text:
    Marcelino B. CAVAZOS, Appellant, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 1508.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 18, 1979.

      Roy C. Turcotte, Brownsville, for appellant.
    Perriel C. Hamby, Jr., Charles A. Carlson, III, Adams, Graham, Jenkins, Graham & Hamby, Harlingen, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a workmen’s compensation stroke case. During the trial and at the close of Cavazos (claimant’s) evidence, the court withdrew the case from the jury and instructed a take nothing verdict in favor of the Fidelity & Casualty Company (carrier). Claimant contends the trial court erred in granting Carrier’s Motion for Instructed Verdict because the evidence presented material issues which should have been submitted to the trier of facts. We affirm.

Up to the time of trial claimant had been employed as a locksmith for the past 26 years. His job as a locksmith required bending, lifting, boring holes in doors and removing locks. In 1965, claimant consulted Dr. Cortez for abdominal stress, nervousness, and high blood pressure. Thereafter, from 1966 to 1970, claimant consulted Dr. Cortez for the purpose of losing weight and controlling his blood pressure. From 1970 through 1975, claimant consulted Dr. Cortez for diabetes, which was detected in 1975, and for the flu.

On January 23,1976, claimant during the course of his employment, suffered an auto accident in which his body hit the steering column. The accident caused claimant extreme nervousness. On February 7th, claimant consulted Dr. Cortez for chest pains and was prescribed a rib belt which he wore for 8 weeks. After the January accident the nervousness and high blood pressure were difficult to control; hence, Dr. Cortez advised claimant to take two weeks off, which he did. After the two weeks’ rest he returned to work, but he was still shaky and under constant medication.

On July 22, 1976, claimant went to work about 7:45 a. m., picked up a work order from his place of employment and drove a Volkswagen van to the residence where the locks were to be changed. Upon arriving at the residence, claimant got out of his van and walked to the house to .inquire about the lock changes. The owner was on the phone; hence, claimant sat down to wait. Thereafter, the owner gave claimant the keys and explained what he wanted done. Claimant then walked back to the car, became dizzy and started to walk back to the house, but dropped before reaching the house and suffered a stroke.

At the trial, claimant’s counsel, questioned Dr. Cortez with the following hypothetical concerning the cause of the stroke:

“Q. Now, doctor, assuming that Mr. Marcelino Cavazos had been working for Landreth’s Locksmith Company for 26 years, and assuming he suffered from hypertension during part of this time, as your records indicate and that at one time he contacted diabetes, and then on January 23, 1976, he had a car accident while working for that employer; that he became extra nervous; that of course he went to see his doctor, and his doctor prescribed a belt for his ribs because of that trauma and that his own doctor recommended that he rest from work because of this high nervousness; and assume that finally he continued to work; and that on about July 22, 1976, Marcelino Cavazos suffered a cerebral vascular accident — Let’s assume these facts to be true — now, would the car accident that occurred on January 23,1976, in the course of his employment and the resulting mental stress therefrom, with the additional stress of his employment, would these events, within reasonable medical probability, have contributed — and I will repeat — have contributed to precipitate the cerebral vascular accident of July 22, 1976?
* * * * * *
A. Yes, sir.”

In the case of an instructed verdict our task is to determine whether there was any evidence of probative force to raise fact issues on material questions presented. Upon review, we must consider all of the evidence in its most favorable light in support of the non-movant’s position and discard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex. 1969); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953). When reasonable men differ as to the truth of controlling facts, a jury issue is presented. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948); McDonald, Texas Civil Practice § 11.28.2 (1970). There is no precise rule to measure probative force and by which to decide if questions of fact are raised by the evidence. Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973).

A heart attack caused by strain or overexertion may constitute an accidental injury to the physical structure of the body within the meaning of the Workmen’s Compensation Act. Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex. 1976); Baird v. Texas Employers’ Insurance Company, supra. In stroke cases, such as the one at bar, there are two issues which must be resolved. First, it must be determined whether there is evidence of an undesigned, untoward event involving overexertion or strain which is traceable to a definite time, place and cause. Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972). If so, it then must be determined whether there is any evidence of whether such strain or overexertion was a producing cause of claimant’s stroke. Henderson v. Travelers Insurance Company, supra. With reference to the causal connection required to be established between the overexertion and the stroke the Supreme Court has noted that “ . . . in the very nature of these cases, the evidence is most often largely circumstantial or based on answers by medical witnesses to hypothetical questions.” Baird v. Texas Employers Insurance Association, supra.

In the case at bar, the evidence consisted of claimant’s testimony relating his job-related activities on the day in question and the opinion testimony of Dr. Cortez in response to a hypothetical question. The thrust of the doctor’s testimony was that a producing cause of claimant’s stroke was the “additional stress” of his job. Thus, the doctor’s testimony tends to establish the required causal connection between claimant’s job and his stroke only if there is evidence in the record of the stress or strain of claimant’s job referred to in the hypothetical question. Henderson v. Travelers Insurance Company, supra. We can find no such evidence in the récord in this case. Indeed, there is no testimony by any witness that claimant’s job could be strenuous or that claimant actually engaged in any activity involving overexertion or unusual stress.

As noted by the late Justice Norvell, the workmen’s compensation law does not provide for health insurance but is purposefully designed to compensate an employee for incapacity flowing from an accidental personal injury while engaged in the performance of his employment. Houston Fire & Casualty Insurance Company v. Biber, 146 S.W.2d 442 (Tex.Civ.App.—San Antonio 1940, writ dism’d jdgmt. cor.). It was stated in Whitaker v. General Insurance Co. of America, 461 S.W.2d 148, 151 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.):

“The mere fact that an employee dies while on the premises of his employer, and during working hours, is not sufficient. It is incumbent upon one seeking to recover death benefits under the law to prove that the deceased sustained an injury which caused or contributed to cause the death.”

In the instant case, there simply is no evidence that claimant sustained an injury on the day in question within the purview of the Workmen’s Compensation Act. Hence, the hypothetical question put to Dr. Cortez assumed facts which were not in evidence.

For other cases which withheld recovery for accidental injury on the grounds that there was no evidence to support a finding that the claimant’s stroke resulted, at least in part, from some type of overexertion or strain experienced during the course of employment, see Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972) [well logger — abundant evidence of mental stimulus arising from a series of exasperating experiences on the job over a period of 19 days but no evidence of physical strain]; Whitaker v. General Insurance Company of America, 461 S.W.2d 148 (Tex. Civ.App.—Dallas 1970, writ ref’d n.r.e.) [filling station attendant — evidence that claimant checked oil, wiped windshields and filled gas tanks]; O'Dell v. Home Indemnity Company, 449 S.W.2d 485 (Tex.Civ.App.-Amarillo 1969, writ ref’d n.r.e.) [industrial oilfield mechanic — evidence that claimant’s work was normally strenuous but no-showing of any unusual strain or overexertion on the day of death]; Travelers Insurance Company v. Smith, 448 S.W.2d 541 (Tex.Civ.App.— El Paso 1969,- writ ref’d n.r.e.) [pumper and well treater—no direct proof of heavy activity]; Monks v. Universal Underwriters Insurance Company, 425 S.W.2d 431 (Tex.Civ.App.— Tyler 1968, writ ref’d n.r.e.) [automobile mechanic engaged in criss-crossing automobile tires — evidence of criss-crossing, jacking and removing lug nuts but no evidence that such work was strenuous or that claimant had lifted any heavy objects]; Bean v. Hardware Mutual Casualty Company, 349 S.W.2d 284 (Tex. Civ.App.—Beaumont 1961, writ ref’d n.r.e.) [iron cutter — evidence that claimant hoisted a piece of steel but no evidence that piece of steel was unusually heavy or that work was heavy enough to cause strain or overexertion]; General Accident, Fire & Life Assurance Corporation v. Perry, 264 S.W.2d 198 (Tex.Civ.App.—Galveston 1954, writ ref’d n.r.e.) [member of road maintenance crew — principal duties involved building and repairing fences and operating tractor mover — evidence that tractor had stuck in mud but no evidence that claimant made strenuous efforts to remove tractor]; Houston Fire & Casualty Insurance Company v. Biber, 146 S.W.2d 442 (Tex.Civ.App.—San Antonio 1940, writ dism’d jdgmt. cor.) [foreman for cotton oil company — no evidence of actual muscular exertion].

