author: McKAY, Justice.

text:
    In the Interest of Lara Diane JONES, a child.
    No. 1124.
    Court of Civil Appeals of Texas, Tyler.
    May 11, 1978.
    Rehearing Denied June 8, 1978.

      Reagan E. Hunter, Tyler, for appellant.
    Will D. Pace, Tyler, for appellee.
    Alan O. Johnson, Pye, Dobbs & Cobb, Tyler, for Attorney Ad Litem.
   McKAY, Justice.

This is an appeal by Travis Dale Jones, the natural father, from an order of the trial court terminating his parental rights to his daughter, Lara Diane Jones. The suit was filed by Patricia Elaine Minter, the natural mother, and her present husband, Jerry Dale Minter, and it was alleged that the father failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition, and that termination of the parent-child relationship between the natural father and the child, and adoption of the child by her stepfather, would be in the best interest of the child.

The parents were divorced in January, 1974, and the mother was appointed managing conservator, and the father was appointed possessory conservator with the right of reasonable visitation, and the father was ordered to pay child support in the amount of $100.00 per month. The trial of this case was before the court without a jury; the child was seven years of age, and an attorney-ad-litem was appointed for the child. The trial was held on May 4 and 5, 1977, and the order terminating the father’s parental rights was signed July 29, 1977.

On August 2, 1977, an instrument styled “Final Judgment Granting Termination and Adoption” was signed by the trial judge.

The petition in this suit for termination of parental rights and for adoption was filed January 3, 1977; and, therefore, the alleged failure to support the child by appellant in accordance with his ability would involve a period of one year ending within six months of January 3, 1977.

In his points two and three appellant maintains that the trial court erred in terminating his parental rights because there was no evidence, or factually insufficient evidence, that he failed to support his daughter in accordance with his ability during the period of one year ending within six months of the date of the filing of the petition. In considering a no evidence point we must review the evidence in its most favorable light, considering only the evidence and inferences which support the judgment; in passing on the insufficient evidence point we must consider the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The trial court made exhaustive findings of fact. They include findings that (5) appellant paid two payments of child support in 1974 totalling $150.00, one payment in 1975 of $100.00, and no payments in money in 1976, but subsequent to the filing of the petition for termination appellant paid $100.00 in February, 1977, a like amount in April and in May, 1977, and that appellant was able to pay some child support during the year 1976, but that he failed to pay any child support during 1976, and that such failure to pay child support was without excuse or justification. The trial court also found (additional finding I) that during the twelve-month period immediately preceding the filing of the petition to terminate appellant furnished approximately twenty (20) pounds of beef to appellees from an animal he killed and processed; found (a.f. II) that appellant gave appellee a bicycle during this period for the use of the child; found (a.f. Ill) that appellant during this period offered to keep the child while appellee was working and having to pay a babysitter thereby relieving appellee of the financial burden of having to pay a babysitter, and thus allowing appellant additional time to visit with the child. The court further found (a.f. IV) that on numerous occasions during the twelve-month period appellant bought clothes for the child and gave her other gifts. The court further found (a.f. VIII) that appellant was in financial straits during the twelve-month period and “was filed in bankruptcy.” The trial court also found (a.f. XVIII and a.f. XIX) that appellant testified that “he loves and cares for his child, and denies that it will be in the child’s best interest that his parental rights be terminated,” and that when appellant was “allowed to visit with the child he often took the child to his grandfather’s [sic] farm, where said child had a grand time.”

Section 15.02 of the Family Code provides in part:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
“(1) the parent has:
“(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
.; and in addition, the court further finds that
“(2) termination is in the best interest of the child.”

At the time of the divorce between appellant and the mother of the child appellant was employed as a coordinator for Warren Refrigerator Company in Houston for the salary of $800.00 per month, and he agreed to the $100.00 per month child support fixed by the court. He later became self-employed in Houston doing the same type work, and later bought a business in Tyler which he operated under the name “Paramount Refrigerator Company” and did commercial air-conditioning and refrigeration work. As of December, 1975, appellant was self-employed, renting ice-making machines to businesses, and as of January, 1976, that business was not making a profit. Appellant also obtained a job driving a truck for Glo-Flame Butane, and he put his salary from the Glo-Flame job into his ice-machine business “trying to keep it afloat.” His wages from Glo-Flame were $125.00 per week plus one-half cent commission on the gas — the commission being approximately $50.00 to $75.00 per month, making a total weekly income of approximately $135.00 to $145.00. Appellant estimated he grossed $6,000.00 to $7,000.00 for the year 1976, and his tax return showed he had a $4,000.00 loss for 1975 in the ice-machine business.

Appellant testified the child’s mother never told him the child was in need of anything, and that he offered to carry the child on his hospitalization insurance while he was employed by Glo-Flame, but the mother told him she and her husband had plenty of insurance and did not need it.

Appellant filed a voluntary petition in bankruptcy in March, 1976, which showed he had approximately $34,500.00 in indebtedness and approximately $3,000.00 in assets. He was laid off by Glo-Flame in April, 1976, because the butane gas business was seasonal, and as a result he then had no source of income at all. He then used his pickup truck to try to get some hay hauling business, and he hauled hay when he could get the work from June through early November, 1976, and earned approximately $700.00 to $900.00 during that period. About the middle of November, he began working for Glo-Flame again at the same rate of pay as before — $125.00 per week plus one-half cent commission, and he had no other income beginning in October to the time of trial.

Appellant remarried in August, 1976, and moved into his wife’s home. He did not sell his tools, household furniture or equipment, nor his pickup, which were exempted to him in his bankruptcy case. He did pay some of his creditors money before bankruptcy because of pressure from them, and he finished paying the mortgage on his pickup after his petition in bankruptcy was filed. Appellant testified he knew his child was being well cared for, and had she not been he would have cared for her before paying any of his creditors.

The record reveals that the visitation of the child with appellant was pleasant and she apparently was happy with him and his parents.

The case of Cawley v. Allums, 518 S.W.2d 790, 792 (Tex.1975), was an adoption case under Article 46(a), Vernon’s Revised Civil Statutes, (now repealed), and the language with which the court was concerned (Sec. 6a) read:

“. . . or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability . . . .”

The court held that there had to be a continuous period of two years in which there was nonsupport to meet the requirements of that statute.

In Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976), the court cited Cawley v. Allums, supra, and held that the one year provision in section 15.02(1)(E), i. e., “failed to support the child in accordance with his ability during the period of one year” means a continuous period of one year with no support, and further held that the words “commensurate with” and the words “in accordance with” had the same meaning. The opinion says (page 351):

“The proof is that Mrs. Wiley provided or offered support for four of the twelve months and that she was living at a poverty level during the entire one-year period.”

The Wiley case and Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976), both point out that under section 15.02 termination of the parent-child relationship may not be based solely upon what the trial court determines to be in the best interest of the child. One or more of the acts or omissions listed in subdivision (1) must be proved in a termination case, and in addition thereto subdivision (2) requires proof that the termination is in the best interest of the child. Failure to prove either element will prevent termination of parental rights.

As pointed out in Brokenleg v. Butts, 559 S.W.2d 853, 856 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.), one year means twelve consecutive months, and thus it was necessary that there be a period of twelve consecutive months during the calendar year 1976 when appellant failed to provide support in accordance with his ability. The record reveals that appellant filed his bankruptcy case in March of 1976 and for approximately the next six months he was seeking to haul hay for farmers to make whatever money he could, if any. He did haul some hay, and his gross income for that period was approximately $700.00 to $900.00. He was renting a house in which to live until he remarried in August of 1976, and it was necessary for him to eat and provide for the necessities of life for himself. In our view, it is a matter of common knowledge that appellant could not pay for these necessities and pay $100.00 a month child support during this six-month period. The record does show, however, that appellant furnished approximately 20 pounds of beef to the Minter family and that he gave the child a bicycle and provided her with some clothes during the twelve-month period.

“Actions which break the ties between a parent and child ‘can never be justified without the most solid and substantial reasons’ . . . particularly in an action which sunders those ties, should the proceedings be strictly scrutinized. The natural right which exists between parents and their children is one of constitutional dimensions.” Wiley v. Spratlan, supra; Coleman v. Texas State Department of Public Welfare, 562 S.W.2d 554, 557 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.).

We hold there is no evidence that appellant failed to support his child in accordance with his ability for a continuous period of twelve months. Appellant’s point two is sustained.

In view of our holding that there is no evidence in the record that appellant failed to support the child in accordance with his ability for a continuous period of one year, we do not reach appellant’s point three contending there is factually insufficient evidence to support such finding and termination. Had we reached appellant’s point three we would have sustained it.

We do not reach appellant’s other points of error.

We are not to be understood as finding and holding that there were not some months during 1976 in which appellant failed to support the child in accordance with his ability; it is our holding that the record does not reveal that appellant failed to support the child in accordance with his ability for each and every month for the continuous twelve-month period.

Judgment of the trial court is reversed, and judgment is here rendered that the trial court judgment terminating the parental rights of appellant and the judgment of adoption of the child by appellee be set aside.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Barbara CRESS, Appellant, v. Allen Leroy JENKINS, Appellee.
    No. 5872.
    Court of Civil Appeals of Texas, Waco.
    May 11, 1978.
    Tom C. Ingram, Jr., Dallas (on appeal only), for appellant.
    William M. Jones, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a judgment changing the managing conservatorship of a child. Petitioner-Appellee Allen Leroy Jenkins, the father of the child in question, brought this suit against Respondent-Appellant Barbara Cress, the mother of said child, seeking to be appointed managing conservator of said child.

