author: PHILLIPS, Chief Justice.

text:
    Mario Borrego DELAO et ux. Appellants, v. Michael David CARLSON, Appellee.
    No. 13066.
    Court of Civil Appeals of Texas, Austin.
    Oct. 24, 1979.

      Kirk Kuykendall, Lockhart, Kuykendall & Jones, Austin, for appellants.
    Harvey F. Cohen, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from an order entered after a non-jury hearing sustaining appel-lee’s plea of privilege to be sued in the county of his residence, Williamson County. Appellants, Mr. and Mrs. Mario Borrego Delao, brought this suit in Travis County against appellee seeking to recover damages under the wrongful death and survival statutes. Tex.Rev.Civ.Stat.Ann. arts. 4671 (Supp.1978) and 5525 (1958), alleging that appellee was operating a motor vehicle in Travis County in a negligent manner, struck appellants’ son and caused his death.

The trial court sustained appellee’s plea of privilege on the grounds that appellants had not proved that appellee was negligent and transferred the case to Williamson County for trial. Thereafter, appellants perfected their appeal to this Court.

We affirm.

There are essentially three questions presented us. The first is whether or not the trial court erred in not holding that appellee’s failure to have his bright lights on at the time of the accident was negligence as a matter of law. The second and third points of error complain that the trial court’s finding that the defendant was driving at a reasonable and prudent speed was against the great weight and preponderance of the evidence and that such finding was not supported by any evidence.

The deceased, Mario Morales Borrego, was killed just after midnight in Travis County on December 23,1978, when he was struck by a car driven by appellee on the service road for northbound traffic adjacent to Interstate 35.

The court found that at the time of the collision between the deceased and the vehicle driven by appellee, the deceased was in a northbound traffic lane at least four and one-half feet from the right hand (or east) edge of the road; that before the accident appellee was operating his vehicle with his headlights on low beam; that at all times material to the suit, appellee was maintaining a proper lookout; that at all times material to the suit appellee was driving less than the legal speed limit and at a rate which was not excessive or unreasonable under the circumstances; that appellee made timely application of his brakes and swerved his vehicle to the left in an attempt to avoid the accident; and that at 12:45 A.M., the time of the accident, the lighting conditions at the scene and location of the point of impact were poor. The evidence is undisputed that the deceased was wearing dark clothing, except for a white shirt that was covered over by a dark colored coat.

Texas Rev.Civ.Stat.Ann. art. 1995, § 9a (1964), provides that a negligence suit may be brought in the county where the negligence occurred. The venue facts which the moving party must establish by the preponderance of the evidence are that the negligence occurred in the county of suit, was the act or omission of the defendant, and was the proximate cause of the injuries complained of. Reynolds and Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.1964, no writ).

Appellants maintain that appellee was driving with his headlights on low beam and that in doing so violated Tex.Rev. Civ.Stat.Ann. art. 6701d, §§ 109(a), 126, and 127, which relate to the use of headlights on Texas highways. Appellants contend that a violation of this statute and the pertinent sections constitutes negligence as a matter of law. Appellants have cited no cases in point construing these sections, nor have we found any.

Section 109(a) provides that every vehicle upon a highway in this state between a half hour after sunset and a half hour before sunrise and at any time when due to insufficient light or unfavorable atmospheric conditions, persons and vehicles are not clearly discernible at a distance of one thousand feet shall display lighted lamps and illuminating devices, subject to certain exceptions that do not apply to the case at bar. Section 126. provides that the headlights shall be so arranged that the driver may select at will between distributions of light projected to different elevations, and that there shall be an uppermost distribution of light to reveal persons and vehicles at a distance of at least 450 feet ahead.

Section 127 is most pertinent to this appeal, and provides in part:

“Whenever a motor vehicle is being operated on a roadway ... [at night] the driver shall use a distribution of light . . . directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle . . . ” (Emphasis added).

Read together, Section 109 provides when headlights are required, Section 126 states the necessity for multiple beam lighting equipment, and Section 127 finally states the standard of usage of this equipment, that a driver shall use a “ . . . distribution of light ... of sufficient intensity to reveal persons ... at a safe distance in advance of the vehicle . ” Of these sections, only Section 127 is applicable to the case at bar, since appellee did have the required headlights (§ 109(a)), and was equipped with high beam lights (§ 126). We must decide, then, whether a failure to use lights of sufficient intensity (high beam) to reveal the deceased constituted negligence as a matter of law.

In our opinion, Art. 6701d, § 127, comes within the class of statutes in which the common law standard of the reasonably prudent person must be used in determining as a matter of fact, not as a matter of law, whether the conduct of a motorist is negligent. Section 127 requires a distribution of light to reveal persons at a “safe distance,” which is not an absolute standard, but one that must be determined from the evidence of the facts and circumstances existing at the time the motorist was operating the vehicle.

In Booker v. Baker, 306 S.W.2d 767 (Tex. Civ.App.1957, writ ref’d n. r. e.), the court construed Art. 6701d, § 68(a), providing that the driver of a vehicle shall not change his course on a roadway until such movement can be made with safety. The court cited the leading case of Missouri-Kansas-Texas Railroad Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), and concluded that a given factual situation when “such movement can be made in safety” may satisfy one person that the movement may be made safely, but not another, and in order to have a standard of conduct the use of the reasonably prudent man must be applied.

In Wilson v. Manley, 347 S.W.2d 778 (Tex.Civ.App.1961, writ ref’d n. r. e.), the court construed Art. 6701d, § 68(b), requiring that a signal of intention by a car operator before turning right or left “shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.” The court held that a violation is negligence as a matter of law, since a signal was required under the circumstances. The court stated: “The distance of 100 feet is a definite standard of which all must take notice; it does not lend itself to amplification nor construction.”

In Allen v. Knippa, 552 S.W.2d 528 (Tex.Civ.App.1977, writ dism’d), the court held that a violation of Art. 6701d, § 138, requiring a motorist stopped on a roadway or adjacent shoulder to actuate vehicular hazard lamps, was negligence per se. This opinion is based upon the rationale in Wilson v. Manley, supra, that the language of Section 138 sets a definite standard, and is not subject to amplification or construction.

Our Supreme Court in Missouri-Kansas-Texas Railroad Company v. McFerrin, supra, interpreted Art. 6701d, § 86, which provides that a motorist shall not proceed across a railroad track until he can do so safely when an approaching train is plainly visible and is in hazardous proximity. The Court held that the statute imposes a conditional, but not absolute duty to stop, and stated:

“ . . . Accordingly, we apply the objective common-law test of the reasonably prudent man and hold that before it can be said in a given case that an approaching train was 'plainly visible’ as a matter of law, it must first appear . that a reasonably prudent [man], situated as was the motorist and exercising ordinary care for his own safety, should have seen it . . . ” (291 S.W.2d at 936).

Returning to the case at bar, Section 127 requires only that a driver use a distribution of light to reveal persons at a safe distance. “At a safe distance” is not a mathematical situation, but requires evidence of the existing conditions. In determining whether the circumstances require high beam lights to reveal persons at a safe distance, a driver must consider the many conditions of the road, including darkness, atmospheric conditions, traffic, roadside, hazards, etc. Because different persons might disagree as to what is a “safe distance,” the common law test of the reasonably prudent man must apply.

With respect to the second and third questions stated above, appellants rely on Art. 6701d, § 166(a), which provides: “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing . ” Appellants complain that there was insufficient or no evidence to support the trial court’s finding that appellee was driving at a reasonable and prudent speed.

The question of no evidence is one of law, and our review requires us to consider only the evidence and the inferences favorable to the questioned finding and to disregard all evidence and inferences to the contrary. Walker v. Bounds, 510 S.W.2d 392 (Tex.Civ.App.1974, no writ). The “against the great weight and preponderance of the evidence” point presents a factual question, and requires us to consider and weigh all of the evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The trial court found that appellee was driving less than the legal speed limit and at a rate which was not excessive or unreasonable under the circumstances. Ap-pellee’s own testimony, under questioning by appellants’ counsel, established that the accident occurred after midnight in dry weather on a straight road when visibility was good. Appellee was driving less than the legal speed, and was scanning the roadway and the sides of the road. The conditions of the road were favorable. We see no basis to hold that appellee’s speed on the freeway frontage road was unreasonable. The evidence indicates that the deceased was wearing dark clothes, and was in appel-lee’s path. Certainly, appellee’s speed was not unreasonable merely because he could not avoid striking the deceased who instantly appeared in his path. Viewing the evidence and the inferences reasonably drawn therefrom in the light most favorable to the trial court’s finding, we hold that there was ample evidence from which the court could conclude that appellee’s rate of speed was not excessive or unreasonable. Appellants’ “no evidence” point is overruled.

In weighing all of the evidence in the record, we further find for the reasons previously stated that the trial court’s finding was not “against the great weight and preponderance of the evidence.”

The judgment is affirmed.


source: Caselaw Access Project

author: REYNOLDS, Chief Justice.

license: Public Domain

text:
    Virginia Harbour TOLER et al., Appellants, v. Frank A. HARBOUR, Appellee.
    No. 9011.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 24, 1979.
    Rehearing Denied Nov. 21, 1979.
    Manning Holland, Amarillo, for appellants.
    Garland D. Sell & Associates, Garland D. Sell and Patrick A. Pirtle, Amarillo, for appellee.
   REYNOLDS, Chief Justice.

Granting plaintiff’s motion, the trial court summarily decreed that a will, which states plaintiff shall “have and hold a life-estate only” in realty and “at his death his heirs take the fee simple title,” vested, by operation of the rule in Shelley’s case, the fee simple title in plaintiff. The non-moving defendants did not present to the court any issue which would avoid plaintiff’s entitlement to the summary judgment established by the proof. Affirmed.

