author: DUNCAN, Judge.

text:
    Robert BLACKWELL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 13, 1976.
    Charles G. Wright, Jr., Chattanooga, for appellant.
    R. A. Ashley, Jr., Atty. Gen. David L. Raybin, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Thomas J. Evans, Asst. Dist. Atty. Gen., Chattanooga, for ap-pellee.
   OPINION

DUNCAN, Judge.

In this appeal, the appellant Robert Blackwell, complains of a judgment rendered on November 25, 1975, by the Hamilton County Criminal Court, wherein his probation was revoked.

On October 29, 1970, the appellant entered pleas of guilty in 2 cases in the Hamilton County Criminal Court to the offense of grand larceny in each case, receiving a penitentiary sentence of not less than 3 years nor more than 3 years in each case, the sentences to run concurrently. On November 30, the appellant’s sentences were suspended and he was placed on probation. Apparently, the supervision of the probation was transferred to the State of Florida. In December, 1972, the appellant was arrested in Florida and charged with robbery. On February 9, 1973, the Hamilton County Criminal Court ordered that a capias be issued for the appellant’s arrest for an alleged probation violation. On June 4, 1973, the appellant entered a plea of guilty to the Florida robbery charge, and received a penitentiary sentence of 5 years. The next development occurred on May 20, 1974, when a detainer was lodged by Tennessee with the Florida authorities.

The appellant alleges that after the de-tainer was filed, he took proper steps to comply with the Interstate Compact on De-tainers, but that the Tennessee authorities failed to return him to Tennessee and try him within 180 days as required by the Act.

At any rate, the appellant was paroled in Florida on October 31, 1975, and subsequently was returned to Tennessee on November 4. After a hearing on November 25, the trial court revoked his probation.

The appellant argues that the failure of the Tennessee authorities to comply with the Interstate Compact on Detainers denied him a speedy trial. We do not agree.

Tennessee Code Annotated § 40-3901 provides, in part, as follows:

“Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the •place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint;

In our opinion, the detainer involved herein was not based on any “untried indictment, information or complaint”; instead, it was based on a probation violation capias. A careful study of the Interstate Compact on Detainers convinces us that it applies only to an untried criminal offense which is the basis of a charge laid in an indictment, information, or complaint. We interpret the terms “untried” and “complaint,” as used in the Compact, as being synonymous with, or at least in the nature of, an untried indictment or information, since some jurisdictions use the term “complaint” in lieu of the terms “indictment” or “information.” The term “untried” refers to matters which can be brought to a full trial. In a probation revocation proceeding the trial has already been held, and the defendant has been convicted. In such a hearing, the defendant comes before the court in a completely different posture than he does at his trial before conviction. In discussing a similar situation as it pertained to a parolee’s rights at a parole revocation hearing, the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 2604-05, 33 L.Ed.2d 484 (1972), said:

“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.
“We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”

Our interpretation of the terms “untried” and “complaint,” as they are used in the Interstate Compact on Detainers, is supported by rulings in other jurisdictions. People v. Diamond, 59 Mich.App. 581, 229 N.W.2d 857 (1975); People v. Hallaway, 39 Mich.App. 74, 197 N.W.2d 335 (1972); Buchanan v. Michigan Department of Correc tions, 50 Mich.App. 1, 212 N.W.2d 745 (1973); People v. Batalias, 35 A.D.2d 740, 316 N.Y.S.2d 245 (1970).

In Buchanan v. Michigan Department of Corrections, supra, which involved a parole violation detainer, the Michigan court expressly held that, “The provisions of the interstate agreement on detainers are not applicable in cases of parole violation de-tainers.” In People v. Hallaway, supra, the Michigan court, quoting from the New York case of People v. Batallas, supra, said: “a charge of violation of probation is not in our opinion an ‘untried indictment, information or complaint’ . . . .”

From the record, we assume that the appellant was being supervised on his probationary sentences in Florida under authority of the provisions of T.C.A. § 40-3626, which allows a person placed on probation or parole in this State to be supervised in another state which has entered into an agreement with Tennessee to do so. We recognize that this agreement also provides that the sending state may retake the probationer or parolee without any formalities, unless he is suspected of having committed a crime in the receiving state, in which event he shall not be retaken without the consent of the receiving state, until discharged from prosecution or from imprisonment for such offense.

In our opinion, for the appellant to have been returned to Tennessee any earlier than he was, it would had to have been under the provisions of this statute, and only then if Florida had consented. It appears from the record that the Tennessee authorities made no effort to obtain Florida’s consent. Notwithstanding, unlike the 180 day provision of the Interstate Compact on Detainers, there are no time requirements contained in T.C.A. § 40-3626. Thus, since Tennessee did not invoke or attempt to invoke the provisions of this statute, we must consider such failure in light of the appellant’s complaint that he was denied a right to a speedy trial.

Tennessee Code Annotated § 40-2907 provides that when the trial judge learns of a possible violation of probation he issues a warrant for the arrest of the probationer. After the probationer is arrested, the statute requires that the probation hearing be heard “at the earliest practicable time.”

In his brief, the appellant cites Allen v. State, 505 S.W.2d 715 (Tenn.1974) for the proposition that the right to a speedy trial is applicable to a probation revocation proceeding, but as we shall later point out, there are marked differences between the Allen case and appellant’s situation. However, even accepting the Allen proposition, and considering the balancing tests enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we see no merit to the appellant’s speedy trial complaint.

Obviously, the delay in the present case was brought about by the appellant’s own misconduct that resulted in his incarceration in the Florida penitentiary. Although the appellant requested a speedy hearing, he was not readily accessible to the Tennessee authorities because of his confinement in a foreign jurisdiction. Moreover, we do not think the appellant was prejudiced by the delay involved. His violation (the robbery conviction) was a matter of record. He admitted it at the hearing. In no way did the delay hinder his efforts to defend himself. As a matter of fact, the appellant makes no allegations that the delay impeded his efforts to defend his case in any manner. Thus, the result would have been the same had his revocation hearing been held on the day after his conviction in Florida.

His argument that he may have missed an opportunity to have the trial judge run his revoked sentences concurrent with his Florida sentence is not sufficient to show prejudice in this case. The possibility that the trial judge would have so acted after he had already run the appellant’s original sentences concurrently and after the appellant had committed a robbery while on probation is so unlikely as to suggest its total impossibility. Further, the detainer had no effect on the appellant’s Florida prison status or privileges. At the hearing, the appellant testified that while this detainer was in effect, he was in a band which traveled throughout the State of Florida without a guard.

Further, in our opinion, the appellant can take no comfort from the holdings of Morrissey v. Brewer, supra, or Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the former requiring a prompt parole revocation hearing, and the latter applying the Morrissey principles to probation revocation hearings. At his revocation hearing in the present case, the appellant admitted his violation. In the Morrissey case, the court said:

“If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter.”

As previously indicated, the case of Allen v. State, supra, is distinguishable from the present case. In Allen, the court was dealing with an intrastate prisoner. The Allen court pointed out that the prisoner “was readily accessible throughout the period.” Allen, who was incarcerated in the Tennessee penitentiary during the entire time, was in custody of the Tennessee authorities from the outset. The present case, however, involves an interstate prisoner; one who was not in Tennessee’s custody until he was returned to this jurisdiction. He was not available until that time. Further, in Allen, the court found prejudice; in the present case, we find no prejudice.

The judgment of the trial court is affirmed.

DAUGHTREY, J., and JERRY SCOTT, Special Judge, concur.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    M. L. BROCKETTE, Commissioner of Education of Texas, et al., Appellants, v. WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 12558.
    Court of Civil Appeals of Texas, Austin.
    On Motion for Rehearing Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.

      John L. Hill, Atty. Gen., M. Lynn Taylor, Sp. Asst. Atty. Gen., Austin, for appellant, M. L. Brockette, Commissioner of Education.
    William Key Wilde, Kelly Freís, J. Wood-fin Jones, Bracewell & Patterson, Houston, for appellant, Houston Ind. School Dist.
    James E. Ross, William A. Harrison, Ross, Griggs & Harrison, Houston, for appellee.
   SHANNON, Justice.

The opinion of this Court filed on December 22, 1976, is withdrawn, and the following opinion replaces it.

This is an appeal from a permanent injunction entered by the district court of Travis County enjoining the Commissioner of Education from conducting a hearing inquiring into the validity of the creation of Westheimer Independent School District. Appellants are M. L. Brockette, Commissioner of Education of the State of Texas, the Board of Trustees of the Houston Independent School District, and the Houston Teachers Association. Appellee is West-heimer Independent School District.

On March 21, 1972, the County School Trustees of Harris County entered their order creating the Westheimer Independent School District, appointing an interim board of trustees, and apportioning the pro rata amount of the bonded indebtedness to the Houston Independent School District to be assumed by Westheimer Independent School District. The new school district was created from territory detached from Houston Independent School District and Spring Branch Independent School District.

Houston Independent School District prosecuted an administrative appeal to the Commissioner of Education. After hearing the Commissioner reversed the order of the Harris County School District Trustees.

