author: DUNAGAN, Chief Justice.

text:
    Vincent GUBITOSI, Appellant, v. BUDDY SCHOELLKOPF PRODUCTS, INC., et al., Appellees.
    No. 972.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 2, 1976.

      Joe N. Boudreaux, Smith, Rachal, Schutze, Sanderson & Boudreaux, Dallas, for appellant.

      John H. Martin, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
   DUNAGAN, Chief Justice.

This is a note guaranty case involving the exercise of in personam jurisdiction under Art. 2031b, Tex.Rev.Civ.Stat.Ann., by a Texas court over an individual guarantor, a nonresident of Texas. This appeal is brought from the final judgment of the 101st Judicial District Court of Dallas County, Texas, against appellant Vincent Gubitosi, guarantor, and defendant below (hereafter called “appellant”) and in favor of appellees, Buddy Schoellkopf Products, Inc. and Red Head Brand Corporation, plaintiffs below (hereafter referred to jointly as “appellees” and individually as “appel-lee Schoellkopf” or “appellee Red Head”).

There was complete identity of interest among appellees to warrant their bringing suit as co-plaintiffs, to which appellant took no issue. Appellee Red Head is a subsidiary corporation of appellee Schoellkopf. Appel-lees sued appellant, as guarantor, for recovery on two promissory notes payable to appellees. The notes were made by Parker Merchandising Corporation (hereafter called “Parker Corporation”) and signed by appellant Vincent Gubitosi in his capacity as president of Parker Corporation. Appellant, also a major stockholder of Parker Corporation, signed two guaranty agreements making himself individually liable for payment of the two notes. Parker Corporation and appellant were both residents of the State of New York.

Appellant, pursuant to Rule 120a, T.R. C.P., made a special appearance to object to the court’s exercise of in personam jurisdiction over him, alleging that he was not amenable to process issued by a Texas court. In his special appearance appellant alleged that he was not a resident of Texas, that he had never been in Texas nor transacted business in Texas, and that any transactions had with appellees were performed in the State of New York. Appellant urged the trial court to dismiss the suit since there was not minimum contacts to constitutionally support jurisdiction over his person by a Texas court.

The trial court overruled the appellant’s special appearance, and all parties proceeded to trial.

After a non-jury trial, the court rendered its judgment awarding to appellee Schoellk-opf $15,217.48 and to appellee Red Head $8,491.96, and providing that both appellees were to receive contractual interest and ten percent attorney fees, plus legal interest on the aggregate amounts. The court overruled appellant’s motion for new trial and made its findings of fact and conclusions of law. Appellant brings this appeal alleging twenty-four points of error committed by the trial court.

The material facts are as follows. Appel-lees are incorporated under the laws of the State of Texas and have their principal place of business in Dallas. For several years prior to this lawsuit, appellees had been selling and shipping sports-related goods to Parker Corporation on an open account basis, with terms of payment per invoice being the net amount due within ninety days after shipment. Early in 1973 appellees sold and shipped assorted sporting goods from Texas to Parker Corporation in New York and billed Parker Corporation in the usual invoice form and procedure. Several months thereafter Parker Corporation went into arrears in payment of these invoices and the same became past due. Ap-pellees stopped further shipments on credit to Parker Corporation until the accounts were cleared up, and notified Parker Corporation that they were considering legal action to recover the accounts in arrears.

Over a period of months prior to November 19, 1976, appellees’ credit manager, John Schleif, whose job was to approve and periodically review credit for appellees’ vendees and monitor collection problems, began efforts to collect the delinquent accounts owed by Parker Corporation. Schleif was contacted by Carmín Grosso, operations manager of Parker Corporation, about the possibility of appellees accepting Parker Corporation’s promissory notes to clear up the delinquent accounts. Acting through Sehleif, appellees agreed to accept promissory notes and forbear from initiating legal action to collect the delinquent accounts.

Sehleif advised Grosso that appellees would not accept any notes without a personal guaranty of payment by appellant herein, who, as mentioned earlier, was president and major stockholder of the Parker Corporation. The note negotiations were made primarily through long distance telephone conversations between Sehleif (representing appellees) and Grosso. There is no evidence in the record that Sehleif discussed the notes and guaranties personally with appellant.

Sehleif, who was the only witness called in the trial, testified that he mailed Grosso the figures to be encompassed by the notes. Two notes prepared by Grosso were mailed from New York to Texas, but appellees refused those notes because they did not comply with the original agreement between the parties and the notes were not accompanied by guaranties made by appellant. Appellees through Sehleif had stressed that they would not accept the notes without the personal guaranties of appellant.

By letter dated November 19, 1973, Sehleif notified Mr. Richard Nigro, another employee of Parker Corporation, that the two notes were being refused. Enclosed with the letter were two notes and two guaranty forms prepared by Sehleif. These notes and guaranties were executed by appellant and returned to appellees by Ralph Esposito, assistant controller of Parker Corporation, accompanied by Esposito’s letter dated December 26, 1973. There is no evidence that appellant ever corresponded through the mails or otherwise with appel-lees concerning the notes and guaranties.

The note payable to appellee Schoellkopf was in the principal amount of $15,217.48, and the note payable to appellee Red Head was in the principal amount of $8,491.96. Both notes were due on April 1, 1974, with interest at the rate of 12% per annum. Each note provided that it was payable at the “Mercantile Nat’l Bank — Dallas, Texas” and additionally provided that in the event of default that ten percent of the principal and interest due on the notes would be added as collection fees. The note was signed by appellant in his capacity as president of Parker Corporation.

The guaranties provided as follows:

“I, Vincent Gubitosi, do guarantee, as an individual, payment for the trade note[s] payable to . [appellees] . ., Dallas, Texas by Parker Distributors, New Rochelle, New York, which [are] . . . due April 1, 1974 in the amountfs] of . [giving amount] . with 12% interest per annum, “It is also especially agreed that the guarantor will pay all costs incurred by [appellees] ... if it should become necessary to collect funds under . . . [these guaranties] . by suit or in probate or bankruptcy proceedings.
x (signature) Vincent Gubitosi”
[notary acknowledgment dated December 21, 1973]

It is significant that each guaranty did not expressly incorporate or adopt as a whole the place of performance provisions of each note.

Both notes were dated November 19, 1973, whereas the guaranties were dated December 21, 1973. However, the notes and guaranties were actually executed on the same date, December 21, 1973, and mailed together in the same envelope from New York to appellees in Dallas, Texas.

On April 1,1974, the notes were not paid. Parker Corporation at that time was, or soon thereafter became, insolvent and bankrupt, and accordingly was not joined in this suit. Appellees sued appellant for payment of the notes. After his special appearance to contest jurisdiction was overruled, appeb lant filed his first amended original answer setting up the following defenses: (1) that he was not amenable to suit within the State of Texas; (2) that the guaranties were without legal consideration and therefore not legally binding; and (3) that he was not obligated to pay appellees’ attorney fees because the same were not provided for in the guaranties.

Appellant’s twenty-four points of error deal with the court’s decisions on the three defenses raised in his answer. We shall first consider appellant’s points of error dealing with jurisdictional issues. Points of error 1 through 4 allege that the court erred in overruling appellant’s special appearance and motion to dismiss under Rule 120a, T.R.C.P., because appellant (1) was not personally served in Texas; (2) had not engaged in business in Texas; (3) did not have sufficient minimum contacts to support in personam jurisdiction over him or valid service of process made upon him; and (4) was denied due process of law when the Texas trial court assumed jurisdiction over appellant without his having sufficient minimum contacts with Texas. Points of error 5 through 13 allege that the court’s findings of fact numbers III, IV and XXI were not supported by any evidence, and, alternatively, insufficient evidence, or that the said findings were against the great weight and preponderance of the evidence presented.

The court found the following facts, among others, dealing with jurisdictional issues:

(1) that appellant was a nonresident natural person who had engaged in business and transacted business in the State of Texas, and who had not maintained a regular place of business in the State of Texas or a designated agent upon whom service may be had (Findings of Fact No. Hi);
(2) that the appellees’ cause of action arose out of appellant’s business in the State of Texas (Findings of Fact No. IV);
(3) that the appellant was properly served with citation by serving the Secretary of State of the State of Texas (Findings of Fact No. V); and,
(4)that appellant executed two guaranty agreements that were to be performed in whole or in part in the State of Texas (Findings of Fact No. XXI).

The trial court held in its conclusions of law that it had jurisdiction over the person of appellant because the appellant had engaged in and transacted business in the State of Texas and had entered into contracts performable in whole or in part in the State of Texas, out of which contracts appellees’ cause of action arose.

Art. 2031b, sec. (3), Tex.Rev.Civ.Stat. Ann., provides that “Any . . . nonresident natural person that engages in business in this State, . . . and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such . non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such . . . non-resident natural person is a party or is to be made a party.”

Section 4 of Art. 2031b provides that “. . . any . . . non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, . . . .”