Mr. Jenkins and Mrs. Cress were formerly husband and wife, and were divorced in Dallas County, Texas, on June 22, 1971. Said divorce judgment awarded the principal custody of said child to the mother. The child was born August 27, 1968, and was a little less than three years old at the time of the divorce.

Mr. Jenkins filed this suit against Mrs. Cress to modify said divorce judgment under the provisions of Article 14.08(c)(1) of the Texas Family Code.

M. L. Jenkins, the paternal grandfather of the child, filed a Petition in Intervention seeking possessory conservatorship rights concerning the (then) nine year old boy.

After nonjury trial the trial court entered judgment (1) appointing Petitioner-Appel-lee Allen Leroy Jenkins managing conservator; (2) appointing Respondent-Appellant Barbara Cress possessory conservator with rights of possession of said child on alternate weekends from 6 PM Friday to 6 PM Sunday, two weeks in the summer, plus alternate holiday periods; (3) awarding the intervening grandfather possessory conser-vatorship rights consisting of two weeks in the summer plus other unspecified reasonable visitation rights; (4) ordering the mother to pay $10.00 per week child support.

From this judgment Respondent Barbara Cress appeals, asserting that there is no evidence and insufficient evidence to support such modification order, and that the trial court abused its discretion in entering such order.

The trial court made findings of fact and conclusions of law, finding as facts: (1) that the circumstances of the child have materially and substantially changed since the divorce judgment; (2) the circumstances of the mother have materially and substantially changed since the divorce judgment; (3) retention of the mother as managing conservator would be injurious to the welfare of the child; and (4) the appointment of the Petitioner father as managing conservator would be a positive improvement for said child. Then the trial court concluded that the best interests and welfare of the child would be served by modifying the divorce decree and appointing the Petitioner father as managing conservator.

The statement of facts recites that a deposition of one Robert C. Morrison was offered into evidence by the Petitioner; whereupon the Respondent at first objected to its admissibility and then withdrew her objection. The deposition was admitted into evidence, and the Petitioner asked permission to read “certain portions” of the deposition into the record; but the trial court advised counsel that the court would read the deposition before communicating his decision to the lawyers on both sides. Therefore none of this deposition is in the statement of facts, and the deposition is not included as a part of the record before us. Moreover, the statement of facts recites that four other exhibits were offered into evidence, two by Petitioner and two by Respondent, three of which exhibits were admitted and one of which was excluded (the one excluded being a Respondent’s exhibit). None of these exhibits have been included in the record and are not before us.

In short, the case is before us on a partial statement of facts. There is no stipulation in the record that the partial statement of facts constituted an agreed statement. See Rules 375, 377, and 378, Texas Rules of Civil Procedure; Community Savings and Loan Association of Fredericksburg v. Citizens National Bank of Waco (Waco Tex.Civ.App.1972) 484 S.W.2d 116, writ dismissed.

We have reviewed the incomplete record. If we were called upon to decide whether the evidence set forth in the partial statement of facts is legally and factually sufficient to support the trial court’s findings and judgment, we would hold that it is; however, we do not reach that decision.

In the absence of a statement of facts, it must be presumed on appeal that the evidence supports the trial court’s findings and judgment. See Levitz Furniture Co. v. State (Waco Tex.Civ.App.1971) 471 S.W.2d 452, NRE, and the cases cited therein on page 454.

The same rule is applicable where, as here, only a partial statement of facts is submitted, or where the record is otherwise incomplete. Englander v. Kennedy (Tex.1968) 428 S.W.2d 806; Baker v. Rutherford (Waco CA 1956) 293 S.W.2d 669, NRE.

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.” Englander, supra.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: ROBINSON, Chief Justice.

text:
    C. O. ABEYTA, Jr., Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 8879.
    Court of Civil Appeals of Texas, Amarillo.
    May 15, 1978.
    Rehearing Denied June 5, 1978.

      Mark Smith & Associates, John Mann, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellee.
   ROBINSON, Chief Justice.

In this workers’ compensation case, plaintiff challenges the legal and factual sufficiency of the evidence to support jury findings that his injury was not a producing cause of any total or partial incapacity. Plaintiff also contends that the trial court erred in admitting evidence that he received unemployment compensation benefits. Affirmed.

The evidence shows that plaintiff sustained injury on June 28,1974, in the course and scope of his employment for W. D. Turner Construction Company, when the water truck he was driving overturned. Plaintiff alleged that this accident resulted in injury to his head, back, and leg, and caused headaches and blackouts.

Immediately after the accident plaintiff was taken to see Dr. Campbell, who testified that plaintiff complained of a knot on his head, pain in his left ankle and dizziness. Dr. Campbell had plaintiff admitted to the hospital for observation. During plaintiff’s stay in the hospital all tests proved normal. When he was released from the hospital on July 1, 1974, he had no complaints of any nature. Dr. Campbell directed plaintiff to come to his office for a checkup the following week, but plaintiff never returned to see Dr. Campbell.

Several other doctors, who had examined plaintiff, testified at trial. One doctor testified that plaintiff’s complaints were normal for a man 51 years old who had done manual labor all his life. Neurological and physiological examinations of plaintiff showed that he had no clinical abnormalities and there were no objective findings of injury. Although plaintiff was re-hospitalized on July 24, 1974, and received traction, pain medication, and muscle relaxants, the doctor who ordered the hospitalization conceded that plaintiff had normal flexion, extension, and lateral movement, and that there were no objective findings which would prevent plaintiff from performing manual labor.

After his July 1, 1974, release from the hospital, plaintiff returned to his job with Turner Construction Company, doing the same work he had done before the accident. Mr. Turner testified that plaintiff did not show up for work after one week back on the job, and gave no explanation or reason for leaving. Since that time plaintiff has worked for several employers. He has done painting and general carpentry, driven a truck hauling cotton, and since October 1975 he has been employed as a heavy equipment operator for Lamb County, Texas. Although such facts are normally not conclusive, the fact that plaintiff works and earns money after the injury may be considered by the jury in making its determination as to whether or not plaintiff sustained any incapacity. Aguirre v. Pan American Insurance Company, 417 S.W.2d 900 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.).

The extent and duration of disability caused by an injury are properly questions of fact for the jury. Hawkins v. Aetna Casualty & Surety Company, 355 S.W.2d 537 (Tex.Civ.App.—Fort Worth 1962, writ ref’d n. r. e.). Plaintiff had the burden to prove the allegations of his claim by a preponderance of the evidence. By its negative answers to the special issues in question, the jury found that plaintiff had failed to prove by a preponderance of the evidence that he sustained either total or partial incapacity as a result of the accident. Goodpasture, Inc. v. S & J Farms, Inc., 528 S.W.2d 99, 102 (Tex.Civ.App.—El Paso 1975, no writ). The jury findings that the plaintiff failed to meet his burden of proof need not be supported by any affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973). Nevertheless, there is ample evidence to support the jury’s failure to find that plaintiff sustained any total or partial incapacity. We conclude that plaintiff did not establish as a matter of law that his injury of June 28, 1974, caused either total or partial incapacity. Further, after consideration of all of the evidence we conclude that the challenged findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Plaintiff also contends that the trial court erred in admitting evidence that plaintiff had received income from unemployment compensation benefits. It is not clear from the record that plaintiff made timely and proper objection to the question concerning his receipt of such compensation. A party waives any objection to the admission of evidence and may not complain of such admission on appeal in the absence of timely and proper objection to the admission of such testimony in the trial court. Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.). In any event we have considered the evidence complained of in the light of the record as a whole and do not find that any error in its admission was calculated to cause or probably did cause the rendition of an improper verdict. See 434, Tex.R.Civ.P.

Each of appellant plaintiff’s points of error is overruled. The judgment of the trial court is affirmed.


author: BISSETT, Justice.

text:
    RIO DELTA LAND COMPANY, Appellant, v. E. W. JOHNSON et al., Appellees.
    No. 1263.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 18, 1978.
    Rehearing Denied June 8, 1978.

      Ronald G. Byrnes, Byrnes, Myers, Adair, Campbell & Sinex, Houston, for appellant.
    Lee Arnett, Brownsville, Jerry L. Hughes, Bliss & Hughes, Dallas, for appel-lees.
   OPINION

BISSETT, Justice.

This is a suit to set aside a sheriff’s deed to a tract of land in Cameron County, Texas, hereinafter referred to as the “1,000 acres”. Trial was to the court, a jury having been waived by all parties. Judgment was rendered on May 23, 1977, that Rio Delta Land Company, the plaintiff, take nothing by its suit against E. W. Johnson and the other defendants. Rio Delta has appealed.

The defendant John S. Caputa has filed a brief in this Court; the defendants E. W. Johnson and wife, Irene Johnson have not filed such a brief; the remaining defendants have given a “conditional notice of appeal”, and have filed a brief wherein they contend that they are entitled to judgment against the defendant Caputa for breach of warranty only in the event that this Court reverses the judgment of the trial court. We affirm the judgment of the trial court.

On June 14, 1968, the District Court of Cameron County, Texas, in Cause No. 47,-765-A, rendered judgment in favor of E. W. Johnson and Irene Johnson against Rio Delta for $15,200.00, plus interest and costs. Rio Delta appealed that judgment but did not post a supersedeas bond. The appeal was dismissed by this Court on December 31, 1968.

