author: CHADICK,. Chief Justice.

text:
    In the Matter of J. R. C.
    No. 8279.
    Court of Civil Appeals of Texas, Texarkana.
    April 15, 1975.
    Rehearing Denied April 29, 1975.

      Ronald Ned Dennis, Kirkpatrick, Grant, Dennis & Reed, Marshall, for appellant.
    Sam Baxter, Crim. Dist. Atty., Marshall, for appellee.
   CHADICK,. Chief Justice.

The Criminal District Attorney of Harrison County, Texas, filed a petition in the Juvenile Court of such county in which it was represented to the court “ . that because of the seriousness of the offense, the welfare of the community requires that the Juvenile Court waive jurisdiction and have J. R. C. transferred to the 71st Judicial District Court for criminal proceedings . . . ”. In five subsequent paragraphs the instrument alleged the grounds for waiver' of jurisdiction and transfer. Notice, summons, and procedures prerequisite to a valid hearing are unquestioned. A hearing ensued which is fully reported in the statement of facts and transcript in the appeal record. At the conclusion of the hearing the juvenile judge entered the following order:

“On the 2nd day of July, 1974, came on to be considered the petition complaining of J. R. C., whom the Court finds to be a child born on the 3rd day of September, 1958, and being 15 years of age at the time the act upon which the petition is founded is alleged to have occurred and at the present time being 15 years of age, and the Court further finds that said act would be a felony under the laws of the State of Texas if committed by an adult, and the Court after diagnostic study, social evaluation and full investigation, is of the opinion that it is contrary to the best interest of said child and to the public to retain jurisdiction. And the Court, after taking judicial notice of the trial by jury to determine fitness to proceed and the verdict returned by the jury in such hearing on the 11th day of June, 1974, is of the opinion that the following order should be entered:

“THEREFORE, I, Don Stokes, Judge of the Juvenile Court of Harrison County, Texas, hereby certify said child, J. R. C, to the Criminal District Court of Harrison County, Texas, for proper criminal proceedings and included herein and made a part of this certification is this written order, the same being the findings of the Judge of the Juvenile Court of Harrison County, Texas, and said certification is hereby accompanied by a complaint against the said child accusing him of a felony offense, to-wit: Murder, of which said offense the said Criminal District Court has jurisdiction.

“It is further ORDERED of the said Juvenile Court of Harrison County, Texas, that the Clerk of the said Juvenile Court transmit forthwith to the Criminal District Court of Harrison County, Texas, this written order and findings of said Juvenile Court of Harrison County, Texas, and said complaint attached hereto.”

Court appointed counsel for J. R. C. have briefed fifteen points of error which they agree presents two basic questions for decision. It is insisted first that the hearing was not conducted in accordance with V.T.C.A. Tex. Family Code, Sec. 54.02 because the juvenile judge did not make inquiry into and consider the matters assigned for consideration in Subsection (f) thereof and failed to state specific reasons for waiver as required by Subsection (h). Second, sufficiency of evidence to support the findings of the Juvenile Court is the issue.

Delinquent children and children in need of supervision are the subjects of special statutory law in Texas. V.T.C.A. Tex. Family Code, Title III. Waiver of the Juvenile Courts’ exclusive original jurisdiction of proceedings in this field (and transfer of a child to an appropriate district or Criminal District Court for criminal proceedings) must be determined in a statutory judicial proceeding in accordance with procedure statutorily prescribed. The relevant statute or statutes must be complied with in detail. 1, Tex.Jur.2d Actions, Section 84; V.T.C.A., Tex. Family Code, Section 51.01(5). In construing a similar enactment the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) declared that determination of whether or not to transfer a child from the statutory structure of the Juvenile Court to the criminal processes of the District Court is “critically important”. The court there approved language of another court saying that it “. . . is implicit in [the Juvenile Court] scheme that noncriminal treatment is to be the rule — and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.” And in further discussion of the District of Columbia’s Juvenile Court Act, which is identical in part and otherwise closely resembles the Texas enactment, the Supreme Court’s majority opinion said: “The theory of the District’s Juvenile Court Act, like that of other jurisdictions, is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge.” The issues in this case must be discussed within the frame of reference of these principles as they are affected by the Legislature’s sometime quixotic activities in this field.

Initially, notice must be taken of the provisions of the Family Code as they touch upon the questions before this court. On the subject of waiver and transfer to criminal courts, the code provided in part as follows:

“54.02 Waiver of Jurisdiction and Discretionary Transfer to Criminal Court

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

(1) the child is alleged to have violated a penal law of the grade of felony;

(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and

(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.

(¾) ⅜ ⅜ ⅜

(c) * * *

(d) ⅜ ⅜ ⅜

* * *

(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) whether the alleged offense was committed in an aggressive and premeditated manner;

(3) whether there is evidence on which a grand jury may be expected to return an indictment;

(4) the sophistication and maturity of the child;

(5) the record and previous history of the child; and

(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

(g) * * *

(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

It is clearly stated in Sec. 54.02 Subsection (a) that on proper petition, notice and summons a Juvenile Court may waive its exclusive original jurisdiction and transfer a child to an appropriate district court for criminal proceedings when there is a conjunction of the prerequisites to such waiver as set out therein. Except failure to recite or find that no adjudication hearing had been conducted concerning the offense charged, the recitals and findings in the Juvenile Court’s order, earlier reproduced herein, appears to substantially meet the requirements of Sec. 54.02, Subsection (a).

Of more potential for error, the recitals and findings incorporated in the order do not affirmatively show that in making its waiver determination the Juvenile Court considered all matters that are enumerated for consideration in Sec. 54.02, Subsection (f). The statute sets out six fields of investigation but the order, by reciting diagnostic study and social evaluation shows, at most, that only one of the six enumerated fields, was considered that is “the sophistication and maturity of the child.” The effect of such omission will be considered in later discussion.

On waiver of jurisdiction Subsection (h) requires the Juvenile Court to state specifically its reasons therefor. Whether this Subsection was complied with must be inquired into. Subsection (a), as previously mentioned, permits waiver only when certain facts or circumstances are found to exist, among them, when the court finds the welfare of the community requires criminal proceedings because of the seriousness of the offense or the background of the child. A recitation to such effect is a reason for waiver but Subsection (h) seems to contemplate more. At a Tex. Tech University Symposium on the Texas Family Code reported in 5 Tex.Tech L. Rev. 564 a commentator, who assisted in drafting Section 54.02, said:

“Subsection (h) is identical to Tex.Rev. .Civ.Stat.Ann. art. 2338-1, § 6(j). It specified the procedures to be used when a juvenile court decides to transfer jurisdiction to the criminal court. The language that the juvenile court ‘shall state specifically in the order its reasons for waiver’ is new. This follows the general principle in Title 3 that whenever a juvenile court exercises discretion in making decisions, it must reveal in its order the reasons for exercising discretion. See, for example, section 54.04(f) and 54.05 (i). The committee’s draft stated that if the juvenile court waives jurisdiction ‘it shall briefly state in the order its reasons for waiver.’ The fact that the Legislature changed ‘briefly state’ to ‘state specifically’ indicates that it contemplated more than merely an adherence to printed forms and, indeed, contemplated a true r relevation of reasons for making this discretionary decision.”

At the time of enactment of Section 54.-02 the Legislature had for guidance the opinion in Kent, supra. Therein the necessity that the Juvenile Court order reveal the motive that actuated it, as a factor in appellate court review, is explained and emphasized. Referring to the reviewing Court, it is there said:

“It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.”

Additionally, when jurisdiction is waived, the Juvenile Court is required to certify “ . . . its action, including the written order and findings of the court . ”. Nowhere in Subsection (h), or elsewhere in Section 54.02, is there a provision referring to or requiring written findings. Perhaps previous language in the sentence from which the quotation is taken, that requiring the Juvenile Court to state specifically in its order the reasons for waiver, might be so construed. But if findings are one and the same as reaons such findings would necessarily be a part of and be in the certified order. It is not reasonable to conclude that the Legislature intended to require findings to be certified as part of the order and then a second time in separate written form. No reason for duplication appears. The wording of the statute indicates the Legislature intended for the Juvenile Court’s reasons and its findings to be distinguishable.

Finally, it is concluded that the Legislative intent of Subdivision (h) is that when the Juvenile Court waives jurisdiction the reasons for waiver, as reasons are hereafter defined, are to be incorporated in the order. By the words reasons for waiver the Legislature meant that the Juvenile Court must set out the rationale of its order, and that is, the rational basis of the court’s conclusion or motive that constrains entry of the order waiving jurisdiction. The Juvenile Court in this instance, it may be seen by reference to its order, failed to do so.

To sum up, besides giving reasons for waiver in its order the Juvenile Court has a mandatory duty to file findings covering matters actually considered, including all matters mentioned in Subsection (f), and to certify such order and findings to the appropriate district court. This is not to say that findings are to be made in a field of investigation where no facts are obtainable, but such findings should show an investigation in every material field was undertaken and the result thereof. In the absence of such an order and findings, a reviewing court is “remitted to assumptions”. Where a complete record as contemplated by Section 54.02 is before the appellate court no stumbling block is perceived to a review as in other civil cases. See Section 56.01.

Rigid adherence to the governing statutes is mandatory in proceedings of this nature. Too, Kent appears to support a proposition that a meaningful review does not permit the reviewing court to rest its decision upon the usual presumptions of regularity in proceedings in the trial court. The reasons motivating the Juvenile Court’s waiver of jurisdiction must expressly appear. Earlier, the details of deficiencies in compliance with Subsections (a), (f) and (h) were noticed. Failure of the Juvenile Court to respond to the commands of these statutes leaves this court no alternative to reversal of the judgment herein. It is so ordered, and the proceeding is remanded for new trial.

