author: KEITH, Justice.

text:
    Jessie James SMITH, Appellant, v. Kaffie Marie SMITH, Appellee.
    No. 7801.
    Court of Civil Appeals of Texas, Beaumont.
    March 11, 1976.
    Rehearing Denied April 1, 1976.

      John L. Fulbright, Beaumont, for appellant.
    Ernest J. Browne, Beaumont, for appel-lee.
   KEITH, Justice.

This is a small case with some large difficulties. The basic question presented by this record may be stated in these words: May a party who has appeared by filing responsive pleadings but who does not appear at the hearing upon the merits, obtain a reversal of the judgment merely by showing that he has been deprived of a statement of facts when the appeal is by way of a petition for writ of error? We answer this question in the negative, but we must first dispose of several threshold questions before stating our reasons.

1. Jurisdiction of this Court

Plaintiff below, the wife, sought a divorce, custody of a minor child, partition of the property acquired during marriage (as well as an order setting aside to her some property which she claimed to be her separate property), and an allowance of attorney’s fees. The defendant husband appeared and answered; but, upon hearing, defendant did not appear and the trial court entered a lengthy written judgment awarding the wife the divorce, custody of the minor child, partitioned the community property, awarded plaintiff the property which she claimed as her separate property, and ordered defendant to pay plaintiffs attorney’s fees and all costs of court. Although a motion for new trial was filed within the thirty-day period following the entry of the decree, there is no showing that it was called to the attention of the court and the appeal is by way of writ of error.

The judgment recites that plaintiff appeared at the hearing but contains no similar recitation as to the appearance of the defendant nor does it specifically speak to his presence or absence at the trial. Defendant makes the statement in his brief that he did not appear, and was not present or represented by counsel at the trial. This statement is not categorically denied in the brief of the plaintiff; and, upon oral submission of the cause, plaintiff’s counsel declined to dispute the statement so made. Under Tex.R.Civ.P. 419 we accept defendant’s statement as being correct. Crawford v. Modos, 465 S.W.2d 220, 222 (Tex.Civ.App. —Beaumont 1971, writ dism’d).

Thus, we find from our record that defendant is entitled to prosecute this direct appeal by the writ of error under Tex. Rev.Civ.Stat.Ann. art. 2249a (1971). Defendant, although having appeared and answered, did not participate “ ‘in the actual trial of the case.’ ” Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941). See also, Mullen v. Roberts, 423 S.W.2d 576 (Tex.1968). See also, Phillips Petroleum Company v. Bivins, 423 S.W.2d 340 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.), and authorities therein cited.

2. The Nature of the Judgment Reviewed

In recent years, two cases by our Supreme Court have done much to blur the distinction, if any, between a default judgment when the defendant wholly fails to appear and answer after valid service, and a judgment entered after the defendant has appeared and answered but does not appear at the trial. This was mentioned in Mullen v. Roberts, supra (423 S.W.2d at 579), wherein the Court, paraphrasing a court of civil appeals decision, said: “[T]he term ‘judgment by default’ is now generally applied to a default made after an appearance, as well as before.”

In a recent case, Frymire Engineering Co., Inc. v. Grantham, 524 S.W.2d 680, 681 (Tex.1975), the Supreme Court was reviewing an appeal wherein defendant’s counsel had deliberately chosen to serve upon a jury instead of appearing at the trial of a cause in which he had answered on behalf of the defendant. The trial court rendered judgment as to liability without proof given at the trial and this action was affirmed by the court of civil appeals. 517 S.W.2d 820, 825.

The Supreme Court disagreed, holding that the general denial, which was still on file in the cause, required plaintiff to prove his case on liability even though the defendant failed to appear at the trial. It continued:

“This is not a true nihil dicit judgment, which is usually limited to situations where (1) the defendant has entered some plea, usually of a dilatory nature, but such plea has not placed the merits of the plaintiff’s case in issue, or (2) the defendant has placed the merits of the case in issue by filing an answer, but such answer has been withdrawn. ... If defendant has filed an answer placing in issue the merits of plaintiff’s cause of action, defendant’s failure to appear at the trial is neither an abandonment of defendant’s answer nor is it an implied confession of any issues thus joined by the defendant’s answer.” (All citations, including those in footnotes, omitted.)

Frymire was reversed because the trial court did not hear evidence as to defendant’s liability. See also, Llast v. Emmett, 526 S.W.2d 288, 291 (Tex.Civ.App.—Tyler 1975, no writ), following Frymire, supra, and Bredeson v. Merrill Lynch, Pierce, Fenner & S., Inc., 513 S.W.2d 110, 112 (Tex.Civ.App.—Dallas 1974, no writ). We are of the opinion that this is a default judgment under the cited authorities.

3.Scope of Review by Writ of Error

In Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965), the Court restated the rule, saying: “Writ of error affords a review of the same scope as an appeal.” See also, Collins v. Collins, 464 S.W.2d 910, 912 (Tex. Civ.App.—San Antonio 1971, writ ref’d n. r. e.).

But, as happens so frequently, the simplicity of the stated rule is subject to restrictions imposed by the courts. One of these is stated in McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965):

“Since McKanna’s mode of review by way of writ of error in the Court of Civil Appeals constitutes a direct attack on the default judgment, the question to be decided is whether there is a lack of jurisdiction apparent on the face of the record which would vitiate the trial court’s judgment. (Emphasis supplied, citations omitted.)

Accord: Texaco, Inc. v. McEwen, 356 S.W.2d 809, 812 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); Lane Wood Industries, Inc. v. DeMoss, 489 S.W.2d 673, 675 (Tex.Civ.App.—Austin 1973, no writ); Day-Bright Lighting Div. v. Texas Metalsmith, Inc., 499 S.W.2d 336, 337 (Tex.Civ.App.—Dallas 1973, no writ). See also, Bankers Life and Casualty Company v. Watson, 436 S.W.2d 404, 406 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.).

4.Burden Upon the Defaulting Party

In this case, defendant-husband made no effort to even plead a meritorious defense nor did he attempt to excuse his failure to appear at the time of the trial of which he had notice under our record. Instead, he has perfected the appeal by writ of error and has demonstrated that he cannot obtain a statement of facts by which he can challenge the sufficiency of the evidence to support the judgment. His only authority is the recent authoritative case of Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App.—Dallas 1975, writ ref’d):

“If an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence, a new trial may be required in order to preserve his right to review.”

In the case at bar, it was shown that the official court reporter did not participate in the hearing and was unable to furnish a statement of facts and the trial judge stated into the record that he had no independent memory of the facts adduced and could not (and would not) attempt to prepare a narrative statement of facts.

However, we do not reach the result sought by the defendant-husband — a reversal and a remand of the cause solely because he cannot obtain a statement of facts for use upon appeal. Instead, following the rationale of our Supreme Court in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-711 (1961), we hold that he has not shown his right to a reversal.

Unquestionably, the trial court had jurisdiction of both the subject matter of the suit and of the parties. Thus, this language from McEwen, supra, is dispositive:

“Our construction of the Rule will give a diligent defendant with a meritorious defense every opportunity to protect himself against an unwarranted default judgment. . . . If he does not learn of the judgment within 30 days after its rendition but does learn of it within six months, and the invalidity of the judgment is disclosed by the papers on file in the case, he may obtain relief by prosecuting writ of error to a Court of Civil Appeals.
“. . . Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.” (Citations omitted, emphasis supplied.)

The alleged invalidity of the judgment is not disclosed “by the papers on file in the case” and the defendant-husband has not even alleged a meritorious defense nor does he attempt to explain the default. Had he filed a timely motion for new trial, he would have been confronted by the rules so cogently set out in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939), and its progeny. Had he sought a bill of review, he would have been subject to the rigorous requirements attendant upon the use of that procedure. See, e. g., Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 243 (Tex.1974).

While we are not unmindful of the decision in Pace Sports, Inc. v. Davis Brothers Pub. Co., Inc., 514 S.W.2d 247, 248 (Tex.1974) [“Requirements pertaining to relief sought by bill of review are not applicable to applicants for writ of error under Article 2255, V.A.C.S.”], we decline the invitation to follow Morgan Express, supra, and grant a new trial. To do so would, under these circumstances, give to a defaulting defendant more than he could obtain if he attended the trial and protected his own interests. Under the record which we review, defendant-husband has not shown himself entitled to a reversal of the judgment simply because he cannot obtain a statement of facts for use upon this appeal after his default.

The judgment of the trial court is affirmed.

      . The judgment recites: “On this day came on to be heard the above entitled and numbered cause, wherein Kaffie Marie Smith is plaintiff and Jesse James Smith is Defendant, and came the Plaintiff in person and by her attorney of record and the Defendant was duly cited and his attorneys of record filed answers herein, and due notice had been given of the setting of this case to all parties and said cause was duly and regularly set for trial, and said cause was duly set on the non-jury docket; and a jury being waived; and the Court proceeded to hear the pleadings, evidence and argument of counsel,” etc.

      . Moreover, this case firmly establishes the rule that the appealing party is not required to accept the opposing party’s narrative version of the evidence presented nor must he rely upon the uncertain memory of the trial judge. (525 S.W.2d at 315)
      In Morgan Express, defendant did not file an answer and the appeal was from an order overruling its motion for new trial. It was not a case brought to the appellate court by a petition for writ of error filed after the appearance of the defendant.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    D. E. McMAHON, Appellant, v. TEXAS BANK & TRUST CO. et al., Appellee.
    No. 4871.
    Court of Civil Appeals of Texas, Eastland.
    March 11, 1976.
    Dale E. McMahon, Dallas, for appellant.
    Don Black, Marks & Black, Robert McGuire, Ungerman, Hill, Ungerman, An-grist, Dolginoff & Teofan, Esir Tobolowsky, Dallas, for appellee.
   WALTER, Justice.