Westheimer Independent School District perfected an appeal of the Commissioner’s order to the State Board of Education. After hearing and on October 7, 1972, the State Board of Education reversed the Commissioner’s order and affirmed the order of the County School Trustees of Harris County. Houston Independent School District did not perfect an appeal of the order of the State Board of Education to the district court of Travis County.

A desegregation suit against Houston Independent School District was filed in the United States District Court for the Southern District of Texas before the organization of Westheimer Independent School District. Westheimer was joined as a party to that suit in 1971 and was referred to therein as “The Proposed Westheimer Independent School District.” After October 7, 1972, and after Houston Independent School District did not appeal the order of the State Board of Education to the district court of Travis County, several parties in the desegregation suit, including Houston Independent School District, sought an injunction against Westheimer Independent School District to prevent it from commencing operations as a school. In order to establish that Westheimer Independent School District was an existing legal entity with the capacity to be sued, both Houston Independent School District and Westheimer Independent School District stipulated in the suit in United States district court as follows:

. . the administrative procedures prescribed by the State of Texas for the establishment of the Westheimer Independent School District were exhausted and thereupon, pursuant to the statutory law of Texas, the Westheimer Independent School District became established within the following territory in Harris County, Texas . .

Following the entry of the stipulation the United States district court enjoined Westheimer Independent School District from commencing operations for three years. The injunction has now expired and the United States district court has declined to renew or extend the injunction.

On March 29, 1976, the Board of Education of Houston Independent School District adopted the following resolution:

“RESOLVED, That the proponents of the proposed Westheimer Independent School District be placed on notice that the Houston Independent School District Board of Trustees opposes the creation and operation of the proposed Westheimer Independent School District; and be it further
“RESOLVED, That the attorneys for the Houston Independent School District are authorized to take whatever steps necessary to prevent the proposed West-heimer Independent School District from being created and from becoming operational.”

In July and August, 1976, counsel for Houston Independent School District wrote the County School Trustees for Harris County requesting, in effect, that the Trustees reverse their order creating Westheimer Independent School District. Counsel assigned many reasons for reversal of the order entered more than four years previously:

(1)Spring Branch Independent School District had now withdrawn its consent to detachment of the territory from its district.
(2) Testimony offered in the original hearing was not offered under oath and was not subject to cross-examination.
(3) The 1972 order was not supported by findings of fact.
(4) Westheimer Independent School District “. . . has not been established nor has it begun operation,” and that now a majority of persons now residing in the area have not signed a petition asking for the creation of the proposed district.
(5) The Board acted upon erroneous information related to the boundaries of Westheimer Independent School District, and that those lines created isolated islands of territory not contiguous to the balance of the territory of Houston Independent School District.
(6) There was no administrative or educational justification for the creation of Westheimer Independent School District.
(7) That an order of the United States District Court for the Eastern District prohibited the Commissioner of Education and others from approving changes in school boundary lines designed to maintain or encourage a dual school system based upon race.
(8) That Westheimer Independent School District should not be created because its creation would have an adverse effect on the ability of the Houston Independent School District to operate a “unitary school system.”
(9) That a recent survey revealed that a part of the Katy Independent School District is included within the boundaries of the Westheimer Independent School District.

The County School Trustees of Harris County refused to reverse its position and refused to grant the request for a rehearing. Houston Independent School District then appealed to the Commissioner of Education.

In its administrative pleading filed with the Commissioner, Houston Independent School District asserted many of the same grounds urged upon the County School Trustees of Harris County. The Commissioner set a hearing in the matter for November 4, 1976. By letter to all interested parties the Commissioner stated that evidence pertaining to any issue raised by the pleadings filed by the parties would be received and considered at the November 4 hearing.

In the meantime, the interim Board of Trustees of Westheimer Independent School District passed a resolution fixing the date for the election of permanent trustees and for approval of certain bonded debt questions for January 15, 1977.

On October 18, 1976, Westheimer Independent School District filed its petition in the district court of Travis County seeking injunctive relief against the Commissioner. In its pleading Westheimer Independent School District claimed that unless enjoined, the Commissioner would rehear the matter of its creation. Westheimer Independent School District claimed the Commissioner would pass upon questions concerning its creation in the November 4 hearing and hence was threatening to dissolve its creation resulting in irreparable injury to it and contrary to the laws of the State. Westheimer Independent School District claimed further that the Commissioner was further threatening to reverse an order of the State Board of Education, an action outside the bounds and limits of his authority and powers of his office.

Houston Independent School District intervened in the suit as did the Houston Teachers Association.

After hearing, the district court entered the injunctive order which the parties have agreed may be treated as a permanent injunction. The court incorporated findings of fact and conclusions of law within that order. The district court concluded inter alia that the Houston Independent School District did not appeal the October 7, 1972, order of the State Board of Education to the district court of Travis County and, as a result, the October 7, 1972, order became final. The court concluded further that the administrative proceeding commenced by Houston Independent School District in July, 1976, before the County School Trustees of Harris County, and appealed to the Commissioner of Education came “. too late, is improper, is absolutely of no effect, is null and void, confers no authority to [upon] the Commissioner to hold any hearing involving the Westheimer Independent School District.” The court concluded additionally that Westheimer Independent School District was legally created and was entitled to begin operations without “. further hindrance from anyone.” The court found finally that unless the Commissioner of Education was enjoined from conducting the scheduled hearing on November 4,1976, irreparable injury would result to Westh-eimer Independent School District and that there was no adequate remedy at law.

Accordingly, the court enjoined the Commissioner of Education from conducting the hearing of November 4, 1976, and in addition enjoined the Commissioner from conducting further hearings for the purpose of inquiring “. . . back into the validity of the creation of the Westheimer Independent School District.” The court also enjoined any party to the suit from interfering with the upcoming election for a permanent Board of Trustees for Westheimer Independent School District.

The validity vel non of the October 7 order was not put in issue in the injunctive proceedings in district court. Houston Independent School District did not plead in district court that the order was void, nor did it tender evidence in support of that contention. That matter, then, is not before this Court, and we express no opinion as to the validity of the creation of Westh-eimer.

In our opinion the district court correctly concluded that the order of October 7, 1972, was final. The reasons for our conclusion follow.

Though Tex.Educ. Code Ann. § 11.13(c) fixes no time limit during which the aggrieved party must file an appeal, such an appeal must be brought within a reasonable time. Midas Oil Co. v. Stanolind Oil and Gas Co., 142 Tex. 417, 179 S.W.2d 243 (1944), Board of Water Engineers v. Colorado River M. W. Dist., 152 Tex. 77, 254 S.W.2d 369 (1953), Combs v. State, 526 S.W.2d 648 (Tex.Civ.App.1975, writ ref’d n.r.e.). The order of the State Board of Education is now final because a delay of four years is, as a matter of law, unreasonable. Board of Water Engineers v. Colorado River M. W. Dist., supra, Combs v. State, supra. Appellants are, as a result, precluded from reopening the administrative proceedings.

Appellants contend, among other things, that Westheimer Independent School District has not exhausted its administrative remedies before resorting to judicial relief. Appellants say that Westheimer should await the determination of the Commissioner, and then, if needful, appeal to the State Board of Education. Appellants’ argument ignores the fact that Westheimer has already run the administrative gantlet which terminated successfully for Westh-eimer in the order of October 7. In another court and on another day, at least one appellant, Houston Independent School District, recognized that “. . . the administrative procedures prescribed by the State of Texas for the establishment of the Westheimer Independent School District were exhausted and . . . the West-heimer Independent School District became established . . .” Because the order of October 7 is final, there is no sound reason for forcing Westheimer through the administrative process a second time. The futility of requiring a second exhaustion of those remedies is apparent.

Even though the October 7 order may be final, Houston Independent School District argues that the matter should be reopened by the Commissioner. The case should be reopened, Houston says, because conditions have changed and new evidence has come to light. In support of that assertion Houston points to its contentions in its administrative pleadings that Spring Branch had withdrawn its consent, that perhaps people have moved out of and into the Westheimer territory, and that a new survey supposedly shows that some territory of the Katy school district is included in that of West-heimer and some Houston territory may have been left nonadjacent to its remaining territory.

It is true that administrative matters are sometimes re-examined by agencies even though final orders have been entered. Davis, Res Judicata in Administrative Law, 25 Texas L.Rev. 199 (1947). This occurs frequently wherein the agency is empowered to create an entity or to issue a license, but refuses to do so. At a later time the agency may reopen the matter upon a showing of changed conditions. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). For example, the Savings and Loan Commissioner may deny a charter for a savings and loan association for a particular location upon the basis of no public need and insufficient volume of business. The Commissioner is not precluded at a later time from entertaining an application for another charter for the same location, and from granting the charter should the changed economic facts warrant. Nevertheless, the Savings and Loan Commissioner, after a final order granting the charter for a new savings institution, should not be permitted to reopen the charter matter upon the basis of changed economic conditions.

The October 7 order of the Board of Education affirmed an order approving the creation of a new school district. That order was subject to appeal to the district court of Travis County, but after the lapse of a reasonable time without appeal the order became final. Counsel for all parties agree that after approval by the State Board of Education and without an appeal there was no other agency review or implementation necessary before the school district could become operative. But for the injunction in the desegregation suit, which has now expired by its own terms, West-heimer Independent School District probably would have been long ago operative. Four years after the creation of the school district, changed conditions or newly discovered evidence should not be the basis for reopening the matter of the creation of the school district.

