author: RALEIGH BROWN, Justice.

text:
    MASCO INTERNATIONAL, INC., et al., Appellants, v. Richard M. STOKLEY, Appellee.
    No. 5161.
    Court of Civil Appeals of Texas, Eastland.
    June 8, 1978.
    Rehearing Denied June 29, 1978.

      Vance Dunnam, Dunnam, Dunnam & Dunnam, Waco, for appellants.
    William Andress, Jr., William Andress & Associates, Dallas, for appellee.
   RALEIGH BROWN, Justice.

Richard M. Stokley sued Masco International, Inc., Nick L. Spanos, and Gwen Mills as Administratrix of the Estate of Larry Mills, Deceased, on a promissory note in the principal amount of $57,500, and being part of the purchase price for all shares of stock of Universal Lubricants, Inc. Defendants filed a cross-action alleging false representation in the sale of the stock and sought damages in the amount of $60,000 as an offset and credit against the note. Based on the jury’s answers to special issues, judgment was entered against defendants for the principal, interest and attorney’s fees with no credit or offset allowed. Masco, Spanos, and Mills, Administratrix, appeal. We reverse and remand.

The jury found that Stokley represented to Spanos that (1) L. T. L. Corporation was in good standing with Hateo Chemical Company; (2) L. T. L. Corporation had a binding agreement to purchase lubricant from Hateo Chemical Company; (3) L. T. L. Corporation had the exclusive right to purchase lubricant from Hateo Chemical Company; and, (4) L. T. L. Corporation could supply Universal Lubricants, Inc. with all the lubricants it desired to purchase. Each of these representations were found by the jury to be false, were made for the purpose of inducing the purchase of the stock, were material facts, but were not relied upon by Spanos. Reliance is a necessary element of actionable fraud. Wilson v. Jones, 45 S.W.2d 572 (Tex.Comm’n.App.1932, holding approved). The jury also found appellants were damaged in the sum of $50,000.

Appellants first argue the trial court erred in overruling their motion for judgment non obstante veredicto because the evidence conclusively established that Spa-nos relied upon the representation of Stok-ley.

In passing on appellants’ first point of error, this court agrees with the court’s statement in Jack Criswell Lincoln Mercury, Inc. v. Tsichlis, 549 S.W.2d 255 (Tex.Civ.App.—Beaumont 1977, no writ):

“ . . .A trial court is authorized to enter judgment non obstante veredicto only ‘if a directed verdict would have been proper.’ Before such a motion may be granted, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). And, the trial court, in passing upon the no evidence point so presented must consider the evidence in the light most favorable to the jury’s findings, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary thereto. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). These rules have been followed uniformly by our courts for many years. See, e. g., Grundmeyer v. McFadin, 537 S.W.2d 764, 768 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). Thus, only a ‘no evidence’ point is before a court when considering a motion for judgment non obstante veredicto. This is, essentially, a question of law. See R. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Tex. L.Rev. 361, 362 (1960) ...”

Appellants contend that Stokley judicially admitted that Spanos relied on his representations and that such admission together with Spanos’ testimony resolved the reliance issue.

The pertinent testimony by Stokley follows:

“Q You represented to this man that Universal did have the exclusive agreement to purchase from L.T.L.?
A That’s right.
Q And you expected Mr. Spanos to rely upon that, did you not?
A I did.
Q And these facts were discussed between you and Mr. Spanos, were they not?
A They were. Also between L.T.L. and Mr. Spanos.
Q All right, and everything you told Mr. Spanos you expected him to rely upon, didn’t you?
A I did.
Q And you expected him to believe you?
A I did.
Q And in fact you told Mr. Spanos that L.T.L. had a good relation with Hateo and were able to buy the product from Hateo, and in turn, sell it on to Universal?
A That’s right.'
Q And you expected the man to believe you and rely upon it?
A I did.
Q In fact you told him that L.T.L. Corporation had a binding contract with Hateo to purchase the product from the manufacturer?
A I believe I showed him a copy of the contract.
Q All right, and you intended him to rely upon that, did you not?
A Sure.
Q In fact, you also told him that L.T.L. Corporation was the only company that had the exclusive right to buy the product from Hateo?
A That’s true.
Q And you intended this man to rely upon that statement?
A That’s true.
Q And you also advised him that L.T.L. Corporation could and would supply Universal Lubricants with all lubricants that Universal desired to purchase from them?
A That’s true.
Q And you intended this man to rely upon that, did you not?
A I did.
Q You intended Masco to rely upon that, did you not?
A One and the same.
Q Okay. In other words, when you were dealing with Mr. Spanos you knew you were dealing with Masco?
A (Witness nods head affirmatively.)”

Our examination of the record reflects that Stokley never retracted such testimony.

Spanos testified:

“Q State whether or not you were advised by Mr. Stokley that L.T.L. could and would supply Universal with all the lubricant it desired to purchase?
A Yes, sir, we were assured of that, yes, sir.
Q Did you purchase or cause to be purchased by your corporation, Masco, the shares of stock in reliance upon these representations which were made to you by Mr. Stokley?
A Yes, sir, uh-huh.
Q Would you have purchased the stock and paid that price had he not told you these things?
A No, sir.”

We do not agree that Stokley’s testimony constituted a judicial admission that Spanos relied on the representations.

The court in Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960) considering a judicial admission said:

“ . . . ‘As long as the * * * admission stands unretracted, the fact * * admitted, for the purpose of the case, is accepted as true by the court and jury and binding on the party making it, i. e., he cannot introduce evidence to contradict it.’ A number of Texas cases are cited to sustain this proposition.
In 169 A.L.R. 799, II, it is stated that ‘if a party, in his testimony, makes a material statement of fact negativing his right of action or defense, and no more favorable testimony appears to contradict or modify it, he is bound by it regardless of its credibility. * * * ’ Further, on pages 800-801, III, the rule is stated to be that ‘if a party testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case, his adversary is entitled to hold him to it as an informal judicial admission.’ On page 824, in discussing the Texas rule on this point, it is stated that ‘the Texas Court of Civil Appeals appears to have adopted the Missouri rule, “A party plaintiff testifying in his own behalf as to the existence of a fact is absolutely concluded thereby, unless he makes a correction thereof giving some excuse of mistake, oversight, misunderstanding, or lack of definite recollection,’” ...”

In Mobil Oil Company v. Dodd, 515 S.W.2d 351 (Tex.Civ.App. — Corpus Christi 1974, no writ), the court said:

“A judicial admission consists of a formal statement, either by a party or his attorney, in the course of a judicial proceeding which removes an admitted fact from the field of controversy. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App. — San Antonio 1951, writ ref’d). In effect, it is a substitute for evidence which takes the matter out of the domain of proof. It cannot be contradicted by the introduction of evidence contrary thereto. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960); McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1127; 39 Tex.Law Rev. 516. ‘A “judicial admission” is a waiver of proof’. Mahoney v. Mahoney, 103 S.W.2d 459 (Tex.Civ.App.—Amarillo 1937, writ ref’d). The doctrine should be applied with caution. United States Fidelity & Guaranty Co. v. Carr, supra.

Although Stokley admitted that he intended Spanos to rely on his representations, such does not constitute a judicial admission that Spanos did in fact rely on such representations.

Turning to the testimony of Spa-nos on the issue of his reliance on the representations of Stokley, we recognize Spanos to be an interested witness. The rule applicable to the testimony of such a witness is stated in Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458 (Tex.1969):

“ . . . The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. This rulé is not without exception, .however, and conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. There is an added reason for recognizing the exception when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so. On the other hand the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue. See James T. Taylor & Son, Inc. v. Arlington Ind. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371; Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640; McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722.”

We overrule appellants’ first point of error.

Appellants urge that the trial court erred in failing to grant their motion for mistrial when attorney for appellee informed the jury that Spanos had agreed to pay $40,000.

Appellants argue that during the entire trial they had taken a firm position before the jury that they were not indebted to appellee on the promissory note by reason of the misrepresentations. Appellants contend that regardless of being fully aware of such position, attorney for appellee while on re-cross-examination of Spanos deliberately stated before the jury that Spanos had agreed to pay $40,000 to Stokley. The record reflects the following:

“Q Mr. Spanos, from the time that you learned from your conversation with Mr. Peterson until this pleading in September of ’76, did you ever notify Richard Stokley in any manner that you thought that he had made any misrepresentations?
A You bet, yes, sir.
Q How?
A Mr. Stokley and Mr. Sorrells came to my terminal in Waco and they had a big deal about some Indian that owned a bunch of land in California and they could get a million acres for a hundred thousand dollars and Stok-ley said regardless if we have got a . suit going against each other, this is a business deal and I am not going to stand in the way, you and I can make a million dollars and at that time I told him I didn’t want to get involved bécause I had already been, I didn’t use the word cheat, I had already been taken advantage of on this Universal thing and I wasn’t interested in anything else.
Q Did you tell him specifically what you had in mind?
A I am talking about Universal Lubricants, yes, sir.
Q Did you tell him specifically about any of these so-called misrepresentations?
A You bet, yes, sir.
Q What they were?
A I told him about the forming of the new company because we could get product. Basically what we talked about here. Richard and Mr. Sorrells were in my office in Waco when this took place.
Q When was that?
A It was about June or July, somewhere in there.
Q Of ’76?
A ’75.
Q ’75?
A I believe — wait, we bought the company in ’75. It must have been right after we filed with Mr. Davis, it must have been about May or June of ’76, right.
Q And that’s the first time that you had said anything to him?
A Oh, no, we had telephone conversations about paying the bills and so on.
Q So Mr. Stokley then did know that you were claiming that there was misrepresentation?
A Yes, sir.
Q So the reason that you just testified about for not filing the pleadings to take his deposition and you didn’t want him to suspect that you were saying anything about misrepresentation and you had already told him, hadn’t you?
A Mr. Andress, we tried to get the truth out of Mr. Stokley and the only way we could do it was through a deposition and if we filed that in the pleading he would go to his attorney and receive advice — we wanted to get the truth out of him and the only way we could do it was in the deposition and if we had put that fraudulent remark in the pleadings he would have known about it and we wouldn’t have got the truth out of him.
Q He knew about it because you told him about it, didn’t you?
A He knew about it between his and my conversations which was without counsel. I talked to Richard, in fact, Richard came to Waco one other time prior to that.
Q Now tell me, was this conversation before you agreed to pay him $40,-000.00?
A That was in your office, sir, we talked about it.
Q It was in my office that you agreed to pay him $40,000.00?" (Emphasis ours).