D. E. McMahon filed suit against Texas Bank & Trust Co., Dallas Credit Corporation, E. M. Kahn & Co., Ungerman, Hill, Ungerman & Angrist, General Electric Credit Corporation, and First National Bank of Denham Springs to remove cloud from title to Lot 17, Block 29/6227 second installment, Piedmont Addition, to the City of Dallas, Dallas County, Texas. From an adverse judgment in a non-jury trial, McMahon has appealed.

The findings of fact reveal four of the above defendants had judgment liens against the property at the time McMahon purchased it on October 28, 1969. The court also made a finding that subsequent to October 28, 1969, McMahon did not have possession of such property which was adverse and hostile to the claims of defendants.

McMahon contends the record establishes as a matter of law the court should have removed the judgment liens against his property because the record conclusively shows he had title by adverse possession under the three and the five year statute of limitations.

Appellant was an interested witness and the court was not required to accept his testimony concerning his possession of the property as true. Sturtevant v. Pagel, 134 Tex. 46, 130 S.W.2d 1017 (Tex.Com.App.1939). He testified in part as follows:

“Q Did you do any act, make any — take any action of any sort prior to the time of filing this suit, that was contrary to the interest of the other judgment creditors?
A I had possession of the house. My deed was of record. I worked on the house, made repairs to it and rented it out subject to the creditor claims.”

This testimony raises an issue of fact on the question of adverse possession. We hold this testimony constitutes some evidence of probative force and supports the findings and judgment.

We have considered appellant’s point of error and find no merit in it. It is overruled.

The judgment is affirmed.


author: YOUNG, Justice.

text:
    Sammy Truitt RUBY et al., Appellants, v. Estel GREEN et al., Appellees.
    No. 1010.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 11, 1976.
    Rehearing Denied April 22, 1976.

      Tom A. Garner, Jr., Rhodes, Garner & Roberts, Port Lavaca, Robert E. Ballard, Kronzer, Abraham & Watkins, Houston, for appellants.
    Fred P. Turner, Port Lavaca, Donald A. Edwards, Victoria, for appellees.
   OPINION

YOUNG, Justice.

In this will construction case, the parties contend that our main problem is the construction of the nineteenth paragraph, the abatement provision, of the will of Loyce D. Johnson, deceased. That paragraph reads as follows:

“It is my intention and I hereby direct that in the event there is insufficient funds on hand at the time of my death to pay the specific cash bequests contained in this, my Last Will and Testament, then in said event, the specific cash bequests shall be proportionately reduced in order that they may be paid out of funds available at the time of my death.” (Emphasis supplied.)

The trial court entered judgment favorable to appellees by means of summary judgment, and held that the word “funds”, as used in paragraph nineteen, means all property of whatsoever nature, real, personal, or mixed, as the appellees contended. The trial court’s holding therefore harmonized with plaintiffs’ contentions, (and those of the defendants aligned with them) but repudiated defendants’ contentions which were that the word “funds” was used in the will in its usual and ordinary sense and means cash or cash assets.

The plaintiffs, and those defendants aligned with them, in the trial court were all cash bequest' beneficiaries, and were (with the exception of the mother of one of the deceased nieces) the sisters, brothers, nieces, and nephews of Mrs. Johnson, the testatrix. The defendants in the trial court, except the defendants aligned with the plaintiffs, were a residuary clause beneficiary, who was Mrs. Johnson’s nephew Sammy Truitt Ruby, and a bank, the independent executor of the will.

Each set of parties filed their motions for summary judgment. The trial court rendered its judgment granting the motion for summary judgment urged by the plaintiffs, and those defendants so aligned, and denying the motion for summary judgment of the remaining defendants. The defendants, Ruby and the bank, appeal from that judgment.

On July 1, 1969, Loyce D. Johnson executed her will. She died September 21, 1969, at the age of 55 years. On October 8, 1969, her will was admitted to probate in the County Court of Calhoun County sitting in probate. The inventory and appraisement thereafter filed, and subsequently approved, reflects a net estate of $219,000.00. Debts of the estate exceeded cash on hand. The will reflects specific cash bequests to the appellees of $90,000.00. It further reflects the bequest of the residue of the estate in trust for the benefit of appellant Ruby. If the word “funds” were instructed to mean cash or cash assets as the appellants would have us do, the appellees would receive nothing and Ruby would receive substantially all the estate. If the term were construed to mean all types of property, the appellees would receive the provided cash bequests and Ruby would still receive substantial cash and a substantial residue. The cause of the lawsuit now becomes obvious.

A fair summary of the provisions of Mrs. Johnson’s will of twenty-two numbered paragraphs is as follows:

First, the payment of her just debts by the executor as reasonably convenient after her death.
Second through fourth, cash bequests of $10,000.00 each to her three sisters.
Fifth through seventh, cash bequests of $5,000.00 each to her three brothers. Eighth through eleventh, cash bequests of $5,000.00 to each of her nephews and nieces, (a total of ten, of which appellant Ruby is one).
Twelfth, another cash bequest of $20,-000.00 to nephew Ruby (appellant). Thirteenth, a bequest of all clothes and personal effects to two of her sisters.
Fourteenth, a bequest of her collection of cups and saucers to a niece.
Fifteenth, a bequest of her homeplace and the immediately surrounding thirteen acres to her nephew Ruby (appellant).
Sixteenth, a bequest of her automobile, at the time of her death, to her nephew Ruby (appellant).
Seventeenth, a bequest in trust of $25,-000.00 for the benefit of her mother.
Eighteenth, after the payment of her just debts, a bequest in trust of the rest, residue and remainder of all property of whatever nature for the benefit of her nephew Ruby (appellant).
Nineteenth, the abatement provisions (in dispute here on appeal).
Twentieth, a provision for lapsed bequests to be included in the residuary clause.
Twenty-first, appointment of the bank as independent executor of her will.
Twenty-second, broad powers to the executor for disposal of her property to pay her just debts.

We deem it appropriate at this point to note rules of law we consider material to the case at bar. It is fundamental that the primary concern of the courts in will construction is the determination of the testatrix’s intent and the effectuation of that intent as far as legally possible. Philleo v. Holliday, 24 Tex. 38 (Tex.Sup.1859); Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968). All rules of construction of wills have for their objective the ascertainment of the testator’s intent and that intention must be ascertained, if possible, from the four corners of the will itself. In ascertaining the intention of the testator (testatrix), the court should place itself as nearly as possible in her position. Surrounding facts and circumstances may be considered by the court where the language of the will is ambiguous or doubtful or the intent of the testatrix is not clear and apparent from the face of the will. See 95 C.J.S. Wills § 590, et seq., and Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.Sup.1967).

All of which might bring us back to a consideration of the word “funds” and its meaning. As we have heretofore indicated, the appellants, in their first four points of error, assert that “funds”, as used in the will here, means cash or money only. Ap-pellees, on the other hand, assert that the term “funds” has more than one meaning and is, therefore, ambiguous, thus allowing the introduction of extrinsic evidence; and that consideration of the extrinsic evidence shows as a matter of law that the term “funds” was intended by the testatrix to encompass all types of property, both real and personal (cash).

If we were to hold that the will was ambiguous, we believe that the extrinsic summary judgment evidence introduced at the trial would sustain the appellees’ contention that “funds”, as used in the will here, means all types of property as a matter of law.

The intention of the testatrix, however, with respect to paragraph nineteen should and can be ascertained from the language used within the four corners of the will, without considering any extrinsic evidence. In fact, it is our duty to determine the testatrix’s intention solely from the will as a whole if we can so do. See 61 Tex.Jur.2d Wills § 144 and § 179 (1964).

We believe, and so hold, that the testatrix here intended that her cash bequests be paid as “just debts” out of all of her property, whether personal or real. Therefore whether “funds” is construed as cash or real property is of little consequence. Our reasons for such holding follow:

The testatrix in the first paragraph of her will directs that “all my just debts, including the expenses of last illness and a Christian-like funeral and burial shall be paid by my Executor as soon as reasonably convenient after my death.” In this respect, the testatrix provides in paragraph twenty-two that: “I hereby authorize, empower and direct said Executor to sell, dispose of, deliver and convey any and all portions of my estate, real, personal or mixed, at public or private sale, at any price, or on any terms and in any manner that may seem to it best, for the purpose of paying any of my debts.” Thus, the testatrix indicated that for the purpose of paying any of her debts, such debts could be satisfied from the sale of her estate, real, personal or mixed. The testatrix then proceeds in paragraphs two through twelve to devise certain cash bequests to her sisters, brothers and nephews and nieces. In paragraphs thirteen through sixteen the testatrix makes specific bequests, and in paragraph seventeen the testatrix sets up a trust ($25,000.00) for the use and benefit of her mother.

Then in paragraph eighteen, a conditional residuary clause, the testatrix sets up a trust for the benefit of her nephew, Sammy Truitt Ruby. This residuary clause provides in part as follows:

“After the payment of all my just and lawful debts, I give, devise and bequeath all of the rest, residue and remainder of my property of whatsoever nature, kind or character, whether real, personal or mixed, of which I may die seized or possessed, or to which I may then or at any time thereafter be entitled. . .