Reference has been made to the quixotic efforts of the Legislature in this field. The record of the appellate courts is no better. A compassionate regard for children and their rights, and a proper regard for law enforcement and public tranquility has inspired a search in all sectors for simple solutions to complex questions. The end is not in sight. Local law enforcement authorities, the district attorneys, and the Juvenile Courts have had little to guide them through the chaotic condition of this developing field of law. Differences of opinions in interpretation of the statutes and procedures to be followed are to be expected. Perseverance is the only course to be followed by those charged with responsibility under the Texas Family Code.

       In compliance with V.T.C.A. Tex. Family Code, Sec. 56.01 the name of the alleged child has been deleted and initials substituted throughout this opinion.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    BOIS D’ARC ISLAND LEVEE IMPROVEMENT DISTRICT NO. FOUR OF DALLAS AND KAUFMAN COUNTY, Appellant, v. C. D. SHEPHERD et ux., Appellees.
    No. 819.
    Court of Civil Appeals of Texas, Tyler.
    April 24, 1975.

      Morgan, Shumpert, Huff, Philipps, Mosley & Co., Kurt A. Philipps, Kaufman, for appellant.
    Clyde Elliott, Jr., Canton, of counsel; Elliott & Bass, Canton, Wynne & Wynne, Wills Point, Harold Hollingsworth, Kaufman, for appellees.
   McKAY, Justice.

This is a condemnation suit brought by appellant Bois d’Arc Island Levee Improvement District No. 4 of Dallas and Kaufman County against appellees, C. D. Shepherd and wife. Appellant took as a permanent easement approximately 13 acres of land on the extreme lower portion of appellees’ 139-acre tract. The parties stipulated that the date of taking was November 22, 1967.

The cause was tried before a jury. In response to the four special issues submitted by the court, the jury found as follows: (1) that the condemned 13-acre easement had a market value of $750.00 per acre immediately before the taking and (2) had a market value of $50.00 per acre immediately after the taking; (3) that the 126-acre remainder had a market value of $750.00 an acre immediately before the taking, and (4) had a market value of $650.00 an acre immediately after the taking. Judgment was rendered in favor of the ap-pellee landowners for $30,448.50, which included a judgment of $21,700 based on the jury findings plus 6% interest from the date of taking, on $21,600. (One Hundred Dollars had previously been placed in the registry of the court pursuant to the findings of the Special Commissioners.)

We affirm the judgment of the trial court.

Appellant brings only two points. In one, it maintains that the trial court erred in overruling the motion for new trial because there is no evidence to support the jury’s answer to Special Issues 2 and 4 and in its other point appellant maintains that there is insufficient evidence of probative value to support the jury’s answer to Special Issues 2 and 4. In Special Issue 2, the jury was asked to find the market value per acre of the condemned 13-acre easement immediately after the taking. In Special Issue 4, the jury was asked to find the market value per acre of the 126-acre remainder immediately after the taking. Appellant argues that there is insufficient competent evidence primarily because the testimony of the witnesses called by appel-lees was speculative and not based on reasonable probabilities.

When the contention is made that there is no evidence of probative force to support a finding by the trier of facts, the appellate court 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).

When the contention is made that evidence is insufficient to support the jury findings, a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the findings of a vital fact. See Calvert, “No Evidence and Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 366 (1960).

The condemnation proceedings were for the purpose of deepening the channel of the East Fork of the Trinity River in an area known as Parsons Slough. As a basis for their valuation of the 13-acre easement and 126-acre remainder before the taking, expert witnesses called by appellees, testified to sales of comparable nearby property. The jury’s findings in regard to the valuation of the property before the taking are not questioned.

The following chart shows the testimony of the witnesses on values before and after the taking and also the values set by the jury:

WITNESS BEFORE AFTER BEFORE AFTER
Ferguson $700 per acre $25 per acre $700 per acre $550 per acre
Robinson $800 per acre $25 per acre $800 per acre $490 per acre
Walling $150 per acre $200 per acre $300 per acre $300 per acre
Akin $150 per acre $300 per acre $300 per acre $300 per acre
Shepherd $1000 per acre $10 per acre $1000 per acre $500 per acre
Godwin $800 per acre $50 per acre $800 per acre $675 per acre
Issue No. 1 Issue No. 2 Issue No. 3 Issue No. 4
VERDICT $750 per acre $50 per acre $750 per acre $650 per acre

In regard to Special Issue 2, Ferguson, who qualified as an expert witness, testified that the condemned 13-acre easement is a bog hole and an area grown in willows. He stated that the condemned 13-acre easement must be fenced off to keep cattle out and that it cannot be used for fishing or recreation. Although he valued the condemned 13-acre easement at $25.00 an acre immediately after the taking, he said that the estimate was merely a token value because the land was no longer good for anything.

Robinson, who qualified as an expert witness, testified that the condemned 13-acre easement was worthless to appellees. Appellee Shepherd stated that after the taking, the condemned 13-acre easement was just something to hold the two pieces of land together.

In regard to Special Issue 4, witness Ferguson testified that the remaining 126 acres was damaged because appellee had to build a fence to keep his cows out of the condemned area and because appellee had to build another water tank for his cattle. He testified that the 6 acres south of the easement were damaged because water stands on about an acre or an acre and a half of it; that after the construction was performed on the condemned area, the water could not drain effectively; and that before the taking, the property was a fishing site or a beautiful scenic site with trees, but that after the taking, the property was no longer in that condition. He stated that immediately after the taking, appellees would lose the buyer who would be interested in the 126-acre remainder as a fishing area or scenic site. In addition, Ferguson said that the remainder was damaged because the condemnor took the right of ingress and egress.

Witness Robinson testified that the 126-acre remainder was damaged because the taking of the 13-acre easement leaves 6 acres completely cut off from the rest of appellees’ land and because the construction of the condemned easement area created an unsightly place out of what was originally a pretty place. He stated that the construction changed “a beautiful recreation area down near the slough to an undesirable sore eye situation down on the lower side * * He further testified that the remainder was damaged because the easement included the right of ingress and egress and that easements always help to destroy value. He stated that there could have been a better construction job and that the condemnor had not kept its construction work up too well; that there is approximately an acre of ground standing in water that does not drain out; that appellees had to build a fence to keep their cattle out of the bog; and that appellees had to dig a pond to provide water for their cattle. Robinson further testified that in his opinion before the taking the highest and best use of the property was either for subdivision or for a private recreation area, but that after the taking the property was not suitable for either use.

Appellee Shepherd testified that he had a stock pond built; that he built a fence along the easement; that because of the easement, approximately an acre of the remainder is covered in water so deep that it cannot be cultivated; and that the con-demnor has the right of ingress and egress on his remainder and that the condemnor has had that right for seven years before the trial.

We do not believe that the testimony of the witnesses, which we have discussed, is incompetent. In Tennessee Gas Transmission Co. v. Dishman, 303 S.W.2d 471, 478 (Tex.Civ.App.—Beaumont, 1957, writ ref’d, n. r. e.), the court quotes with approval from State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 199, 200 (1936), the following test for admissibility of evidence in regard to the differing market values of the remainder before and after the taking:

“ ‘ * * * the parties would have the right to introduce evidence of everything that would tend to affect the value of the land, in the estimation of a proposed purchaser, or that would tend to make it more or less valuable to the present owner, such as the shape in which the tract will be left; the increased amount of fencing, if any, that will be required; the increased expenditures made necessary to provide water; the added facilities, if any, provided for travel to the owner of the land.
“ ‘Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. Evidence should be excluded relating to remote, speculative, and conjectural uses, as well as injuries, which are not reflected in the present market value of the property.’ ”

The cost of additional fencing, establishing water places, and other items of similar nature necessitated by the construction of the easement do not constitute a measure of damage and are not recoverable as distinct items of damage. However, evidence of this nature is admissible, and is entitled to be accorded its proper probative force in determining whether the tract of land as a whole has been damaged. State v. Carpenter, supra, p. 198. The issue of depreciated market value is largely a matter of opinion evidence and a wide range of factors may be considered by qualified witnesses as a foundation for their opinion. South Texas Electric Cooperative, Inc. v. Ermis, 396 S.W.2d 955, 958 (Tex.Civ.App.—Corpus Christi, 1965, no writ); Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151, 155-56 (Tex.1950).

After considering only the evidence and inferences tending to support the findings and disregarding all evidence and inferences to the contrary, we believe that there is evidence of probative force to support the jury’s answers to Special Issues 2 and 4.

After considering all of the evidence, we do not believe that the evidence is factually insufficient to support the jury’s answers to Special Issues 2 and 4. Appellant’s points are overruled.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    BIARD OIL COMPANY et al., Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY et al., Appellees.
    No. 814.
    Court of Civil Appeals of Texas, Tyler.
    April 17, 1975.

      A. Webb Biard, Paris, for appellants.
    John L. Hill, Atty. Gen. of Texas, John T. Richards, II, Asst. Atty. Gen., Austin, for appellee, The State of Texas.
    Ramey, Flock, Hutchins, Grainger & Jeffus, Jack W. Flock, Mike A. Hatchell, Tyler, for appellee, St. Louis Southwestern Railway Co.
    No brief filed for appellee, The Woodward Co., a division of Mead Corp.
   DUNAGAN, Chief Justice.

This suit was brought by St. Louis Southwestern Railway Company against Biard Oil Company, Robert Glynn Sullivan, G. L. Skidmore and Phillips Petroleum Company. In accordance with the verdict of the jury the court rendered judgment against Biard Oil Company and Robert Glynn Sullivan. From this judgment Biard Oil Company and Sullivan appealed. However, only Biard Oil Company has filed a brief.

Defendants, Skidmore and Phillips Petroleum Company, filed pleas of privilege which were sustained by the trial court and the cause of action against them was severed and transferred to other counties.

The appeal is from a judgment for property damage on a jury verdict finding Biard Oil Company’s truck driver, Robert Glynn Sullivan, at fault in a crossing accident on the outskirts of Tyler, which caused extensive damage to property of the Cotton Belt Railroad.

The appeal is before this court on the transcript and a statement of facts abbreviated under the provisions of Rules 377 and 377a, Texas Rules of Civil Procedure.

