author: CORNELIUS, Chief Justice.

text:
    ARGONAUT INSURANCE COMPANY, Appellant, v. ABC STEEL PRODUCTS CO., INC., d/b/a ABC Doors, Appellee.
    No. 8648.
    Court of Civil Appeals of Texas, Texarkana.
    April 30, 1979.
    Rehearing Denied May 29, 1979.

      James H. Baumgartner, Jr., Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellant.
    David E. Bird, Bedsole & Bird, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Argonaut Insurance Company appeals from a judgment rendered against it in favor of ABC Steel Products Co., Inc.

ABC agreed to sell and install steel warehouse doors to C. T. Lambert & Associates, Inc., a general contractor, for use in the construction of a mini-warehouse project in Richardson, Texas. Argonaut, pursuant to Tex.Rev.Civ.Stat.Ann. art. 5472d (Supp. 1978-1979), executed a statutory payment bond for Lambert which guaranteed the payment of all claims for labor and materials furnished Lambert in the construction of the project. ABC and Lambert’s contract provided for a price of $133.34 per door. The contract further stipulated that Lambert would have a “25% cash discount for payment by 15th of month after installation (making your net discounted price $100.00 per door inch applicable taxes).” ABC furnished and installed the doors as it agreed to do in the contract, but Lambert failed to pay for them. ABC then perfected its claim against Argonaut pursuant to the provisions of the payment bond it had made for Lambert. Argonaut tendered ABC the sum of $10,752.92, which represented only the net discounted price of $100.00 per door for the doors installed, plus interest and attorneys’ fees accruing to the date of the tender. ABC refused the tender on the ground it was entitled to the full contract price for the doors, rather than the discounted price, and it then filed suit against Argonaut and Lambert. The case first went to trial before the court, but after a day and a half a mistrial was declared. The second trial was to a jury which answered special issues to the effect that:

(1) The agreed price of the doors was $133.34 each unless payment was made on or before the 15th day of the month following installation, in which event the price would be discounted 25% (Special Issue No. 1).
(2) The fair market value of the doors installed at the time of installation was $110.00 per door (Special Issue No. 3).
(3) The 25% discount did not constitute interest (Special Issue No. 4).
(4) ABC was entitled to the sum of $16,-000.00 as reasonable and necessary attorneys’ fees (Special Issue No. 2).

The district court disregarded the jury’s finding that the fair market value of the doors was $110.00 each and rendered judgment for ABC for $133.34 for each door furnished, plus interest and attorneys’ fees as found by the jury. Lambert did not appeal.

Argonaut’s principal contention on appeal is that, for the purpose of measuring its liability as surety for Lambert, the value of the doors was the discounted price, and that the offer of that amount to ABC constituted a lawful and sufficient tender which precluded an award for interest accruing after that date or for attorneys’ fees incurred by ABC in bringing suit on its claim.

In the absence of contractual provisions to the contrary, a surety’s liability is measured by the liability of the principal. O’Neil Engineering Co. v. First National Bank, 222 S.W. 1091 (Tex.Com.App.1920, holding approved); W. T. Rawleigh v. Sherley, 165 S.W.2d 465 (Tex.Civ.App. Dallas 1942, writ dism’d); Girard Fire & Marine Insurance Co. v. Koenigsberg, 65 S.W.2d 783 (Tex.Civ.App. Dallas 1933, no writ); 53 Tex.Jur.2d Suretyship, Sec. 25, p. 590; 74 Am.Jur.2d Suretyship, Sec. 25, p. 28; 72 C.J.S. Principal and Surety § 92 p. 572. The surety is bound for the debt, default or obligation of the principal. Arceneaux v. Price, 468 S.W.2d 473 (Tex.Civ.App. Austin 1971, no writ). By the express terms of its contract with ABC, Lambert was obligated to pay the sum of $133.34 per door unless it made payment within fifteen days of installation. When payment was not made within that time, Lambert’s obligation became fixed at $133.34 per door. ABC then had a valid claim for that amount, and upon Lambert’s failure to pay the same, Argonaut became bound to do so. O’Neil Engineering Co. v. First National Bank, supra; W. T. Rawleigh v. Sherley, supra.

Argonaut advances several reasons to support its argument that the legal principals just enunciated should not govern this case. One is that under Article XVI, Sec. 37 of the Texas Constitution, which provides that mechanics, artisans and material men shall have liens for “. . . the value of their labor ... or material .”, the reasonable or fair market value of the materials determines the extent of the supplier’s lien rather than the contract price. One answer to that contention is that no lien is involved here. ABC is not seeking to perfect or enforce a lien against Lambert or against the owner of the improvements. It is seeking to recover from Lambert’s surety the contract price of the materials it furnished. As Lambert was obliged to pay ABC $133.34 per door, and Argonaut was liable for the debt of its principal, it was obligated to pay that price for the doors. The payment bond is intended as protection for the material men in lieu of a lien. Trinity Universal Insurance Company v. Barlite, Inc., 435 S.W.2d 849 (Tex.1968). We further observe that ABC, as a subcontractor, was not entitled to a constitutional lien under the provisions of Article XVI, Sec. 37. Da-Col Paint Mfg. Company v. American Indemnity Company, 517 S.W.2d 270 (Tex.1974); Trinity Universal Insurance Company v. Barlite, Inc., supra; First National Bank v. Lyon-Gray Lumber Co., 194 S.W. 1146 (Tex.Civ.App. Texarkana 1917), aff’d, 110 Tex. 162, 217 S.W. 133, aff’d sub nom. Lecountour Bros. Stair Mfg. Co. v. Lyon-Gray Lumber Co., 110 Tex. 177, 217 S.W. 136 (1919). Argonaut also argues that the language of the statute and the language of its bond, both of which make the surety’s liability conditional upon the failure of the principal to promptly pay the material men, should be interpreted to mean that the surety is liable only for the “prompt payment price”, which in this case would be what the principal would have owed for the doors had he paid for them within fifteen days, i. e., the discounted price. We disagree. That language simply renders the surety liable if the principal fails to promptly pay. It does not restrict the surety’s liability to a discounted price for which the principal could have qualified, but did not.

It is also contended that the “relation back doctrine” which applies in Texas to mechanic’s liens, and the provisions of the lien statutes to the effect that an indebtedness shall be considered to have accrued on the 10th of the month following the furnishing of the materials, require that Argonaut’s liability be limited to the cost of the doors if paid for by the 10th of the month after installation. We cannot accept that proposition. The relation back doctrine merely determines the priority of the liens which may be filed. University Savings & Loan Association v. Security Lumber Co., 423 S.W.2d 287 (Tex.1967). And the accrual dates included in the lien statutes are simply for the purpose of setting the dates from which the lien notices and filing requirements shall run.

Under its payment bond Argonaut was obligated to pay what its principal owed for the materials furnished. As Lambert did not entitle itself to the discount for prompt payment, it became liable for the full contract price. Upon Lambert’s failure to pay that price, Argonaut was bound to do so, and consequently its tender of an amount less than what was due was ineffectual. 55 Tex.Jur.2d Tender, Sec. 9, p. 220 and cases cited.

The appeal also asserts that the district court improperly disregarded the jury answer which found that the fair market value of the doors was $110.00 each. The construction contract between the landowner and Lambert provided for a “turn-key” price of $201,000.00. In another section the contract provided that any extras or additional work could “be figured on a unit cost” as set forth in a schedule. Included in the schedule was “8" X 8" doors, @ $110.00 each.”

The trial judge correctly disregarded the jury’s finding. Regardless of the unit price stipulated by the owner and the general contractor, the price which the general contractor agreed to pay ABC was $133.34 per door unless the discount was earned. Any other price or value was immaterial in determining the surety’s liability for the debt of its principal.

The point is raised that there is no evidence or insufficient evidence to support the jury’s finding that the 25% discount did not constitute interest. First, it should be noted that this issue was one on which Argonaut had the burden. Therefore, it cannot successfully attack the jury’s finding by showing that it is not supported by sufficient evidence. It must demonstrate that the 25% discount, as a matter of law, constituted interest.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.01 provides that interest is the compensation allowed by law for the use or forbearance or detention of money. However, a seller of products may lawfully exact one price for his goods if they are paid for in cash or payment is made promptly, and he may demand a larger price if the sale is for credit or the cash payment is delayed, and the difference is not interest. Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249 (Tex.Civ.App. San Antonio 1978, ref. n. r. e.); Avant v. Gulf Coast Investment Corporation, 457 S.W.2d 134 (Tex.Civ.App. Dallas 1970, no writ); National Bond & Investment Co. v. Atkinson, 254 S.W.2d 885 (Tex.Civ.App. Amarillo 1952, writ dism’d); Rattan v. Commercial Credit Co., 131 S.W.2d 399 (Tex.Civ.App. Dallas 1939, writ ref’d); 58 Tex.Jur.2d Usury, Sec. 12, p. 79. If the sale is a true credit sale, the difference in the sales price is usually termed a “time price differential.” Tex.Rev.Civ.Stat.Ann. art. 5069-6.01, et seq; Anquiano v. Jim Walter Homes, Inc., supra; National Bond & Investment Co. v. Atkinson, supra. If, as here, the sale is not a retail credit sale, but is a commercial transaction on open account, and the price is reduced for prompt payment or in consideration of volume purchases, the difference in price is termed a “discount” or “trade discount.” Tatelbaum v. Chertkof, 212 Md. 475, 129 A.2d 680 (1957); Benner Tea Company v. Iowa State Tax Commission, 252 Iowa 843, 109 N.W.2d 39 (1961); Walsh-Anderson Company v. Keller, 139 Mont. 210, 362 P.2d 533 (1961); 26A C.J.S. Discount, pp. 973, 975. Unless such a discount is a sham or is otherwise used for fraud or collusion, it does not constitute interest. Argonaut produced considerable evidence in its attempt to prove that the reduced price here was a sham and actually constituted interest rather than a legitimate discount, but the evidence was certainly not such as would compel such a conclusion as a matter of law.