Pursuant to a writ of execution which was issued on July 26, 1968, the Sheriff of Cameron County levied upon Rio Delta’s interest in the 1,000 acres on August 15, 1968. Notice of the pending sheriff’s sale was published in a newspaper in Cameron County on August 15, 22, and 29,1968. The Sheriff sold the land in question to the Johnsons on September 3, 1968; the land was sold for $15,900.00, of which $544.56 was paid in cash, and the balance was credited by the Johnsons on the judgment.

Rio Delta filed suit in the District Court of Cameron County on September 11, 1968 against Boynton Fleming, the Sheriff of Cameron County, E. W. Johnson and Irene Johnson. The suit was docketed as No. 49,051-B. Rio Delta alleged that it had “suffered damages in the sum of $2,500.00” as a result of the sheriff’s sale to the John-sons. Citations were never served on any of the defendants and none of them made an appearance. The suit was dismissed for want of prosecution on March 3, 1969.

The land was sold by the Johnsons to Caputa on September 13, 1968 for $18,-200.00. Caputa created a subdivision out of the land in question, South Shores Subdivision, Unit # 1, on August 20,1969. Caputa then sold lots in the subdivision to third parties.

On July 15, 1970, Rio Delta filed the suit against Caputa, et al, to set aside the sheriff’s deed on the grounds: 1) the sheriff’s sale was irregular because of lack of proper notice; 2) the land was sold at a grossly inadequate price; and 3) the sale was voidable because Caputa was charged with knowledge of the irregularities concerning the notice. Summary judgment in favor of the defendants was reversed by this Court on December 30, 1971, and the cause was remanded to the trial court for a trial on the merits. See Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). The instant appeal is from the judgment which was rendered after such a trial.

It is conclusively established by the record that proper notice of the sheriff’s sale as required by Rule 647, T.R.C.P., was not given by the sheriff. The sale, which was held on September 3, 1968, was held on a day which was less than twenty days from the date of the publication of the first notice of sale on August 15, 1968.

As a general rule, an irregularity in a sheriff’s sale, standing alone, will not authorize the setting aside of an execution sale; however, when such irregularity is accompanied by a grossly inadequate purchase price, the additional circumstance will give rise to an action to invalidate the sale. Allen v. Stephanes, 18 Tex. 658 (1857); Rio Delta Land Company v. Johnson, supra, at page 348. The particular facts of each case will determine whether or not the price for which the property was sold was so grossly inadequate as to warrant the setting aside of the execution sale. House v. Robertson, 89 Tex. 681, 36 S.W. 251 (1896).

A concise statement of the general rule which controls this appeal appears in McKennon v. McGown, 11 S.W. 532, 533 (Tex.Sup.1889), as follows:

“. . . The rule in this state upon the question of inadequacy of price is that mere inadequacy of consideration will not, of itself, warrant the setting aside of the sale; yet if, in addition thereto, there be the appearance of unfairness, or any circumstance, accident, or occurrence in relation to the sale of a character tending to cause such inadequate price, the sale will be set aside; and if the disproportion between the price paid and the real value at the time of the property is enormous, but slight circumstances will justify vacating the sale, and the greater such inadequacy of price the slighter need be the circumstances of fraud, accident, or mistake. . . . ”

For an extensive collection of cases on the subject, see Prudential Corporation v. Bazaman, 512 S.W.2d 85, 89-91 (Tex.Civ.App.—Corpus Christi 1974, no writ).

The trial court filed 94 findings of fact and 9 conclusions of law. Most of the findings and conclusions are challenged by Rio Delta. We discuss only those which control the disposition of this appeal.

Findings of Fact

The trial court, among other findings, found: the land in question was undeveloped and had no significant market value at the time of the sheriff’s sale; the irregularities in the notice of sale did not affect the amount bid at the sheriff’s sale; the price paid for the land at the sheriff’s sale was not grossly inadequate; on or about September 6, 1968, the attorney who represented the Johnsons in their suit against Rio Delta advised the latter’s attorney that the Johnsons were willing to convey the 1,000 acres to Rio Delta for the amount they paid pursuant to the sheriff’s sale, plus expenses, but that such offer was rejected by Rio Delta’s attorney; Rio Delta did not make actual tender of the sum of $544.46 until on or about November 5, 1976, a few days prior to the commencement of trial in this cause; the said tender was not timely; the tender of $544.56 was made only to the Johnsons and not to Caputa; Rio Delta has never tendered or offered to tender any sum of money to Caputa.

Conclusions of Law

In summary, the trial court concluded that Rio Delta should “take nothing in this suit” because it failed to prove that the land in question was sold at a grossly inadequate price, or that the irregularities as to notice of sale were calculated to or did affect the sale or the amount bid at the sale.

Rio Delta’s points 1, 2, 3, 4, 6, 8,11,12,14, 15 and 17 attack the findings and conclusions of law made and filed by the trial court. The aforesaid eleven points challenge fifty-eight separate findings of fact and nine separate conclusions of law. Specifically, point 1 complains of 6 findings and 1 conclusion; point 14 complains of 4 findings and 3 conclusions; point 15 complains of 3 findings and 3 conclusions; point 17 complains of 7 findings and 2 conclusions; and the remaining points complain, in varying numbers, of from 4 to 9 findings. None of the points contain separate subdivisions for each challenged finding, and the challenges are set apart by use of a semicolon only. All of the points go directly from a restatement of the point to the argument and authorities without a separate statement of the facts for each point. Quotations from the Statement of Pacts are interwoven, argumentatively, in the argument and authorities. The same is true with respect to references to exhibits.

This Court, in Leal v. Aluminum Company of America, 443 S.W.2d 942, 945-946 (Tex.Civ.App.—Corpus Christi 1969, no writ, speaking through Justice Nye, now Chief Justice, said:

“There must be a substantial compliance with the provisions of the briefing rules in order for a litigant to have his points of error considered by the appellate court. Although the rules are to be given a liberal construction to the end that a just, fair, equitable and impartial adjudication of the rights of the parties may be obtained, a sufficient compliance with the rules is necessary to justify consideration of the point of error. This has been made mandatory by our Supreme Court. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). . . .”

A point of error is multifarious if it embraces more than one specific ground of error, or if it attacks several distinct and separate rulings of the trial court. T. J. Service Co. v. United States Fidelity & Guaranty Co., 472 S.W.2d 168 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d, n. r. e.); Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); City of Shamrock v. Hrnciar, 453 S.W.2d 898 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.); Johnson-Sampson Construction Co. v. W & W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App.—Amarillo 1953, writ ref’d n. r. e.).

It has long been the policy of this Court to indulge a liberal construction of the briefing rules in favor of the sufficiency of the brief, and to give effect thereto if we, from an examination of the statement under each point (or grouped points), can determine with some degree of certainty the nature of the complaint raised by the point. Here, there is no such statement. In order to properly dispose of the points as here presented, we would have to brief each of the challenged findings, many of which are completely independent of other findings which are complained of in the appeal. Without the benefit of a statement to assist us, the task would be enormous. No such liberality of construction is contemplated by the briefing rules.

In the instant case, the points are multifarious and will not be considered since each point attacks several separate and distinct findings of fact, and in some instances, separate and distinct conclusions of law. As already stated, there is no “statement of the facts” pertinent to each point (there being no grouped points) to assist us in examining the 1290 pages of testimony and the several hundred pages of exhibits. Rio Delta’s brief does not meet the requirements of Rule 418(e), T.R.C.P.

However, if the points were to be considered, a careful examination of the record fails to reveal any reversible error in the case. Rio Delta attacks the foregoing findings and conclusions as being either against the great weight and preponderance of the evidence, or as being “without any substantial support in the evidence”.

Both Rio Delta and Caputa presented evidence of probative value with respect to the market value of the land that was sold at sheriff’s sale. There is a conflict in the evidence adduced by each.

Mr. P. L. Hermosa, a real estate broker and appraiser, who had lived in Brownsville, Texas, for all of his 68 years, and who had had 26 years experience in the real estate business in that area, testified for Caputa. He stated that he inspected the 1,000 acres, and made an appraisal thereof “as of 1968”. At that time, according to his testimony: the property was vacant; its elevation was three to seven feet above water; there was “no demand for real estate”. In his opinion, the land had “a potential value for resort purposes”; and that on September 3, 1968 (the date of the execution sale), the fair market value of the subject land on a per acre basis would have been $50.00 per acre if it had been exposed to the market “for a year and a half or two years” prior thereto, but would have a fair market value of only $18.00-$20.00 per acre if it had been exposed to the market for only twenty-one days.

Rio Delta’s expert witnesses testified that as of September 3, 1968, the fair market value of the land was from $127,000.00 to $140,000.00. Those witnesses testified that in order to arrive at a “fair market value”, the subject property had to be “exposed to the market for a reasonable length of time”, and that as to the 1,000 acres, a reasonable time was “from six months to a year”. There was further testimony from Rio Delta’s witnesses that the fair market value would be reduced “if you were going to get the property sold in 21 days”, and that a sale within 18 days instead of 21 days would not affect the sales price.