(Emphasis supplied.)

It is important here to note the order of the testatrix’s directions and bequests. She first directs that all her just debts be paid, included within which were her expenses of last illness and funeral expenses. She then makes certain cash bequests and specific bequests. She then provides a residuary clause. But unlike the usual and ordinary language of a residuary clause, she conditions it by stating: “After the payment of all my just and lawful debts, I give, devise and bequeath . . . ” etc. Such a condition does not appear in the usual residuary clauses. See Texas Forms, Wills § 24:151 (1969); Modern Legal Forms § 9635 (1968).

The placement of the residuary clause immediately after such bequests, together with the conditioning language (“after the payment of all my just and lawful debts”) indicates that the testatrix intended that the prior cash bequests be included within the word “debts” as obligations, and only after those cash bequests had been fully satisfied from either the cash on hand, if sufficient, or by the sale of her estate, real, personal or mixed, that whatever so remained be placed in trust for her nephew.

Only by applying such a construction to the subject will can the testatrix’s wishes be carried out regardless of her true financial condition, be it that she die seized of all or little cash or all or little real property. It, therefore, becomes unnecessary to construe the word “funds”, as such, in that its meaning can be clearly ascertained from a review of the whole will itself from “its four corners”.

Paragraph nineteen (containing the disputed word “funds”) being conditioned in itself, becomes controlling only in the event that after the sale of the testatrix’s estate, not otherwise disposed of by her will, there are insufficient assets to satisfy all the cash bequests (debts), then such cash bequests are to be proportionately reduced.

It is, therefore, clear to us that by our considering all the provisions of the will, that the testatrix intended that the cash bequests (paragraphs two through twelve and seventeen) be satisfied from the cash on hand, and if that be not enough, then from proceeds of the sale of her estate, real, personal or mixed; that only if there were insufficient assets to satisfy those cash bequests, would those cash bequests be proportionately reduced as paragraph nineteen suggests. Appellants’ points one, two, three and four are overruled.

In their fifth point, appellants contend that it was error for the trial court to award interest on the specific cash bequests from the date that the last debt was paid because there are no pleadings or summary judgment evidence to support a judgment for interest. We find, however, that the Plaintiffs’ Original Petition contains a prayer “that they have such other and further relief to which they may show themselves entitled.” We also find in Plaintiffs’ First Supplemental Petition a prayer that “the court declare . . . the extent . and the manner in which . . the gifts to Plaintiffs in said will made shall be satisfied.” Further, the parties have stipulated that the date upon which the last debt was paid was February 3, 1972.

We hold that in the absence of a special exception, a prayer for “such other and further relief to which they may show themselves entitled” will support an award of interest. Lone Star Gas Company v. Mitchell, 407 S.W.2d 543, 545 (Tex.Civ.App.—Tyler 1966, no writ); Rule 48, T.R.C.P.; Rule 90, T.R.C.P. The appellants did not specially except to this portion of the pleadings. The appellants’ fifth point is overruled.

By way of cross-point, appellees contend that interest on the specific bequests should commence one year from the date of the testatrix’s death, which would be September 21, 1970. In the alternative, appellees contend that interest should commence from the date the will was admitted to probate, October 8, 1969.

Texas has recognized the general rule that unless prohibited by the will or by statute, legacies bear interest from the date they become due and payable. Williams v. Smith, 146 Tex. 269, 206 S.W.2d 208, 217 (1947). Of course, if the will provides that the legacies are not payable until after the debts (other than cash bequests) of the estate are paid, then the interest will not commence until the date the last debt is paid. Geraghty v. Randals, 224 S.W.2d 327, 331 (Tex.Civ.App.—Waco 1949, no writ).

The will in the present case provides in the first numbered paragraph that the debts of the estate are to be paid as soon as reasonably convenient after the testatrix’s death. The following numbered paragraphs, two through seventeen, set out the specific legacies. Paragraph eighteen provides that the residual shall pass after the payment of all the just and lawful debts. It appears clear that bequests passing under the residuary clause, paragraph eighteen do not become due and payable until the debts are paid. If only debts of the estate were considered, then paragraph two through twelve and seventeen would have no effect whatsoever, as everything would go to the residuary beneficiary. We find no other provision in the will that expressly limits the time at which the legacies become due and payable. Giving effect to the expressed intention of the testatrix, the specific legacies should be paid as soon as the other debts of the estate are paid. The trial court, therefore, correctly awarded interest from the date the last debt of the estate was paid. Geraghty v. Randals, supra. Appellees’ cross-point is overruled.

In their sixth, and final point, the appellants complain that the trial court erred in overruling appellants’ motion for summary judgment because they have supported their motion by sufficient summary judgment evidence to establish as a matter of law the testatrix’s intent in using the word “funds” as limiting language meaning cash or cash assets. For the reasons we have discussed in appellants’ first, second, third and fourth points, we overrule appellants’ sixth point.

The judgment of the trial court is AFFIRMED.

BISSETT, J., not participating.


author: CORNELIUS, Justice.

text:
    Tommy COLLUM, Appellant, v. Jessie DeLOUGHTER, Appellee.
    No. 8337.
    Court of Civil Appeals of Texas, Texarkana.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Michael V. Killough, Killough & Killough, Dallas, for appellant.
    Roger Turner, Dallas, for appellee.
   CORNELIUS, Justice.

The opinion heretofore issued in this cause is withdrawn and the following is substituted therefor. This suit was by Jessie DeLoughter to set aside a sale under execution. The writ of execution was issued upon a judgment obtained by S. A. Meazelle against DeLoughter for $870.00 plus interest, cost and attorney’s fees, all totaling $1,840.10. The writ was levied upon two lots in the City of Dallas. Tommy Collum, a stranger to the judgment, purchased the lots for $2,000.00 at the Sheriff’s sale.

The trial court, sitting without a jury, found and concluded that: (1) the property description in the published notice of sale inverted the block designations — that is, the property was described as Lot 3, Blk. 7183/33 (2007 Chalk Hill) and Lot No. 2 Blk. 7183/33 (2015 Chalk Hill) rather than Lot 3, Blk. 33/7183 and Lot 2, Blk. 33/7183 which was the correct description, (2) the notice mailed to DeLoughter was sent by ordinary mail whereas registered mail was required by Tex.R.Civ.P. 647 as modified by Rule 21a, (3) the notice was addressed to DeLoughter at an address in Irving where he had not resided for almost a year, (4) DeLoughter was not notified personally of the sale and did not receive the written notice until nine days after the sale, and (5) the Sheriff did not give DeLoughter an opportunity to designate property which he desired be levied upon first, as required by Tex.R.Civ.P. 637. It was stipulated that the actual market value of the lots was $13,500.00. Based upon these facts and conclusions and the further fact that De-Loughter tendered into court the sum of $2,000.00 as restitution to Collum, the trial court entered its judgment setting aside the sale and awarding Collum the $2,000.00 together with $350.00 attorney’s fees and all costs.

Collum contends that the facts found by the trial court do not constitute such irregularities as authorize the sale to be avoided. He asserts that the notice required by Tex. R.Civ.P. 647 is perfected by mailing alone, and it is not necessary that the mail be registered or that the judgment debtor actually receive the notice. DeLoughter’s address was not listed in the telephone directory, and the address used was that shown for him on the tax rolls of the county. The evidence was in conflict as to whether the property description in the notice of sale was sufficient to enable a person of ordinary prudence to locate the property. De-Loughter testified that had he been given an opportunity to point out property to the Sheriff he would have designated the unimproved one of the lots in question, which he contended was of sufficient value to satisfy the judgment.

An execution sale will be set aside upon proof that it was made for a grossly inadequate price and was accompanied by irregularities which tended to contribute to the inadequacy of price. 24 Tex.Jur.2d, Executions, Sec. 137, p. 608, Sec. 138, pp. 609, 610 and cases there cited; Pantaze v. Slocum, 518 S.W.2d 407 (Tex.Civ.App. Fort Worth 1974, no writ); Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ. App. Corpus Christi 1971, writ ref’d n. r. e.).

An inversion of the lot and block numbers in the notice of sale may or may not be an irregularity, depending upon the adverse effect, if any, it would have on an ordinary person’s ability to locate the property. Here the trial court found such inversion was an irregularity and there is evidence to support such finding.

The failure to send the notice by registered mail was also an irregularity. Tex.R.Civ.P. 647 requires the officer making the levy to “. . . give the defendant . . . written notice of such sale, either in person or by mail . . .”. But Tex.R.Civ.P. 21a, adopted subsequent to Rule 647, provides that:

“Every notice required by these rules except as otherwise expressly provided in these rules . . . may be served . . . either in person or by registered mail . . The provisions hereof relating to the method of service of notice are cumulative of all other methods of service prescribed by these rules.”

Therefore, the specific language of Rule 21a imposes the requirement of registered mail upon the general provisions for “mail” in Rule 647.

Under the circumstances shown in this record, we have concluded that the addressing of the notice to DeLoughter at the address shown for him on the tax rolls, and the fact that he was not notified personally of the sale did not constitute irregularities. But the failure of the officer to make any attempt to give DeLoughter an opportunity to designate property, as required by Tex.R.Civ.P. 637, was an irregularity. Pantaze v. Slocum, supra.

Standing alone, none of these irregularities would be sufficient to justify setting aside the sale, but together with an inadequate price paid for the property, and the trial court’s presumed finding that these irregularities were calculated to and did contribute to such inadequacy of price, they are sufficient to avoid the sale. See Tex.R.Civ.P. 299 and Nance v. Currey, 257 S.W.2d 847 (Tex.Civ.App. Dallas 1958, no writ).