We feel it is unnecessary to trace the evolution of long arm personal jurisdiction by a court over a nonresident defendant, a doctrine thoroughly established by the United States Supreme Court. However, there are only general guidelines concerning the applicability of the “minimum contacts” test and what does or does not “offend the traditional notions of fair play and substantial justice.” “. . . [T]he broadened concept of in personam jurisdiction over nonresidents does not readily lend itself to the promulgation of an infallible formula automatically determinative of every case.” 27 A.L.R.3d 417 (1969).

Courts must now make a general constitutional inquiry as to “whether a given nonresident defendant had ‘minimum contacts’ with the forum state, within ‘traditional notions of fair play and substantial justice,’ ” against the background of the facts existing in the particular case. Hoppenfeld v. Crook, 498 S.W.2d 52, 56 (Tex. Civ.App. — Austin 1973, ref’d n.r.e.).

The court must first determine that the nonresident defendant is amenable to process under the Texas Long Arm Statute, art. 2031b; and second, whether the exercise of jurisdiction over the nonresident defendant pursuant to Art. 2031b would, under the particular facts, violate the due process clause of the 14th Amendment to the United States Constitution. Estes Packing Co. v. Kadish & Milman Beef Co., 530 S.W.2d 622, 623 (Tex.Civ.App. — Fort Worth 1975, n.w.h.); Cohn-Daniel Corp. v. Corporacion De La Fonda, 514 S.W.2d 338, 341 (Tex.Civ.App. — Eastland 1974, n.w.h.), citing Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973), and Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966). It is well established that the reach of Article 2031b is as broad and far as the constitutional standard of minimum contacts allows. Jeteo Electronic Industries, Inc., supra; Atwood Hatcheries, supra; Estes Packing Co., supra.

Under the first determination, we find that the appellant was amenable to service under Article 2031b. Section 3 of Article 2031b provides for long arm service over a nonresident natural person who engages in or does business in the State of Texas. Section 4 of Article 2031b defines “doing business” as the entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part within Texas.

The notes involved in this suit were the product of an agreement negotiated (via long distance telephone and regular U. S. mail) between appellees’ credit manager (Schleif) in Texas and officers of Parker Corporation (Grosso, Nigro, and Esposito) in New York. The record shows no participation by appellant in the actual discussions between the parties; however, appellant did sign the notes in his capacity as president of Parker Corporation.

As part of the transactions appellees demanded that appellant personally guarantee payment of the notes. Appellees’ credit manager prepared the notes and guaranty agreements and mailed them to New York in the same envelope. Appellant signed the guaranty agreements, acknowledged his signatures before a notary public, and gave them to a subordinate who mailed them together with the notes to appellees in Texas in the same envelope.

The fact that the notes were payable in Dallas, Texas is a critical fact. The guaranty agreements stated that “I, Vincent Gubitosi, do guarantee, as an individual, payment for the trade note[s] . . ..” (Emphasis added.) Appellant contends that the guaranty agreements do not require him to make payments at the place of payment required by the notes. We disagree.

In reading the guaranty agreements, we find no qualifications or limitations on appellant’s duty to pay the notes in the event of default according to the terms and conditions provided by the notes. The liability of appellant, as guarantor, created by the guaranty agreements is measured by the liability of the principal on the notes, “unless a more limited or more extensive liability is specified by the guarantor.” Cullum v. Commercial Credit Co., 134 S.W.2d 822, 824 (Tex.Civ.App. — Amarillo 1939, n.w.h.); and followed in Rost v. First National Bank of Gonzales, 472 S.W.2d 579, 581 (Tex.Civ.App. — Corpus Christi 1971, n.w.h.); Laukhuf v. Associates Discount Corporation, 443 S.W.2d 725, 727 (Tex.Civ. App. — Dallas 1969, n.w.h.); Walter E. Heller & Co. v. Allen, 412 S.W.2d 712, 721 (Tex.Civ.App.—Corpus Christi 1967, ref’d n.r.e.).

Accordingly, because of appellant’s guaranty of payment at the “Mercantile Nat’l Bank—Dallas, Texas,” he entered into a contract performable “in whole or in part” in the State of Texas, and, as such, met the definition of “doing business” as per Article 2031b, section 4. Appellant did not maintain a place of regular business in this State or a designated agent upon whom service may be made; thus, service was proper to be made upon the Secretary of State of Texas according to section 3 of Article 2031b. The record shows that the appellant received by mail in New Rochelle, New York a copy of appellees’ original petition.

After deciding that appellant was amenable to process under Article 2031b, the second determination this court must make is whether the exercise of jurisdiction over the nonresident defendant pursuant to Article 2031b would, under the particular facts of this case, violate the due process clause of the 14th Amendment to the United States Constitution. The fact that appellant is amenable to process under the long arm statute is not conclusive of due process. Estes Packing Co., supra, and cases cited therein.

The facts as they exist in the record, and as the trial court correctly found, are conclusive that appellant is not denied his constitutional due process privileges by having to defend against appellees’ cause of action in the courts of Texas.

A case similar to, and almost on point with, this case is National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App.—Fort Worth 1972, ref’d n.r. e.). In that case, plaintiff National sued defendant Aero, a Florida corporation, seeking to collect a debt arising out of a written guaranty agreement. National had done business with a corporate subsidiary of Aero. The subsidiary had become delinquent in its accounts payable to National. Aero, acting through its president, agreed to guarantee payments of the debts. A guaranty agreement was executed by Aero and mailed to National’s offices in Fort Worth, Texas. After further default, National sued Aero on the guaranty agreement in the courts of Texas. The trial court sustained Aero’s special appearance and dismissed the suit. On appeal by National, the Court of Civil Appeals reversed the trial court’s dismissal and remanded the cause for trial in Texas, holding that Aero had “sufficient minimum contacts with the State of Texas that the maintenance of this suit in Texas does not offend traditional notions of fair play and substantial justice.”

The chief distinction between National Truckers Service, Inc. and this case is that in the former the guaranty agreement specifically designated a place of payment in Texas, and it is this distinction upon which appellant relies in urging that National Truckers Service, Inc., supra, does not apply here. In light of the cases quoted earlier concerning the liability of a guarantor to perform according to the principal’s obligations unless the guaranty agreement limits that liability, we disagree with appellant and hold that the decision of National Truckers Service, Inc. is persuasively correct and applicable here.

Three basic factors under the “minimum contacts” test should coincide if jurisdiction over a nonresident defendant is to be maintained, according to O’Brien v. Lanpar Company, 399 S.W.2d 340, 342 (Tex. 1966), quoting Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963):

“ ‘(1) The nonresident defendant must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’ ”

In this case, the parties stipulated that the “guaranty agreements ... in this case were in fact placed in the United States Mails by officers, servants or employees of Parker Merchandising Corporation in the State of New York other than the defendant in this case and forwarded by the mails to the plaintiff corporations and received by them in the State of Texas.” Appellant places emphasis on the fact that he did not personally mail the guaranty agreements to appellees in Texas, but that other “officers, servants or employees” did so, and as such, urges that he did not “purposely do some act or consummate” this transaction in the forum state by mailing the guaranty agreements himself. The fact that appellant did not personally mail the agreements is immaterial.

Section 4 of Article 2031b provides that a “non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas . . . .” There is no requirement that the nonresident be the actual depositor of the contract in the mail. And even if there were such a requirement, “Under the Texas Long-Arm Statute . . . place or time of execution, consummation, or delivery is inconsequential, and it is performance, contemplated or accomplished, which is important.” Atwood Hatcheries, supra, at page 852; Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 492 (5th Cir. 1974). Thus, we find that appellant did purposefully consummate some transaction in the forum state.

This cause of action certainly arises from the transaction, being based solely on the guaranty agreements themselves.

The third factor under the O’Brien case requires that the “assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice,” in light of several considerations. Under this factor, the court must consider the “quality, nature, and extent of the activity in the forum state.” The signing of the guaranty agreements by appellant was a deliberate and not a fortuitous act, and this itself is an operative consideration. Products Promotions, Inc., supra, at page 496. The trial court found, and the record supports the finding, that appellant’s personal guaranty was part of the inducement to Plaintiffs to enter into the (note) agreements with Parker Merchandising Corporation, and that appellees would not have accepted the notes without appellant’s personal guaranty.

The court must additionally consider the “relative convenience of the parties,” the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. We have examined the record closely and find no undue inconvenience to appellant in defending this cause in Texas; nor is there any exceptional advantage or disadvantage afforded either party by the laws of Texas. We most strongly feel in light of the facts present that the basic equities of the situation award appel-lees the right to prosecute their cause of action in Texas.

We have carefully examined the trial court’s findings of fact numbers III, V, and XXI and have concluded that they are adequately supported by evidence in the record, and that they are not against the great weight and preponderance of the evidence. Accordingly, appellant’s points of error 1 through 13 dealing with these fact findings and the court’s overruling of appellant’s motion for special appearance are overruled.

Appellant’s points of error numbers 14 through 17 allege that appellant is not liable on the guaranty agreements because of a want of legal consideration, and complain of the lack, insufficiency and weight of the evidence supporting the trial court’s finding number XII that separate consideration existed for the guaranty, agreements.

