufficiency of nominating petitions under article 13.08(d), cannot inquire into the relationship of the notaries to the candidate or their activities in obtaining signatures on the petition. If sworn accusations of outright fraud must be disregarded, as held in Weatherly, there is greater reason to disregard a charge of technical disqualification of the notary for interest or for relationship to the candidate, when no fraud is shown, and, indeed, when freedom from fraud is conceded.

Neither is any help to be found in decisions concerning the disqualification of notaries to take acknowledgments on the ground of financial interest. Respondents cite cases holding that such an interest renders an acknowledgment void. Gulf Production Co. v. Continental Oil Co., 139 Tex. 202, 132 S.W.2d 553, 568 (1939), opinion withdrawn, 139 Tex. 183, 164 S.W.2d 488 (1942), and Bexar Building & Loan Ass’n v. Heady, 21 Tex.Civ.App. 154, 50 S.W. 1079, 1080 (1899, writ ref’d). Other cases supporting this rule include McGee v. Stark, 127 S.W.2d 589, 590-91 (Tex.Civ.App.—Beaumont 1939, writ dism’d, jdgmt. cor.), and Clements v. Texas Co., 273 S.W. 993, 1004 (Tex.Civ.App.—Galveston 1925, writ ref’d). Doubt has been cast on this rule by the holding in Phillips v. Brazosport Savings & L. Ass’n, 366 S.W.2d 929, 932 (Tex.1963), that in the absence of allegations of fraud, bad faith, or undue influence, articles of association of a building and loan association are not rendered void by the fact that one of the signers acted as a notary to take acknowledgments of the other signers.

The narrow scope of a notary’s disqualification for financial interest is shown by the holding in W. C. Belcher Land Mortgage Co. v. Taylor, 212 S.W. 647 (Tex.Comm’n App.1919, jdgmt. adopted), that an acknowledgment is not void because of the indirect financial interest of a notary whose name does not appear on the face of the document. Moreover, decisions concerning acknowledgments do not necessarily govern the validity of affidavits, in view of cases holding that an attorney of record is not disqualified as a notary to take his client’s affidavit. These cases rest on the ground that the act of administering an oath is ministerial, as distinguished from the quasi-judicial act of taking an acknowledgment. Forest Oil Co. v. Wilson, 178 S.W. 626, 627 (Tex.Civ.App.—Fort Worth 1915, no writ); and see Ryburn v. Moore, 72 Tex. 85, 10 S.W. 393, 394 (1888).

Even if the rule concerning the disqualification of notaries for financial interest applies to affidavits, then, under the above authorities the scope of that rule is not broad enough to cover the candidate’s wife, who had no immediate financial interest in the nominating petition, although, presumably, if her husband should be elected, his salary would be community property. In the present situation, as respondents concede, the more pertinent inquiry is her personal interest as the candidate’s wife and active supporter, but, under the authorities already discussed, that kind of interest is not a matter that the county committee may inquire into. Consequently, we hold that the party officers have a clear duty to accept the petition and place petitioner’s name on the ballot in the primary election for nomination to the office of county commissioner.

This holding is consistent with our decision in Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.—Dallas 1976, no writ), in which a nominating petition was held insufficient for failure to comply with an explicit requirement of the Code. It is the only decision consistent with the public policy of simplicity and clarity in interpreting the election laws. The Election Code itself contains no provision concerning the qualifications of notaries who must certify the affidavits on nominating petitions. As we have seen, other authorities on the qualification of notaries give no clear guidance. Yet candidates and election officials must have clear and simple rules for determining such matters so that the election process may proceed fairly and expeditiously.

Finally, we must consider the contentions of intervenor Scott, who did not join in the stipulation that the nominating petition is otherwise sufficient and now urges that petitioner Raines, in his application for mandamus, has not established the validity of the petition as against other challenges. We hold that Scott has no standing to raise these questions in the mandamus action. Though named as a respondent in the petition for mandamus, no relief is sought against him. If the county committee has determined that the nominating petition is otherwise sufficient, any interested person attacking that decision has the burden of establishing it to be erroneous in a proper proceeding brought for this purpose. No such proceeding is now before us.

For these reasons, we hold that petitioner Raines has grounds for issuance of a writ of mandamus requiring the party officers to place his name on the ballot in the Democratic primary as a candidate for county commissioner. Since we understand that respondents have already complied with our ruling, actual issuance of the writ will not be necessary. As a result of this action, the declaratory judgment appealed from is reversed and that proceeding is dismissed for mootness.


author: SPURLOCK, Justice.

text:
    CITY OF WICHITA FALLS, Appellant, v. Charlotte ABELL et al., Appellees.
    No. 17988.
    Court of Civil Appeals of Texas, Fort Worth.
    April 27, 1978.
    Rehearing Denied May 25, 1978.

      H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant.
    Fillmore, Lambert, Farabee, Purtle & Lee, Clyde Fillmore, Wichita Falls, for ap-pellee Charlotte Abell.
    Elmer H. Parish, Wichita Falls, for inter-venor.
   OPINION

SPURLOCK, Justice.

Appellees sought to have Ordinance No. 3046 of the City of Wichita Falls, Texas, (Section 4-24 of the Code of Ordinances) declared unconstitutional and invalid, to permanently enjoin the defendant city (appellant) from enforcing such ordinance, and to order the city secretary to certify that no provisions of the City Charter or any ordinance places any limitations on the sale of alcoholic beverages at two specific locations in Wichita Falls. The trial court rendered judgment declaring the city ordinance to be unconstitutional and void and granted the relief sought. From this judgment, the City of Wichita Falls has perfected its appeal.

We affirm.

All of the facts were stipulated by the parties. For the purposes of this opinion, we shall only set forth the facts that are applicable to Charlotte Abell, due to the great similarity of the stipulated facts as to her (except for dates and specific locations) with the stipulated facts applicable to the intervenors. The important facts are as follows:

(1)Charlotte Abell has made application for a Wine and Beer Retailers Off-Premises Permit for her business located at 1211 Broad Street, Wichita Falls, Texas.