Moreover, it is settled that inadequacy of price, standing alone, is sufficient to justify a court of equity in setting aside the sale when the judgment debtor makes a prompt offer to make the purchaser whole by returning his investment in the property and paying all costs. Prudential Corporation v. Bazaman, 512 S.W.2d 85 (Tex.Civ. App. Corpus Christi 1974, no writ); Cox v. Wheeler, 150 S.W.2d 159 (Tex.Civ.App. Texarkana 1941, no writ); Saylors v. Wood, 120 S.W.2d 835 (Tex.Civ.App. El Paso 1938), aff’d, 140 S.W.2d 164 (Tex.1940); Moore v. Miller, 155 S.W. 573 (Tex.Civ.App. San Antonio 1913, writ ref’d); Steffens v. Jackson, 16 Tex.Civ.App. 28, 41 S.W. 520 (1897, writ ref’d); Martin v. Anderson, 4 Tex.Civ.App. 111, 23 S.W. 290 (1893, no writ). There was certainly such an inadequacy of price here as to justify the application of these equitable principles. The market value of the property was stipulated to be $13,500.00. The price paid was $2,000.00 which was less than 15% of that value. Although Collum contends that he actually paid $4,743.04 for the property since it had $2,743.04 in tax liens and assessments against it, the stipulation agreed that the “actual cash market value” of the property was $13,500.00. Whether the encumbrances were considered in arriving at this agreed value is not shown, but when for the purposes of the trial the parties have stipulated that the actual cash market value of property is a certain amount, neither the trial court nor we can go behind that stipulation and speculate that because of other considerations the value is actually less than that stipulated. It is to be presumed that the figure is a net one; that is, that all factors affecting its value have been considered in arriving at the stipulated figure.

The sale was on October 1, 1974. Suit was filed on October 23, 1974. On November 15, 1974 DeLoughter tendered into court the price Collum paid for the property. Such a tender was consistent with the requirements in cases of this kind. Prudential Corporation v. Bazaman, supra; Moore v. Miller, supra. The judgment awarded Collum the sum so tendered, together with attorney’s fees and his costs. Under these circumstances equity was done and the judgment should be affirmed.

It is so ordered.


author: McDonald, justice.

text:
    TEXAS CONSTRUCTION SERVICE COMPANY OF AUSTIN et al., Appellants, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 5508.
    Court of Civil Appeals of Texas, Waco.
    March 18, 1976.
    Rehearing Denied April 15, 1976.

      Lanham, Hatchell & Sedberry, Joe T. Lanham, Austin, Sayers, Scurlock, Binion & Brackett, Ft. Worth, for appellants.
    John L. Hill, Atty. Gen., Rex H. White, Jr., Asst. Atty. Gen., Robinson, Felts, Starnes & Nations, Austin, for appellees.
   OPINION

McDonald, justice.

This is an appeal by plaintiffs Texas Construction Service Company, National Transport Corporation, and Cletex Trucking, Inc., from judgment of the trial court upholding an order of the Railroad Commission granting San Antonio Trucking Company authority to “transport lime in bulk, between all points in Texas”.

Plaintiffs filed this suit against defendants Railroad Commission and San Antonio Trucking, alleging plaintiffs owned specialized motor carrier certificates issued by defendant Commission, to “haul lime in bulk between all points in Texas”, that defendant San Antonio Trucking had sought authority of the Railroad Commission to transport “lime in bulk, between all points in Texas”; that plaintiffs had opposed the granting of such authority; that the Commission issued final order authorizing San Antonio Trucking such authority; that such order is unlawful, arbitrary and capricious as to plaintiffs, denies them rights guaranteed under the U.S. and Texas Constitutions; and that it was not established by substantial evidence before the Commission that: a) the services and facilities of existing carriers serving the territory are inadequate; b) there exists a public necessity for such services, and; c) the public convenience will be promoted by granting the application; (as required by Sec. 5a(d) Article 911b V.A.T.S.).

Trial before the court resulted in judgment upholding the order of the Commission granting San Antonio authority to “transport lime in bulk, between all points in Texas”.

Texas Construction appeals on 8 points, and National Transport and Cletex appeal on 4 points, contending the trial court erred in upholding the Commission’s order because:

1) Such order was not reasonably supported by substantial evidence.
2) Such order does not contain findings of fact as required by statute.

Article 911b, Section 5a(d) provides * * *:

“The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a “Specialized Motor Carrier” or any other common carrier unless it is established by substantial evidence 1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; 2) that there exists a public necessity for such service, and 3) the public convenience will be promoted by granting said application. The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service”.
And in judicial review of a Railroad Commission order, the court does not substitute its judgment for that of the administrative agency. The question for the courts is whether the contested order is reasonably supported by substantial evidence. The test is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the Railroad Commission must have reached in order to justify its action. Auto Convoy Co. v. Railroad Commission of Texas, S.Ct., 507 S.W.2d 718.

All evidence before the Commission was admitted as original evidence in the trial court.

There are only six plants in Texas producing bulk lime. Appellants are the only specialized motor carriers in Texas authorized to transport bulk lime. Three of the producers of bulk lime, McDonough Brothers (which operates a plant at San Antonio), Texas Lime Company (which operates 2 plants near Cleburne), and Round Rock Lime Company (which operates plants at Round Rock and Blum) supported the application of San Antonio Trucking.

There is evidence that during the past 1½ years Texas Lime has had difficulty in securing the transportation of its lime; that on a great number of days Texas Lime has been unable to secure trucks to effect deliveries; that during February thru April 1974, on 50% of the shipping days insufficient equipment was available to handle the loads to be shipped.

During February thru June 1974, Round Rock Lime daily sought equipment from Cletex but did not receive sufficient equipment to meet its shipping needs; and as a consequence cannot meet its contractual commitments.

Texas Lime has experienced a recurring inability to secure trucks from National. National reported to Texas Lime no trucks were available on most days February thru April 1974; Texas Lime has experienced increasing difficulty in getting its material delivered for the past 1½ years.

Round Rock Lime during January thru April 1974, daily sought the services of National but insufficient equipment was provided to meet its demands. National failed to supply trucks when needed, and Round Rock lost business because of such failure.

McDonough finds shortage of equipment from National to be a very common occurrence for the past 2 years. National has admitted to McDonough it has insufficient equipment to meet McDonough’s needs.

Texas Lime has recurring inability to secure trucks from Texas Construction. During early 1974 Texas Construction could not supply trucks on most days in February thru April. Round Rock calls Texas Construction daily, but has been unsuccessful in securing enough trucks. Service from Texas Construction is inadequate.

Appellants admit that for a period their service was inadequate, but blame it on low rates authorized by the Railroad Commission, bad weather, the poor quality of some of the lime offered for hauling, and other causes.

We think there was substantial evidence before the Commission that the only 3 bulk lime carriers in Texas are either incapable or unwilling to provide a reasonably adequate service. No member of the shipping or receiving public testified before the Commission to attest satisfaction with appellants’ services. We think there was substantial evidence to support its order authorizing San Antonio Trucking to transport bulk lime between all points in Texas.

The order of the Commission adopts the report of the examiner which is in evidence. Pages 37 thru 42 contain the Findings of Fact. Some of the Findings of Fact are: Texas Lime, Round Rock Lime, and McDonough are among the largest producers of lime in Texas and their production constitutes a significant portion of the State’s total lime output. Their products are not receiving’ an adequate transportation service in the movement of lime in bulk between points in Texas. There follows findings of the inadequacies of each of the 3 appellants; that a clear public necessity exists for the additional service which applicant has proposed; that the public conveniences will be promoted by a grant of this application and the institution of the service as proposed by applicant; and that the applicant has demonstrated in an exhaustive fashion that it is financially able and capable of rendering the service. Without detailing all of the Commission’s findings we hold they are sufficient under the statute and under the requirements of Morgan Drive Away, Inc. v. Railroad Commission of Texas, S.Ct., 498 S.W.2d 147.

All appellants’ points and contentions have been considered and are overruled.

AFFIRMED.


author: STEPHENSON, Justice.

text:
    James L. GOETTEE et al., Appellants, v. Harley W. McCONNELL et al., Appellees.
    No. 7782.
    Court of Civil Appeals of Texas, Beaumont.
    March 18, 1976.
    Joel W. Cook and Barry Allan Brown, Houston, for appellant.
    Wiley Thomas and Jerry Benedict, Angle-ton, for appellee.
   STEPHENSON, Justice.

This is an appeal from a judgment granting two motions for summary judgment. Plaintiffs, James L. Goettee, James L. Goettee Building Company, and John R. Francis brought this action in Harris County against Harley McConnell, Gary McConnell, Commerce Savings & Loan Association (Association) and Spring Woods Bank. Pleas of privilege filed by Gary McConnell and the Association were granted, and the cause of action as to them was severed and transferred to Brazoria County. Those defendants then filed the motion for summary judgment which was granted resulting in this appeal.

Both of the motions for summary judgment state two grounds — first, that plaintiffs’ petition is insufficient in law to allege a cause of action; second, that the pleadings, depositions, and admissions on file show that there is no genuine issue as to any material fact. Plaintiffs make the statement in their brief, that there was no summary judgment evidence. There is none in our record, and defendants do not deny that statement. Under Tex.R.Civ.P. 419, we accept such statement as true leaving us solely with the question as to whether plaintiffs’ pleadings state a cause of action against these defendants.