The evidence shows that a member of the crew was killed, another died after the accident and a “dead-heading” trainman also lost his life in the accident.

Damages being stipulated, only liability issues were submitted to the jury.

Appellant, Biard Oil Company, predicates its appeal upon one point of error which asserts (1) that the trial court erred in not granting in toto appellant’s motion in limine precluding the railroad from showing that two of its employees, who were passengers on a train which collided with appellant’s truck, were killed in, or as a result of, the accident, and (2) the failure of the court to grant a mistrial because of the railroad’s reference during argument to the fact that its employee-witnesses were deceased.

It is never error for a trial court to overrule a motion in limine which seeks to preclude the introduction of evidence. The party opposing the admission of certain evidence still has the burden of interposing a specific objection at the time the evidence is tendered and appeal from its admission over his objection. K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex.Civ.App., Beaumont, 1974, writ dism.); Central Power & Light Co. v. Martinez, 493 S.W.2d 903, 906 (Tex.Civ.App., Corpus Christi, 1973, n. w. h.); Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App., Dallas, 1971, ref’d, n. r. e.); City of Wichita Falls v. Jones, 456 S.W.2d 148, 150 (Tex.Civ.App., Fort Worth, 1970, n. w. h.); Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963).

Appellant, Biard Oil Company, complains of the court’s failure to grant its motion for mistrial during argument to the jury because appellee in its argument referred to the death of two witnesses. The deceased witnesses referred to were employees of the railroad.

It is well settled that a party’s failure to call an employee-witness who has, or was in a position to have, relevant information about the subject of litigation, may give rise to the presumption that the absent witness’ testimony would be unfavorable to his employer. Thus, it is always permissible for a party to explain the absence of an employee-witness. Ligon v. Green, 206 S.W.2d 629, 630 (Tex.Civ.App., Fort Worth, 1947, n. w. h.); Weatherford, M. W. & N. W. Ry. Co. v. Duncan, 88 Tex. 611, 32 S.W. 878, 879 (1895); 56 Tex.Jur.2d p. 598, sec. 260. The record shows that the appellee proved the death of its employee-witnesses to explain the absence of their testimony at the trial and such proof was received without objection from the appellants.

Counsel’s reference to the death of its employee-witnesses was not reversible error because (1) the evidence explaining the absence of the witnesses was permissible and it was proper for counsel to at least comment on the evidence during his argument to the jury without dwelling upon the matter. State v. Wheeler, 390 S.W.2d 339, 341 (Tex.Civ.App., Beaumont, 1965, writ ref’d, n. r. e.); Plains Creamery v. Denny, 277 S.W.2d 755, 763 (Tex.Civ.App., Amarillo, 1954, writ ref’d, n. r. e.); (2) a motion for mistrial directed to the argument of counsel is not shown by the record to have been overruled by the court and, thus, no error in regard to the motion is preserved for review. Transport Insurance Company v. Nunn, 375 S.W.2d 484, 487 (Tex.Civ.App., Houston, 1964, writ ref’d, n. r. e.); (3) the motion for mistrial was not timely. It was made at the close of the railroad’s opening argument, much too long after the comment to which it was directed, and there was no request that the jury be requested to disregard the comment. Brazos River Authority v. Berry, 457 S.W.2d 79, 80 (Tex.Civ.App., Tyler, 1970, writ ref’d, n. r. e.); Missouri, K. & T. Ry. Co. of Texas v. Nesbit, 43 Tex.Civ.App. 630, 97 S.W. 825, 828 (1906, writ ref’d); and (4) under no conceivable analysis of this record could it be said that the innocuous reference to the death of the railroad’s employees was calculated to or probably did cause the jury to return an improper verdict. Rule 434, Texas Rules of Civil Procedure; H. E. Butt Grocery Company v. Quick, 442 S.W.2d 798, 802 (Tex.Civ.App., San Antonio, 1969, writ ref’d, n. r. e.). Appellant's point of error is overruled.

By cross-point appellees urge us to assess 10% of the amount in dispute as damages as provided for in Rule 438, T.R.C.P., for a frivolous appeal taken for the purpose of delay.

It has long been the general rule in this State that a motion for damages for delay, or for frivolous appeal, has the effect of opening up the entire record in the case, requiring the appellate court to inspect the record and notice any errors, whether assigned or not, and to assess damages only in the event the court concludes from the whole record that the appeal was not taken in good faith, but for delay only. National Surety Corporation v. Stakes, 350 S.W.2d 900 (Tex.Civ.App., Austin, 1961, n. w. h.); Grimes v. Robitaille, 288 S.W.2d 211 (Tex.Civ.App., Galveston, 1956, writ ref’d, n. r. e.); Texas State Life Ins. Co. v. Aparicio, 129 S.W.2d 794 (Tex.Civ.App., San Antonio, 1939, n. w. h.); Oilmen’s Reciprocal Ass’n v. Coe, 6 S.W.2d 1046 (Tex.Civ.App., Eastland, 1928, n. w. h.). There are exceptions to this rule which we do not deem to be applicable to the case at bar.

Only a partial statement of facts is on file in this court. In the absence of a complete record of the proceedings in the trial court by which this court by an inspection thereof may conclude from the whole record that the appeal was taken for delay and that there was no sufficient cause for taking such appeal, this court is without authority to make an award of 10% of the amount in dispute as damages under Rule 438. Davidson v. Butler, 519 S.W.2d 511 (Tex.Civ.App., Fort Worth, 1975, n. w. h.) and authorities therein cited; Platzer v. Platzer, 383 S.W.2d 260 (Tex.Civ.App., Houston, 1964, n. w. h.); National Surety Corporation v. Stakes, supra.

In order to obtain damages under Rule 438, it is necessary for the moving party to file a complete record of the proceedings in the case below, if none is otherwise filed. Texas State Life Ins. Co. v. Aparicio, supra. Appellee is in the position of an appellant with respect to its cross-point. Charter Oak Fire Insurance Company v. Adams, 488 S.W.2d 548 (Tex.Civ.App., Dallas, 1972, writ ref’d, n. r. e.).

Appellees’ motion to award an additional 10% penalty as damages under Rule 438 is denied.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Ex parte C. W. LOFTIN.
    No. 847.
    Court of Civil Appeals of Texas, Tyler.
    April 3, 1975.

      Fenley, Bate & Newman, Kelly L. Newman, Lufkin, for relator.
    L. Michael Thompson, Tyler, for respondent.
   MOORE, Justice.

This is a habeas corpus proceeding whereby Relator seeks to be discharged from confinement in the Smith County jail by virtue of a certain county order of the Judge of the Court of Domestic Relations of Smith County, Texas.

On January 8, 1975, in a divorce suit still pending in the Court of Domestic Relations in Smith County, Relator was ordered to make child support payments for his two minor children in the amount of $330.00 per month with the first payment being payable on January 15, 1975, and a like payment being payable on the 15th day of each month thereafter.

On February 11, 1975, Relator being in arrears on the payments, was cited, upon the complaint of his wife, to “show cause why he should not be held in contempt.” The matter was heard by the trial court on March 11, 1975. After hearing the evidence the trial court adjudged Relator in contempt for failure to make the January and February child support in the amount of $660.00. The trial court’s judgment directed that Relator be committed to the Sheriff of Smith County for confinement until Relator purged himself of contempt by paying $660.00 in the registry of the court due as child support as set forth in the January 8th order, and the further sum of $150.00 as attorney’s fees for the services of his wife’s attorney. Relator was confined to jail on March 11, 1975. On March 14, 1975, this court issued its writ of habeas corpus and fixed the amount of the bond required by Relator at $1,000.00. The same date Relator furnished bond and was released from custody.

We granted the writ of habeas corpus primarily upon Relator’s representation that he was involuntarily unable to pay the amount ordered by the court.

Relator urges by his first point of error that the judgment of January 8th ordering him to make monthly child support payments is void in that it violates his right of procedural due process. While he acknowledges that he was duly served with notice of the hearing and failed to answer or appear, he contends that procedural due process requires that he be given notice of the judgment. He takes the position that since he was not given notice of the terms of the judgment ordering him to pay child support, he was denied due process and that the judgment is therefore invalid. We overrule the contention.

The notice essential to due process is original notice giving jurisdiction. After jurisdiction has attached, a party to the suit has no constitutional right to demand notice of the judgment entered by the court. 16A C.J.S. Constitutional Law § 619, p. 803; State v. National Bank of Cleburne, 116 Tex. 214, 288 S.W. 435 (Tex.Com.App., 1926). Having notice of his wife’s application for an order for child support, Relator must be held to have had constructive notice of the judgment of January 8th setting the child support payment.

By his second point Relator urges that the judgment on March 11, 1975, holding him in contempt and ordering him to jail is void because the evidence taken at the contempt hearing shows that he was involuntarily unable to pay the amount ordered for child support and had no means of raising the funds necessary to purge himself of contempt. The point is without merit and is overruled.

We recognize that the power to administer punishment which is tantamount to life imprisonment cannot be exercised by the courts where it is not within the power of a person to perform. Ex parte Rohleder, 424 S.W.2d 891 (Tex.Sup.1967); Ex parte Ramzy, 424 S.W.2d 220 (Tex.Sup.1968).

The habeas corpus power of this court does not extend to the determination of fact issues. Ex parte Reid (Ex parte Lytle), 99 Tex. 405, 89 S.W. 956 (1905); Ex parte Olson, 111 Tex. 601, 243 S.W. 773 (1922). An original habeas corpus proceeding in this court is a collateral attack on the contempt decree entered by the trial court. Whether a person can or cannot perform as ordered by a court becomes a question of law only in those instances when, from an examination of the evidence, reasonable minds cannot differ as to the conclusion that he cannot perform as ordered. It is only when the proof adduced at the hearing establishes the controlling issue — in this case, Relator’s inability to comply with the court’s order, as a matter of law, that this court can regard the order of commitment as being invalid for the reason that a court may not deprive a person of his liberty for failure to comply with a coercive order when performance is impossible. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953); Ex parte White, 154 Tex. 126, 274 S.W.2d 542 (1955); Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956); Ex parte Rohleder, supra.