(2) She presented the application for said permit to the city secretary of the City of Wichita Falls, Texas; she sought to have the city secretary certify that her business location was in a wet area of the city and that the sale of alcoholic beverages for which the permit was being sought was not prohibited by the City Charter or ordinances.

(3) The city secretary refused to execute the requested certificate.

(4) City Ordinance No. 3046 (Sec. 4-24, Code of Ordinances of the City of Wichita Falls) was enacted on January 20,1976, and has been in full force and effect since that time.

(5) The distance from plaintiff’s place of business to Austin School, measured in a straight line from a main wall of the building located at 1211 Broad Street to a main wall of Austin School as required by said City Ordinance No. 3046 is less than 300 feet.

(6) The distance from 1211 Broad Street, plaintiff’s place of business, to Austin School, measured along property lines and from front door to front door, as required by Art. 666-25a of Vernon’s Revised Civil Statutes is more than 300 feet.

(7) The only reason for the refusal to execute the certification sought by Charlotte Abell was because of the provisions of Ordinance No. 3046.

(8) 1211 Broad Street is located in a “wet area” of Wichita Falls, Texas, where the sale of alcoholic beverages for off-premises consumption is authorized by Section 4 — 18, Code of Ordinances, City of Wichita Falls, Texas, except as negated and prohibited by Ordinance No. 3046.

(9) Charlotte Abell was and is the lessee of the property located at 1211. Broad Street, Wichita Falls, Texas.

(10) The City of Wichita Falls is a home rule city.

By its sole point of error, the City of Wichita Falls contends that the trial court erred in holding that Ordinance No. 3046 “of the City of Wichita Falls is unconstitutional and void as being in conflict with Article 666-25a of Vernon’s Revised Civil Statutes (now Section 109.33 of the Alcoholic Beverage Code.)”

At the time of trial, Texas Liquor Control Act art. 666-25a (1976 Pamphlet) was in force. It provided:

“The Commissioners’ Court of any county in the territory thereof outside incorporated cities and towns and the governing authorities of any city or town within the corporate limits of any such city or town may prohibit the sale of alcoholic beverages by any dealer where the place of business of any such dealer is within three hundred (300) feet of any church, public school or public hospital, the measurements to be along the property lines of the street fronts and from front door to front door and In direct line across intersections where they occur.” (Emphasis added.)

The Board of Alderman of the City of Wichita Falls enacted Ordinance No. 3046, which provides:

“The sale of alcoholic beverages within the city by any dealer with a place of business of such dealer within three hundred (300) feet of any church, state-supported public school, parochial school or public hospital, the measurement to be in a straight line from a main wall of the building in which the beverages are sold to a main wall of the other establishment, is hereby prohibited. (Ord. No. 2491, § 11, 3-4-69; Ord. No. 3046, 1-20-76).” (Emphasis added.)
Tex.Const. art. 11, § 5 (1955) provides: “Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State ; . . . As amended Aug. 3, 1909, proclamation Sept. 24,1909; Nov. 5,1912, proclamation Dec. 30, 1912.” (Emphasis added.)

Tex.Rev.Civ.Stat.Ann. art. 1165 (1963) provides:

“Cities having more than five thousand inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature. No charter or any ordinances passed under said charter shall contain any provision inconsistent with the Constitution or general laws of this State; . .. Acts 1913, p. 307.” (Emphasis added.)

As the City of Wichita Falls concedes in its brief, the only question in this case is whether Ordinance No. 3046 is inconsistent (or in conflict) with Article 666-25a of the Texas Liquor Control Act.

In the case at bar, the city has attempted by ordinance to change the method of measuring the distance set forth by the Legislature in Texas Liquor Control Act art. 666-25a (1976 Pamphlet).

In seeking to uphold its ordinance, the City of Wichita Falls has placed great reliance upon the dissenting opinion by Justice Stephenson in Royer v. Ritter, 531 S.W.2d 448 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). The City of Wichita Falls wishes us to follow the dissenting opinion in Royer, despite the fact that the Supreme Court gave the majority opinion a “writ ref’d n. r. e.” notation. In Royer, the City of Beaumont prohibited package stores within the city limits from engaging in business on four holidays when, under the Texas Liquor Control Act, they would be authorized to operate, and on the other days of the year, the ordinance required that package stores close at 8 P.M., whereas the Texas Liquor Control Act permitted them to remain open until 9 P.M. In- declaring the city ordinance void, Chief Justice Dies, in the majority opinion, wrote:

“If the Legislature had intended for the City Council to have the authority to extend the time of closing or opening of package stores from the state provision, it could have said so. Having failed to do so, we believe they (the Legislature) intended the provision for closing in the act to be statewide and exclusive. (Citing cases.)” Id. at 450.

As the court wrote in Murphy v. Wright, 115 S.W.2d 448, 451 (Tex.Civ.App.—Fort Worth 1938, no writ):

“The fact that the city of Denton is one chartered under the home rule amendment to the Constitution and the Enabling Acts by the Legislature thereto, does not authorize it to ignore general statutes enacted by the Legislature on the same subject. . . . ”

By ordinance, the City of Wichita Falls has attempted to alter the method of computing the distance where it may prohibit the sale of alcoholic beverages. If the city ordinance were allowed to stand in this case, the result would be to make illegal that which is legal under the laws of the State of Texas. We hold that Ordinance No. 3046 of the City of Wichita Falls is in conflict with the general laws of the State on the subject, which at the time of trial, was Texas Liquor Control Act art. 666-25a (1976 Pamphlet). See Tex.Rev.Civ.Stat. Ann. art. 1165 (1963). We hold that Ordinance No. 3046 of the City of Wichita Falls is unconstitutional,. because under Tex. Const, art. 11, § 5 (1955), no charter or ordinance of a home rule city “shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; . ” The City of Wichita Falls’ sole point of error is overruled.