It is well settled in Texas that evidence which shows an offer in compromise upon the issue of liability between the parties is improper and inadmissible, therefore, the statement by counsel concerning the $40,000 was error. Parks v. Benson Co., Builders, 393 S.W.2d 700 (Tex.Civ.App.—Fort Worth 1965, writ ref. n. r. e.); Spiritas v. Robinowitz, 544 S.W.2d 710 (Tex.Civ.App.—Dallas 1976, writ ref. n. r. e.); Standard Insurance Company v. Thomas, 383 S.W.2d 447 (Tex.Civ.App.—Tyler 1964, no writ).

We must resolve whether the trial court’s refusal to declare a mistrial under the circumstances presents a reversible error.

The testimony concerning the $40,000 compromise offer was not the result of an unresponsive answer of a witness nor was it even an answer given by a witness. The matter of the offer of compromise was directly injected into the evidence, not once but twice, by the experienced trial counsel of appellee. Counsel for appellee in directing such a question to the witness could have had n.o other motive than to convey to the jury that Spanos had admitted liability.

Upon the whole record, we believe that the improper question was not harmless but in the language of Rule 434, T.R.C.P., “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Howsley & Jacobs v. Kendal], 376 S.W.2d 562 (Tex.1964); Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951).

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Raymond Edward FRENCH, Appellant, v. Carrell Lee GRIGSBY, Appellee.
    No. 8128.
    Court of Civil Appeals of Texas, Beaumont.
    June 8, 1978.
    Rehearing Denied June 29, 1978.

      T. P. Flahive, Austin, for appellant.
    Mack Kidd, Austin, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment entered after a trial to a jury. Plaintiff recovered damages for personal injuries sustained when her motorcycle struck defendant’s automobile. Defendant’s answer pleaded several specific acts of negligence on plaintiff’s part and also pleaded that plaintiff had the last clear chance to avoid the accident.

The jury found that defendant was negligent in several particulars which proximately caused the accident and acquitted plaintiff of all acts of contributory negligence.

The trial court refused defendant’s requested issues tendering the last clear chance theory and this forms the basis of defendant’s first point of error. We overrule such point and in doing so adopt the rationale of the concurring opinion of Justice Pope in Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 633-635 (Tex.1976). See also de Anda v. Blake, 562 S.W.2d 497, 499 (Tex.Civ.App.—San Antonio 1978, no writ). The doctrine of last clear chance is no longer viable as a defensive issue in Texas.

In his amended motion for new trial, the defendant charged that the jury was guilty of misconduct which resulted in probable injury. The trial court heard ten of the jurors at the hearing on the motion and filed extensive findings of fact and conclusions of law. The only complaint warranting a discussion is that relating to a statement made by a juror with reference to payments by the Veterans Administration. Some of the court’s findings are set out in the margin.

The jury “allocated” $125,000 as follows:

Past physical pain and mental anguish: $10,000;
Future physical pain and mental anguish: $40,000;
Physical impairment: $75,000.

The first conclusion of law reads:

“There was no jury misconduct except the statement concerning the Veterans Administration, and that statement did constitute jury misconduct.”

Finally, the trial judge' concluded:

“The evidence at the hearing on the motion for new trial and at the trial, and the record as a whole, do not demonstrate that injury probably resulted to the defendant by reason of the jury misconduct.”

In Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451, 452 (1949), the Court said:

“The question whether injury probably resulted to the complaining party from the misconduct is a question of law to be decided in the first instance by the trial court and on appeal by the reviewing court.”

See also Central Power & Light Co. v. Freeman, 431 S.W.2d 897, 898 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); J. Pope, “Jury Misconduct and Harm,” 12 Baylor L.Rev. 355, 356 (1960).

The party asserting misconduct has a further burden as stated in Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969):

“The one complaining about jury misconduct has the burden to prove the overt act of misconduct, that it was material misconduct, and ‘from the record as a whole that injury probably resulted.’ Rule 327, T.R.C.P.”

For a detailed statement of the rules governing such a contention, see the discussion in Baucum v. Statewide Hot Shot, 550 S.W.2d 156, 159 (Tex.Civ.App.—Corpus Christi 1977, writ ref d n. r. e.).

After a careful review of the evidence adduced on the hearing of the motion for new trial, we are not convinced that defendant sustained the burden imposed upon him by the series of cases noted above. He did establish, as the trial court found, that the jury received new evidence during their deliberations; but it is apparent that the jury simply adopted the period of time used by the Veterans Administration—that is, a monthly interval for the determination of pain, physical impairment, etc. There is no positive statement from any juror as to the precise amount which the Veterans Administration would pay under such circumstances. Nor has there been a showing that the $200 per month figure (or the “rounded off” $2500 annual figure) was based upon evidence relating to the Veterans Administration.

The record as a whole, including the evidence heard at the hearing on the motion, does not establish that the trial was materially unfair to the defendant. Point four is overruled. St. Louis Southwestern Railway Co. v. Gregory, 387 S.W.2d 27, 31 (Tex.1965).

Defendant’s fifth point complains of error on the part of the trial court in entering judgment for the total damages set by the jury “because this amount was not based on the evidence, but was the result of passion or prejudice.” Defendant submits this point along with his point complaining of jury misconduct but does not refer to any record reference supporting his claim of passion or prejudice. He does argue that the individual jurors did have trouble fixing the amount of the “intangibles” (pain and mental anguish and physical impairment) and that they discussed their answers to the three special issues jointly and then “allocated” their total finding among the three issues—all as set out in the court’s findings.

No supporting authorities are cited and we find no merit to the complaint and it is overruled.

We turn now to a consideration of defendant’s second and third points of error by which he contends that the jury’s finding of $75,000 damages for physical impairment as a separate and distinct element of damages was supported by no evidence; or, alternatively, was against the great weight and preponderance of the evidence.

The jury had for its consideration nine elements of damages for which the court authorized it to award sums of money to the plaintiff. It denied any recovery for loss of household services in the past or future and fixed the amount of damages of $212,878.32, apportioned as set out in the margin. The charge did not contain any definitions or instructions with reference to the several elements of damages; but, defendant interposed no objections to the charge.

We do not pause to discuss the question of waiver of the points now under consideration but turn directly to the disposition of the questions presented by the brief of appellant. In our discussion of the contentions advanced — legal and factual insufficiency of the evidence to support the answer — we will follow the rules outlined in Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977) and Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When submitting a special issue on damages, the trial court may, for the jury’s consideration, direct their attention to specific elements of damages that are raised by the pleadings and supported by evidence. Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 (1948). In this case, the trial court submitted the elements of physical impairment, physical pain and mental anguish, and loss of earnings for the jury’s consideration. Such form of submission is discretionary with the trial judge. El Paso City Lines, Inc. v. Benjamin, 451 S.W.2d 257 (Tex.Civ.App.—El Paso 1970, writ ref’d n. r. e.). See also C. Cadena, “Comparative Negligence and the Special Verdict,” 5 St. Mary’s L.J. 688, 696-697 (1974).

“Physical impairment” and “diminished capacity to work and earn money,” or “loss of earning capacity,” are not always equivalent. Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 957-959 (Tex. Civ.App.—Tyler 1976, no writ); Green v. Baldree, 497 S.W.2d 342, 348-350 (Tex.Civ. App.—Houston [14th Dist.] 1973, no writ); Mikell v. La Beth, 344 S.W.2d 702, 708-709 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.); Riley v. Norman, 275 S.W.2d 208, 209 (Tex.Civ.App.—El Paso 1954, writ ref’d n. r. e.). Similarly, “physical impairment” and “physical pain and mental anguish” are not always equivalent. Green v. Baldree, supra, at 350; Charles T. Picton Lumber Co. v. Redden, 452 S.W.2d 713, 723-724 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). Therefore, the separate submission of an issue on physical impairment is sometimes proper; and, in our opinion this is one of the unusual cases wherein such submission was authorized. The Fourteenth Court of Civil Appeals in Green v. Baldree, supra, has stated the rule applicable:

“In order to be entitled to that submission [loss of earning capacity, pain and physical impairment as separate elements of damage] the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated.” (497 S.W.2d at 350)

We find the evidence to be legally and factually sufficient for the submission of the element of physical impairment. Plaintiff was an active young woman prior to her accident. She participated in several athletic activities — golf, tennis, volleyball, bowling, jogging — and enjoyed camping and hiking with her husband on his summer geology studies. Her friends testified that their friendship with her was based on their common interests in sports — tennis, golf, bowling, jogging.