In the instant case the evidence shows that Relator’s eldest child is approximately three years of age with the youngest being an infant born on January 25, 1975. Relator’s wife testified that since the date of the separation incAugust, 1974, Relator had given her only $30.00. Relator does not deny that he failed to make the payments ordered by the court. He admitted that after the date of the separation in August, 1974, he had become engaged and had given his fiancee a $120.00 diamond ring.

Relator’s testimony discloses that he is regularly employed with a monthly income of $875.00. His take home pay amounts to $421.88 per month. His principal excuse for not having paid child support is based on his testimony that his monthly living expenses; payments on the parties’ mobile home; payments on a pickup truck, boat, two bank notes; and a note to his father amounts to $504.38 per month, which leaves him nothing to contribute to his children. While evidence shows that all of the personal property is mortgaged, the evidence further shows that the parties own a one-acre tract of land upon which the mobile home is situated which is not mortgaged. The land has a value of $1,000.00. The evidence also shows that Relator’s employer withholds $35.50 per week from his salary for a credit union. The evidence does not show whether this is in payment of a debt or some type of savings account. The evidence further shows that his employer withheld $20.00 per week from his salary for payment to a hospital. There is no explanation of this deduction.

There is no testimony as to whether any of the personal property could be sold at a price in excess of the indebtedness against it. There is no testimony that the one-acre tract of land could not be sold for enough to make the support payments. While Relator was enjoined from disposing of the property, Relator made no effort to have the injunction lifted for the purpose of selling enough property to purge himself of contempt. Nowhere in his testimony did Relator testify that he was unable to borrow the money either from his father, the credit union or the two banks he did business with, nor did he offer any testimony showing that he did not own separate property not mentioned in the divorce proceeding.

The trial court impliedly found that Relator failed to discharge his burden of proof that he was involuntarily unable to pay the amount he was in default. While involuntary inability to comply with the support order is a good defense, the evidence must be such as to conclusively establish involuntary inability to perform as a matter of law. Ex parte Rohleder, supra. Relator had the burden of presenting evidence from which only one reasonable conclusion can be drawn, namely, that he did not have the money, and also that he has no source from which he might reasonably be expected to obtain enough money to pay the sum ordered. Ex parte Kominczak, 470 S.W.2d 304 (Tex.Civ.App., Houston, 1st Dist., 1971). As we view the record, the evidence falls short of conclusively establishing such facts. In these circumstances the judgment rendered by the trial court ordering Relator imprisoned until he purges himself will not be disturbed.

It is ordered that Relator be remanded to the Sheriff of Smith County to be by him confined under the order of the Court and that Relator pay all costs of this proceeding.


author: COULSON, Justice.

text:
    HOME INDEMNITY COMPANY et al., Appellants, v. Jean TYLER et al., Appellees.
    No. 1126.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 9, 1975.
    Rehearing Denied April 30, 1975.

      Don Weitinger, Robert H. Steelhammer, Weitinger, Steelhammer & Tucker, Houston, for appellants.
    Glenn Vickery, Ben Ramey, Houston, for appellees.
   COULSON, Justice.

This suit for personal injuries involves uninsured motorist coverage as provided by Vernon’s Tex.Ins.Code Ann. art. 5.06—1 (Supp.1975).

Jean Baughman Tyler was the owner of an automobile covered by a Family Protection Insurance Policy issued by Home Indemnity Company to Jean Tyler, as named insured. Said policy of insurance contained the standard uninsured motorist provisions. On June 26, 1971, the said automobile was being driven by Sharon Baugh-man, the daughter of Jean Baughman Tyler. Jean Baughman Tyler was a passenger in the automobile. The automobile driven by Sharon Baughman was struck by a car driven by Helen Marie Carmichael. As a result of the collision, both Sharon Baughman and Jean Baughman Tyler (hereinafter plaintiffs) suffered personal injuries. Each plaintiff instituted suit for recovery of her damages.

The first amended original petitions filed by each plaintiff allege that Helen Marie Carmichael did not carry public liability insurance, and that, therefore, the uninsured motorist provisions of the Family Protection Insurance Policy issued by Home Indemnity Company to the plaintiff, Jean Tyler, were effective. The first amended original petition of each plaintiff named Helen Marie Carmichael and the Home Indemnity Company as defendants. The plaintiffs each sought to recover $75,000 actual damages and $75,000 exemplary-damages. The two suits were ordered consolidated.

On May 21, 1974, trial was had before a jury. Although Helen Marie Carmichael answered the petition of each plaintiff, she neither appeared in person nor through her attorney at the trial of the case. After the presentation of evidence, and in response to special issues, the jury found “that the act of the Defendant HELEN MARIE CARMICHAEL in failing to keep her car completely in the right half of the roadway, was a proximate cause of the occurrence in question” and that such conduct “was a heedless and reckless disregard of the rights of others affected by it.” The jury further found that Jean Tyler suffered actual damages totaling $6,115.04 and that she was entitled to an award of $2,000 exemplary damages. The jury further found that Sharon Baughman suffered actual damages totaling $4,166.37 and that she was entitled to an award of $2,000 exemplary damages. Upon this jury verdict, the trial court entered judgment on July 31, 1971, that Jean Tyler and Sharon Ann Baughman recover from Home Indemnity Company and Helen Marie Carmichael, and either of them jointly and severally, the sum of $14,281.41, with interest thereon from date of judgment and all costs of court.

The defendant Home Indemnity Company has perfected its appeal from the final judgment entered by the trial court.

Home Indemnity Company asserts as its first point of error “The Trial Court erred in failing to grant Appellant’s Motion for Judgment NOV.,” and as its second point of error, “There was no evidence in the record that Carmichael was an uninsured motorist.” Home Indemnity Company asserts in its motion for judgment n.o.v., its motion for new trial, and in its brief, that the plaintiffs failed to offer any proof that the alleged tort feasor, Helen Marie Carmichael, was an uninsured motorist.

Ordinarily, in order to recover under the uninsured motorist provisions of an insurance policy, the plaintiff has the burden of proving that the tort feasor is an uninsured motorist. Pan American Fire & Casualty Company v. Loyd, 411 S.W.2d 557 (Tex.Civ.App.-Amarillo 1967, no writ); Johnson, Proving Motorist Uninsured, 35 Tex.B.J. 337 (1972). In the case before this Court, the record contains no evidence that the plaintiffs met this burden of proof. However, the judgment states that:

When this cause was tried, Mr. Wei-tinger told the Jury on Voir Dire that there was no issue on the question of Defendant, CARMICHAEL’S status as an uninsured motorist. In open Court, both as the trial was beginning, and as the charge was being drawn, Mr. Wei-tinger told the Court that whether Defendant, CARMICHAEL was uninsured was not an issue.

(Mr. Weitinger is the attorney for Home Indemnity Company.)

The defendant, Home Indemnity Company, did not attack the recital by the trial judgment that counsel representing Home Indemnity stated in open court that there was no issue on the status of Carmichael as an uninsured motorist. Texas Rules of Civil Procedure 372 provides for a “Bill of Exception” to make such an attack. The unimpeached recital in the judgment is, therefore, binding upon this Court. Hutchison v. East Texas Oil Co., 167 S.W.2d 205 (Tex.Civ.App.-Galveston 1943, writ ref’d w.o.m.); Hart v. Foster, 109 S.W.2d 504 (Tex.Civ.App.-Fort Worth 1937, writ dism’d). The appellant’s first two points of error are accordingly overruled.

The third point of error asserted by Home Indemnity Company states “The Judgment for exemplary damages against Home Indemnity Company is for damages not covered by the policy of insurance under the uninsured motorist coverage provision.” Home Indemnity Company argues that such an award contravenes public policy by allowing an innocent party to be punished for the wrong doings of a third party tort feasor.

In Dairyland County Mutual Ins. Co. v. Wallgren, 477 S.W.2d 341 (Tex.Civ.App.-Fort Worth 1972, writ ref’d n.r.e.) the court held that an insurance company which had agreed to:

. pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: . . . bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by any person; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile .

was liable to the plaintiff for exemplary damages adjudged against the insured. In that case the court focused primarily upon the language of the contract in determining that the insurer should be held liable. The court did not deal with the public policy concerns which have led courts of some states to refuse to hold insurance companies liable for exemplary damages and which are urged upon us in this case. See Note, 10 Hous.L.Rev. 192 (1972).

The contract language involved in this case is almost identical to that in the Dairyland County case. Article 5.06-1 requires automobile liability insurance policies to provide uninsured motorist coverage within the limits described by Vernon’s Tex.Rev.Civ.Stat.Ann. art. 6701h, § 21(b)(2) (Supp.1975). In conformity with the statutes, the standard uninsured motorist provisions state that the insurer will “pay all sums which the insured . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile. ...”

The uninsured motorist laws are remedial in nature and should be interpreted liberally. Hamaker v. American States Insurance Co. of Texas, 493 S.W.2d 893 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref’d n.r.e.).

The contract provisions call upon the insurance company to pay the insured “all sums which the insured shall be legally entitled to recover. .” The public policy considerations which might stand against indemnifying a wrongdoer are not relevant to the considerations in the present case. There is no public policy against an insurance company’s promise to pay an insured the amount which the insured party has become entitled to recover because of the recklessness of some third party. The plaintiffs in this case have been adjudged to be legally entitled to recover exemplary damages from the operator of the uninsured automobile and it is the insurer’s contractual obligation to pay those exemplary damages. The appellant’s third point of error is overruled.

Affirmed.


author: O'QUINN, Justice.

text:
    David HILL et al., Appellants, v. Ralph RICH, Appellee.
    No. 12201.
    Court of Civil Appeals of Texas, Austin.
    April 30, 1975.
    Rehearing Denied May 14, 1975.

      James E. Puntch, Jr., Paul W. Jones, Jr., Austin, for appellants.
    Jack F. Cook, Jr., Austin, for appellee.
   O'QUINN, Justice.