For the reasons pointed out, we hold that there was no evidence to support the vital fact issue of whether claimant suffered overexertion or strain while on the job on the day in question. It follows that the trial court was correct in sustaining the carrier’s motion for instructed verdict. The judgment of the trial court must, therefore, be affirmed.

AFFIRMED.

YOUNG, J., not participating.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    In the Interest of K. D. R., a child.
    No. 1538.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 22, 1979.
    Rehearing Denied Nov. 29, 1979.

      John C. Augustine, Minton, Burton & Fitzgerald, Austin, for appellant.
    W. W. Kilgore, Juan Velasquez, III, Kil-gore, Cole & McManus, Victoria, for appel-lee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment rendered in a child custody case pursuant to an instructed verdict. Lloyd Donald Stewart and Mary Jane Stewart were plaintiffs in the trial co.urt and appellants in this Court, and Margaret Suzanne Rouse Baruday was defendant in the trial court and is appellee in this Court. Judgment was rendered that the plaintiffs take nothing by their suit. The parties will be designated as “plaintiffs” and “defendant” as they were in the trial court.

Since this is a suit to determine custody of a child, the paramount issue is the best interest of the child. Tex.Family Code Ann. § 14.07(a) [1975]; Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966); Ex Parte Gallop, 486 S.W.2d 836 (Tex.Civ.App.— Beaumont 1972, writ ref’d n. r. e.); Tye v. Tye, 532 S.W.2d 124 (Tex.Civ.App.— Corpus Christi 1975, no writ).

In determining whether the trial court was correct in instructing a verdict, we are required to review the evidence most favorable to the losing parties in the trial court, to indulge against the judgment every inference that may be drawn from the evidence and to disregard all contrary evidence thereto. Seideneck v. Cal. Bayreuther Associates, 451 S.W.2d 752 (Tex. Sup.1970); State Highway Department v. Hinson, 517 S.W.2d 308 (Tex.Civ.App.— Corpus Christi 1974, writ ref’d n. r. e.). If, after having viewed the evidence in accordance with the above rule, the evidence has any force of probative value, an issue of fact is raised and we must hold that the instructed verdict was improper. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Jay-Lor Textiles v. Pacific Compress Warehouse, 547 S.W.2d 738 (Tex.Civ.App.—Corpus Christi 1977, writ ref'd n. r. e.).

In the case at bar, the plaintiffs filed a petition for termination of the parent-child relationship between the defendant and the minor child, K. D. R., and for the adoption of said child, hereinafter called “the child.” It was alleged therein that the child was illegitimate and that “no father or probable father is known” to petitioners. Thereafter, the plaintiffs filed their first amended petition, wherein they abandoned their pleading to terminate the existing parent-child relationship and for adoption of the child, and asked that they be named managing conservators of the child on the ground that it would be in the best interest of the child to so appoint them. No exception was leveled at any allegation contained in the plaintiffs’ first amended original petition, their trial pleading.

Subsequently the trial court appointed a Guardian Ad Litem for the child to represent the interest of the child. The Guardian Ad Litem represented the child at the trial of this case and here on appeal.

Trial was to a jury. After the plaintiffs presented evidence and closed, and before the defendant presented any evidence, the trial judge announced that he would entertain a motion on behalf of the defendant for an instructed verdict. Counsel for the defendant then moved for an instructed verdict, which was granted, and a take nothing judgment was rendered.

The plaintiffs are husband and wife. The plaintiff Mary Jane Stewart is the maternal grandparent of the child and is also the biological mother of the defendant, who was born to plaintiff Mary Jane Stewart and her first husband, Robert Junior Russell.

The child was born on August 19, 1975, and is the third illegitimate child born to the defendant. The other two illegitimate children, a boy and a girl, age 8 and 6, respectively, at the time of trial, have been' adopted by the plaintiffs and were living with them at all times pertinent to this appeal. About six weeks after the child’s birth, the defendant appeared at plaintiffs’ door with the child’s clothes in her arms and stated: “Here are her things. You can have her. You keep her. I cannot raise her.” From that date until about March, 1978, the plaintiffs raised the child as their own child in their home. The defendant made no effort to provide any support for her child and only occasionally came to visit her. In March, 1978, when the child was about 2½ years old, the defendant took her out of the plaintiffs’ home because of an unrelated family dispute. The child was living with the defendant at the time of trial.

There is abundant evidence in the record that subsequent to the taking of the child by the defendant from plaintiffs’ home, and while the child was in the defendant’s exclusive custody, the child was physically abused by someone. We do not deem it necessary to set out such evidence in detail. Suffice it to say that the witnesses called by the plaintiffs testified that, on several occasions, the child bore visible bruises on her forehead, cheeks, in the middle of her back, and on her legs. There was evidence from which the jury could have concluded that the bruises were caused by pinching, by striking the child with a stick and by hitting her with a belt. A doctor examined her and found three abrasions “two and a half inches wide and three inches long” on her thighs. He voiced an opinion that the child was a victim of child abuse and made such a report to the Children’s Services. Two weeks later, he again examined the child and found “some abrasions which were different from those I have (sic) seen on the previous visit.”

On the other hand, the evidence shows that the plaintiffs owned a nice, three-bedroom house; that the house was kept in a good, clean condition; that the family atmosphere in plaintiffs’ home was conducive towards the proper raising of children; that the child had a happy and close relationship with plaintiffs and with her halfbrother and half sister. Plaintiff Mary Jane Stewart testified that it would be in the best interest of the child if plaintiffs were named managing conservators for her.

Concerning the matter of the instructed verdict, after the plaintiffs had closed, the trial judge, in open court, announced:

“ . . . The plaintiff, having rested, the Court has reviewed the pleadings and the file, and is of the opinion that there is (sic) no disputed issues to be determined by the jury, and that there is (sic) no pleadings to support a termination of parental authority, and the State is not a party to the lawsuit seeking to terminate parental authority and, therefore, the Court will entertain a motion for instructed verdict.”

Whereupon, counsel for the defendant said:

“At this time, on behalf of my client, we make a motion for instructed verdict, your Honor.”

The trial court erred in instructing a verdict on the ground that there were “no pleadings to support a termination of parental authority.” The Texas Family Code does not require the termination of parental rights before a person who is not a parent of the child in question can be appointed managing conservator. We have not found a single case which holds that a person who is not the parent of the child in question cannot get custody of the child, without there being a termination of the parent-child relationship first obtained. There is a marked distinction between a suit for con-servatorship and a suit for termination of the parent-child relationship. See Wiley v. Spratlan, 543 S.W.2d 349 (Tex.Sup.1976); Brokenleg v. Batts, 559 S.W.2d 853 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.). A person who is not a parent of the child involved can be appointed managing conservator without there being a termination of the parent-child relationship.

The trial court also erred in instructing a verdict for the defendant on the ground that “the State is not a party to the lawsuit.” There is no such requirement in Texas law.

The trial court further erred in instructing a verdict for the defendant on the ground that there were no disputed fact issues to be determined by the jury. We have read the statement of facts in its entirety. Following the well established rules for the disposition of an appeal where the trial court instructed a verdict, it is our opinion that in this case there was ample evidence raising fact issues for jury determination. It was, therefore, reversible error to instruct the jury to return a verdict for plaintiffs and to grant a take nothing judgment. The judgment of the trial court is reversed and the cause is remanded to the trial court for a new trial.

REVERSED AND REMANDED.


author: NYE, Chief Justice.

text:
    Beverly Louise Hafer FLY, Appellant, v. Jim FLY, Appellee.
    No. 1450.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 22, 1979.