Plaintiff Frank A. Harbour instituted this action to secure a declaratory judgment construing the last will and testament of W. A. Harbour, deceased. Specifically, Frank sought a judgment declaring that the fourth article of the decedent’s will vested in him the fee simple title to the East 167 acres of Section 1114, Block 43, H&TC Ry. Co. Survey, Ochiltree County, Texas.

The will of W. A. Harbour was executed 3 November 1945 and admitted to probate on 13 May 1963. The will, which gave to his wife, Mattie Harbour, “a life-estate in all of my real estate,” also provided:

Third: Upon the passing from this life of the said Mattie Harbour, it is my will and I so direct that my son, John K. Harbour take the fee simple title to the North 240 acres of the West 480 acres of Section 1114, Block 43, H.&T.C.R.R.Co. in Ochiltree county, Texas; and that my daughter, Anna Marie Harbour Smith take the fee simple title to the South 240 acres of the said West 480 acres of said Section 1114, Block 43, H.&T.C.R.R.Co., in Ochiltree county, Texas.
Fourth: It is my will, and I so direct that my son, Frank A. Harbour, shall, at the passing of my wife Mattie Harbour, have and hold a life-estate only in and to the East part of said Section 1114, Block 43, H.&.T.C.R.R.C0., in Ochiltree county, Texas, being all of the residue of said section not herein bequeathed to John K. Harbour and Anna Marie Harbour Smith, above, and containing 167 acres, more or less. Said East part being where I now reside; at his death his heirs take the fee simple title in and to said tract of land.

As defendants to his action, Frank named Virginia Harbour Toler, Harold Leon Har-bour, Joy Harbour Sibrel and Patsy Harbour Anglin — who are his children and who, he alleged, would be the apparent takers of fee simple title to the property passing under the fourth article but for the operation of the rule in Shelley’s case — and the First National Bank of Perryton, Texas, receiver. The bank had been appointed receiver of the 167-acre tract for mineral development pursuant to Tex.Rev.Civ.Stat.Ann. art. 2320c (Vernon 1971) in Cause No. 4827 pending on the docket of the trial court.

Frank’s children filed an original answer consisting of allegations which have no pertinence to the matters submitted on this appeal. The bank answered that it had received certain monies in its capacity as receiver and prayed that if Frank should prevail, the judgment should specifically provide for the payment of income tax, if any, receiver’s fees and the expenses out of the funds, with the balance, if any, payable to Frank.

After all defendants answered and the children responded to Frank’s interrogatories and requests for admissions of fact, Frank moved for summary judgment. Attaching a certified copy of W. A. Harbour’s probated will to his motion, Frank alleged, in essence, that the operation of the rule in Shelley’s case on the language of the will entitled him to summary judgment as a matter of law, the answer of the defendants having failed to state a defense to defeat the summary judgment.

In response to the summary judgment motion, the children filed an answer, attaching affidavits. The answer consisted of allegations that: first, there is a genuine issue of material fact as to the intention of testator W. A. Harbour, particularly in using the word “heirs;” and, second, the entire will itself clearly sets forth the testator’s intent that Frank was to have only a life estate and, at Frank’s death, his heirs, by which the testator meant Frank’s children, were to take the fee simple title. The thrust of the affidavits was that the testator had orally declared his intent that Frank take only a life estate and that Frank’s children take the fee simple title.

The court heard the motion for summary judgment and argument of counsel. Fourteen days later, the children filed their first amended original answer to Frank’s original petition. By this answer, the children asserted that all issues and facts set forth in Frank’s original petition were fully and finally litigated between the same parties in a judgment, a certified copy of which was attached, rendered in Cause No. 4827, and prayed that Frank’s original petition be dismissed, res judicata.

Thereafter, the court rendered summary judgment. Reciting, inter alia, in the judgment that by virtue of the will and the operation of the rule in Shelley’s case Frank was devised a fee simple title to the 167-acre tract, the court decreed that Frank owns a fee simple title to the real estate without limitation.

Only the children have appealed from the judgment. For reversal of the summary judgment, they submit that: (1) the former judgment rendered in Cause No. 4827 determined the ownership of the real estate and is res judicata of this action; and (2) the court erred in granting summary judgment because there are genuine issues of material facts. Under the latter submission, they narrow the consideration to the issue of the testator’s intent, arguing that the will itself, together with the affidavits, conclusively show that the testator did not use the word “heirs” in its technical sense, and intended Frank to have a life estate only and his children to take the fee simple title.

Res judicata

Without academically discussing the children’s contention that the doctrine of res judicata bars this action, it suffices to state that the affirmative defense of res judicata is not available for consideration as a ground for reversal of the summary judgment. This is for the reason that the defense was never presented to the trial court in avoidance of the summary judgment.

Res judicata is an affirmative defense which must be specifically pleaded, Tex.R.Civ.P. 94; otherwise, the defense is waived. Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.). Although the children did, by an amended answer filed two weeks after the summary judgment motion hearing, seek the dismissal of Frank’s original petition on conclusional allegations of res judicata, the defense of res judicata was not expressly presented to the trial court by written answer or other response to Frank’s motion for summary judgment. Indeed, the children concede that res judicata was not affirmatively raised to defeat the summary judgment when, in their brief, they state, “We do not think the defendants were required to plead the judgment rendered at the prior hearing of the court in bar to further proceedings . . . .”

In the context of the summary judgment rule Tex.R.Civ.P. 166-A, an answer generally filed in response to a petition does not expressly present to the trial court any issue in response to a summary judgment motion; and, by the rule’s explicit direction, any issue not expressly presented to avoid the movant’s entitlement to summary judgment shall not be considered on appeal. The City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex., 1979). The first point of error is overruled.

Rule in Shelley’s case

Frank moved for, and the court granted, summary judgment on the ground that the rule in Shelley’s case operated on the language of the will to vest fee simple title in him. The rule is expressed in the landmark case of Hancock v. Butler, 21 Tex. 804, 808 (1858), from which the following, with omissions not material here, is quoted:

‘[W]hen a person takes an estate of freehold, legally, or equitably, under a . will . . . and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.’ 4 Kent, 215. This result would follow, although the [will] might express that the first taker should have a life estate only. It is founded on the use of the technical words, “heirs,” or “heirs of his body,” in the . . . will.

The rule existed in Texas as a positive rule of law and not as a rule of construction, Sybert v. Sybert, 152 Tex. 106, 254 S.W.2d 999, 1000 (1953), until the legislature abolished the rule effective 1 January 1964. Tex.Rev.Civ.Stat.Ann. art. 1291a (Vernon Pamphlet Supp. 1963 to 1978). But the act of abolishment does not foreclose the application of the rule to W. A Harbour’s will, which was executed and probated before 1 January 1964, for section 3 of the act exempts its application to conveyances taking effect prior to the effective date of the act.

Given the language of the will and the viability of the rule in Shelley’s case, Frank is vested with the fee simple title to the realty, even if the testator intended otherwise. It would be superfluous to comment on the merits or demerits of the rule’s application to the will, for the case of Sybert v. Sybert, supra, is squarely in point, refutes all of the children’s contentions for non-application of the rule, and dictates that the summary judgment must be affirmed.

In Sybert, the Court confronted the same situation which is presented in this appeal. By his will, Mr. Sybert left all of his property to his wife for life and, at her death, willed to one son a life estate in a tract of land which was, after the son’s death, “to vest in fee simple in the heirs of his body.” Later, Mrs. Sybert died, leaving a will disposing of the land in the same manner and by the identical words copied from Mr. Sy-bert’s will. When the son died, litigation ensued to determine whether the wills vested in the son a life estate only or a fee simple title.

The court held that the rule in Shelley’s case must apply to the language of the wills to vest fee simple title in the son because there was no language, and the court could supply none, qualifying the words “heirs of his body,” it being immaterial whether or not the testator so intended. 254 S.W.2d at 1001. The concurring opinion points out that there can be no doubt the two testators intended to leave a life estate only to their son, and the application of the rule in Shelley’s case results in setting aside this intention. In fact, the opinion continues, every case in which the rule is applied results in setting aside the intention of the person making the instrument; nevertheless, when wills come within the rule, there is no escape from the rule’s application. 254 S.W.2d at 1002.

Here, despite the intent of testator W. A. Harbour, he used no language, and we cannot supply any for him, qualifying his word “heirs” so it will not be read in its technical sense. Thus, the rule in Shelley’s case operates on the language of W. A. Harbour’s will to vest in Frank A. Harbour a fee simple title to the realty devised in the fourth article of the testator’s will. The second point is overruled.

The summary judgment is affirmed.

COUNTISS, J., not participating.

      . The original answer is shown in a supplemental transcript tendered after the submission of this cause by the children, who moved, and Frank opposed, its filing. The motion was carried forward for consideration with the merits of the appeal. Other than the original answer, the tendered supplemental transcript is composed of copies of some instruments filed in the receivership proceedings in Cause No. 4827 and in the probate proceedings in the Estate of W. A. Harbour, deceased. Except for the original answer, none of the instruments was a part of the summary judgment record before the trial court, and none of them enhances the merits of any point of error or affects the disposition of the appeal. In view thereof, the motion to file the supplemental transcript is granted only to the extent that the original answer is accepted for filing.

      . The judgment is silent on the matter of the bank’s prayer for disposition of the funds it holds as receiver. Under the rationale of North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), it will be presumed the prayer was denied; but, this is not tantamount to saying that the proper disposition of the funds cannot be ordered pursuant to Tex. Rev.Civ.Stat.Ann. art. 2320c, § 2C (Vernon 1971) in the receivership proceedings in Cause No. 4827.