The Commissioner of Education claims the judgment of the district court prohibits him from performing the duties imposed upon him by order of the United States District Court for the Eastern District of Texas sitting at Tyler. As a result, the Commissioner professes that he knows not whether to obey the order of that court or the judgment of the district court of Travis County. The district court’s judgment has not interfered with the Commissioner’s responsibilities imposed by the court at Tyler. The Commissioner is free to make such investigations and reports as are required.

Contrary to Houston’s contention, it is clear that the purpose of the Commissioner’s hearing set for November 4, 1976, was not to serve merely as a fact-finding proceeding to gather information for transmittal to the court at Tyler. An examination of the administrative pleadings and the Commissioner’s letter supports this conclusion. The prayer in Houston’s pleading asks, among other things, that the “decisions” of the Harris County Board of School Trustees be reversed as those decisions related to the creation and operation of Westheimer; that the creation of Westh-eimer be declared void and without effect; and that the creation and operation of Westheimer; that the creation of West-heimer be declared void and without effect; thereafter informed all parties that evidence pertaining to any issue raised by the pleadings filed by all of the parties would be received and considered by him at the November 4 hearing.

Finally, Houston argues that even though the October 7 order may be final, the district court’s judgment precludes a challenge by Houston, and others, of the validity of Westheimer’s creation in the appropriate State district court. We have concluded that the terms of the district court’s judgment may include that prohibition. We, therefore, reform the judgment to permit the parties, should they desire, to file such a suit in the appropriate district court of this State. In all other respects the judgment is affirmed.

Affirmed as Reformed on Motion for Rehearing.


author: COLEMAN, Chief Justice. PEDEN, Justice, COLEMAN, Chief Justice. PEDEN, Justice,

text:
    Ex parte Robert G. STRINGER, Relator.
    No. 16839.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 24, 1976.
    Rehearing Denied Jan. 20, 1977.

      Murray L. Lieberman, Houston, for relator.
    James H. Campbell, Houston, for respondent.
   COLEMAN, Chief Justice.

MAJORITY OPINION

This is a petition for writ of habeas corpus, an original action filed in this court. The Relator will be ordered discharged from the custody of the Sheriff of Harris County, Texas.

On July 12, 1976, Patsy and Robert Stringer were divorced. In the divorce decree the trial court found that the defendant had fraudulently deposited the sum of $11,000.00 in a savings and loan association in his mother’s name. The decree ordered Robert Stringer to “obtain said $11,000.00 and put it in Patsy Ray Stringer’s name in lieu of child support . . . ”

Patsy Stringer instituted a contempt proceeding and on October 28, 1976, Robert G. Stringer was found to be in contempt of court “by reason of his failure and refusal to place the aforementioned sum of $11,-000.00 in the name of Patsy Ray Stringer” and his punishment for such contempt was fixed at confinement in the county jail of Harris County, Texas, for a period of 150 days.

A petition for writ of habeas corpus was filed with this court wherein the Relator, Robert G. Stringer, complains that the order committing him to jail is void because (1) “the order under which the hearing was conducted and the commitment issued is vague and nonspecific . . . ” (2) “the Relator, over objection, was compelled to answer questions relative to his behavior which made the basis for his commitment, when said testimony was obtained in disregard of his constitutional privilege against self-incrimination.”

A transcript of the proceedings in the trial court at the contempt hearing reveals that the first witness called to testify was Robert G. Stringer. His attorney promptly objected to his being called as a witness and to his being sworn in as a witness on the ground that the testimony which he would be required to give might tend to incriminate him in violation of his rights under the 5th Amendment to the Constitution of the United States of America. This objection was overruled and petitioner was sworn as a witness. Thereafter the same objection was made to various questions put to Mr. Stringer. On each occasion the objection was overruled and the Relator was compelled to answer.

The principal questions arising in this case were considered by the Supreme Court of Texas in Ex Parte Werblud, 536 S.W.2d 542 (1976). In Ex Parte Werblud the court stated:

“The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the con-temnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor ‘carries the keys of [his] prison in [his] own pocket.’ ... In other words, it is civil contempt when one ‘may procure his release by compliance with the provisions of the order of the court.’ Ex Parte Hosken, 480 S.W.2d 18 (Tex.Civ.App. — Beaumont 1972). This is the settled rule in Texas. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948).
“Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court . . . This rule was well expressed in Ex Parte Hosken at 23: “ ‘Where the primary purpose of the proceeding is to vindicate public authority, the proceeding is usually denominated criminal. The action is punitive in nature. . . . Ordinarily, the punishment is fixed and definite and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.’ ”

In our case the testimony of Robert G. Stringer at the trial was that he had spent the $11,000.00 and was no longer able to comply with the order of the court. The penalty assessed against Mr. Stringer was imprisonment for a term of 150 days. No procedure was set out in the judgment by which Mr. Stringer could purge himself. The penalty is punitive rather than coercive.

In Ex Parte Werblud the court said:

“The state called Werblud as its first witness and Werblud’s attorney objected to this procedure on the ground that it violated his client’s privilege against self-incrimination. The court of civil appeals overruled the objection and Werblud was questioned extensively by the state concerning his knowledge of and control over the rendering plant operations. Many constitutional rights are accorded criminal contemnors, including the privilege against self-incrimination.”

Thereafter the court held that the defendant in a criminal case has the privilege of refusing to give any testimony in the case and that it is universally held that the defendant may refuse to be sworn at all. The majority opinion concludes:

“Werblud was charged with criminal contempt and his attorney correctly asserted his client’s privilege against self-incrimination as a reason that he should not have been sworn and compelled to testify at all.”

Here we have a defendant who is charged with criminal contempt of court and has objected to being called and sworn as a witness, and thereafter, to being required to answer specific questions. In each instance Mr. Stringer’s attorney correctly asserted his client’s privilege against self-incrimination. Mr. Stringer should not have been sworn and compelled to testify once he had asserted his privilege against self-incrimination. The order of commitment is void and Relator must be discharged from custody.

We call attention to a quotation from Ex Parte Hosken, 480 S.W.2d 18 (Tex.Civ.App. —Beaumont 1972), reading:

“The guilt or innocence of Relator is not brought into question by this habeas corpus proceeding — only the legality of his detention is relevant. Gilbert v. State, 437 S.W.2d 444, 447 (Tex.Civ.App. —Houston, 14th Dist. 1969, error ref. n. r. e.). Consequently, our action discharging Relator from custody under the order herein mentioned is without prejudice to the right of the court to try the issue of contempt in a proceeding conducted in accordance with law.”

The Relator is discharged from custody under the order of commitment dated the 28th day of October, 1976, in Cause No. 1,057,687, styled Patsy Ray Stringer v. Robert Gerald Stringer, in the Court of Domestic Relations No. 5, Harris County, Texas, Associate Justice Peden dissenting.

PEDEN, Justice,

dissenting.

I respectfully dissent.

We have not been furnished a copy of the affidavit of contempt filed by the complainant, Mrs. Patsy Ray Stringer. Therefore, when the Relator was ordered sworn as a witness (over his attorney’s invoking of the privilege against self-incrimination) we cannot say the trial judge was on notice that the proceeding was one in criminal contempt; that is, one whose primary purpose was to vindicate public authority rather than to obtain compliance with the court’s prior order.

Once the trial judge decided to issue a punitive order of commitment rather than a coercive one, the punishment indicates that the contempt was criminal, as distinguished from civil, in nature. I would presume that at this point in the non-jury hearing the trial judge disregarded all inadmissible testimony. There is sufficient testimony from other witnesses as to the Relator’s actions to support the trial judge’s order.

I would not declare the commitment order void.

ON MOTION FOR REHEARING

COLEMAN, Chief Justice.

MAJORITY OPINION

A motion for rehearing in the above captioned original proceeding has been filed, and in connection therewith a certified copy of the judgment entered in the trial court. The judgment differs from the commitment order in that it provides for confinement for 150 days, “at which time he shall be released, or he may purge himself of such contempt by putting the sum of $11,000.00 which he obtained from Surety Savings pursuant to the aforementioned Order of the Court, into the name of Patsy Ray Stringer at the said Surety Savings (River Oaks) in lieu of child support.”

Since the judgment entered by the trial court provided a method by which Relator could purge himself of contempt without suffering any punishment, the order was purely coercive, and was the type of order which ordinarily would be entered as sentence in a civil contempt proceeding.

It has long been the law in this State that witnesses in a purely civil proceeding may claim their constitutional privilege against self incrimination. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944).

In Dendy v. Wilson, supra, the Supreme Court of Texas held that a proceeding to declare a child a delinquent was a civil action. The court also applied the settled rule that a witness cannot be compelled to give evidence that will tend either directly or indirectly to incriminate himself, either in a civil case or in a criminal case.

It is a settled rule that contempt proceedings are criminal in their nature whether they grow out of criminal or civil actions, and the proceeding should conform as nearly as practicable to those in criminal cases. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 (1960).