Argonaut next complains of the trial court’s failure to grant its motion for new trial on grounds of jury misconduct. The motion was supported by the affidavits and testimony of two jurors to the effect that an unidentified juror stated during the jury’s deliberations that he personally receives invoices annually totaling millions of dollars, and that a cash discount of 25% is not unusual. Other testimony adduced at the hearing, however, reveals that several of the jurors promptly rebuked the juror who made the comment, and the foreman admonished the other jurors not to consider the remark because they were not allowed to go into such matters. No further discussion or comment upon the subject was had after the rebukes and the admonishment, even though at least five more votes were thereafter taken.

Misconduct of the jury is not grounds for a new trial unless it is established that (1) the improper act in fact occurred; (2) it was material; and, (3) the misconduct probably resulted in injury to the complaining party. Tex.R.Civ.P. 327; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); English v. American & Foreign Ins. Co., 529 S.W.2d 810 (Tex.Civ.App. Texarkana 1975, no writ). The complaining party has the burden on each of those issues. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27 (Tex.1965); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). Whether the act alleged to be misconduct actually occurred is a question of fact, and if the evidence is conflicting, the express or implied finding of the trial court thereon is ordinarily taken as final. Barrington v. Duncan, supra; English v. American & Foreign Ins. Co., supra. Whether the act constituted misconduct, and if so, whether it was material and probably resulted in injury, are questions of law to be determined by the trial court initially and by the appellate court ultimately from a consideration of the record as a whole. Barrington v. Duncan, supra; Texas Employer’s Insurance Association v. Waldon, 392 S.W.2d 509 (Tex.Civ.App. Tyler 1965, writ ref’d n. r. e.). Findings of fact and conclusions of law were not requested or filed. In those circumstances it will be presumed that the trial court found all controverted fact issues against the complaining party. F L R Corporation v. Blodgett, 541 S.W.2d 209 (Tex.Civ.App. El Paso 1976, writ ref’d n. r. e.); Brungs v. Consolidated Plan Service, Inc., 529 S.W.2d 79 (Tex.Civ.App. San Antonio 1975, writ ref’d n. r. e.). Considering all of the circumstances, and especially the evidence that the juror’s comment was promptly rebuked and the other jurors admonished not to consider it, we conclude that probable injury has not been shown and that the trial court did not abuse his discretion in his refusing to grant a new trial.

Finally, Argonaut asserts that the jury’s award to ABC for attorneys’ fees is excessive. We agree.

This cause has been tried twice, once before the court for a day and a half, after which the court declared a mistrial, and again for approximately two and a half days before a jury. ABC was represented throughout the proceedings by two firms acting through three attorneys. Testimony was adduced that the attorneys spent 130 hours preparing the case for trial the first time and then spent an additional 200 or more hours on the case between the first and second trial. On the basis of this testimony the jury awarded $16,000.00 as attorneys’ fees.

Attorneys’ fees, where recoverable by law, must be reasonable under the particular circumstances of the case and must bear some reasonable relationship to the amount in controversy. Republic National Life Ins. Co. v. Heyward, 568 S.W.2d 879 (Tex.Civ.App. Eastland 1978, writ ref’d n.r.e.); Union National Life Insurance Company v. Reese, 476 S.W.2d 928 (Tex.Civ.App. Houston 14th Dist.1972, writ ref’d n. r. e.). The fee should be only that which would be reasonable for a litigant himself to pay his own attorney, and it is not intended that the litigant should have more than one firm of attorneys representing him. Southland Life Insurance Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App.1928, holding approved). Although the amount of attorneys’ fees is a question of fact for the jury, the trial or appellate court has the duty to reduce the fee awarded if it is excessive. Southland Life Insurance Co. v. Norton, supra; Capitol Life Insurance Company v. Rutherford, 468 S.W.2d 535 (Tex.Civ.App. Houston 1st Dist.1971, no writ). With regard to excessiveness, attorneys’ fees are in the same category as general awards of damages. 17 Tex.Jur.2d Damages, Sec. 20, p. 100; Sec. 345, p. 420. To require a remittitur in such cases, it is not necessary to find that the jury was influenced by passion or prejudice or by any other improper motive. See Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). In determining whether the award is excessive, the reviewing court is entitled to look at the entire record and to view the matter in the light of the testimony, the amount in controversy, the nature of the case, and our own common knowledge and experience as lawyers and judges. McFadden v. Bresler Malls, Inc., 548 S.W.2d 789 (Tex.Civ.App. Austin 1977, no writ); Southland Life Insurance Co. v. Norton, supra; Union National Life Insurance Company v. Reese, supra; Capitol Life Insurance Company v. Rutherford, supra. The amount in controversy here was $13,093.75. See Bourn v. Gray, 144 S.W. 356 (Tex.Civ.App. El Paso 1912, no writ); 15 Tex.Jur.2d Courts, Sec. 70, p. 505. Total trial time was approximately four days. The greater portion of the preparation was undoubtedly done prior to the first trial unless it was unnecessary repetition. ABC was certainly well represented, but if its attorneys spent 340 hours on this case, the case was overworked. See Republic National Life Ins. Co. v. Heyward, supra; McFadden v. Bresler Malls, Inc., supra. In our judgment the award of attorneys’ fees is excessive by $6,000.00. If within fifteen days of the filing of this opinion appellee shall remit the sum of $6,000.00, the judgment below will be reformed and affirmed; otherwise, it will be reversed and remanded.

IT IS SO ORDERED.


source: Caselaw Access Project

author: HUTCHINSON, Justice.

license: Public Domain

text:
    R. S. GERMANY et ux., Appellants, v. FRANK G. LOVE ENVELOPES, INC., et al., Appellees.
    No. 8684.
    Court of Civil Appeals of Texas, Texarkana.
    May 8, 1979.
    Rehearing Denied June 19, 1979.

      Lawrence E. Ackels, Jr., Ackels, Ackels & Ackels, Dallas, for appellants.
    Roy C. Coffee, Jr., Coffee & Coffee, Dallas, for appellees.
   HUTCHINSON, Justice.

This is a suit for damages for malicious prosecution and for the conversion of personal property. Appellant, Germany, appeals from a summary judgment that he take nothing by reason of his suit against appellee, Love.

In November of 1969, appellee’s place of business was burglarized and a number of blank checks were stolen. At the time of the burglary, Germany was an employee of Love working at the premises where the burglary occurred. A few months after the burglary, Love was notified that one of the stolen checks had been forged and passed at a nearby store. Love and one of his employees went to the store and were shown a photograph of the person passing the check. Love took this photograph to the police and identified the person depicted in the photograph as one of his employees. While at the police department, Love and his employee were shown another photograph of another person negotiating another of the stolen and forged checks. The identity of the police officer or officers showing this photograph was not shown by the summary judgment proof. According to Love’s summary judgment proof (his deposition and affidavit) he and his employee thought that the man in the second photograph might be Germany and requested and received permission to take the photograph to show to other of his employees. After doing this, he learned that the person depicted in the photograph was yet another employee. Love states that the police department was so advised. Love’s summary judgment evidence does not disclose the identity of the officer he talked to.

Love, by his affidavit and deposition, states that the police officer he talked to, after being advised that Germany was not the man shown in the photograph, still requested that he notify the police when Germany reported for work. This was done and Germany was arrested in Love’s office. At the time of this arrest, Germany was wearing his tool belt filled with his tools and was directed to leave them with Love. In his deposition testimony Love admits to having given the belt and some of the tools to other employees.

Germany remained in jail for some three months before being able to make bond. After his release he moved from the state and was rearrested in the latter part of 1974 and again placed in jail where he remained for an additional three and one-half months. In February of 1975 an assistant district attorney called Love and was told that Germany was not the person shown in the photograph. Love then, at the request of the assistant district attorney, signed an instrument to that effect and Germany was released and the charge dismissed.

According to Love’s affidavit and deposition, he never signed a complaint charging Germany with the offense and did not appear before the grand jury that returned the indictment.

As part of his opposition to Love’s motion, Germany offered the deposition testimony of an attorney certified by the State Bar of Texas as a specialist in criminal law who had been appointed by the court to represent him. This attorney testified that he talked to Love by telephone after Germany had been incarcerated the second time. In this conversation Love told him that he knew the picture was not of Germany but that he thought Germany knew something about the theft of the checks and should stay in jail. Love does not recall any conversation with any attorney representing Germany. Appellant also offered the sworn statement of the attorney who finally secured his release and dismissal of the charge. This affidavit contains statements allegedly made by Love that would constitute admissible evidence upon the issue of malice on his part. The making of these statements is also denied.

Rule 166-A(c) of the Texas Rules of Civil Procedure by amendment effective January 1, 1978, now specifically provides that a summary judgment may be based on uncon-tradicted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies and could have been readily controverted. Prior to this amendment a similar test was applied. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965). There the court said:

“If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony.”

The summary judgment proof offered by appellee even though it may be “clear, positive and direct” must be examined in light of the remaining portions of the rule. That is, is it otherwise credible and free from contradictions and inconsistencies and could have been readily contradicted?