      . At the insistence of the children, the trial court made and filed eight findings of fact and seven conclusions of law. By the very nature of summary judgment proceedings, findings of fact are inappropriate, for the only issue is whether there is a genuine issue of material fact. Matter of Estate of Furr, 553 S.W.2d 676, 679 (Tex.Civ.App.—Amarillo 1977, writ ref'd n. r. e.); Reynolds v. Park, 521 S.W.2d 300, 307 (Tex.Civ.App.—Amarillo 1975, writ refd n. r. e.). Accordingly and because the particular findings are not mentioned on appeal, the factual findings are ignored.


author: DODSON, Justice.

text:
    Peter ECKERT, Individually and on behalf of Randall Eckert, a Minor v. Dr. Sidney SMITH.
    No. 9031.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 24, 1979.
    Rehearing Denied Nov. 21, 1979.
    Windle Turley and Larry Hayes, Law Offices of Windle Turley, Dallas, for appellant.
    Thompson & Knight, David S. Kidder and Jerry Grissom, Dallas, for appellee.
   DODSON, Justice.

Peter Eckert, individually and on behalf of his minor son, Randal Eckert, brought this action for damages against Dr. Sidney Smith, M.D. He alleged inter alia that Dr. Smith negligently diagnosed and treated Beverly Eckert and that such negligence was a proximate cause of her death. Mrs. Eckert was the wife of Peter and the mother of Randal Eckert. The case was tried with a jury. The jury refused to find Dr. Smith negligent in either diagnosing or treating Mrs. Eckert. No other negligence issues were requested or submitted to the jury. On the jury’s verdict, the trial court entered a take-nothing judgment in favor of Dr. Smith. Mr. Eckert appeals from the judgment.

On appeal, Mr. Eckert brings five points of error. He attacks the trial court’s definitions of timely diagnosis and proper treatment because each definition includes a community standard of care, /. e., Dallas County, Texas. He further complains of the trial court’s refusal to submit loss of love and affection as an element of damages and the trial court’s denial of a new trial based on newly discovered evidence. We affirm the judgment.

Beverly Eckert expired in the Garland Memorial Hospital in Dallas County, Texas on Sunday 23 February 1975. She was approximately seven months pregnant at the time, and was a patient of Dr. William Adams for prenatal care. Dr. Adams and Dr. Smith were partners in the practice of medicine in Garland. Dr. Smith was on weekend call to take care of their respective patients.

Mrs. Eckert became ill on Saturday afternoon 22 February 1975. Mr. Eckert contacted Dr. Smith by calling Dr. Adam’s answering service. At 5:35 p. m. on this day, Mrs. Eckert entered the emergency room of Memorial Hospital at Dr. Smith’s direction. Dr. Smith, a board certified specialist in obstetrics and gynecology, had never previously examined Mrs. Eckert.

At the emergency room, Mrs. Eckert complained of chills, diarrhea and abdominal pain. These complaints were consistent with an illness prevalent in the Garland area at the time. Dr. Smith’s examination revealed that Mrs. Eckert was lucid, had normal vital signs under the circumstances, and no vaginal bleeding. He ruled out placental abruption after a manual examination of the uterus and auditory recognition of fetal heart tones. He concluded that she was mildly dehydrated, was suffering from gastroenteritis which was probably viral, and was possibly anemic.

Dr. Smith had Mrs. Eckert admitted to the hospital and gave certain orders for her continuing care and treatment. These orders included I.V.s, lomotile, pain medication and certain lab tests.

Dr. Smith next examined Mrs. Eckert the following morning. His time of arrival at the hospital and time of the examination were disputed. He said he arrived at the hospital about 10:00 a. m., tended to another patient and then examined Mrs. Eckert at about 10:30 a. m. Mr. Eckert attempted to establish that Dr. Smith arrived at the hospital approximately one hour earlier.

The Sunday morning examination revealed that Mrs. Eckert was still in pain but the diarrhea had been controlled. He said she appeared alert and improved. She stated that she was hungry. She had not requested pain medication since 8:00 a. m. that morning. He again ruled out placental abruption and found normal fetal heart tones.

After this examination he received a laboratory report which showed a low blood count. He ordered a second complete blood count “stat” and a type and cross-match for a blood transfusion. While waiting for this laboratory work, he attempted to determine the location of the blood loss. After he ruled out rectal or uterine bleeding, he thought a gastro-intestinal bleeding most likely and sought a consult before initiating invasive surgery. He considered the invasive surgery dangerous to the mother and child.

Dr. Smith’s testimony showed that he was in attendance to Mrs. Eckert from the time of the initial Sunday morning examination until approximately 11:55 a. m. He testified that he was called to another floor of the hospital to admit another patient for delivery. He called the nurse’s station to check on Mrs. Eckert’s condition and to determine if the blood had arrived for transfusion. He was informed that Mrs. Eckert was in cardiac arrest and that the cardiopulmonary team had been notified. Dr. Smith went to Mrs. Eckert’s room and participated in the resuscitation efforts.

The undisputed evidence shows that a nurse found Mrs. Eckert pulseless, non-responsive and without respiration; that a cardiopulmonary team was called at 12:05 p. m.; that the resuscitative efforts were unsuccessful; and that the cause of the death was a cardiac arrest due to intra-ab-dominal hemorrhage from placenta percreta.

Mr. Eckert presented evidence from two medical experts. By these experts, Mr. Ec-kert attempted to show that Dr. Smith was negligent in not timely diagnosing and properly treating Mrs. Eckert’s condition. In essence, these experts said that Dr. Smith failed to promptly order proper lab studies, over-sedated the patient, and failed to appreciate factors pointing to internal hemorrhaging and shock.

In summary, Dr. Smith and other medical experts testified that the lab reports were verbally ordered according to established medical practice and custom; that the monitoring of vital signs as ordered was sufficient; that the dosage of medication was moderate; that the diagnosis of gastroenteritis was reasonable and that hemorrhaging was not indicated by Mrs. Eckert’s symptoms; that Dr. Smith’s response was appropriate under the circumstances; and that Mrs. Eckert’s demise was caused by an acute episode of placenta percreta occurring late on Sunday morning causing rapid massive internal hemorrhaging which filled the retroperitoneal space with 4000 cc. of blood within minutes.

Dr. Smith testified, without contradiction, that placenta percreta is a rare condition in pregnancy, in which the placenta mines through the uterus wall; that since the onset of medical literature there have been only 37 reported occurrences of the condition, which were similar to Mrs. Ec-kert’s condition; and that he previously had not seen the condition in his extensive practice.

In special issue number one, the court inquired of the jury, “Do you find from a preponderance of the evidence that Dr. Smith failed to timely diagnose internal hemorrhaging of Mrs. Eckert?” and in issue number three, “Do you find from a preponderance of the evidence that Dr. Smith failed to properly treat her internal hemorrhaging?”. The court used a community standard in defining the terms “timely diagnose” and “properly treat.” These instructions state that “timely diagnose” means “such time as a reasonably prudent physician practicing in Dr. Smith’s specialty in Dallas County, Texas, would have diagnosed under the same or similar circumstances,” and that “properly treat” means “such treatment as would have been rendered by a reasonably prudent physician of Dr. Smith’s specialty in Dallas County, Texas, under the same or similar circumstances.”

Mr. Eckert objected to the instructions stating that the phrase “Dallas County, Texas,” should have been omitted on the general grounds that the instructions focus “the conduct of defendant in both issues No. 1 and No. 3 upon what a reasonably prudent physician in Dallas County, Texas would have done and contrary to the law, the instruction should not be so limited.” In his brief, he says the instructions are contrary to the law and a comment on the weight of the evidence.

In his objections to the charge, Mr. Eckert made no challenge to the instructions on the grounds that such instructions constitute a comment on the weight of the evidence. Rule 274 of the Texas Rules of Civil Procedure provides, in part:

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.

Under the circumstances, we must conclude that Mr. Eckert waived his challenge to the instructions on the comment on the weight of the evidence grounds.

Mr. Eckert further contends that the community standard is “contrary to the law,” and that the trial court committed reversible error by including the standard in the instructions. In essence, he opts for a complete demise of the community standard or locality rule in medical malpractice actions in this state. In support of his position, he says the decision in Hood v. Phillips, 554 S.W.2d 160 (Tex.1977) “demonstrates that the last vestiges of the locality rule has [sic] now disappeared from Texas jurisprudence.” We disagree.

The Hood case was a medical malpractice action based on an assertion that the mode or form of treatment was not a remedy for the diagnosed condition. The patient had emphysema. Attempting to reduce the patient’s suffering, the doctor removed one of the carotid bodies from the patient’s neck. The doctor acknowledged that the use of this type of surgery was not generally accepted and was in fact highly controversial. The authoritative medical testimony showed that the procedure had been proposed without much scientific rationale, tried by a number of physicians worldwide, found ineffective and abandoned.

In Hood, the Court observed that courts from other jurisdictions had applied at least four standards to medical malpractice actions based on assertions that the mode or form of treatment was not a remedy for the diagnosed condition. After reviewing the various standards, the Court stated:

We are of the opinion that the statement of the law most serviceable to this jurisdiction is as follows: A physician who undertakes a mode or form of treatment which a reasonable and prudent member of the medical profession would undertake under the same or similar circumstances shall not be subject to liability for harm caused thereby to the patient. The question which conveys to the jury the standard which should be applicable is as follows: Did the physician undertake a mode or form of treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances? (Emphasis added).

Hood v. Phillips, supra, at 165. The Court also pointed out that “[gjenerally this standard should be applied whether the mode or form of treatment is ‘experimental’, ‘outmoded’, or ‘rejected’.” (Emphasis added). Id. at 165. In our opinion, the decision in Hood does not preclude the use of the community standard in the case before us and does not direct a different standard.

Texas adopted the “same or similar communities” standard in Turner v. Stoker, 289 S.W. 190, 194 (Tex.Civ.App.—Eastland 1926, writ ref’d). In Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949), the Texas Supreme Court further required medical evidence from a physician of the same school of practice to establish the “same or similar communities” standard. In Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936 (1953), 264 S.W.2d 689 (1954), however, the same school of practice rule in areas of practice common to different schools was rejected. The court determined that testimony by medical doctors concerning the proper method of administering a spinal anesthetic was admissible in an action against an osteopathic doctor.