Because of the accident, the joints in plaintiff’s left foot have been permanently altered; she has undergone two fusion operations to correct her foot but she still has difficulty walking and will be unable to fully participate in the athletic and outdoor activities which were such a central part of her life prior to the accident. Her doctor so testified:

“Q . . . I will ask you to assume that Carrell was quite active before her injury in athletics such as bowling, track, tennis, running, jogging. Would these be activities, athletic endeavors, that would be foreclosed to her as a result of this injury?
“A To my knowledge and examinations and histories, these are the things she cannot do now.
“Q And again from a medical standpoint, in a reasonable medical probability, would you expect that—
“A Well, I think if she was going to be able to do these things she’d have been able to do them by now. I think it’s probable that the situation regarding these .activities will not change.
“Q In other words, it will be a permanent limitation?
“A I think that’s probable, yes.”

The careful trial judge specifically cautioned the jury as to their answers to the damage issue:

“In answering this special issue you shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss, that is, do not compensate twice for the same loss, if any.”

The instruction was appropriate and proper in eliminating the possibility of a double recovery. See the discussion in 3 McDonald* Texas Civil Practice § 12.23.3, at 388-389 (1970 Rev.Vol.).

Our review of the record has not disclosed reversible error; consequently, the judgment of the trial court is AFFIRMED.

      . “One juror made a statement concerning the manner in which an injury of the kind suffered by the plaintiff would be handled by the Veterans Administration, and that juror mentioned a specific sum, substantially in excess of $200.00, which would be received each month from the Veterans Administration for such an injury.
      “The juror’s statement concerning the Veteran’s Administration was made while the jury was considering the damages issues, and after the jury answered all of the damages issues other than the three damages issues on physical impairment and past and future pain and mental anguish.
      “After the mention of the Veteran’s Administration there was discussion of ‘a monthly figure’; and the foreman, Mr. Hall, wrote down the figure of $200.00; and during the discussion that figure was multiplied by twelve months; that figure ($2400.00) was rounded off to $2500.00, which was multiplied by fifty years, ‘to come up with $125,000.00’. The jury allocated that amount Of $125,000.00 to its answers on physical impairment and past and future physical pain and mental anguish.”

        . This sum was divided as follows: past medical care — $6,228.40; past loss of earnings— $5,049.92; past physical pain and mental anguish — $10,000.00; future medical care— $6,600.00; future loss of earnings — $70,000.00; future physical pain and mental anguish — $40,-000.00; physical impairment — $75,000.00.

      . See Tex.R.Civ.P. 274; Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (1949); Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979, 981 (1948); Drake v. State, 488 S.W.2d 534, 538 (Tex.Civ.App. — Dallas 1972, writ refd n. r. e.).


author: JAMES, Justice. HALL, Justice,

text:
    H. E. BUTT GROCERY COMPANY, Appellant v. Susan LANSDOWN, Appellee.
    No. 5896.
    Court of Civil Appeals of Texas, Waco.
    June 8, 1978.

      J. W. Payne and Hance W. Burrow, III, Gardere, Porter & DeHay, Dallas, for appellant.
    Douglas R. Bergen, Bergen & Crow, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a venue case involving Subdivision 9a of Article 1995, Vernon’s Texas Civil Statutes. Plaintiff-Appellee Susan Lans-down brought this suit in McLennan County, Texas, against Shasta Bottling Co., a division of Consolidated Foods, Inc., (hereinafter called “Shasta”) and H. E. Butt Grocery Company, Inc., (hereinafter called “H. E. Butt”) alleging personal injuries to her left eye due to, among other things, the negligence of the Defendants Shasta and H. E. Butt occurring in McLennan County which proximately caused the injuries in question.

Defendant-Appellant H. E. Butt filed its plea of privilege to be sued in Nueces County, Texas, the alleged place of its residence, whereupon the Plaintiff Susan Lansdown filed her controverting affidavit seeking to maintain venue in McLennan County, Texas, under the provisions, inter alia, of Subdivision 9a of Article 1995.

The trial court after hearing entered its order overruling Defendant-Appellant H. E. Butt’s plea of privilege, from which H. E. Butt appeals. We affirm.

Appellant asserts error of the trial court in overruling its plea of privilege, contending there is no evidence of any act or omission of negligence on the part of Appellant which occurred in McLennan County, and no evidence that such negligence, if any, was a proximate cause of Plaintiff-Appel-lee’s injuries in question, within the purview of Subdivision 9a of Article 1995. We do not agree.

Plaintiff-Appellee Susan Lansdown testified that on or about January 5, 1976, she went to the H. E. B. grocery store located at 5524 Bosque Boulevard, in Waco, McLen-nan County, Texas, and purchased a bottle of Shasta carbonated tonic water. She said nothing unusual happened to the bottle between the time she bought it and the time she attempted to open it; she detected nothing abnormal about the bottle at the time she first picked it up; she noticed no leakage, and the sack in which the bottle had been placed was not wet; that she took it home and when she began to unscrew the top of the bottle, there was a loud pop and the top blew off and hit her in her left eye, thereby causing the personal injuries for which she sued; this event took place in her home which was located in McLennan County; that her home was about a block and a half from the H. E. B. store; that it was less than an hour from the time she bought the bottle of tonic water until the time the top blew off the bottle.

Prior to the hearing in the trial court, Plaintiff served requests for admissions upon Defendant H. E. Butt, Number 2 of which read as follows:

“Admit that H. E. Butt Grocery Co. does not inspect any of the bottled Shasta car-, bonated beverages sold by its retail stores for defective bottle caps.”

Defendant H. E. Butt answered this request for admissions in wording not necessary to detail here; suffice it to say that the trial court considered the answer to be evasive, whereupon said court deemed said request admitted by an order of the court signed and entered on October 20,1977. No complaint is made by Appellant concerning the propriety of the trial courtfs ruling deeming said request admitted.

Plaintiff-Appellee had the burden under Subdivision 9a of Article 1995, in order to establish venue in McLennan County, to plead and prove by a preponderance of the evidence: (1) that an act or omission of negligence occurred in McLennan County; (2) that such act or omission was that of Defendant H. E. Butt Grocery Co., Inc. or that of its servant, agent or representative acting within the scope of his employment; and (3) that such negligence was a proximate cause of Plaintiff’s injuries.

Plaintiff’s pleadings alleged that Defendant H. E. Butt was negligent in two particulars each of which was a proximate cause of the Plaintiff’s injuries; to wit: (1) in failing to inspect the bottle in question for the defective condition which existed concerning said bottle; and (2) for selling the bottle of tonic water in question in its defective condition to Plaintiff.

We are of the opinion that Plaintiff-Ap-pellee has met her burden of proof required by Subdivision 9a, taking into consideration her personal testimony together with Defendant-Appellant’s legal admission that it (Defendant-Appellant) does not inspect any of the bottled Shasta carbonated beverages sold by its retail stores for defective bottle caps. The trial court presumably considered all of this probative evidence which supports the court’s order wherein Defendant H. E. Butt’s plea of privilege was overruled.

Defendant-Appellant has other points and contentions; however, in the light of our disposition of the case, same have become immaterial.

Judgment of the trial court is accordingly affirmed.

. AFFIRMED.

HALL, Justice,

concurring.

I do not agree with the majority’s holdings that appellee proved a cause of action against appellant based on negligent eausation, and that venue can therefore be maintained in the county of suit under subdivision 9a of the venue statute. However, it is my view that appellee established a cause of action against appellant based upon the concept of “strict liability,” which was pleaded by her; and that venue is proper in the county of suit under subdivision 23 of Article 1995, which was invoked by appellee in her controverting plea. For those reasons I concur with the majority in affirming the judgment.

Findings of fact were neither requested by the parties nor filed by the court. The evidence shows that the bottle of carbonated water which caused appellee’s injury was in her possession from the time it was sold and delivered to her by appellant until her injury, and that it was not tampered with nor abused in any fashion during that time. That proof and the evidence (set forth in the majority opinion) showing the manner of appellee’s injury supports the court’s implied findings that the product was “in a defective condition unreasonably dangerous to the user or consumer” when it was sold and delivered to appellee by appellant and that its condition at sale caused appellee’s injury, and thereby establishes appellant’s liability without regard to negligence on its part. Section 402 A, Restatement of- the Law of Torts (2d ed.); Coca Cola Bottling Company of Houston v. Hobart, 423 S.W.2d 118, 123 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref. n. r. e.).

The record establishes that appellant is a private corporation, that it operates retail grocery stores in McLennan County, that appellee resides in McLennan County, and that the injury in question occurred in McLennan County. Under those facts, the court correctly held the suit can be maintained in McLennan County under the provisions of subdivision 23 of the venue statute.

      . § 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . 23. Corporations and associations. — Suits against a private corporation . . . may be brought ... in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation has an agency or representative in such county.


author: REYNOLDS, Justice.

text:
    Billy Ray WILLIAMS et al., Appellants, v. Coney Ray FINLEY, Appellee.
    No. 8895.
    Court of Civil Appeals of Texas, Amarillo.
    June 12, 1978.
    Rehearing Denied July 3, 1978.
    Fillmore, Lambert, Farabee, Purtle & Lee, Larry Lambert, Wichita Falls, for appellants.
    Richard D. Bird, Childress, for appellee.
   REYNOLDS, Justice.