      Ronald B. Walker, Hartman, Lapham & Seerden, Victoria, for appellant.
    J. M. Fly and Robert B. Whitaker, Victoria, for, appellee.
   OPINION

NYE, Chief Justice.

•This is an appeal from a default divorce judgment which the appellee husband obtained from his wife. In the final decree, the trial court found that no community property was accumulated during the marriage, and awarded all of the property as separate property to the husband. The court changed the wife’s name to her maiden name, and found that there was no child or issue of the marriage and that the wife was not pregnant. The wife learned of the divorce two days after it had been granted and immediately filed a motion for new trial under oath which was overruled by operation of law.

The wife on appeal contends that the trial court erred in four numerated points. We need to consider only two points for reversal. First, the granting of the default divorce decree when a court reporter was not present for the entire proceeding; and second, in changing the wife’s name without her request or consent.

The record indicates that in September of 1977, the husband filed suit for divorce. Shortly thereafter, the parties reconciled and again lived together as husband and wife. In the wife’s motion for new trial, she alleged under oath that after they began to live together again, she was informed by her husband that his father (who was the attorney representing her husband in the original divorce action) “had dismissed the divorce suit” and “had removed the same from the docket of the court.” The wife stated that she did not know that another divorce action was contemplated by her husband until she first learned that he again wanted the div.orce at the time she was served by a temporary restraining order on July 17, 1978. On July 19, the wife went to an attorney concerning the restraining order papers. The wife’s attorney discovered that a divorce had actually been granted by a different judge from the one who had issued the restraining order on July 18, 1978, one day after the restraining order had been filed. The record shows that the original divorce had never been dismissed. The wife further stated under oath that the decree of divorce was based upon fraud in that the court deprived her of her community property.

The record in this Court shows that the court reporter appeared and started taking down the testimony in the case sometime after the trial had commenced and other evidence had been presented to the trial judge. The wife’s attorney tried to get a complete statement of facts, apparently under Rule 377(d), T.R.C.P., by requesting the trial judge to complete the statement of facts so as to make the same conform to the truth. In response to the motion, the trial judge filed an instrument designated, “Statement of Facts for Appeal,” in which is stated in relevant part as follows:

“. . . The Court finds that the Statement of Facts as prepared by Joe Flores, Court Reporter, conform (sic) to the truth of the divorce proceedings with the exception of not including the questions asked Appellee/Petitioner by the Court to establish proper venue and the Court’s finding of proper venue.
The Court orders that the true and complete Statement of Facts will be reflected by the Court Reporter’s Statement of Facts and by the Court’s findings here that proper venue was established at the original hearing by the Court’s questioning and Appellee/Petitioner’s response.”

An appellant is entitled to a complete statement of facts. If through no fault of his own he is unable to obtain the statement of facts, his right to have the case reviewed on appeal can be preserved by him in no other way than by reversal and a retrial of the case. C. W. Fisher v. First Security State Bank of Cranfills Gap, Texas, 576 S.W.2d 886 (Tex.Civ.App.— Waco 1979, no writ); Southwestern Bell Tele phone Co. v. Thomas, 535 S.W.2d 686 (Tex.Civ.App.— Corpus Christi 1976), reversed on other grounds, 554 S.W.2d 672 (1977); Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (1936, opinion adopted); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.); State v. Ripke, 426 S.W.2d 599 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); Pacific Greyhound Lines v. Burgess, 118 S.W.2d 1100 (Tex.Civ. App. —Amarillo 1938, writ ref’d); Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App.—San Antonio 1974, no writ).

The appellee contends, on the other hand, that we have a complete statement of facts if we take the partial statement of facts and add to it the trial court’s statement that the only thing missing was the establishment of proper venue. We disagree. The trial court’s statement as set out above is merely a conclusion of law. The appellant wife was not required to rely on the unaided memory of the trial judge, who decided the merits of the case, in order to obtain a complete statement of facts. Rogers, supra; Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ. App.—Dallas 1975, writ ref’d).

There are several unanswered questions that come to our mind. The record clearly shows that the appellee husband sought out a district judge and obtained an ex parte temporary restraining order which was served on the appellant wife. The appellee husband did not have a hearing on this restraining order. The very next day, after the issuance and the serving of this restraining order, the husband took his case to another judge and obtained a default divorce. Surely the second trial judge should have seen the outstanding restraining order on the docket sheet and among the papers in the case and must have questioned the husband concerning this ex parte order. The record in this regard is completely silent. Also, neither venue nor jurisdiction appears to have been proven up in the statement of facts. In addition to all of the foregoing, the wife’s affidavit filed in her motion for new trial stated that her husband had misrepresented the true facts concerning the community property.

All of this would require a retrial of the case to obtain a complete statement of facts unless the absence of the court reporter had been waived by the parties. (On new trial see: Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939); Hensley v. Salinas, 583 S.W.2d 617 (Tex.1979). A defaulting party, such as we have here, cannot waive the presence of a court reporter by failing to object because neither the • wife nor her attorney were present at the trial. Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978); Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972). It was the trial court’s duty to require a court reporter to be present for the entire proceedings in such a situation.

The Family Code § 3.64 permits a trial court to change the name of either party specifically requesting such change. The court has considerable discretion and may change the name of either party who prays for the name change. See Family Code § 32.24. Here, the record shows that the wife did not make such a request and although the husband had petitioned the name change, the wife had not consented thereto. Therefore, the trial court erred in changing her name without her request or consent. Although the trial court has considerable discretion in a proper case, we deem this action to be an abuse of such discretion.

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


author: PER CURIAM.

text:
    Rayburn MacNELLY, Appellant, v. CAMERON COUNTY, Texas, Appellee.
    No. 1595.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 22, 1979.

      Seldon Snedeker, Drew Littleton, Brownsville, for appellant.
    E. R. Fleuriet, Wiley, Hale & Fleuriet, Harlingen, for appellee.
   OPINION

PER CURIAM.

This is an appeal from a judgment styled “Interlocutory Declaratory Judgment” rendered by the 103rd District Court of Cameron County, Texas. The initial question before us is whether the judgment is a final appealable judgment.

Cameron County, Texas (County), sued Rayburn MacNelly (MacNelly), the Cameron County Auditor, and Kenneth Lieck (Lieck), the Cameron County Purchasing agent, seeking a declaratory judgment and alternatively, a writ of mandamus. The County’s original petition alleged, in substance, that; 1) on January 11, 1979, the Cameron County Commissioners’ Court (Commissioners’ Court) adopted a. consolidated road system for Cameron County and appointed Salvador Rodriguez to the position of Superintendent of such system; 2) at a special meeting held on March 22,1979, the Commissioners’ Court adopted amendments to the 1979 County budget relating to the consolidated road system; 3) the following day, the Cameron County District Attorney, Selden N. Snedeker, informed the Cameron County Judge, R. A. Ramon, in writing that he had instructed MacNelly (County Auditor) not to expend any funds pursuant to the 1979 budget amendments passed on March 22; 4) during an emergency session) held on April 2, 1979 by the Commissioners’ Court, MacNelly (Auditor) and Lieck (Purchasing Agent) stated that the budget amendments would not be honored by their respective offices; and 5) that such refusals created an impasse in the orderly administration of Cameron County.

In accordance with these allegations, the County prayed for a declaration that the 1979 budget amendments relating to the consolidated road system were legal, valid and binding upon MacNelly and Lieck in their official capacities. The County prayed in the alternative for a writ of mandamus commanding MacNelly and Lieck to administer such 1979 budget amendments as adopted by the Commissioners’ Court. In support of this additional ground of relief, the County alleged that: 1) each defendant had refused to honor the 1979 budget amendments; 2) such refusals to act were not within their discretion; 3) each defendant had the power and duty to administer the amendments; and 4) the County had no adequate and sufficient remedy other than mandamus to compel performance.