Situations in which a defendant’s motion for summary judgment can be sustained are very limited. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

The most recent opinion of the Supreme Court of Texas on this subject is Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). In that case, the plaintiff brought an action under the Texas Tort Claims Act against the Department of Corrections for personal injuries received in a basketball game while a prisoner in Huntsville. The trial court granted the Department’s motion for summary judgment holding as a matter of law that plaintiff had not stated a cause of action under the Texas Tort Claims Act. The Court of Civil Appeals reversed and remanded [500 S.W.2d 718 (Tex.Civ.App.—Houston [14th Dist.] 1973)], and the Supreme Court affirmed that action.

The Supreme Court stated that it agreed Herring’s pleadings failed to state a cause of action. However, the rule is clearly restated that a motion for summary judgment cannot be used to take the place of a special exception. If special exceptions had been filed and sustained, Herring would have had an opportunity to amend as a matter of right. That Court held specifically that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where the plaintiff’s petition fails to state a cause of action. That opinion distinguishes that situation from one in which a plaintiff pleads himself out of court; e. g., the plaintiff affirmatively negates his cause of action, (citing two cases at 513 S.W.2d 9, which will be discussed later) Our problem is to determine whether the case before us is covered by the Herring Case rule, or the exception to that rule.

Plaintiffs’ pleadings are generally as follows: that plaintiffs were injured by various acts of their former attorney, Harley McConnell; his brother, Gary McConnell; the Association; and Spring Woods Bank— all acting in concert. The lengthy petition is divided into several categories designated as: security fraud, common-law fraud, deceit, constructive fraud, and injunction to enforce cumulative voting.

The scheme alleged, running throughout these various categories, in essence, is that Harley McConnell, through fraud and deceit reduced plaintiffs’ stock in the Association from a part of the majority or control group to that of a minority stockholder; that the value of plaintiffs’ stock was substantially lower as minority stock; that both Gary and Harley McConnell became a part of the control group; that such position of control was accomplished through a conspiracy participated in by the McConnell brothers.

The two cases cited in the Herring Case, supra at 9, as being examples of cases in which a plaintiff affirmatively negates his cause of action are Schroeder v. Texas & Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ. App.—Dallas 1951, no writ), and Morris v. Hargrove, 351 S.W.2d 666 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.). The Morris Case is one for malicious prosecution and plaintiff’s petition showed on its face that the criminal proceeding had not been terminated favorably to plaintiff, but was on appeal. The rule is that the criminal action must have been terminated in a plaintiff’s favor before he can maintain a suit for malicious prosecution. The Schroeder Case is one in which the pleadings show the deceased was a licensee and his recovery from the railroad had to be based upon gross negligence. The petition alleged only acts which amounted to ordinary negligence.

We hold that the case before is controlled by the rule of the Herring Case, supra, and that it was error for the trial court to grant the motions for summary judgment upon the pleadings. See also, Gottlieb v. Hofheinz, 523 S.W.2d 7, 9, 13 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ dism’d).

REVERSED and REMANDED.


author: DIES, Chief Justice.

text:
    V. R. FAJKUS, Appellant, v. Linwood BLAND et al., Appellees.
    No. 7783.
    Court of Civil Appeals of Texas, Beaumont.
    March 18, 1976.
    Rehearing Denied April 1, 1976.

      J. L. Rothschild, Stanley F. Swenson, Houston, for appellant.
    Mike Willatt, Austin, DeLange, Hud-speth, Pitman & Katz, Houston, for appel-lees.
   DIES, Chief Justice.

Plaintiffs below, Linwood Bland and wife, Peggy — appellees—sued defendant below, V. R. Fajkus — appellant—for earnest money, paid in escrow by the latter as a result of an earnest money contract. Trial was to the court without a jury which entered judgment for plaintiffs, and from which defendant perfects this appeal.

The only question involved concerns the construction of this contract:

“Linwood Bland and wife, Peggy Johns Bland (hereinafter called Seller) hereby agrees to sell and convey unto Y. R. FAJKUS (hereinafter called Purchaser) and Purchaser agrees to buy, upon the terms and conditions herein contained, the following described property, together with all improvements thereon, in present physical condition unless otherwise specified herein:
“5,055 acres, more or less, in ranch in Duval County, Texas, known as Pinwheel Ranches and particularly described in deed from Oscar Carrillo and wife, Evangelina G. Carrillo, to Linwood Bland, dated May 25, 1968, and recorded in Book 146, at pages 66-70 of the Deed Records of Duval County, Texas, and in deed from Rosalio Lopez and wife, Maria Lopez, to Lenwood Bland, dated December 20, 1968, recorded in Book 149 at pages 176-177 of the Deed Records of Duval County, Texas, reference being made to each said deed for full description and all purposes. (Emphasis supplied.)
together with . .,” etc.
* * * * * *
“In consideration of which, and within five (5) days from the date title to the above property is shown in Seller as hereinafter provided, Seller agrees to execute and deliver General Warranty Deed to Purchaser conveying said property free and clear of all encumbrances except those named herein, at which time Purchaser agrees to pay said consideration in the manner above provided.”

It is defendant’s contention that because plaintiffs could not convey all of the minerals, they (plaintiffs) were unable to convey said property free and clear of all encumbrances. The Courts of this State hold that the absence of minerals or the presence of an easement, not mentioned in the contract of sale are such variances as to permit rescission of the contract. See Bowen v. Briscoe, 453 S.W.2d 287 (Tex.1970), and Hopkins v. J. E. Foster & Son, Inc., 360 S.W.2d 180 (Tex.Civ.App.—Beaumont 1962, no writ).

Plaintiffs, on the other hand, argue that reference is made in the contract to two deeds “for full description and all purposes” and that put defendants on legal notice as to whatever such deeds reveal. Plaintiffs cite us Harris v. Windsor, 156 Tex. 324, 294 S.W.2d 798 (1956), which approved Remuda Oil Co. v. Wilson, 264 S.W.2d 192 (Tex.Civ. App.—Galveston 1954, writ ref’d n. r. e.), as authority to require defendant to look at those deeds to ascertain what was being conveyed.

Both Harris and Remuda, supra, are cases construing deeds. We have not been cited, nor do we find, any cases construing a contract of sale containing a similar provision. We recognize the fact that the deeds are consummated transactions, while contracts of sale are executory. There is nothing in the contract of sale itself to indicate that anything less than fee simple title to the surface and minerals would be conveyed.

We believe it would not be wise or practical to extend the rule as to construction of deeds to an earnest money contract such as we have involved here. These contracts are used to initiate a transaction. To extend the rule of Harris to such a contract would require a title search prior to its execution. This would largely destroy the purpose of an earnest money contract. Of course, if such a contract itself contained words specifically putting the purchaser on notice of a mineral reservation, the purchaser would be bound by it. Where, as here, reference is made to deeds or other instruments only generally, we decline to require the purchaser to be charged with notice of the reservations contained in those instruments, unless the earnest money contract itself speaks of them.

An examination of the two deeds referred to reveals the problems which might arise if we adopt the rule proposed by plaintiffs. The Lopez deed is a conveyance of less than 100 acres, with this exception added to the description:

“This conveyance is made subject to all restrictions, easements, rights-of-way, and mineral reservations, and oil, gas and mineral leases of record in the office of the County Clerk of Duval County, Texas, affecting said property.”

The Carrillo deed is a conveyance of 13 tracts of land in two groups. The first group contains 3 tracts aggregating 960 acres and shows an exception of a V82nd perpetual, nonparticipating royalty interest. The second group is ten tracts aggregating 4,002.9 acres, with this added at the end of the last tract:

“This conveyance is subject to a certain Deed of Trust which is now an encumbrance upon said land securing a debt evidenced by a note in the original principal sum of $225,000.00, dated the 28th day of February, 1966, and payable to the order of Connecticut General Life Insurance Company. It is also subject to nonparticipating royalty interests and mineral interest oc heretofore reserved, a grazing lease, an oil, gas and mineral lease of record, and ad valorem taxes for the year 1968.”

There is no way the defendant in the case before us could have ascertained the amount of mineral interest and royalty interest which was outstanding by referring to the two deeds mentioned in the contract of sale. A lengthy detailed search of the records would have been necessary to get that information. The simple rule, which we are laying down in a contract of sale case, is that a seller must set forth any mineral or other interest which is outstanding, or at least let the description show specifically that the conveyance will be subject to an exception or reservation.

The judgment of the trial court is reversed and judgment rendered that plaintiffs below — Linwood Bland and Peggy Bland — take nothing of and from defendant below, V. R. Fajkus.

REVERSED and RENDERED.


author: SPURLOCK, Justice.

text:
    STATE RESERVE LIFE INSURANCE COMPANY, Appellant, v. Minnie IVES, Appellee.
    No. 17700.
    Court of Civil Appeals of Texas, Fort Worth.
    March 19, 1976.
    Rehearing Denied April 16, 1976.

      Joe James Sawyer, Fort Worth, for appellant.
    Dixon & Petrovich, and Ralph H. Walton, Jr., Granbury, for appellee.
   •OPINION

SPURLOCK, Justice.

This is an appeal from a judgment rendered against State Reserve Life Insurance Company wherein Minnie Ives, the surviving widow of W. N. Ives, as beneficiary, brought suit to recover on a credit life insurance policy written on the life of her husband. The insurance company appealed from an adverse jury verdict on the grounds that W. N. Ives had misrepresented the condition of his health in his application for insurance.