The trial judge resolved the conflict in the evidence concerning fair market value in favor of Caputa and against Rio Delta. The land sold for about $15.00 per acre at the execution sale. The testimony of Hermosa, an expert witness, standing alone, is sufficient to uphold the finding that the sales price was not grossly inadequate. We cannot disturb those findings since they are supported by evidence of probative value and are not against the great weight and preponderance of the evidence as to be clearly wrong. See United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Hosack v. Cassidy, 543 S.W.2d 202 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Honorable Joel Ellis, the attorney who represented the Johnsons in their suit against Rio Delta, testified that within a day or so after the execution sale, the Honorable Polk Hornaday, who was the attorney for Rio Delta at that time, called him and asked him if Rio Delta could “re-purchase the land”. Ellis, on behalf of the Johnsons, offered to sell the land to Rio Delta for $15,900.00 (the amount of Johnson’s bid), plus the “attendant advertising costs and sheriff’s fees”. He also advised Hornaday that Caputa was “dickering to buy the property”, and that the Johnsons “intended to sell the property and would sell it to whichever of those people or someone else who made the first commitment to buy”. Ellis stated that Hornaday, in a later conversation, “advised me his folks either were not going to or did not wish to buy the property, and that they were going to appeal the case, file a suit”. Hornaday did not recall having any such conversations with Ellis, and testified:

“I don’t recall that conversation. Now, that could have been. I don’t say it didn’t take place but I just don’t recall it.”

At the time of trial, (November, 1976), Caputa, in the development of South Shores Subdivision, Unit # 1, had expended large sums of money subsequent to August 20, 1969, when the map of the subdivision was filed for record. The subdivision contained 391 lots, and as of that date approximately 257 lots had been sold to 150 people. Rio Delta, in its fourth amended original petition, its trial pleading, which was filed on August 11,1976, tendered $544.56 to “E. W. Johnson and wife, Irene Johnson”, and alleged that it “further agrees to do equity herein as the Court may deem just and proper”. There is no evidence that Rio Delta had any funds with which to reimburse Caputa for any money expended by him in purchasing the land or in making certain improvements thereon in connection with' the creation of the said subdivision and the selling of lots therein. There is no evidence of any actual tender of money by Rio Delta to Caputa.

There is no evidence that the state irregularities in the execution sale were calculated to bring about an execution sale of the land for an inadequate price. The irregularities complained of did not cause the subject land to be sold at an execution sale for a grossly inadequate price. Despite the multifariousness of the points and the failure to follow the briefing rules, we have reviewed the record in its entirety and, after carefully considering all of the challenged findings and conclusions set out in the points, we hold that the findings and conclusions are fully supported by evidence. They are not against the great weight and preponderance of the evidence. For the several reasons stated, points 1, 2, 3, 4, 6, 8, 11, 12, 14, 15 and 17 are overruled.

We have carefully considered all of Rio Delta’s remaining points. They are overruled.

In Rio Delta Land Company v. Johnson, supra, at page 350, this Court said:

“It has been brought to the attention of this Court that many subsequent purchasers of lots out of the land in question may be innocent purchasers for value. Their rights will have to be protected . .”

Apparently, all rights of such purchasers have been protected. By a special warranty deed dated November 8, 1976, Rio Delta conveyed to “each and every lot owner of record, except John S. Caputa, in South Shores Subdivision, Unit .#1 the lot or lots that stand in their respective names as of this date . . . ”

The judgment of the trial court is AFFIRMED.


author: YOUNG, Justice. BISSETT, Justice,

text:
    HOCHMETAL AFRICA (PTY), LTD., et al., Appellants, v. METALS, INC. and Metals Incorporated Overseas, et al., Appellees.
    No. 1370.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 18, 1978.
    Rehearing Denied May 31, 1978.
    Second Rehearing Denied June 8, 1978.

      William A. Abernethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellants.
    J. R. Sorrell, Sorrell, Anderson & Sorrell, Charles D. Thompson, Spitz & Grossman, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is a plea in abatement case. Plaintiffs, Hochmetals Africa (PTY), Ltd.; Con-ibero Corporation; and their agent, Samin-corp, Inc., sued defendants, Metals, Inc.; Metals Incorporated Overseas Export Corporation; Ed Mange; The First State Bank of Corpus Christi; E. W. Schrader, Trustee; and Robert Rome, in tort for breach of a fiduciary duty and conversion; to impress a constructive trust on certain property; and to enjoin defendants from selling the involved property at a non-judicial foreclosure sale.

On April 28, 1978, a hearing on an application for a temporary injunction was held. On this date, defendants The First State Bank of Corpus Christi and E. W. Schrader, Trustee, filed a plea in abatement requesting that plaintiffs’ cause be dismissed. Defendants, in their plea in abatement, contended that plaintiffs’ original petition did not affirmatively allege that plaintiffs, purportedly foreign corporations, had obtained a certificate of authority to do business in Texas, or that said corporations were authorized to do business in Texas under the laws of the State of Texas. Defendants further contended that they had communicated with the Office of the Secretary of State of the State of Texas and had been advised that none of the said corporations above had been issued a certificate of authority to do business in the State of Texas.

The trial court, upon considering only the pleadings of the parties and oral argument of counsel and without the introduction of any evidence, sustained defendants’ plea in abatement and dismissed plaintiffs’ cause.

The petition in question herein alleges: that the plaintiffs are foreign corporations; that on April 2, 1976, they agreed to purchase scrap metal from the defendants; that they advanced certain monies to the defendants in order to secure the purchase of the scrap metal; and that the defendants instead of shipping the scrap metal, used the money to secure the purchase of certain machinery upon which the plaintiffs now assert should be impressed with a constructive trust. Nothing appears in the plaintiffs’ petition which indicates whether or not the plaintiffs have a permit to do business in Texas. Furthermore, nothing appears in the petition to characterize this transaction as interstate. Nor does the petition state that the transaction was intrastate. The only provision in the petition which might even remotely bear upon the nature of the transaction states:

“II.
For some fifteen years prior to April, 1976, plaintiffs had purchased scrap metal from defendants Metals, Inc. and Metals Overseas. These purchases had always been made for resale, a fact well known to defendants, Metals, Inc. and Metals Overseas.”

Plaintiffs bring two points which, taken together, contend the trial court erred in sustaining defendants’ plea in abatement because no evidence was offered to show that plaintiffs were transacting intrastate business. We agree.

Tex.Bus.Corp.Act Ann. art. 8.01 (1956) provides in pertinent part:

“A. No foreign corporation shall have the right to transact business in this State until it shall have procured a certificate of authority so to do from the Secretary of State. .
B. Without excluding other activities which may not constitute transacting business in this State, a foreign corporation shall not be considered to be transacting business in this State, for the purposes of this Act, by reason of carrying on in this State any one (1) or more of the following activities:
* * * * * *
(9) Transacting any business in interstate commerce.”

Further, Tex.Bus.Corp.Act Ann. art. 8.18 (1956) provides in pertinent part:

“A. No foreign corporation which is transacting, or has transacted, business in this State without a certificate of authority shall be permitted to maintain any action, suit, or proceeding in any court of this State ... on any cause of action arising out of the transaction of business in this State, until such corporation shall have obtained a certificate of authority. . . . ”

The predecessor to Article 8.18 was Article 1536, V.A.C.S. Article 1536 was held to proscribe only suits upon intrastate transactions. Rosenthal v. American Photocopy Equipment Co., 333 S.W.2d 448, 449 (Tex.Civ.App.—Houston 1960, writ dism’d); Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253 (Tex.Com.App.1940, opinion adopted). “The effect of Article 8.18 of the Business Corporation Law is the same in this regard; that is, it only forbids suits on intrastate transactions. Even though the corporation be doing business without a permit, the statute does not forbid suits on interstate transactions.” Rosenthal v. American Photocopy Equipment Co., supra at 449, Continental Supply Co. v. Hoffman, supra.

In this connection, where the plaintiffs’ petition alleges that it is a foreign corporation, as here, and does not disclose the absence of a permit, and does not disclose that the cause of action is intrastate, the burden is on the defendant to allege and prove the necessity of a permit and that the corporation has no permit. Rosenthal v. American Photocopy Equipment Co., supra at 449, Continental Supply Co. v. Hoffman, supra; Chase Bag Co. v. Stafford, 120 S.W.2d 823 (Tex.Civ.App.—Texarkana 1938, no writ); See also Jay-Lor Textiles, Inc. v. Pacific Compress Warehouse Company, 547 S.W.2d 738 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

Defendants contend that the provision in plaintiffs’ petition regarding past transactions with the defendants prevents the application of the above rule because it shows that plaintiffs are transacting business in Texas. We disagree. First, the petition does not indicate that plaintiffs were or are transacting business in Texas; i. e., it does not show the nature of these prior transactions. Without such information all of the prior transactions could have conceivably been interstate transactions and would not constitute transacting business in Texas. See Tex.Bus.Corp.Act Ann. art. 8.01 B(9) (1956). Second, assuming that the provision in the petition did show that plaintiffs were transacting business in Texas, we would still be compelled to apply the above rule set out in Rosenthal The vice in plaintiffs’ case must appear affirmatively in their petition; i. e., it must show the transaction sued upon was intrastate in nature to invoke the restrictions of Article 8.18. Oklahoma Tool & Supply Co. v. Daniels, 290 S.W. 727, 728 (Tex.Com.App.1927, jdgmt. adopted); Barton v. Kansas City Life Ins. Co., 98 S.W.2d 836, 841 (Tex.Civ.App.—Fort Worth 1936, no writ); Rosenthal v. American Photocopy Equipment Co., supra. Just because a foreign corporation is, for example, transacting business without a permit does not affirmatively show that those transactions sued upon are not interstate. See Rosenthal v. American Photocopy Equipment Co., supra at 449. Accordingly, even though a foreign corporation’s petition indicates that it was or is transacting business in Texas, said corporation is not required to plead and prove compliance with Article 8.18. Continental Supply Company v. Hoffman, supra; Texas & Pac. Ry. Co. v. Davis, 93 Tex. 378, 55 S.W. 562 (1900); Rosenthal v. American Photocopy Equipment Co., supra; Warner Electric Brake & Clutch Co. v. Bessemer Forging Co., 343 S.W.2d 471 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.); 14 Tex.Jur.2d, Corporations § 617 n. 12 (1960).