MacNelly and Lieck filed a joint answer, the substance of which alleged, in relevant part, that: 1) no substantial controversy existed between the parties as to the County’s ability to consolidate the County’s road system; 2) a controversy did exist as to the manner in which the Commissioners’ .Court attempted to consolidate the road system during the January 11, 1979, meeting because the Commissioners’ Court failed to follow the requirements of the Open Meetings Law, Tex.Rev.Civ.Stat.Ann.Art. 6252-17 (Supp.1979); 3) the notice of the January 11 meeting was insufficient to apprise the public of the action to be taken; 4) the agenda of the March 22,1979, meeting was insufficient to apprise the public of the action to be taken and such agenda was not posted in the county courthouse as required by law; 5) the action of the Commissioners’ Court on January 11 was void and of no effect as such action was taken without a showing that certain specified statutory conditions were met; and 6) the Commissioners’ Court’s action in attempting to amend the County’s 1979 budget was of no force or effect because certain specified necessary findings concerning the existence for an “emergency” were not included in the minutes, and under the circumstances, such an emergency did not exist. In accordance with these allegations, the defendants prayed that a declaratory judgment not be entered. As to the County’s alternative prayer for mandamus, the defendants adopted all of the foregoing allegations and admitted that “they have refused to honor the said invalid budget amendment.”

In addition to the above mentioned joint answer, MacNelly alone filed a cross action against the Cameron County Judge, R. A. Ramon, and Cameron County Commissioners, Eduardo A. Lucio, Jr. and Joe G. Villarreal, alleging that each had committed specified acts of misconduct in consolidating the road system and in approving the budget amendments in contravention of their official duties and the laws of Texas. In accordance with these allegations, cross-plaintiff MacNelly prayed that the trial court declare these officials to have committed official misconduct. Each cross-defendant filed a general denial.

Prior to trial, the County filed a “Motion to Disqualify” the County District Attorney, Selden N. Snedecker, from representing MacNelly or Lieck on the basis that such representation in a suit involving the County conflicted with his position as an official of the County. This motion was overruled by the trial judge prior to the trial on the merits. A similar motion was filed in this Court. In view of the disposition that we take herein, it is not necessary to rule on this motion and the same is dismissed.

The cause proceeded to a nonjury trial on June 6,1979, and after hearing evidence the trial judge entered a judgment styled “Interlocutory Declaratory Judgment” in favor of the County. The substance of the findings and declarations as stated in the judgment are as follows:

1) The trial court has jurisdiction to enter declaratory relief and a justiciable controversy which is a proper subject of declaratory relief exists between the parties.
2) The notices posted for the Commissioners’ Court meetings of January 11, 1979, and March 22,1979, substantially complied with the Texas Open Meetings Act.
3) The Commissioners’ Court is a legislative body which has the right to determine when an emergency exists, a determination that is not subject to review by the courts.
4) The actions of the Commissioners’ Court on January 11, 1979, and March 22, 1979, are valid and binding upon MacNelly and Lieck in their official ■ capacities.
5) “The issue of mandamus will not be ruled upon until it is shown that the Defendants have refused to obey this Declaratory Judgment.”

In addition to these declarations, the trial court’s judgment also taxed the “[cjosts incurred through the date of rendition of this Declaratory Judgment” against the defendants.

The County has filed a motion to dismiss this appeal on the basis that the trial court’s judgment is in fact and shows on its face that it is an interlocutory nonappealable judgment. This is so because the judgment expressly reserves the mandamus issue for future consideration. MacNelly, the only defendant who attempted to appeal, contends, on the other hand, in the first point of error in his brief that the trial judge erred by entering a judgment styled “Interlocutory Declaratory Judgment” when the judgment entered was final.

As a general rule, a judgment, in order to be final for appeal purposes, must dispose of all issues and all parties in the case. North East Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941). After noting that the above rule is “deceiving in its apparent simplicity and vexing in its application,” Justice Calvert, writing for the Texas Supreme Court in North East Independent School District v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966), analyzed prior case law and then set forth the following rule “for determining, in most instances, whether judgments in which parties and issues made by the pleadings are not disposed of in express language are, nevertheless, final for appeal purposes (emphasis added)

“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rule of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.
* * * * * *
Of course, the problem can be eliminated by careful drafting of judgments to conform to the pleadings or by inclusion in judgments of a simple statement that all relief not expressly granted is denied.” (Emphasis added)

The presumption of finality announced in Aldridge does not apply to the case at bar because the judgment, on its face, expressly reserves for future determination the issue of whether or not mandamus will issue as prayed for by the County. See Campbell v. Campbell, 550 S.W.2d 164 (Tex.Civ.App.—Austin 1977, no writ). It is clear to us that the trial court intended that a future hearing would be necessary for the purpose of determining whether or not as a matter of fact the County is entitled to the writ of mandamus requiring the defendants to administer the 1979 amendments to the County budget.

It must be remembered that, to be final, a judgment must determine the rights of the parties and dispose of all issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956). It is generally stated that a judgment is interlocutory when it determines less than all of the issues as to all parties, thereby leaving “something further to be determined and adjudicated by the court in disposing of the parties and their rights.” 4 McDonald, Texas Civil Practice, § 17.03.1 (1971). In determining whether or not a judgment is final, the pleadings, evidence and recitations of the judgment must be taken into consideration. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 (Tex.Sup.1960); Gregory v. Lytton, 422 S.W.2d 586, 589 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.); Laurie v. Stabel, 482 S.W.2d 652, 654 (Tex.Civ.App.—Amarillo 1972, no writ).

In this case the trial judge intended the judgment to be an interlocutory order, pending a future determination of the issue of mandamus. Such intention is expressly stated in the judgment. In addition, the costs of the proceeding, which were taxed against the defendants were limited to those incurred to date and did not include costs incurred during the contemplated mandamus hearing. Because the trial-judge expressly reserved determination on the mandamus issue for some future date, it will be necessary for the trial court to act upon such issue and to assess the additional costs incurred. In Gregory v. Lytton, 422 S.W.2d 586 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.), an appeal under similar circumstances was dismissed for want of jurisdiction. This Court’s case of State v. Starley, 413 S.W.2d 451 (Tex.Civ. App.—Corpus Christi 1967, no writ), cited by the appellant is clearly distinguishable from the present action.

It is our opinion that appellant has prematurely appealed from an interlocutory order and that appellee’s motion to dismiss for want of jurisdiction should be granted.

Appeal dismissed.


author: SPURLOCK, Justice.

text:
    Robert J. ERGER, Appellant, v. Patricia ERGER, Appellee.
    No. 18179.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 25, 1979.
    Rehearing Denied Nov. 29, 1979.
    Ray Gene Smith, Wichita Falls, for appellant.
    Browning & Richie, and William V. Browning, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

A husband appeals the property division portion of a divorce decree. He claims that he is entitled to a reversal because a complete statement of facts is not available and because the trial court abused its discretion in dividing the community estate.

We reverse and remand.

Robert and Patricia Erger were married in 1958. Mrs. Erger filed suit for divorce in 1976. At the time the divorce was granted all their children were above the age of 18 except Michael, who was 15 years of age at that time.

Erger claims the parties and the attorneys had an agreement concerning a division of the property and discussed it with the judge before the hearing. This is not in the record. The parties agreed during oral submission that no agreement concerning the settlement was reduced to writing, signed and filed with the papers as a part of the record. No agreement was made in open court and included in the record, therefore, there was no compliance with Tex.R.Civ.P. 11. Neither the trial court nor this court is bound by any alleged agreement. Erger claims error because a complete statement of facts is not available. During oral submission Erger’s attorney admitted that even though a court reporter was available neither party requested that the testimony be reported until some time after Mrs. Erger began testifying on direct examination. At that time Erger requested a court reporter and the testimony was thereafter reported.

Erger claims he is denied due process because the statement of facts is incomplete. After the court reporter was requested and began reporting the testimony, Erger did not attempt to have her repeat her unreported testimony so that it might be reported. She was the only witness who testified. During oral submission it was admitted that Erger was present during all of the proceedings but neither party called him as a witness. Therefore, we conclude that error, if any, was waived.