In general, the Texas cases since Porter v. Puryear, supra, have dealt with and determined admissible the testimony by doctors from different geographical areas, testimony by specialists in actions against general practitioners, and other similar situations. This line of cases is exemplified by Hood v. Phillips, 554 S.W.2d 160 (Tex.1977) (Colorado physician testified carotid surgery was not accepted treatment for emphysema); Webb v. Jorns, 488 S.W.2d 407 (Tex.1972) (physician testified as to standard of care required of nurse anesthetists); Lee v. Andrews, 545 S.W.2d 238 (Tex.Civ.App.—Amarillo 1976, writ dism’d by agr.) (New York pathologist competent to testify as to standards applicable to general practitioner because he was familiar with such standards); Simpson v. Glenn, 537 S.W.2d 114 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.) (Arizona specialist in obstetrics and gynecology competent to testify as to post-operative standard of care in suit against general surgeon); Cleveland v. Edwards, 494 S.W.2d 578 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ) (testimony of Louisiana surgeon raised medical proof of both malpractice and causation); Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ.App.—Waco 1969, writ ref’d n. r. e.) (Dallas orthopedic specialist allowed to testify as to standard required of Ennis general practitioner). We deem it unnecessary to the disposition of this case to fully trace the evolution of the application and administration of the community standard rule in this state.

The usual criticism of the locality rule, applied in its strictest sense, is that the standard of care for the defendant physician must be established by testimony from another physician practicing in the same locality as the defendant and that it tends to perpetuate and protect an inferior local standard of care. See A Study of Medical Malpractice in Texas, 7 St. Mary’s L. J. 732, 744 & n. 57 (1976). Neither of these factors are present in the case before us.

At the trial, Mr. Eckert presented medical testimony from two doctors to support his position on the alleged negligent acts or omissions by Dr. Smith. These witnesses were Dr. Christine Haycock, M.D. and Dr. Albert B. Kapstrom, M.D. Dr. Kapstrom practices his specialties in obstetrics, gynecology and infertility at the Cedars Sinai Medical Center in Los Angeles County, California. He is a fellow of the American College of Obstetricians & Gynecologists. He holds membership in several other medical organizations. Dr. Haycock is a general surgeon with a particular interest in trauma. She is an Associate Professor of Surgery and Chief of the Division of Trauma, New Jersey Medical School at Newark, New Jersey. She is a Fellow of the American College of Surgeons and holds membership in several other medical organizations. She presents lectures on management of trauma, emergency treatment of abdominal injuries and abdominal hemorrhages, and the use of a peritoneal lavage and a catheter in diagnosing internal hemorrhaging.

Mr. Eckert points us to no medical testimony from his experts, which was excluded on community standard grounds, and our review of the record reveals none. Moreover, he does not contend that the Dallas County, Texas standard applied in this case is inferior to a statewide or so-called national minimum standard. In fact, the evidence by Mr. Eckert’s medical experts shows that the Dallas County standard is equal to or greater than national minimum standards.

In Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972), our Supreme Court directed “the administration of the community standard” to the discretion of the trial court. Mr. Eckert does not contend that the trial court abused its discretion by employing the Dallas County, Texas community standard in the instructions. Our review of the record reveals that such a contention would be without merit. Moreover, from our review and consideration of the entire record in this case, we are of the opinion that the challenged instructions were not reasonably calculated to cause and probably did not cause the rendition of an improper verdict in this case. See Tex.R.Civ.P. 434. Under the circumstances of this case, we conclude that the trial court did not commit reversible error by employing the Dallas County, Texas standard in the challenged instructions.

Mr. Eckert further complains that the trial court committed reversible error by refusing to submit his requested issues on loss of love and affection for himself and his son Randal as a result of Mrs. Eckert’s death. Under our disposition of this case, the jury’s refusal to find that Dr. Smith was negligent in his diagnosis and treatment of Mrs. Eckert renders the damage issues immaterial. See Hunter v. Robison, 488 S.W.2d 555, 560, 561 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.) and the case cited therein on page 561. Accordingly, we overrule this contention.

Lastly, Mr. Eckert contends the trial court committed reversible error by not granting him a new trial on newly discovered evidence. In essence the new evidence is that Dr. Smith saw Judi Penny, another patient, on the morning of 23 February 1975, in addition to Mrs. Eckert and the two other patients he recalled seeing on that day.

The test for a new trial on these grounds requires, inter alia, that newly discovered evidence is not merely cumulative and not for the purpose of impeachment. New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex.1972). Generally, such motions are not looked upon with favor by the courts of Texas unless it appears that the new evidence would probably cause a different result if a new trial was granted. Meehan v. Pickett, 463 S.W.2d 481, 483 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.); Jacobi v. Texas State Board of Medical Examiners, 308 S.W.2d 261, 265 (Tex.Civ.App.—Waco 1957, writ ref’d n. r. e.).

Mr. Eckert’s new evidence does not meet these requirements. The evidence is cumulative. It is the same type of evidence regarding the same issue (i. e., the amount of time Dr. Smith spent with Mrs. Eckert on the morning of February 23rd) as offered by the plaintiffs throughout the trial. The only practical effect of the evidence would be to impeach Dr. Smith by showing he was mistaken about the number of patients he saw on February 23rd and the amount of time he spent with Mrs. Eckert. The parties stipulated that Dr. Smith would testify upon examination of Judi Penny’s hospital record that he only saw her for a minute or two before 10:50 a. m., 23 February 1975. This stipulation coupled with the absence of any proof by the plaintiffs that Dr. Smith spent an inordinate amount of time with Judi Penny makes it highly unlikely that the new evidence would probably cause a different result in a new trial. The new evidence does not bring to light a new and independent truth which is so decisive as to show that justice has not been attained or that the trial court abused its discretion by overruling the motion. New Amsterdam Casualty Company v. Jordan, supra, at 867-68. We overrule Mr. Eckert’s contention that the trial court committed reversible error by refusing to grant him a new trial on the newly discovered evidence grounds.

In summary, we overrule Mr. Eckert’s five points of error. Accordingly, the judgment of the trial court is affirmed.

COUNTISS, J., not participating.

      . Abruption of the placenta or abruptio placenta is a premature separation of the placenta from the surface of the interior of the womb. The result of this condition is a one hundred percent mortality rate for the fetus. 4B R. Gray, Attorney’s Textbook of Medicine § 311.-82(3) (3rd ed. Supp. 1979).

      . An autopsy revealed that Mrs. Eckert’s death was precipitated by a rare condition, placenta percreta, in which the placenta grows or mines through the wall of the uterus. In Mrs. Ec-kert’s case, the placenta had grown through the wall of the uterus creating a three centimeter tear in the uterine artery.

      . Although the judgment in Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953) was set aside by the Texas Supreme Court on the second motion for rehearing in Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689 (1954), the opinion was not withdrawn. Therefore, we feel the point is still valid. See Snow v. Bond, 438 S.W.2d 549, 550 (Tex.1969); Insurance Company of North America v. Myers, 411 S.W.2d 710, 714 (Tex.1966); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1966).


text:
    MacARTHUR PARK CORPORATION, Appellant, v. Howard A. SUNSHINE, Individually, and d/b/a Sunshine Exploration Company, Appellee.
    No. 9026.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 26, 1979.

      Winstead, McGuire, Sechrest & Trimble, W. Ted Minick, Dallas, for appellant.
    Joe B. Burnett and Taylor, Mizell, Price, Corrigan & Smith, Edward V. Smith, III, Dallas, for appellee.
   DODSON, Justice.

Howard A. Sunshine, individually and d/b/a Sunshine Exploration Company, a mortgage broker, brought this action to recover certain brokerage fees and attorney’s fees under a written agreement with MacArthur Park Corporation. The bench trial resulted in a judgment in favor of Sunshine for the sum of $21,900 plus post judgment interest. MacArthur appeals from this judgment. We modify the judgment and as modified, affirm.

MacArthur is the owner of a medical-dental complex in Irving, Texas. The complex is designed for specialty space rentals to doctors and dentists. The building phase of the project began several months before MacArthur engaged Sunshine to find permanent financing for the complex.

On 11 July 1974, the parties entered into a mortgage brokerage agreement. In this agreement, MacArthur designated Sunshine its exclusive agent and representative for the purpose of procuring a loan commitment for permanent financing on the complex. A pertinent part of the agreement provides:

It is expressly agreed and understood that the sole obligation of Sunshine Exploration Company under this Agreement is to seek to find a LENDER ready, willing and able to consider making a LOAN COMMITMENT to the BORROWER consistent with the provisions of this Agreement, and at such time the BORROWER shall execute a formal application to said LENDER(s), providing whatever information the LENDER(s) requests, and that the entire cash fee hereinafter agreed to will become due and payable to Sunshine Exploration Company upon its furnishing the undersigned with a writing from such a LENDER evidencing its willingness to make said LOAN COMMITMENT. (Emphasis added).

Sunshine maintains that he performed his obligation under the agreement by seeking to find and presenting to MacArthur at least two lenders which were “ready, willing and able to consider making a loan commitment to the borrowers.” (Emphasis added). MacArthur says Sunshine is not entitled to recover because he failed to comply with an alleged condition precedent in the agreement requiring him to furnish “a writing from such a lender evidencing its willingness to make said loan commitment.” Sunshine counters that the provision relied on by MacArthur is not a condition precedent to liability under the agreement but assuming arguendo that the provision is a condition precedent, then nonperformance in this regard is excused because MacArthur failed to promptly apply for and pursue the loans.

The evidence shows that Sunshine prepared a loan package from information furnished by MacArthur and contacted several lenders concerning permanent financing for the project. Sunshine testified that from these contacts he found lenders which were willing to consider making a loan to the appellants. He presented the loan quotations from these lenders to the president and owners of MacArthur at a meeting on 10 August 1974. The details of the quotations from the lenders were set forth in a letter dated 9 August 1974, which was delivered to MacArthur at the August 10 meeting.