We affirm.

The only contested issue in this case is whether the deceased was in good health and free from physical impairment or any chronic disease when he applied for insurance.

We will analyze in a brief and general way the evidence on both sides on the issue of “good health”. This becomes necessary since, essentially, the basis of this appeal is the defendant’s contention that the jury’s answer to this issue is not supported by the evidence.

Minnie Letha Ives testified that she is the surviving widow of the deceased; they had been married to each other for 43 years; they desired to purchase two lots near Lake Granbury to be used by them for recreational purposes. They purchased these lots from Indian Harbor, Inc. and signed a sales contract providing for the payment of $35.40 per month for 60 months, being the purchase price of the lots. The salesman for the development company offered credit life insurance to W. N. Ives.

The application for insurance signed by Ives was designed in such a manner that the applicant could apply for life, accident and health, and total disability benefits, or a combination of these. Ives applied for life insurance only. The application did not require the furnishing of information concerning the applicant’s past medical history. Concerning the insured’s health the application contained only the following clause:

“INSURABILITY: I hereby represent that I am now in good health, both mentally and physically, and free from any mental or physical impairment or any chronic disease. I understand that the policy does not cover disability caused by any disease or injury originating while I was not insured under the Group Policy, except seven day retroactive disability benefits which are payable without regard to date of origin.” This last sentence is not applicable because the deceased did not apply for disability benefits.

The master policy provides that the creditor was the principal beneficiary to the extent its interest may appear and the plaintiff was the contingent beneficiary, she to receive the benefits of the policy remaining after the creditor had been paid.

The creditor, Indian Harbor, paid a single premium to the defendant for the insurance for the five full years of its term. The amount of premium was added to the debt and was incorporated in the note that the deceased signed. At time of trial Indian Harbor made no claim to the proceeds of the insurance policy. At time of deceased’s death the amount of the debt owed was $1,911.55, which is the amount of the judgment, plus penalty and attorney’s fees.

Plaintiff testified that her husband was superintendent of the Brazos Electric Power Cooperative for the Northern District. He had been so employed for the past 30 years and was so employed at the time of his death. He had always been healthy and active. He died October 13, 1972, some seven and a half months after the insurance policy had been issued. In 1964 while on company business and driving in from Waco he had a supposed heart attack but continued driving home to Granbury, Texas. She could not tell there was anything wrong with him. From that time until his death he was never hospitalized and never stayed in bed nor missed working on account of illness. He was a very active man. Besides doing the work for his employer he worked in his yard and garden. In the entire 43 years they had been married he had been in the hospital only one time. On this occasion in 1964 when he arrived home from Waco he complained he was hungry and did not feel good. He had never complained of chest pains or stomach pains. After that episode in 1964 he saw Dr. John G. Little about once each three weeks who prescribed medication. Dr. Little at one time referred him to Dr. Goggans, a cardiologist. She accompanied her husband to the doctor’s office and the doctor, “. . . told us to go on back. Acted like he didn’t have a heart attack.” Dr. Little had never told her that her husband had had a heart attack.

On the day of her husband’s death he had worked all day on the job. On October 13, 1972, at about 2:00 A.M., while Mr. Ives was in bed he began groaning and awakened the plaintiff. She called the doctor and before the doctor arrived her husband died. There was no autopsy.

Edward Dean Matlock testified that he is Superintendent of the Brazos Electric Power, had known Mr. Ives for 27 or 28 years and had worked directly or indirectly under him, the deceased had never missed any time from work, Mr. Ives appeared to be in good health on the day of his death, and he appeared to be in good health over this period of years.

Dr. John G. Little testified that he was a general practitioner and was now retired.

He first saw Mr. Ives in his office on June 10, 1964, at which time the patient complained of dizziness and a tenderness under his sternum (a bone in the center of his chest). He ran an EKG and reached the conclusion that the nerves in his heart which caused the blood to go through a certain artery were being interfered with, and the patient had had a mild heart attack. The precise diagnosis was chronic myocarditis. He explained that this means an “inflammation of the muscle” of the heart. “Myo” means muscle and “carditis” refers to the inflammation of that muscle. He told the patient to stay off work for six weeks and he could then resume light work. His treatment consisted of thinning the blood so it would circulate more freely through the arteries. He did not advise Mrs. Ives of her husband’s condition. He had told the deceased that he was not in good health. He did not testify whether he made this statement to the deceased before or after the application for insurance was made. He had prescribed nitroglycerin tablets for pain to be taken when needed. On the day of Mr. Ives’ death the doctor was contacted by telephone at 2:00 A.M., went to the deceased’s home and found that Ives had died before he arrived. He testified that based upon his records it was his opinion that the cause of death was coronary occlusion.

At the request of the insurance company, on September 4, 1974, this doctor wrote a letter concerning the deceased which outlined the course of his treatment and his diagnosis. He saw the patient at frequent intervals over this period of eight years and over this period of time the deceased had only two spells of pain severe enough for the patient to seek consultation, which was in 1968 and 1969. In that letter he stated: “Mr. Ives was an energetic, robust, uncomplaining man who enjoyed intervals of time where he felt so well that my office would have to call him to remind him of appointments.”

At the request of the defendant the court submitted to the jury defendant’s requested Issue No. 1. The issue, the jury’s answer thereto, and the court’s definition of “good health” is as follows:

“SPECIAL ISSUE NO. 1

“Do you find from a preponderance of the evidence that at the time he applied for the credit life policy in question, W. N. Ives was not in ‘good health’ as the term ‘good health’ has been defined for you?

“Answer: ‘He was in good health’ or ‘He was not in good health’.

“ANSWER: He was in good health.

“In connection with the above Special Issue you are instructed that GOOD HEALTH does not mean perfect health, but means state of health free from any disease or bodily infirmity of substantial nature which affects general soundness and healthfulness of system seriously or materially increases risk to be assumed by the insurance company.” (Emphasis ours.)

The defendant did not object to this definition.

Issues 2 through 5 made inquiry of the jury whether or not Ives, at the time he applied for the credit life policy in question, (2) knew that he was not in good health, (3) misrepresented the state of his health, (4) knew or should have known that the defendant would rely upon his misrepresentation of his health, and (5) that defendant relied upon the misrepresentation. These issues were conditioned upon the jury’s finding that Ives was not in good health and therefore under the Court’s instruction the jury did not answer these issues.

The defendant assigns 9 points of error.

By its following points defendant claims the court erred in the following respects: (Point 2) in not granting an instructed verdict; (Point 3) in not granting its motion for judgment non obstante vere-dicto; (Point 6) in not disregarding the jury’s finding to Special Issue No. 1 because the answer was against the great weight; (Point 7) in not granting its motion for judgment non obstante veredicto because there was no evidence to support the findings of the jury on Issue No. 1; (Point 8) in not granting judgment non obstante vere-dicto because the evidence was insufficient.

The record does not contain any such motions. In the absence of such motions the court cannot consider these points of error. These points are overruled.

The defendant, by its point of error No. 9, asserts the trial court erred in not granting the defendant’s motion for new trial. This point is overruled. It is too general to be considered. Rule 418, T.R. C.P.; Schad v. Williams, 398 S.W.2d 603 (Tex.Civ.App., Dallas, 1965, ref., n. r. e.).

The defendant, by its points of error Nos. 4 and 5, asserts the court erred in submitting Special Issue No. 1 because there was no evidence and because the evidence was wholly insufficient. The defendant requested these issues and received the precise issue requested. These points are overruled.

The defendant by its point of error No. 1 asserts the trial court erred in not holding as a matter of law that W. N. Ives was not in good health at the time in question.

The defendant in its statement, argument, and prayer indicates that its real complaint is that the jury’s answer to Spe-ciál Issue No. 1 is not supported by any evidence and therefore the judgment should be reversed and rendered; and in the alternative that the jury’s answer thereto is not supported by sufficient evidence and the jury’s answer is against the great weight and preponderance of the evidence and therefore the cause should be remanded.

In 38 Texas Law Review, p. 361 (1960), there appears an article by Robert W. Calvert, a former Chief Justice of the Supreme Court of Texas, entitled, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”. At page 362 in the section entitled, “No Evidence Points—Procedural Basis for Points”, Chief Justice Calvert states:

“ ‘No evidence’ points of error are inherently and fundamentally points which call for reversal of a trial court’s judgment and rendition of judgment for the appellant. They must therefore, • be based upon and related to one or more of the following procedural steps in the trial court: (a) motion for instructed verdict; (b) objection to the submission to the jury of a vital fact issue; (c) motion for judgment notwithstanding the jury’s verdict; (d) motion to disregard the jury’s answer to a vital fact issue. All are steps which must be taken before the rendition of judgment. (Citing authorities.)” (Emphasis ours.) See also: In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); “The Question of Insufficient Evidence On Appeal”, by W. St. John Garwood, a former Associate Justice of the Supreme Court of Texas, 30 Texas Law Review 803 (1952); and “Appealing Jury Findings”, 12 Houston Law Review, p. 65 (1974).

None of these procedural steps were followed by defendant in the case before us. In addition thereto this Court finds that there is evidence in the record of probative force upon which the jury based its answer to Special Issue No. 1.

This point is overruled.

We will next pass upon defendant’s contention that the evidence is insufficient to support the jury’s finding that the deceased was in good health and that the jury’s finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

In compliance with the law the policy of insurance provided that the statements made by the applicant for insurance shall be deemed representations and not warranties.