Erger challenges the trial court’s finding that a house used as rental property on York Street is Mrs. Erger s separate property. It is undisputed that Erger conveyed that property to Mrs. Erger. She claims this conveyance constituted a gift of Erger’s interest in the property and therefore it is her separate property. She testified that the gift was made in consideration of his love and affection for her. Erger claims that the deed was given to further secure a loan of $17,500.00 Mrs. Erger made to him out of her separate property to pay a debt he claims to be a community debt incurred in a business venture while the parties were married to each other. He contends that therefore it was community property. At the time of the loan Erger executed a note payable to Mrs. Erger in the amount of $17,500.00.

The trial court found that this house was her separate property. We hold there is sufficient evidence to support this finding.

The record indicates that Mrs. Erger’s separate property consisted of real and personal property she inherited and a savings account of about $10,000.00. Also, the trial court deemed the York Street property to be her separate estate. The trial court awarded Mrs. Erger all of her separate property, both real and personal.

The trial court divided the community estate of the parties as follows:

AWARDED TO MRS. ERGER
Description of property Value
Residence on Hiawatha Street $34,000.00
Escrow account on residence No evidence of value.
1971 Chevrolet No evidence of value.
Household furnishings No evidence of value,
102/246 interest of gross military tirement benefits re-$298.24 per month.
Parker Square checking account $1,054.00
Burkburnett Savings account $2,578.18 '
Wichita Falls Teachers Credit Union $2,263.23
Teachers Retirement System account $2,595.59
Annuity $3,058.10
Jewelry and personal effects No evidence of value.
TOTAL $46,047.34
AWARDED TO MR. ERGER
Note payable to Mrs. Erger marked paid in full $17,500.00
Description of property Value
144/246 interest in gross military retirement benefits $602.04 per month.
1978 Toyota No evidence of value.
Household furnishings No evidence of value.
Sheppard Federal Credit Union $2,213.34
Convest Energy $1,100.00
Continental Real Estate account $2,500.00
Pentagon Federal Credit Union account $ 100.00
Wichita Falls Teacher’s Credit Union $2,222.61
Key-hoe Mutual Fund account $ 600.00
United Group Mutual Fund $2,100.00
Jewelry and personal effects No evidence of value.
TOTAL $28,937.99

Erger complains that the difference of over $17,000.00 in the division of the estate constitutes an abuse of the trial court’s discretion in dividing the estate. It is well settled that the mere fact that the community estate is not equally divided does not constitute an abuse of discretion. However, this discretion is not unlimited and there must be some reasonable basis for the division especially when it is unequal. There are many factors to be considered in dividing the estate of the parties. They include the relative earning capacities, business experience, and education of the parties, the size of their separate estates, the age, health, and physical condition of the parties, fault in breaking up the marriage, and the benefits the innocent spouse would have received. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

No fault was pled nor proven. Mrs. Erger earns $1,100.00 per month from teaching school. She also admitted receiving $350.00 per month rental from the York Street property. We also note that while there is no evidence of the exact size of her separate estate it appears to be significant. Mrs. Erger was 42 years of age and Erger was 43 at the time this divorce was filed.

Erger’s only separate property is his interest in Erger Farms. Erger Farms is the business venture which gave rise to the $17,500.00 note payable by Erger to Mrs. Erger. Mrs. Erger admitted that they were married at the time the Erger Farm debts were incurred. However, she attempted to characterize the debts as Erger’s separate debts. She did admit, however, that had the business made a million dollars she would want the court to award her half of it.

The only income Erger has for which there is evidence in the record is his interest in military retirement benefits. The share awarded to him by the trial court is about $600.00 per month. We note that the decree requires him to pay $250.00 per month child support. He was awarded the note payable to Mrs. Erger, thereby cancelling the debt. While this does increase his net worth, we realize the $17,500.00 credit for the note is not cash or property which he could use to support himself.

We conclude Mrs. Erger has a greater earning capacity than Erger, has a significantly larger separate estate, and is of relatively equal age and experience. We find that the division of the estate by the trial court left Erger with relatively little, especially after the payment of child support. We hold that the division is unreasonable, unjust, and constitutes an abuse of discretion of the trial court.

The judgment of the trial court is reversed. The case is remanded for a new trial.


author: HUMPHREYS, Justice.

text:
    Leo Meyer ARONSON, Appellant, v. Kaleta Carney ARONSON, Appellee.
    No. 20061.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 31, 1979.
    Larry J. Bridgefarmer, Donsky & Bridge-farmer, Dallas, for appellant.
    Craig M. Fowler, McKenzie & Baer, Dallas, for appellee.
    Before AKIN, STOREY and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

This is an appeal from the property division in a divorce case. Appellant, Leo Meyer Aronson, contends that the trial judge erred in dividing the community property pursuant to Tex.Fam.Code Ann. § 3.63 (Vernon 1975), thus abusing his discretion. We agree because the community property awarded to appellant is subject to debts in excess of its value. Therefore, we reverse and remand.

The community property was divided as follows:

To appellant:
Item Value Indebtedness Net Value
insurance policies (Cash surrender value) $28,409.00 $39,618.00 ($11,209.00)
1977 automobile 4,000.00 2,030.00 1,970.00
furniture 500.00 -0-500.00
cash 4,000.00 4,000.00
$36,909.00 $41,648.00 ($ 4,739.00)
To appellee:
Item Value Indebtedness Net Value
house $64,500.00 $3,000.00 $61,500.00
1975 automobile 3,000.00 -0-3,000.00
furniture 5,000.00 -0-5,000.00
insurance policies (Cash surrender value) 20,551.00 -0-20,551.00
$93,051.00 $3,000.00 $90,051.00

Additional community debts, other than the lien on the life insurance awarded to appellant, were charged $6,759 to appellant and $1,500 to appellee. All of the above figures are set forth in appellant’s.brief. We accept them as correct because appellee does not challenge them. Tex.R.Civ.P. 419.

Tex.Fam.Code Ann. § 3.63 (Vernon 1975) requires the trial court to divide the estate of the parties .“in a manner that the court deems just and right, having due regard for the rights of each party . . .” We can reverse the trial court’s division of the property only if the division was manifestly unjust. In determining the fairness of a division, we can consider several factors, such as the earning capacity of the parties, their physical condition, and need for support. Cooper v. Cooper, 513 S.W.2d 229, 233-34 (Tex.Civ.App.— Houston [1st Dist.] 1974, no writ). Considering all of these facts, we hold the trial court abused its discretion because it awarded the wife property worth $90,051, while appellant received property subject to debts in excess of the value of the assets by $4,939. See McMaster v. McMaster, 574 S.W.2d 594 (Tex.Civ.App.—San Antonio 1978, writ dism’d). Furthermore, because appellant was also ordered to pay a greater proportion of the parties’ other debts, the disparity is even greater.

Appellee contends the trial court did not abuse its discretion because appellee was 55 years of age and earning no income, while appellant, although 69 years of age, was earning $12,000 per year. She argues that she has spent her life as a wife and mother and has no reasonable expectation of obtaining employment. She also asserts that she has back problems which prevent employment and that the appellant is in good health. We cannot agree that these facts warrant such an inequitable division of the community property. Appellee is much younger than appellant and presented no evidence, other than her own testimony, that her back problems would prevent gainful employment.

Appellee next argues that there is no abuse of discretion here because the indebtedness on the insurance policies awarded to appellant was incurred solely by appellant when he borrowed money from his trust, without intending to repay the loans, and that appellant expended none of these funds for the community benefit. We cannot agree that these facts support this division of community property. These policies appear to be community property because, although appellant testified that two of the encumbered policies were paid up prior to marriage, the parties listed all the insurance policies as community property in their inventories. The debt is presumptively a community obligation, having arisen during marriage, Cockerham v. Coekerham, 527 S.W.2d 162, 171 (Tex.1975), and the fact that the debt is secured by community property supports that presumption. Also, appellee signed an instrument assigning the life insurance policies to secure the loans. As for the argument that the community did not benefit from the loans, appellant testified that he expended some of the funds to pay educational expenses of the children.