The judgment of the trial court is affirmed.

        . Effective September 1, 1977, the Texas Alcoholic Beverage Code became effective. With certain modifications, the language that was previously used in Texas Liquor Control Act art. 666-25a (1976 Pamphlet) can be found at Alcoholic Beverage Code § 109.33 (1977 Pamphlet).


author: McDONALD, Chief Justice.

text:
    COWHOUSE DAIRY, INC., et al., Appellants, v. AGRISTOR CREDIT CORPORATION, Appellee.
    No. 5894.
    Court of Civil Appeals of Texas, Waco.
    April 27, 1978.
    Rehearing Denied May 25, 1978.

      Andy J. McMullen, McMullen, Connally, Robertson, Jordan, Holliman & Campbell, Inc., Hamilton, for appellants.
    Joseph Robert Riley, Segrest, Mills, Cameron & Riley, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

Plaintiff Agristor sued: 1) Defendants Cowhouse and the Parrishes on 3 notes aggregating $253,870., foreclosure of security interest on equipment securing same, plus reasonable attorneys’ fees; 2) defendants Parrish on a land note, foreclosure of Deed of Trust and Vendor’s lien securing same, plus reasonable attorneys’ fees.

Defendants answered by a general denial.

Trial was before the court which rendered judgment to plaintiff for:

1) $253,870.33 against all defendants on the 3 notes, foreclosure of security interest on equipment, plus $32,114.11 reasonable attorneys’ fees.
2) $2,399.48 against Cowhouse for collecting the property in which plaintiff held security interest.
3) $132,725.97 against the Parrishes on the land note, foreclosure of Deed of Trust and Vendor’s lien on 711 acres securing such note, plus $13,272.60 reasonable attorneys’ fees.

Defendants appeal only from that portion of the judgment awarding: 1) One-half recovery of the $132,725.97 on the land note, plus one-half of the $13,272.60 attorneys’ fee; 2) The $2,399.48 against Cowhouse; 3) The $32,114.11 attorneys’ fees.

The judgment is not appealed from insofar as it awards plaintiffs $253,870.33 on the 3 notes, foreclosure of security interest on property securing same, one-half of the $132,725.97 recovery on the land note, and one-half recovery of $13,272.60 attorneys’ fees.

Points 1 through 7 assert the trial court erred in rendering judgment for more than one-half that which it did on the land note and on the attorneys’ fees for collecting same.

Wayne and Treva Parrish bought 711 acres of land from Eustice Harris and wife Annie Harris in 1970, and signed vendor’s lien note for $128,650.19 payable to Eustice Harris. The record reflects that Eustice Harris is dead, that Annie Mae Harris was his wife, and that “Annie Mae Harris, Individually and as Independent Executrix of the Estate of Eustice Harris” transferred and sold the note together with the vendor’s lien securing same to plaintiff Agri-stor. Defendants contend there is no evidence that Eustice Harris’ will contained a provision which authorized the Independent Executrix to sell assets of the estate; that the transfer of the note by Annie Mae Harris was only effective to transfer her individual one-half interest, that the other one-half interest is owned by Eustice Harris estate.

We reject the contention. Defendants filed only a general denial. Rule 93 TRCP requires verified denial of the assignment. Section 3.307(b) Texas Business and Commerce Code provides that “where signatures are admitted or established, production of the instrument entitles the holder to recover on it unless the defendant establishes a defense”. And Section 3.306(4) Texas Business and Commerce Code provides “ * * * The claim of any third person to the instrument is not otherwise available as a defense to any party liable thereon unless the third person himself defends the action for such party”. Finally the transfer of the lien to Agristor was signed by Annie Mae Harris which is evidence that Mrs. Harris was the owner of the note. Points 1 through 7 are overruled.

Points 9 through 10 assert the $2,399.48 award against Cowhouse is supported by no evidence, legally insufficient evidence, and factually insufficient evidence. The notes provided Cowhouse to pay all costs of collection. The witness Harbison, Assistant District Manager of Agristor testified to the figure of $2,399.48 as amount of expenses incurred in gathering the assets. He further testified that “just under $2400.” Such is evidence and is ample to sustain the judgment. Points 8 through 10 are overruled.

Points 11 through 13 assert the trial court erred in rendering judgment for $32,114.11 reasonable attorneys’ fees on the 3 notes aggregating $253,870.33.

What sum constitutes a “reasonable” attorneys’ fee is a fact issue. Coker v. Travelers Ins. Co., CCA (Waco) NRE, 553 S.W.2d 421; International Security Life Ins. Co. v. Spray, S.Ct., 468 S.W.2d 347; Coward v. Gateway National Bank of Beaumont, S.Ct., 525 S.W.2d 857. The record before us is ample to support and sustain the trial court’s determination.

Points 11 through 13 are overruled.

AFFIRMED.


author: DUNAGAN, Chief Justice.

text:
    ZODIAC CORPORATION et al., Appellants, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee.
    No. 1119.
    Court of Civil Appeals of Texas, Tyler.
    April 27, 1978.

      Harold B. Sanders, Clark, West Keller, Sanders & Butler, Jack D. Eades, Steven R. McCown, Dallas, for appellants.
    Henry Seeligson, William F. Douglass, Seeligson, Douglass & Falconer, Dallas, for appellee.
   DUNAGAN, Chief Justice.