Thus we find that defendants did not meet their burden to prove by competent evidence that plaintiffs had not complied with Article 8.18.

Defendants contend, however, that the trial court correctly sustained the plea in abatement because plaintiffs’ attorneys judicially admitted that their pleadings showed that the asserted transactions were intrastate and that their pleadings showed they were doing intrastate business in Texas. We disagree.

Defendants point out the following conversation between the court and Mr. Cooke who represented some of the plaintiffs:

“THE COURT: Don’t your pleadings allege that they are doing business in Texas?
MR. COOKE: That is the effect of the pleadings, but I do not believe that there is allegation in there that we .
THE COURT: Well, it says they purchased scrap metal from defendants for fifteen years. Would that be purchased here in Corpus Christi?
MR. COOKE: That is my understanding.”

In order for a statement to constitute a judicial admission, it must be deliberate, clear and unequivocal. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415, 419 (1960). We do not find these statements by Mr. Cooke to be either clear or unequivocal. Moreover, his statements were merely a conclusion or comment on the effect of the pleadings. Such a conclusion or opinion by an attorney will not constitute a judicial admission. Starks v. City of Houston, 448 S.W.2d 698, 699 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e); Hedge v. Bryan, 425 S.W.2d 866 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.).

Defendants also point out a statement made by Mr. Abernethy who also represented some of the plaintiffs:

“MR. ABERNETHY: That is true. The thing is the facts in the petition, we believe, are sufficient to support that finding when you take the petition as a whole, that it shows a intrastate transaction.”

We also find this statement by counsel to be merely a comment, conclusion or opinion as to the interpretation to be given the facts in the petition. Starks v. City of Houston, supra. Plaintiffs’ points of error are sustained.

The judgment of the trial court is reversed and the cause is remanded. The temporary injunction issued May 1, 1978, will remain in full force and effect until the judgment of this Court in this cause becomes final.

BISSETT, Justice,

dissenting.

I respectfully dissent to that portion of the opinion by the majority which reads as follows:

“The temporary injunction issued May 1; 1978, which will remain in full force and effect until the judgment of this Court in this cause becomes final.”

The subject matter of this appeal is whether the trial court properly granted the defendants’ plea in abatement and dismissed the suit. We have this day decided the appeal on its merits. The language used in the majority opinion which extends the injunction until the judgment of this Court becomes final is, in my opinion, overly broad. The language in the opinion could reasonably be construed to mean that the injunction will remain in effect until such time as the Supreme Court, in the event an application for writ of error is timely filed, disposes of the case, one way or another. That date may be months in the future. In my opinion, the injunction granted by this Court on May 1, 1978, should continue until the time for the filing of a motion for rehearing in this Court expires without such a motion being filed; or if such a motion is timely filed and is overruled, until the time an application for a writ of error is filed; or, until the time for the filing of such an application expires without such an application being filed; as the case may be, and no longer. Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). I do not believe that this Court has jurisdiction to grant or extend an injunction previously granted beyond the time that we lose jurisdiction of the ease.


author: BRADBURY, Justice.

text:
    WES-TEX LAND COMPANY, Appellant, v. James R. SIMMONS, Appellee.
    No. 5186.
    Court of Civil Appeals of Texas, Eastland.
    May 18, 1978.
    Rehearing Denied June 8, 1978.

      Michael F. Linz, Spinuzzi, Linz & Associates, P.C., Dallas, for appellant.
    J. R. Black, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellee.
   BRADBURY, Justice.

This case seeks cancellation of an oil and gas lease assignment and damages. James R. Simmons was lessee of an oil and gas lease dated May 21, 1975, with a three-year primary term. On July 15, 1975, Simmons assigned the lease to Wes-Tex Land Company retaining an override of l/16ths of 8/8ths of production. Wes-Tex had not developed the lease and indicated it did not plan to. In a nonjury trial, the court awarded Simmons $5,000 as damages and decreed cancellation of the assignment. We affirm as to damages and reverse and remand as to cancellation.

Simmons contends that as assignor he was damaged because of Wes-Tex’s failure to drill an offset well which resulted in drainage and was entitled to cancellation of the assignment because of such failure. Wes-Tex argues that the lease provides that lessee shall have ninety days after ultimate judicial ascertainment of the existence of an obligation for reasonable development within which to commence the drilling of a well. It contends this provision provides the remedy to protect against drainage from offset wells. The relevant provisions of the lease are found in Paragraphs 5 and 8. In Stanolind Oil & Gas Co. v. Christian, 83 S.W.2d 408 (Tex.Civ.App.—Texarkana 1935, writ ref’d), the court stated:

“ . . . It is true that drilling an offset well is in a sense developing the property. But the implied covenant to drill offset wells for protection of the property from drainage is a distinct obligation from the obligation imposed by the implied covenant to develop the property. They are two separate and distinct covenants. The express stipulation against, or the full performance of, the obligation of the lessee to develop the property will not relieve the obligation to prevent drainage. . . . ”

See Foster v. Atlantic Refining Company, 329 F.2d 485 (5th Cir. 1964).

The relief Simmons seeks regarding drainage is not covered by Paragraph 8 of the lease which permits ninety days for development after there is an ultimate judicial ascertainment calling for reasonable development. Paragraph 8 applies to failure to reasonably develop and is not a remedy for loss by drainage. The remedy of an assignor against an assignee of an oil lease where the assignee fails to protect the lease against drainage is damages measured by the amount of royalties actually lost. Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031 (Tex.1928); Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039 (Tex.1928), 60 A.L.R. 890. Where there is no express agreement between the assignor and the assignee, there is an implied covenant on the part of the assignee to protect the premises against drainage when there is an overriding royalty reserved for assignor. Our Supreme Court in Bolton v. Coats, 533 S.W.2d 914 (Tex.1975) stated:

“Unless the assignment provides to the contrary, the assignee of an oil and gas lease impliedly covenants to protect the premises against drainage when the assignor reserves an overriding royalty. Phillips Petroleum Co. v. Taylor, 115 F.2d 726 (5th Cir. 1940). The analogy between implied covenants in mineral leases and those in mineral lease assignments is demonstrated in Cole Petroleum Co. v. United States Gas and Oil Co., 121 Tex. 59, 41 S.W.2d 414 (1931). See also Merrill, Covenants Implied in Oil and Gas Leases, (2d Ed., 1940) 416-418, and 3 Summers, The Law of Oil and Gas, (2d Ed., 1958) 652-659. Bolton is entitled to the benefit of the implied covenant under his assignments if his allegations are found to be true concerning drainage and the protection therefrom which would have been afforded by a reasonably prudent operator under the same or similar circumstances . . . ”

See Phillips Petroleum Co. v. Taylor, 115 F.2d 726 (5th Cir. 1940).

The court found there was production on lands northeast, southeast, west, south and southwest of the land covered by the lease. The evidence sustains such finding. The trial court found that a well on this lease offsetting the well on the land west would have produced oil in paying quantities and that the offset well on the land to the west has drained oil from the land covered by this lease.

There was an implied covenant on the part of Wes-Tex to protect Simmons against drainage and the court has found that the lease in question suffered drainage from an offset well. The court further found that a well drilled on this lease to protect against such drainage would have been drilled by a prudent operator and would have produced oil in paying quantities, therefore, Simmons was entitled to recover for loss of royalty.

As the obligation on the part of Wes-Tex to Simmons to protect against drainage was a covenant and not a condition subsequent Simmons was not entitled to cancellation of the assignment. Loss of royalty is the ordinary remedy and not cancellation. W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929); Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464 (1919); Christie, Mitchell & Mitchell Co., Inc. v. Howell, 359 S.W.2d 658 (Tex.Civ.App.—Fort Worth 1962, writ ref. n. r. e.); Batex Oil Company v. La Brisa Land and Cattle Company, 352 S.W.2d 769 (Tex.Civ.App.—San Antonio 1961, writ dism’d); H.L.F., XVI Texas L.Rev. 594 (1938).