Neither does a $50,000 loan made by appellant to a third party prior to divorce justify this division. The borrower was appellant’s employer and although the borrower paid some interest on the note which benefited the community, he went into bankruptcy. Consequently, the note was not repaid. We conclude that these facts are immaterial to the division of the community property and do not support the division of the trial court.

Appellee’s final contention is that the property division here is just because appellant owns more separate property than she does. In particular, appellee points to a trust, the corpus of which is $91,513.27. Appellant is but a life tenant of this spendthrift trust, from which he receives $1,600 annually. Additionally, appellant receives $411 a year from an interest in oil property and owns an undivided ⅛ interest in 320 acres of land. On the other hand, appellee owns approximately $7,000 of stock and a few items of furniture as her separate property. We also note that evidence adduced at the hearing for new trial revealed that appellee has inherited an estimated $200,000 although a will contest has been threatened. The value of the parties’ separate property is a proper factor to consider in determining the equity of the division, Trevino v. Trevino, 555 S.W.2d 792, 803 (Tex.Civ.App.—Corpus Christi 1977, no writ); however, we do not find the difference in the value of separate property sufficient to warrant this inequitable distribution of community property.

For the reasons stated, the judgment is reversed and remanded to the trial court with instructions to divide the community property in a manner not inconsistent with this opinion.


author: REYNOLDS, Chief Justice.

text:
    In re Guardianship of George Leighton DAHL.
    No. 9040.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1979.
    Rehearing Denied Dec. 5, 1979.

      Vial, Hamilton, Koch, Tubb, Knox & Stradley, Robert G. Vial, M. Leigh Bartlett, Gerald R. Powell and Stephen L. Baskind, Dallas, for appellant.
    Bickel & Case, Thomas L. Case, Dallas, for appellee.
   REYNOLDS, Chief Justice.

In this guardianship contest, the trial-court, accepting the jury verdict finding that contestant-appellee George Leighton Dahl is not of unsound mind, rendered judgment decreeing, inter alia, that Mr. Dahl is a man of sound mind and that applicant-appellant Gloria Dahl Akin’s application for permanent guardianship is in all things denied. Mrs. Akin’s twelve-points-of-error appeal seeking to reverse the judgment justifies only a reformation of the judgment to conform to the verdict. Reformed and affirmed.

On 28 March 1978, Gloria Dahl Akin filed her ex parte application for her immediate appointment as temporary guardian of the person and estate of her eighty-three year old father, George Leighton Dahl. She alleged that Mr. Dahl “is not mentally competent to attend to his person or to his business affairs,” and the pressing matters affecting the personal estate of Mr. Dahl make necessary the immediate appointment of a temporary guardian. She further alleged that her appointment should be continued for as long as the court deems necessary or be made permanent.

An order appointing, and enumerating the powers of, Mrs. Akin as temporary guardian was signed 20 April 1978. Approximately one week later, Mr. Dahl entered his answer and contest to the temporary guardianship application, simultaneously demanding a jury trial. Both parties then moved for, and vigorously opposed the other’s efforts to effect, extensive discovery and production of records and documents. These efforts, as well as motions concerning the payment of costs, expenses, attorneys’ fees and the association and disqualification of counsel, evoked numerous orders by the trial court up to the date of trial.

The trial setting of 15 May 1978 was vacated upon the granting of Mrs. Akin’s motion for continuance, and the trial was reset for 30 May 1978. Mr. Dahl moved for, and was denied a termination of the temporary guardianship or grant of an instant trial and a limit on discovery. On 22 May 1978, Mrs. Akin amended her application, specifically alleging a need to appoint a permanent guardian of both the person and estate of Mr. Dahl upon the ground that he “is not mentally competent or physically able to attend to his personal affairs or business affairs.” The next day, Mr. Dahl answered, and thereafter amended his answer, contesting the application, and the issue of a permanent guardianship was joined.

Four days before trial date, Mrs. Akin filed her second motion for continuance. The motion was overruled and the case proceeded to trial before a jury. After a nine-day trial during which the jury heard deposition and live testimony included in the more than 2,000-page statement of facts and viewed 124 exhibits, the court submitted one special issue, accompanied by a definition, to the jury. The submission and the answer of the jury are shown in the record thusly:

Do you find from a preponderance of the evidence that George Leighton Dahl is of unsound mind?
ANSWER: He is
or
He is not
ANSWER: He is not
Definition : Persons of unsound mind are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.

The court accepted the verdict and, receiving Mr. Dahl’s motion for judgment on the verdict and Mrs. Akin’s motion for judgment non obstante veredicto, rendered judgment on the verdict. The 12 June 1978 judgment decreed, insofar as material to the appellate issues, that:

1. George Leighton Dahl is a man of sound mind.
2. The temporary guardianship be, and the same is hereby, in all things dissolved, set aside and terminated on this day, and the Application for Permanent Guardianship is in all things denied.

After Mrs. Akin’s amended motion for new trial was overruled, she perfected this appeal from the judgment.

First noticed is Mrs. Akin’s point that the court abused its discretion in overruling her second motion for continuance. The predicate for Mrs. Akin’s motion was that: (1) she did not have time to prepare her case for trial because of the complexity of the issues, the volumes of documents and plethora of witnesses involved, and the late entry into this suit by the firm of Vial, Hamilton, Koch, Tubb, Knox & Stradley, who joined her original counsel, James Hartnett of the firm of Turner, Hitchins, Mclnerney, Webb & Hartnett, with leave of the trial court on 17 May 1978; (2) she was delayed and prejudiced in her preparation of the cause for trial because Dahl refused to comply with a court order to produce copies of various checks and transcriptions of telephone conversations made by Dahl, by the accelerated program of discovery and necessity of court hearings to force Dahl to comply with court orders, by the inability of the court to rule on important motions, and particularly a motion to compel a witness to answer certified questions during a deposition, due to the shortness of time, and because Dahl filed a suit in Federal district court to restrain her from prosecuting the present suit; and (3) discovery was not complete in that further depositions were scheduled and Dahl had not produced all documentary evidence in his possession.

All of the matters alleged to warrant a continuance call for discretionary determinations by the trial judge. The parties recognize that the granting or refusing of a motion for continuance is within the sound discretion of the trial court. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex. 1964). The court’s decision is subject to review on appeal, American Bankers Insurance Company v. Fish, 412 S.W.2d 723, 725 (Tex.Civ.App.—Amarillo. 1967, no writ), but it will be reversed only upon a showing of abuse of discretion. Celanese Coating Co., Devoe Paint Div. v. Soliz, 541 S.W.2d 243, 249 (Tex.Civ.App.— Corpus Christi 1976, writ ref’d n. r. e.).

The primary thrust of the point is that associated counsel, Robert G. Vial, had insufficient amount of time to adequately and properly prepare Mrs. Akin’s case for trial. Cited is Leija v. Concha, 39 S.W.2d 948 (Tex.Civ.App.—El Paso 1931, no writ), and Moran v. Midland Farms Co., 282 S.W. 608 (Tex.Civ.App. — El Paso 1926, no writ), for the principle that it is error to deny a continuance when a party is unable to prepare for trial because substitute counsel is employed at such a late date that he is given inadequate time, or the trial is set at an unreasonably early date.

Granting the soundness of the principle, neither Leya nor Moran depicts the situation before us for review. In Leija, counsel of record withdrew the day before trial and substitute counsel was forced to trial thirty minutes after employment. Moran concerned the situation where counsel of record was called upon to meet and defend at a final hearing new issues which had been tendered only twenty-four hours earlier.