Appellee, General Electric Credit Corporation, a foreign Corporation, instituted this action in the 162nd District Court of Dallas County, Texas, against Zodiac Corporation, Joseph A. Zavaletta, Rosalinda Zavaletta, Gus Zavaletta, Gloria Rose Zavaletta, Ferdinand Zavaletta, Eleanore Jane Zavaletta, Masao Kinoshita, Alice Kinoshita and James W. Short, seeking payment of a deficiency in the collection of a promissory note executed by defendant, Zodiac, which payment was guaranteed by the individual defendants. The suit was commenced after foreclosure of the security for the promissory note upon certain property located in Cameron County, Texas. This property was purchased by appellant Zodiac Corporation with funds allegedly disbursed under a mortgage note secured by a deed of trust in favor of General Electric Credit Corporation. All the defendants except the Kino-shitas answered and filed pleas of privilege to be sued in Cameron County, Texas, except James W. Short who sought to be sued in Hidalgo County, Texas. The Kinoshitas never filed an answer nor a plea of privilege and are not parties to this appeal.

This is an appeal by Zodiac Corporation and other defendants with the exception of the Kinoshitas from an order overruling their pleas of privilege.

This case arises out of a commercial loan to defendant-appellant Zodiac on February 12, 1974, in the amount of $5,300,000 as evidenced by a promissory note of that date. Only $228,000 was ever funded thereunder. The note was secured among other things by a deed of trust of even date covering real estate in Cameron County, Texas. The individual defendants and the Kinoshitas, all principal stockholders of defendant Zodiac, executed a guaranty agreement, guaranteeing unconditionally, “jointly and severally, the full, punctual and prompt payment and performance.” Thereafter, on more than one occasion, Zodiac defaulted; however, rather than pursue its remedies under the deed of trust, plaintiff-appellee agreed to the execution of a reinstatement agreement with defendant Zodiac on September 23, 1973. By the terms of the agreement, the loan was reinstated, and it provided that appellee Zodiac would pay all past due payments and late charges and would pay all amounts required under the note. Defendant Zodiac again defaulted and plaintiff on January 4, 1977, exercised its rights under the deed of trust and had the security thereunder sold at a trustee’s sale. Nevertheless, as accounted in plaintiff’s original petition, a deficiency existed in the amount of $131,561.29, and a demand for payment thereof was made of all parties, Zodiac and its guarantors. Not receiving payment, appellee filed suit in Dallas County.

All of the appellants being residents of counties other than Dallas County, each filed pleas of privilege to be sued in the respective counties of their residence. Zodiac is a Texas corporation with its offices in Cameron County, Texas. The Zavalettas are all residents of Cameron County; James W. Short is a resident of Hidalgo County, Texas; and the Kinoshitas’ residence is in the State of Massachusetts. Ap-pellee filed its controverting pleas to each plea of privilege submitting Subsections 3, 5 and 29a of Article 1995, V.T.C.S., as being applicable exceptions to exclusive venue in the county of defendant’s residence, thereby seeking maintenance of the lawsuit in Dallas County. These pleas were heard by the trial court without a jury.

Appellants by their points of error Nos. 2 and 3 contend that appellee failed to establish by competent evidence any of the essential venue facts necessary to maintain venue in Dallas County under Subdivisions 3 and 29a of Article 1995, V.T.C.S. Appel-lee in response says that it has established by competent evidence all the essential venue facts necessary to maintain venue in Dallas County under Subdivisions 3 and 29a of Article 1995, V.T.C.S.

Under Section 3 of the Venue Statute it was necessary for appellee to prove that appellants Masao Kinoshita and Alice Kinoshita resided outside the State of Texas, or that their residence was unknown. Appellee alleged in its petition that the Kinoshitas resided in the State of Massachusetts. The only evidence offered in that connection was the testimony of Mr. Joseph C. Mercurio, a loan representative for the appellee, General Electric Credit Corporation, who testified that the Kinoshi-tas lived in Massachusetts. The appellants having offered no evidence as to the residence of their business associates, the Kino-shitas, we consider the foregoing sufficient evidence to sustain the necessary finding of the court that the Kinoshitas did reside without the State of Texas within the meaning of Subdivision 3 of Article 1995. McCarty v. Hinman, 342 S.W.2d 29, 30 (Tex.Civ.App.-Dallas 1960, n. w. h.). Under the venue statute providing that when one or all of the defendants reside without the State, suit may be brought in the county in which the plaintiff resides, existence of a cause of action is not an essential venue fact to be proven. Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758, 763 (1956). Moreover, where a venue fact is one which can be put in issue only by verified pleading and the defendant does not interpose such a plea, plaintiff is not required to prove the same. Ladner v. Reliance Corporation, supra. The Kinoshitas failed to file an answer or a plea of privilege or any other pleading in this case.

Appellee contends that the Kinoshi-tas were necessary parties within the meaning of Subdivision 29a. A necessary party is one whose joinder is required in order to afford the plaintiff the complete relief to which he is entitled against the defendant who is properly suable in that county. Ladner v. Reliance Corporation, supra; Mims v. East Texas Production Credit Association, 496 S.W.2d 682 (Tex.Civ.App.-Tyler 1973, writ dism’d); Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944). It was, therefore, incumbent upon appellee to establish that the joinder of the Kinoshitas is necessary to enable it to obtain full and effective relief in the suit which it is entitled to maintain in Dallas County against the other defendants under Subdivision 3.

The appellee contends that the joinder of all parties to the suit is necessary to provide it the full relief to which it is entitled under the pleadings and the instruments or contracts sued upon. We agree.

Appellee-plaintiff sought judgment against all the defendants jointly and severally on their joint contractual liability.

Where plaintiff, if he recovers, will be entitled to a joint judgment against one or more defendants and suit is maintainable where brought as to one of the defendants under a subdivision of the general venue statute, the other defendant is a necessary party within the meaning of Subdivision 29a allowing suit to be maintained in such county against any and all necessary parties thereto. Orange Associates, Inc. v. Albright, 548 S.W.2d 806, 808 (Tex.Civ.App.-Austin 1977, writ dism’d); Van Huss v. Buchanan, 508 S.W.2d 412, 417 (Tex.Civ.App.-Fort Worth 1974, writ dism’d); Ladner v. Reliance Corporation, supra; Carter v. Texas State Bank of Jacksonville, 189 S.W.2d 782 (Tex.Civ.App.-Texarkana 1945, n. w. h.).