The essential elements of a cause of action for malicious prosecution are set forth in Flowers v. Central Power & Light Co., 314 S.W.2d 373 (Tex.Civ.App. Waco 1958, writ ref’d n. r. e.). These elements are: (1) the commencement of a criminal prosecution against appellant; (2) the criminal prosecution was caused by appellee or through appellee’s aid or cooperation; (3) the criminal prosecution terminated in favor of appellant; (4) appellant was innocent; (5) there was no probable cause for such proceeding; (6) that it was done with malice; (7) and resulted in damage to appellant. Appellee here contends that elements numbered (2), (5) and (6) are lacking in appellant’s asserted cause of action and that the summary judgment was properly granted since it was shown that at least one of the above elements was absent from the summary judgment proof. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). There the court stated:

. .In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. . . .”

In reviewing the summary judgment proof this Court is mindful that the burden of proof is upon the movant and all doubts as to the existence of a genuine issue of a material fact must be resolved against the movant. The summary judgment evidence must be viewed in the light most favorable to the party opposing the motion and if the motion involves the credibility of the mov-ant the motion should be denied. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., supra. As has been noted, appellee’s summary judgment proof was not free from contradictions (deposition and affidavit of appellant’s defense attorneys) and since the identity of the members of the police department with whom appel-lee was in contact at the beginning of the prosecution was not available to appellant, appellee’s summary judgment proof could not have been readily controverted by appellant. See Evans v. Fort Worth Star Telegram, 548 S.W.2d 819 (Tex.Civ.App. Fort Worth 1977, no writ), wherein it was held that the uncontradicted testimony of a co-defendant even though clear, direct and positive, raised no more than a fact issue since the plaintiff did not have the means to disprove the same as it was based upon facts peculiarly known only to the co-defendants. Appellee’s credibility as a witness was called into question by the conflicting summary judgment evidence and portions of his proffered proof could not have been readily contradicted as required by the rule. Therefore, the summary judgment motion should not have been granted.

Appellant’s alleged cause of action for the conversion of his tool belt and tools was not the subject of the motion for summary judgment. The after judgment tender into the trial court of a tool belt and some tools was ineffective to deprive appellant of his stated cause of action for the conversion of his belt and his tools.

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


author: MURRAY, Justice.

text:
    L. B. PETE, Appellant, v. W. B. STEVENS, Appellee.
    No. 16179.
    Court of Civil Appeals of Texas, San Antonio.
    May 9, 1979.
    Rehearings Denied June 13, 1979.

      George H. Spencer, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellant.
    James S. Frost, A. J. Saegert, Threlkeld, Saegert, Saegert, Kirkendall & F^ost, Se-guin, for appellee.
   OPINION

MURRAY, Justice.

W. B. Stevens, appellee, brought this suit in the district court of Guadalupe County against L. B. Pete, appellant, for title and possession of stock certificates of Seguin Aviation, Inc. Appellee alleges that the stock is owned by him and was pledged to the First National Bank of Seguin to secure a note owned by the corporation, and thereafter the bank transferred the note and security to appellant. He further alleges that since the note is now paid, he is entitled to his stock. After a jury trial, the court entered judgment for appellee, and appellant then perfected his appeal to this court.

In 1966 appellee, Stevens, owned forty-six percent of the stock of Seguin Aviation, Inc., and appellant, Pete owned thirty-two percent of the corporate stock. Stevens, who was president of the corporation, borrowed money for the corporation on a regular basis from the First National Bank of Seguin. Stevens resigned as president of the corporation when asked to do so in August 1969. At this time, Seguin Aviation was still indebted to the First National Bank of Seguin. In 1970 Stevens left his share certificate representing his forty-six percent interest in Seguin Aviation, Inc., with the vice-president of First National Bank, Benton Donegan. Stevens left his stock with Donegan as security for the corporate notes, even though Donegan told him it was not necessary because Stevens signed the notes for the corporation as its president. At Donegan’s request in 1971, Stevens signed a blank stock power to provide security for Louis Bishop, who was going to underwrite the indebtedness of Seguin Aviation to First National Bank. All the other shareholders of Seguin Aviation, except Pete, signed similar stock powers. Thereafter, Stevens moved from Se-guin.

By August 1972, the financial condition of Seguin Aviation had deteriorated to such a point that Donegan called a special stockholders’ meeting to give the company thirty days after the meeting to rectify their financial problems, or the bank would have to foreclose. Joe Zurek, the corporate secretary, sent a notice to all the shareholders, including Stevens, that a shareholders’ meeting would be held on September 13, 1972. This notice specified the purpose of this meeting as the “transfer of certain shareholder’s interest (stock) to Louis Bishop in return for his guarantee of the corporation’s indebtedness, as per agreement of January 1970” and the “proposed reorganization of the corporation in conjunction with Mr. Bishop’s controlling interest in the corporation.”

On September 13, 1972, Stevens, Pete, Bishop, Zurek, Donegan, and others attended the meeting in a small room about the size of a jury box. The entire meeting was tape recorded. First, Bishop made a lengthy speech to the effect that he no longer wished to underwrite the corporation any further and would foreclose on it by exercising the stock powers to himself unless another financial backer would come forward. Near the end of the meeting, a share certificate for 766.65 shares was issued to First National Bank in its name representing all the outstanding shares in Seguin Aviation, Inc., except Pete’s 598 shares. The bank negotiated this transfer by exercising the stock powers from the shareholders in its own name. After this transfer and before the meeting adjourned, Stevens left the meeting when he was told to do so by Pete’s attorney, Mr. Bayne. During the meeting, Stevens made no objections to any of the proceedings.

Subsequently, Pete contacted the bank to see if he could buy its Seguin Aviation stock. On October 4, 1972, Pete delivered his check for $170,216.90 to Donegan at First National Bank. This sum was a combination of $135,216.90 owed by Seguin Aviation to the bank on its various notes and $35,000, which was to be held in escrow by the bank for Mr. Bishop as repayment of expenses owed to him from Seguin Aviation. Donegan marked the notes paid, gave them to Pete, and signed over to Pete the stock certificate representing the 766.65 shares issued in the name of the bank at the September 13, 1972, meeting.

Over the years, Seguin Aviation repaid Pete for his investment. At a shareholders’ meeting in June 1977, the employee stockholders requested that since a substantial part of the original purchase price of the stock had been repaid to Pete by the corporation, the stock should be returned to the corporation’s treasury. Pete agreed. At this meeting, there was no mention or claim that Stevens had any interest in the stock.

Appellant contends that the stock transfer from the bank to Pete was an unqualified sale of the corporation. Pete testified that he did not acquire the debt of the corporation alone, but the whole corporation. The trial court, however, submitted the case to the jury according to appellee’s theory that Pete had purchased only the indebtedness of the corporation and held the stock in pledge as collateral for the corporate notes. As a result, special issue number one read as follows:

“What do you find from a preponderance of the evidence was the amount of the indebtedness of Seguin Aviation, Inc. to First National Bank of Seguin which was purchased by L. B. Pete?”

The jury answered this issue $135,216.90. The jury also found that this amount of indebtedness had been paid to appellant by the corporation. Upon these issues, the trial court entered judgment for appellee giving him title to the stock.

Appellant objected to the charge on the ground that these issues erroneously assumed that appellant had merely purchased the indebtedness of the corporation and not the stock. We agree.

Appellee argues that appellant wholly failed to overcome the presumption raised by the uncontradicted testimony that the stock originally had been given as a pledge to the First National Bank of Seguin, and the stock continued to exist as a pledge after Pete acquired it. Accordingly, appel-lee contends, as a matter of law, that appellant, Pete, bought the note from the bank and not the stock. Throughout the trial, appellee contended that ownership of the stock was not a relevant or material issue. In this case, however, ownership was in issue because the controlling question is whether the bank held the stock as pledgee when it' transferred the stock to appellant on October 4, 1972.

The burden of establishing this fact was on Stevens, who was plaintiff in the district court, because a presumption does not shift the burden of persuasion from one party to another. 1 C. McCormick & R. Ray, Texas Law of Evidence § 53 (Texas Practice 2d ed. 1956). See Mexican Central Railway Co. v. Lauricella, 87 Tex. 277, 28 S.W. 277 (1894). Nevertheless, the fact that the stock was originally pledged to the bank creates a presumption that it was still pledged in October 1972, but this presumption is rebuttable. Pete had the burden of producing evidence to overcome the prima facie case established by the presumption. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940). In absence of evidence to the contrary, this presumption, that the state of things once shown to exist continues, would be conclusively established. Moore v. Wooten, 280 S.W. 742 (Tex.Comm’n App.1931, holding approved); Strain v. Martin, 183 S.W.2d 246 (Tex.Civ.App.—Eastland 1944, no writ).

In this case, however, evidence was introduced to rebut this presumption. The record discloses that the corporation was in financial straits and outside financial support was necessary for the corporation to stay in business. It is apparent that the meeting of September 1972 was called for this purpose. Mr. Donegan, vice-president of the First National Bank of Seguin, testified that he was closely involved with the business and was familiar with all the assets of the corporation. From this knowledge, he stated that the assets were worth approximately $40,000 less than the corporation’s debt to the bank. He further testified that in September 1972 the bank was dissatisfied with their arrangements with the corporation, and Mr. Louis Bishop or someone else was going to have to liquidate the debt. He also gave his opinion that there was no buyer who was willing to pay $170,000 to acquire only the debt of Seguin Aviation unless he also acquired a controlling interest. The transfer of the stock to the bank in its own name would put the bank in a position to readily transfer a controlling interest to Bishop or any other financial backer that could be found. Since Bishop stated at the meeting that he did not wish to continue in his present role, other investors could be considered for acquiring the controlling interests in return for continued financial support of the corporation. After the stock in question was transferred to the bank, Stevens was requested to leave the meeting because he was no longer considered a stockholder. Stevens did not object to this action, left the meeting, and made no claim to the stock for a period of five years during which time the corporation became solvent. There is substantial evidence in the record in this case to support the conclusion that Pete purchased the stock and not just the corporation’s indebtedness. We hold that the trial court erred in ruling, as a matter of law, that Pete purchased the note.