In unusual circumstances, our courts in the exercise of equitable jurisdiction can enter a decree of cancellation. However, such decree should be conditional, that is requiring the lessee to do those things necessary to fulfill his obligation under the implied covenant within the time specified by the court or suffer cancellation. W. T. Waggoner Estate v. Sigler Oil Co., supra; Grubb v. McAfee, supra; Rendleman v. Barlett, 21 S.W.2d 58 (Tex.Civ.App.—Austin 1929, writ ref’d); Burnett v. R. Lacy, Inc., 293 S.W.2d 674 (Tex.Civ.App.—Texarkana 1956, writ ref. n. r. e.); Meyers and Williams, The Implied Duty to Explore Further: Recent Texas Developments, 41 Texas L.Rev. 789, at p. 794 (1963). This court in Scott v. Jackson, 37 S.W.2d 1068 (Tex.Civ.App.—Eastland 1931, no writ) stated:

“The theory of cancellation for breach of an implied covenant for reasonable exploration and development of the lower strata of oil producing sand, if in fact such strata exist, cannot be upheld. A lease cannot be forfeited for breach of an implied covenant. That question has been set at rest in this state by the decision of our Supreme Court in the case of W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27. As pointed out in that case, a court of equity, in extreme cases, where the remedy at law for damages is inadequate, may enter a conditional decree of cancellation for the failure of lessee to develop with reasonable diligence, but the petition in the instant case did not allege sufficient facts for such a conditional decree, nor was such remedy sought or obtained. In the recent case of Rendleman v. Barlett (Tex.Civ.App.) 21 S.W.2d 58 (error refused), a petition was held to be sufficient to support such a decree. By refusing a writ of error in that case we think it may be safely assumed that the Supreme Court regarded that opinion as a correct interpretation of its holding in the Waggoner Case. The instant case cannot be affirmed on the ground of breach of implied covenant because, as noted, the pleadings did not seek, nor did the court enter, a conditional decree.”

In the instant case, Simmons’ pleadings did not seek a conditional decree.

Wes-Tex contends that the trial court’s award of damages rests on evidence too speculative to support such an award. We disagree. Simmons testified about his background, education and experience as a geologist and operator and developer of oil properties. He testified that he had information about wells surrounding the lease in question, the sand from which they were producing and history and quantity of oil produced. In his opinion, a well drilled on the instant lease would produce in paying quantities and would produce as much as the offset well to the west on the Jackson lease and perhaps would produce more. Based upon the production figures for the Jackson well, his override for the period he was seeking recovery would have netted him $6,642.47 which was more than the court awarded. The court in its findings of fact found, “that if said well had been drilled it would have produced oil in paying quantities, and the plaintiff would have received income therefrom in an amount of at least $5,000.” In our opinion, there was sufficient evidence to support such finding.

In oral argument, Wes-Tex argued that there was no evidence that an offset well was within 660 feet of the lease in question. There is no assignment of error on this point. It is waived.

Judgment of the trial court canceling the assignment is reversed and remanded and affirmed as to the award of damages.

      . “5. ... In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land and within six hundred sixty (660) feet of and draining the leased premises, Lessee agrees to drill such offset wells as a reasonably prudent operator would drill under the same or similar circumstances.”
      “8. The breach by Lessee of any obligation arising hereunder shall not work a forfeiture or termination of this lease nor cause a termination or reversion of the estate created hereby nor be grounds for cancellation hereof in whole or in part save as herein expressly provided. If the obligation for reasonable development should require the drilling of a well or wells, Lessee shall have ninety (90) days after ultimate judicial ascertainment of the existence of such obligation within which to begin the drilling of a well, and the only penalty for failure to do so shall be the termination of this lease save as to forty (40) acres for each well being worked on and/or being drilled and/or producing oil or gas to be selected by Lessee so that each 40-acre tract will embrace one such well.”


text:
    VULCRAFT, INC., Appellant, v. Carl E. KERN et al., Appellees.
    No. 5174.
    Court of Civil Appeals of Texas, Eastland.
    May 18, 1978.
    Richard W. Davis and Charles J. Witten-burg, Smith, Davis, Rose, Finley & Hof-mann, San Angelo, for appellant.
    Dale Harvill and E. Michael Mayes, Harvill and Hardy, Houston, for appellees.
   BRADBURY, Justice.

This is a venue suit. Carl E. Kern, Danny Del Hierro, and Jackie Wayne Coates by separate suits sued in Brown County, Texas, Kohler Company, Swindell-Dressler Company, Vulcraft, Inc., The Herman Bennett Company and Central Texas Iron Works, Inc. Plaintiffs’ suits were consolidated and we will hereafter refer to Kern, Hierro, and Coates as plaintiffs. Vulcraft filed its plea of privilege seeking to have the controversy transferred to Houston County. Plaintiffs filed identical controverting affidavits seeking to retain venue in Brown County under Subdivisions 9a, 23 and 27, Article 1995, V.A.T.S. The trial court overruled defendants’ pleas of privilege. Vulcraft appeals and we affirm.

The question is were the controverting affidavits of plaintiffs defective and if so, was this defect waived. Vulcraft filed special exceptions to the controverting affidavits which were overruled. Defendant specially excepted as follows:

“Now comes VULCRAFT, INC., a Defendant in the above entitled and numbered cause, and specially excepts to the Controverting Affidavit filed herein by Plaintiff for the reason that such is insufficient in that the Controverting Plea or Affidavit was not filed under oath as required by Rule 86 of the Texas Rules of Civil Procedure.
Of which foregoing special exception, Defendant prays judgment of the Court.”

In its brief, Vulcraft argues the controverting affidavits were defective because of the following language: “that the facts and statements contained in the foregoing instruments are true and correct to the best of his knowledge and belief”. Vulcraft contends that the words “to the best of his knowledge and belief” are not an unequivocal verification as required by Rule 86, T.R. C.P. It is unnecessary for us to make this determination.

The controverting affidavit was signed and the jurat appears complete. Vulcraft did not point out in its special exception the reasons why the controverting affidavit did not meet the requirement of Rule 86, T.R. C.P. other than it was not “signed” under oath. We think the objection was too general and the alleged defect was waived.

In Martin v. Hunter, 233 S.W.2d 354 (Tex.Civ.App.—San Antonio 1950, writ ref. n. r. e.), the court stated:

“The test of whether an objection is a general demurrer or a special exception lies in the particularity with which the supposed defect or insufficiency of pleading is pointed out. Obviously, a specific and detailed objection may go to the very basis of the pleaded claim and the fact that the assertion that no cause of action is stated follows a particularized objection does not change the exception into a general demurrer. Ryan v. Holcombe, Tex.Civ.App., 170 S.W.2d 838. However, the objection should be sufficiently specific so that the opposing party may be informed of the defect and amend his pleadings accordingly, provided the defect be of a nature that may be cured by amendment. An objection to pleading made in compliance with the requirements of Rule 91 is similar to a valid objection to the introduction of evidence. It must be informative so that it may be obviated if possible. Dabney v. Keene, Tex.Civ.App., 195 S.W.2d 682; Southern Underwriters v. Weldon, Tex.Civ.App., 142 S.W.2d 574.”

The judgment of the trial court is accordingly affirmed.


author: PHILLIPS, Chief Justice.

text:
    ROYAL GLOBE INSURANCE COMPANY, Appellant, v. BAR CONSULTANTS, INC., Appellee.
    No. 12716.
    Court of Civil Appeals of Texas, Austin.
    May 24, 1978.
    Rehearing Denied June 14, 1978.

      David M. Moore, Wilson & Grosenheider, Austin, for appellant.
    Malcolm Robinson, Hooper, Robinson & Moeller, Austin, for appellee.
   PHILLIPS, Chief Justice.

On motion for rehearing, we withdraw our original opinion in this cause filed on March 29, 1978, and substitute the following:

Appellee, Bar Consultants, Inc., as plaintiff below, brought this suit to recover on an insurance policy issued by appellant, Royal Globe Insurance Company. In addition to alleging that the insurance policy in question covered the damages suffered, ap-pellee alleged, in the alternative, a violation of the Deceptive Trade Practices Act and Article 21.21(4) of the Insurance Code. Appellant denied liability.

Trial was to the court which found that appellant had engaged in deceptive trade practices. After judgment, appellant duly perfected its appeal to this Court.

We affirm the judgment of the trial court.

The record discloses that appellee ran and operated a bar named “The Bucket.” In connection with the operation of the bar, appellee purchased an insurance policy from appellant covering the contents thereof. Prior to purchasing the policy, John Barber, III, appellee’s president, and Tulley Em-brey, the insurance agent who sold appellee the policy, discussed appellee’s insurance needs. The problem of vandalism was stressed. The policy extended coverage to the contents of the bar in the event of vandalism and malicious mischief. Limitations were placed in the policy, however, on this type of coverage. After the loss in question, Barber talked to Embrey who allegedly told him that the loss was covered. After an investigation, appellant denied coverage for the loss. As a result, appellee brought this action against appellant.

In its second amended petition, appellee alleged that on two previous occasions under identical policies issued by appellant, it was paid vandalism claims, that appellant never asserted that such policies did not cover the property in question but represented otherwise, and that, therefore, it continued to renew its policy with appellant.

Appellee further alleged that on or about March 5, 1976, when the renewal policy it had purchased was in force, certain individuals caused damage to its property; however, an adjuster who investigated the claim represented to appellee that the acts causing the damage were not vandalism and were therefore not covered by the policy-

Thereafter, alleges appellee, after suit was instituted, appellant took the position that the policy did not cover appellee’s property within the definition of the vandalism and malicious mischief clauses.

At trial, appellee asserted that the policy covered the damage in question or, in the alternative, that if the policy did not cover such damage, then the representations of appellant regarding coverage and the policy terms were false, deceptive and misleading in violation of Article 21.21(4)(1) of the Insurance Code and Section 17.46 of the Deceptive Trade Practices Act.

As stated above, trial was to the court which resulted in judgment for appellee. The court found that appellant, by its agent’s misrepresentation of coverage, when in fact there was no coverage, had violated Section 17.46(b)(12) of the Deceptive Trade Practices Act and that under Article 21.21 of the Insurance Code and Section 17.50 of the Act, appellee was entitled to treble damages, court costs, and attorney’s fees.