Appellants contend that appellee failed to establish its own residence as it is required to do under Subdivision 3 of the Venue Statute.

For venue purposes, the place of residence of a corporation may be either the place designated in the charter or its principal office or the place where the principal office is in fact located. The question of residence of a corporation for venue purposes must be determined not by residence of any particular officer but by the principal office of the corporation. Mobile County Mutual Insurance Company v. Southern Agent Corporation, 519 S.W.2d 186 (Tex.Civ.App.-Houston [14th Dist.] 1975, n. w. h.); Pepsi-Cola Company v. Spangler, 401 S.W.2d 923, 925 (Tex.Civ.App.-Texarkana 1966, n. w. h.); International Harvester Co. v. Faris, 360 S.W.2d 864 (Tex.Civ.App.-Amarillo 1962, n. w. h.); Magnolia Petroleum Co. v. Broussard, 340 S.W.2d 366, 368 (Tex.Civ.App.-Beaumont 1960, writ dism’d). The evidence shows that at the time of the institution of this lawsuit that the Central States’ offices, the principal office of General Electric Credit Corporation, were located in Dallas, Dallas County, Texas. This evidence is uncontroverted.

The trial court filed no findings of fact or conclusions of law and none was requested. The state of the evidence was such as to warrant the implied findings that the Kinoshitas were nonresidents of Texas and the appellee was a resident of Dallas County, Texas. This being true we have no authority to disturb the same or the order based thereon. Ex Parte Head, 102 S.W.2d 1101 (Tex.Civ.App.-Eastland 1937, n. w. h.). Where a case is tried to the court and no findings of fact or conclusions of law are filed, judgment will be affirmed if their is any ground to support it, upon any theory of the case, and every issue in the case must be resolved in support of the judgment. Also where the evidence is uncontroverted and where its weight and credibility on the issues involved raise a reasonable doubt in the mind of the judge, as a trier of facts, his judgment must be affirmed. Pan American Sign Company v. J. B. Hotel Company, 403 S.W.2d 548, 551 (Tex.Civ.App.-Dallas 1966, n. w. h.); Burke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 346 S.W.2d 663 (Tex.Civ.App.-San Antonio 1961, n. w. h.); Houston & North Texas Motor Freight Lines v. Watson, 293 S.W.2d 207, 209 (Tex.Civ.App.-Waco 1956, n. w. h.); Gunstream v. Oil Well Remedial Service, 233 S.W.2d 897, 898 (Tex.Civ.App.-Dallas 1950, n. w. h.).

Applying the rules of law announced to the record before us we think that implied findings of the trial court to the effect that the Kinoshitas were nonresidents and that appellee Commercial Electric Credit Corporation was a resident of Dallas County, Texas, is sustainable.

Appellee-plaintiff has discharged its burden to overcome the pleas of privilege and to maintain venue in Dallas County, under Subdivisions 3 and 29a, Article 1995, V.T.C.S., when it established by proof that: (1) it is a resident of Dallas County, Texas; (2) defendants Masao Kinoshita and Alice Kinoshita reside outside the State of Texas; and (3) the other individual defendants who are appellees here are necessary parties because they and the Kinoshitas contracted with appellee, and, if it recovers, it will be entitled to a joint and several judgment against all of defendants per its prayer. Ladner v. Reliance Corporation, supra; McCarty v. Hinman, supra at 31; Ward v. Davis, 262 S.W.2d 538 (Tex.Civ.App.-Waco 1953, n. w. h.).

Appellee, General Electric Credit Corporation, cannot obtain full relief in this case unless it obtains a judgment that the principal, as well as the guarantors, are jointly and severally liable on the guarantee in suit. No judgment of joint liability could be rendered in the absence of any party sought to be held jointly liable. Great American Insurance Company v. Sharpstown State Bank, 422 S.W.2d 787, 791 (Tex.Civ.App.-Austin 1967, writ dism’d); Commonwealth Bank & Trust Company v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74 (1932); Ladner v. Reliance Corporation, supra; McCarty v. Hinman, supra; Allen v. Alison Mortgage Investment Trust, 548 S.W.2d 783, 788 (Tex.Civ.App.-San Antonio 1977, n. w. h.); also see Arterbury v. United States, 194 S.W.2d 803, 807 (Tex.Civ.App.-Galveston 1946, n. w. h.).

Appellants in their fourth point of error complain of the admission in evidence of the guaranty agreement because appellee had failed to authenticate the document.

The requirement is that the document be authenticated as genuine before it can be used. There are many modes of proof, but one is by the testimony of anyone who was present at the execution of the instrument. Meuley v. Zeigler, 23 Tex. 88 (1859). In the case at bar Mr. Mercurio testified that he witnessed the execution of the guaranty agreement by six of nine signatories. However, under the record in this case, appellee was not required to authenticate the document here in question. Rule 93(h), Tex.R.Civ.P., mandates that to deny an instrument in writing upon which a pleading is founded, such must be by a pleading verified by affidavit. In the absence of such a plea, as in the instant case, the instrument shall be received in evidence as fully proved. Prudential Petroleum Corporation v. Rauscher, Pierce & Co., Inc., 281 S.W.2d 457, 460 (Tex.Civ.App.-Dallas 1955, writ ref’d n. r. e.); Willingham v. Humble Oil & Refining Company, 202 S.W.2d 955 (Tex.Civ.App.-Galveston 1947, n. w. h.); W. T. Rawleigh Co. v. Sherley, 165 S.W.2d 465 (Tex.Civ.App.-Dallas 1942, writ dism’d). Appellants’ point of error No. 4 is overruled.

Appellants in their last point of error assert that the trial court erred in reopening the case to receive additional documentary evidence.