Judgment was rendered for plaintiff’s full damages on a jury verdict embracing findings that both plaintiff and a defendant committed acts which were the proximate causes of a rear-end collision, but apportioning the negligence which caused the occurrence at zero per cent for plaintiff and one hundred per cent for the defendant. Plaintiff’s specific liability being unchallenged, the answer that none of his negligence caused the occurrence is against the great weight and preponderance of the evidence. Reversed and remanded.

Coney Ray Finley brought this action to recover for the personal injuries he sustained in a rear-end collision on US Highway 287 about five miles west of Quanah in Hardeman County, Texas. At that point, the highway, to accommodate two-way movement of traffic, is divided by a wide grass median into two roadways, each of which consists of two lanes for vehicular traffic and improved asphalt shoulders. The pickup truck Finley admittedly was driving with two wheels in the right hand lane and two wheels on the shoulder was struck from the rear by a tractor trailer driven by Billy Ray Williams in the course of his employment for Shoelman Lines of Texas, Inc.

In response to the submission of the cause under the Texas Comparative Negligence Act, Tex.Rev.Civ.Stat.Ann. art. 2212a (Supp.1978), the jury found that each of Williams’ failures to keep a proper lookout, to make timely application of his brakes, and to turn left timely was a proximate cause of the collision, and that Finley’s driving partly on the roadway and partly on the shoulder was a proximate cause of the collision. To the issue,

What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the drivers found by you to have been negligent?,

the jury answered: “Mr. Finley 0%” and “Mr. Williams 100%.” Finley’s total damages were assessed at $93,000 by the jury.

Finley moved for judgment on the verdict; Williams and Shoelman Lines moved for a mistrial. The court, reducing the jury’s award for past medical expenses by $82.55 to conform to the undisputed evidence, rendered judgment in favor of Finley for the sum of $92,917.45.

Williams and Shoelman Lines appeal from the judgment. The major portion of the appellate presentation is concerned with their contention, and Finley’s denial, that there is an irreconcilable conflict between the jury’s finding that Finley’s negligence was a proximate cause of the collision and the finding that none of the negligence that caused the collision is attributable to Finley. It is unnecessary to address that contention directly, for Williams’ and Shoelman Lines’ point of error directed to the factual sufficiency of the evidence to support the finding that none of the negligence which caused the collision is attributable to Finley must, under this record, be sustained.

No party objected to the charge or to the receipt of the verdict. The parties treat the verdict as sufficient to establish, and they represent, that Williams committed three negligent acts, that Finley committed one negligent act, and that each act committed was a proximate cause of the collision. We shall regard the verdict in the same light. Accord, Texas Employers’ Ins. Ass’n. v. Portley, 153 Tex. 62, 263 S.W.2d 247, 248 (1953). There being the representation of, and no challenge to, these specific findings of liability, they are binding on appeal. B. F. & C. M. Davis Co. v. W. E. Callaghan Const. Co., 298 S.W. 273, 276 (Tex.Comm’n App.1927, holding approved); Zapata County v. Llanos, 239 S.W.2d 699, 701 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.). Moreover, by moving in writing for judgment on the verdict, Finley affirmed that the findings are supported by the evidence and he is bound thereby. American Surety Co. v. Whitehead, 45 S.W.2d 958, 961 (Tex.Comm’n App.1932, holding approved).

A familiar principle of our special issue practice is that specific findings of liability control over general findings respecting liability. Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001, 1003 (1935). When applied to a comparative negligence situation, the principle dictates that issues establishing or negating liability control over the issue which apportions, rather than establishes, negligence. Tennessee Gas Pipeline Company v. Hartman, 556 S.W.2d 616, 619 (Tex.Civ.App.—Corpus Christi 1977, no writ); Ingles v. Cohen, 543 S.W.2d 455, 457 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.); Howard v. Bachman, 524 S.W.2d 414, 416-17 (Tex.Civ.App.—Eastland 1975, no writ). So here, the determination that the concurring negligence of Williams and Finley proximately caused the collision controls over any apportionment of their negligence for the collision.

The legal effect of the specific liability findings is to establish a causal connection between Williams’ and Finley’s concurring negligence and Finley’s damages. The Texas Comparative Negligence Act mandates that a plaintiff’s negligence, if not greater than defendant’s, shall not bar his recovery, but that any damages allowed plaintiff shall be diminished in proportion to the amount of negligence attributed to him. The negligence contemplated by the Act is that negligence which was a proximate cause of the occurrence in question. Howard v. Bachman, supra, at 416.

With the affirmation that the evidence supports the finding that Finley’s negligence was a proximate cause of the collision, the same evidence attributes to Finley some percentage of the negligence which caused the collision. Finley does not suggest, and we do not visualize, any circumstance of record which would tend to prove, or reasonably lead to the inference, that none of his negligence caused the collision. Instead, he does suggest that the “0%” answer is a figure of an amount which evinces the jury’s finding that his negligence was de minimis. If, however, that were the conclusion actually reached by the jury, then some percentage greater than zero was required to be fixed, for, by definition, minimis is at least something while “0” is a cipher for zero and, hence, amounts to nothing. Webster’s New International Dictionary (2nd Ed.).

Thus, given the evidentially supported and controlling finding that Finley’s negligence was a proximate cause of the collision, the portion of his negligence which caused the collision could not be zero. Accordingly, the “0%" answer is against the great weight and preponderance of the evidence in this record.

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


author: PHILLIPS, Chief Justice.

text:
    Sheron R. SHEPPARD, Jr., a/k/a S. R. Sheppard, Jr., Appellant, v. CITIZENS NATIONAL BANK OF AUSTIN, Appellee.
    No. 12747.
    Court of Civil Appeals of Texas, Austin.
    June 14, 1978.
    Rehearing Denied July 5, 1978.

      Rogan B. Giles, Austin, for appellant.
    John H. Akin, Pearce, Smith & Akin, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee bank filed suit against appellant on a promissory note. In response appellant filed a counterclaim against appellee bank for damages resulting from a breach of various alleged oral agreements. The trial court granted appellee’s motion for summary judgment on the note balance and severed appellant’s counterclaim against ap-pellee bank.

It is from this judgment that appellant has perfected his appeal to this Court.

We affirm the judgment.

Appellee bank brought this suit for the unpaid balance of a note executed by appellant, and, subsequently, appellee filed a mo-, tion for summary judgment. Then appellant filed his plea in opposition to appellee’s motion for summary judgment and also filed a cross-action against appellee alleging that appellee bank had violated the agreement concerning a schedule of repayment and renewal of the note; that the bank had induced appellant to cause his wife to pledge her separate property as additional collateral for repayment of the note and had also promised to release the collateral upon the fulfillment of certain conditions; and that even after the conditions had been met, the bank wrongfully foreclosed on the wife’s separate property; that appellant had expended funds in reliance upon the bank’s promises concerning the note’s repayment and renewal schedule; that the bank had sold the collateral that it held to its own agent at grossly inadequate prices at foreclosure sale; and that the acts of the bank had resulted in damage to the credit reputation of appellant.

After hearing appellee’s motion for summary judgment, the court took the matter under advisement. Several days later, ap-pellee filed a motion for severance seeking to sever appellant’s cross-action from the original case. The court granted appellee’s motion for severance and at the same time granted appellee’s motion for summary judgment.

Appellant is before us on two points of error, viz., the error of the court in granting summary judgment when there were material issues of disputed fact raised by appellant’s plea in opposition to the summary judgment; and the error of the court in granting appellee’s motion to sever appellant’s cross-action from the original cause of action and that the court abused its discretion by granting this severance. We overrule these points.

We are mindful that the movant for summary judgment has the burden of showing that there is no genuine issue of material fact raised by the summary judgment proof, and that in deciding there is a disputed issue .of material fact which precludes summary judgment evidence favorable to the nonmovant will be taken as true, and every reasonable inference in favor of the nonmoving party must be indulged in with any doubts resolved in his favor. Nevertheless, appellant’s defenses set out in his plea in opposition to the motion for summary judgment constitute inadmissible efforts to vary the terms of the promissory note. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (I960).

The essence of appellant’s controverting affidavit is that there was an oral agreement relating to the time for payment of his note and that the bank violated the agreement. In addition to the alleged oral agreement as to the time of payment, appellant alleges that he had spent money developing property in reliance on such agreement, that the bank violated the agreement in foreclosing against the property, and that the property was bid in at an inadequate price. Appellant also alleges appellee breached a repayment agreement. With the exception of the allegation that the property was bid in at an inadequate price, which facet we will discuss later in this opinion, these “understandings” “may not be shown by extrinsic evidence as a defense to the note, because it clearly contradicts the unconditional promise expressed in the written instrument to pay a sum certain in money on a fixed future date.” Kuper v. Schmidt, supra.

With respect to the allegation that an inadequate price was paid by the bank for the property, we hold that such defense was not sufficient to defeat the motion for summary judgment inasmuch as it is a collateral attack upon a trustee sale held prior to the institution of this suit and is, in itself, insufficient to constitute a valid attack on the sale. Mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Castle v. Appliance Buyers Credit Corp., 410 S.W.2d 485 (Tex.Civ.App. 1966, no writ). Also see Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965).

We also affirm the trial court’s order for a severance of appellant’s cross-action thus overruling appellant’s point relative thereto, and also overrule appellee’s cross-point asserting its right to a take-nothing judgment on the cross-action as a matter of law.