In an original action to secure the release of one confined in jail under the judgment of a district court for failing to comply with a support order, the Supreme Court in Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), stated:

“The proceeding is unlike a civil suit. The person charged may not ignore the show cause order as he might ignore citation in a civil suit. He is commanded by the court to appear, and if he ignores the command he may be brought in under a capias. Moreover, one of the purposes of the hearing is to determine whether penal sanctions will be imposed against him; a fine may be imposed or he may be committed to jail, or both penalties may be inflicted. Article 1911, V.A.C.S. In addition, his imprisonment may be continued until he has purged himself of the contempt . . . The usual condition in this type of case with which the con-temner must comply in order to purge himself is the payment of a fixed sum of money, within his ability to pay, representing cumulated arrearages of support payments. The hearing has some of the incidents of a trial for crime and is quasi-criminal in nature . . .”

In Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972), it was held that the privilege against self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;

It has been pointed out that in this case the attorney for Relator claimed for Relator his privilege against self-incrimination and objected to the order of the trial court that Relator be sworn as a witness. It was settled in Ex Parte Werblud, 536 S.W.2d 542 (Tex.1976), that one charged with criminal contempt cannot be compelled to be sworn as a witness where his privilege against self-incrimination is asserted by his attorney. The Supreme Court recognized that numerous cases had been cited to them for the proposition that the privilege against self-incrimination is personal to a witness and must be claimed by the witness himself. One of the cases cited was Meyer v. Tunks, 360 S.W.2d 518 (Tex.1962). This was an original petition for mandamus to require the district judge to revoke his order overruling the motion of the petitioner to quash the State’s application to take petitioner’s oral deposition in a suit for removal of the petitioner from the office of sheriff. The court held:

“The gist of Art. 1, § 10 of the State Constitution is the same as that of the Fifth Amendment to the United States Constitution, namely, that the defendant in a criminal case shall not be compelled to give evidence against himself. The protection thus afforded is not against the propounding of the question but is the right to refuse to answer if he claims that privilege.”

Meyer v. Tunks, supra, clearly stands for the proposition that a removal cause is a civil action and is to be conducted according to the rules of civil procedure, and that the State Constitution does not exempt the officer from being examined as an adverse witness.

A strong dissenting opinion was written in Ex Parte Werblud protesting the discharge of the relator because the only reason for his discharge was that he refused to take the stand as a witness. Ex Parte Butler, 522 S.W.2d 196 (Tex.1975), was cited for the proposition that in a strictly civil action it was proper for the State to call the relator as a witness or to take his deposition, citing as authority Meyer v. Tunks, supra. However, the opinion in Ex Parte Butler does not reveal that the petitioner claimed his privilege and refused to be sworn as a witness. It does reveal that he declined to answer a question on the ground that the answer might tend to incriminate him, and the Supreme Court sustained his contention and ordered him released.

In the usual contempt action arising out of the violation of an order entered in a civil action, the judge is authorized to enter either a coercive order or a punitive order, or an order which is both coercive and punitive. Under such circumstances the nature of the order entered at the conclusion of the trial will not be determinative of the question whether the proceeding is for civil contempt rather than criminal contempt. The decision in Ex Parte Werblud, therefore requires that we hold that the trial court erred in requiring Relator to be sworn as a witness.

A different question would have been presented had the trial court entered an order granting immunity to Relator for prosecution on the criminal contempt aspect of this proceeding before requiring him to be sworn as a witness.

The question has arisen as to whether in this proceeding the error of the trial court in requiring the Relator to bé sworn as a witness and to testify to matters which were incriminating requires the further holding that the judgment entered by the trial court is void.

The attorney for the Relator’s former wife testified that Relator told him that he had the money and would pay it to his wife if she would meet him without the attorney being present. Patsy Ray Stringer testified that the money had not been deposited in her name. Before this testimony was given, however, Mr. Stringer had testified over the objection of his attorney on the ground of privilege that he had taken the money out of the bank and tried to put it in his wife’s name but that he was unable to do so because she was not there to sign the necessary papers. In response to a question by the court the witness also testified that he would be willing to comply with the court’s order if he had the money but that he did not have the money. At that time the court made this remark: “You are telling me then that the $11,000.00 that existed on August 12th is now gone also; is that true, sir?” to which the witness answered, “Yes, maam.” The court then stated, “Let’s proceed with this hearing.” Over objections the witness was then required to testify as to what he did with the money. His answer was that he spent it on a trip to California, Arkansas and New Mexico. He testified that he had “a few parties.” He testified that he took his brother with him and had parties in El Paso, Los Angeles, Hollywood, and Nuevo Laredo. He stated that he spent the money “on having a good time.” He stated that he spent the $11,000.00 in about one month. He further testified that at the time of the hearing he had $1,158.06, and that that was all the money that he had left out of the $26,000.00 he received in a settlement of a lawsuit. He also testified that he had a home and a truck which was awarded him by the divorce decree.

The Relator was also required to testify with regard to another alleged violation of the trial court’s order requiring him to transfer the title to a certain automobile to Patsy Ray Stringer and he admitted that the title to the car had not been transferred.

The judgment of the trial court recited: “Robert Gerald Stringer did obtain said $11,000.00, but did not place same in the name of Patsy Ray Stringer and the Court finds that such action on the part of Respondent was wilful and deliberate and constituted a failure to obey this Court’s prior order . . .”

The trial court then “ORDERED, ADJUDGED and DECREED that the said Robert Gerald Stringer is guilty of contempt of this Court by reason of the act aforesaid, and that the said Robert Gerald Stringer as punishment for said contempt shall be confined . . .”

Relator’s testimony was clearly sufficient to convict him of deliberate and wilful disobedience to a lawful order of the trial court. Relator’s attorney could not comfortably argue, in view of the testimony of his client and the repeated rulings of the trial judge, that the evidence was too weak to support a finding that Relator was able to or did withdraw the $11,000.00 from his mother’s account in a savings and loan association as charged.

Neither could he in good conscience argue for a light sentence in view of the testimony of his client that he spent the money on a pleasure trip, presumably to avoid paying it to his wife for the support of his child. Relator was prejudiced by the ruling of the trial court.

A finding of prejudice is not required to support our holding that the order holding Relator for contempt is void. The failure to accord a defendant in a criminal contempt proceeding his constitutional privilege against self-incrimination renders the subsequent imposition of a penalty void and subject to collateral attack. Ex Parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972).

In Bloom v. State of Blinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Supreme Court of the United States held that dispensing with the jury in the trial of contempts subject to severe punishment represented an unacceptable construction of the Constitution. The court recognized that a jury trial was not required in a petit offense and that criminal contempt is a petit offense unless the punishment makes it a serious one. In the course of the opinion, however, the court said:

“Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both ... Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcements of their mandates.”

The court further stated:

“It is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and he cannot be compelled to testify against himself.”

The district courts of this State are authorized by Article 1911a to enforce its lawful orders by punishing one guilty of contempt by a fine of not more than $500.00, or by confinement in the county jail for not more than six months, or both. Section 3 of said Act provides: “Nothing in this Act affects the court’s power to confine the contemner in order to compel him to obey a court order.” The limitation of the punishment which the district court is authorized to impose for contempt under established law constitutes an alleged contempt a petit offense. While not all procedural rights constitutionally protected in the trial of a serious criminal offense are accorded the defendant charged with a pet-it offense, the privilege against self-incrimination is available to one charged with a petit offense. Article 1, Section 10, Constitution of the State of Texas; Ex Parte Werblud, supra.

The motion for rehearing is overruled, Associate Justice PEDEN, concurring.

ON MOTION FOR REHEARING

PEDEN, Justice,

concurring.

I concur in the result.

“The Supreme Court has had many occasions to emphasize the importance of the distinction between a proceeding in civil contempt and one in criminal contempt. Proceedings in civil contempt are between the original parties and are instituted and tried as a part of the main cause. Though such proceedings are ‘nominally those of contempt,’ the real purpose of the court order is purely remedial — to coerce obedience to a decree passed in complainant’s favor, or to compensate complainant for loss caused by respondent’s disobedience of such a decree.
“The respondent is entitled to due notice of the nature of the proceeding against him — whether of criminal or civil contempt. If respondent is answering a charge of criminal contempt, he ‘is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.’ ” (citations omitted) Parker v. United States, 153 F.2d 66 (1946), 163 A.L.R. 379.

Where the contempt proceeding is considered to be civil in nature, a constitutional provision declaring that a person is not to be compelled to testify against himself has been held not to apply. 17 Am.Jur.2d 36, Contempt § 32.

Under the usual notice given to a respondent in Texas contempt cases and under the provisions of Article 1911a, the trial judge may issue, after a hearing, either a punitive or a coercive order, or both. It appears that most of the questions asked the respondent in this case concerned his ability to comply with the court’s earlier order. The others did not inquire into any criminal act, so by answering them the relator would only have subjected himself to punishment by a punitive order in the contempt matter then on trial. I agree with the majority’s statement that had the trial judge granted the relator immunity from a punitive order a different question would be presented.


author: KLINGEMAN, Justice. CADENA, Justice.

text:
    Mauricio FRANK, Appellant, v. Paul KUHNREICH and Belinda, Inc., Appellees.
    No. 15641.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 5, 1977.
    Rehearing Denied Feb. 16, 1977.