In view of the above holding, it becomes necessary to decide what disposition should be made of this case. A presumption does not have the effect of shifting the burden of proof, and when rebuttable evidence is introduced, the presumption vanishes. Southland Life Insurance Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942); DeMuth v. Head, 378 S.W.2d 389 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.). The facts that give rise to the presumption remain for the jury’s consideration even though the presumption has vanished. This rule was firmly established in Southland Life Insurance Co. v. Greenwade, where the Texas Supreme Court stated:

We agree with the company’s contention that a presumption, as such, is not evidence and that it vanished as such in view of the opposing evidence; but we do not agree that the evidentiary facts upon which it is established, could no longer be considered by the trier of the facts. Wigmore on Evidence, 2d Ed., sec. 2491. The section just cited states that if substantial contrary evidence is offered ‘the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule,’ and that ‘it is therefore a fallacy to attribute probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary.’
The prima facie case of due receipt of the letter made out by plaintiff in the present case is not conclusively rebutted by the company’s evidence tending to establish it was not received; nor is such evidence so clear, positive and disinterested as to overcome (other than as a rule of law) the presumption of fact in the insured’s favor.

138 Tex. at 456-457, 159 S.W.2d at 857-858.

We believe that the inference established by the original pledge remains for the jury to consider because the evidence offered by appellant to establish a purchase of the stock is not so clear, positive, and disinterested that the court can construe it as conclusive. Therefore, we hold that the case must be reversed and remanded for a new trial.

In view of another trial, other assignments of error will be discussed briefly. Those portions of the transcript of the September 1972 meeting excluded by the trial court should have been admitted. The objections made went to the weight of the transcript rather than to its admissibility. Appellant testified that the tape and the transcription thereof coincided with what he heard said at the meeting. A party’s silence in such a situation may constitute an admission of what was said to render the statements admissible in evidence against him. Miller v. Dyes, 137 Tex. 135, 151 S.W.2d 186 (1941).

The tax returns of Seguin Aviation, Inc., for the years 1972 through 1977, the tax returns of appellant for the years 1972 through 1976, and appellee’s response to appellant’s motion for production of documents in which appellee admitted he had no correspondence with Seguin Aviation, Inc., since September 13, 1972, should have been admitted in evidence. This evidence is relevant and material on the issue of ownership of the stock. In determining whether the stock was transferred in October 1972 as security for the debt, the jury may consider all circumstances surrounding the transaction including those that have subsequently occurred. Smith v. Blancas, 87 S.W.2d 781 (Tex.Civ.App.—El Paso 1935, writ ref’d). See 39 Tex.Jur.2d Mortgages and Deeds of Trust § 31 (1976).

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


author: KLINGEMAN, Justice.

text:
    Aurora G. WAGAR, Appellant, v. UNITED STATES of America, Appellee.
    No. 16186.
    Court of Civil Appeals of Texas, San Antonio.
    May 23, 1979.
    Rehearing Denied June 13, 1979.

      Sam C. Bashara, San Antonio, for appellant.
    Harold 0. Atkinson, Asst. U.S. Atty., for appellee.
    Donald J. Walheim, San Antonio, for in-tervenor Gilbert L. Wagar.
   KLINGEMAN, Justice.

This case arises from a denial of prejudgment garnishment of military retirement pay. Aurora G. Wagar filed an application for a writ of garnishment in the district court of Bexar County, Texas, against the United States of America to collect child support arrearage allegedly owed by her ex-husband, Gilbert L. Wagar, a nonresident of Texas. Mr. Wagar intervened in the suit. Trial was to the court which, after a hearing, entered judgment quashing the application for writ of garnishment.

The record contains a brief statement of facts, a substantial portion of which is a discussion between the court and the attorneys for the parties. In addition there is a volume of exhibits referenced to the statement of facts. It appears from one of the exhibits that Aurora G. Wagar and Gilbert L. Wagar were divorced in Bexar County, Texas, by decree entered on January 10, 1977. In the decree Mrs. Wagar was named managing conservator of the two minor children of the marriage and Mr. Wagar was appointed possessory conservator. Mr. Wagar was ordered to make child support payments of $100 per month per child. Community property was divided between the parties, with Mrs. Wagar receiving certain property as her sole and separate property. Mr. Wagar also received certain property as his sole and separate property under the decree, including “all rights, title and interest in and to any retirement benefits which have accrued or will hereinafter accrue with the United States Government” as a result of his military service. The division of community property is not here disputed.

In addition to a copy of the divorce decree, the volume of exhibits contains copies of numerous bank money orders paid by Mr. Wagar, some in the amount of $100 and others in the amount of $200. Some of the money orders are payable to Aurora Wa-gar; others are payable either to Fulton County Support Collection Unit, or to New York State Division of Probation. The exhibits also include a child support payment record of the Bexar County Child Support Section. It appears from the statement of facts that an order of a New York court, which purportedly reduced the child support payments, was offered into evidence by ap-pellee and was objected to by appellant with a court ruling that it would take judicial notice of the file and give it proper weight.

On appeal, Aurora G. Wagar’s sole point of error is that the trial court erred in denying her application for writ of garnishment. Her contentions under this point are two-fold. First, she urges that the trial court incorrectly held that military retirement benefits constitute “current wages” and, as such are exempt from garnishment under Texas law. While we find nothing in the record before us to indicate the trial court based its decision on such theory, we agree that if the court did so hold, such holding as to “current wages” is incorrect. This question has been passed on in at least four recent Texas decisions and all have held to the contrary. United States v. Miranda, 581 S.W.2d 711 (Tex.Civ.App.—San Antonio 1979); United States v. Wakefield, 572 S.W.2d 569 (Tex.Civ.App.—Fort Worth 1978, writ dism’d); United States v. Fleming, 565 S.W.2d 87 (Tex.Civ.App.—El Paso 1978, no writ); United States v. Stelter, 553 S.W.2d 227 (Tex.Civ.App.-El Paso 1977), rev’d on other grounds, 567 S.W.2d 797 (Tex.1978). Second, appellant argues that child support arrearage is a “debt” within the meaning of the Texas Family Code and the Texas garnishment statutes, and a former spouse is not required to reduce the unpaid child support to judgment prior to bringing the garnishment action against the garnishee. She argues that such a procedure would be wasteful and time-consuming; would lead to a multiplicity of suits; and would constitute a totally unwarranted procedural barrier between needy children and defaulting fathers. We disagree. Appellant cites no authorities to support this contention, and we can find none. The Texas garnishment statutes set up a detailed and orderly procedure for garnishment proceedings with which appellant did not comply. This noncompliance is not excused under any theory of procedural expediency.

Although appellant argues that child support arrearage is a debt within the meaning of the Texas Family Code, the Code does not so provide. Section 14.09(c) of the Code now enables a spouse to reduce unpaid child support to judgment, and provides that “[t]he judgment may be enforced by any means available for the enforcement of judgments for debts.” The only expression we have found by the Supreme Court of Texas on this matter is in the recent case of Smith v. Bramhall, where the Court, in refusing the application for writ of error with the notation “no reversible error,” noted:

Our action should not be interpreted as approving the conclusion of the Court of Civil Appeals that ‘unpaid child support is . a debt for which judgment may be taken.’ [Smith v. Bramhall] 556 S.W.2d 112, 113. Section 14.09(c) of the Texas Family Code provides only that unpaid child support may be reduced to judgment and enforced by the same means as a judgment for a debt, not that such sums are debts.

563 S.W.2d 238 (Tex.1978) (per curiam).

United States v. Fleming, 565 S.W.2d 87 (Tex.Civ.App.—El Paso 1978, no writ) contains a good discussion of prejudgment garnishment of military retirement benefits. As previously noted, Fleming held that military retirement pay is not “current wages,” but is “property” and is not exempt from garnishment. Except for this holding, however, Fleming gives no support to appellant’s other contentions as to the correctness of prejudgment garnishment proceedings involving military retirement benefits, and, in fact, holds that a claim for unpaid child support must first be reduced to judgment. Id. at 89.

A recent excellent discussion of garnishment proceedings involving unpaid child support stated that

Article 14.09(c) of the Texas Family Code authorizes a judgment on child support arrearages to be enforced by any means available for the enforcement of judgments for debts — which would include garnishment. Only past due amounts over which a judgment has been obtained may be successfully garnished in Texas, so that a garnishee cannot be required to pay future monthly installments to the obligated party as the installments should fall due.

See Corrigan, Garnishment of Federal Income for Child Support and Alimony Obligations in Texas, 41 Tex.B.J. 245, 247 (1978) (emphasis original).

It is undisputed in the case before us that the alleged child support arrearage had not been reduced to judgment prior to the garnishment proceedings. The trial court heard conflicting claims by each of the parties and evidence on those claims. We have already set forth appellant’s contentions. The United States, as appellee, urged among other things that military retirement benefits were current wages and were not subject to garnishment under the Texas Constitution and Texas statutes. The ex-husband, as intervenor, asserted that he was not in arrears for any amount of child support payments. He further urged that appellant did not comply with the procedural requirements of the Texas garnishment statutes; that no valid judgment can be taken against the garnishee until judgment has been taken against the debtor; that appellant invoked the jurisdiction of the district courts of both Texas and New York under the Uniform Reciprocal Enforcement of Support Act; that an order of the New York court is binding on appellant and the intervenor is in full compliance with the child support provisions of the New York court order. Finally, the intervenor argues that garnishment of monies which become due in the future is beyond the power of the garnishment process.