David Hill and Joe Kanetzky, appellants, brought this suit against Ralph Rich, the appellee, in March of 1973 to compel specific performance of a contract of sale under which appellants sought to purchase from Rich a tract of land comprising about 47 acres in Travis County.

Rich moved for summary judgment, and appellants filed affidavits in opposition to the motion. The trial court granted appel-lee’s motion for summary judgment in February of 1974 and entered judgment that appellants take nothing by their suit to require specific performance.

Appellants bring three points of error under which contentions are made that there was no evidence upon which summary judgment could have been granted and that there existed genuine issues of material facts and appellee was not entitled to judgment as a matter of law. We will overrule the points of error and affirm the judgment of the trial court.

After suit was filed in district court, an intervention was entered by Cesar Jiminez, and Rich filed his cross action against George Webb. The trial court, before entering summary judgment that appellants Hill and Kanetzky take nothing against Rich, severed from that cause the action of the intervenor and the cross action of Rich against Webb and directed that such cause be docketed separately. This appeal is limited therefore to the controversy between Hill and Kanetzky as plaintiffs below and Rich as defendant.

In addition to the two affidavits filed by the appellants, in opposition to the motion for summary judgment, the record includes the oral deposition of Appellant Hill. But on appeal appellants, under their first point of error attacking the judgment for want of evidence to support it, argue that the deposition was “incompetent to prove anything” because at the time of the hearing Hill had not sworn to the deposition and it had not been filed in the cause within the meaning of Rule 74, Texas Rules of Civil Procedure. Appellants insist that only the affidavits of Hill and Kanetzky may be resorted to in search for evidence to support the judgment, and that the affidavits “show on their face that at a minimum there is a genuine question as to a material fact.”

The record shows that Hill’s deposition was taken on April 4, 1973, ten months prior to the hearing on summary judgment early in February of 1974, and that counsel for both parties were present and participated in the taking of the deposition. The reporter who took the deposition signed and swore to the deposition on September 14, 1973, nearly five months prior to the hearing on summary judgment. At the hearing in February of 1974 counsel for appellee read from the deposition, without objection by appellants, and the trial court recited in the judgment that the deposition had been considered, again without objection or exception by appellants in either their motion for new trial or their amended motion for new trial. Objection to the deposition on appeal is made ancillary only to the evidentiary point.

On June 11, 1974, Appellant Hill signed and swore to the deposition, stating that he had “read the foregoing deposition and that this deposition is a true record of my testimony given at this deposition.” Two days later the deposition was filed with the district clerk in the cause, prior to filing of the record of appeal in this Court on June 18, 1974.

In their contention that the deposition was improperly considered by the trial court, and may not be considered on appeal, appellants rely on the decision in O’Byrne v. Oak Park Trust and Savings Bank, Oak Park, Ill., 450 S.W.2d 411 (Tex.Civ.App. Beaumont 1970, writ ref. n. r. e.). In that case the court pointed out that the deposition of Mrs. Davis “was simply acknowledged, not supported by her affidavit; and even if we were to consider it as a deposition, the most it did was to raise a fact issue . . . ” The court observed that “The unsworn deposition of Rita Jagnow Davis is incompetent to prove anything.” The court also held thri necessary parties had not been joined and remanded the cause.

The Supreme Court, in a per curiam opinion, disagreed on the question of necessary parties, and refused the application for writ, no reversible error, with the statement, “We agree that respondents are entitled to a trial on the merits.” (457 S.W.2d 277) Both the headnote and the first syllabus of the Supreme Court’s opinion indicate a holding that “affidavits and depositions raised fact issue as to mental capacity of grantor.” The only deposition before the trial court was that of Mrs. Davis, and the opinions do not reflect at what stage of the proceedings objection, if any, was made to consideration of the deposition. In a concurring opinion, two justices of the court of civil appeals simply stated, “It is apparent from a consideration of our record that it was error for the trial court to grant the motion for summary judgment.” (450 S.W.2d 419) (Emphasis added)

The record in this appeal clearly indicates that if the defects relating to Hill’s deposition were formal irregularities which, upon timely objection being made, could have been cured without necessity of delay in trial, then appellants have waived the defects. 2 McDonald: Texas Civil Practice, sec. 10.02.16, p. 505 (1970), and cases cited. Appellants do not contend that the testimony Hill gave in his deposition was not properly recorded by the reporter who swore to it, and Hill himself later swore to the deposition without change or correction.

Even if Hill, prior to trial, had refused to swear to the deposition, mere absence of his signature alone would not be ground for suppressing the deposition. Bryan v. United States Fire Insurance Company, 456 S.W.2d 702, 707 (Tex.Civ.App. Corpus Christi 1970, writ ref. n. r. e.). Mere lack of signature will not justify suppression of a deposition, even when timely motion is made, unless the reasons for not signing impugn the verity or reliability of the depostion. Bell v. Linehan, 500 S.W.2d 228, 230 (Tex.Civ.App. Texarkana 1973, writ ref. n. r. e.).

Hill’s deposition was completed and awaited his signature at the time of the hearing. The deposition therefore does not fall within the rule stated in Brewington Typewriter Company v. Southwestern Bell Telephone Co., 428 S.W.2d 847, 850 (Tex.Civ.App. Houston 1st 1968, no writ), following decision of the Supreme Court in Richards v. Allen, 402 S.W.2d 158 (Tex.Sup.1966). In that case the deposition was incomplete and, therefore could not have been signed by the deponent, sworn to by the reporter, nor filed in the cause.

Requirements with respect to return of the deposition to the court are designed merely to protect the integrity of the document and guard it against alterations. 2 McDonald: Texas Civil Practice, sec. 10.02.15, p. 503 (1970), and cases cited. Appellants make no contention now that the deposition, even when unsigned and not filed, did not faithfully reflect Hill’s testimony.

Appellants contend only that the deposition may not be considered and that appellate review of the evidence must be limited to the affidavits Hill and Kanetzky filed in opposition to the motion for summary judgment. The two affidavits are identical with respect to the facts stated. The essential facts surrounding the transactions of appellants with Rich are, in brief:

1. Appellants “made a written offer to purchase the property ... on or about January 19, 1973 . . . ”

2. “ . . . Rich rejected our original offer and tendered a written counter-offer received January 21 ... We neither rejected nor accepted the counter-offer at that time.”

3. “On the morning of January 23 [we] accepted the counter-offer orally in a telephone conversation with Mr. Rich and in writing by initialing his written counter-offer . . . ”

4. “Without notice and unknown to us . . . Rich, subsequent to making his counter-offer to us but prior to our acceptance of that counter-offer, had contracted and bound himself to sell said property to a third party.”

Under the facts appellants swore to in their affidavits, Rich was free to withdraw his counter-offer at any time prior to acceptance by appellants as prospective purchasers and thus prevent any contract from arising between Rich and appellants. Bowles v. Fickas, 140 Tex. 312, 167 S.W.2d 741, 743 (1943); Antwine v. Reed, 145 Tex. 521, 199 S.W.2d 482 (1947).

Appellants concede in their brief that “ . . . there is the question as to whether Appellee withdrew his counter-offer prior to Appellants’ acceptance . [and] if it was properly revoked prior to acceptance, then the case need go no further.” Appellants argue that the revocation was ineffective if not communicated to appellants, and a “fact question . must be determined” as to whether “ . . . Appellants had notice of the withdrawal” by Rich of his counter-offer. Appellants rely on the decision in Bowen v. Speer, 166 S.W. 1183 (Tex.Civ.App. Galveston 1914, no writ). In that case the offeror specified a time limit and his offer was accepted effectively by mail within the time specified, unlike the present case, and that holding is not in point.

It is settled that if the counteroffer by Rich contained no limitation as to the time of acceptance, appellants had the .burden to plead and prove that their acceptance was made within a reasonable time. Texas Pipe Line Co. v. Miller, 84 S.W.2d 550, 551 (Tex.Civ.App. Eastland 1935, no writ), and authorities cited. We find that appellants pleaded withdrawal of the counter-offer without notice to them, but did not plead that they were entitled to a reasonable time in which to accept the counter-offer, or that the counter-offer contained a specific time limit and that the acceptance came within that time.

Appellants insist that under their affidavits they have raised a fact issue as to notice of the withdrawal. Since under the evidence, even limited to affidavits of the appellants, Rich showed himself entitled to summary judgment as a matter of. law, the judgment may not be denied “simply because the appellants have alleged matters which, if proved, would require its denial.” Appellants had the burden to offer evidence sufficient to raise the issue of acceptance within a reasonable time. Pearce v. Fort Worth and Denver Railway Employees’ Hospital Association, 488 S.W.2d 903, 905 (Tex.Civ.App. Fort Worth 1972, no writ), citing, Gulf, Colorado and Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958) and Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960).

The oral acceptance by appellants, after the counter-offer had been withdrawn, was insufficient because the acceptance was not in writing. Section 26.01, Texas Business and Commerce Code, V.T.C.A. (formerly Art. 3995, subsec. (4), Statute of Frauds). “To form a binding contract, it must appear that the party to whom the offer is made accepts such offer and communicates such acceptance to the person making the offer; and, in the case of an offer to buy or sell land, the acceptance must be in writing.” (Emphasis added) American National Insurance Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1164 (1938), citing and quoting form Patton v. Rucker, 29 Tex. 402.

The facts drawn from appellants’ affidavits, and without considering the deposition of Hill, which we find not to be in conflict with the affidavits, are sufficient to support the summary judgment as a matter of law. The oral acceptance by appellants of appellee’s counter-offer did not make a binding contract for sale of the land, and there could have been no contract until acceptance had been made in writing and delivered to appellee. Prior to acceptance by appellants, even orally, appellee had withdrawn his counter-offer, which was his right in the absence of a specified time limitation for acceptance, and if appellants believed they were not accorded a reasonable time in which to accept, they failed to plead and prove entitlement to and performance within such reasonable time.