      J. G. Hornberger, J. G. Hornberger, Jr., Laredo, for appellant.
    Roy J. True, True & Zable, Dallas, for appellees.
   KLINGEMAN, Justice.

This is a suit by Paul Kuhnreich and Belinda, Inc. against Mauricio Frank for specific performance of a lease agreement and for damages. Frank answered by general denial and a cross-action seeking a forfeiture and termination of the lease because of the failure of the lessee to comply with the terms of the lease. Both parties filed motions for summary judgment on the question of liability, and on December 20, 1973, the court found that a forfeiture and termination of the lease was not warranted; and based on this finding, the court granted plaintiffs’ motion for summary judgment and denied defendant’s motion. Trial on the damage issues was to a jury, and in response to the jury’s answers on the special issues submitted, judgment was rendered on January 22, 1976, awarding damages to the plaintiffs.

The lease agreement, between Paul Kuhnreich as lessee and Mauricio Frank as lessor, was entered into on February 15, 1969, covering certain property in Laredo, Webb County, Texas, herein referred to as the Iturbide Street property. This lease was for a period of five years, with an option to extend for an additional three years.

The pertinent portions of the lease here involved may be summarized as follows:

Paragraph 7. It is specifically understood and agreed that lessor will carry Fire and Extended Coverage Insurance on the building located on said leased premises. The lessee, however, shall carry liability insurance on the leased premises to protect both the lessee and the lessor with limits of not less than $100,000/$200,000 and the premium for said liability insurance shall be paid by lessee. In addition, the lessee shall carry plate glass insurance on the front windows and the premium for such insurance shall be paid by lessee.

Paragraph 13. It is understood and agreed that if rent or other monies remain unpaid for a period of ten days after mailing of notice by the lessor stating that same is unpaid, then failure to pay such rent by registered mail forthwith shall operate as a forfeiture under this lease at the option of the lessor and in the event that any default shall remain unremedied for fifteen days after written notice by registered mail, then the lessor may at his option declare this lease forfeited and the terms shall thereupon end and he may proceed as hereinafter provided.

Paragraph 15. The lessee covenants and agrees that if at any time there should be any default in the payment of any rent or any other consideration herein contained or neglect to perform and observe any or either of the covenants contained in this instrument, which on his part is to be performed, or the performance of any of the terms and conditions of this lease, then upon such default, the entire rent for the balance of the term shall, at the option of the lessor at once become due and payable, as if by the terms of this lease they were all payable in advance, or at the option of the lessor the tenancy hereby created may be terminated, and the said lessor, his heirs, representatives or assigns may cancel this lease forthwith at his option and may recover the possession of the demised premises and may dispossess all persons therefrom.

Paragraph 17. Should the premises herein be destroyed or rendered untenantable by fire or the elements, lessor agrees to cause to be rebuilt or repaired the improvements on said premises in essentially the same condition as they are at the inception of this lease. It is specifically understood and agreed that such replacement or repairs of such improvements shall be made within a reasonable time from the time that said premises become untenantable, and it is further agreed that during the time that such premises remain untenantable, the rent provided for herein shall be abated.

Paragraph 23. Lessee is hereby given the right and option to extend this lease for an additional three (3) years from and after March 31, 1974, upon the same terms and conditions as are contained in this lease, EXCEPT that the rental shall be as follows: (here follows schedule of monthly rentals). Should the lessee desire to exercise this option he shall give written notice to the lessor of his intention to so exercise such option on or before October 31, 1973. Failure of lessee to give such notice, as herein provided, shall operate to nullify and destroy the option herein granted.

Kuhnreich opened his business, known as Belinda’s, in the leased premises on April 14, 1969. It was operated as a ladies and men’s ready-to-wear store. A fire occurred on the premises on or about January 12, 1972, causing substantial damages. A fire sale was thereafter conducted by plaintiffs until about May 31, 1972, and possession was not relinquished by plaintiffs until on or about June 7, 1972.

On July 1, 1972, Kuhnreich subleased to Belinda, Inc. (all the stock of Belinda, Inc. was owned by Kuhnreich). Thereafter, Le-Baron, Inc., successor to Belinda, Inc., took over such operations in the latter part of 1972 or early 1973. Kuhnreich owns 50% of the stock of LeBaron.

Repair work on the premises started in September of 1972. There is some testimony that the lessee was getting apprehensive during this period and complained to the lessor about delay in the repair work, and there is also some testimony that the lessor attempted to negotiate for more favorable rentals under the contract. Frank contends that the premises wee substantially completed by December 1972, but there is some dispute as to this. On January 4, 1973, Frank, through his attorney, wrote to plaintiffs making certain inquiries about compliance with the provisions for carrying liability insurance, and on January 12, 1973, the attorney for Frank wrote to plaintiff and advised him that because of his failure to comply with the terms of the lease agreement, the lease was being terminated. On January 22, 1973, plaintiffs filed suit against defendant seeking specific performance and damages, as hereinbefore stated.

Frank asserts 43 points of error, some of which seek rendition while the others seek a remand.

A number of points of error complain that the trial court erred in granting plaintiffs’ motions for summary judgment.

There appears in this transcript a letter dated December 20, 1973 from the trial judge addressed to the attorneys of record, which is filed in the record of such cause and which purports to be the order granting plaintiffs’ motion for summary judgment and denying defendant’s motion for summary judgment.

The pertinent portions of such letter may be summarized as follows:

(a) Both parties filed motions for summary judgment, plaintiffs’ seeking specific performance and possession under the lease contract, and defendant seeking forfeiture and termination of the lease.

(b) There is no genuine issue of material fact.

(c) Defendant contends that the lease terminated because of failure to comply with the lease provision pertaining to insurance coverage, and that paragraph 15 of the lease is controlling.

(d) Plaintiffs contend that paragraph 13 of the lease is controlling, that they fully complied with the provisions thereof.

(e) The premises were not covered by liability insurance for certain periods of time, but it is undisputed that within 15 days after notification of such insurance default, such defaults were remedied.

(f) The motion for summary judgment of defendant is denied, and the motion for summary judgment of plaintiffs is sustained.

The letter contained in the records is not a proper method for entry of a judgment and we do not approve this kind of procedure. The letter contains statements and other material not ordinarily contained in a judgment and a letter of this sort addressed to the attorneys for purposes of appellate procedure is ordinarily a nullity. Benedict v. Benedict, 542 S.W.2d 692 (Tex.Civ.App. — Fort Worth 1976, no writ); Tejas Trail Property Owners Association v. Holt, 516 S.W.2d 441 (Tex.Civ.App. — Fort Worth 1974, no writ).

The final judgment, dated January 22, 1976, does not mention the motions for summary judgment and such summary judgments are not disposed of by direct language in such judgment. In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), the Court, in discussing the finality of judgments for appellate purpose, stated:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

Under such rule, the judgment, dated January 22, 1976, awarding damages to plaintiff, impliedly made all findings necessary to support the judgment, including the liability issues. The points of error are properly before us by virtue of defendant’s points of error pertaining to the motions for summary judgment, hereinbefore set forth, and also by points of error of defendant in which he complains that the trial court erred as a matter of law in granting judgment for plaintiffs and in not granting judgment for defendant, and in failing to grant defendant’s motions for judgment non obstante veredicto.

Frank makes no contention that there are any disputed issues of material fact as to the question of liability. His points of error as to liability assert: (a) it is undisputed that plaintiffs were in violation of the insurance provisions contained in the lease; (b) since plaintiffs clearly violated the provisions of the lease, under the terms of the lease no notice was required, and that the lease was effectively terminated by the letter of January 12, 1973; (e) the trial court erred in granting plaintiffs’ motion for summary judgment and in overruling defendant’s motion for summary judgment; (d) the trial court erred as a matter of law in granting judgment for plaintiffs’ and in not granting judgment for defendant; (e) the trial court erred in not granting defendant’s motion for judgment non obstante veredicto; (f) this case should be reversed and judgment here rendered in favor of defendant that plaintiffs take nothing.

We have concluded that the trial court did not err in granting plaintiffs’ motion for summary judgment and in refusing to grant defendant’s motion for summary judgment because of the following reasons:

(1) The courts do not favor forfeitures and unless compelled to do so by language that will admit no other construction, forfeiture will not be enforced. G. C. Murphy Company v. Lack, 404 S.W.2d 853 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (Tex.1949); 36 Tex.Jur.2d Landlord & Tenants §§ 253, 254 (1962).

(2) A written contract must be considered and construed together and various provisions or parts of the lease are to be construed as a unified whole unless they are so repugnant and inconsistent as to nullify each other. A lease, like other written agreement, should be given a reasonable construction that will carry out the intention of the parties as expressed by the language of the contract.

(3) A lease is governed by the general rule of construction of written instruments. Any doubts as to the meaning of the language of the lease are to be resolved most strongly against the lessor who prepared it. 35 Tex.Jur.2d Jury § 20 (1962); Fisher v. Tempco Aircraft Corporation, 324 S.W.2d 571 (Tex.Civ.App.—Texarkana 1959, no writ); Dedear v. Wilson, 220 S.W.2d 534 (Tex.Civ.App.—Austin 1949, writ ref’d); Pickrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.—El Paso 1927, no writ).