In order to establish its defense factually in this case the defendant was required to have obtained a favorable jury answer to each of the following elements of its defense: (1) that the statements made by the applicant were false; (2) that the applicant knew the statements to be false; (3) that the false statements by the applicant were made willfully and with the intention of inducing the insurer to issue the policy; (4) the statements must have been material; (5) the statements must have been relied on by the insurer. Industrial Life Ins. Co. v. First Nat. Bank of Perryton, 449 S.W.2d 129 (Tex.Civ.App., Tyler, 1969, no writ hist.); Pioneer American Insurance Company v. Meeker, 300 S.W.2d 212 (Tex. Civ.App., Fort Worth, 1957, ref., n. r. e.), and Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (1947).

The defendant has the burden of proof on each of these issues, Empire Life and Hospital Insurance Co. v. Shannon, 415 S.W.2d 532 (Tex.Civ.App., Amarillo, 1967, no writ hist.).

Opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948); Texas Life Ins. Co. v. Hatch, 167 S.W.2d 802 (Tex.Civ.App., Eastland, 1942, writ ref., w. o. m.). The opinion of the doctor in this case is but evidentiary and is not binding on the trier of the facts.

The jury may also take into consideration the medical witness’ skill and experience and his manner and attitude in testifying. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex.Civ.App., Texarkana, 1974, ref., n. r. e.).

The case of Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex. Sup., 1966) is quite similar factually to the case before us. That also was a case in which the jury found that the deceased was in good health. There was medical testimony to the effect that the deceased was suffering coronary sclerosis and coronary insufficiency. A doctor testified that two years before the policy was delivered he had examined the deceased. This examination consisted of X-rays and an electrocardiogram. His opinion at that time was that the insured had heart trouble which he diagnosed as angina pectoris. Two other doctors testified that the insured had heart trouble. The beneficiary obtained a judgment for the proceeds of a non-medical policy issued on the life of the deceased. This judgment was affirmed.

The Supreme Court stated: “It would avail Great American nothing to set aside the jury’s answer to the issue: it still would not have discharged its burden of obtaining a finding from a preponderance of the evidence that Britton was not in good health, a finding essential to its right to cancel and to its defense to the cross-action if the issue is one of fact. See 38 T.L.R. 359, 363 (I960).”

That court then defines “good health”, “. . .' as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general soundness and healthfulness of the system seriously or materially increases the risk to be assumed by the insurer. . . .We have also held that a good health provision is breached if the applicant ‘is suffering from a serious kind of illness, which continues and eventually causes his death.’

In regards to the question of heart trouble, angina pectoris, coronary insufficiency and good health, and how much such conditions may have seriously affected the soundness of Britton’s health are normally fact questions. In this connection the court stated: “These are relative matters, and except in extreme cases should be left for jury determination from evidence introduced on trial.” The court then quoted Webster’s Dictionary and reviewed Dr. Hodges’ testimony and stated: “Although angina may be, as Dr. Hodges testified, a continuing disease, the evidence does not tell us whether during its continuance it has a progressively more serious effect on health or the rapidity of its progression.”

Moreover, the Supreme Court said, “. death from angina pectoris is not conclusively established.”

In the case before us the doctor diagnosed the deceased’s condition as “myocarditis”. Webster’s Third New International Dictionary, Unabridged, defines “myocarditis” as an “inflammation of the myocardium”. “Myocardium” is defined as “the middle muscular layer of the heart wall”.

There is no evidence that such inflammation had a progressively serious effect on the health of Mr. Ives or the rapidity of its progression. Since no autopsy was performed there was no scientific or exact cause of death established.

It is our opinion and we find that the evidence is not factually insufficient to support the jury’s finding to Issue No. 1, and we further find that the finding of the jury on this issue is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

These points of error on insufficient evidence and against the great weight and preponderance of the evidence are overruled. We have carefully considered each point of error and each claimed error and overrule each.

Judgment is affirmed.


author: ROBINSON, Justice.

text:
    Carl LOSSON, Appellant, v. Doris L. Boston WHITSON, Appellee.
    No. 8594.
    Court of Civil Appeals of Texas, Amarillo.
    March 22, 1976.
    Morehead, Sharp, Tisdel & White, Edward L. Self, Plainview, for appellant.
    McWhorter, Cobb & Johnson, Dale H. Johnson, Lubbock, for appellee.
   ROBINSON, Justice.

Plaintiff, Carl Losson, filed suit on a check drawn by defendant, Doris L. Boston Whitson, payable to “Carl Losson.” The check was endorsed by and deposited to the account of Carl Losson, Inc., some eleven months after date. At that time payment had been stopped on the check. The trial court sitting without a jury found that defendant tendered the check as an offer, which was not timely accepted, to settle a debt of her father, and that plaintiff was not a holder in due course of the check. From judgment for the defendant, plaintiff Carl Losson appeals. Affirmed.

Carl Losson, Inc. is a Texas family corporation owned by plaintiff Carl Losson and other members of his family. The corporation owned a note payable to it made by one O. J. Lady, the father of the defendant. The face amount of the note was $997.83, and it was dated March 21, 1963. The note was unpaid, and at all times pertinent to this cause of action, the statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5527 (1958), had run.

The evidence shows that plaintiff twice approached defendant, asking her to pay her father’s debt. Afterwards on September 21, 1971, defendant went to plaintiff’s home and offered to pay him fifty cents on the dollar. Plaintiff rejected the offer, saying he wanted the full amount of the debt, including interest, or none. Leaving plaintiff’s home, defendant went to the office of Carl Losson, Inc., where she told two employees she had talked with plaintiff, and that she had come to pay her father’s debt. She thereupon made her check payable to “Carl Losson” in the amount of $500 and bearing the notation “For note made in 1963 by O. J. Lady.” She left the check at the office and was given the note by one of the employees.

When plaintiff returned to the office that same day, the employee gave him the check. The check was placed in the office safe, where it stayed for approximately eleven months, until August 24, 1972, when Carl Losson, Inc. deposited the check to its account endorsed

For Deposit Only—
Carl LOSSON, INC
Kress, Texas

In this regard, the plaintiff testified as follows:

Q Mr. Losson, when you first found this check, what did you do with it after that time?
A Well, I got to the station and found the check, and there wasn’t any agreement for the check to be there so I just laid it back in the safe.
Q Now, at a later date, did you present that check for payment?
A Yes, Doris was fixing to remarry and I thought I would cash the check and kind of get things over with.

The check was returned marked “Payment Stopped.” The check was not thereafter endorsed either to plaintiff or in blank and there was no evidence of any transaction whereby plaintiff became the owner and holder of the check after it was returned to the corporation by the bank. Plaintiff filed suit on the check in his individual capacity. Prior to trial defendant tendered to plaintiff the O. J. Lady note which had been delivered to her.

The evidence supports the trial court finding that the delivery of the check in question was conditioned on its acceptance as settlement of the 1963 O. J. Lady note held by Carl Losson, Inc. Parol evidence is admissible to show conditional delivery of a written instrument when the condition is a condition precedent. See Campbell Printing Press & Manuf’g Co. v. Powell, 78 Tex. 53, 14 S.W. 245 (1890); Shepherd v. Erickson, 416 S.W.2d 450 (Tex. Civ.App.—Houston 1967, writ ref’d n. r. e.); Heights Savings Association v. Cordes, 412 S.W.2d 372 (Tex.Civ.App.—Houston 1967, no writ), and Guisinger v. Hughes, 363 S.W.2d 861 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). The evidence also supports the finding that the condition was not met. When the terms of an offer do not specify a time for acceptance, the offer must be accepted within a reasonable time. What constitutes a reasonable time depends on the circumstances and facts of each case. See 13 Tex.Jur.2d Contracts § 17, p. 135, and Hotel Longview v. Pittman, 276 S.W.2d 915 (Tex.Civ.App.—Texarkana 1955, writ ref’d n. r. e.). We do not find that the trial court erred in finding that the proffered settlement was not accepted within a reasonable time. Since plaintiff’s offer was not accepted, the check in question was subject to a defense based on its conditional delivery and good against any person not a holder in due course. Tex.Bus. & Comm. Code Ann. § 3.306(3) (1968). Campbell Printing Press & Manuf’g Co. v. Powell, supra; Shepherd v. Erickson, supra, and Heights Savings Association v. Cordes, supra. After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course. Tex.Bus. & Comm.Code Ann. § 3.307(c) (1968).

Plaintiff contends that he is a holder in due course. Tex.Bus. & Comm.Code Ann. § 3.302 (1968) provides in part:

(a) A holder in due course is a holder who takes the instrument
(1) for value; and
(2) in good faith; and
(3) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.
(b) A payee may be a holder in due course.

Plaintiff does not meet the requirement that he took the instrument without notice of the defense to it. His own conversation with the plaintiff preceding the delivery of the check, together with the notation on the check, are ample evidence that he had actual notice of defendant’s defense that the check was conditionally delivered subject to acceptance of it as settlement of her father’s account. The trial court did not err in finding that plaintiff is not a holder in due course of the check in question.

It is apparent that plaintiff is attempting to disregard the corporate entity. Nevertheless, whether the check was delivered to the corporation or to plaintiff as an individual, the above holdings are dispositive of the case before us. We do not reach appellant-plaintiff’s remaining points of error.

The judgment of the trial court is affirmed.


author: RAY, Justice.

text:
    Cyril C. BENNETT, Appellant, v. Nellie MINGS, Appellee.
    No. 8321.
    Court of Civil Appeals of Texas, Texarkana.
    March 23, 1976.
    Rehearing Denied April 20, 1976.