Without attempting to pass on all the conflicting claims and contentions of the parties, we hold that under the record before us the trial court did not err in quashing appellant’s application for writ of garnishment. The judgment of the trial court is affirmed.

This holding is without prejudice to appellant to collect unpaid child support under any legal remedies available to her under proper procedure, including contempt proceedings, the Uniform Reciprocal Enforcement of Support Act, the Texas Family Code, and the Texas garnishment statutes.

      . Current wages for personal services are not subject to garnishment in the State of Texas. Tex.Const. art. XVI, § 28; Tex.Rev.Civ.Stat. Ann. art. 4099 (Vernon 1966).

      . Stelter was reversed by the Supreme Court of Texas because the United States had not given its consent to be sued in the garnishment proceeding. Stelter was not a child support case. Rather, it was a suit by the ex-wife against the United States to garnishee a part of the military retirement pay which had been awarded to her in a divorce decree. In the present case, we have a garnishment proceeding by an ex-wife for alleged child support arrearage on the theory that it is a debt, without first reducing such arrearage to judgment.

      . Tex.Rev.Civ.Stat.Ann. arts. 4076—4099 (Vernon 1966 & Vernon Supp. 1978-1979); Tex.R.Civ.P. 657-679.

      . This Act has been adopted in Texas in Chapter 21 of the Family Code.


author: McDONALD, Chief Justice.

text:
    Robert E. PATTERSON, Appellant, v. HATFIELD-HOLCOMB, INC., Appellee.
    No. 5993.
    Court of Civil Appeals of Texas, Waco.
    May 24, 1979.

      James G. Clement, Irving, for appellant.
    James M. Beggs and Patrick F. McMane-min, Gilliland, Cates & Flagg, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Patterson from $1,313.76 judgment (plus attorneys’ fees) for architectural services rendered by plaintiff.

Plaintiff Hatfield-Holcomb, Inc., an architectural firm sued defendants Robert E. Patterson, Art Clayton and wife Karen Clayton for $3,313.76 architectural fees for services and architectural renderings for the construction of a proposed residence for the Claytons. Defendant Patterson was the father of Mrs. Clayton and was to be the builder for the Clayton residence.

Trial was to a jury which found

1) Defendant Patterson and defendants Art and Karen Clayton accepted the architectural services rendered by plaintiff for their use and benefit in the proposed construction of a residence in Arlington, Texas for the defendants Art and Karen Clayton.
2) “What sum of money do you find ** to be the reasonable value of said architectural services rendered by the plaintiff * * to either of these defendants?
“Answer: Robert E. Patterson $1,313.76
Art & Karen Clayton $2,000.00”.
3)$1,500. is a reasonable attorneys’ fee for plaintiff’s attorneys’ services.

The trial court rendered judgment on the verdict for plaintiff for $1,313.76 against defendant Patterson; for $2,000. against defendants Art and Karen Clayton; and for $1,500. against defendants Patterson, Art and Karen Clayton jointly and severally.

The Claytons have not appealed.

Defendant Patterson appeals on 7 points which we summarize as 3 contentions.

Contention 1 asserts the judgment does not conform to the pleadings of plaintiff.

Plaintiff pleads that it furnished the architectural services involved to the defendants as the request of defendant and sought recovery under the alternative theories of sworn account, express contract and implied contract or quantum meruit of $3,313.76 plus attorneys’ fees.

Plaintiff’s petition alleged: “Plaintiff at the special instance and request of Defendants delivered to defendants * * * merchandise and services in the nature of architectural renderings; that defendants thereby became bound to pay the plaintiff on demand so much money as said * * merchandise and services were reasonably worth; that * * such merchandise and services were rendered in connection with the preparation of a prototype for a residence, including plans, drafting, research, consultation and architectural drawings and renderings; that such professional services were performed by plaintiff and were reasonably worth * * * $3,313.76 * * ”.

Defendant filed no exceptions to plaintiff’s pleadings.

In the absence of special exceptions, the petition will be liberally construed in the pleader’s favor and to support the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513; and every defect, omission, generality or other insufficiency of allegations in pleadings are waived unless excepted to, and such may not be raised for the first time on appeal. Rule 90 TRCP; Tolson v. Carroll, Tex.Civ.App. (Waco) NWH, 313 S.W.2d 131; Sherman v. Provident American Ins. Co., Tex., 421 S.W.2d 652; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Texas Dept. of Corrections v. Herring, Tex., 513 S.W.2d 6; Lewter v. Dallas County, Tex.Civ.App. (Waco) NRE, 525 S.W.2d 885.

Contention 1 is overruled.

Contention 2 asserts plaintiff failed to request issues to establish plaintiff’s claim in quantum meruit and thereby waived quantum meruit as an independent ground of recovery.

The right to recover in quantum me-ruit is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. Black Lake Pipe Line Co. v. Union Const. Co., Tex., 538 S.W.2d 80.

The trial court submitted Issue 1 inquiring whether defendants accepted the architectural services rendered by plaintiff, for defendants’ use and benefit, in the proposed construction of a residence for defendants Art and Karen Clayton. And the jury found that all defendants including defendant Patterson accepted same for their use and benefit.

No objection was made to the court’s charge by defendants, and in such case any omitted issues are deemed as found in support of the judgment. Rule 279 TRCP.

Contention 2 is overruled.

Contention 3 asserts there is no evidence and/or insufficient evidence to support the verdict and judgment, and that the judgment is against the great weight and preponderance of the evidence.

There is evidence that plaintiffs had done architectural work on several projects for defendant Patterson; defendant Patterson approached plaintiff to do the architectural work on a proposed residence for his daughter and son-in-law; defendant Patterson was to be the builder; there were several meetings held between plaintiff and defendants; plaintiff rendered professional architectural services and delivered to defendant Patterson voluminous design drawings, renderings and plans for a two-story house to cost an estimated $50,000.; defendant Patterson accepted delivery of such plans and drawings; $4,700. would be a proper fee at the hourly rate plaintiff charged for its work; $6,000. would not be an unreasonable charge; and the work would reasonably require some 300 hours to complete.

The evidence is ample to support the verdict and the judgment and such are not against the great weight and preponderance of the evidence. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660.

Contention 3 is overruled.

AFFIRMED.


author: JAMES, Justice.

text:
    Bonnie Sue GEHRING, Appellant, v. Gary Gerald GEHRING, Appellee.
    No. 5995.
    Court of Civil Appeals of Texas, Waco.
    May 24, 1979.

      Louis Davis, Jr., Dallas Legal Services Foundation, Inc., Dallas, for appellant. Frank L. Plemons, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a child custody case. Gary Gerald Gehring, Petitioner-Appellee herein, brought this suit against his former wife, Bonnie Sue Gehring, Respondent-Appellant herein, asking the court to appoint him (Petitioner Mr. Gehring) managing conservator of two minor children born to the marriage of Petitioner and Respondent, to wit, two girls, Kristie Kimberly Gehring, seven years of age, and Heather Nickol Gehring, four years of age.

On August 28, 1974, a judgment of divorce was entered dissolving the marriage of Petitioner and Respondent, wherein the mother Mrs. Gehring was appointed managing conservator of said two children and the father Mr. Gehring was made possessory conservator thereof.

The instant suit was filed by the father Mr. Gehring against the mother Mrs. Gehr-ing on June 23, 1977, wherein Petitioner in effect alleged a change in circumstances since said divorce that causes it to serve the best interests of said children to have their father appointed managing conservator and their mother made possessory conservator.

Trial was had before the court without a jury, after which the trial court entered judgment in which it was found that a material change in circumstances had occurred subsequent to the divorce decree, and that the best interests of the children would be served by appointing the Petitioner-father Mr. Gehring the managing conservator of said two children and the Respondent-mother Mrs. Gehring the possessory conservator. In accordance with said findings the trial court changed the principal custody of said children from the mother to the father, from which judgment the Respondent-mother appeals. We affirm.

Appellant asserts that there is no evidence, and insufficient evidence to support the trial court’s judgment, and additionally complains that the trial court erred in admitting into evidence a tape denominated Petitioner’s Exhibit No. 1, which purports to be a recording of a conversation had between Petitioner and Respondent. We overrule all of Respondent-Appellant’s points and contentions and affirm the trial court’s judgment.

The trial court is afforded a wide discretion in child custody cases, and its judgment will not be disturbed on appeal unless a clear abuse of discretion is shown. Ex Parte Eaton (1952) 151 Tex. 581, 252 S.W.2d 557; Taylor v. Meek (1955) 154 Tex. 305, 276 S.W.2d 787; Herrera v. Herrera (Tex.1966) 409 S.W.2d 395, 396; Renfro v. Renfro (Waco Tex.Civ.App.1973) 497 S.W.2d 807, no writ; Gibson v. Hines (Waco Tex.Civ.App.1974) 511 S.W.2d 546, no writ; Adams v. Adams (El Paso Tex.Civ.App.1975) 519 S.W.2d 502, no writ; Bush v. Cooley (Waco Tex.Civ.App.1978) 561 S.W.2d 606, writ dismissed.

In the case at bar, the evidence is ample to support the trial court’s findings that there was such a material change of conditions as to cause it to be in the best interests of these two little girls, seven and four years of age, respectively, that their principal custody be taken from their mother and awarded to their father. To state the evidence in detail would not in our opinion serve the best interests of the children. There was no evidence of misconduct on the part of the children’s father. Moreover, it was shown that he had married again, had established a home, had a good income, and was willing and able to assume the responsibilities of managing conservator.