The facts as stated in the affidavits are uncontroverted, and we find no genuine issue of material facts.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Jack N. PRICE, d/b/a Longview Abstract and Title Company, Appellant, v. The STATE BOARD OF INSURANCE et al., Appellees.
    No. 12254.
    Court of Civil Appeals of Texas, Austin.
    April 16, 1975.

      Jack N. Price, Price, Fisher, Patton & McLemore, Longview, for appellant.
    John L. Hill, Atty. Gen., David W. Pace, Asst. Atty. Gen., Austin; Mike A. Hatch-ell, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellees.
   PHILLIPS, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellees.

Appellant, Jack N. Price, doing business as Longview Abstract and Title Company, a title insurance agent, was required to secure bond for its escrow officers under the terms of Article 9.45, Vernon’s Ann.Texas Insurance Code.

Pursuant to the statute, appellant obtained a bond entitled “Texas Escrow Officers Schedule Bond” from the St. Paul Fire and Marine Insurance Company, one of the appellees here. The other appellee is the Texas State Board of Insurance.

A schedule attached to this bond listed Lynn S. Patton and Elizabeth Barnett as licensed escrow officers. This suit was brought on the bond due to the alleged misapplication or embezzlement of some $21,485.63 by the escrow officer Elizabeth Barnett.

At the same time the above-described bond was executed, appellant also entered into an indemnity agreement with appellee insurance company wherein appellant agreed to hold the company harmless “from and against every claim, demand, liability, loss, costs, damages, expenses and attorneys’ fees whatever, and any and all liability therefor, sustained or incurred by the company by reason of executing said bond or bonds . . .”

Appellant brings this appeal contending that the trial court erred in rendering summary judgment denying mandamus against the State Board of Insurance to comply with its duties prescribed in Article 9.45, V.A.C.S., and in denying recovery of the penal amount of the escrow officer’s bond written by appellee St. Paul Fire and Marine Insurance Company pursuant to Article 9.45(a) of the Texas Insurance Code.

At the outset, we hold that indemnity agreement signed by appellee has rendered moot both the question of the Insurance Board’s action (or lack thereof) under Article 9.45 and the question of any liability the insurance company might have incurred under the bond. No one seeks recovery under the bond other than appellant who has agreed to hold the company harmless for any liability thereunder. We do note, however, appellant’s contention that under the facts of this case, there is no way in which the appellee can lose, that the premiums paid are simply gratuities and that such a contract is void as being against public policy. We do not agree with this contention. Central Surety & Insurance Corporation v. Martin, 224 S.W.2d 773 (Tex.Civ.App.1949, writ ref’d), states the general rule in Texas that the nature of the indemnitor’s liability under an indemnity contract must be determined by its provisions. The fact that a bond is posted to satisfy the requirement of a statute does not affect the right of a surety to contract for indemnity by the principal, nor does it affect the validity of any indemnity agreement between them, Fidelity & Deposit Co. v. Schelper, 37 Tex.Civ.App. 393, 83 S.W. 871 (1904, no writ). The statute itself defines the public policy involved. It does not proscribe an indemnity contract such as we have here. When the issue of public policy is raised under such a contract, it is the interest other than that of the parties involved that is called into question. Beasley v. Texas & P. Ry. Co., 191 U.S. 492, 24 S.Ct. 164, 48 L.Ed. 274; St. Regis Candies v. Hovas, 117 Tex. 313, 3 S.W.2d 429 (Tex.Comm’n App.1928, opinion adopted). Since a primary purpose of the statute is the protection of the general public in its dealings with title insurance agents, and since the indemnity contract does not touch upon this class in any way, we find no difficulty in following that ancient maxim of the law, “as a man binds himself, so shall he be bound.”

Next, appellant argues that if it is determined that the indemnity agreement should be construed as a release of liability of ap-pellee to the title insurance agent for acts of dishonesty of the escrow officers and is construed not to be contrary to law and void, then appellant contends that it is entitled to trial upon the issue that the execution of the indemnity agreement was induced on the basis of false and willful misrepresentation to the effect that appellant was being provided that type of bond coverage required and provided for in the Insurance Code, and specifically, was being afforded bond coverage for protection of the title insurance agent against acts of defalcation by escrow officers. Appellant contends that this misrepresentation prevented appellant from securing a bond that would provide such coverage and protection, and has caused appellant a direct actual loss in the penal sum of the bond, i. e., the sum of $10,000.

Although appellee maintains that the foregoing point has been waived due to appellant’s failure to raise the issue in a formal point of error, we find that the issue has been adequately raised in the body of appellant’s brief, consequently, we will pass upon it.

Appellant contends in its petition that the Escrow Officers Schedule Bond was obtained pursuant to a request that the ap-pellee insurance company issue a “policy in compliance with the law, and provide whatever is required by law. When it was delivered it was represented by the agent of the St. Paul Fire and Marine Insurance Company that the bond was in compliance with the law, and that the coverage envisioned by and specified in the law was being afforded ... It was based upon this representation, and the direct representation that the Plaintiff-Title Insurance Agent would be protected by the Escrow Officers Schedule Bond for loss

In Mitchell v. Small, 45 S.W.2d 403 (Tex.Civ.App.1931, no writ), the party alleging fraud complained that the provisions of a mineral deed had been misrepresented to him. In affirming a directed verdict, this Court held that the defendant’s statements as to what the deed contained could not be construed as misstatements of fact but were questions of law as to what estate passed under the deed and the authority of the defendant in making the mineral lease thereunder. This Court held that such representation as to a question of law could not be made the basis of a charge of fraud. The Court pointed to the fact that the sources of information on the matters complained of were equally open to both parties, no confidential relationship existed between them and the statements complained of were no more than statements of opinion which would not sustain an action for fraud. There were no fact issues in this case to go to the jury. The liability under the bond (now held to be moot) was a matter of law for the court to decide. The only exception to this rule is when a special relationship of trust and confidence exists between the parties and such was not alleged here. Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176 (1939). Also see Lewis v. River Oaks Capital Corporation, 466 S.W.2d 348 (Tex.Civ.App.1971, writ ref’d n. r. e.); Furman v. Keith, 226 S.W.2d 218 (Tex.Civ.App.1949, writ ref’d).

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

Affirmed.

      . Due to the disposition we make of this ease it is not necessary to describe the bond other than to state it was allegedly in compliance with Article 9.45 of the Texas Title Insurance Act requiring the title insurance agent to bond its escrow officers.

      . See Rule 418(b), Texas Rules of Civil Procedure.


author: SHANNON, Justice.

text:
    Robert E. NESMITH et al., Appellants, v. B. B. HESTER et al., Appellees.
    No. 12260.
    Court of Civil Appeals of Texas, Austin.
    April 23, 1975.
    Joe H. Reynolds and Michael B. Lee, Reynolds, White, Allen & Cook, Houston, for appellants.
    Waggoner Carr, Robert L. Crider, Austin, John L. Hill, Atty. Gen., Texas, John C. Madison, III, Asst. Atty. Gen., Austin, Texas, for appellees.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County overruling appellants’ plea of privilege and pertains to Vernon’s Tex.Rev.Civ.Stat.Ann. Art. 1995, § (4), (7), and (29a). We will affirm that judgment.

Appellees, B. B. Hester, Jack W. Flynt, and W. H. McGregor, as directors and on behalf of The American Legion 1971 National Convention Corporation of Texas, filed suit against appellants, Robert E. Nesmith, Walter C. Lee, Lewis W. Emer-ich, O. Sidney Hopkins, and William S. Barber, in the district court of Travis County. Mark W. White, the Secretary of State of the State of Texas, was also named a defendant.

In general, the appellees alleged that The American Legion 1971 National Convention Corporation of Texas, was improperly and illegally dissolved by the appellants acting as the Executive Committee of the Board of Directors. The appellees alleged further that such dissolution exceeded the authority of the Executive Committee. Appellees pleaded that appellants distributed the assets of the corporation among themselves. The appellees averred further that the Articles of Dissolution filed with the Secretary of State were false or fraudulent. The appellees pleaded that the Secretary of State knew of appellants’ efforts to dissolve the corporation “illegally” and with that knowledge, he “wrongfully” issued the Certificate of Dissolution.

By way of relief appellees prayed that the court order the Secretary of State to declare the Articles of Dissolution null and void, that the corporation be declared a “legal entity since its inception to the present,” and that the appellants be divested of the assets of the corporation previously distributed.

The judgment overruling the plea of privilege does not recite the ground or grounds upon which it is based. The appellants did not file a request for findings of fact and conclusions of law.

Appellants have attacked the judgment by three points: (1) venue is not proper in Travis County under Tex.Rev.Civ.Stat.Ann. Art. 1995, § (7); (2) the alleged fraud, if any, is only incidental to the main cause of action; and (3) where there is a doubt -as to whether an exception to the venue statute should be applied, the doubt should be resolved in favor of the defendant.

We will affirm the judgment for the following reason. As previously noticed, appellees in their amended controverting affidavit, averred that venue could be maintained in Travis County under Tex.Rev.Civ.Stat.Ann. Art. 1995, § (4), (7), and (29a). The trial court in the judgment overruling the plea of privilege did not state the ground or grounds on which it was based. On appeal appellants assigned as error only one of the grounds which could have been the basis for judgment overruling their plea of privilege. Wherein a judgment may rest upon more than one ground the party aggrieved by the judgment must assign error as to each such ground or risk having the judgment affirmed on the ground to which no error was assigned. In such situations it is said that the appellant has waived his right to complain of the ruling to which no error is assigned. Independence Ins. Co. v. Republic National Life Ins. Co., 447 S.W.2d 462 (Tex.Civ.App.1969, writ ref’d n. r. e.); Hudson v. Buddie’s Super Markets, Inc., 488 S.W.2d 143 (Tex.Civ.App.1972, no writ); LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App.1966, writ ref’d n. r. e.); Olivier v. Life and Casualty Insurance Co. of Tenn., 440 S.W.2d 398 (Tex.Civ.App.1969, writ ref’d n. r. e.). See City of Deer Park v. State, 275 S.W.2d 77 (Tex.1954), Midway National Bank of Grand Prairie, Texas v. West Texas Wholesale Supply Company, 453 S.W.2d 460 (Tex.1970).