One of the lenders was identified as Lincoln Liberty Life Insurance Company. Sunshine testified that on 13 August 1974 George Pelletier, the president of MacArthur, told him to go ahead with Lincoln Liberty Life. A formal loan application executed by MacArthur was necessary, however, to pursue the Lincoln Liberty Life loan.

Sunshine further testified that the mortgage loan market was volatile and subject to change on a daily basis. His testimony also shows that during the period from 16 August 1974 to 4 September 1974, he had nine telephone conversations with Mr. Pel-letier personally, 30 conversations with his office and one meeting with Mr. Pelletier. He said the purpose of these conversations was “to get them off dead center so they would execute a formal application on a firm quotation received by Lincoln Liberty Life.” MacArthur made formal application for the Lincoln Liberty Life loan by a letter dated 17 September 1974, but Lincoln Liberty Life did not grant the loan commitment on the project.

In general, a mortgage broker is deemed to have performed his contract and is entitled to compensation when he has produced a lender who is ready, willing and able to lend on the terms sought by the broker’s principal. See 12 Am.Jur.2d Brokers § 183 (1964) and the cases cited under note 8. In the contract before us, the parties specifically agreed “that the sole obligation of Sunshine Exploration Company under this Agreement is to seek to find a LENDER ready, willing and able to consider making a LOAN COMMITMENT to the BORROWER.” (Emphasis added). Thus, under this provision of the agreement, Sunshine is only obligated to seek and present a lender ready, willing and able to consider making a loan commitment to MacArthur.

The trial court filed findings of fact and conclusions of law. Four of the unchallenged findings of fact relate to Sunshine’s action for permanent financing under the agreement. Rule 299 of the Texas Rules of Civil Procedure provides, in part that “where one or more elements thereof [Sunshine’s grounds of recovery] have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment.” Therefore, from our review of the record, we conclude that the evidence supports an omitted finding that Sunshine sought, found and presented to MacArthur a lender ready, willing and able to consider making a loan commitment for permanent financing on the project.

We do not agree that MacArthur’s liability under the agreement is conditioned on Sunshine’s furnishing a written loan commitment from a willing lender. The provision relied on by MacArthur states “that the entire cash fee hereinafter agreed to will become due and payable to Sunshine Exploration Company upon its furnishing the undersigned [MacArthur] with a writing from such a LENDER evidencing its willingness to make said LOAN COMMITMENT.” This sentence is preceded by the definitive description of Sunshine’s sole obligation under the agreement, which is discussed above. The questioned provision sets forth the time of payment based on presumptions that MacArthur shall promptly execute a formal application to the lenders with all requested information and that the application will be approved by the lender. The provision, however, does not condition payment of a fee on the presentation of a written loan commitment. We note the absence of words and phrases such as “provided that”, “on condition”, “in the event of” and other similar language importing a conditional provision.

Assuming arguendo that a written loan commitment is a condition precedent to payment, then MacArthur’s failure to promptly file a formal application excused the alleged nonperformance by Sunshine. In Dockery v. Durham, 3 S.W.2d 514, 515 (Tex.Civ.App.—Waco 1927, writ dism’d) the broker sued for a commission on a non-consummated loan. The borrower had refused to submit to the lender an abstract of title on the subject property. The court stated the following general principle: “One party to a contract will not be permitted to take advantage of his own wrongful failure to perform his part, thereby rendering performance by the other party impossible, and then escape liability.” Id. at 519.

The trial court found that on 9 August 1974 Sunshine submitted quotations from two lenders to the appellant, that the loan market on 9 August 1974 required appellant to promptly file a formal application in order to receive a commitment for one of the permanent loans, and that the appellant failed to file a formal application until 17 September 1974. Also, the contracts required the appellant to promptly file a loan application with a lender. The uncontro-verted evidence shows that the Lincoln Liberty Life loan quotation was presented to the appellant on 10 August 1974 and the parties agree that the Lincoln Liberty Life loan application was not made until 17 September 1974. The evidence further shows that the loan market was volatile and changing on a daily basis and that this fact was within the knowledge of both parties.

The appellant challenges the legal sufficiency of the evidence to support the trial court’s finding that the loan market on 9 August 1974 required it to promptly file a formal application in order to receive a commitment for one of the permanent loans. In deciding the legal sufficiency point, we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is any evidence of probative force to support the finding then we must overrule the challenge and sustain such finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In essence, the evidence shows that Sunshine was familiar with the mortgage loan market at the time, that he sought out several lenders to place the loan, that the loan market was volatile and changing on almost a daily basis, and that Sunshine had numerous conversations with officials of MacArthur to get them to move on the loan application with Lincoln Liberty Life. MacArthur did not present evidence to controvert the testimony of Sunshine concerning the loan market posture during the period in question. Thus, we conclude that there was ample evidence of probative force to support the challenged finding.

The appellant attacks that portion of the judgment awarding Sunshine a finder’s fee for interim financing on the project. On 17 September 1974 the parties amended the 11 July 1974 mortgage brokerage agreement to include interim financing for the project. In the amendment, MacArthur retained the right to obtain interim financing from its own sources. The agreement specifically provides: “if said interim financing is arranged through our [MacArthur’s] sources, then in this event only the fee set forth in our July 11, 1974 agreement will be paid.” The undisputed evidence shows that MacArthur obtained interim financing for the project through its own sources. Under the circumstances, we must' conclude that Sunshine was not entitled to recover a finder’s fee for interim financing for the project.

MacArthur further complains that the trial court miscalculated the fee for permanent loan financing. We agree. The agreement provided for a one and one-half percent of the permanent loan amount with credit for a $500 deposit. The Lincoln Liberty Life permanent loan quotation was for $1,050,000. One and one-half percent of this amount is $15,750. The $500 credit reduced this figure to $15,250. The agreement provides for a reasonable attorney’s fee and the parties stipulated to the sum of $2,000 as a reasonable fee. Under our view of the case Sunshine is entitled to recover only the amount of $15,250 as a finder’s fee for permanent financing of the project and the amount of $2,000 as reasonable attorney’s fees.

In its brief, the appellant states thirteen points of error. For the record, we sustain points of error eleven, twelve and thirteen. We have considered the remaining points of error and find that each presents no reversible error. Our disposition of these points is dispositive of this appeal.

Accordingly, the judgment of the trial court is modified to provide, in lieu of the monetary recovery stated therein, that Howard A. Sunshine, individually and d/b/a Sunshine Exploration Company, recover from MacArthur Park Corporation, the sum of $17,250 with interest at the rate of nine percent (9%) per annum, from 14 July 1978 until paid. As modified, the judgment is affirmed.

Having reduced the award to Howard A. Sunshine from the amount of $21,900 to $17,250, we therefore tax twenty-one percent of the cost against him and seventy nine percent of the cost against MacArthur Park Corporation. Tex.R.Civ.P. 435.

COUNTISS, J-, not participating.


author: COUNTISS, Justice.

text:
    In the Interest of C_ D_ V_, a Child.
    No. 9051.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 26, 1979.

      Lloyd D. Stansberry, Staff counsel for Inmates, Texas Dept, of Corrections, Sugar Land, for appellant.
    Bruce L. Parker, Pampa, Warner & Fin-ney, John W. Warner, Pampa (on appeal only), for appellees.
   COUNTISS, Justice.

The biological father of the minor child C_D_V_appeals from judgments denying his petition for voluntary legitimation and terminating his parental rights in an adoption proceeding. Questions presented by this appeal are (1) whether the statute of limitations set out in section 13.01 of the Family Code is applicable to voluntary legitimation proceedings under section 13.21 of the Family Code; (2) whether the trial court erred in denying the father’s petition for voluntary legitimation; and (3) whether the termination of the father’s parental rights was proper in the absence of pleadings requesting that relief. We reform the judgment of the trial court in the adoption proceeding in order to eliminate the provision terminating the father’s parental rights and, as reformed, affirm the judgments of the trial court.

The minor child C_D_ V_is the product of a relationship between the child’s biological parents that began in 1972 or 1973 and continued sporadically until the father was committed to the Texas penitentiary in February of 1978. The mother was married to another man during the term of the relationship but divorced him and married her present husband after C_D_V_’s father was committed to the penitentiary. The child's parents lived together at various places for various periods of time during their relationship and the child lived with his mother from birth in May of 1976, until late 1977, when the father took him to his paternal grandmother. The child has been living with his mother since May 7, 1978, when she regained possession of him without the grandmother’s consent. There is no dispute over the parentage of the child.

On May 9, 1978, the child’s mother and her present husband filed a petition seeking termination of the father’s rights and adoption of the child by the present husband. They subsequently amended their pleadings and specifically withdrew the request for termination of the father’s rights on the ground that “the probable father . has no legal status as a parent.”

The father filed a general denial in the adoption proceeding and a petition for voluntary legitimation of the child. The trial court, sitting without a jury, first heard evidence on and denied the father’s petition for voluntary legitimation, then heard evidence on and granted the present husband’s petition for adoption. In the second hearing, the trial court also decreed termination of the father’s parental rights. In its conclusions of law, the trial court concluded that the one year statute of limitations in section 13.01 of the Family Code applied to the father’s legitimation suit, but also passed on the merits of the case and concluded that there was a conflict between the father and the best interest of the child. The court also concluded that various grounds existed under section 15.02 of the Family Code for termination of the father’s parental rights.

The father attacks the judgments of the trial court by seven points of error but does not perfect an appeal from the decree of adoption granted to the mother’s present husband.

The father, by his first point of error, attacks the trial court’s application of section 13.01 of the Family Code to the father’s petition for voluntary legitimation. The statute reads as follows:

Section 13.01. Time Limitation of Suit
A suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child’s natural father by proof of paternity must be brought before the child is one year old, or the suit is barred.

Tex.Fam.Code Ann. § 13.01 (Vernon Supp. 1978-1979).