Here, while counsellor Vial did not officially enter the case until thirteen days before trial date, Mrs. Akin’s counsel from the inception of the litigation remained in the case. Although Mrs. Akin makes the general, conclusory allegation that the court’s denial of a continuance greatly prejudiced her in that there was insufficient time to prepare her case for trial, significantly there is no specification of any preparation that otherwise might have been made. There is no suggestion that Mrs. Akin’s original and remaining counsel was not fully competent to represent her interests; no attempt is made to designate any material fact which could have been, but was not, developed due to time limitation; and no suggestion of any particular deficiency in the presentation of her case is advanced. Absent a strong and specific showing of what preparation for trial might have been made but for the court’s denial of a continuance, no abuse of discretion is shown. McAx Sign Co., Inc. v. Royal Coach, Inc., 547 S.W.2d 368, 370 (Tex.Civ. App.—Dallas 1977, no writ).

Moreover, it should be noted that the instruments and documents alluded to in Mrs. Akin’s motion were, almost from the moment the proceedings entered the adversary stage, the subjects of extensive discovery actions vigorously pursued. The court made many rulings on motions regarding discovery, and there is no contention of inaction on any motion. Considering the court’s involvement, and its recognition that the sensitive nature of the suit necessitated its prompt disposition, the court was in the best position to determine whether discovery was reasonably complete and the case ready for trial. Without some positive showing otherwise, we are not prepared to say that the mere retention of co-counsel thirteen days before trial, coupled with a conclusory allegation of insufficient time to prepare for trial, shows an abuse of discretion in overruling a second motion for continuance. The eighth point of error is overruled.

During the course of the trial, the propriety of an entry into and the removal of some papers from Mr. Dahl’s apartment was questioned. There was testimony that the entry and removal of papers were sanctioned by a court order; however, Mrs. Akin, to rebut the suggested impropriety, tendered as evidence certain court documents relating to the temporary guardianship of the person and estate of Mr. Dahl. The documents were the court’s order authorizing her to take possession of Mr. Dahl’s apartment, the probate clerk’s certification that Mrs. Akin was issued Letters of Temporary Guardianship, and the order of the court appointing Mrs. Akin temporary guardian. The clerk’s certificate showed the guardianship was for the person and estate of “George Leighton Dahl, Incompetent,” and the two orders were styled “IN RE: GUARDIANSHIP OF GEORGE LEIGHTON DAHL, INCOMPETENT.” Mr. Dahl had no objection to the admission of the documents provided the court gave an appropriate instruction. The court admitted the documents and, over Mrs. Akin’s objections, informed the jury that:

You are hereby instructed that the style of the Cause No. 78-994-P/2 and the orders of April 20th, being Exhibit 111 and the order of April 27, 1978, being Exhibit A-109, and the certification by the County Clerk being A-110, hereby admitted into evidence, do not presume nor infer that George Leighton Dahl has been found incompetent.

Although Mrs. Akin states the court should not have commented on the evidence at all, the one objection she made known to the trial court and followed on appeal is that the instruction amounted to a comment on the weight of the evidence.

Undoubtedly, the court was empowered to instruct the jury in regard to the evidence. The documents were offered for the special purpose of rebutting any question of impropriety on the part of Mrs. Akin in the entry and removal of papers from Mr. Dahl’s apartment. They were not offered as evidence of the main issue — i. e., Mr. Dahl’s mental state; indeed, the documents were not admissible for that purpose, for they in no manner represented a prior adjudication of incompetency. Houston Bank & Trust Company v. Lee, 345 S.W.2d 320, 324 (Tex.Civ.App.—Houston 1961, no writ). Yet, in each document Mr. Dahl was labeled as “incompetent.” These circumstances authorized the trial court, in admitting the evidence for one purpose, to instruct against the prejudicial effect of the evidence being considered for another purpose. See Dallas Ry. & Terminal Co. v. Whitcomb, 139 Tex. 467, 163 S.W.2d 616, 617 (1942). Thus, the evidence having been introduced and admitted for a special purpose which was not competent upon the main issue, the court had the duty to confine its consideration to the particular, relevant issue, Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 480 (1943), or to give an instruction that would prevent the drawing of improper inferences from the evidence. Jordan v. Walker, 448 S.W.2d 837, 840 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.).

Hence, reached is the query:, does the instruction given amount to a comment on the weight of the evidence? In this connection, Mrs. Akin submits that the instruction “suggested to the jury an apparent [as opposed to an existing] opinion of the court that Dahl was competent (emphasis added).” The subtle distinction stated is not explained and, in the same manner, it is not explored; for, whether the adjective “apparent” is meant in its sense of being evident, clear or manifest to the understanding, or in the .sense of an illusory appearance that may or may not be borne out by more rigorous examination or greater knowledge, the instruction is susceptible to the vice ascribed only if its wording indicates the verity or accuracy of the fact to be determined. See McDonald Trans., Inc. v. Moore, 565 S.W.2d 43, 45 (Tex.1978).

Viewed in the light of the controlling principle, the instruction is not chargeable with being a comment on the weight of the evidence. Far from indicating an opinion by the court that Mr. Dahl was competent, the wording of the instruction does not indicate any opinion, either on that issue or any other inquiry about Mr. Dahl’s mental state. The language does no more than correctly advise the jury that the documents do not represent a prior adjudication that Mr. Dahl is incompetent. The ninth point is overruled.

To secure the appointment of a guardian for Mr. Dahl under her pleadings that he is not mentally competent, Mrs. Akin was statutorily required to prove that Mr. Dahl was “a person of unsound mind.” Tex. Prob.Code Ann. § 114(a) (Vernon 1956). Persons of unsound mind are defined in the Code to be “persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.” Tex.Prob. Code Ann. § 3(y) (Vernon 1956). This Code definition was quoted in company with the special issue, as recorded in the forepart of this opinion, when the court charged the jury. The submission of the definition was objected to by Mrs. Akin, and next considered is whether the submission, tested by the objections viable on appeal, is shown to be reversible error.

On appeal, however, Mrs. Akin asserts, among other contentions, that: (1) the definition placed a greater burden of proof on her than required by law; (2) to the extent the definition placed an undue burden of proof on her, the definition is also a misstatement of the law; and (3) the definition encompassed matters not raised by the pleadings and the evidence. None of these objections was voiced to the trial court and, considering the objections actually made, the court had no inkling of, nor the opportunity to pass on, the objections asserted for the first time on appeal. Because these objections were not specifically included in the objections made to the court’s charge before its submission to the jury, they, by force of Tex.R.Civ.P. 274, “shall be deemed waived.” Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (1949).

Despite the waiver of the objections themselves, the central argumentative aspects of them are inseparable from the deliberation called for by the objections which were expressed to the trial court and pursued on appeal. These objections are, briefly, that the definition tended to confuse and mislead the jury and constituted a comment on the weight of the evidence. All of the objections center around the contention that the listing of “persons non compos mentis, idiots, lunatics, [and] insane persons” should have been excluded from the definition. Ultimately, the test of the contention is not whether the definition is imperfect when measured by the circumstances of this cause, but whether the definition itself was, as Mrs. Akin urges, reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434.

In drafting the provisions of the Probate Code, the legislature employed the phrase “unsound mind” as a generic term for conditions of mental aberration or derangement, and then expressed its comprehension of the term by classifying the persons who would be included. Thus, for guardianships authorized for persons of unsound mind, the phrase “persons of unsound mind” carries its particular statutory definition.

Procedurally, when a case is submitted to the jury, the court is required to submit such definitions as shall be proper to enable the jury to render a verdict, notwithstanding that a given definition incidentally constitutes a comment on the weight of the evidence. Tex.R.Civ.P. 277. Respectable authority has declared that if a statutory term is properly used in a special issue submitted, then, it being a legal term, it is the duty of the court to give a definition and, there being the statutory definition, the court could give no other. Liberty Mut. Ins. Co. v. Boggs, 66 S.W.2d 787, 795 (Tex. Civ.App.—Eastland 1933, writ dism’d).

The definition given here, and objected to, is the definition declared in the law itself and, within the purview of Tex.R. Civ.P. 277, was given to set out the meaning of the statutory phrase required to be used in the special issue. Under the theory of the objections, reversible error appeared when the definition included classifications of unsound mind which were not in the case, either by pleading or any evidence. Cited in support of this theory are authorities recognizing the general rule that while a definition may be correct as an abstract statement of the law, it may be too broad if applied to a particular case.