The judgment is affirmed.

Affirmed.


author: BISSETT, Justice.

text:
    Dolly V. HOWELL, Appellant, v. Linwood E. HOWELL, Appellee.
    No. 992.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 30, 1975

      Claire E. Hall, Houston, for appellant.
    Homer R. Taylor, El Campo, for appel-lee.
   OPINION

BISSETT, Justice.

This cause is before us on the Appellee’s Motion to Affirm on Certificate, which has attached to it a certified copy of the judgment rendered by the District Court of Wharton County, together with a Certificate of the District Clerk, all as provided for in Rule 387, Texas Rules of Civil Procedure. The Court finds that the ten day notice fo all parties required by Rule 387 has been given by the Clerk of this Court. The Court was notified by a letter from the appellant that she no longer wished to pursue the appeal.

The District Clerk’s certificate shows that the Final Judgment was filed on August 22, 1974. Notice of appeal was given on August 22, 1974. On September 6, 1974, the district clerk fixed the amount of the bond at $400.00, which bond was subsequently filed. The transcript was requested on October 8, 1974. There was a motion for extension of time to file the record filed with this Court by the appellant on October 24, 1974, which was granted to December 15, 1974. A subsequent motion for extension of time was granted to February 15, 1975. However, nothing else was received by our Clerk until March 27, 1975, when we received the Appellee’s Motion to Affirm on Certificate. Neither the transcript nor the Statement of Facts has ever been tendered to the Court for filing.

The Court finds that this motion is good and that all prerequisities have been complied with. Therefore, the motion to affirm on certificate is granted, with costs assessed against the appellant.


author: McDONALD, Chief Justice.

text:
    Fred MOORE and Harold Hill d/b/a Salon Americus, Appellants, v. Alberto IGLESIAS d/b/a Coiffures by Riley, Appellee.
    No. 5418.
    Court of Civil Appeals of Texas, Waco.
    April 10, 1975.

      Samuel B. Paternostro, Kelsoe & Pater-nostro, Dallas, for appellants.
    Donald A. Muncy, Fiedler & Fortescue, Richardson, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants Moore and Hill from judgment they take nothing in their suit for injunction and damage for breach of a covenant not to compete; and from judgment against them in favor of appellees for $2000.

Appellants Moore and Hill sued appellee Iglesias seeking permanent injunction against Iglesias from competing with appellants in the hairdressing or cosmetology business, in violation of an alleged contract not to compete for one year within a radius of ten miles of appellants’ location; and for $5000. in damages. Iglesias by answer plead failure of consideration, and filed cross action for sums alleged to be due as result of failure of appellants to fully return moneys paid them by appellee.

Trial was to a jury. After appellants’ case was rested appellee moved for instructed verdict that appellants take nothing, which motion was granted by the trial court. The trial court submitted appellee’s cross action to the jury which found; 1) appellee was not paid the total sum of $4000. by appellants for appellee’s interest in the business; 2) the total sum paid was $2000.

The trial court rendered judgment appellants take nothing by their suit, and that appellee recover $2000. on his cross action against appellants.

Appellants appeal on 11 points asserting:

1) The trial court erred in granting ap-pellee’s motion for instructed verdict.
2) The trial court erred in adversely commenting on the credibility ‘of appellants’ witnesses and the weight to be given their testimony in his announcement to the jury that he was taking appellants’ case away from them.
3) There is no evidence and alternatively insufficient evidence to support the jury’s answers to the two special issues submitted.

The case is before us on a partial statement of facts. The court reporter’s transcription of the testimony is before us, but the five exhibits including the contract sued on by appellants, have not been brought forward by the appellants.

In the absence of a statement of facts or in the absence of a complete statement of facts, (which is the appellants’ burden and duty to bring forward), it must be presumed on appeal that the evidence supports the verdict and judgment of the trial court. Ehrhardt v. Ehrhardt, Tex.Civ.App., Er.Ref., 368 S.W.2d 37; Thrasher v. Hensarling, Tex.Civ.App., NWH, 406 S.W.2d 515; Baker v. Rutherford, Tex.Civ.App., NRE, 293 S.W.2d 669; Englander v. Kennedy, S.Ct., 428 S.W.2d 806; Levitz Furniture Co. v. State of Texas, Tex.Civ.App., NRE, 471 S.W.2d 452.

Moreover the court reporter’s transcription of the testimony reflects the evidence ample and sufficient to sustain the jury’s verdict.

All appellants’ points and contentions are overruled.

Affirmed.


author: WEIER, Presiding Judge.

text:
    PAUL LONDE & ASSOCIATES, INC., Plaintiff-Respondent, v. Arthur B. RATHERT and Lester O. Roth, Defendants-Appellants.
    No. 35974.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 18, 1975.
    Motion for Rehearing or Transfer to Supreme Court En Banc Denied April 14, 1975.
    Application to Transfer Denied June 9, 1975.
    Sumner, Hanlon, Sumner, MacDonald & Nouss, Inc., John J. Inkley, Jr., Clayton, for defendants-appellants.
    Klamen, Summers, Wattenberg & Compton, Maureen Swihart, Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Plaintiff is the holder of two promissory installment notes, the first of which (Note A) was executed jointly by both defendants, and the second (Note B) executed by defendant Rathert individually. Plaintiff filed suit for the balance due on both notes, for interest thereon, and for attorney fees expended in collection as provided in the notes. While the case was pending the balance on both notes was paid in full, and judgment was thereafter entered for the interest and attorney fees. Defendants have appealed.

The case was tried to the court on stipulated facts, which in relevant part are as follows:

(1) Both notes were executed in June, 1970, with monthly payments due on the first of each succeeding month and interest to be payable only at maturity.

(2) Both notes contained acceleration clauses providing in the event of default, at holder’s option the balance could be declared immediately payable and the makers would pay all costs of collection, including reasonable attorney fees; that “[fjailure at times to exercise such option shall not constitute a waiver of the right to exercise it later.”

(3) By January 1, 1971 both notes had come into default.

(4) By letter dated January 11, 1971 plaintiff notified defendants that the acceleration option on both notes was being invoked, and immediate payment of the balances due was demanded.

(5) On January 14, 1971 plaintiff filed this suit in the circuit court.

(6) The January installment payment on Note A was paid by check dated January 15, 1971, and deposited by plaintiff on January 19. The late payments on Note B were paid by check dated January 21 and deposited by plaintiff on January 27. On both checks there was a marginal notation to the effect that the payment was for the late installments.

(7) Defendants received a letter from plaintiff dated January 28, 1971, again informing them that the notes had been accelerated and stating that the January payment on Note A would be credited toward the balance due on that note. A similar letter, dated February 4, informed defendants that the February payments, timely paid on both notes, would likewise be credited toward the balance due.

(8) Defendants continued making the monthly payments on both notes, and before judgment was entered both had been paid in full.

Judgment was entered against defendants for interest and attorney fees only. Defendants’ contention on this appeal is that plaintiff, in accepting and depositing the late installment payments in January, waived or rescinded the acceleration clause. Thus it is argued that there was no default upon which to base the judgment.

Where a note contains an acceleration clause that confers upon the holder, after a default in performance by the maker, an option to treat the entire debt as due, and the debtor makes a tender of the amount actually due to the holder, the full amount does not become due merely upon the happening of the default. In such event the holder of a promissory note which is in default and which contains an acceleration clause at the option of the holder must exercise this option before the debtor makes a tender of the amount due. If the holder fails to exercise his option before a proper tender, he may waive or lose his option to treat the entire debt due. Capital City Motors, Inc. v. Thomas W. Garland, Inc., 363 S.W.2d 575, 578[2, 3] (Mo.1962). In that case, which held in favor of the debtor, the late payment was tendered before the holder had invoked the option to accelerate. In the case before us, however, late payments were made after notice of acceleration had been given and suit filed.

So far as we are able to determine, no Missouri case has previously dealt with the issue presented here. Decisions from other jurisdictions which have dealt with this issue are not in complete agreement. Some of the decisions indicate that mere acceptance of late payments does not constitute a waiver of the acceleration. Arata v. Downer, 21 Cal.App.2d 406, 69 P.2d 213, 215[3] (1937); McRae v. Federal Land Bank of Columbia, 36 Ga.App. 51, 135 S.E. 112[4] (1926); Barnwell v. Hanson, 80 Ga.App. 738, 57 S.E.2d 348, 353[7] (1950); Curran v. Houston, 201 Ill. 442, 66 N.E. 228, 230[2] (1903); Van Vlissingen v. Lenz, 171 Ill. 162, 49 N.E. 422, 424 (1897); Dugan v. Manchester Federal Savings & Loan Ass’n, 92 N.H. 44, 23 A.2d 873, 875[6] (1942); Swan v. Jones, 88 Or. 706, 173 P. 249, 250[4] (1918); Henry v. Madison Aerie No. 623, Fraternal Order of Eagles of Madison, Wis., 212 Wis. 589, 250 N.W. 442, 443[2] (Wis.1933). Generally, the reasoning in the above cases seems to be that once the entire balance has become due by reason of the acceleration provision, the holder of the note is entitled to apply any forthcoming payment toward the balance. Other facts and circumstances, however, when taken with the proof of payment, may be considered as factual proof of waiver.

Other decisions have indicated that the acceleration provision of a note or other written obligation is waived by the payment of the amount in default after acceleration. Barday v. Steinbaugh, 130 Colo. 10, 272 P.2d 657 (1954); Colorado Kenworth Corporation v. Whitworth, 144 Colo. 541, 357 P.2d 626, 630[3] (1960); United States v. Colombine Coal Company, 27 Utah 2d 140, 493 P.2d 983, 984[2] (1972). See also Anno., 97 A.L.R.2d 997, 1013, § 7.