We have examined and considered the entire lease, including specifically, paragraphs 13 and 15 of the lease. Paragraph 13 of the lease clearly provides for written notice of default to be given lessee, with a specified time to cure such default and avoid forfeiture of the lease. We see no purpose for such provision in the lease if the parties intended that the lessor could terminate the lease without notice. The parties did not intend to do a useless thing.

A reasonable construction of the two provisions, taken together, is that after a particular default, the party in default was to be given written notice of such default with the right to cure such default within the time therein provided. The lease did not give the lessor the right to terminate the lease without notice, under the complete terms and provisions of the lease.

We have concluded that the trial court did not err in refusing to grant defendant’s motion for summary judgment and in granting plaintiffs’ motion.

We will next consider those points of error which, if sustained, will require a reversal and remand of this case. These points of error pertain to the jury answers on the damage issues. The jury found, in answer to special issues submitted, that (1) defendant could have turned over the leased premises in a tenantable condition on October 7, 1972; (2) defendant failed in turn over the leased premises to plaintiffs in a tenantable condition; (3) plaintiff, Le-Baron, as successor to Belinda, Inc., suffered loss of profits as a result of defendant’s failure to turn over the leased premises to plaintiffs; (4) the sum of $3,500.00 per month would reasonably compensate plaintiff LeBaron for its loss of profits. Based upon such jury findings, judgment was entered that Kuhnreich recover judgment against defendant for $550.00 a month commencing October 7, 1972, and continuing through March 31, 1974, an aggregate amount of $9,900.00; LeBaron recover judgment for $3,500.00 a month commencing on October 7, 1972, aggregating $63,-000.00. The court refused to award damages for the three year option period. Defendant alone excepted to the judgment and gave notice of appeal to this court.

By a number of points of error, defendant asserts that the jury’s answers to Special Issues 1, 2, 4, and 5 are supported by no evidence, insufficient evidence, and that the jury’s answers thereto are against the great weight and preponderance of the evidence. We will first consider the special issues which pertain to lost profits in which defendant asserts that the evidence concerning lost profits is too uncertain or speculative to support any recovery for lost profits; that the jury answers to these issues are insufficiently supported by the evidence; and are against the great weight and preponderance of the evidence.

The leased premises involved, sometimes referred to as the Iturbide Street Store, contains an area of 4,500 square feet. Such lease was prepared by Frank’s lawyer. In April of 1969 Kuhnreich established a business at such leased premises under the name of Belinda. Kuhnreich was the sole owner and the business carried on was a ladies and men’s ready-to-wear store. This operation continued until the fire occurred on January 12, 1972, causing substantial damage to the leased premises. A fire sale was thereafter conducted until about May 31, 1972, and on June 7, 1972 the premises were delivered back to Frank.

Kuhnreich testified that he intended to go back into business in this location when the premises were repaired. Kuhnreich further testified that it was his intention to operate therein a business which would include men’s wear, electronics, crystal, porcelain, gifts, and novelties. On the first day of July 1972, Kuhnreich made a sublease of the premises to Belinda, Inc., wherein Belinda, Inc. was to pay Kuhnreich $550.00 a month more rental than Kuhnreich was paying Frank. Kuhnreich was the sole owner of Belinda, Inc. Sometime after the fire, Belinda, Inc. leased 1,200 square feet of space known as El Lider at an entirely different location. This store was operated from March 1973 until October 31, 1974. The El Lider store sold televisions, stereos, calculators, crystal, porcelain, china, gifts, and novelties. Kuhnreich testified that the average monthly profit at the El Lider store was between $7,000.00 and $8,000.00 a month, but on cross examination he was unable to give specific information in regard thereto and stated that his accountant, Arthur Rossi, knew the details thereof. However, he did testify that for the first year of operation there was a loss of $14,-985.87, including a carryover loss of $29,-413.97.

There is testimony that the El Lider location was a temporary location, and Kuhn-reich testified that he intended to open another location at 1006 Grant, which was a larger store containing between 3,000 and 3,500 square feet. Plaintiffs continued to operate in the El Lider location until October 31, 1974, when they moved into the Grant location. This business is primarily an electronics business with much of the electronics equipment being sold into Mexico.

The only other witness who testified as to profits was Arthur Rossi, a C.P.A. who handles Belinda’s and LeBaron’s books. He stated that LeBaron’s was a business that sells electronics and a variety of other goods. He testified that LeBaron’s profits ranged from a high of $6,812.00 a month for a particular period (March 1974 to March 1975) to a low of $5,337.68 a year for the fiscal year which ended February 28, 1974, depending on whether or not officers’ salaries were included in computing such figures. It is seen that the supposed profits vary greatly depending on whether or not officers’ salaries are included. Moreover, there is testimony that plaintiffs had a income tax loss for some of the years involved. The figures are rather meaningless. The officers could, either by raising or decreasing their salaries, materially change the amount of profits.

He was then asked what the profits would have been if it would have been operating at Iturbide Street and stated that he did not have a positive opinion. He further testified that most of the sales made by plaintiffs were made into Mexico and that the amount of volume and the amount of profits would depend on whether the Mexican government permitted electronics devices to be taken into Mexico without payment of duty.

In Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938), the Court stated;

In the early decisions a rigid rule affecting the right of recovery for lost profits was announced. Modern business methods have caused a relaxation of that hard rule. .
The rule denying a recovery where the facts show that such profits claimed are too uncertain or speculative, or where the enterprise is new or unestablished, is still enforced, on the ground that the profits which might have been made from such business are not susceptible of being established by proof to that degree of certainty which the law demands * * *
It is impossible to announce with exact certainty any rule measuring the profits the loss for which recovery may be had. The courts draw a distinction between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. Cases may be cited which hold that uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery. A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages. . . . Where, . . . it is shown that the business was a going concern, and was making a profit, when the contract was breached, such pre-existing profit, together with other facts and circumstances, may be considered in arriving at a just estimate of the amount of profit which would have been made if plaintiff had not breached its contract.

In 17 Tex.Jur.2d Damages § 149 (1960), it is stated:

To substantiate his claim of lost profits the plaintiff must bring forward convincing evidence; opinions and mere estimates will not suffice. And lost profits will not be considered sufficiently proved in the absence of factual data offered to show prospective income, predicated on such factors as previous experience, past earnings of the same or a similar business, the competitive relationship of the business, and the prospects of continued public acceptance of the product or service offered.

The testimony as to lost profits may be summarized as follows:

(a) Plaintiff operated a ladies and men’s ready-to-wear store at the leased premises (1205 Iturbide). This covered the period from April 1969 to June 1972. The only evidence as to profits earned in such store was testimony that there was a $29,413.97 carryover loss in the years 1973 and 1974.

(b) All the other testimony as to profits pertains to the operation of an entirely different type of business (electronics, novelties, giftware, etc.) at entirely different locations. Even this testimony is conflicting with different figures as to taxable income and as to average monthly profits. The amount of such profits differ greatly depending on whether the profit includes the salaries of the officers of the corporation or whether it was exclusive of salaries.

(c) Plaintiffs’ accountant, when asked what plaintiffs’ monthly profits would have been if it was operated at Iturbide Street, stated that he had no positive opinion. There is no evidence whatsoever of any profits at the established business at the leased premises, 1205 Iturbide Street.

(d) Moreover, there is no testimony as to the desirability of the various locations involved. There is absolutely no evidence in the record as to the location of the stores, customer availability, the probability that the business will remain stable over a period of years, or the probability of increased business. There is no factual data which would show what profits, if any, would have been made at the leased premises.

The thrust of plaintiffs’ contention is that since there is testimony that he made “X” profits at a new and different location in an entirely different type of business, then, therefore, he is entitled to “X” profits. This does not necessarily follow.

Under the record before us, it is a matter of some conjecture and speculation as to whether plaintiffs suffered any damages. Their claim for damages is based on testimony that they were making “X” amount of profit as an electronics, novelties, and gifts business at two locations in Laredo, El Lider and Grant Street, but there is no testimony as to what effect the opening of another store selling these same type of items on the leased premises (Iturbide Street) would have had on the total amount of profits made; whether they would have been the same, less, or more.

In our opinion, plaintiffs failed to establish by competent evidence the amount of the damages, if any, that they sustained at the leased premises with that degree of certainty which the law requires.

Defendant also asserts that the trial court erred in holding Frank liable to Kuhnreich for damages in the amount of $550.00 a month, which is the difference in the amount Belinda, Inc., as sublessee, was to pay him as rent and the amount he was to pay Frank. The sublease between Kuhnreich and Belinda, Inc. was signed on July 1, 1973, after the fire and at the time Kuhnreich owned all the stock of Belinda and was the sole owner thereof. Kuhnreich admitted that he was basically leasing to himself.

A lessee has a duty to mitigate the damages, if possible, and the sublease, which Kuhnreich made, in effect artificially increased the amount of damages. There is no showing that the sublease agreement Kuhnreich made with Belinda, Inc. had any relationship to market value, and there is no showing that Kuhnreich suffered any real damages by virtue of this sublease. The court erred in awarding Kuhnreich damages in the amount of $550.00 per month.