Appellant did not object or allege evidential error to other findings of fact made by the trial court dealing with consideration and inducement in the execution of the guaranty agreements, summarized as follows:

1. that Parker Corporation owed debts to appellant which were past due;

2. that appellant granted Parker Corporation an extension of time in which to repay such debt;

3. that in return for the notes appellant agreed not to institute legal proceedings against Parker Corporation and against appellant individually;

4. that appellees had reason to believe appellant was guilty of fraudulent actions, and at one time had threatened to institute legal proceedings against appellant;

5. that appellees would not have accepted the notes without appellant’s personal guaranty;

6. that appellant’s guaranties were part of the inducement to appellees to enter into the note agreements;

7. that appellant stood to benefit personally from any consideration passing to Parker Corporation, of which he was president; and

8. that appellees forebore from suing appellant and Parker Corporation because of the guaranty agreements as well as the notes.

Pact findings which are not challenged on appeal are binding on the parties and must be accepted by the Court of Civil Appeals. Gragg v. Cayuga Independent School Dist., 525 S.W.2d 32 (Tex.Civ.App.— Tyler 1975, affirmed, Sup., 539 S.W.2d 861); Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App. — Amarillo 1968, ref’d n.r.e.).

Appellees’ agreement to forebear from filing suit against appellant and Parker Corporation and appellees’ granting of an extension of time to Parker Corporation to pay its past due accounts owing to appellees constitute sufficient legal consideration to support the personal guaranty agreements. Estes v. Oilfield Salvage Co., 284 S.W.2d 201 (Tex.Civ.App. — Dallas 1955, n.w.h.); Swilley v. City Inv. Co., 288 S.W. 485 (Tex. Civ.App. — Galveston 1926, writ ref’d); Kraker v. Bettman-Kleinhauser Clothing Co., 12 S.W.2d 247 (Tex.Civ.App. — San Antonio 1928, n.w.h.).

Where a contract of guaranty is in writing and signed by the guarantor, its existence imports a consideration. Diamond Paint Co. of Houston v. Embry, 525 S.W.2d 529, 533 (Tex.Civ.App. — Houston [14th Dist.] 1975, ref’d n.r.e.). The record indicates that the notes and guaranty agreements were mailed to New York and returned after signing by mail to Texas together in one envelope. It is accurate to state that they were executed contemporaneously. Where a note and guaranty agreement pursuant to the note are executed contemporaneously, if there is consideration for the note there is consideration for the guaranty. Diamond Paint Co. of Houston, supra, at page 533; Dean v. Allied Oil Co., 261 S.W.2d 900 (Tex.Civ.App.— Waco 1953, writ dism’d).

We have examined the record and have found that the court’s finding of fact concerning the existence of separate consideration is supported by the evidence and is not against the great weight and preponderance of the evidence. We further agree with the trial court’s conclusions of law that separate consideration was not necessary. Accordingly, appellant’s points of error numbers 14 through 17 are overruled.

Appellant’s final points of error numbers 17 through 24 complain of the court’s award to appellees of attorney fees against appellant based upon the provisions in the notes.

The guaranty agreements provided “It is especially agreed the guarantor will pay all costs incurred by [appellees] . if it should become necessary to collect funds under . . . [these guaranties] ... by suit or in probate or in bankruptcy proceedings.” Appellant urges that appellees are not entitled to recover attorney fees against appellant due to the existing legal distinction between “costs” and “attorney fees.” Appellant contends that the guaranty agreements, being separate contracts, entitle appellees to recover only their costs of court and not attorney fees.

Appellant cites case law and Texas Jurisprudence to support the legal distinction between costs and attorneys fees, and while we agree with the decisions reached in the cases cited by appellant, we feel they are not controlling here.

It is our opinion, and obviously the trial court so decided that the guaranty agreements in question were absolute. At 27 Tex.Jur.2d “Guaranty,” sections 5 & 6 (1961) the following definition of absolute guaranty is found:

“An absolute guaranty is one that is conditioned solely on the event of default by the principal obligor of fulfillment of the duty the performance of which is guaranteed. A guaranty undertaking is treated as absolute if it is unqualified or expresses no other condition of its enforceability than default of performance of his duty by the principal obligor .
“ ‘Guaranty of payment’ is used as the equivalent of the term ‘absolute guaranty’ in reference to the payment of a debt, .. Since an express and unqualified guaranty of ‘payment’ refers solely to the identical condition on which the instant enforceability of any absolute guaranty depends, it is treated as ,an absolute guaranty.”

Appellant cites McKnight v. Virginia Mirror Co., 463 S.W.2d 428 (Tex.1971) which held that “the guarantor is entitled to have his agreement strictly construed and that it may not be extended by construction or implication beyond the precise terms of his contract.” That was a case in which the guarantor placed limitations on his duty to pay, whereas in the instant situation the guaranty is one of unconditional payment. We feel the McKnight case is correct in a situation where the obligee did not fulfill the conditions necessary to cause the guarantor’s liability to commence.

Appellant did not cite Miller v. Bush, 42 S.W.2d 156 (Tex.Civ.App. — Waco 1931, writ ref’d) which held, at page 159, that “The general rule is that signers of indemnity or guaranty contracts are not liable for attorney’s fees incurred in suits to enforce the same, in the absence of an express stipulation for such liability.” Certainly, where a guaranty agreement contains an express stipulation that the guarantor is not liable for attorney fees, there is no liability for payment of same. Estes v. Oilfield Salvage Co., supra. This was, in effect, the situation that existed in the Miller case cited above. In that case, the indemnity agreements sued upon contained a clause limiting the signer’s liability, stating that the signer would not “in any event be liable in a greater sum than the amount set opposite . . . [their] name[s] . . Otherwise, the decisions in other states are in disagreement as to the liability of the guarantor “where the contract of guaranty is silent about costs of collection but the primary obligation provides that such costs shall be payable . . ..” 4 A.L.R.2d 138 (1949).

In a situation such as this, where the principal agreements provided for attorney fees in the event of default, we feel that an absolute guaranty without limitation of the principal agreements also obligates the guarantor to pay the attorney fees. McGhee v. Wynnewood State Bank, 297 S.W.2d 876 (Tex.Civ.App. — Dallas 1956, ref’d n.r.e.); Dean, supra. Had there been no express provision allowing attorney fees in the notes, then payment of same could not be required of the guarantor of said notes. Blume v. National Homes Corp., 441 S.W.2d 176 (Tex.1969).

Accordingly, since the notes provide for attorney fees, and since the guaranty agreements are an absolute unconditional guaranty of payment, and no lesser liability is specified by the guaranty agreements, in light of our reasoning and application of Cullum, supra, and cases cited therewith, the liability of appellant, as guarantor, created by the guaranty agreements is measured by the liability of the principal on the notes.

We have examined the entire record and have concluded that there is evidence adequately supporting the trial court’s findings and judgment and that such findings are not against the great weight and preponderance of the evidence. Appellant’s points of error 17 through 24 are overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Doris MULDOON et al., Appellants, v. Charles L. MUSGRAVE d/b/a the College Inn, Appellee.
    No. 17730.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 10, 1976.
    Oster & Kaufman, and Aaron S. Kaufman, Dallas, for appellants.
    Minor, Jester & Davidge, Miller Davidge, Denton, for appellee.
   OPINION

PER CURIAM.

The main question before the Court is the same as was before the Beaumont Court of Civil Appeals in the case of Smith v. Smith, 535 S.W.2d 380 (Tex.Civ.App., Beaumont, 1976, reversed December 1, 1976). The question was there stated as follows: “May a party who has appeared by filing responsive pleadings but who does not appear at the hearing upon the merits, obtain a reversal of the judgment merely by showing that he has been deprived of a statement of facts when the appeal is by way of a petition for writ of error?” The Beaumont Court in that case answered that question “No.”

We answer the question “Yes” and by the Supreme Court’s reversal of the Beaumont court in Smith v. Smith, supra, this answer is inescapable.

In this case plaintiff Musgrave filed suit on a sworn account against defendants, Doris Muldoon and Universal Montessori Teacher Training Center seeking to recover the amount of the account plus attorney’s fees.

Both defendants filed answers wherein they denied that the account was just or true in whole or in part. The case was thereafter set for trial. Neither defendants nor their lawyers appeared. At trial time the court proceeded to hear plaintiff’s evidence and at its conclusion rendered judgment for plaintiff and against the two defendants, jointly and severally, for the sum of $3,020.29, which included $750.00 for attorney’s fees.

The defendants have appealed from that decree by writ of error. Defendants have the right to appeal by writ of error because they were not present at the trial and were not represented at the trial by counsel. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941), and Arts. Nos. 2249 and 2249a, Y.A.T.S.

The parties admit in their briefs that the court reporter did not report the trial. A demand was made on the court reporter by defendants for a statement of facts in connection with this appeal, but he made affidavit that he could not furnish one because the case was not reported.

We reverse and remand.

In the defendants’ first three points of error they contend that the judgment should be reversed because the testimony was not recorded and no statement of facts can be obtained by them for a review of the sufficiency of the evidence.

We sustain those points of error.