      Lowell C. Holt, Gilmer, for appellant.
    Hollie G. McClain, Gilmer, for appellee.
   RAY, Justice.

This is a trespass to try title suit. Nellie Mings (plaintiff), appellee, brought suit against Cyril C. Bennett (defendant) appellant, seeking the cancellation of a deed dated September, 1972, and recorded in Vol. 359, pages 101-103, Deed Records of Ups-hur County, Texas, from Nellie Mings as grantor to Cyril C. Bennett as grantee. Upon a jury verdict favorable to Mrs. Mings, the trial court entered its judgment ordering the deed cancelled as being null and void and that Mrs. Mings recover the title and possession of the property described in the deed. The trial court overruled appellant’s amended motion for new trial. Appellant has perfected his appeal to this court and now submits five points of error for our consideration.

Appellant Bennett contends that the ap-pellee failed to introduce any evidence to support the jury finding that Mrs. Mings did not intend for the deed to become operative as a conveyance, or in the alternative, that the evidence was insufficient to support the jury’s verdict.

The evidence shows that on September 7, 1972, Nellie Mings, a lady ninety-one years of age at that time, signed a warranty deed conveying a tract of land with her home and furnishings located thereon, to her nephew, Cyril C. Bennett. Manual delivery of the deed was made to appellant and he put it in his safety deposit box. In December of 1973, appellee requested the return of the deed and appellant Bennett returned it to Mrs. Mings. A few days later, Bennett regained possession of the deed and recorded it. Upon learning of this, Mrs. Mings again demanded return of her deed, and upon Bennett’s refusal, she brought this suit. The evidence is undisputed that originally both parties agreed that the deed would not be recorded until Mrs. Mings’ death and that “delivery” was not then complete. Appellant stated that the deed still belonged to Mrs. Mings though he had it in his safety deposit box. Bennett testified that he got the deed the second time with the permission of Mrs. Mings because she wanted things cleared up before her death. Mrs. Mings testified that she surrendered the deed to Bennett only with the permission that he could use the deed for security, but that under no circumstances was the deed to be recorded. She further testified that she gave up the deed under Bennett’s insistent demand and that she was put in fear.

Appellant contends that once there has been a complete and effective delivery of a deed, the delivery is absolute and unconditional and is operative immediately.

The jury found that Mrs. Mings signed the deed, but that Mrs. Mings did not intend the deed to become operative as a conveyance of her land, home and .furnishings when it was delivered to Bennett and further, the jury found that no consideration was paid to Mrs. Mings.

Whether a deed has been delivered is a question for the jury’s determination, Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357 (1949), and the question is primarily one of the grantor’s intent. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (Tex.1917); Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912).

In order to constitute delivery, a deed of conveyance must be placed in the hands of the grantee, or within his control, with the intention that it is to become presently operative as a conveyance. Without such intention manual delivery to the grantee is insufficient to pass title. Bell v. Rudd, 144 Tex. 491, 191 S.W.2d 841 (1946); Coleman v. Easton, 249 S.W. 200 (Tex.Com. App.1923).

The issue in the present case is whether or not at either time Bennett obtained possession of the deed that Mrs. Mings intended that the deed become immediately operative as a conveyance. The evidence is clear that when Bennett obtained possession of the deed the first time that neither he nor Mrs. Mings felt that the deed constituted such delivery as to become immediately operative as a conveyance and Bennett so testified. However, when Bennett obtained the deed the second time he testified that she gave him the deed with permission to record it. Her testimony is in direct conflict with his and the jury could have properly inferred that Mrs. Mings gave Beiinett the deed out of fear or that she let Bennett use the deed as security, but with no present intent that it become immediately operative as a conveyance. We conclude that it was the duty of the jury to weigh the conflicting evidence, as it did, and to determine whether the requisite intent was present for the conveyance to be effective when Bennett obtained possession of the deed the second time. We have reviewed the evidence and hold that the jury was justified in finding that Mrs. Mings did not intend the deed to become operative as a conveyance of her land, home and furnishings. Appellant’s first and second points of error are overruled.

We have reviewed appellant’s third and fourth points of error and conclude that the jury was justified in finding that no consideration was paid to Mrs. Mings for the alleged purchase of the property.

Appellant contends that appellee did not prove common source of title. We find no merit in appellant’s point. “The plaintiff is the common source of title where the defendant deraigns title from him. Accordingly, it has been held, notwithstanding a plea of not guilty by a defendant, that the plaintiff need not prove title in himself from the sovereignty of the soil where it appears that the title asserted by the defendant emanated from the plaintiff. In such a case the plaintiff is not required to deraign title beyond himself as a common source.” 56 Tex.Jur.2d, Trespass to Try Title, sec. 26. Appellant’s fifth point of error is overruled.

The judgment of the trial court is affirmed.


author: PRESLAR, Chief Justice.

text:
    Linoa Carol BANEGAS, as next friend and guardian of the minor child, Cynthia Lynn Holmquist Cole, Appellant, v. Oscar Burton HOLMQUIST, Jr., et al., Appellees.
    No. 6462.
    Court of Civil Appeals of Texas, El Paso.
    March 24, 1976.

      Stewart W. Forbes, Arthur A. Abraham, El Paso, for appellant.
    Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, Conway L. Wallace, Houston, for appellees.
   OPINION

PRESLAR, Chief Justice.

This is a dispute over Workmen’s Compensation death benefits between the parents of a deceased workman and a child of the workman, who had been adopted by someone else. The trial Court, on undisputed facts, rendered a summary judgment awarding the benefits to the parents of the deceased workman. We affirm.

Two questions are presented on appeal, the first being whether a child who has been adopted by another is entitled to death benefits of the child’s natural parent; the second is whether the denial of such benefits violated the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Cynthia Lynn Holmquist Cole is the sole minor child of Ralph B. Holmquist who was killed in an industrial accident for which death benefits are payable under the Workmen’s Compensation Act, Art. 8306, Tex. Rev.Civ.Stat.Ann. Long before his death, he and Cynthia Lynn’s mother were divorced and the mother married one Clifton Cole, who adopted Cynthia Lynn. The Travelers Insurance Company, the Compensation carrier for Ralph Holmquist’s employer, has admitted that his death is compensable and has paid the benefits into court because of the conflicting claims of the minor, Cynthia Lynn Cole, and the parents, Oscar and Beulah Holmquist, Appellees herein.

As indicated, the trial Court determined that the parents of the deceased, instead of the natural child who had been adopted by another, were entitled to the death benefits. This precise question was decided by our Supreme Court in Patton v. Shamburger, Tex., 431 S.W.2d 506 (1968). The question before the Supreme Court in that case is identical to the question before this Court; that is, whether Workmen’s Compensation death benefits should be paid to a deceased workman’s parent or to his minor child who, before his death, had been adopted by another. The Court held that the adoption statute, Art. 46a, Tex.Rev.Civ. Stat.Ann., prevents the recovery of such benefits by a child because such adopted child is no longer the workman’s “minor children” as that term is used in the Workmen’s Compensation statute, Art. 8306, § 8a.

Appellant urges that since the decision in Patton v. Shamburger in 1968, the adoption statutes have changed in that Texas has now enacted the Family Code. Section 15.-07, Tex.Family Code Ann., has the same wording as § 9 of Art. 46a, the old adoption statute, this being the language construed by the Court in Patton. We fail to see how the adoption of the new Family Code affects the decision in that case; no other provision of the Family Code conflicts with that opinion. The case before us is not distinguishable from the Patton case and it is controlling of our decision. It was followed by the Eastland Court of Civil Appeals in Zanella v. Superior Insurance Company, 443 S.W.2d 95 (Tex.Civ.App.—Eastland 1969, writ ref’d). Appellant’s first point of error is overruled.

Appellant’s second point of error is that the judgment of the District Court operates as a taking of her property without due process of law and is contrary to the equal protection clause of the United States Constitution. In support of this position, Appellant cites Dickerson v. Texas Employers’ Insurance Association, 451 S.W.2d 794, a no writ case by the Dallas Court of Civil Appeals, decided in 1970. In Dickerson, the Court recognized the holding in Patton and Zanella as controlling, but reasoned that there was no constitutional question in those cases whereas one existed in the case before it. In Dickerson, one of the children of the deceased workman had been adopted and the others had not. The court held that to exclude the child who was adopted by a third person would amount to a denial of equal protection under the Fourteenth Amendment of the United States Constitution. This decision followed Levy v. Louisiana which declared that the exclusion of illegitimates from recovery under the Louisiana wrongful death statute was unconstitutional. 891 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d'436 (1968). There is a distinction between the illegitimate child situation and that of the adopted child. The illegitimate child is deprived of any recovery from any source; he has no other place to turn for a recovery of benefits, while the adopted child simply changes parents; he loses the right to recover from his natural parent, but he is given the right to recover from the adoptive parent. Article 16.09 of the Family Code provides:

“(a) On entry of a decree of adoption, the parent-child relationship exists between the adopted child and the adoptive parents as if the child were born to the adoptive parents during marriage.”

The Supreme Court confirmed that in the Patton case, saying: “Our holding is that they are no longer ‘minor children’ of the natural father under the workmen’s compensation statute but are the minor children of the adoptive father and his wife, the natural mother of the children.” Since Appellant is not deprived of a right but simply had that right transferred from one parent to another, we hold that there is no violation of the equal protection clause of the Fourteenth Amendment, United States Constitution.

The judgment of the trial Court is affirmed.