The trial court, as a general rule, is vested with broad discretion in the matter of severance of causes, and the action of the trial court in regards thereto will not be disturbed upon appeal except for abuse of discretion. Rule 41, Tex.R.Civ.P.; Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). Under the facts of this case, we hold that the court’s judgment ordering the severance was not such an abuse. See Cox v. Medical Center National Bank, 424 S.W.2d 954 (Tex.Civ.App.1968, no writ).

The judgment of the trial court is in all things affirmed.

Affirmed.

      . Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

      . Also see: Martin v. Coastal States Gas Producing Co., 417 S.W.2d 91 (Tex.Civ.App. 1967, no writ); McPherson v. Johnson, 436 S.W.2d 930 (Tex.Civ.App.1968, writ refd n.r.e.); Wyatt v. National Chemsearch Corp., 447 S.W.2d 715 (Tex.Civ.App.1969, no writ); Aetna Casualty & Surety Co. v. Watson, 476 S.W.2d 868 (Tex.Civ.App.1972, no writ).


author: O’QUINN, Justice.

text:
    CONTRAN CORPORATION, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, et al., Appellees.
    No. 12751.
    Court of Civil Appeals of Texas, Austin.
    June 14, 1978.
    Rehearing Denied July 5, 1978.
    Richard H. Hogle, Kolodey & Thomas, Dallas, for appellant.
    John L. Hill, Atty. Gen., Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

By this lawsuit Contran Corporation sought to recover corporate franchise taxes it alleged had been “paid under protest, under implied duress, and through mistake of law and/or [sic] fact.” In compliance with statutory requirement Contran named as defendants the Comptroller of Public Accounts, the Attorney General, and the State Treasurer.

Contran did not allege statutory or legislative resolution as the State’s consent to be sued, nor did Contran claim it had complied with any particular statute which grants consent to contest taxes alleged by the taxpayer to have been illegally collected.

The record shows that the franchise tax was paid on December 22, 1970, but the record does not show that Contran accompanied . . payment with a written protest, setting out fully and in detail each and every ground or reason why it is contended that such demand [for payment] is unlawful or unauthorized,” in conformity with Article 1.05, Title 122A, Taxation-General.

Contran does not insist that written protest setting out grounds therefor accompanied payment of the tax, but argues that correspondence between Contran and the Comptroller prior to payment made the Comptroller “aware of the specific ground of the . . . protest at the time the tax was paid.” At the time of payment, however, Contran did not reiterate or summarize grounds and reasons for resistance of the tax. In fact, payment was made without indication it was a payment under protest.

Both parties moved for summary judgment in district court. The trial court denied Contran’s motion and granted the State’s motion, and entered judgment that Contran take nothing by its suit. We will affirm judgment of the trial court.

Contran Corporation is successor in interest to Madigan Corporation. In 1969 Mad-ing-Dugan Company, a Maryland corporation, was doing business in Texas with all its assets and business activities situated in Texas. On April 29 of that year Mading-Dugan of Texas, Inc., a Texas corporation, was formed to merge with the Maryland corporation and assume and continue the existing business activities of Mading-Du-gan Drug Company. Thereafter, on May 21, 1969, the Maryland corporation was merged with the Texas corporation, as the surviving entity. When articles of merger were filed with the Secretary of State (of Texas), the Texas corporation contemporaneously changed its name to Mading-Dugan Drug Company. Late in 1969 the corporation took the name of Madigan Corporation, to which Contran is now successor in interest.

The controversy concerning franchise taxes arose after the Maryland corporation was required, prior to acceptance of the articles of merger, to pay the Texas franchise tax for the period from May 1, 1969, through April 30, 1970. Thereafter, when the Texas corporation filed its initial franchise tax return, it assumed that no franchise tax would be due for the same period because of the payment by the Maryland corporation. The Comptroller disagreed and assessed the Texas corporation from time of its incorporation in 1969 through April 30,1970, using as measurement of the tax the same capital base, assets, and business operations possessed by the Maryland corporation prior to and at the time of merger.

The position of the Comptroller is that (1) two separate corporations existed before the merger, (2) each corporation had the right to do business in Texas prior to the merger, (3) the Texas franchise tax is levied on the right to do business and not on exercise of the right, and (4) no provision is made in the Franchise Tax Act for apportioning the tax according to the length of time a corporation is actually in business.

The State also contended in district court, and contends on appeal, that Contran failed to assert by its pleadings “any statutory authority which invokes the jurisdiction of” the court, and in particular failed “to allege or comply with the statutory requirements for recovery of taxes believed by Plaintiff to have been wrongly collected from it.” The position of the State is correct, and we sustain its contention that the district court was without jurisdiction to entertain the suit and therefore properly entered judgment that Contran Corporation take nothing by its suit.

The State may not be sued without its consent, and consent may be obtained only through action of the Legislature, either by general law, or by resolution, or by bill in specific instances. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936); Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892 (Tex.Civ.App. Austin 1976, no writ). In bringing suit against the State, the petitioner must allege and prove consent, failing in which the court is without jurisdiction to hear the case. Walsh v. University of Texas, 169 S.W.2d 993, 994 (Tex.Civ.App. El Paso 1942, writ ref’d).

In certain areas of taxation, including franchise taxes, the Legislature provided a special method to enable taxpayers, who question validity of a tax, to bring suit against the State in an effort to recover taxes paid under protest. Article 1.05; Article 7057b, V.A.C.S. See Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945); Bullock v. Electro-Science Inves tors, supra, 533 S.W.2d 894. Requirements of these statutes have been held to be jurisdictional, and failure to file a written protest, accompanying payment of the tax, deprives the courts of jurisdiction. Nu-Way Oil Co. v. Bullock, 546 S.W.2d 336 (Tex.Civ.App. Austin 1976, no writ); Robinson v. Bullock, 553 S.W.2d 196 (Tex.Civ.App. Austin 1977, writ ref’d n. r. e.).

Contran did not accompany its payment of the tax with a protest in writing, setting out all grounds and reasons for the contention by Contran that the tax was unlawful or unauthorized. The taxpayer thus failed to provide jurisdictional prerequisites for bringing suit. The Legislature through Articles 1.05 and 1.06 created a right not existing at common law, and the courts must act in the manner provided by statute. Robinson v. Bullock, supra.

Since the courts are without jurisdiction to examine the merits of Contran’s contention as to unlawful taxation, we do not reach that issue.

Judgment of the trial court is affirmed.

Affirmed.


author: JAMES, Justice.

text:
    Margaret C. BEVERLY, Appellant, v. David Edward BEVERLY, Jr., Appellee.
    No. 5914.
    Court of Civil Appeals of Texas, Waco.
    June 15, 1978.
    Rehearing Denied July 6, 1978.

      Boyd B. Mangrum and Charles M. McDonald, Clark, Fisher, Gorin, McDonald & Ragland, Waco, for appellant.
    W. Vance Dunnam and Jim Meyer, Dun-nam, Dunnam & Dunnam, Waco, for appel-lee.
   OPINION

JAMES, Justice.

This is a child custody case, involving an application for writ of habeas corpus opposed by a motion to modify the managing conservatorship, and an application of Section 14.10(b)(2) of the Texas Family Code.

On June 26, 1974, Appellant Margaret C. Beverly and Appellee David Edward Beverly, Jr., were divorced by the Circuit Court of Lee County, Alabama, in which judgment Mrs. Beverly was awarded the full custody of their child, David Edward Beverly, III, a boy born August 23, 1971, with reasonable visitation rights being awarded to Mr. Beverly.

Then on January 31, 1978, Mrs. Beverly filed suit against Mr. Beverly in the Alabama Court wherein the divorce was granted, alleging arrearages in child support payments, and dealing with custody and possession of the child. After Mr. Beverly had been served with citation in this last-named Alabama suit, he (Mr. Beverly) on February 17, 1978, filed a suit in a District Court of McLennan County, Texas, asking that court to modify the Alabama divorce judgment so as to award him the managing conservator-ship or legal custody of the child. On that same day, to wit, on February 17,1978, the trial court immediately appointed Mr. Beverly temporary managing conservator of the child until such time as a hearing could be held. A temporary restraining order against Mrs. Beverly was entered, and hearing set thereon for March 9, 1978.

On March 6, 1978, Mrs. Beverly filed a special appearance in the McLennan County, Texas, suit, challenging the jurisdiction of the Texas Court, accompanied by a plea in abatement setting up the prior pending Alabama suit and asserting the continuing jurisdiction of the Alabama Court in which the suit was pending; and in addition thereto, an application for writ of habeas corpus asserting her immediate right to possession of the child. All of Mrs. Beverly’s pleadings, including her application for writ of habeas corpus, were filed in the same numbered and styled cause as Mr. Beverly’s suit for managing conservatorship filed by him on February 17, 1978.

The trial court set for hearing all of these matters sued for by both Mr. Beverly and Mrs. Beverly, for March 9,1978. The hearing was postponed one day due to the unavailability of the court, whereupon all matters were heard by the trial court on March 10, 1978.

After hearing, the trial court: (1) denied Mrs. Beverly’s application for writ of habe-as corpus; (2) extended the appointment of Mr. Beverly as temporary managing conservator during the pendency of the cause; and (3) temporarily enjoined Mrs. Beverly from interfering with Mr. Beverly’s custody and possession of the child, and from removing the child from the jurisdiction of the court. At all times material to this controversy, Mrs. Beverly was a resident of Alabama, while Mr. Beverly since about January 1977 was a resident of McLennan County, Texas.