The law involved on this appeal is fully discussed in the cases of Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App., Dallas, 1975, writ ref.), Smith v. Smith, 535 S.W.2d 380 (Tex.Civ. App., Beaumont, 1976), and the opinion of the Supreme Court.

In the Morgan Express, Inc. case, supra, the defendant did not file an answer and a default judgment was rendered against him. On the question just stated that court said at page 315: “We conclude that an appellant who was not present and was not represented when the testimony was taken is in no position to agree with his opponent concerning the substance of the testimony, and neither should he be required to rely on the unaided memory of the trial judge, who, though presumably fair, has already decided the merits of the case against appellant. . If the court has an official court reporter . . . art. 2324 (Vernon 1971) imposes a mandatory duty on him to ‘(a)ttend all sessions of the court,’ and to ‘take full shorthand notes of all oral testimony offered.’ The trial judge has the responsibility to see that this duty is performed. ... If the reporter’s failure to perform this mandatory duty deprives a party of this right to an adequate review, the case should be remanded for a new trial." (Emphasis added.)

The judgment in the case before us was signed on March 12, 1975, which was before the effective date of the amendment to Art. 2324, V.A.T.S., “Duty of Reporter.” In other words, Art. 2324 was worded at the time the judgment in this case was rendered the same as it was worded when the Morgan Express, Inc. case was decided. When this case was tried it was the mandatory duty of the court reporter to report the evidence and the duty of the trial judge to see that it was reported.

Prior to the Morgan Express, Inc. case decision, there were two views on the following question: Where appellant was not present nor represented by counsel when the testimony was taken and later discovers that no record was made, must the appellant show in order to obtain a reversal that he was unable to obtain a statement of facts by agreement or by request to the trial judge?

At one time this Court was committed to the line of cases that holds that a defaulting defendant is not entitled to a reversal unless he shows that he was unable to obtain a statement of facts by agreement or by request to the trial judge. See Parker v. Sabine Valley Lumber Company, Inc., 485 S.W.2d 853 (Tex.Civ.App., Fort Worth, 1972, no writ hist.).

When the Supreme Court refused an application for a writ of error in the Morgan Express, Inc. case it appeared to be thereby established, from that time on, that the only showing that the appellant must make in order to be entitled to a reversal of a default judgment is that the court reporter’s failure to report the evidence in the case has deprived him of an adequate review. It was thus made to appear that this State then had a settled rule of law to go by on this point.

As stated, in the Morgan Express, Inc. case the defendant was served with citation, failed to answer, and a default judgment was rendered against him. In the case before us the defendants filed answers, the case was set for trial, the defendants did not appear at the trial, and were not represented by counsel at the trial, the plaintiff put on his evidence in defendants’ absence and the trial court rendered judgment against defendants.

Then comes the decision of the Beaumont Court of Civil Appeals in the case of Smith v. Smith, supra, at 535 S.W.2d 380. In the Smith case defendant answered and then failed to appear and was not represented at the trial of the merits. Plaintiff did appear. He presented his evidence to the court, and default judgment was rendered against defendant. The Beaumont court recognized that the judgment there rendered was also a default judgment. The appeal in the Smith case was by writ of error. The facts in the Smith case were the same as the facts in this case.

The Morgan Express, Inc. case is different from the Smith case and from this case in that there was an ordinary appeal in the Morgan case, instead of an appeal by writ of error, and the defendant had wholly failed to answer in the Morgan case before the default judgment was rendered. In this case and in the Smith case defendants had filed answers and later defaulted by failing to appear at the trial of the merits.

The Beaumont court, in the Smith case, held that a defendant who appeared by filing an answer but who was not present or represented at the trial and who appealed by petition for writ of error was not entitled to get the judgment reversed merely by showing that he was deprived of a statement of facts where the trial court had jurisdiction of the subject matter and parties and where the alleged invalidity of the judgment was not disclosed by papers on file in the case, and where the defendant did not allege a meritorious defense or attempt to explain his default.

No occasion was presented in this or the cases cited below to make any distinction between a true judgment by default and a judgment nihil dicit (by default) and we may therefore treat the judgment in the case before us and in the Smith case, supra, as default judgments, and likewise so treat the judgment in the Morgan Express, Inc. case. Mullen v. Roberts, 423 S.W.2d 576 (Tex.Sup.,1968) and Continental Oil & Gas Production Co. v. Austin, 17 S.W.2d 1114 (Tex.Civ.App., Eastland, 1926, no writ hist.). On the occasion for distinction between judgments by default and nihil dicit see Frymire Engineering Company, Inc., 524 S.W.2d 680 (Tex.Sup.,1975).

The court in the case of Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.,1965) stated: “Writ of error affords a review of the same scope as an appeal.”

We hold that because the judgments in the Smith case, supra, in this case, and in the Morgan Express, Inc. case, supra, are all defaults, and because the appeals by writ of error taken in this and in the Smith case afford a review of the same scope as did the regular appeal taken in the Morgan Express, Inc. case the same rule that controlled a decision in the Morgan Express, Inc. case should control the decision in this case.

When the Supreme Court refused the application for writ of error outright in the Morgan Express, Inc. case, supra, it adopted the opinion in that case as its own. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193 (Tex.Sup., 1962). Where the petition for writ of error is refused outright the Court of Civil Appeals opinion becomes authority of substantially equal dignity as an opinion of the Supreme Court. Landig Service Insurance Company v. Williams, 324 S.W.2d 597 (Tex.Civ.App., Waco, 1959, no writ hist.).

It is the constitutional duty of this intermediate appellate court to follow the law as announced in the Morgan Express, Inc. case, supra, in view of the fact the Supreme Court refused outright the application for writ of error therein made. 15 Tex.Jur.2d 596, Courts, Sec. 137; Shivers v. Good Shepherd Hospital, Inc., 427 S.W.2d 104 (Tex. Civ.App., Tyler, 1968, ref., n. r. e.); and Williams v. St. Anthony’s Hospital, 431 S.W.2d 377 (Tex.Civ.App., Amarillo, 1968, ref., n. r. e.).

We therefore hold that a party who has appeared in the trial court by filing responsive pleadings, but does not appear in person or by counsel at the time of the trial of the merits, is entitled to have the judgment reversed merely by showing that he has been deprived of a statement of facts when the appeal is by petition for writ of error.

The judgment is reversed and the cause is remanded to the trial court.


author: EVANS, Justice.

text:
    Milton C. LAMBERT, Appellant, v. Susan Mills LAMBERT, Appellee.
    No. 16784.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Dec. 16, 1976.

      Fidler & Boerstler, Donald H. Fidler, Houston, for appellant.
    Haynes & Fullenweider, Robert B. Wallis, Houston, for appellee.
   EVANS, Justice.

This is an appeal from the trial court’s order, after a non-jury hearing, increasing the father’s child support payments. Its judgment will be affirmed.

The parties were divorced by decree entered May 22, 1974. Under the divorce decree, the mother was awarded custody of the two minor children, Deborah, then 8 years of age, and Dinah, then about 3 years of age. The father was not required by the terms of the decree to make specific support payments to the mother for the children’s benefit; however, in accordance with the terms of the parties’ property settlement agreement, the father was directed to pay, as child support, the monthly debt installments, taxes, and other charges due on the homestead property which was set apart to the mother. The monthly installments were in the amount of $250.00 each and taxes and other charges approximated an additional $100.00 per month. After the hearing in the instant proceeding, the trial court continued in effect the husband’s duty to discharge the obligations with respect to the homestead, and, modifying its prior decree, additionally required the father to pay the sum of $200.00 per month to the Harris County Child Support Division for the support of the two children.

The mother testified that as the children had gotten older, their activities had increased, requiring additional financial assistance. The clothing bill for the two children had almost doubled. Dinah had eye problems and was required to wear glasses. Debbie had suffered intestinal disorders due to nervous tension and was undergoing psychotherapy. The food bill for the children had also increased as they had grown older. A neighbor who often kept the children and with whom the children had supper on many occasions testified that her food bill had increased approximately $200.00 a month. A list summarizing the mother’s testimony with respect to the various items of monthly expenditures for the children was introduced in evidence, indicating that her average monthly expenditure for the two children, not including their proportionate share of the house payment, taxes and insurance, was in the amount of $409.00.

The evidence indicated that the income of both parties had increased since the date of the divorce. The mother’s gross salary had increased from $550.00 per month to $785.00 per month. The father’s salary had increased from $1,308.00 per month to $1,800.00 per month; however, he testified that additional expenses actually caused a reduction in his take-home pay. The father had remarried and his present wife contributed her salary to their household. The testimony indicated she grossed between $165.00 and $170.00 per week and that her take-home pay was $91.00 per week.

The trial court found that there had been a general cost of living increase; that the father’s income had substantially increased since the date of the divorce; that both children had developed health problems requiring more medical and dental care; that the age and growth of the children were such that they required new clothing more frequently, and that the mother was employed and contributed to the support of the children. The court concluded that the evidence was insufficient to determine the father’s actual monthly expenses, but that there had been a material and substantial change of circumstances both with respect to the children and the father since the entry of the divorce, requiring an increase in the child support payments.