Under this record, we cannot say the trial court abused its discretion in making and entering the judgment that it did.

Appellant’s final point of error complains that the trial court erred in admitting into evidence a tape denominated Petitioner’s Exhibit No. 1, purporting to be a recording of a conversation between Petitioner and Respondent. The record shows that the trial court stated that he would hear the tape in the presence of the lawyers on both sides before reaching his decision; however, the contents of the tape are not included in the statement of facts. This tape recording was not brought forward in the record, and same is not before us. It was Appellant’s burden to include this exhibit as a part of the record, which burden was not met by Appellant. Since we do not know, and cannot know, what the tape recording consists of, or what the conservation was in said recording, we can only assume that its contents support the trial court’s judgment. In short, the case is before us on a partial statement of facts.

In the absence of a statement of facts, or in the absence of a complete statement of facts, as here, which is the Appellant’s burden and duty to bring forward, it must be presumed on appeal that the evidence supports the judgment of the trial court. Ehrhardt v. Ehrhardt (Tex.Civ.App., Waco 1963) 368 S.W.2d 37, writ refused; Englander v. Kennedy (Tex.1968) 428 S.W.2d 806; Levitz Furniture Co. v. State of Texas (Tex.Civ.App., Waco 1971) 471 S.W.2d 452, NRE; Community Savings & Loan Ass’n of Fredericksburg v. Citizen’s National Bank of Waco (Tex.Civ.App., Waco 1972) 484 S.W.2d 116, writ dismissed; Moore v. Iglesias (Tex.Civ.App., Waco 1975) 522 S.W.2d 607, no writ; Cress v. Jenkins (Tex.Civ.App., Waco 1978) 566 S.W.2d 706, no writ; Hynum v. First State Bank of Keene (Tex.Civ.App., Waco 1978) 575 S.W.2d 431, no writ.

Judgment of the trial court is affirmed.

' AFFIRMED.


text:
    Hugh E. PRATHER, Jr., Appellant, v. CITIZENS NATIONAL BANK OF DALLAS, Appellee.
    No. 5986.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1979.
    Rehearing Denied June 21, 1979.

      Robert H. Holmes, Logan Ford, Logan Ford & Associates, Dallas, for appellant.
    W. Ted Minick, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit brought by Plaintiff-Appel-lee Citizens National Bank of Dallas against Defendant-Appellant Hugh E. Prather, Jr. on a guaranty agreement. Prather along with George H. Cramer and John W. Beatty guaranteed the note of the G. H. Cramer Company, Inc., dated July 15, 1975, in the principal amount of $112,000.00. After jury trial, Plaintiff Bank filed a Motion for Judgment Notwithstanding the Verdict, which motion the trial court sustained, whereupon judgment was entered in favor of the Bank against Prather for $112,000.00 plus 10% interest per annum from and after July 15, 1975 until paid, plus attorneys’ fees in accordance with the jury verdict. The Bank’s judgment was joint and several against Prather, Beatty, and the G. H. Cramer Co., Inc. George H. Cramer individually was severed out of the case because he had been adjudged a bankrupt prior to the entry of the trial court’s judgment. Defendant Prather alone appeals from said judgment.

Trial was to a jury which found, or failed to find, as the case may be, as follows:

(1) Reasonable and necessary attorneys’ fees incurred, and to be incurred, by Plaintiff Bank in connection with its efforts to collect the note in question are:

(A) $7000.00 through the trial court;

(B) $2000.00 to be incurred if this case is appealed to the Court of Civil Appeals; and

(C) $1000.00 to be incurred if this case is appealed to the Supreme Court of Texas.

(2) On or about July 15, 1975, Mr. Thomas E. Jones, Chairman of the Board and acting for and in behalf of Plaintiff Bank, agreed with Prather to accept a $28,000.00 payment in full settlement and release of Prather’s liability under the guaranty agreement in question.

(3) On or about July 15, 1975, the agreement of Prather to pay to Plaintiff Bank $28,000.00 and the Bank’s acceptance of the $28,000.00 payment was intended by the parties hereto as an accord and satisfaction of Prather’s liability under the guaranty agreement in question. “Accord and satisfaction” was defined by the trial court.

(4) The jury failed to find that the transaction was not actually a loan to G. H. Cramer Co., Inc., a corporate entity, but was rather a subterfuge or device on the part of Plaintiff Bank to conceal a usurious loan to the three individual guarantors, to wit, Prather, Beatty, and Cramer.

As stated before, Plaintiff Bank filed a motion to disregard the jury’s answers to Special Issues Numbers 2 and 3, which motion the trial court sustained; and pursuant thereto, the trial court entered judgment in favor of Plaintiff Bank against Prather for $112,000.00 plus interest and attorneys’ fees.

Defendant-Appellant Prather complains of the trial court’s disregarding of the jury’s answers to Special Issues Numbers 2 and 3, as above set out, and says that the jury verdict (particularly the jury’s answers to special issues 2 and 3) entitles him to a judgment that the Bank take nothing against him. Appellant further asserts that the record establishes as a matter of law that on July 15, 1975, the date of his payment of $28,000.00 to Plaintiff Bank, he (Prather) (1) was insolvent, or seriously embarrassed financially; (2) his insolvency and financial embarrassment was known to Plaintiff-Appellee Bank on said date; and (3) the Bank accepted Prather's $28,000.00 payment on said date in consideration of his insolvency and his seriously embarrassed financial condition, in full settlement and release of- Prather’s liability under the guaranty agreement in question. We do not agree with Prather’s contentions.

Defendant-Appellant Prather and Defendants Cramer and Beatty were all general partners in a limited partnership known as Hospital Associates, Limited. Dr. Pollard was a fourth and limited partner. The general partners and their respective interests in the partnership were: Cramer 40%, Beatty 40%, and Prather 20%. To buy out Dr. Pollard’s interest in said limited partnership, the Cramer Company, a corporation, borrowed $140,000.00 from Plaintiff Bank on April 12, 1974, evidenced by a ninety-day note executed by the Cramer Company to said Bank in the principal amount of $140,000.00 dated April 12, 1974. Prather, Beatty, and Cramer individually each executed joint and several guaranty agreements to Plaintiff Bank, guaranteeing payment of said debt. Thereafter, some interest payments were made, and the nóte was renewed several times.

On or about July 15,1975 Prather made a payment of $28,000.00 on the principal of said note, thereby reducing the principal amount of said note to $112,000.00. Prather obtained the $28,000.00 by obtaining a loan in said amount from Park Cities Bank and Trust, wherein in said last-named bank Prather was a director. The testimony surrounding this payment is controverted. Prather testified that on July 15, 1975, he was insolvent and seriously financially embarrassed, because he said he owed at that time about a half million dollars more than the value of his assets. Prather further testified that on July 15, 1975, Thomas E. Jones, Chairman of the Board of Plaintiff Bank, explained to Prather that he was in a great deal of trouble over the loan, and that if Prather could borrow the money and reduce the loan by $28,000.00, it would be very helpful; that Jones told Prather if he would borrow from the Park Cities Bank where Prather was a director, that he, Jones, would take the $28,000.00 loan back into his Bank within a period of 30 to 60 days. This request by Jones to borrow $28,-000.00 and his agreement to take the loan back into his Bank within 30 to 60 days was confirmed by two officers of the Park Cities Bank; however, Park Cities Bank never thereafter demanded that Plaintiff-Appel-lee Bank take back the loan. Prather further testified that Jones told him, Prather, that this $28,000.00 would constitute satisfaction of Prather’s portion of the obligation, that is to say, that Prather would be fully released from his guaranty obligation. On the other hand, Plaintiff-Appellee Bank’s testimony was to the effect that Jones requested payment on the principal from each of the three partners, that Jones did not specify any amount of payment requested from Prather, and that any offer of severance of Prather from his joint and several liability on the obligation was specifically contingent on payment or collater-alization by each partner on each respective share. In other words, the Bank’s testimony was to the effect that Jones never promised to release Prather unless the entire debt was either paid or sufficiently secured by collateral.

On July 15, 1975, the same date that Prather paid the $28,000.00 to Plaintiff-Ap-pellee Bank, the G. H. Cramer Company, Inc. gave to Plaintiff-Appellee Bank its 90-day renewal note in the principal amount of $112,000.00. At the maturity of this last-mentioned note, Plaintiff-Appellee Bank made demand upon the Cramer Company and each of the guarantors to make payment on the note. No payment was made by any of the parties thereto, and the instant suit was brought.

Appellant Prather argues that the trial court erred in disregarding the jury’s answers to Special Issues Numbers 2 and 3; that such jury’s answers establish and constitute a full release of his obligation to the Bank, and an accord and satisfaction thereof. To the contrary Appellee Bank asserts that Prather’s payment of $28,000.00 on an agreement guaranteeing a note in the amount of $140,000.00 constitutes a payment of less than that to which Appellee Bank was entitled; therefore, this $28,-000.00 payment cannot, as a matter of law, constitute a release or an accord and satisfaction as found by the jury in answer to Special Issue Numbers 2 and 3. We agree with Appellee’s argument.