The additional documentary evidence was for the purpose of proving a cause of action. As we have above stated the existence of a cause of action is not an essential venue fact to be proven under Subdivision 3 of Article 1995, Tex.Rev.Civ.Stat.Ann., therefore if it was error in reopening the case no harm has been shown. Highlands Underwriters Insurance Co. v. Martin, 442 S.W.2d 770, 773 (Tex.Civ.App.-Beaumont 1969, n. w. h.).

Moreover, it was within the complete discretion of the trial court to reopen the case, and such discretion “should be liberally exercised in the interest of permitting both sides to fully develop the case in the interest of justice.” Barrier v. Beavers, 531 S.W.2d 191, 193 (Tex.Civ.App.-Amarillo 1975, writ ref’d n. r. e.); Papco, Inc. v. Eaton, 522 S.W.2d 538, 543 (Tex.Civ.App.-Texarkana 1975, n. w. h.); Lackey v. Perry, 366 S.W.2d 91, 96 (Tex.Civ.App.-San Antonio 1963, n. w. h.); Rauh v. Rauh, 267 S.W.2d 584, 586 (Tex.Civ.App.-Galveston 1954, n. w. h.); Gulf, C. & S. F. Ry. Co. v. Bouchillon, 186 S.W.2d 1006, 1010 (Tex.Civ.App.-Eastland 1945, writ ref’d w. o. m.). The discretion of the trial court to reopen a ease to receive additional evidence has been applied in a case where there was harmless error and the prior announced judgment was not disturbed or changed, as in the instant case, even after an appeal bond has been filed. Sibley v. Sibley, 286 S.W.2d 657, 660 (Tex.Civ.App.-Dallas 1955, writ dism’d). It is well established that in considering appeals based on Rule 270, Texas Rules of Civil Procedure, that the question of reopening a case for the purpose of admitting additional evidence is clearly within the sound discretion of the trial judge, and his action refusing to permit a party to reopen for such purpose should not be disturbed by an appellate court unless it clearly appears that such discretion has been abused. Smart v. Missouri-Kansas-Texas Railroad Company, 560 S.W.2d 216 (Tex.Civ.App-Tyler 1977, n. w. h. as of now); Word v. United States Coffee & Tea Company, 324 S.W.2d 258, 262 (Tex.Civ.App.-Amarillo, 1959, writ ref’d n. r. e.). Even though we think it was unnecessary to reopen the case for the purpose for which it was reopened, we do not think the action of the trial court was an abuse of discretion. Since, in our opinion, venue is maintainable in Dallas County, Texas, under Subdivisions 3 and 29a of the Venue Statute, it is not necessary for us to determine under appellants’ first point of error whether venue would be maintainable in said county under Subdivision 5 of the Venue Statute. Appellants’ points of error Nos. 2, 3, 4 and 5 are overruled.

Appellants have attached an “appendix” to their brief consisting of documents from the Secretary of State which is not a part of the record in this case. These documents were not offered in evidence during the trial nor included in any bill of exception. Therefore, they are not before this court through formal inclusion in the record, and we cannot consider them for any purpose. Bibby v. Preston, 555 S.W.2d 898, 902 (Tex.Civ.App.-Tyler 1977, n. w. h.); Llast v. Emmett, 526 S.W.2d 288, 290 (Tex.Civ.App.-Tyler 1975, n. w. h.); Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900 (Tex.Civ.App.-Houston [14th Dist.] 1971, n. w. h.).

The judgment of the trial court is affirmed.


text:
    LITTLE DARLING CORPORATION and Jack Cirino, Appellants, v. ALD, INC., Cook Machinery Company Division, Appellee.
    No. 19440.
    Court of Civil Appeals of Texas, Dallas.
    May 3, 1978.

      Lee M. Simpson, Akin, Gump, Hauer & Feld, Dallas, for appellants.
    Schuyler B. Marshall, David E. Morrison, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   GUITTARD, Chief Justice.

This suit for breach of contract was tried to a jury in the absence of defendants after defendants’ counsel had been permitted to withdraw. The jury found damages in the amount of $427,700 and the court rendered judgment accordingly. Defendants then employed new counsel, who filed a motion for new trial. After that motion was overruled, defendants perfected this appeal, contending that the trial court erred in denying defendants a continuance and that the evidence was factually insufficient to support the finding of damages. We hold that denial of the continuance was within the trial court’s discretion, but that the evidence is insufficient to support the finding of damages. Accordingly, we reverse and remand for a new trial.

We need not discuss denial of the continuance, since we reverse for insufficiency of evidence. The suit was brought on a contract in the form of a letter in which plaintiff Cook Machinery Company, a division of ALD, Inc., agreed to manufacture and deliver to defendants, Little Darling Corporation and Jack Cirino, seventy-five automatic car-wash units a year for five years. The units to be delivered were of four different types, and the price specified was “cost plus 25%.” The contract defines “cost” as “actual material costs and normal burden factor as established by Cook.” The contract specifies cost figures for the four types of units listed, ranging from $2,937.37 for the least expensive type to $5,278.21 for the most expensive type. Thus, the twenty-five percent markup provided in the contract ranges from $735.33 to $1,319.57. The contract provides that the price “will be reviewed on a six-month basis, with 30-day notice of any change in your price based on cost increase or reduction.” It also provides that the cost figure of the least expensive unit is not final, but is based on figures prepared by the defendants, and “will be changed as soon as we can establish a cost here.”

The only testimony at the trial was that of plaintiff’s vice president and treasurer. He said that defendants took only 46 of the 375 units they were obligated to take, leaving 329 not taken, and that plaintiffs “gross profit” on each of the units not taken would have been $1,300 each, for a total of $427,700. He testified further that this was the amount of damages that would be necessary to place plaintiffs “in a position as it would occupy had the defendants not defaulted in their obligation to purchase a minimum of 375 units,” and that if material costs had risen, as they did, plaintiff would have had the right to increase the price, and the twenty-five percent would have amounted to more.