In his first three points of error the father contends that the evidence is legally and factually insufficient to support the trial court’s findings and that its order is against the great weight and preponderance of the evidence. In his fourth point he contends that the trial court committed reversible error in admitting evidence as to the income of the present wife, contending that it was immaterial to the issues before the court.

In Bernard v. Bernard, 491 S.W.2d 222, 224 (Tex.Civ.App.-Houston [1st] 1973, no writ), this court through Chief Justice Bell stated:

“There being shown a change in conditions since the original fixing of child support, the reduction of support and the amount thereof are within the discretion of the trial court. This court may not disturb the trial court’s action unless a clear abuse of discretion is shown. The court should keep in mind what is reasonably necessary to support the children. Further, the court may consider the ability of both parents to contribute to support. Both parents are under an obligation to help support their children. In determining whether there has been an abuse of discretion each case must stand on its own facts. Hobdy v. Lewis, 409 S.W.2d 428 (Tex.Civ.App.-Ft. Worth), n. w. h.
“In the case of Gully v. Gully, 111 Tex. 233, 231 S.W. 97, our Supreme Court stated the rule governing the father’s duty of support thus:
“ ‘In determining the duty of the husband to supply necessaries to his children, before and after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations, which may include those assumed to another wife and to other children, and in no event is he liable for food, clothing, attention, or education other than such as is suitable to his and their circumstances in life.’ ”

In the case at bar, the father contends that the testimony of his former wife with respect to her monthly expenses was conflicting and contradictory and that her testimony showed at best a general increase in the cost of living. He argues that evidence as to the ordinary growth needs of the children did not produce any unusual change of circumstances authorizing an increase in their support payments.

The rules for evaluating the testimony of interested parties are the same in jury and non-jury trials. Gibbs v. Wheeler, 306 S.W.2d 929 (Tex.Civ.App. — Austin 1957, writ ref’d n. r. e.). The trial judge, in a non-jury proceeding, must determine the witnesses’ credibility and the weight to be accorded their testimony. A party’s unfavorable testimony may be conclusive against his recovery but only when his admission is clear and definite and continues to stand unchallenged and unexplained at the close of all of his evidence. See United States Fidelity & Guaranty Co, v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.-San Antonio 1951, writ ref’d); McDonald, Texas Civil Practice, Vol. 3, Section 11.28.7, pp. 252-254. It is for the trier of fact to weigh and consider any contradictions and inconsistencies within a party’s testimony. J. Weingarten, Inc. v. Obiedio, 515 S.W.2d 308, 313 (Tex.Civ.App.-Houston [1st] 1974, writ ref’d n. r. e.).

“. . . [I]n a nonjury case the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Where there is evidence of probative force to support the findings and the judgment of the trial court, such findings will not be disturbed, even though the evidence is conflicting and the reviewing court might have concluded otherwise. [Citation omitted.]” Sauer v. Johnson, 520 S.W.2d 438, 441 (Tex.Civ. App.-Austin 1975, writ ref’d n. r. e.).

This court is unable to determine that the trial court abused its discretion in increasing the father’s child support payments in the amounts stated. There is evidence which, if believed by the court, showed an increased need on behalf of the children and an increase in the father’s financial ability to provide for the children’s support. The testimony with respect to the second wife’s income was relevant to the inquiry before the court, despite the father’s contention that his financial ability to pay increased child support was not in issue. Neither by his pleadings nor by stipulation did the father concede his financial ability to pay an increased amount of child support, and the mother properly offered proof of his financial ability. The first four points of error are overruled.

In his fifth point of error the father contends the trial court erred in denying his request for additional and amended findings of fact. The requested amended findings are not deemed material since they merely reflect differing inferences which may be drawn from the undisputed evidence. The requested additional findings are of an evidentiary nature and do not represent ultimate controlling issues in the case. This court can ascertain no error in the trial court’s refusal to grant the father’s request for amended and additional findings. See Morton v. Hill, 355 S.W.2d 269 (Tex.Civ.App.-Eastland 1962, writ ref’d n. r. e.). This point is overruled.

In his sixth point of error the father contends the conduct of the mother’s counsel in making prejudicial statements during the hearing was inflammatory and resulted in an improper judgment in favor of the mother. Some of the statements of counsel of which complaint is made may have been inappropriate, but there is no indication that the trial judge was improperly influenced by such remarks. In a non-jury case, where there is sufficient evidence to support the judgment, a presumption obtains that the trial court founded its judgment only upon competent testimony. Findley v. Decker, 499 S.W.2d 350, 352 (Tex.Civ.App.-Waco 1973, no writ).

In his seventh point of error the father complains that the trial court erred in awarding attorney’s fees in the amount of $750.00, contending that there is no reasonable basis in the evidence as to the time and effort spent by the mother’s counsel. There was evidence from which the trial court could have determined that the services were reasonably incurred in the prosecution of the case on behalf of the children’s mother. An itemized statement for services rendered on behalf of the mother was introduced into evidence showing that her counsel had expended a total of 35.75 hours which, at the agreed rate of $50.00 per hour, amounted to a total sum of $1,787.50. Adding an additional sum of $323.25 for out of pocket expenses, a fee for counsel’s services and expenses was rendered in the total amount of $2,175.69. The trial court’s order authorized total attorney’s fee of $750.00, and disallowed recovery of costs. The record does not indicate an abuse of discretion on the part of the trial court in awarding this fee.

The judgment of the trial court is affirmed.


author: MeCLOUD, Chief Justice.

text:
    Sidney S. FRANKE, Appellant, v. Gertrude FRANKE et al., Appellees.
    No. 4950.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 23, 1976.
    Rehearing Denied Jan. 20, 1977.

      Jack Ware, Uvalde, for appellant.
    Ralph S. Jackson, Sr., Beeville, for appel-lees.
   MeCLOUD, Chief Justice.

The principal question presented is whether trusts created under two wills violate the rule against perpetuities.

Sidney S. Franke and his sister, Gladys Franke Diehl, sued their five brothers and sisters, Gertrude Franke, individually and as executrix of the estates of Elfriede Franke and H. A. Franke, deceased, Arthur T. Franke, Edwin H. Franke, Beatrice Franke Richter, and Clarence B. Franke, seeking a partition and distribution of all property owned by the deceased parents of the parties, Elfriede Franke and H. A. Franke, at the time of their deaths. The wills of Elfriede and H. A. Franke established trusts which plaintiffs alleged were invalid or should be terminated. The court, in a nonjury trial, held the trusts were valid and denied partition. Plaintiff, Sidney S. Franke, has appealed. We affirm.

The will of H. A. Franke, dated May 13, 1950, provided in part:

“I hereby give, devise and bequeath all of the balance of my property to my daughter, Gertrude Franke, or in the event of her death or her inability or refusal to act, to my son Arthur T. Franke, as Trustee for my wife, Elfrei de Franke and my seven children, Arthur T. Franke, Edwin H. Franke, Gertrude Franke, Clarence B. Franke, Gladys Franke Diehl, Sidney S. Franke and E. Beatrice Franke.
a. My Trustee shall divide and partition my estate into as many equal parts as there are children at the time of my death. Each of those parts shall constitute and be held by said Trustee as a separate trust for each of my children or their descendants. The Trustee may, of course, administer the trusts in any way he or she deems proper, either as an undivided interest in property, or by divided interests in property. (If any of my children shall have died, leaving child or children, such child or children shall take the place of the deceased parent, and his or their part of my property shall pass to my Trustee and be administered just as would his parent’s part, were the parent still living. In other words, a child or children of one of my deceased children shall take the parent’s part of my estate.)
The above provision is subject to the following qualification:
Each of the above trusts shall contribute its proportionate share to any necessary expenses that my Trustee shall use for my wife, Elfriede Franke and my Trustee is expressly authorized and charged to use any of my property for the necessary and proper care and maintenance of my wife in the manner to which she is accustomed.
b. My Trustee is authorized at her or his descretion, to deliver to any of my children, from cash on hand belonging to such child’s trust estate, an amount of cash which my Trustee deems advisable.
c. My Trustee shall have the full authority to sell any or all of my real and personal property at any time and upon such terms she or he thinks wise, but if the majority of my children desire to sell the property, my Trustee shall do so, with this limitation:
My half interest in my real property shall not be sold by my Trustee unless and until my widow desires to sell her half interest in said real estate.
IV.
Until all my property is sold, I authorize my Trustee to manage and operate the ranch and use the personal property according to her or his best judgment.
V.
When the real estate is sold, all personal property belonging to my estate shall be sold within a reasonable time thereafter.
VI.
When my real estate and all personal property have been sold by my Trustee, each trust estate shall be, by my Trustee, delivered to each of my children to whom it belongs.”

The will of Elfriede Franke, dated May 13, 1950, was identical to the will of her husband except that in her will, H. A. Franke was designated as the beneficiary at each place where Elfriede Franke was named as the beneficiary in her husband’s will. Elfriede Franke died on January 20, 1966, and her husband, H. A. Franke, died on June 2, 1971. Both wills have been probated. Gertrude Franke is acting as trustee. The principal asset of both trusts is a 7,890 acre ranch in Maverick County, Texas.