We have concluded that the mere acceptance of a payment on a delinquent note does not waive an acceleration of payments which has already been invoked. Waiver is the intentional relinquishment of a known right. Greenberg v. Koslow, 475 S.W.2d 434 438[7] (Mo.App.1971). Where, as here, no express waiver is shown, in order to prove an implied waiver the acts or omissions of the party alleged to have waived his rights must be so consistent with and indicative of the intention to relinquish the particular right or benefit that no other reasonable explanation is possible. Berger v. McBride & Son Builders, Inc., 447 S.W.2d 18, 20[4] (Mo.App.1969). Here we have acceptance of a late installment payment, designated as such. This in itself, without other facts and circumstances, would not indicate that the holder of the note intends to waive or cancel the acceleration option which he had previously exercised. Moreover, the acceptance of the January checks and the deposit thereof was preceded by the filing of the suit and was followed within a few days by notice that the plaintiff considered the acceleration to be still in effect. Under these circumstances we cannot say that the decision of the trial court was erroneous as a matter of law.

The judgment of the trial court is affirmed.

DOWD and RENDLEN, JJ., concur.


author: PER CURIAM:

text:
    Elmer Dee WEBB, Plaintiff-Respondent, v. NORBERT MARKWAY CONSTRUCTION COMPANY and Reliance Insurance Company, Defendants-Appellants.
    Nos. 35739 and 35800.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 11, 1975.
    Motion for Rehearing or Transfer Denied April 22, 1975.
    Application to Transfer Denied June 9, 1975.

      Joseph L. Leritz, Kearney, Lerits & Reinert, St. Louis, for defendants-appellants.
    Harvey B. Cox, Jr., Cox, Cox & Cox, St. Louis, for plaintiff-respondent.
   PER CURIAM:

This is a workmen’s compensation proceeding. Norbert Markway Construction Company, the employer, and its insurer, Reliance Insurance Company, appellants, appeal from a judgment order of the Circuit Court of St. Louis County entered July 13, 1973, reversing a final award of the Industrial Commission entered December 18, 1972, which denied compensation to the employee-respondent, Elmer Dee Webb. The Commission in making its award affirmed the award of the referee who also denied compensation to the employee.

The employee made a claim for injuries arising out of an alleged accident on December 16, 1965, when a piece of novaply wood which he was moving slipped from his grip and he exerted “unusual force and strain.”

The referee made lengthy findings of fact and rulings of law. The referee found that Mr. Webb was presently suffering from “conversion hysteria” which “probably” renders him incapable of working and that he is in effect totally and permanently disabled. However, the referee concluded that the employee’s condition was not brought about by any specific trauma or accident; that there was no medical causal relationship between the incident occurring on December 16, 1965, when the employee was carrying a heavy piece of novaply wood which allegedly slipped from his grip; that the issue of credibility is a “major factor in the evaluation of this case”; and that the nature and extent of the total disability should not be the responsibility of the employer and insurer, “because so much of it is due to long-standing conditions not connected with his work.” The referee concluded that “the record in this case does include sufficient testimony on behalf of the employee to warrant findings of accident and causal connection, as well as disability of a permanent and total nature. However, I find this evidence less persuasive than evidence to the contrary introduced by the employer and insurer.”

After the Commission affirmed the award of the referee, the employee, Webb, appealed to the circuit court. The court reversed the final award and found as a matter of law that “there was not sufficient competent evidence in the record to warrant the making of the award” and that “under the competent evidence, the Employee-Appellant sustained an accident arising out of and in the course of his employment while handling novaply on December 16, 1965, and a resultant total and permanent disability.”

The employer, Markway, and the insurer, Reliance, appealed. Despite the multifaceted points and contentions raised by the parties on this appeal, the single, overriding issue in this case is whether or not there was substantial competent evidence to support the final award of the Industrial Commission denying' compensation to the employee, Elmer Dee Webb.

Our duty on appeal is well settled. On judicial review of a workmen’s compensation claim, this court must determine if the award of the Commission is supported by competent and substantial evidence upon the whole record, Mo.Const.Art. V, § 22, V.A.M.S., and all of the evidence and legitimate inferences arising therefrom must be viewed in the light most favorable to the award. We are not at liberty to substitute our own judgment for that of the Commission and may set aside an award only if there is not substantial competent evidence to support the award or if the findings of the Commission are clearly contrary to the overwhelming weight of the evidence. If we conclude that the findings of the Commission are supported by competent and substantial evidence upon the whole record and are not contrary to the overwhelming weight of the evidence, the findings are binding, and matters of credibility and the weight to be given conflicting testimony are for the Commission. Bauer v. Independent Stave Company, 417 S.W.2d 693, 697 (Mo.App.1967); Stegall v. St. Joseph Lead Company, 465 S.W.2d 855, 859-860 (Mo.App.1971); Ousley v. Hawthorn Company, Div. of Kellwood Co., 397 S.W.2d 719, 721 (Mo.App.1965); Schmitz v. Sellers & Marquis Roofing Co., 117 S.W.2d 623, 624 (Mo.App.1938); Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810, 811-812 (Mo.App.1974); Saale v. Alton Brick Company, 508 S.W.2d 243, 246 (Mo.App.1974).

It is only in exceptional circumstances that we may reverse an award of the Commission on the facts. Shepard v. Robinson, 451 S.W.2d 329, 335 (Mo.1970).

After studying the entire lengthy transcript, the briefs, arguments and authorities relied upon by the parties, we are convinced that the award of the Commission denying compensation was supported by competent and substantial evidence upon the whole record and was not contrary to the overwhelming weight of the evidence.

There was substantial and competent evidence that (1) the employee, Mr. Webb, did not sustain an accident within the meaning of § 287.020(2). There was evidence to the effect that the incident and injury came about as originally described by the employee in the histories given to physicians and in the statement he gave to a claims adjuster in the months following the incident with the novaply on December 16, 1965 and that his condition was not brought about by the novaply incident. Bauer v. Independent Stave Company, supra; Deffendoll v. Stupp Brothers Bridge & Iron Co., 415 S.W.2d 36 (Mo.App.1967); (2) there was no causal connection between the novaply incident and the subsequent condition of the employee — epicondy-litis, tenosynovitis, and conversion reaction —rather this condition resulted from his work and his history of emotional problems. Schmitz v. Sellers & Marquis Roofing Co., supra, 117 S.W.2d at 629; Harms v. Chevrolet-St. Louis Div. Gen. Motors Corp., 444 S.W.2d 524, 527 (Mo.App.1969); (3) there was substantial medical evidence that the nature and extent of Mr. Webb’s disability was due to longstanding conditions not connected with his work.

The matter of credibilty was also a live issue in the case. It is the Commission which passes on the credibility of the witnesses and the weight to be given to conflicting testimony and if conflicting inferences are permissible, the choice rests with the Commission. Bauer v. Independent Stave Company, supra. There was substantial competent evidence for the Commission and the referee to conclude that the employee had been suffering from a condition for years which causes him to subconsciously misrepresent the facts to himself.

In sum, we have read the entire transcript, examined all of the exhibits, read the briefs and the numerous cases cited by each party, and conclude that (1) the award of the Commission was supported by substantial competent evidence and was not clearly contrary to the overwhelming weight of the evidence; (2) that a detailed recitation of all the complex facts, or a discussion of the long and involved medical history of the employee would serve no useful purpose; (3) that a lengthy opinion would have no precedential value, and (4) that the judgment order of the circuit court reversing the final award of the Commission should be reversed. Rule 84.16, V.A.M.R.

We have considered the other points raised by the respondent, Webb, and find them either to be without merit or not determinative of the result we reach.

The judgment of the circuit court is reversed and the cause remanded for reinstatement of the award of the Commission.

All the Judges concur.

      . § 287.020(2), RSMo 1969, V.A.M.S. It has been held that an unusual and abnormal strain arising out of and in the course of employment resulting in injury is an accident and compensable. Crow v. Missouri Implement Tractor Company, 307 S.W.2d 401, 405 (Mo.banc 1957); McClain v. Yellow Cab Company, 439 S.W.2d 200, 202-203 (Mo.App.1969), and cases cited therein.

      . Mr. Webb did not relate to several physicians that he lost his grip and the novaply slipped; he expressly informed one of the physicians, Dr. Kramer, that there was no accident. He never told Dr. Eunsch what happened to his arm. In April, 1966, he expressly informed the claims adjuster that his arm got tired all at once, and that the novaply board did not slip from his grip and that he did not slip, trip, fall or anything. He failed to inform several doctors of any slipping of the novaply. His version of the alleged “accident” differed at the time of the hearing and the information given earlier. He admitted to an insurance adjuster that the board did not slip from his grasp, nor did he trip “or anything.” The decision relied upon by the respondent, Yancey v. Egyptian Tie & Timber Co., 95 S.W.2d 1230 (Mo.App.1936), is not dispositive of the issues presented here.

      . While psychoneurosis or traumatic neurosis is a compensable injury within the meaning of workmen’s compensation, its causal connection with an accident must be established by clear evidence. Thompson v. Railway Express Agency, 241 Mo.App. 683, 236 S.W.2d 36, 39 (1951); Todd v. Goostree, 493 S.W.2d 411, 417 (Mo.App.1973).
      There was substantial evidence by Dr. Herbert E. Rosenbaum that there was no causal connection between the condition and the “accident.” Dr. Rosenbaum, who specialized in “diseases of the nervous system,” believed that the conversion reaction was brought about by life experiences and did not believe that the incident caused or contributed to cause the conversion reaction. The novaply incident was only one grain of sand in a mountain of sand. Dr. Marvin R. Mishkin testified that the epicondylitis could be caused by the use of a saw over a period of years. Doctor Rosenbaum testified that it would be “most usual” that Webb already had a condition of tenosynovitis at the time he lifted the novaply and that the incident merely brought the condition to his attention.

      . There was evidence that Mr. Webb suffered from emotional problems as far back as 1945 and that the novaply incident was one of a series of events.