We conclude that this evidence is factually insufficient to support the amount of damages awarded. The measure of damages for breach of contract is the amount necessary to place plaintiffs in a financial position equivalent to that in which it would have had if the contract had been fully performed by both parties. R. G. McClung Cotton Co., Inc. v. Cotton Concentration Co., 479 S.W.2d 733, 738 (Tex.Civ.App.-Dallas 1972, writ ref’d n. r. e.); J. C. Engelman, Inc. v. Sanders Nursery Co., Inc., 140 S.W.2d 500, 508 (Tex.Civ.App.-El Paso 1940, writ ref’d). Thus, in the case of a breach by the buyer of a contract of sale, the seller’s measure is net loss of profits, that is, the contract price less the actual cost of his required performance. Purvis & Bertram v. Shaw, 164 S.W.2d 416, 418 (Tex.Civ.App.-Fort Worth 1942, writ ref’d). If the contract has been partly performed, the measure is the balance of the contract price, less the seller’s cost of completing his required performance. See V. R. Wattinger Co. v. Moore, 475 S.W.2d 327, 329 (Tex.Civ.App.-Austin 1972, no writ).

Although an award of damages may be based on estimates, the amount should be established with that degree of certainty reasonably to be expected under the circumstances of the case. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). Since this contract does not specify a fixed price after the first six months, but permits the seller to adjust the price on the basis of the cost, to which a markup of twenty-five percent is to be added, the amount of the cost must be shown with reasonable certainty. Defendants contend that the requirement has not been met. They insist that the testimony of $1,300 “gross profit” on each unit does not support the finding of damages because the proper measure of plaintiff’s loss is the net profit that plaintiff would have realized if the contract had been performed. Plaintiff admits that the proper measure is net profit rather than gross profit, but insists that the testimony as a whole indicates that the witness did not use the term “gross profit” in a technical sense, but rather to refer to the markup of twenty-five percent over the cost specified in the contract, which, plaintiff says, was actually a net-profit figure.

We conclude that the schedule of costs in the contract does not support the figure of $1,300 per unit as the actual net profit lost by plaintiff. In the first place, we cannot determine whether the cost figures specified in the contract include all the costs that must be considered for the purpose of determining legal damages. “Cost” is defined in the contract as “actual material costs and normal burden factor as established by Cook.” The meaning of “normal burden factor” does not appear in the evidence. We cannot determine whether it includes the actual costs of all the labor required for production and delivery of the units, as well as a reasonable allocation of the supervision, fuel, accounting, and other expenses that would have been incurred if a total of 375 units had been produced. If some of these costs were not included in the “normal burden factor,” then the profit on each unit would have been something less than twenty-five percent of the actual cost. The probability that other expenses would have been incurred is indicated by the witness’s use of the term “gross profit” rather than “net profit”.

In the second place, even if we should accept the schedule of costs in the contract as actual costs for the purpose of determining damages in the absence of contrary evidence, that schedule does not support the figure of $1,300 per unit as the anticipated net profit on all of the 375 units defendant was obligated to take under the contract. The witness did not explain where he got this figure, but it seems likely that it is an approximation of the markup specified in the contract for the most expensive unit which, by computation, amounts to $1,329. Plaintiff apparently adopts this approach, since it argues that it only seeks recovery of the markup provided in the contract, and it asserts that it was actually entitled to more than the $1,300 per unit for which it sued because the contract authorizes it to redetermine the costs at intervals of six months, with a corresponding adjustment in the markup, and the evidence shows that actual costs had risen.

This argument overlooks the circumstance that the contract did not obligate the defendants to order the most expensive units. Defendants could have satisfied their obligation under the contract by ordering the least expensive units, on which the markup, as shown by the contract, was only $735.33. Admittedly, the contract gives plaintiff the right to redetermine the initial costs of these units, as well as to redetermine the costs of all the units at intervals of six months, but no redetermined cost figure on the least expensive units is in evidence. We cannot accept the witnesses’ testimony of $1,300 per unit “gross profit” on 329 units, which is apparently based on the contract cost figure for the most-expensive units, as applying to the least-expensive units. Consequently, there is no evidence in the record from which the jury could have determined the difference between the price the defendants would have paid for the units they were obligated to buy and plaintiff’s actual cost of producing such units.

Neither is the verdict supported by the answer of the witness, in reply to a leading question, that the sum of $427,700 was necessary to place plaintiff in the same position it would have occupied if defendant had not defaulted. This conclusion is apparently based on his other testimony and throws no light on the uncertainties inherent in the terms “gross profit”, and “normal burden factor.” Neither does it provide any explanation for the apparent error of the witness in basing his testimony on the anticipated markup for the most expensive units rather than the least expensive units.

For the reasons stated, we hold that the evidence is factually insufficient to support the finding of damages. Since the judgment must be reversed for this reason, we must determine whether to remand for determination of damages only or to remand generally for a new trial. This question is controlled by rule 434, Tex.R.Civ.P., which in part provides:

[I]f it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.

Here the amount of damages, as found by the jury, is unliquidated, since the amount cannot be determined from the allegations of the petition and the terms of the contract. Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ). Defendants’ answer contested the issue of liability as well as the damages. Consequently, we must remand the whole case for a new trial.

Reversed and remanded.


text:
    METROPOLITAN LIFE INSURANCE COMPANY, Appellant, v. Robert R. DUNCAN, Appellee.
    No. 17969.
    Court of Civil Appeals of Texas, Fort Worth.
    May 4, 1978.

      Golden, Potts, Boeckman & Wilson and H. David Herndon, Dallas, for appellant.
    Garrett, Settle & Callaway and Phillip W. Gilbert, Port Worth, for appellee.
   OPINION

SPURLOCK, Justice.