Plaintiff, Sidney S. Franke, argues the ranch should be partitioned because the trusts violate the rule against perpetuities since no time limitation was designated for the termination of the trusts. We disagree.

The rule against perpetuities requires the vesting of interests within the period of the rule. In the instant case, the legal title vested in the trustee and the beneficial or equitable title vested in the named beneficiaries upon the death of Elf-riede and H. A. Franke. In Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903 (1954), the court held the trusts to be valid, and when confronted with the argument that the time for continuance of the trusts was indefinite, the court said:

“The rule, ‘as appears by its statement, relates only to the vesting of estates and interests, and not to their duration or ending.’ And it has no application to present interests, legal or equitable, in reality or personalty, whether or not alienable. 70 C.J.S., Perpetuities, § 8, page 584; Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600.
The generally accepted definition in this state of a perpetuity is:
‘A perpetuity is a limitation which takes the subject-matter of the perpetuity out of commerce for a period greater than a life or lives in being and 21 years thereafter, plus the ordinary period of gestation.’ Neely v. Brogden, Tex.Com.App., 239 S.W. 192.
It seems to be the law in this jurisdiction that the rule has no relationship to restraints on alienation or so-called indestructible trusts. If the deeds violate the rule against perpetuities they are void from the beginning, but that is not true where alienation has merely been restrained or where even a so-called spendthrift trust has been created. If the terms of the trust create a prohibited restraint, that limitation may be stricken without voiding the effect of the deed. Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904, opinion approved by Supreme Court, Rust v. Rust [Tex.Civ.App.], 211 S.W.2d 262, 267:
‘It is immaterial that full possession and enjoyment of the property is postponed beyond the period of a life or lives in being and 21 years thereafter with the ordinary period of gestation added.’ ”
The court further stated:
“. . .We are of the opinion that the beneficial or equitable title vested in the named living beneficiaries at the time of the execution of the deeds regardless of the attempted restraint on alienation. They had the fixed right of future enjoyment upon the termination of the trust.
On the very face of these instruments there is apparently no intention, express or implied, that the properties are to be taken out of commerce. In fact the trustee was charged with the duty of disposing of the land at his discretion and in his best judgment at the most favorable and opportune time.
The requirement of the rule in this respect is complied with when a future estate or interest becomes vested in interest regardless of when it becomes vested in possession.”

The court answered the complaint that the trusts contained no time limitation as follows:

“We are of the opinion that even though no limitation of time was imposed upon the trustees, the intention of the grantor would clearly indicate, and the law would imply, that they were to be given a reasonable length of time in which to carry out their obligations. What that reasonable time would be would involve all of the facts and circumstances. Parks v. Powell, Tex.Civ.App., 56 S.W.2d 323.
Should trustees be derelict in their duty and be guilty of abuse of discretion or of not moving with reasonable diligence, the beneficiaries would have resort to the court to determine and adjust the rights of the parties and to compel, if necessary, action on the part of the trustees. Powell v. Parks, 126 Tex. 338, 86 S.W.2d 725; 54 Am.Jur., Trusts, Sec. 180.”

See also: Rekdahl v. Long, 417 S.W.2d 387 (Tex.1967); Mattern v. Herzog, 367 S.W.2d 312 (Tex.1963); and, Zahn v. National Bank of Commerce of Dallas, 328 S.W.2d (Tex. Civ.App.-Dallas 1959, writ ref. n. r. e.).

Anderson v. Menefee, 174 S.W. 904 (Tex. Civ.App.-Fort Worth 1915, writ ref.), and Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247 (1937), relied upon by plaintiff, are distinguishable. In those cases, based upon the interpretation of the particular wills under consideration, the courts concluded that the beneficial interests did not vest within the time permitted by the rule against perpetuities. We hold that under the wills of Elfriede and H. A. Franke the beneficial or equitable title vested within the proper time.

The trial court concluded that a reasonable time had not expired for carrying out the duties under the Franke Trusts. The court found that the trustee had the discretion as to whether the Franke ranch should be partitioned or sold. Further, the wills expressly provided that a majority of the seven beneficiaries could compel the trustee to sell following the death of the surviving spouse. The record contains evidence that the ranch has increased greatly in value in the past few years.

We hold the trusts do not violate the rule against perpetuities and the court did not err in refusing to terminate the trusts and order a partition of the real estate.

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    MAGNUM MACHINE & TOOL CORP., Appellant, v. 1ST NATIONAL BANK OF SEGUIN et al., Appellees.
    No. 4971.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 23, 1976.
    Ted R. Cackowski, Austin, for appellant.
    Thomas R. Crump, Seguin, for appellees.
   McCLOUD, Chief Justice.

This is an appeal from an order denying a temporary injunction. The appellees neither filed a brief nor appeared for oral argument. Plaintiff, Magnum Machine and Tool Corporation, sought a temporary injunction enjoining defendants, First National Bank of Seguin and C. H. Donegan, Jr., from selling property of plaintiff under the provisions of a deed of trust. The trial court denied the motion for temporary injunction and plaintiff, Magnum Machine and Tool Corporation, has appealed. We affirm.

On August 1, 1973, Vahlco Corporation executed a Real Estate Lien Note in the principal amount of $10,000 payable to the First National Bank of Seguin. To secure the note, Vahlco executed a deed of trust in favor of the bank which designated C. H. Donegan, Jr., as trustee. The deed of trust covered real estate which was later transferred by Vahlco to plaintiff. The deed provided that the conveyance was made subject to the deed of trust in favor of the bank. The deed of trust contained a “dragnet” clause purporting to secure further advances:

“It being contemplated that from time to time Grantor will become further indebted to said Bank, this Deed of Trust and the lien created hereby shall secure any and all indebtedness of Grantor to said Bank of every nature whatsoever, whether created heretofore or hereafter, primary or secondary, until such indebt-ednesses are fully paid and until this Deed of Trust is duly released by said Bank, and the mere fact of repayment of all indebtedness of Grantor shall not terminate this Deed of Trust lien unless the same be so released by said Bank at the request of Grantor, otherwise it shall remain in full force and effect to secure all present and future indebtednesses of Grantor to said Bank, however the same may be evidenced. This Deed of Trust and lien shall not affect or be affected by any additional security that may be taken as to any indebtedness due said Bank by Grantor and shall not be affected by renewals or extensions of all or any part thereof, or by partial releases of any character whatsoever . .

On December 10,1973, Vahlco executed a note in the principal sum of $350,000 payable to the First National Bank of Seguin. This note recited on its face it was secured by inventory, retainages, and a “S.B.A. guarantee”. The “S.B.A. guarantee” referred to a guarantee by the Small Business Administration. This was the only Small Business Administration guaranteed loan that Vahlco obtained through the First National Bank of Seguin. On February 12, 1976, plaintiff paid the bank $5,368.33 which was the balance owed on the August 1, 1973, note. The $350,000 note was in default and is listed in the trustee’s notice of sale. Plaintiff contends the deed of trust did not secure the $350,000 note.

The court in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952) stated:

“. . . The granting or refusing of a temporary injunction is subject to a very different character of appellate' review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion . .

The rules applicable to temporary injunction cases were discussed in Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968):

“. . . To warrant issuance of the writ, an applicant is not required to establish that he will prevail on final trial; he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235 (1936). To be entitled to the writ when the only relief sought on final trial is injunctive, the applicant must show a probable right on final hearing to a permanent injunction. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.Sup. 1964). A necessary corollary of the preceding rule is that in no event should the writ issue for the protection of an applicant who does not show a probable right on final trial to a permanent injunction

Plaintiff argues the court erred in failing to grant the temporary injunction because the parties, Vahlco and the First National Bank of Seguin, did not reasonably contemplate an indebtedness similar to the S.B.A. guaranteed loan when the deed of trust was executed in connection with the $10,000 loan on August 1, 1973.

While discussing the validity of a “dragnet” clause, the court in Moss v. Hipp, 387 S.W.2d 656 (Tex.1965) said:

“. . . Provisions of this type apply only to indebtedness which was reasonably within the contemplation of the parties to the mortgage at the time it was made. See National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081 (writ dis.); Republic Nat. Bank of Dallas v. Zesmer, Tex.Civ.App., 187 S.W.2d 227 (no writ); 15 Am.Jur.2d Chattel Mortgages § 80; 14 C.J.S. Chattel Mortgages § 110. The trial court found as a fact that it was not within the contemplation of the parties to the note and chattel mortgage that the original loan would be secured by the mortgage, and the record does not show as a matter of law that the mortgage was intended to secure indebtedness of that nature . .

See also: Wood v. Parker Square State Bank, 400 S.W.2d 898 (Tex.1966).

The facts in Moss and Wood are distinguishable. Both cases dealt with claims purchased or otherwise acquired from third parties by the mortgagee against the mortgagor, and not with subsequent loan transactions between the mortgagee and mortgagor.