Appellant Mrs. Beverly appeals on four points of error, asserting the trial court committed reversible error in denying her application for writ of habeas corpus (1) because she was the lawful custodian and entitled to immediate possession of the child under the Alabama divorce decree; (2) the trial court abused its discretion because said court violated the provisions of Section 14.-10(b) of the Texas Family Code which required that the pending custody suit be disregarded; (3) the child was within Appellant’s possession and control for a period of time (eight days) occurring within the six months immediately preceding the filing of her application for writ of habeas corpus; therefore the trial court abused its discretion in denying the writ of habeas corpus and entering the injunction order against the Appellant; and (4) there is no evidence to support any of the findings essential to the actions of the trial court.

As stated before, Appellant and Appellee were divorced by an Alabama Court on June 26, 1974. Thereafter, in October, 1975, Mrs. Beverly asked Mr. Beverly to take possession of the child. In response to her request Mr. Beverly took the child and has had the possession and main responsibility of the child at all times for some two and a half years, up until the time of trial. During this period of time the child had visited at times with relatives, and during these times the Appellant mother visited the child for one week in Texas in 1976 when the child was ill, for periods during the summer months and during Christmas. Appellant had never sought the return of the child until she applied for the writ of habeas corpus, and since October 1975 the child was in the Appellee father’s control and possession with the approval of the Appellant mother. Specifically, from and after a visitation she had with the child in the summer of 1977, she had not seen or been with the child but one time up until the time of trial, that being an eight-day period from December 26, 1977, to January 2,1978. At the time of trial, the child was some 6½ years of age, and was in school in Waco, Texas. Testimony from the father and the child’s school teacher was to the effect that the child was well-adjusted mentally and emotionally, a good student, his needs were well met, and he was well cared for.

Section 14.10 of the Texas Family Code, as amended effective August 29, 1977, dealing with habeas corpus, in its pertinent parts provides:

“(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.”
“(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conser-vatorship, possession, or support of or access to the child unless it finds that:
“(1) [not applicable], or
“(2) the child has not been in the relator’s possession and control for at least 6 months immediately preceding the filing of the petition for the writ.”

The Appellant argues that since the child was in her possession for an eight-day period from December 26,1977, until January 2, 1978, for a Christmas holiday visit, that the six-month period (immediately preceding the filing of her application for a writ of habeas corpus) has been interrupted, and therefore the trial court was required under Section 14.10(b) to disregard Mr. Beverly’s suit for modification and grant her application for writ of habeas corpus. If this eight-day visitation is long enough or significant enough to interrupt Mr. Beverly’s six months possession of the child immediately preceding the filing of Mrs. Beverly’s application for writ of habeas corpus, then the trial court surely committed reversible error in denying Mrs. Beverly’s application for writ of habeas corpus. See Standley v. Stewart (Tex.1976), 539 S.W.2d 882; McElreath v. Stewart (Tex.1977), 545 S.W.2d 955; Strobel v. Thurman (Tex.1978), 565 S.W.2d 238.

On the other hand, the Appellee contends that this eight-day visitation wherein Mrs. Beverly had possession of the child was so insignificant as not to constitute an interruption of Mr. Beverly’s possession for said six-month period, citing the reasoning of our Supreme Court in Lamphere v. Chrisman (Tex.1977), 554 S.W.2d 935, at page 938. Lamphere dealt with an interruption in the twelve-month period prescribed by Section 14.10(b)(2) prior to its 1977 amendment. The language of Section 14.10(b) construed in Lamphere (prior to the 1977 amendment) in its pertinent parts read as follows:

“(b) The court shall disregard any cross action or motion pending for modification . unless it finds that the previous order was granted by a court of another state or nation and that:
“(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.” In Lamphere, the court held that an interruption of two months and six days was significant enough to interrupt the twelvemonths period, and that the trial court erred in refusing to immediately grant the writ of habeas corpus.

We believe the reasoning of our Supreme Court as stated on page 938 of Lamphere under syllabus 7 has application to the case at bar, as follows:

“Thomas argues that it would be absurd to require the child’s presence to be continuous and uninterrupted for the entire twelve-month period. We are inclined to agree that such a strict construction might lead to absurd results. We do not believe the Legislature intended that a child’s mere absence from this state for a few hours or days should prevent a Texas court’s rede-termination of the right to possession in a habeas corpus proceeding. For example, if a child were sent to a summer camp in another state, or accompanied her father on an ordinary vacation trip in another state, such a temporary absence would not automatically terminate the time period in Texas. Counsel for Judith concedes this. On the other hand, the Legislature could have stated, had it so intended, that the child’s presence should be for the principal part of the preceding twelve-month period. See, e.g., Section 11.06(b). Despite the absence of such language, we believe that the Legislature did not intend that the child’s presence in Texas be continuous and uninterrupted for the entire twelve-month period. We hold that the child must be present in Texas for the period specified by Section 14.10(b)(2), except for absences which are so brief as to be insignificant. This question is one of law that the court should decide in view of the facts and circumstances of the particular case.”

Applying the rationale in Lamphere to the case before us, we are of the opinion and hold that Mrs. Beverly’s eight-day possession of the child during the Christmas holiday season was “so brief as to be insignificant.” This eight-day visit is analogous to a “summer camp” or “ordinary vacation trip” discussed in Lamphere, each of which were deemed by the Supreme Court such temporary absences as would not automatically terminate the time period in question. Under our view of the instant case, we hold that the trial court had the right and discretion to consider Mr. Beverly’s motion for managing conservatorship and to deny Mrs. Beverly’s application for writ , of habeas corpus. We accordingly affirm this portion of the trial court’s judgment.

However, Appellant’s brief points out that the trial court erred in entering its temporary injunction order against Mrs. Beverly, because said order does not set forth the reasons for its issuance, as required by Rule 683, Texas Rules of Civil Procedure. We sustain this contention. State v. Cook United, Inc. (Tex.1971), 464 S.W.2d 105, 106. Also see City of Houston v. Rose (Houston 1st CA 1962), 361 S.W.2d 477, no writ; Charter Medical Corp. v. Mil ler (Tex.Civ.App.1977), 547 S.W.2d 77, 78, no writ. Accordingly, we reform the trial court’s judgment by dissolving the temporary injunction against Mrs. Beverly. In all other respects, judgment of the trial court is affirmed.

REFORMED AND AFFIRMED.


author: McCLOUD, Chief Justice.

text:
    Ted O. GROEBL et al., Appellants, v. A. E. WALKER, Sr. et al., Appellees.
    No. 5187.
    Court of Civil Appeals of Texas, Eastland.
    June 22, 1978.
    Rehearing Denied July 6, 1978.
    Robert H. Moore, III, and John A. Burgess, Burgess & Moore, Big Spring, for appellants.
    Greg Gossett, Logan, Lear, Gossett & Harrison, San Angelo, for appellees.
   McCLOUD, Chief Justice.

The issue is whether under the facts presented interest charges are a part of “the costs of drilling, testing, completing and equipping” certain oil wells drilled pursuant to a written agreement and assignment.

On November 8, 1962, W. C. Kinkel assigned to Ted 0. Groebl, A. E. Walker, Sr., and A. E. Walker, Jr., two oil and gas leases. Thereafter, on December 17, 1962, A. E. Walker, Sr., A. E. Walker, Jr., and Ted 0. Groebl executed an “Assignment and Agreement” whereby the Walkers assigned to Groebl all of “their right, title and interest” in the two leases, “SAVE AND EXCEPT, [Walkers] . . . reserve and retain unto themselves, their heirs and assigns, an overriding royalty of ⅛⅛ of Vsths of all oil, gas . . : produced and saved from the assigned premises, which overriding royalty shall be delivered to . [Walkers] free and clear of all expenses of drilling, developing, operating and maintaining the assigned premises . . In the assignment and agreement, Ted 0. Groebl agreed to drill four wells on the assigned premises within a specified time. The agreement expressly provided that “all costs of drilling, testing and completing the wells” would be at the sole cost and expense of Groebl. The assignment and agreement further provided:

“At such time as TED 0. GROEBL has recouped from production from the assigned premises a sufficient amount over and above operating expenses to repay 100% of the costs of drilling, testing, completing and equipping the wells specified above, the Vsth overriding royalty interest retained by A. E. WALKER and . A. E. WALKER, JR. will automatically become a one-half working interest, subject to the proportionate burden of the overriding royalties set forth in the Assignment from W. C. KINKEL . .

Subsequent to the execution of the “Assignment and Agreement” on December 17, 1962, Ted 0. Groebl conveyed an undivided one-half interest of the interest he owned in the two oil and gas leases to William J. Pollard.

Plaintiffs, A. E. Walker, Sr., and A. E. Walker, Jr., sued defendants, Ted 0. Groebl and William J. Pollard, seeking an accounting and title to an undivided one-half interest in the two oil and gas leases. Defendants, Groebl and Pollard, included in their answer an allegation that they were entitled to recover a reasonable rate of interest on the funds advanced for the purpose of drilling, testing, completing and equipping the wells. All matters between the parties were settled except the issue of interest. The case was submitted upon an “agreed statement of facts” pursuant to Rule 263, T.R.C.P. The trial court denied defendants’ request for interest. Defendants have appealed. We affirm.