The insured, Robert R. Duncan (appellee herein), sued Metropolitan Life Insurance Company (appellant) for disability benefits payable pursuant to the terms of a group insurance policy issued by appellant. The relevant portion of the policy provided that extended disability benefits were payable if the insured is “totally disabled so as to be unable to engage in any gainful occupation or employment for which he is reasonably qualified by education, training or experience, . . . .” The trial court rendered judgment in favor of the insured, in accordance with the jury verdict. From that judgment, appellant has perfected its appeal.

We affirm.

By its first point of error, appellant contends that the trial court erred in refusing to strike “the opinion testimony of Dr. Kimmerling that appellee had been unable, in the exercise of ordinary care, to perform a substantial part of any work or employment for which he was reasonably qualified by education, training or experience because said witness had no knowledge of whether work or employment existed which appellee could, in the exercise of ordinary care, perform and was, therefore, not qualified to express such an opinion.”

At the outset, we note that the appellant did not make an objection to Dr. Kimmer-ling’s testimony at the time it was given. In fact, Dr. Kimmerling had been excused as a witness, appellee had testified, and appellee had rested his case before appellant made his motion to strike a portion of the doctor’s opinion testimony. The failure to timely object to the introduction of evidence promptly and correctly results in a waiver of the objection. 56 Tex.Jur.2d Trial § 158 (1964); City of Houston v. Watson, 376 S.W.2d 23, 32 (Tex.Civ.App.-Houston 1964, writ ref’d n. r. e.). Appellant’s first point of error is overruled.

By its second point of error, appellant contends that “the trial court erred in submitting special issue number one to the jury over appellant’s proper objection to such submission and in overruling appellant’s motion for judgment non obstante veredicto, on the ground that there was no evidence to support an affirmative answer to such issue by the jury.”

Special issue # 1 was submitted to the jury as follows:

“Do you find from a preponderance of the evidence that the Plaintiff, Robert R. Duncan, has been totally disabled continuously since July 24, 1972?”
The jury answered: “We do.”

Appellant’s second point of error is a “no evidence” point. The evidence test for a “no evidence” point is to examine the entire record for evidence that supports the submission of the issue and the finding of the jury and ignore all evidence to the contrary. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

Appellee testified that his work career had been related to the sale of automotive parts and supplies. He had attained the position of national account manager with General Motors corporation. On one occasion, while he was driving to Oklahoma City, he had a diabetic reaction and he ran the car he was driving off the road into a ditch. He had been forced to retire from General Motors because of his unstable diabetic condition.

After his disability retirement, appellee got a real estate license and an insurance license, but he had found that he could not manage his insulin and diet in those types of jobs. His diet and insulin schedule are very rigid. As a result of his unstable diabetic condition, he has lost most of his teeth, has suffered vision problems, and has suffered from insulin reaction and blackouts. He has had difficulty in handling stress since his retirement. Further, he testified that he had not received any bona fide job offers since his retirement.

Appellee’s wife testified that she had observed the effects of her husband’s illness, which included his increased irritability, withdrawal, and occasional incoherence.

Dr. Harold Kimmerling has been the ap-pellee’s physician since September, 1967, when he first discovered that appellee was suffering from diabetes. He testified that appellee had suffered several serious insulin reactions and that as a result, he had to be kept under very strict dietary and insulin control. Also, he testified about the adverse effects of stress on the appellee. After the term “total disability” was defined by appellee’s attorney without objection, Dr. Kimmerling testified: “In reasonable medical probability he is totally disabled in the light of what you read in that definition of the — his work duties and so forth. This is due — due to his education, training, and experience because of the type of job he had required so much travel that he could not be managed.”

We overrule appellant’s second point of error.

By its third point of error, appellant contends that the “trial court erred in submitting special issue number one to the jury over appellant’s proper objection to such submission and in overruling appellant’s motion for judgment non obstante veredicto, on the ground that there was insufficient evidence to support an affirmative answer to such issue by the jury.”

The appellant’s third point of error is multifarious in that it attempts to complain of than one alleged error in a single point of error. Even more important, appellant by this point of error attempts to complain of the submission of a special issue to the jury by way of an “insufficient evidence” point of error.

“An ‘insufficient evidence’ point has come to mean in the terminology of our procedural law substantially the same as a point that a finding is so contrary to the overwhelming weight of the evidence as to be manifestly wrong. Such a point is not applicable to the question whether an issue should be submitted to the jury. It is the ‘no evidence’ point which is applicable to the submission of issues. (Citing cases.)” Nutter v. Dearing, 400 S.W.2d 346, 350 (Tex.Civ.App.-Dallas 1966, writ ref’d n. r. e. at 402 S.W.2d 889, Tex.1966).

Appellant’s third point of error is overruled.

By its fourth point of error, appellant contends that the “trial court erred in submitting special issue number one to the jury over appellant’s proper objection to such submission on the ground that the instruction given by the court to the jury in connection with such special issue defining the term ‘totally disabled’ was an incorrect definition of said term, not the definition of said term as used in the insurance policy.”

The trial court submitted the following definition to the jury:

“ ‘Totally disabled’ shall not mean an absolute disability or incapacity to perform any kind of work, but shall mean that a person is unable, in the exercise of ordinary care, to perform a substantial part of the usual kind of work for which he was suited by training, education or experience at the time immediately prior to such disability, if any, and further that he is unable, in the exercise of ordinary care, to perform a substantial part of any work or employment for which he was reasonably qualified by education, training or experience.”

The term “totally disabled” is defined in Part X of the insurance policy as being “unable to engage in any gainful occupation or employment for which he is reasonably qualified by education, training or experience, . . . .”

It is obvious to us that the definition given by the trial court imposed on the appellee (rather than upon appellant) a more onerous burden than the policy required. Because of this additional burden placed upon the appellee, we are unable to see how appellant has been prejudiced by the definition given by the trial court. We overrule appellant’s fourth point of error.

The judgment of the trial court is affirmed.