Because of the errors hereinabove discussed, we have concluded that the judgment must be reversed and remanded.

By a cross-point, appellees urge that the trial court erred in not granting specific performance of the lease for the period covered in the option to extend the lease and that they are entitled to a calculation of their monthly damages so as to cover the three year additional period covered in such option. They ask for a modification or reformation of the judgment in this respect. Even if we were inclined to agree that the profits, if any, would be applicable also to this period, which we specifically do not herein pass on, there is no evidence in the record as to anticipated profits for such period of time. In view of our general remand, we will not consider such cross-point.

We have concluded that the judgment of January 22,1976 must be reversed, and that the interest of justice would best be served by a general remand.

The judgment is reversed and remanded to the trial court for a new trial.

CADENA, Justice.

I do not agree it was error to award $550.00 per month.

      . Demand is hereby made for you to present to me or Mr. Frank immediately competent evidence that the insurance referred to in such paragraph has been in force since inception of the lease.


author: BARROW, Chief Justice.

text:
    MAGIC CHEF, INC., Appellant, v. Anita SIBLEY et al., Appellees.
    No. 15695.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 12, 1977.
    Rehearing Denied Feb. 9, 1977.

      C. G. House, House, Mercer, House, Brock & Wilson, San Antonio, for appellant.
    Bob Gibbins, Austin, for appellees.
   BARROW, Chief Justice.

Appellant has perfected its appeal from a judgment entered on a jury verdict whereby appellee, Anita Sibley, individually and as next friend of her minor daughter, Sandra Jo Shifflett, recovered damages for injuries sustained by the minor as the result of a defectively designed range manufactured by appellant.

The jury found that the gas range, which was located in the apartment occupied by appellee’s baby-sitter on February 9, 1967, was defectively designed at the time it was sold to the owner of the apartment complex and that this defective design was a producing cause of the occurrence in question. The five-year-old girl sustained serious and painful burns which resulted in permanent disfigurement. Substantial damages were found by the jury and judgment was entered that appellee recover the total of such amounts.

Appellant’s brief contains fifty-three points of error. However, twenty-seven of these points of error have not been briefed by appellant and therefore are waived. Rule 418 Appellate Procedure in Texas, § 12.4(6) (1964). The twenty-six points briefed by appellant will be considered under seven propositions. 1. There is no evidence or insufficient evidence to support an affirmative finding that the range was defectively designed. 2. The trial court erred in admitting evidence relating to other incidents on this or similar ranges made by appellant. 3. The liability issue is improper in that inquiry is made as to the design of the range whereas all the evidence relates to the control valves on the burners. 4. The trial court erred in refusing to submit appellant’s requested issues on misuse of the range by the minor. 5. The jury argument of appellee’s attorney was improper. 6. The trial court erred in admitting hearsay evidence relating to mental anguish of the minor. 7. The trial court committed fundamental error in awarding damages for future medical expenses in an amount in excess of that sought by the pleadings. It should be noted that although substantial damages were awarded appellee, appellant has no point complaining of any award other than that for future medical expenses.

Prior to the incident in question, appellee and her three minor daughters occupied an apartment at Park North Village. Each apartment in this complex was furnished with a new Magic Chef range, Model 3030 IN. This model range is equipped with four burners plus an oven, and the control valve knobs for the burners are located on the front of the range. These valves are one-motion valves which are actuated by turning the pointer. This opens the valve and permits gas to enter the line and be ignited by the pilot light.

On February 9, 1967, Mrs. Sibley was working as a secretary and she left Sandra during the working day with Mrs. Ann Crane (Bunce), who also lived in an apartment at Park North Village. About nine o’clock that morning, Mrs. Crane made a pan of fudge for her two-year-old son and Sandra. After the fudge was cooked on a front burner, she turned off the range and put the pan on a back burner to cool. She told the children they could lick the pan after it had cooled. Mrs. Crane then took her little boy into the next room to change his diaper. While she was gone, Sandra pulled a chair up to the range and leaned over to get the spoon out of the fudge pan. The left front burner apparently ignited, Sandra’s blouse caught fire, and before Mrs. Crane could extinguish the flame, Sandra was severely burned on her upper torso. She was hospitalized for over three months and is still under the treatment of a plastic surgeon. Permanent damage has been done to her breasts which will require two or three operations in the future. In addition, she has received extensive psychiatric treatment and will require more in the future.

It is now firmly established in Texas that a manufacturer is liable for unreasonably dangerous products — whether designed defectively or improperly and produced as designed, or whether designed perfectly but improperly or defectively produced. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex. 1968); Restatement 2d, Torts § 395, 398 (1965).

There is evidence that the valve on this model range was designed with a torque of less than eight inch ounces. It was a one-motion valve which was turned on with only one motion. A two-motion valve, which would have cost about an additional $1.50, could not be accidentally turned on in that the knob has to be pushed in before the knob can be turned and the valve opened. There was lay and expert testimony that the torque on the one-motion valve of this model range was so slight that an accidental touch of the knob with one’s clothing could cause the knob to turn. This released the gas and the pilot light would ignite it. This design was made more dangerous by the location of the control knobs so as to protrude in front of the range. The defectiveness of the design on this model range was established by the expert testimony of Dr. Henry Grady Rylander. Although he did not conduct torque tests on the range in question, he did make torque tests on two similar models made by appellant. Dr. Ry-lander personally observed that the burner could be turned on by brushing the control knob with the coat on his suit. In addition to this expert testimony there was lay testimony that Mrs. Crane’s range had previously been accidentally ignited on other occasions by a slight touch of the body or one’s clothing. We conclude that there is sufficient evidence, if it is admissible, to support the jury’s finding that the range was defectively designed when purchased by Park North Village.

Appellant urges that this evidence of defective design was inadmissible and the trial court erred in overruling its objections to same. It asserts that the testimony of Dr. Rylander as to the torque tests conducted on other ranges was inadmissible and of no probative weight. It was conclusively established that these tests were made on the same model range as that on which Sandra sustained her injuries. All tested ranges were made by appellant and were equipped with the same type of control valves. These ranges were located in other apartments in the Park North Village. The range in question had been out of use for several years before Dr. Rylander was brought into the case by appellee’s attorney and it was shown that the torque on valves changes through non-use. The trial court did not err in overruling appellant’s objection to Dr. Rylander’s testimony as to the tests made on Magic Chef ranges which were the same model as the one in question.

Appellant also complains of the lay testimony as to other incidents which occurred on this or similar model ranges made by appellant. Mrs. Crane testified over the objection of appellant that her range had been accidentally ignited several times prior to the occasion in question when a control knob was brushed by clothing or one’s body. Mrs. Wood and Mrs. Dunlap testified, over objections, to similar experiences with the range in their own apartments at Park North Village. It was established that these Magic Chef ranges were the same model as that in Mrs. Crane’s apartment.

Although the question has had little consideration by Texas courts, it is recognized as a general rule that evidence of other accidents involving the same product is admissible to show its dangerous or hazardous nature if the accidents occurred under the same or substantially similar conditions as that involving the plaintiff. Annot., 42 A.L.R.3d 780 (1972). See also Keyser v. Lackey, 523 S.W.2d 295 (Tex.Civ.App. —Corpus Christi 1975, no writ); Davis, Evidence of Post-Accident Failures, Modifications and Design Changes in Products Liability Litigation, 6 St. Mary’s L.J. 792 (1974). We see no difference in evidence of this type to show that the design is defective from the evidence offered by appellant that no difficulty had been experienced by any other user of this model range. The trial court did not err in overruling appellant’s objections to this testimony.

The testimony of Dr. Rylander and the lay witnesses as to the slight torque necessary to activate the valve and thereby accidentally ignite the burner is sufficient to support the jury finding that the range in question was defectively designed at the time it was sold to Park North Village. Furthermore, there is sufficient evidence to support the finding that the defective design was a producing cause of the occurrence in question and the injuries to the minor appellee.

Appellant objected to the issue submitted on defective design of the range and urged that the inquiry should be confined to the question of whether the valve was defectively designed. It complains on this appeal of the action of the trial court in overruling its objection. Such contention is without merit. The valve was a component part of the range and appellant is responsible for its use. Malinak v. Firestone Tire & Rubber Co., 436 S.W.2d 210 (Tex.Civ.App.— Houston [1st Dist.] 1968, writ ref’d n.r.e.); Standard Motor Co. v. Blood, 380 S.W.2d 651 (Tex.Civ.App. — Houston 1964, no writ). Rule 277, as amended effective September 1,1975, makes it discretionary with the trial court whether to submit issues broadly. Here the only issue in the case related primarily to the slight torque necessary to activate the valve although there was evidence relating to the improper location of the control knobs on the range. The issue, as framed by the trial court, fairly presented the disputed issue of defective design to the jury. The trial court did not err in inquiring broadly as to the defective design of the range.