The old common law rule which has been followed in Texas since early times is as follows: The mere payment of part of a debt which is undisputed is not a sufficient consideration to support a promise to accept the same in full payment of the debt, and does not bar the creditor’s suit to recover the balance. Silvers Box Corp. v. Boynton Lumber Co. (Eastland, Tex.Civ.App.1927) 297 S.W. 1059, writ refused; Baker v. Coleman Abstract Co. (Austin, Tex.Civ.App.1923) 248 S.W. 412, no writ; Reeves v. Hall (Austin, Tex.Civ.App.1969) 437 S.W.2d 424, no writ; Pickering v. First Greenville National Bank (Dallas, Tex.Civ.App.1973) 495 S.W.2d 16, NRE; 1 Tex.Jur.2d, “Accord and Satisfaction,” par. 14, p. 218.

However, among the exceptions to this rule is the “known insolvency of the debtor” exception. This exception was recognized and applied by our Supreme Court in Pugh v. Turner (1946) 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707. In Pugh, wherein there were jury findings that the holder of notes agreed to accept in full satisfaction of debt whatever proceeds were received from sale of farm machinery and wheat crop, that creditor accepted proceeds from sale in full payment, that maker was insolvent as the holder of the notes knew, that holder accepted the proceeds from sale of the machinery in consideration of maker’s insolvency, it was held that such findings constituted a new and sufficient consideration for the creditor’s promise to release the debt, and thereby an accord and satisfaction was upheld. That is to say, the court upheld the agreement to release the debtor, as the facts as above found by the jury were sufficient to raise the issue of accord and satisfaction. See City of San Antonio v. Guido Bros. Construction Co. (Beaumont, Tex.Civ.App.1970) 460 S.W.2d 155, 166, NRE; Unit ed States Gypsum Co. v. Sampson (Amarillo, Tex.Civ.App.1973) 496 S.W.2d 687, 692, no writ; 1 Tex.Jur.2d, “Accord and Satisfaction,” par. 20, p. 222.

In the case at bar, the common law rule applies unless said case falls within the “known insolvent debtor” exception herein-above pointed out. In other words, the promise of Jones (acting- for Plaintiff Bank) to release Prather from the entire $140,-000.00 debt by Prather’s part payment of $28,000.00 is not supported by consideration as a matter of law, and therefore the agreement to release Prather as well as the accord and satisfaction are not valid and therefore fall, unless the “known insolvent debtor” exception applies. Appellant contends that the record conclusively establishes as a matter of law that (1) Prather was insolvent or seriously financially embarrassed on or about July 15, 1975, (2) which was known to Plaintiff-Appellee Bank on such date, and (3) said Bank accepted Prather’s $28,000.00 payment on said date in consideration of Prather’s insolvency and his seriously embarrassed financial condition, in full settlement and release of Prather’s liability under the guaranty agreement in question. We do not agree that the record conclusively establishes these facts, because the testimony is disputed and contradictory concerning these matters. The only testimony concerning Prather’s asserted insolvency came from Prather himself, unsupported by any other evidence. Moreover, Mr. Marshall, Vice President and Loan Officer of Park Cities Bank, testified that when his bank made the $28,000.00 loan to Prather, unsecured by any collateral from Prather, that “we felt comfortable with the loan.” Also, Marshall’s testimony further shows that Prather paid off the $28,000.00 in full to Park Cities Bank. This evidence contradicts Prather’s uncorroborated assertion that he was insolvent at the time in question. There is no evidence in the record that Plaintiff-Appellee Bank knew of Prather’s alleged insolvency or regarded the alleged insolvency as consideration for the Bank’s agreement to release Prather.

Since the evidence bearing upon Prather’s alleged insolvency is disputed, if Defendant-Appellant Prather sought to rely upon this “known insolvent debtor” exception to the common law rule as a defense, then Prather had the burden to request special issues for submission to the jury setting out the elements of this defense, and to object to the trial court’s failure or refusal to submit such issues to the jury. This Appellant failed to do; and thereby Appellant has waived this defense. Rule 279, Texas Rules of Civil Procedure; Strauss v. La Mark (Tex.1963) 366 S.W.2d 555, 557; Woo v. Great Southwestern Acceptance Corp. (Waco, Tex.Civ.App.1978) 565 S.W.2d 290, 299, NRE; Cochran v. American Savings and Loan Ass’n of Houston (Waco, Tex.Civ.App.1978) 568 S.W.2d 672, 676, NRE.

Appellant has other points and contentions, all of which we have carefully considered, and we overrule same as being without merit.

In the case at bar, we are of the opinion and hold that the trial court properly disregarded the jury’s answers to Special Issues Numbers 2 and 3, because the Bank’s promise to release Prather in return for Prather’s part payment was not supported by consideration, nor was the accord and satisfaction supported by consideration. This being so, we affirm the trial court’s judgment.

AFFIRMED.


text:
    AUSTIN INDEPENDENT SCHOOL DISTRICT, Appellant, v. Leila ROUNTREE, Appellee.
    No. 6070.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1979.
    Rehearing Denied June 21, 1979.

      James G. Noland and T. B. Wright, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Tony Korioth, Law Office of Tony Ko-rioth, P. C., Austin, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Plaintiff-Appellee Leila Rountree secured a judgment based upon jury findings against Defendant-Appellant Austin Independent School District, a self-insurer, for total and permanent benefits. We affirm.

The jury verdict, insofar as same is pertinent to this appeal, may be summarized as follows: Claimant, a 64 year old custodian at a junior high school, sustained a total loss of the use of her left leg as the result of an injury of October 30, 1975; that such total loss of use was permanent; the jury failed to find that she will have any partial loss of the use of her left leg following such injury; the jury found that the injury to her left leg, combined with the previous loss of her right eye was the producing cause of total incapacity which began on October 30, 1975, and was permanent. Pursuant to and in harmony with the jury verdict, the trial court entered judgment in favor of the Claimant against the School District for total and permanent benefits, from which judgment the School District appeals.

Appellant’s thirteen points of error may be grouped under four headings, wherein the jury’s answers to Special Issues Numbers 4, 6, 12, and 14 are challenged because of asserted legal and factual insufficiency. We overrule all of Appellant’s points and contentions and affirm the trial court’s judgment.

Claimant, a 64 year old woman, was injured on October 30, 1975, when she fell down a flight of about six stairs while working as a custodian at Bedichek Junior High School for Appellant School District, a self-insured entity under Article 8309h, Vernon’s Texas Civil Statutes. Mrs. Roun-tree had gone to work for Appellant School District as a custodian on December 18, 1963, and retired therefrom on May 28, 1976. She had an almost perfect attendance and work record up to the time of her retirement except for about two months in 1969 after she lost her right eye because of a malignant tumor behind the eye, and the twenty days she was off work following the accident which was the basis of this suit. Her duties as a custodian included heavy lifting, moving furniture out of rooms, “stripping rooms,” mopping with the use of and picking up and filling industrial buckets, general cleaning of classrooms and the office, sweeping, spot cleaning the walls of class rooms and halls, work in the cafeteria, and general cleaning that had to be done. She was required in her work to go up and down stairways encompassing three floors.

Appellant asserts there is no evidence and insufficient evidence to support the jury’s finding in answer to Special Issue No. 4, wherein the jury found that Claimant’s total loss of the use of her left leg was permanent; that the jury’s answer to Special Issue No. 6, wherein the jury failed to find that Claimant will have any partial loss of the use of her left leg, should be set aside because the evidence conclusively establishes only a partial loss of use of the left leg, and that such failure to find partial loss is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Moreover, Appellant argues there is no evidence, and insufficient evidence to support the jury’s answer to Special Issue No. 12, wherein the jury found that the injury to Plaintiff’s left leg combined with the previous loss of her right eye produced total incapacity; and that there is no evidence and insufficient evidence to support the jury’s answer to Special Issue No. 14, wherein the jury found that the injury to Plaintiff’s left leg, combined with the previous loss of her right eye produced permanent incapacity.

At the outset we can dispose of Appellant’s “no evidence” points by saying that in our opinion there is ample evidence to support the jury’s answers to Special Issues Numbers 4, 12, and 14, and that the evidence does not conclusively establish that Plaintiff had only a partial loss of use of her left leg (germane to Special Issue No. 6).

With reference to the Appellant’s assertions of factual insufficiency of the evidence to support the jury’s findings in answer to Special Issues Numbers 4, 12, and 14, and the jury’s failure to find in answer to Special Issue No. 6, we have carefully examined the entire record and weighed the evidence both for and against the jury’s findings, in accordance with the test laid down by our Supreme Court in the case of In re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660. From our examination of the entire record, we are of the opinion and hold that such findings (and failure to find in answer to Special Issue No. 6) are not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Plaintiff Mrs. Rountree had previously lost the sight of her right eye in 1968, and in 1969, while employed by Appellee School District said eye was removed because of a cancerous condition. Her loss of sight in this eye was not work-related, insofar as the record shows. After losing her right eye, she continued to work for Appellee with an almost perfect attendance record until she fell coming down the stairs on October 30, 1975, injuring her left knee. She reported the injury to the school office and went to Brackenridge Hospital where she was X-rayed and treated by a doctor on duty. On November 3,1975, she saw one of her family physicians, Dr. B. 0. White, who, after some treatment, released her to return to work on November 19, 1975. She continued to have problems with her knee up until the Christmas holidays. In January 1976, she saw Dr. J. Stanley Wright and his son, Dr. Robert Wright, chiropractors, complaining of her knee. She continued to be treated by them for this injury through March 7, 1976. During this time Mrs. Rountree continued to work but with considerable discomfort. Prior to this leg injury she was such a good worker that she never took her allotted 15 minute breaks and even stayed at school during her lunch break; whereas after said injury she had to go home every day at lunch and put her leg up and rest. In May 1976, her knee gave way on her and she fell at home. Before the leg injury, Mrs. Rountree had planned to continue working for three or more years; however, after her leg injury she retired in May 1976. She testified that she was not able to continue to do the work as she thought it should be done. In July 1976 her leg gave way on her again, whereupon she appeared at the offices of the Drs. Wright on crutches stating that she had never been fully free of pain. The Drs. Wright continued to treat her and stated she was free of pain except when she stands for any length of time.