Yet, the general rule is said to be inapplicable to demonstrate reversible error where the definition is statutory. The meaning of a legal phrase is not different in different cases. It may be that, because of the nature of the evidence, the failure to give all of a statutory definition is not erroneous; but, it does not follow that it would be reversible error to give the definition prescribed by law. The National Mut. Casualty Co. v. Lowery, 135 S.W.2d 1044, 1049 (Tex.Civ.App.— Eastland 1940), aff'd, 136 Tex. 188, 148 S.W.2d 1089 (1940).

Still, reversible error would occur under Mrs. Akin’s objections, if, as she contends, the definition reasonably led the jury to believe she must prove Mr. Dahl’s mental state comports to every classification of persons of unsound mind before he could be found to be of unsound mind. However, it is judicially recognized that jurors are persons of ordinary intelligence who are presumed to construe the use of words in their usual and ordinary sense. A fair reading of the definition reveals that each classification of persons who are of unsound mind is segregated from every other classification of persons who are of unsound mind. The average juror would read the definition in the same manner, particularly since there was no attempt in the pleadings, the voir dire examination of the jurors, the presentation of evidence, nor in the jury argument to classify Mr. Dahl other than one who was not mentally competent or physically able to attend to his personal and business affairs.

This is not to say that the full statutory definition should be given in every guardianship case, or in any particular case, where a question of unsound mind is the main issue. It is to say that, under the circumstances of this controversy, the giving of the statutory definition is not shown to be reasonably calculated to cause and probably did cause the rendition of an improper judgment. Points one through six are overruled.

Mrs. Akin challenges the factual sufficiency of the evidence to support the jury’s finding that Mr. Dahl is not of unsound mind. The finding can be set aside only if a consideration of all of the evidence, both supporting and contrary to the finding, leads to the conclusion that the finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304, 305-06 (1960).

No beneficial purpose would.be served by detailing or illustrating, even in summary, the evidence adduced at the nine-day trial. Suffice it to state that Mr. Dahl’s personal and business affairs were explored in detail. Both parties presented evidence relative to Mr. Dahl’s medical history, his health, his business acumen and lack of it, and his behavior, including even his driving habits and his actions concerning his marital plans. From this evidence emerged testimony that Mr. Dahl was not mentally or physically competent to handle his personal or business affairs—four qualifying medical experts who had examined Mr. Dahl, and numerous laypersons who had observed his acts and conduct, expressed the opinion that Mr. Dahl was of unsound mind. From this evidence also emerged testimony that Mr. Dahl was lucid and maintained good business judgment—many laypersons, who had been and were associated with him, gave the opinion that he was of sound mind. The jury had the opportunity to observe the witnesses, including Mr. Dahl as he attended court throughout the nine-day trial, and to weigh their testimony, considering the factors upon which it was based. •

The evidence bearing on the main issue was conflicting and the testimony was inconsistent. It was for the jury, as the finder of the fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve the conflicts and inconsistencies in the testimony. In its role, the jury was privileged to believe all or part or none of the testimony of any one witness, Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.—Amarillo 1977, writ ref’d n. r. e.), including the opinion testimony of the medical experts which, although uncontroverted by other medical testimony, is not conclusive. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944).

After considering and weighing all of the evidence and extending due deference to the jury’s prerogative, it cannot be held that the jury’s finding is.so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In arriving at this determination, it is recognized that the jury might have, and Mrs. Akin stresses the jury should have, reached the opposite finding from the evidence; but that would not justify the setting aside of the fact finding the jury concluded was the most reasonable under the evidence, for our jurisdiction has found no better way of establishing facts than through the findings of a jury made on sufficient evidence. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (1951). The seventh point is overruled.

Improper conduct by Mr. Dahl’s counsel during the course of the trial is assigned as prejudicial error. Specifically, improper conduct is said to have occurred in cross examination and by side bar remarks and in jury argument.

A deliberate review of the record in relation to the cross examination and side bar remarks set out in Mrs. Akin’s brief reveals that either: no objection was made to the conduct; or the objection made was sustained and, in some instances, evoked an instruction from the court; or, although the cross examination was preempted by a timely objection which was sustained, subsequent cross examination in the area was without objection. Failure to object waives error. Cooper v. Argonaut Insurance Co., 430 S.W.2d 35, 37 (Tex.Civ.App.— Dallas 1968, writ ref’d n. r. e.). Moreover, if an objection to testimony is properly made, subsequent presentation of the same testimony, without further objection, may foreclose appellate review. Poole v. State Highway Department, 256 S.W.2d 168, 170 (Tex.Civ.App.—Fort Worth 1953, writ dism’d).

Several excerpts from the closing argument by Mr. Dahl’s counsel are designated as prejudicial remarks. In spite of the alleged impropriety of the statements on appeal, there was no objection to the jury argument. The designated portions of the argument, if objectionable, were curable. Curable argument requires an objection to preserve reversible error. Houston Lighting & Power v. Fisher, 559 S.W.2d 682, 684 (Tex.Civ.App.— Houston [14th Dist.] 1977, writ ref’d n. r. e.). Because no objection was offered, any error was waived. Cooper v. Argonaut Insurance Co., supra, at 37.

The fervent ardor generated by the controversy does not escape notice. On occasion, counsel strayed from the prescribed decorum and, on occasion, the trial court acted to curtail conduct it deemed indecorous. By virtue of Tex.R.Civ.P. 269, which requires counsel to confine argument to the evidence and the opposing argument and directs the trial court to rigidly suppress any side bar remarks, control of counsel must rest within the sound discretion of the trial court. It is uniformly held that a reviewing court will not interfere unless it is clear that the trial court abused its discretion in this regard. Associated Employers Insurance Co. v. Burris, 321 S.W.2d 112, 118 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.). No clear abuse of discretion is perceived.

And, although Mrs. Akin views the conduct to be prejudicial to the extent that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment, it cannot be held with any confidence that it was counsel’s conduct, and not the evidence heard by the jury, which caused the jury to reach its verdict. Thus, the alleged conduct was not so improper as to warrant a reversal of the judgment. See Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953). Point eleven is overruled.

By her tenth point of error, Mrs. Akin submits that the judgment should be modified to conform to the verdict. To the extent that a reformation of the judgment is necessary to conform it to the verdict, the point is well taken and it is sustained. The jury found that Mr. Dahl is not of unsound mind, but the judgment decreed that he is a man of sound mind. The directing language of Tex.R.Civ.P. 301 mandates that “[t]he judgment of the court shall conform to the . . . verdict.” Accord, Farmer v. Denton, 231 S.W.2d 908, 910 (Tex.Civ. App.—Amarillo 1950, no writ). So, the judgment must and will be reformed to conform to the verdict.

Lastly, Mrs. Akin contends that the cumulative effect of the errors alleged in her preceding eleven points dictates a reversal of the judgment. Inasmuch as no allegation of error requiring reversal was sustained, the cumulative effect of the allegations does not rise to the height of reversible error. The twelfth point of error is overruled.

Mr. Dahl has presented six cross-points for consideration only if the judgment is reversed and remanded on the strength of Mrs. Akin’s points of error. Because the judgment is to be reformed and affirmed, the cross-points are mooted.

Accordingly, the judgment is reformed to eliminate the first decretal provision reading, “1. George Leighton Dahl is a man of sound mind,” and, in lieu thereof, to decree that “1. George Leighton Dahl is not of unsound mind.” As thus reformed, the judgment is affirmed.

COUNTISS, J., not participating.

      . This section provides that before the appointment of a guardian for a person, there must be a finding that the person “is either a minor, a person of unsound mind, an habitual drunkard, or a person for whom it is necessary to have a guardian appointed to receive funds due such person from any governmental source.”

      . Similarly, “incompetents” or “incompetent persons” carry the Texas Probate Code definition of “persons non compos mentis, idiots, lunatics, insane persons, common or habitual drunkards, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs. Tex. Prob.Code Ann. § 3(p) (Vernon 1956).