Appellant complains of the refusal of the court to submit its requested issues on misuse. Texas courts recognize misuse as a defense in a products liability suit. The determination of whether a product is defective must be made in light of the normal uses of the product and where it is misused, strict liability does not apply. Rourke v. Garza, 530 S.W.2d 794 (Tex. 1975); Heil Co. v. Grant, 534 S.W.2d 916 (Tex.Civ.App. — Tyler 1976, writ ref’d n.r.e.). Appellant requested two series of issues which would have presented the defense of misuse. One series inquired as to whether the range was not being used in a normal and customary manner on the occasion in question. The second series inquired as to whether the range was being misused at the time of the occurrence in question. Both series included an issue on producing cause and another issue on sole producing cause.

The evidence sufficient to raise either series is weak at best. Appellant contends that the range was being misused because Sandra was climbing or crawling on top on the range when the burner ignited. There was no direct evidence that she was on top of the range; nor do the circumstances compel such a conclusion. Sandra was the only eye-witness to the occurrence. Although she was only five years old at that time, and the trial was held over nine years later, Sandra testified that she fully recalled the events immediately prior to her injury. She testified that she wanted to get the spoon out of the pan on the back burner. To do so she pulled up the chair in that she was about the same height as the burners on the range. With the chair she could have reached the pan on the back burner without climbing or crawling on the range. She testified that she was leaning over and reaching for the spoon when she became ignited. Mrs. Crane corroborated Sandra’s testimony to the extent that the chair was beside the range immediately after the incident. While we recognize that Sandra is an interested witness and her testimony is not conclusive, we doubt that there are other circumstances in the record which would raise an issue of misuse. However, it is unnecessary to determine this point since the issues as requested by appellant are not in substantially correct form.

Appellant concedes that the issues it requested do not include the element of foreseeability. It has been held by our Supreme Court that foreseeability is significant in product liability cases when the product is what it is intended and known to be, but injury is suffered because the product is misused. C. A. Hoover and Son v. O. M. Franklin Serum Co., 444 S.W.2d 596 (Tex. 1969). A product is not “misused” merely because the manufacturer intended that it be used in a different manner; the manufacturer must show that the use which caused the injury was not reasonably foreseeable. Otis Elevator Co. v. Wood, supra; Heil Co. v. Grant, supra; Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex.Civ.App. —Houston [14th Dist.] 1975, no writ). Evidence was introduced that appellant recognized that children would be near the ranges and that the design must take this fact into consideration. Appellant’s requested issues are not in substantially correct form in that they do not include the element of foreseeability. Therefore, reversible error is not shown by the court’s refusal to submit same. Rule 279.

Appellant complains by two points of improper jury argument by appellee’s attorney. One point urges that the trial court erred in overruling its objection that the argument of appellee’s attorney was improperly advising the jury of the effect of their verdict. The other point asserts that appellee’s attorney made statements in the jury argument which were outside the record. Under these two points, appellant complains of several other statements made, without objection by appellee’s attorney during his jury argument.

The rules for appellate review of a complaint of improper jury argument have been well settled and it is unnecessary to restate same here at any length. Improper jury arguments are usually referred to as one of two types: “curable” or “incurable.” If “curable,” an objection must be promptly made by opposing counsel or the error is waived. On the other hand, if the argument is “incurable,” the failure to object does not result in a waiver. Otis Elevator Co. v. Wood, supra. The test for reversal is the degree of prejudice flowing from the argument; that is, whether the argument considered in its proper setting was reasonably calculated to cause such prejudice to the opposing counsel that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. Texas Sand Co. v. Shield, 381 S.W.2d 48 (Tex.1964); Olivares v. Travelers Ins. Co., 442 S.W.2d 793 (Tex.Civ.App. — San Antonio 1969, no writ).

All three jury arguments made in this case are in the record and have been reviewed by us. In his opening argument, appellee’s attorney, after several minutes of argument regarding the evidence pertaining to the issues on defective design, stated:

So I say to you, if it’s a defective product, then we’re entitled to damages, if it’s defectively designed. And if we’re entitled then to damages, then I need to discuss those because they’re very serious in this case. You haven’t heard damages disputed by one witness, but before I leave the defective design, I have to have that finding and I want to make sure that under the evidence that we all understand that the amount of pressure or force or torque to turn those knobs was fixed when that stove came out from Magic Chef.

At this point, appellant’s attorney objected that the argument was advising the jury of the effect of their answers. This objection was overruled by the trial court.

In his closing argument, appellee’s attorney stated without an objection:

Then he tries to imply that I asked for sympathy. Well, I say to you that we’ve never asked for any sympathy. And he says, ‘They,’ said this, and ‘they’ said that. Well, I’ll tell you right now, if you don’t find that this was a defective stove, if you don’t find that it was, just go right down here and put zero, zero, zero, because I will have failed in meeting my burden of proof. It will be the same thing. School’s out. I say to you that we tilted the scales ever so slight, and we’ve got to have an ‘It was,’ answer to No. 1, that it was defective, which means merely that it was unreasonably dangerous.

It is improper under our special issue submission to advise the jury of the effect of their answers. Cooper v. Argonaut Ins. Co., 430 S.W.2d 35 (Tex.Civ.App. —Dallas 1968, writ ref’d n.r.e.). It was thus improper for appellee’s attorney to advise the jury, in effect, by these statements, that it was necessary to secure a finding that the stove was defective before appellee could recover damages. However, we cannot say from our examination of the entire record that such argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

There were only two liability issues in the case: was the design defective, and if so, was the defective design a producing cause of the occurrence in question? The entire case was tried upon this simple theory. It was thus obvious to the jury before appellee’s argument that appellee’s suit was based on the contention that the occurrence was caused by appellant’s defective design of the range. Otherwise, there was no basis for recovery against appellant. See Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954); Cirilo v. Cook Paint and Varnish Co., 476 S.W.2d 742 (Tex.Civ.App. — Houston [1st Dist.] 1972, writ ref’d n.r.e.). Although the first statement was marginal as to its impropriety, appellant did not object to the second and much more direct statement by appellee’s attorney. We think an instruction by the trial court for the jury not to consider the effect of their answers would have “cured” the vice in this and the other arguments in a similar vein. Since we cannot say that such improper argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, it is therefore harmless error. Rule 434.

Appellant also complains that appellee’s attorney made statements in his jury argument which were outside the record regarding appellant’s right to inspect the range. These statements, which were made without objection, were in answer to appellant’s argument that if the range was defective, it would have been produced in court since one of appellee's attorneys had possession of the range. Reversible error is not shown by this argument. Nor was it error for appellant to argue the effect of a request for admission which was read to the jury without objection. Appellant correctly points out that the request should not have been read to the jury as it was never answered under instructions of the court; but since it was read to the jury without objection, error is not shown by commenting upon same in the argument. Furthermore, an objection to this statement would undoubtedly have been sustained by the court. Appellant’s points complaining of improper jury argument are overruled.

Appellant complains by two points of the admission of hearsay testimony which was introduced by appellee in an effort to show the mental anguish suffered by the minor girl. It is unnecessary to consider these points in that no complaint is made of the amount of damages awarded for mental anguish suffered by the minor.

Appellant’s final points complain that the judgment awards appellee the sum of $10,-000.00 for future medical expenses, whereas the pleadings sought only the sum of $5,000.00. The primary question before us is whether appellant may complain of this discrepancy for the first time on appeal.

Rule 301 provides in part that:

The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.

Rule 324 provides in part that:

[A] motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant;

Since the error in not conforming the judgment to the pleading does not come within any of the exceptions to the requirement that the points must be presented by an assignment in a motion for new trial as a prerequisite to appeal, appellant’s points have been waived unless they constitute fundamental error.

Although the Supreme Court has not undertaken to give an all-inclusive definition of fundamental error, it has stated that the field is a narrow one and has set down general rules to be followed in determining whether a judgment will be reversed on unassigned error. Generally speaking, the Supreme Court has limited its holdings of fundamental error to important matters directly and adversely affecting the public, and to questions of jurisdiction, particularly jurisdiction of the court over the subject matter in litigation. See Central Surety & Ins. Corp. v. Anderson, 445 S.W.2d 514 (Tex.1969); Newman v. King, 433 S.W.2d 420 (Tex.1968); State v. Sunland Supply Co., 404 S.W.2d 316 (Tex.1966); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).

The trial court’s error in entering judgment in this cause for future medical expenses in accordance with the jury verdict, but in excess of that sought by appel-lee’s pleading, would not constitute fundamental error. Since this error was not preserved by an assignment in appellant’s motion for new trial, it may not be considered on this appeal. Rule 374.

We have considered all points of error briefed by appellant and conclude that reversible error is not presented. Accordingly, the judgment of the trial court is affirmed.

      . All rules references are to Texas Rules of Civil Procedure.

      . The jury found substantially as follows:
      ISSUE NO. 1
      “Do you find from a preponderance of the evidence that the Model 3030 IN range manufactured by Magic Chef, Inc. was defectively designed at the time it was sold to Park North Village?
      Answer: It was defectively designed."

      ISSUE NO. 2
      “Do you find from a preponderance of the evidence that such defectively designed range was a producing cause of the occurrence and damages in question?
      Answer: It was a producing cause."

      Issues Nos. 3, 4, and 5 relate to damages.