Appellant is before this Court on ten points of error. The first two points are directed toward the alleged error of the court in granting judgment for appellee because appellee was not entitled to bring a cause of action under either Article 21.21 of the Code or Section 17.50 of the Act.

Article 21.21, Section 16(a) of the Texas Insurance Code provides:

“Sec. 16. Relief Available to Injured Parties. — (a) Any person who has been injured by another’s engaging . in any practice defined by Section 17.46 of the Business and Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the company or companies engaging in such acts or practices.” (Emphasis added)

Section 2 of the same article provides in part:

“Sec. 2. Definitions — When used in this Act:
“(a) ‘Person’ shall mean any individual, corporation, association, partnership . and any other legal entity engaged in the business of insurance . . . ”

The Texas Supreme Court in a recent per curiam opinion disapproved a court of civil appeals’ restrictive reading of the definition of “person” as used in Section 16 of Article 21.21 of the Insurance Code. See Ceshker v. Bankers Comm’l Life Ins. Co., 558 S.W.2d 102 (Tex.Civ.App.1977, writ ref’d n. r. e., 21 Tex.Sup.Ct.J. 307, - S.W.2d -(April 8, 1978)). The Court stated, “We disapprove the holding which construed the Code to limit the term ‘person’ to one who is engaged in the business of insurance.” In accordance with this decision, we hold that appellee was entitled to invoke the remedial provisions of Article 21.21 and bring suit thereon, and, as a result, we do not reach the question whether appellee was also entitled to bring a cause of action pursuant to Section 17.50(a) of the Deceptive Trade Practices Act.

Appellant’s other points address the issue of whether or not there was any misrepresentation made by appellant and, if so, whether appellee was damaged thereby.

Appellee relies on the following instances of alleged misrepresentations to support its cause of action: (1) immediately prior to the issuance of the initial policy when the problem of vandalism was discussed; (2) when appellant paid allegedly identical claims in 1974 and 1975; (3) immediately after the loss in question that occurred March 26, 1976, as hereinafter discussed.

We address only the third instance of alleged misrepresentation relied upon by appellee because, in our opinion, it supports the judgment of the trial court.

The accusation of misrepresentation immediately after the loss involves the contention that appellant’s secretary and agent told appellee’s president, after the damage had occurred, that the policy covered appel-lee’s damages. Barber testified that following the property damage he talked to Tulley Embrey’s secretary. She stated, “You’re covered under the policy.” Barber further testified that he later talked to Embrey who advised him, “Yes, go ahead and have it done.”

Acting upon these representations, appel-lee proceeded to have its premises repaired and paid for the work. Subsequently, appellant denied liability under the policy.

Appellant objected to Barber’s testimony on the ground that it was inadmissible hearsay. The trial court determined that Embrey was an agent for the sale of insurance for appellant. The court reasoned that under Article 21.02 of the Insurance Code, Embrey was the agent of appellant and that, as such, Barber was entitled to testify regarding any representations made to him by Embrey. The court explicitly noted, however, that the policy would “speak for itself” as to the extent of coverage. Appellant now argues that the court erred in allowing Barber’s testimony into evidence.

The point is overruled. We have reviewed the statement of facts and are of the opinion that the trial court did not err in allowing Barber to testify as he did for the reason that the testimony was admitted, not to show coverage, but to prove the making of a representation. As such, the testimony of the representation was admissible as an operative fact of independent legal significance. See Sweeney v. Taylor Bros., 41 Tex.Civ.App. 365, 92 S.W. 442 (1906, no writ); O’Connor v. National Motor Club of Texas, Inc., 385 S.W.2d 558 (Tex.Civ.App.1964, no writ); Hanover Insurance Co. v. Hoch, 469 S.W.2d 717 (Tex.Civ.App.1971, writ ref’d n. r. e.); 1 McCormick & Ray, Texas Law of Evidence, § 795 (1956) and authorities cited.

We further hold that appellant violated Section 17.46(12) of the Deceptive Trade Practices Act by its misrepresentation of coverage to appellee. The representation of appellant’s secretary and agent that the damage was covered under the terms of the policy, when in fact it was not, was an untrue statement made under circumstances that misled appellee regarding coverage, and appellee was injured thereby, having relied upon such statements. We hold that the representations made here which have the capacity or tendency to deceive are types of conduct that the Legislature sought to prohibit by the Act and the relief afforded under Sec. 16(a) of Article 21.21 to persons aggrieved thereby.

Accordingly, the judgment of the trial court is affirmed.

      . Tex.Bus. & Comm.Code Ann. Ch. 17 (Supp. 1978).

      . Bathroom flooring and fixtures were damaged.


author: LUKOWSKY, Justice.

text:
    Jasper Milton LOWERY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Rehearing Denied July 3, 1978.
    Henry E. Hughes, Tackett, Hughes & Roney, Lexington, for appellant.
    Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appel-lee.
   LUKOWSKY, Justice.

Lowery was indicted and tried in the Fayette Circuit Court for the crime of murder. He claimed self-defense. The jury was unimpressed. It found him guilty and fixed his punishment at life imprisonment. Being understandably discontented with that prospect, he appeals. We affirm.

The sole question presented by this appeal is whether a prior consistent statement may be used by the prosecution to rehabilitate the testimony of a witness after the defense established on cross-examination that shortly before taking the stand the witness had been drinking and had been locked up for being drunk.

Neither domestic nor foreign cases provide us with an answer. Anno: Corroboration — Consistent Statements, 75 A.L.R.2d 928, supplementing 140 A.L.R. 37. We are left to reason it out for ourselves.

Evidence of the present lack of sobriety of a witness is undoubtedly admissible. It tends to discredit his testimony because it involves a diminution of his trustworthiness in respect to his present ability to recollect and communicate. Wigmore’s Code of Evidence, Rule 112 (1942). Once the present ability of the witness to recollect and communicate is discredited, consistent statements made before the onset of the malady become relevant and probative. They tend to support the accuracy of the testimony by showing that the story was the same before the fogging of the memory and the thickening of the tongue. Cf. Alexander v. Commonwealth, Ky., 463 S.W.2d 334 (1971); Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966).

The result we reach here is in line with that which would be compelled by Rule 801(d)(1)(B) of both the Federal Rules of Evidence and the Uniform Rules of Evidence which provide:

“ A statement is not hearsay if— . . . The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . consistent with his testimony and is offered to rebut an express or implied charge against him of . improper influence . . . ”

The influence of alcohol is as improper on the stand as it is behind the wheel. Its evil effects are subject to inquiry and evaluation.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    Richard E. WOOD, Movant, v. Lucky Kenneth KIRBY et al., Respondents.
    Supreme Court of Kentucky.
    May 2, 1978.
    Rehearing Denied July 3, 1978.
    C. Terry Earle, McGaw & Earle, Madison-ville, Arthur L. Brooks, Brooks & Sullivan, Lexington, for movant.
    Rees Kinney, Jarvis, Payton & Kinney, Greenville, for respondents.
   STERNBERG, Justice.

This is an election contest which resulted from the malfunctioning of one voting machine. The Court of Appeals of Kentucky decided the issues by an opinion rendered on July 22,1977, and a discretionary review was granted by this court on November 14, 1977.

In his petition filed in the Muhlenberg Circuit Court Wood charged that by reason of a defective voting machine in one of the voting precincts the votes to which he was entitled were not tabulated to him, thereby reducing the total number of votes to which he was entitled, and had he received those votes he would have received a plurality and would have been elected.

At the regular 1976 county school board election in District # 5, in Muhlenberg County, Kentucky, 527 votes were tabulated for Richard E. Wood and 704 votes were tabulated for Lucky Kenneth Kirby, which resulted in a difference of 177 votes in favor of Kirby, who at that time was the incumbent. The petition sought to have Wood declared the winner or, in the alternative, sought to have the court find that there was no proper election and to provide for a special election. A recanvassing of the votes resulted in Kirby being declared the winner.

The only avenue of dissent was with the votes tabulated on one of two machines used in the Beechmont precinct. District # 5 of the county school board is composed of parts of Beechmont, Penrod, East Courthouse and Ennis voting precincts. One of the machines reported 441 persons voting, and this machine will be referred to hereafter as the “good” machine. The other machine reported 432 persons voting, and hereafter this machine will be referred to as the “bad” machine. This makes a total of 873 votes east in the Beechmont precinct. On the recanvass it was discovered that the “good” machine worked properly and correctly tabulated each person’s vote; however, the “bad” machine was found to tabulate only 9 votes for Wood, yet tabulated the votes correctly as to Kirby’s. On the “good” machine Kirby received 159 votes and Wood received 241 votes. The “bad” machine tabulated Wood as receiving 9 votes and Kirby as receiving 172 votes. On the “bad” machine the public counter showed 432 votes as having been cast; thus 251 votes remained unaccounted for. These 251 votes constitute over 50% of the votes which the public counter indicated actually voted on the bad machine and over 25% of all the votes cast in the Beechmont precinct.

The trial court found:

«* * * There ⅛ no way that a fair and impartial mind can ascertain, with any reasonable certainty, the actual number of legal votes that should be credited to Wood on the ‘bad’ machine.
It is the JUDGMENT of this court that there has been no election and the office of member of the Muhlenberg County Board of Education, School District # 5 is hereby declared vacant, with the same legal effect as if the person elected had refused to qualify.”