Tom Hollamon, the loan officer for the bank who handled the deed of trust transaction, testified that he discussed the “future advance clause” with James Osborne, who signed the note and deed of trust on behalf of Vahlco. At one point, Hollamon testified that he discussed with Osborne that “it would secure future advances”. There is evidence that the bank made frequent loans to Vahlco. When asked if the loans ranged from $5,000 to $20,000, Holla-mon answered, “And more, sometimes more.” Hollamon testified that at the time the deed of trust and $10,000 note were executed on August 1, 1973, he had never discussed with Osborne the possibility of obtaining a “S.B.A. guaranteed” loan. There is evidence in the record from which the trial court could have concluded the parties did not contemplate that the deed of trust would cover loans such as the $350,000 loan. There is, however, some evidence to support the implied finding of the trial court that the parties did contemplate that the deed of trust would cover all future loans made by the bank to Vahlco. Since there is some evidence to support the court’s implied finding, we cannot say the court clearly abused its discretion in denying the temporary injunction. International Ass’n of Machinists Lodge 1488 v. Downtown Employees Ass’n, 204 S.W.2d 685 (Tex.Civ.App. — Galveston 1947, writ ref. n. r. e.); Missouri Pacific Transp. Co. v. Union Bus Lines, 210 S.W.2d 846 (Tex.Civ.App. — Eastland 1948, writ ref. n. r. e.); Waterbury v. City of Katy, 541 S.W.2d 654 (Tex.Civ.App. — Eastland 1976, no writ).

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    Julia YOUNG, Appellant, v. Lee YOUNG, Appellee.
    No. 16792.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 23, 1976.
    Rehearing Denied Jan. 27, 1977.

      W. N. Shaw, Freeport, for appellant.
    Wommack & Hardin, Ben Hardin, Lake Jackson, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from that portion of a divorce decree requiring appellee to pay child support for only one of the three children born to his wife during the term of their marriage. The evidence established that appellee was the father of only one of the three children. The trial court concluded that appellee had no duty of support for the other two children. The appellant contends that appellee is the father of all three children by virtue of Article 12.02, Texas Family Code, and therefore has a duty to support all three of the children.

Three children were born during the marriage of Julia Young and Lee Young. Two of them were born while Lee Young was in prison. The evidence establishes, and the trial court found, that Lee Young was not the biological father of the two younger children.

Texas Family Code, Section 12.02 (1973) provides:

“(a) a child is the legitimate child of a man if the child is born or conceived before or during the marriage of his mother and the man.”

If this provision of the Family Code is applied literally a stepfather would in every case become the legal father of his stepchildren. The “man” would become the “parent” for the purposes of the Family Code of a child even though he wasn’t the biological father, if the child was born or conceived before or during the marriage of his mother and the man. See History of the Family Code, 5 Tex. Tech. Law Review 267, 415.

As a general rule an unambiguous statute would be applied according to its literal terms. Board of Insurance Commissioners v. Guardian Life Insurance Company, 142 Tex. 630, 180 S.W.2d 906 (1944). However, a statute will not be given effect according to its literal terms if the result would be entirely unreasonable and out of accord with justice. Brown & Root v. Durland, 126 Tex. 20, 84 S.W.2d 1073 (1935). Nor will a statute be interpreted literally if such an interpretation would lead to an absurd result. 53 Tex.Juris.2d, Statutes, § 135.

A statute should be construed so as to carry out the legislative intent, and when such intent is once ascertained, it should be given effect, even though the literal meaning of the words used therein is not followed. Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939).

A literal application of Section 12.02 would render certain other provisions of the Family Code surplusage. For example, Section 12.03(a) provides:

“If a husband consents to the artificial insemination of his wife, any resulting child is the legitimate child of both of them. The consent must be in writing and must be acknowledged.”

Section 16.03(c) and (d) as well as Section 16.05 contemplate the adoption of one spouse’s child by the other spouse. The Supreme Court of Texas considered a number of the sections of the Family Code including Sections 12.02 and 12.04 in seeking to determine whether or not the rights of a biological father had been abused. The court held that the alleged father of an illegitimate child is entitled by Section 11.09 to service of citation upon the commencement of any suit affecting the parent-child relationship between the child and the mother or any other person. The court held:

“The father then may seek voluntary legitimation under Sec. 13.01 . . ." In the Interest of K, a baby girl, 535 S.W.2d 168 (Tex.1976).

If Section 12.02 should be interpreted literally then the child might be considered the legitimate offspring of two different men.

The purpose of the legislature in enacting Section 12.02 was to make clear that the child of a man and a woman is a legitimate child if it is born or conceived before or during the marriage of its mother and father. It must be noted that in 1975 Section 12.02 was amended to substitute the word “father” for the word “man” in paragraph (a) thereof.

At common law a child born during a valid marriage is presumed to be the legitimate child of the parties to that marriage. Burtis v. Weiser, 195 S.W.2d 841 (Tex.Civ.App.—Beaumont 1946, writ ref.). This presumption can be overcome by proof of non-access. Zimmerman v. Zimmerman, 488 S.W.2d 184 (Tex.Civ.App.—Houston [14th] 1972, no writ). The trial court did not err in finding that the two children were not legitimate children of the marriage of Julia Young and Lee Young.

There is evidence that Lee Young requested Julia Young to place his name on the birth certificate of the second child as father. This was done. Thereafter Lee Young was released from prison on parole and lived with Julia Young, Jacqueline Young, his daughter, and Felishia Young. During the approximate one year period that he lived with them he treated Felishia no different than he did Jacqueline. Based on these facts Julia Young contends that Lee Young would be legally liable to support Felishia under the doctrine of adoption by estoppel.

An agreement to adopt is a necessary element of adoption by estoppel. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). The existence of such a contract may be proved by the acts, conduct and admissions of the parties and other relevant facts and circumstances. Cava-naugh v. Davis, supra. The facts recited above do not furnish a sufficient basis in evidence to require an inference that Julia Young and Lee Young had agreed that Lee Young should adopt Felishia as his child. Neither party was asked whether or not there was an agreement to adopt. Both were competent to testify at the trial. Under such circumstances the evidence would need to be strong indeed to support an inference of an agreement to adopt.

The trial court did not err in ordering child support for only the child of which Lee Young was the biological father.

The judgment is affirmed.


author: REYNOLDS, Justice.

text:
    KIMBELL PROPERTIES, INC., Appellant, v. Howard McCOO, Appellee.
    No. 8739.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 28, 1976.
    Rehearing Denied Jan. 24, 1977.

      Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellant.
    Brown & Brown, Phil Brown, Lubbock, for appellee.
   REYNOLDS, Justice.

In this damage suit filed in the county where the cause of action arose, the evidence is factually insufficient to establish that the defendant employee was acting within the course and scope of his employment so as to fix venue against the defendant employer outside the county where its principal office is situated. Reversed and remanded.

Howard McCoo, a Lubbock County resident, filed suit in Lubbock County to recover from Kelby Robertson and Kimbell Properties, Inc., a private corporation, his damages resulting from a collision of automobiles in Lubbock County. The collision occurred when the automobile driven by Robertson struck the rear end of a vehicle driven by John J. Waldrep and propelled it into the rear of McCoo’s automobile while McCoo and Waldrep were stopped for a traffic light. McCoo alleged that the negligence of Robertson, while he was working in the course and scope of his employment for Kimbell, caused the collision.

Robertson and Kimbell asserted their respective pleas of privilege to be sued in Pecos County, the county of Robertson’s residence, and in Tarrant County, the county in which Kimbell’s principal place of business is situated. McCoo controverted the pleas, insisting that his suit could be maintained in Lubbock County, where his cause of action arose, against both Robertson and Kimbell under the subdivisions 9a and 23 exceptions to Vernon’s Ann.Civ.St. art. 1995, the general venue statute. The trial court, without stating the bases of its ruling, overruled both pleas. Only Kimbell has appealed, contending that McCoo failed to sustain his burden of establishing venue in Lubbock County as to it under either exception.

Kimbell’s first challenge to retention of venue in Lubbock County is that McCoo failed to prove that Kimbell had an agent or representative in Lubbock County at the time the pleaded cause of action arose as he was required to do under subdivision 23. No other venue facts are questioned in this challenge.

Subdivision 23 provides that suits against a private corporation may be brought in the county in which its principal office is situated,

. or in the county in which the cause of action or part thereof arose ; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation . has an agency or representative in such county; or, if the corporation . had no agency or representative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which the plaintiff resided at said time in which the corporation . . . then had an agency or representative. (Emphasis supplied).

These provisions are permissive alternatives; therefore, when the venue facts establish that a cause of action or a part thereof arose in the county where a private corporation is sued, it is not necessary to show that the corporation has an agency or representative in the county. Anderson Company v. South Texas Planting Seed Association, Inc., 472 S.W.2d 592, 594-95 (Tex. Civ.App. — Corpus Christi 1971, no writ). See, also, Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676 (1936). The authorities cited by Kimbell to hold otherwise are those speaking to the last two quoted provisions of the statute which, unlike the provision invoked here, require a showing of a corporate agency or representative in the county of suit. Kimbell’s first two points of error are overruled.