It is undisputed that the child is not the legitimate child of a man, the person bringing the suit is the child’s natural or biological father and the child was more than one year old when the suit was brought.

Chapter 13 of the Family Code is divided into three subchapters. Subchapter A, entitled Paternity Suit, includes the foregoing statute of limitations; Subchapter B, entitled Voluntary Legitimation, contains the various statutes relied on by the father in attempting to legitimize his child in this case; and Subchapter C, entitled General Provisions, contains miscellaneous statutes not pertinent here. We note initially that the statute of limitations is, by its terms, broad enough to encompass any proceeding under chapter 13, even though it is contained in subchapter A. Fortunately, section 13.21 spares us the painful process of attempting to determine legislative intent where none is stated. Section 13.21 establishes the right of voluntary legitimation and by subsection (e) states:

(e) A suit under this section may be instituted at any time.

Tex.Fam.Code Ann. § 13.21 (Vernon Supp. 1978-1979).

By specifically including subsection (e) in section 13.21, we are satisfied that the legislature intended to eliminate any statute of limitations on suits for voluntary legitimation. We hold, therefore, that section 13.01 applies only to paternity suits and has no application to suits for voluntary legitimation. We hold, further, that there is no statute of limitations on suits for voluntary legitimation. The father’s first point of error is sustained.

By his second point of error, the father contends that the trial court abused its discretion by denying, on its merits, the petition for voluntary legitimation because the denial was against the great weight and preponderance of the evidence.

The statutory provisions in section 13.21 of the Family Code pertinent to this aspect of the case read as follows:

(b) The court shall enter a decree designating the child as the legitimate child of its father and the father as a parent of the child if the court finds that:
(1) the parent-child relationship between the child and its original mother has not been terminated by a decree of a court;
(2) the statement of paternity was executed as provided in this chapter, and the facts stated therein are true; and
(3) the mother or the managing conservator, if any, has consented to the decree.
(c) The requirement of consent of the mother is satisfied if she is the petitioner. If the entry of the decree is in the best interest of the child, the court may consent to the legitimation of the child in lieu of the consent of the mother or managing conservator.

It is undisputed that subsections (bXl) and (2) of the foregoing statute were satisfied. Since the mother did not consent under subsection (b)(3) however, the father can prevail only by securing the consent of the court under subsection (c). He is entitled to that consent only if “entry of the decree is in the best interest of the child.”

It is well settled that a “best interest of the child” standard, in this context, confers discretion on the trial court to pass on the fitness of one who would assume parental responsibility, and the decision of the trial court will be set aside only if an abuse of that discretion is shown. Travis County Child Welfare Unit v. Vance, 566 S.W.2d 112, 115 (Tex.Civ.App.—Dallas 1978, no writ); See In Interest of K, 535 S.W.2d 168, 170 (Tex.1976), cert. denied, 429 U.S. 907, 97 S.Ct. 273, 50 L.Ed.2d 189 (1976).

We have carefully reviewed all of the evidence and find no abuse of discretion by the trial judge, nor do we find his decision to be against the great weight and preponderance of the evidence. The evidence establishes that the father is a convicted felon presently incarcerated in the penitentiary with a minimum discharge date of April, 1983. He was initially placed on probation, but the probation was revoked because he was unable to live up to its terms and conditions. The father’s support of and devotion to the child is the subject of conflicting testimony, but the mother’s testimony, which the trial court was entitled to believe, is that the father would not work and support her or the child, never paid the medical bills incurred by the birth of the child, and caused their mobile home to be sold because he was delinquent in the payments. The evidence also reveals a pattern by the father of sporadic employment in various parts of the country and a general lack of stability in virtually all aspects of his life which pertain to the care and training of a small child. On this record, the trial court did not abuse its discretion in refusing to consent to the petition for voluntary legitimation.

In conjunction with the foregoing argument, the father contends that the petition for voluntary legitimation could be denied “only if clear and convincing evidence revealed that legitimation was not in the best interest of the child.”

The contention seeks to impose on those who would oppose the legitimation a greater degree of proof than is now required by section 11.15 of the Family Code and seeks to place the burden of proof on those who would oppose the legitimation, by requiring a negative finding that legitimation is not in the best interest of a child. We reject the contention.

Section 11.15 establishes the degree of proof required in cases adjudicated under Title 2, Subtitle A of the Family Code, as follows:

§ 11.15. Findings
The court’s findings shall be based on a preponderance of the evidence under rules generally applicable to civil cases.

Thus, preponderance of the evidence is the statutory standard applicable to this case.

Section 13.21(c) of the Family Code places the burden on the party seeking to convince the trial court that legitimation is in the best interest of the child. The section states “If the entry of the decree is in the best interest of the child, the court may consent to the legitimation . . . ” (emphasis added). Thus, there is no presumption that legitimation is in the child’s best interest and the indication in the statute is that the legislature intended that legitimation must encompass more than proof of paternity. We hold, therefore, that the party who would legitimize the child must establish, by a preponderance of the evidence, that legitimation is in the child’s best interest when consent of the court is required under section 13.21(c) of the Family Code.

The father’s advocacy of a “clear and convincing” standard is based primarily on the U. S. District Court decision in Sims v. State Department of Public Welfare, Etc., 438 F.Supp. 1179 (S.D.Tex.), rev’d and remanded sub nom. Moore v. Sims, - U.S. -, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). We note, initially, that the U. S. District Court’s decision in the Sims case was reversed and remanded by the U. S. Supreme Court on the basis of the abstention doctrine. Even if the theories postulated by the U. S. District Court in Sims are valid, they are inapplicable here because Sims involved state action seeking to terminate parental rights. Here we have an individual seeking to establish parental rights. Since the father has the burden of proof, application of a “clear and convincing” standard would result in the imposition of a greater burden on the father than he must now meet under state law.

The father’s reliance on Stanley v. Illinois, supra, is foreclosed by the Texas Supreme Court decision in In Interest of K, supra. After comparing Stanley’s holding with our statutory legitimation provisions, the court found no conflict between the two. It stated:

Stanley does not decree that all unwed fathers have fundamental rights to full parental status or that every statutory discrimination against the unwed father is suspect. The overriding interest of state and courts is the welfare of the affected children. We are not nearly so far down the road to unrestrained egalitarianism as to hold that the Constitution guarantees an unwed father parental rights in violation of the best interests of the child.

In Interest of K, supra, at p. 171. The father’s second point of error is overruled.

In the remaining points of error, the father complains of the trial court’s action in terminating the father’s “parental rights” at the conclusion of the adoption hearing. The father utilizes point three to attack the absence of pleadings and the remaining points to attack the merits of the termination. Of course, the father has no parental rights to terminate. Termination is relevant only between the child and one who occupies the legal status of a parent. Tex.Fam.Code Ann. § 15.02, § 11.01(3) (1975), and § 11.01(8) (Vernon Supp.1978-1979); In Interest of K, supra, at p. 170; In Interest of V._ M.- B.-, 559 S.W.2d 901, 905 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.). Thus, the trial court’s “termination” of the father’s nonexistent rights is superfluous. There were no pleadings requesting termination, and the issue was not tried by consent. In fact, the mother and adoptive father specifically withdrew any request for termination of the father’s rights. Under these circumstances, the trial court should not have included a decree of termination in its judgment granting the adoption.

We, therefore, reform the trial court’s Decree Terminating Parental Rights and Granting Adoption of Stepchild by eliminating from the judgment all language purporting to terminate the parent-child relationship between the child and the biological father. Our action in doing so, however, should not be construed as holding that the father has any parental rights in the child; he does not. We sustain the father’s third point of error. The remaining points of error are overruled as moot and the judgments of the trial court, as reformed, are affirmed.

      . We are aware, of course, of the presumption of legitimacy which initially attached to the child because his mother was married when he was conceived and when he was born. Thompson v. Thompson, 572 S.W.2d 761, 763 (Tex.Civ.App.—Tyler 1978, no writ). However, the facts establishing the illegitimacy are undisputed. The trial court so found and no complaint is made of that finding.

      . In Interest of K was decided under the voluntary legitimation statute as it read before section 13.21 was amended to specifically require consideration of the best interest of the child. The Texas Supreme Court recognized, however, that the determination of the child’s best interest is inherent in the proceeding, whether stated in the statute or not. In Interest of K, 535 S.W.2d 168, 170 (Tex.1976).

      . Although the Family Code does not require notice to the biological father of an illegitimate child in an adoption proceeding concerning the child, section 11.09(b) of the Family Code gives the trial court discretion to require such notice. In addition, Rogers v. Lowry, 546 S.W.2d 881, 884 (Tex.Civ.App. — Houston [1st Dist.] 1977, no writ) holds that due process does require that the biological father be afforded notice and opportunity to be heard. We are not required to decide that question since the father in this case appeared, answered, was present at the adoption hearing with counsel and had full opportunity to be heard. Certainly the procedure dictated by Rogers v. Lowry, supra, is preferable because it will, as it has here, foreclose due process questions about notice.


text:
    Howard HESS, d/b/a Hess Construction Company, Appellant, v. AMERICAN STATES INSURANCE COMPANY and Economy Insurance Company, Appellees.
    No. 9036.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1979.
    Rehearing Denied Nov. 21, 1979.

      Larry S. Parnass, Irving, for appellant.
    Blankenship & Potts, John A. Stewart, Dallas, for American States Ins. Co. and American Economy Ins. Co., appellees.
    Coke & Coke, E. Russell Nunnally, Dallas, for Roger Finholt, appellee.
   DODSON, Justice.

Howard Hess d/b/a Howard Hess Construction Company appeals from a judgment rendered in favor of American States Insurance Company and American Economy Insurance Company in the amount of $9,400 plus interest as therein provided. He also appeals the take-nothing portion of the judgment decreed against him in favor of Roger Finholt, his third party defendant. We affirm the judgment.