In Cox v. Davison, 397 S.W.2d 200 (Tex.1965), the court was concerned with an accounting between cotenants where one cotenant produces minerals from the common property without having secured the consent of the other cotenant. There the court held that interest charges were not a part of the necessary and reasonable cost of producing and marketing the oil. Clearly, the instant case is factually distinguishable. We think, however, the basic rule announced in Cox is applicable. The Walkers consented to the development of the minerals, but the written agreement expressly provided that all costs of drilling, testing, and completing the wells would be the “sole cost and expense” of Groebl. The parties agreed that the Walkers had no obligation to pay money to Groebl. Therefore, there can be no obligation implied by law. The court in Cox said:

“. Interest is an incident of debt and is not payable in the absence of an obligation binding one person to pay money to another. Barker v. Torrey, 69 Tex. 7, 4 S.W. 646 (1887); Maryland Casualty Co. v. Lee, 165 S.W.2d 135 (Tex.Civ. App., 1942, wr. ref.). The obligation may be expressly set forth in a contract or it may be implied in law . ”

Plaintiffs owed no debt or personal obligation to pay money to defendants. As stated in Cox, “As there is no debt or enforceable personal obligation, it follows that a claim for interest as such cannot be supported.”

Judgment of the trial court is affirmed.


text:
    John MANCHESTER et al., Appellants, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Appellees.
    No. 5866.
    Court of Civil Appeals of Texas, Waco.
    June 22, 1978.
    Rehearing Denied July 14, 1978.

      Frederick M. Baron, Dallas, for appellants.
    L. N. D. Wells, Jr., Mullinax, Wells, Mau-zy & Baab, Inc., Dallas, for appellees.
   OPINION

JAMES, Justice.

This is a libel and slander case. Plaintiff-Appellants John Manchester and the Air Line Employees Association .International Union (hereinafter called “ALEA”) brought this suit in a District Court of Dallas County against Defendant-Appellees James R. Haga and the International Association of Machinists and Aerospace Workers, Air Line District 146 (hereinafter called “IAM”). Plaintiffs Manchester and ALEA alleged that the Defendants published and disseminated untrue and false statements concerning the Plaintiffs; moreover, it was alleged by Plaintiffs that such defamatory material was known by the Defendants to be false or in reckless disregard for the truth. Plaintiffs sought actual damages for the injury to their good name, reputation and business, and exemplary damages for the wilful and malicious character of the acts.

The Defendants filed special exceptions to Plaintiffs’ pleadings, two of which assert that Plaintiffs failed to allege a cause of action because: (1) Plaintiffs’ claim is one that has been pre-empted by Federal law, and (2) the publications of which Plaintiffs complain are absolutely privileged.

The trial court sustained the Defendants’ special exceptions hereinabove referred to and dismissed Plaintiffs’ case because of Plaintiffs’ failure to “state a cause of action of which this court has jurisdiction,” and, further, because “the publications of which Plaintiffs complain are privileged in the circumstances alleged.” From said order of dismissal Plaintiffs appeal upon two points of error, to wit, the trial court erred in dismissing the cause for want of jurisdiction in that (1) Plaintiffs have properly plead a claim that is not pre-empted by Federal law (here, the Railway Labor Act); and (2) the publications of which Plaintiffs complain are not absolutely privileged in the circumstances alleged by Plaintiffs. We sustain these contentions, and thereby reverse and remand the cause for reinstatement on the trial court’s docket for trial on the merits.

Plaintiff Manchester is an officer and director of Plaintiff ALEA. Defendant Haga is an officer of Defendant IAM. During the summer of 1976, a Federal representation election was in progress, to decide whether ALEA or IAM would be the union representative for certain airline workers. For some time prior to the election, ALEA had represented the workers in question, and IAM was seeking to replace ALEA as the union representative of said workers.

Plaintiffs alleged that the publication complained of was made to “several hundred members” of ALEA in the form of a “News Bulletin” or “Fact Sheet.” Plaintiffs alleged that Defendant Haga, acting in concert with and at the direction of Defendant IAM published such “Fact Sheet,” stating, among other things, that a certain “ALEA Director was employed as a mechanic (?) with American Airlines_ and was fired with serious charges, so serious _no grievance was filed_;” and that “he tried to form an independent mechanics’ union, but it was reported he stole away in the night with the funds in February 1965 _” and that, further, “although he had never attended one negotiating session in his life, nor had he ever served one day as a shop steward, he was hired by ALEA.” Manchester was never called by name in the publications complained of; however, Plaintiffs alleged that it was obvious to the great majority of individuals who received the publication that the person referred to therein was Plaintiff Manchester. As stated before, Plaintiffs alleged that Defendants intentionally published and disseminated information known to them to be false or in reckless disregard for the truth. These publications were distributed by Defendants directly to members of Plaintiffs’ organization during the time of said election campaign.

We revert to Plaintiff-Appellants’ first point, to wit, the contention that Plaintiffs have alleged a cause of action not pre-empt-ed by Federal law. We sustain this contention.

The general rule concerning the pre-emption doctrine was set forth by the United States Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959):

“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Section 7 of the National Labor Relations Act, or constitute an unfair labor practice under Section 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” Also see Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25 (1977) 430 U.S. 290, 97 S.Ct. 1056, 1061, 51 L.Ed.2d 338. Although the statute pertinent to the case at bar is the Railway Labor Act, 45 U.S.C. sections 151-188, rather than the National Labor Relations Act, the policies embraced in the National Labor Relations Act may be referred to in order to determine whether conduct is within the general penumbra of conduct held protected under the Act or whether it is beyond the pale of any activity thought permissible. See Brotherhood of Railway Trainmen v. Jacksonville Terminal Co. (1969) 394 U.S. 369, 384, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344.

The pre-emption doctrine announced in Garmon, supra, was qualified, or rather an exception was made thereto, in Linn v. United Plant Guard Workers of America, Local 114 (1966) 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582.- In Linn it was held that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. More specifically, the Court limited the availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were made with knowledge of their falsity or with reckless disregard of whether such statements were true or false.

In the case at bar, the Plaintiffs alleged that the libellous publications were known by the Defendants to be false or in reckless disregard for the truth. We are of the opinion and hold that Linn governs the case at bar, and the Federal law does not pre-empt the Plaintiffs’ cause of action in the state court for defamation. See Farah Manufacturing Co. v. Amalgamated Clothing Workers of America (San Antonio CA 1972) 483 S.W.2d 271, 274, no writ.

Plaintiff-Appellants’ second and remaining point asserts the trial court erred in dismissing the cause because the libellous publications in question are not absolutely privileged in the circumstances alleged by Plain tiff-Appellants. We agree that the publications are not absolutely privileged.

We recognize that Federal labor policies favor uninhibited, robust, and wide-open debate in labor disputes, and that Federal law gives unions license to use intemperate, abusive, or insulting language. See Old Dominion Branch No. 496, National Assn. of Letter Carriers, AFL-CIO v. Austin (1974) 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745. However, Old Dominion does not depart from the Linn rule hereinabove set out. In other words, the freedom of expression is not immune unless it “falls short of .a deliberate or reckless untruth.”

In the case at bar Plaintiffs alleged that the defamatory publication included accusations in effect that Plaintiff Manchester was a thief, in that he “stole away in the night with (union) funds.” Such alleged accusations when coupled with allegations that Defendants had knowledge of their falsity or were in reckless disregard of their falsity, in our opinion brings the instant case squarely under the rule announced in Linn, supra. Any privilege connected with the libellous statements would at best be qualified and not absolute.

For the reasons herein stated, we reverse and remand the cause to the trial court for reinstatement on the docket and trial on the merits.

REVERSED AND REMANDED.


author: SEILER, Judge. MORGAN, C. J., ANDREW JACKSON HIGGINS,

text:
    Willis L. RODGERS, Appellant, v. STATE of Missouri, Respondent.
    No. 60434.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Rehearing Denied July 24, 1978.
    See also, Mo.App., 525 S.W.2d 447.
    Michael P. Burke, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

The appellant, movant Willis L. Rodgers, appeals from an order of the circuit court in St. Louis denying without an evidentiary hearing or appointment of counsel, his pro se motion under rule 27.26 to vacate a 35-year sentence for first degree robbery. Rodgers was convicted after a jury trial and sentence was imposed by the court under the second offender act. The state had a strong case against Rodgers. He and his companion were caught by the police after a short chase from the scene of the holdup, in possession of the loot. Defendant put on no evidence whatsoever. On direct appeal the conviction was affirmed in State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975). While Rodgers’ pro se 27.26 motion attempted to state several grounds, the one which requires attention is the claim of ineffective assistance of counsel. Rodgers’ pro se, alleged that defense counsel “was not seen until the day of trial”; that until then, movant did not even know defense counsel was on the case; that counsel held no discussions or interview with movant, did not discuss defense moves or strategy with movant at any time and made no factual investigation; that movant’s right to effective assistance “is not limited to the court room”; that counsel was not “there” in the early critical stages of the proceedings and failed to aid and assist movant “to the depths of the case against him”; that movant informed the trial court that he had not seen counsel prior to the day of trial, but the court refused his request to dismiss counsel or to grant a continuance.

The court of appeals, St. Louis district, affirmed and the matter was transferred here on movant’s application because of the general interest and importance of the question of whether a pro se petition such as above does not, in fact, state sufficient grounds at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant’s standpoint, for the. further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required. We conclude the answer is yes, for the reasons stated below, and accordingly reverse and remand with directions.