The next and last two points are that McCoo failed to satisfy the requirements of either subdivision 9a or subdivision 23 because he adduced “no evidence” or “insufficient evidence” of the venue fact that Kim-bell’s employee, Kelby Robertson, was acting in the course and scope of his employment at the time of the automobile collision. A statement is appropriate.

Kimbell admitted that on the date of the collision Kelby Robertson was its employee to whom it had furnished the automobile involved in the accident. Robertson was a price administrator whose duties were to check prices at competing stores for comparison with Kimbell’s prices. He was given instructions of set plans to do each week. His hours were eight to six during five days of the week and “up ... to noon on Saturdays.” Robertson said that he “was on salary” and added that he “was paid per hour.”

The collision occurred on a Saturday, “right at noon” according to Robertson, who said, “I was on my way home, I was still getting paid for the work I was doing, I had not gone home yet.” Prior thereto, Robertson had checked prices at one store, and probably at two stores, and he “didn’t have a third stop.” He had “no doubt whatsoever” that he was on the job when the accident happened, although he said, “I don’t know what I was fixing to do that afternoon or at the time where I was headed.” After the accident, Robertson did not go to another store, but he went home.

McCoo testified that the collision occurred “around noon,” but when asked if he had stated when his deposition was taken six months earlier that it was 1:00 in the afternoon, he said he could not be sure of the time and could not say exactly it was twelve or one. The other person involved in the collision, Waldrep, testified that the time of the accident was “approximately eleven, between eleven or 12:00.”

To hold Kimbell accountable for Robertson’s negligence, it is necessary to show that Robertson negligently acted within the scope of his general authority, in furtherance of Kimbell’s business, and for the accomplishment of the object for which Robertson was employed. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057, 1059 (1940). The evidence that Kimbell employed Robertson and furnished for use in his employment the automobile involved in the collision gave rise to the presumption that Robertson was acting within the course and scope of his employment at the time of the accident. Broaddus at 1058. Absent proof to rebut the presumption, it is sufficient to establish that venue fact. Wheeler v. Nailling, 524 S.W.2d 552, 554 (Tex.Civ.App. — Texarkana 1975, no writ). However, upon proof to the contrary, the presumption vanishes and the burden is on the plaintiff to produce other evidence of course and scope of employment or his cause fails. Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex.Civ.App. — Waco 1933, writ ref’d). Robertson’s testimony that he did not have another stop and that he was on his way home rebutted the presumption that he was within the course and scope of his employment at the time of the collision. The question, then, is whether there is other evidence of probative force to support the trial court’s implied finding that Robertson was acting in the course and scope of his employment when the collision occurred.

Robertson’s testimony that he was on the job when the accident happened is a legal conclusion without probative value to show his course and scope of employment. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 361 (Tex.1971). The remaining evidence is sufficient for the fact finder to conclude that the collision occurred during Robertson’s hours of employment for which he was being paid, and it is some evidence of course and scope of employment; yet, a consideration of all the evidence reveals it is factually insufficient to support the finding that Robertson was then in furtherance of Kimbell’s business which was the object of Robertson’s employment. The consequence is that McCoo failed to discharge his burden to show by a preponderance of the evidence that Robertson was within the course and scope of his employment when the collision occurred. Accordingly, Kimbell’s “no evidence” point is overruled and its “insufficient evidence” point is sustained, which requires that the cause be remanded. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99-100 (1953).

The judgment is reversed and the cause is remanded.


author: CIRE, Justice.

text:
    Judith Ann IRICK et al., Appellants, v. Dr. William H. ANDREW, Jr., Appellee.
    No. 1492.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 29, 1976.
    Rehearings Denied Jan. 19, 1977.

      Jim M. Perdue, J. Richard Cheney, Andrew L. Todesco, Miller, Gann & Perdue, Houston, for appellants.
    J. Ritchie Field, James W. Steele, Deison, Crews, Field & Boyd, Conroe, for appellee.
   CIRE, Justice.

This appeal is from a take-nothing judgment in a medical malpractice suit.

Appellant Judith Ann Irick received x-ray radiation treatment for plantar warts on her left foot in the summer of 1969 from Dr. William H. Andrew, Jr., a physician specializing in radiology. In January, 1973 she developed an ulcer in the area where the warts had been removed, a condition which diagnosis showed to have been caused by radiation. Miss Irick and her father, appellant Edgar J. Irick, then sued Dr. Andrew for damages, alleging the physician was negligent in four particulars: (1) failing to properly administer the x-ray treatment; (2) failing to keep a proper observation of the variables and factors important to a proper x-ray treatment; (3) failing to administer the proper x-ray dosage; and (4) giving the patient x-ray treatment for an excess period of time. Appellants further alleged that the person, instruments, equipment, and facilities causing harm to Miss Irick were under the exclusive control of the appellee and invoked the doctrine of res ipsa loquitur.

At trial, the testimony outlined the nature of Dr. Andrew’s treatment, the extent of the alleged radiation damage to Miss Irick’s foot, and the means used to treat the resulting ulcer. It was shown that during the radiation treatment, Dr. Andrew had complete control of the x-ray equipment. Dr. Andrew, under questioning by appellants’ counsel, testified to the probability of complications occurring if proper radiation treatment was given:

Q Doctor, would you therefore agree if the proper dosage is given there is no injury to the normal tissue and to the patient?
A Yes, sir.
Q And the proper treatment in this case would have been to kill the offending warts without injury, without causing injury to the normal tissue?
A Yes, sir.
Q And if the proper treatment is rendered to a patient there are no extra complications or results, are there?
A I wouldn’t agree with that. Sometimes there are things that happen that can’t be explained.
⅜ * * * * *
Q Doctor, would you agree that to exceed the tolerance dosage for normal tissue causes complications to the patient?
A Yes, sir.
Q In the ordinary course of things then, Doctor, injury to a patient does not occur if the proper care is used in the treatment planning of a patient?
A Ordinarily not, but again things happen sometimes that can’t be explained.

Also, appellants had read into evidence the deposition of Dr. Warren M. Granberry, an orthopedic surgeon who treated the ulcer on Miss Irick’s foot; he diagnosed the condition as a non-healed post-radiation ulcer. Miss Irick later testified that she had received no other x-ray treatment on her foot since that given her by Dr. Andrew in the summer of 1969.

The case was submitted to the jury on four special issues. In addition, the trial court submitted this instruction:

You are instructed that an unexpected result, bad result, failure to cure, or any other circumstance showing merely a lack of success, is not evidence of negligence on the part of the defendant physician; negligence cannot be inferred solely from a failure to cure or unexpected result.

In attempting to submit the case under the doctrine of res ipsa loquitur, appellants requested an instruction on that theory, which was refused by the court. The jury found Miss Irick sustained a radiation injury to her left foot while under Dr. Andrew’s care, but found no negligence. The court entered a take-nothing judgment.

Appellants’ points of error one and two complain of the trial court’s refusal to submit the instruction on res ipsa loqui-tur. Under well-settled principles, this doctrine may apply to cases in which the character of the accident is such that it would not ordinarily occur in the absence of negligence and where the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex.Sup.1974). Use of res ipsa loquitur in medical malpractice cases is limited in Texas to instances where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony. Such cases include negligence in the use of mechanical instruments, operating on the wrong part of the body, or leaving surgical equipment inside the body. Rayner v. John Buist Chester Hosp., 526 S.W.2d 687, 639 (Tex.Civ.App.-Waco 1975, writ ref’d n.r.e.). The doctrine does not apply to the present case. The use of x-ray apparatus is not a matter plainly within the common knowledge of laymen. Moreover, although appellant has presented evidence that the treating physician was in control of the x-ray equipment, there is no expert testimony that the epidermal damage suffered does not ordinarily occur in the absence of negligence. Dr. Andrew’s agreement with the suggestion of appellants’ counsel that ordinarily complications do not occur under proper treatment does not make this a case for res ipsa loquitur. The mere fact that an unfavorable result is somewhat rare does not give rise to the inference of negligence. Southwest Texas Methodist Hosp. v. Mills, 535 S.W.2d 27, 30 (Tex.Civ.App.-Tyler 1976, writ ref’d n.r.e.). These points are overruled.

One of the arguments made by appellants in their brief urging this court to apply res ipsa loquitur to this case is the “conspiracy of silence” alleged to exist among the members of the medical profession. Although appellants’ brief cites considerable judicial and scholarly authority on the subject, they have presented absolutely no evidence that they had any difficulty in obtaining expert medical witnesses for this case.

In their third point of error, appellants contend it was error to submit the instruction quoted above. As discussed above, there was no medical testimony that the damage in this case would not ordinarily occur unless the treating physician was negligent and the case was therefore not to be submitted under res ipsa loquitur. But there was some evidence that Dr. Andrew administered an improper dosage of radiation, and the jury was entitled to consider the radiation burn along with the other evidence in determining the question of the doctor’s negligence. The instruction was thus an improper statement of the law as applied to this case. Forney v. Memorial Hosp., 543 S.W.2d 705 (Tex.Civ.App.-Beaumont 1976, no writ). This point is sustained.

Reversed and remanded.