In September 1976, Appellant’s servicing contractor, Texas Employers Insurance Association, requested that Mrs. Rountree see Dr. Jack Kern, an orthopedic surgeon, who testified that she had suffered an injury to her left knee and the injury had aggravated her degenerative arthritis. Dr. Kern stated that she had a 5% permanent disability or impairment to her left knee, testified that she was 75 pounds overweight at the date of his examination, and further found that she should not be seeing or receiving any further treatment from chiropractors. However, Mrs. Rountree continued to be treated by the chiropractors up until two or three weeks before trial.

While working for Appellant School District, and after retirement, Mrs. Rountree sold Amway, Dutchmade Products, and Aloe Vera skin care products to her friends and neighbors over the telephone and in person, as a way to supplement her income. The evidence shows that in 1976, she drove her car 6000 miles in this work; however, she did not make enough money selling these products in 1977 to require her to file an income tax return. She continued to do this selling work up to the time of trial in May 1978; however the record is silent as to what money she made from this work.

We recognize that there is conflicting testimony in the record in that Appellant has presented some medical testimony to the effect that Mrs. Rountree’s injury was not serious; whereas, Mrs. Rountree’s evidence shows a factual pattern of a leg injury which got steadily worse as time went on, without any subsidence of pain and discomfort overall. In spite of her age, discomfort, and the loss of her right eye, she was a cheerful and diligent worker, and was not the type to complain. From the record as a whole, we cannot say that the jury findings complained of are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The jury as trier of fact had the opportunity to see and hear the witnesses in person and to weigh their credibility. Moreover, the jury had the opportunity to observe the Claimant Mrs. Rountree’s physical condition and demeanor during the trial.

Judgment of the trial court is affirmed.

AFFIRMED.


text:
    Ex parte Dennis Lloyd ROBERTS, Relator.
    No. 6095.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1979.
    Rehearing Denied June 21, 1979.

      Franklin R. Valentine, Jr., Waco, for relator.
    Charles B, McGregor and Pat Beard, Beard & Kultgen, Waco, for respondent.
   OPINION

McDONALD, Chief Justice.

This is an original habeas corpus proceeding brought pursuant to Article 1824a VATS, in which relator Dennis Lloyd Roberts, seeks release from the custody of the Sheriff of McLennan County.

Relator Dennis Lloyd Roberts and Susan Eve Roberts were divorced on March 13, 1978 in the 170th District Court of McLen-nan County. The decree required relator to pay $200. per month child support for the parties’ two minor children aged 10 and 6.

On October 7, 1978 Susan Eve Roberts filed motion in the 170th District Court of McLennan County, reciting the above; that relator was $800. in arrears in his child support payments; and requesting the court to set a hearing and issue notice to relator to show cause why he should not be held in contempt for failure to make such payments. It took some 5 months to get service on relator. Hearing was had on May 7, 1979 after which the court found relator $2200. in arrears in his child support payments; that no facts existed which might excuse relator from failing to obey and comply with the order to make child support payments; and held relator in contempt for such failure and disobedience. The trial court assessed punishment for relator at 180 days confinement in the County Jail of McLennan County; and further decreed he be confined until he purged himself of his contempt by payment of $2200. unpaid child support into the registry of the court for his children.

Relator was committed to the custody of the Sheriff on May 7,1979; and on May 11, 1979 filed petition for Writ of Habeas Corpus in this court alleging he is illegally restrained of his liberty because the May 7, 1979 decree is void for reasons listed in six points.

This court issued the Writ of Habeas Corpus, ordered relator released on $3000. cash bond, and set hearing for May 17,1979.

Point 1 asserts relator has no financial capability to make the child support payments ordered by the court.

Where a party charged with contempt for failure to comply with a court order requiring the payment of money, shows that such failure resulted from poverty, insolvency, or other cause not attributable to his own fault, such showing will ordinarily relieve him from the consequences of contempt. Ex parte Gonzales, Tex., 414 S.W.2d 656. However, it is such party’s burden to show the basis for his inability to comply with the court’s order. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247, and the evidence presented on behalf of the party charged must conclusively establish his involuntary inability to perform. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251.

Where the party charged with contempt claims he was financially unable to make the required payment, he ordinarily must establish 1) he lacked personal or real property which could be sold or mortgaged to raise the needed sum; 2) that he had unsuccessfully attempted to borrow the sum; 3) that he knows of no source including relatives from whom he could borrow or otherwise secure the sum. Ex parte Hennig, Tex.Civ.App. (Dallas) NWH, 559 S.W.2d 401. He must show without substantial contradiction in the record that he was unable at the time of hearing to do the act required by the judgment as a condition for release from custody. Ex parte Deckert, Tex.Civ.App. (Houston 1) NWH, 559 S.W.2d 847; Ex parte Andrews, Tex.Civ.App. (Houston 1) NWH, 566 S.W.2d 668.

The record reflects relator quit a job paying $20,000. per year and has secured a job paying $6,000. per year since the divorce; that he failed to make his support payments prior to quitting; that he purchased a new pickup truck while he claims to be unable to pay; that he has remarried and has been supporting the new wife and her children by a prior marriage; that he had retained an attorney to represent him in this proceeding; and he is on cash bail posted in his behalf in the amount of $3000.

Point 2 asserts relator was indigent at the date of hearing, had no counsel to represent him at the May 7, 1979 hearing, and that no counsel was appointed for him.

The record reflects relator waived his right to counsel at the May 7, 1979 hearing; that he had $300. in cash at the time of such hearing; that he has employed counsel now and has had posted $3000. in cash bail to secure his release from jail pending hearing.

Point 3 asserts relator was never put on notice that he was being cited for contempt.

Certified copies of the Motion for Contempt, the Show Cause Order, the Citation and the Sheriff’s return on same, made a part of the record by relator, is total proof to the contrary.

Point 4 asserts the trial court’s order is without support in the evidence.

From the record recited we hold the evidence ample and sufficient to support the order and judgment of the trial court.

Point 5 asserts relator was not informed he was entitled to trial by jury. Relator did not request a trial by jury and waived same. Moreover a sentence of 6 months or less may be imposed for contempt without a jury trial. Ex parte Wer-biud, Tex., 536 S.W.2d 542.

Point 6 asserts the trial court erred in overruling relator’s objection to certain evidence. Relator was asked at the hearing if he had paid some furniture payments ordered paid by him in the divorce decree. He objected to the question as not relevant to the contempt. The trial court overruled such objection. Relator answered the question that he had not made the payments as he was not financially able. The question was relevant.

All relator’s points and contentions have been considered and are overruled. Relator has shown no basis for relief.

The application for Writ of Habeas Corpus is denied, and relator is remanded to the custody of the Sheriff of McLennan County, Texas.


author: SPURLOCK, Justice.

text:
    Sally Ann GAITHER, Appellant, v. Priscilla Lee DAVIS, Appellee.
    No. 18162.
    Court of Civil Appeals of Texas, Fort Worth.
    June 7, 1979.
    Rehearing Denied June 28, 1979.
    Robert A. Sewell, Fort Worth, for appellant.
    Denbow & Wells and H. G. Wells, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment providing that appellant Sally Gaither take nothing. Ms. Gaither sued appellee Priscilla Davis for slander. The allegedly slanderous remarks were made by Ms. Davis from the witness stand while she was testifying in a criminal trial. The questions presented are whether the communication in question was absolutely privileged and whether Ms. Gaither has a cause of action for the alleged slander and for the violation of her privacy.

We affirm.

While giving testimony in a criminal proceeding, Ms. Davis made the following statement:

“Well, Sally Gaither is a thief”.

Ms. Gaither was not a party or otherwise involved in the proceeding in which the> above testimony was given. Ms. Gaither’s petition alleged slander and invasion of her right to privacy. The trial court rendered a summary judgment that she take nothing. The basis of the trial court’s judgment was that the communication in this case was absolutely privileged. Ms. Gaither claims that because the slanderous testimony was not relevant or material to the issue of guilt being tried, it was not privileged. We do not agree.

It is well settled that communication in the course of a judicial proceeding is absolutely privileged whether relevant or not. Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889), and Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942). We conclude that the rule of absolute privilege for communication in judicial proceedings is especially viable where, as here, the communication is the testimony of a lay witness. Relevancy and materiality are legal concepts unknown and unappreciated by the average layman. The need for complete and candid testimony is obvious, especially in a criminal proceeding. We foresee that a privilege less than absolute could greatly inhibit the full testimony needed in a search for the truth.

Ms. Gaither also complains that Ms. Davis violated her right to privacy. We conclude that the considerations applicable to the alleged slander apply with equal force to the allegation of violation of her right of privacy. Therefore, we hold that the absolute privilege extends in this case to the alleged invasion of privacy.

Both of Ms. Gaither’s points of error have been severally considered. Each is overruled.

The judgment of the trial court is affirmed.


text:
    James R. YOCOM, etc., et al., Movants, v. Ovie MILLER and Workmen’s Compensation Board, Respondents.
    Supreme Court of Kentucky.
    May 15, 1979.
   OPINION AND ORDER

The motion of James R. Yocom, etc., et al., for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered September 15, 1978, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of this court’s opinion in Transport Motor Express, Inc. v. William Finn, Ky., 574 S.W.2d 277 (1978).

All concur.