The experienced and highly respected trial judge made specific findings of fact and conclusions of law, but failed, we believe, to meet the issues inherent in the ineffective assistance of counsel claim as presented by movant’s rather disorganized yet pointed assertions. The question is largely one of law and we believe the trial court’s conclusions and judgment are clearly erroneous.

We believe it is fair to say the trial court disposed of movant’s ineffective assistance of counsel claim on the basis that the evidence as to movant’s guilt was “overwhelming” and that no allegations were made by movant as to what counsel could have done to present “any semblance” of a defense; that this failure to allege what counsel could have done by way of trial preparation was “fatal” to the claim, particularly where movant “does not even allege his innocence or claim to have a meritorious defense.”

In our judgment this is too restrictive a view of what effective assistance of counsel requires. Effective assistance of counsel is not limited to being able to produce something which would change the outcome of the trial, so that in a case where guilt is so clear that nothing could be produced to overcome it, it follows that counsel could not have been ineffective. Movant was attempting to say as much when he alleged his right to effective assistance “is not limited to the court room.” Effective assistance of counsel also includes what goes on before the trial as well as what takes place afterwards. If we assume what movant alleges to be true, and we have no right to do otherwise when we are testing the sufficiency of his claim on paper, particularly where as here there is nothing in the record which contradicts his allegations of fact as to counsel’s alleged failure to consult with movant prior to trial, then we must accept as a fact that the lawyer in this ease had no contact with movant until the day of the trial, at which time he appeared, introduced himself to the defendant, and proceeded to trial. To hold that a pro se 27.26 petition making such a claim can be dismissed without a hearing or appointment of counsel is not a rule with which the courts can live. Such a rule would condone last minute appointments of counsel or last minute attention on the part of counsel appointed earlier. It would encourage offhand treatment of criminal cases and would provide fertile soil for the seeding of post-conviction claims.

A lawyer who does not see his client until the day of trial and who had no communications with him before then is not meeting his responsibility as a lawyer and is not rendering effective assistance. There is more to the responsible, reasonable and thorough representation of a client than showing up on the day of trial and appearing as defendant’s lawyer in the courtroom. Counsel should have consulted with his client well in advance of trial, ascertained from the client what he stated the facts to be, and done enough investigation and checking of facts and stories to make a reasonable appraisal of the strength of the state’s case and the weakness of the defense. If counsel concluded the case was hopeless it was his duty so to advise the client and ascertain whether defendant would be willing for counsel to explore the possibility of a guilty plea and what the attitude of the prosecutor or his assistant would be in this regard and also, to the extent that it could properly be done, the attitude of the trial court with respect to any recommendations which the prosecutor might make or upon which counsel and defendant could agree. The time to commence this sort of negotiation and bargaining is before the parties arrive at the courthouse the morning of trial, by which time positions have hardened, witnesses are present, the court and the jury ready to go. All this fruitful period of time for possible disposition of the case without a trial and with a lower sentence in exchange for a settlement — a guilty plea — is lost when the lawyer sees his client for the first time on the morning of trial.

The duty of counsel in this regard is well put in the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function, Approved Draft, 1971, p. 245, as follows:

6.1 Duty to explore disposition without trial.
(b) When the lawyer concludes, on the basis of full investigation and study, that under controlling law and the evidence a conviction is probable, he should so advise the accused and seek his consent to engage in plea discussions with the prosecutor, if such appears desirable.

In the Commentary following the above, at 246, appears the following:

b. Early Evaluation of Case
As soon as the lawyer has an understanding of the factual and legal aspects of the case he should determine whether a plea of guilty is the desirable course in the best interests of his client. If that is his informed conclusion, it is his duty to advise his client and seek the client’s authority to explore with the prosecutor the prospects of a favorable disposition without trial.
Most cases are disposed of not by trial but as the result of a plea of guilty. ... To the defendant it affords the opportunity to avoid the ordeal of trial, to mitigate the penalties, and often, also to have sentence determined without having the sentencing court hear all of the adverse testimony which would be produced at trial .
Since disposition by plea is mutually advantageous in many circumstances, plea discussions are a significant part of the duty of defense counsel. Courts and prosecutors have developed criteria which guide the exercise of their respective discretions. These standards and rules-of-thumb are not to be found in the codes, case reports and other sources of law, but a working understanding of them is part of the accumulated skill and experience of the defense lawyer. Ignorance of the prevailing practices and attitudes of the prosecutor and the court as • to plea discussions may be as much a handicap to effective representation as is unfamiliarity with the facts or law related to the case; hence it is imperative that the defense lawyer be aware of them. If he lacks sufficient personal experience, he should consult experienced colleagues. Legal aid and defender offices also serve as a repository of such information to which all members of the bar may turn and the expansion' of such facilities gives the bar a rich source of potential assistance.

Assistance of counsel in the above respects was not made available to movant. Defendant was deprived of an opportunity to have advice of counsel on what disposition should be attempted in his best interests of the charge against him. This is no more than would be expected by anyone who employs a lawyer — the lawyer’s objec-' tive appraisal of what the client is facing and the lawyer’s advice as to the best course to follow. In his inartful way mov-ant was trying to plead this — when movant spoke of counsel’s assistance not being limited to the courtroom and of counsel’s failure to assist him “to the depths of the case against him”, movant was attempting to refer to the fact that he had no help from counsel at a time when it was most needed and that counsel’s presence the morning of trial did not provide the kind of legal assistance which movant needed earlier.

The state relies on the proposition that counsel is ineffective only if his representation deprives the defendant of a fair trial, citing Sims v. State, 496 S.W.2d 815, 817 (Mo.1973). That test, however, does not dispose of the present issue, because the ineffectiveness here is claimed to have occurred béfore trial and pertains not to the conduct of the trial, but to that important interval when an informed decision should be made about the advisability of going to trial as compared to trying to negotiate a settlement — pleading guilty in exchange for a reduced sentence. Under the facts of the case, defendant may have had a fair trial once the case reached the trial stage before a jury, yet not have received effective assistance of counsel in responding to the charge against him. The neglect of counsel resulted in prejudice to movant’s position generally. Barker v. State, 505 S.W.2d 448, 451 (Mo.App.1974).

It does not appear in the record when counsel was first appointed for defendant in the original trial, but whether it was an early appointment and counsel did not get around to talking with the client until the day of trial or whether it was a tardy appointment, the effect on defendant was the same. The canons of ethics require that “[hjaving undertaken representation, a lawyer should use proper care to safeguard the interests of his client . . ”, Rule 4, EC 6-4, and that “A lawyer' shall not . [hjandle a legal matter without preparation adequate in the circumstances.” Rule 4, DR 6-101(A)(2).

The pro se 27.26 petition in this case states sufficient facts to warrant appointment of counsel. Counsel should promptly be appointed by the trial court, with instructions to confer promptly with movant and ascertain whether the pro se motion needs amendment to include the particulars whereby, if so, movant was injured or prejudiced by the failure of counsel to discuss defense moves with him and failure to confer and advise with movant until the day of trial, and after counsel has had an opportunity to make such amendments, the court should then reconsider the sufficiency of the petition and determine whether as amended an evidentiary hearing is warranted and if so, to afford one to movant.

The judgment of dismissal is reversed and the cause remanded for further proceedings as set forth above.

MORGAN, C. J.,

concurs.

ANDREW JACKSON HIGGINS, Special Judge, concurs in result in separate concurring opinion filed.

BARDGETT, DONNELLY and REND-LEN, JJ., concur in result and concur in separate concurring opinion of ANDREW JACKSON HIGGINS, Special Judge.

FINCH, J., not sitting.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

ANDREW JACKSON HIGGINS,

Special Judge, concurring in result.

The stated question is whether the pro se motion states sufficient grounds “at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion, what occurred and the consequences from defendant’s standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required.”

I concur in the decision that “[t]he pro se 27.26 petition in this case states sufficient facts to warrant appointment of counsel,” and in the remand for that purpose and for other proceedings which properly may follow. State v. Herron, 376 S.W.2d 192, 196 (Mo.1964); State v. Gee, 408 S.W.2d 1, 4 (Mo.1966); State v. Keeble, 427 S.W.2d 404, 406 (Mo.1968).

I do not join with the remainder of the opinion in the discussion, unnecessary to resolution of the stated question, of the performance of trial counsel. The issue of effective assistance of counsel, when present, is for the trial court in the first instance. Rule 27.26(e), (j), V.A.M.R.

Accordingly, I concur in result only.

      . We assume that by this the trial court was continuing to refer to movant’s inability to allege any favorable facts which counsel had overlooked going to the merits in the original trial and that the trial court did not mean that innocence or a meritorious defense is a prerequisite to relief under rule 27.26, as we have held that guilt or innocence of the defendant is not to be considered under a 27.26 motion. State v. Reese, 481 S.W.2d 497 (Mo. banc 1972). And, of course, it is not a prerequisite to entitlement of effective assistance of counsel that defendant be innocent or that there not be a strong case against him or that the issue of guilt or innocence be a close one.

      . The trial court in dismissing movant’s 27.26 motion without appointment of counsel or an evidentiary hearing stated that the transcript of the original trial showed a thorough knowledge by defense counsel of the facts. It follows, then, that defense counsel knew of the hopelessness of any trial defense and that a plea of guilty would likely offer a better solution for defendant.