The Court of Appeals considered two issues:

“I. Was the trial court in error in refusing to allow Wood to introduce into evidence the testimony of persons who voted on the faulty voting machine in the Beechmont precinct and who would voluntarily testify for whom they voted in said election in order to prove that Wood in fact received a majority of the votes cast in the school board election in question?
II. Did the trial court have jurisdiction under KRS 120.165(4) to declare that there had been no election in the present case where it appeared from the record that a number of votes sufficient to affect the outcome of the election were not counted because of the failure of a voting machine to properly register the votes cast on it?”

On review by this court the same two issues are presented. We approach these issues with the constitutional mandates in mind, that elections must be free and equal (Ky.Const. Sec. 6) and elections shall be by secret ballot (Ky.Const. Sec. 147). We also bear in mind that this court has no inherent power to hear and decide election contests. To accomplish that purpose, the General Assembly must act. This, it has done.

It is argued that the persons who voted on the machine which had mechanical difficulties should be permitted to voluntarily testify for whom they voted, it being contended that when this is done the votes that were not tabulated would go for Wood, thus giving him a majority and the election.

Kentucky has recognized the right to require a person who votes in a primary election to disclose the name of the person for whom he voted. Heitzman v. Voiers, 155 Ky. 39, 159 S.W. 625 (1913). On the other hand, Kentucky has refused to require a person who has voted in a general election to disclose the name of the person for whom he voted. Little v. Alexander, 258 Ky. 419, 80 S.W.2d 32 (1934). The secrecy of the ballot was at the time of the adoption of Section 147 of the Kentucky Constitution and is now one of a voter’s rights, guaranteed to him and highly guarded for him. There is a difference in the philosophy of the law in Kentucky dealing with primary elections as compared with general elections. The fact that a voter, or several voters, may be willing to disclose the name of the person for whom he cast his ballot in a general election will not justify the changing of so salutary a proposition that a voter may cast his vote without fear of having the name of the person or persons for whom he voted disclosed. We see no good reason to require a voter to disclose the name of the person for whom he voted in the general election; neither do we know of any good reason to permit a voter to voluntarily disclose the name of the person for whom he voted in the general election. The trial court and the Court of Appeals so held, and we concur.

Election contests are controlled by KRS 120.155,120.165 and 120.185. In the instant case, however, we are concerned with KRS 120.165(4), which provides as follows:

“If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the circuit court, or the Court of Appeals, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one (1) of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned.”

We are faced with the proposition of whether the conduct of the subject election was so irregular as to be tainted with fraud, thereby subject to challenge under KRS 120.165(4). First of all, we recognize that the Muhlenberg County Fiscal Court is charged with the responsibility of repairing and keeping in good mechanical condition the voting machines used in this election. Jefferson County Fiscal Court v. Queenan, 314 Ky. 271, 234 S.W.2d 949 (1950). Indeed, not only is the fiscal court responsible for repairing the voting machines and keeping them in good working order, but, as we stated in Rives v. Pettit, Ky., 513 S.W.2d 475 (1974), the candidates have the right to rely upon the assumption that the officers who prepared the machines and the officers who were required to inspect them have carried out their duties.

Both Kirby and Wood were justified in presuming that in the Beechmont precinct, as well as in all of the other precincts, the voting machines would be working properly. In the case at bar it is admitted that voting machine # 33506 was so mechanically malfunctioning that it would tabulate only 9 votes for Wood. It was tested by pulling the lever 100 times for each candidate, in keeping with the recanvassing procedure set out in KRS 117.305. Of the 432 votes cast on this machine, 9 were tabulated for Wood and 172 were tabulated for Kirby. On the other machine # 33520, which was used in the same voting place, of the 441 votes cast, 241 were tabulated for Wood and 159 for Kirby. In other words, on the malfunctioning machine Wood was tabulated with less than 3% of the votes cast in that precinct, while on the good machine he received over 50% of the votes cast. On the other hand, on the malfunctioning machine Kirby was tabulated with almost 40% of the votes cast, and on the machine that functioned properly he received 36%. There is no reason shown why the ratio of votes that were actually tabulated by the malfunctioning machine should materially differ from those tabulated by the good machine. There is also no degree of certainty that the same number of persons whose votes were tabulated as voting in other races actually voted in the school board race. It is apparent, therefore, that some of the persons who voted, the number not being known, did not cast their ballots for either Wood or Kirby. It would be purely conjecture and engaging in speculation to allocate any number of votes to either Wood or Kirby. The total tabulated vote of all of the voters in the school district was 1,231. Of that number Kirby had 177 tabulated votes more than Wood. The number of votes cast on the malfunctioning machine was 432, which is 251 more than the combined vote tabulated for both Wood and Kirby in the Beech-mont precinct. In the event that 178 votes of this number were received by Wood, he would have received one more vote than Kirby and would have won the election. Kirby can have no claim to any of the 251 votes because the tabulating mechanism which was accumulating his vote was properly functioning, and he received 172 votes. “In the absence of specific proof to the contrary it is to be presumed that a voter would not consciously pull the lever over the name and position number of a candidate for whom he did not intend to vote.” Rives v. Pettit, Ky., 513 S.W.2d 475 (1974). If, with a reasonable degree of certainty, the 251 votes could be divided so as to ascertain the exact number that Wood received, there would be no need to void the election. Such cannot be done.

The Court of Appeals held that the only irregularity involved in this election contest was the malfunctioning of a voting machine, which did not constitute fraud within the provisions of KRS 120.165(4). Consequently, it held that the circuit court did not have jurisdiction. This court, on more than one occasion, has held to the contrary.

In Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828 (1908), this court voided an election upon the theory that such a large percentage of the vote was so patently illegal it could be concluded that the conduct of the election was tainted with fraud and that the election should be set aside. Tlie impropriety about which complaint was made was that approximately 20% of the voters were allowed to vote openly instead of by secret ballot.

In Wells v. Wallace, Ky., 337 S.W.2d 18 (1959), which was an election contest, many persons sought to be subpoenaed as witnesses evaded the process server, and the parties were not given the benefit of their testimony. We said:

“* * * However, it is equally contrary to orderly judicial process to indulge in mere speculation in an effort to guess which candidate received the majority of legal votes.”

Further, we stated:

“In the case at bar there was no showing of intentional fraud, nor was there any intimidation, bribery, or violence proven in the conduct of the election, nevertheless, since the illegal votes secretly cast were so substantial in number and since it cannot be determined for whom they were cast, the election affecting the county judge’s and coroner’s races is held void under the authority of Harrison v. Stroud, supra. * * *”

In Thurman v. Keen, Ky., 444 S.W.2d 754 (1969), the question was whether the admitted noncompliance with election law by election officials in the preparation and operation of a voting machine taints the election process with fraud to such an extent that a proper tabulation of votes could not be done with a reasonable degree of certainty. The irregularity was brought about by reason of the public counter, on one of the machines, registering 497 votes instead of zero at the time the polls opened. At the close of the polls and tabulation of the votes there was a difference in the number of votes shown to have been cast by the protective counter and those shown to have been cast by the public counter of 497 votes. This is the same number of votes shown on the public counter when the polls opened. In other words, the only error was in starting the tabulation at 497 instead of at zero. Irrespective of the erroneous number shown on the public counter, every person who voted had his vote properly counted. We held that under the circumstances the action of the election officials did not taint the election process to the extent necessary to void the election. We said:

“* * * It should be explicitly understood, however, by candidates and by election officials that under different facts and a proper showing we will not shrink from our duty to foster fair elections by rejecting the votes affected by violations of statutory requirements by election officials even though that judgment entails a disfranchisement of a number of legal voters. The effect on the election itself of a judicial rejection of votes is not presented under the facts of this case and we express no opinion on the applicability of Watts v. Fugate, Ky., 442 S.W.2d 569.”

In Rives v. Pettit, Ky., 513 S.W.2d 475 (1974), it developed that the voting machine in one precinct tabulated the votes cast for the two candidates in reverse order. In other words, the votes intended to be cast for Candidate A were tabulated for Candidate B and the votes intended to be cast for Candidate B were tabulated for Candidate A. In the course of the opinion we said that we designate this as a mechanical error affecting the counting process. In defining the remedy for such, we said, “There is, indeed, no principle of law or other good reason why such an error could not be corrected in either a recount or a contest proceeding.”

Thompson v. Kenton County Board of Election Commission, Ky., 535 S.W.2d 68 (1975), cited by counsel for Kirby, denied the right of an unsuccessful candidate for nomination to the office of city commissioner to contest a primary election. The issue in the case at bar does not involve a primary election; it involves the conduct of and an erroneous result achieved in a general election. Thus, Thompson is not applicable.

In the case at bar we designate the malfunctioning of the machine as a mechanical error affecting the counting process, which is subject to challenge by an election contest, thereby vesting the circuit court with proper jurisdiction.

The fraud contemplated by KRS 120.165(4) is not limited to conduct of or action by the candidates. It goes much further than that and includes what might be classified as constructive fraud. Constructive fraud arises through some breach of a legal duty which, irrespective of moral guilt, the law would pronounce fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.

We are of the opinion that the mechanical failure in the tabulation of the votes was such as to color the election with fraud. We are further of the opinion that the proper tabulation of votes could not be done with a reasonable degree of certainty. Consequently, we hold the election void.

The opinion of the Court of Appeals is reversed, and the judgment of the Muhlen-berg Circuit Court is affirmed.

All concur.