In the process of developing a land use project in the City of Irving, Texas, Roger Finholt was required to extend Glenwich Street a distance of approximately 650 feet. The City’s installation, specifications required, that the street be cut, filled, graded, paved, curbed, guttered and backfilled. In addition to the paving, Finholt was required to install certain sewage pipelines for the project. He engaged Hess to do the paving and sewage installation. Finholt and Hess executed two contracts, one covering the paving work and the other pertaining to the sewage work. The paving contract required Hess to complete the work according to the City’s specifications. On behalf of Hess, American States Insurance Company through its subsidiary American Economy Insurance Company issued performance and payment bonds to the City and Finholt as obligees. As a part of the bonding transaction, Hess gave the bonding companies an indemnity agreement.

Before the City accepted the installation, portions of the concrete paving sank. The parties agreed that the depressions in the paving were caused by erosion in the pavement subsurface and that faulty backfilling caused the erosion. The City withheld acceptance of the paving installation, asserted a claim under the performance bond and called on the bonding companies to remedy the installation. The bonding companies requested Hess to remedy the installation. He declined claiming that the faulty installation was not totally attributable to him. The bonding company hired another contractor to repair and complete the paving work to the City’s satisfaction. The total cost to the bonding companies for completing the work was $7,500.

The bonding companies filed suit against Hess to recover the $7,500 and attorney’s fees under the indemnity agreement. Hess answered by general denial and further alleged that no free soil was available to complete the backfill work, that Finholt agreed to provide the backfill and assume full responsibility for completion of the backfill work, and that Finholt never completed the backfill which caused the soil to erode under the concrete paving which in turn caused the pavement to sag. He also alleged that the original damage to the pavement could have been remedied for no more than $1,000 and that the City of Irving and the bonding companies delayed for several months causing additional expenses in alleviating the problem.

Hess filed a third party action against Finholt alleging, in essence, the matters set forth in his defenses to the bonding companies’ action on the indemnity agreement. He also alleged that Finholt failed and refused to pay him $2,900 due under the original construction contract between them. He asked for indemnity from Finholt on the bonding companies’ actions, the $2,900 and attorney’s fees.

Finholt answered Hess’s actions with a general denial and alleged the statute of limitations, the statute of frauds, failure of consideration and full payment as affirmative defenses. He also filed a counterclaim against Hess, alleging damages in the amount of $1,839.25 for expenses incurred as a result of Hess’s failure to complete his contract. In the judgment, the trial court decreed that Finholt take nothing on his counterclaim against Hess. Finholt does not appeal from the judgment.

The case was tried by the court with a jury. The jury found that Hess did not fail to perform in accordance with the terms and conditions of the 6 December 1973 paving contract; that he did not fail to complete the clean-up operation called for by the paving contract; and that he did not fail to perform in accordance with the terms and conditions of the sewage installation contract dated 7 February 1973. The jury also found that $5,000 was a reasonable cost to repair the depressions in the street in question and that $1,900 was a reasonable attorney’s fee for the bonding companies. The bonding companies filed a motion for judgment notwithstanding the jury’s verdict on the issues save and except the jury’s favorable answer that $1,900 was a reasonable attorney’s fee. The trial court granted the motion.

Hess brings only two points of error challenging that portion of the judgment favorable to the bonding companies. First, he maintains that “the trial court erred in granting the motion for a judgment non obstante veredicto because there was sufficient evidence presented before the court to sustain the jury verdict rendered.” Assuming arguendo that the evidence supports the answers the court disregarded in rendering judgment, the court would be authorized to disregard those answers if they were immaterial to Hess’s liability. See C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). Hess’s liability to the bonding companies on the indemnity agreement must be determined by the provisions of the agreement. Central Surety & Ins. Corp. v. Martin, 224 S.W.2d 773, 776, (Tex.Civ.App.—Beaumont 1949, writ ref’d). Pertinent parts of the indemnity agreement are as follows:

SECOND: The Contractor and Indem-nitors shall exonerate, indemnify, and keep indemnified the Surety from and against any and all liability for losses and/or expenses of whatsoever kind or nature (including, but not limited to, interest, court cost and counsel fees) and from and against any and all such losses and/or expenses which the Surety may sustain and incur: (1) By reason of having executed or procured the execution of the Bonds. . . . Payment by reason of the aforesaid causes shall be made to the Surety by the Contractor and Indem-nitors as soon as liability exists or is asserted against the Surety, whether or not the Surety shall have made any payment therefor. . . . [T]he Surety shall be entitled to charge for any and all disbursements made by it in good faith in and about the matters herein contemplated by this Agreement under the belief that it is or was liable for the sums and amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether or not such liability, necessity or expediency existed; and that the vouchers or other evidence of any such payments made by the Surety shall be prima facie evidence of the fact and amount of the liability to the Surety.
SIXTH: In the event of any breach, delay or default asserted by the obligee in any said Bonds, . . . the Surety shall have the right, at its option and in its sole discretion and is hereby authorized, with or without exercising any other right or option conferred upon it by law or in the terms of this Agreement, to take possession of any part or all of the work under any contract or contracts covered by any said Bonds, and at the expense of the Contractor and Indemnitors to complete or arrange for the completion of the same, and the Contractor and In-demnitors shall promptly upon demand pay to the Surety all losses, and expenses so incurred.

(Emphasis added).

Hess admits that he signed the indemnity agreement. The uncontroverted evidence establishes inter alia that the bonding companies executed the bonds on behalf of Hess; that the City of Irving and Finholt were obligees under the bonds; that under the bonds, the City asserted a breach, delay or default on the paving installation; and that the bonding companies completed or arranged for the repairs and completion of the work. The uncontroverted evidence also establishes that the bonding companies made demand upon Hess for indemnity of the funds expended in repairing and in completing the work, that Hess did not indemnify the bonding companies for the expenses, and that the bonding companies incurred attorney’s fees in bringing the action. Consequently, the jury found that $1,900 was a reasonable attorney’s fee for the bonding companies.

The jury found four issues favorable to Hess. These findings are set forth above. In essence, the jury determined that Hess did not fail to perform the construction contracts according to their terms and conditions and that $5,000 was a reasonable amount to repair the street in question. The jury’s verdict on these issues does not establish any defense to the bonding companies’ action on the indemnity agreement. An actual default by Hess on the construction contracts resulting in liability on the performance bonds is not a condition precedent to the bonding companies’ right of recovery on the indemnity agreement. Ford v. Aetna Ins. Co., 394 S.W.2d 693, 698 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.); Central Surety & Ins. Corp. v. Martin, 224 S.W.2d 773, 776 (Tex.Civ.App.—Beaumont 1949, writ ref’d).

Hess plead that the bonding companies and the City failed to use due diligence in repairing the street, and that by using due diligence the street could have been repaired for no more than $1,000. The un-controverted evidence shows that the bonding companies incurred and expended $7,500 in repairing and completing the street installation. The jury found that $5,000 was the reasonable cost to repair the street but this jury finding is rendered immaterial by the good faith provision of the indemnity agreement, in the absence of pleadings and proof of bad faith or fraud by the bonding companies. The good faith provision is stated in paragraph 2(1) which is quoted above. In construing a good faith provision with similar import as paragraph 2(1) in the agreement before us, the court in Central Surety & Insurance Corp. v. Martin, supra, at 776 said: “[W]e are confronted with the well-nigh inescapable conclusion that the parties to this bond [indemnity agreement] have lodged in the indemnitee a discretion limited only by the bounds of fraud.”

Hess did not plead or prove fraud and he does not now contend that the bonding companies acted fraudulently or in bad faith in undertaking to remedy the street, or incurring expenses in the amount of $7,500 to repair it. Under the circumstances, we overrule Hess’s first point of error.

In his second point of error, Hess maintains that “the trial court erred in failing to require a jury finding on the fact issue as to whether or not appellant Hess failed to instruct the appellee insurance companies to defend him against the claim, as required in paragraph 13 of the indemnity agreement.” Paragraph 13 of the indemnity agreement provides:

THIRTEENTH: The Surety shall have the right to adjust, settle or compromise any claim, demand, suit or judgment upon the Bonds, unless the Contractor and the Indemnitors shall request the Surety to litigate such claim or demand, or to defend such suit, or to appeal from such judgment, and shall deposit with the Surety, at the time of such request, cash or collateral satisfactory to the Surety in kind and amount, to be used in paying any judgment or judgments rendered or that may be rendered, with interest, costs, expenses and attorney’s fees, including those of the Surety. (Emphasis added).

Hess did not plead or offer any evidence that he requested the bonding companies to litigate the claim or defend a suit on the claim, or to take any such action on the claim. Nor does he assert compliance with the deposit provision in paragraph 13. In his brief, he claims the matter was raised in his closing argument which comes too late in the proceedings. The record shows that he did not plead this defense as required by Rule 94 of the Texas Rules of Civil Procedure and that he did not request an issue on this defense as required by Rule 279 also of the Texas Rules of Civil Procedure. Under the circumstances, we must conclude that he waived the defense. Accordingly, the second point is overruled.

In his third point of error, Hess complains that “the trial court committed reversible error in failing to grant a new trial against third party defendant, Roger Fin-holt, in that defendant Hess was not allowed to phrase his submission of jury issues in such a way that the jury would have an opportunity to answer issues against the third party defendant.” By this point, Hess maintains that the trial court committed reversible error by refusing to give three requested special issues, which he relies on to establish liability against Finholt. Five “request to submit special issue” forms appear in the transcript but none of the requests are signed by the judge. The record does not show that any of the requests were presented to the judge or that a ruling was made on any of the requests. Thus, we must overrule Hess’s third point. Tex.R.Civ.P. 272, 276; see American Pozzolan Corp. v. Desert Trucking Co., 450 S.W.2d 433, 435 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.).

In summary, Hess’s three points of error are overruled. Accordingly, the judgment is affirmed.

COUNTISS, J., not participating.


author: OSBORN, Justice.

text:
    Richard L. CHANDLER, d/b/a Skyline Plumbing and Hardware, Appellant, v. James E. GILLIS and Clarence Williams, Appellees.
    No. 6928.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 31, 1979.
    Rehearing Denied Nov. 21, 1979.

      Richard L. Chandler, El Paso, pro se.
    Calhoun, Morton, Deason & Preslar, Charles A. Deason, Jr., Scott, Hulse, Marshall & Feuille, Frank Feuille, IV, El Paso, for appellees.
   OPINION

OSBORN, Justice.

This appeal is from a summary judgment denying recovery in a suit seeking both actual and exemplary damages for alleged perjured testimony given by the two Appel-lees in another case where a judgment was recovered against the Appellant. We affirm.

In a suit styled “Carnes Company v. Richard L. Chandler, d/b/a Skyline Plumbing and Hardware,” the Appellees herein, James E. Gillis and Clarence Williams, both testified adversely to the position of Mr. Chandler. As a result of that testimony, he filed this suit alleging:

This is a suit sounding in Tort wherein joint and several tortfeasors Gillis and Williams committed a civil wrong against Plaintiff Chandler by giving perjured testimony in a civil law suit, .

The prayer at the end of that pleading requests:

[T]hat on final hearing, this Court find that Defendants did give perjured testimony in Cause Number 77-6473 and as a result of this tortious action Plaintiff sustained actual damages in the amount of $9,426.63 and examplary damages in the amount of $18,852.72, and that the Court enter judgment in favor of Plaintiff Chandler against Defendants, jointly and severally, ...

Each Defendant filed an answer denying the allegations and each filed a Motion to Dismiss, or, in the alternative, Motion for Summary Judgment. It was asserted in these motions that the petition failed to state a cause of action, and the motion by Williams asserted that judgment in the case where he testified was res judicata on the issue raised in this case. Chandler filed a response in opposition to the Motions to Dismiss and Motions for Summary Judgment. He specifically asserted a right to amend and replead if his pleadings were defective. The Court, after a hearing, entered an order decreeing “that Defendants’ Motions to Dismiss or, in the alternative, Motions for Summary Judgment, be in all things granted and sustained, and the Plaintiff’s cause of action against said Defendants is hereby dismissed, . . .” Appellant was given no right to amend his pleading.

In Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), the Court recognized that the provisions of a special exception, which permit a right to amend, should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings failed to state a cause of action. That rule is universally accepted by the courts of this State. Smith v. Ortman-McCain Company, 537 S.W.2d 515 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.); Goettee v. McConnell, 535 S.W.2d 396 (Tex.Civ.App.—Beaumont 1976, no writ). But, in the Herring case the Court recognized that a party may plead himself out of court by pleading facts which affirmatively negate his cause of action. In such cases, it is proper to grant a motion for summary judgment.

Quite clearly, under the law of this State, any communication made in the course of a judicial proceeding is absolutely privileged and immune from civil liability for damages, and this includes perjured testimony. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942); Clark v. Grigson, 579 S.W.2d 263 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.); Morris v. Nowotny, 398 S.W.2d 661 (Tex.Civ.App.—Austin 1966, writ ref’d n. r. e.); Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.), cert. denied 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962).

The Appellant, relying upon the holding in Morgan v. Graham, 228 F.2d 625 (10th Cir.,1956), asserts that a civil action in tort may be based upon perjured testimony if all elements necessary to maintain such an action are present. The footnote in that particular case makes reference to 70 C.J.S. Perjury § 93, p. 559. That text recognizes that, under some statutes, an action will lie for damages sustained through perjury resulting in a judgment against the party suing. But, the Court’s opinion in Morris v. Taylor, supra, makes it clear that there is no statutory provision in Texas creating such a right.

Certainly, there are those cases upon which a summary judgment may be based upon the pleadings alone. Morris v. Hargrove, 351 S.W.2d 666 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.), and Schroeder v. Texas & Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ.App.—Dallas 1951, no writ), which are cited in the Herring case are examples of such cases. Also, see Dallas County Flood Control District v. Benson, 157 Tex. 617, 306 S.W.2d 350 (1957). We conclude that the Appellant pled facts which affirmatively negated his cause of action. In any event, the error in granting the Motions for Summary Judgment without providing a right to amend was harmless error where the pleading could not be amended to state a cause of action since such a cause of action does not exist in this State. 4 McDonald, Texas Civil Practice sec. 17.26.8 at 154 (1971).

The Appellant’s points of error 1, 2, 3 and 5 are overruled. It is not necessary for us to pass upon the fourth point of error with regard to the plea of res judicata, but, if that issue were necessary to a decision of the case, we would sustain the point of error and hold that that plea could not be a basis for the summary judgment which was entered in this case.

The judgment of the trial Court is affirmed.

STEPHEN F. PRESLAR, C. J., not sitting.


author: McCLOUD, Chief Justice.

text:
    Kenneth Eugene McDONALD, Appellant, v. GLITSCH, INC., et al., Appellees.
    No. 5358.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 1, 1979.
    Rehearing Denied Nov. 15, 1979.

      Bob Shoemaker, J. Thomas Melton, Dallas, for appellant.
    Robert H. Bezucha and Joe Hill Jones, Carter, Jones, Magee, Rudberg, Moss & Mayes, Thomas L. Cantrell, Schley & Cantrell, Dallas, for appellees.
   McCLOUD, Chief Justice.

This is a summary judgment case. Plaintiff, Kenneth Eugene McDonald, sued Glitsch, Inc. and three of its executives, L. E. Azzato, Chairman of the Board; Robert C. McKelvy, President; and Layton Kitter-man, Vice President, for libel under Tex. Rev.Civ.Stat.Ann. art. 5430, and for defamation by libel and slander under common law. Plaintiff alleged that the defendants published false information about him which defamed his personal character and professional reputation. The trial court granted defendants’ motion for summary judgment. Plaintiff appeals. We reverse and remand.

Glitsch is in the business of designing equipment for refineries and chemical plants. Glitsch executives had been receiving information from sources indicating that some Glitsch information was being leaked to a competitor. McKelvy received information that indicated that plaintiff was the leak. Plaintiff was called into the office of Azzato. Kitterman and McKelvy were also present. Azzato told plaintiff that, “We have been advised by someone that there was a charge against him, (plaintiff) that he (plaintiff) was passing company information on to our competition." Plaintiff denied the charge and Azzato asked plaintiff to take a “lie detector” test. A second meeting was held between the same parties at which time plaintiff signed a “disciplinary notice” which provided in part, “We have received information from an outside source which states that you are the source of leakage of company information.” Plaintiff alleged that defendants published and disseminated this information to many persons in and outside the company. Plaintiff refused to take the lie detector test. Glitsch terminated plaintiff as an employee. There is evidence that the original charge against plaintiff was uttered by an employee of a competing company. There was evidence that “rumors” circulated throughout the company that plaintiff' was discharged because he passed company information to a competitor.

Plaintiff contends the court erred in granting the summary judgment because the summary judgment proof failed to establish as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. We agree.

Defendants first argue the summary judgment was proper because truth is a defense to libel or slander, and they “had received information stating that McDonald was leaking Glitsch information.” When confronted with a similar argument, the court in Dement v. Houston Printing Co., 14 Tex.Civ.App. 391,.37 S.W. 985 (Tex.Civ.App.—1896, no writ) stated:

One who publishes a defamatory statement made by another cannot justify by proving that the other made the statement. By publishing it, he becomes responsible for his own act in doing so, and, if he seeks to justify, he must prove the truth of the charge published. Townsh. Sland. & L. §§ 210-212; Odgers, Sland. & L. pp. 161, 164, 172; Cooley, Torts, p. 220. “The truth, however, which is admitted as a defense is the truth of the defamatory matter, in substance and in fact, and in the sense in which it was used and was intended to be understood. If A. says of X. that he is a thief, and C. publishes that A. said X. was a thief, in a certain sense C. would publish the truth, but not in the sense which would constitute a defense. C.’s publication would in fact be but a repetition of A.’s words, which as we have seen, would not be a defense. The truth which, in such a case, would amount to a defense, would be that X. was a thief.”

See also Houston Chronicle Publishing Co. v. Wegner, 182 S.W. 45 (Tex.Civ.App.—Galveston 1915, writ ref’d) wherein the court says:

Every repetition of a slander is a willful publication of it, rendering the speaker liable to an action. Talebearers are as bad as talemakers.

Defendants next argue their summary judgment proof established as a matter of law that they had a conditional privilege, and in order for plaintiff to defeat the summary judgment he had the burden of presenting summary judgment proof of malice or want of good faith. We disagree.

Our Supreme Court in Jackson v. Cheatwood, 445 S.W.2d 513 (Tex.1969) said:

The trial court granted defendant’s motion for summary judgment in this libel action, the proof establishing a qualified privilege of the defendant but standing silent as to the presence or absence of actual malice. On trial of the cause, it would be the burden of plaintiff to prove his allegation of actual malice. The Court of Civil Appeals has reversed the judgment and remanded the cause for trial, on the grounds that the defendant as movant had to negative the plaintiff’s cause of action. 442 S.W.2d 789. Since the defendant, though enjoying a conditional privilege, would be liable if actuated by malice, it must fall to him to establish the absence of malice on his motion for summary judgment.

See also Zarate v. Cortinas, 553 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1977, no writ); Bridges v. Farmer, 483 S.W.2d 939 (Tex.Civ.App.—Waco 1972, no writ).

Defendants also urge that plaintiff cannot rely upon malice because plaintiff did not plead that defendants acted with malice in his first amended original petition. Plaintiff’s written “Response” to defendants’ motion for summary judgment clearly and fairly raised the issue of malice. City of Houston v. Clear Creek Basin Authority, Tex., 589 S.W.2d 671 (1979).

The summary judgment proof does not establish as a matter of law the defense of truth or the absence of malice. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

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