author: JAMES, Justice.

text:
    CHARTER OAK FIRE INSURANCE COMPANY a/k/a Travelers Insurance Company, Appellant, v. Dorothy Jean SQUARE, Appellee.
    No. 5434.
    Court of Civil Appeals of Texas, Waco.
    July 17, 1975.
    Rehearing Denied Aug. 7, 1975.
    Vial, Hamilton, Koch, Tubb, Knox & Stradley, C. L. Mike Schmidt, Jr., Travis E. Vanderpool, Chas. H. Smith, Dallas, for appellant.
    Yarborough, Hinds & Shahan, Don B. Hinds, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from an order sustaining a Plea in Abatement for want of jurisdiction. We reverse and remand.

This is a workmen’s compensation case in which an insurance carrier has filed an original action to set aside an award of the Industrial Accident Board. This action was filed in the District Court of Ellis County, Texas, and styled, “Charter Oak Fire Insurance Co. a/k/a Travelers Insurance Co. v. Dorothy Jean Square.” Subsequent to the filing of the Plaintiff’s Original Petition, the Defendant Dorothy Jean Square filed her sworn “Plea in Abatement” alleging that the suit was not filed by the party against which the Industrial Accident Board’s award was entered and seeking that the court dismiss this action. That is to say, the Plea in Abatement asserted that Travelers Insurance Company was the insurance carrier against which the claimant filed her claim, and against whom the award of the Industrial Accident Board was made, and was the carrier which filed notice of appeal from said award. Further, that Charter Oak never was a party before the Industrial Accident Board proceedings and therefore had no standing to maintain this suit in the District Court to set aside the award of the Industrial Accident Board; that Charter Oak and Travelers are two separate and distinct corporations. The trial court sustained the Plea in Abatement and dismissed the cause for want of jurisdiction, from which Appellant Travelers Insurance Co. appeals.

The Defendant-Appellee Dorothy Jean Square filed her claim before the Industrial Accident Board under the Workmen’s Compensation Act for injuries allegedly sustained on or about March 20, 1973, in Ellis County, Texas; said claim before the Industrial Accident Board was numbered L-0436750 N3 and styled, “Dorothy Jean Square, employee, v. Haggar Co., a corporation, employer, and the Travelers Insurance Co., insurance carrier.” The Industrial Accident Board made and entered its award on August 28, 1974; Travelers Insurance Co. on September 4, 1974, gave notice that it would not consent to abide by said award and of its intent to bring suit to set aside said award; within twenty days of said Board’s final award, this suit was filed to set aside said award and styled “Charter Oak Fire Insurance Co. a/k/a Travelers Insurance Co. v. Dorothy Jean Square.”

After the Defendant-Appellee Square filed her Plea in Abatement hereinabove referred to, the “Plaintiff’s First Amended Original Petition” was filed on December 20, 1974, which deleted all reference to Charter Oak Fire Insurance Co. In this amended pleading Travelers Insurance Co. was shown as the plaintiff without any mention of Charter Oak; otherwise the allegations were substantially the same as in the Original Petition.

Appellant’s first two points complain of the trial court’s dismissal of the cause for want of jurisdiction because it says Travelers timely filed its suit to set aside the award and is named as plaintiff therein. We sustain these points and reverse the trial court’s order of dismissal and remand the cause for trial on the merits.

The specific question which we are obliged to answer in determination of this matter is this: In Plaintiff’s Original Petition, who was the “real party plaintiff” or the “intended plaintiff.”? If the Plaintiff was in truth and in fact Traveler Insurance Co., then the trial court had jurisdiction over the cause, and therefore erred in entering its order of dismissal. If on the other hand the “real plaintiff” was not Travelers, but Charter Oak, then the trial court’s action was proper.

The courts will consider a petition in its entirety, will construe it as favorably as possible for the pleader, and will look to the pleader’s intendment, in order to determine the nature and purpose of the plaintiff’s suit. Gulf, Colorado and Santa Fe Railway Co. v. Bliss (Tex.Sup.Ct.1963) 368 S.W.2d 594, 599; Adams v. Adams (Tex.Civ.App., Waco CA 1948) 214 S.W.2d 856, 858, error refused NRE. There can be no doubt that the purpose of this suit as set forth in the Original Petition is the appeal of a specific workmen’s compensation award in favor of the Defendant-Appellee Mrs. Square against Travelers Insurance Co.

When we consider the four corners of Plaintiff’s Original Petition, we see that its allegations refer to a specifically numbered and styled cause before the Industrial Accident Board in which Dorothy Jean Square is the employee and claimant, and Travelers Insurance Co. is the insurance carrier; that an award was made upon Mrs. Square’s claim in said cause; that within twenty days after the rendition of the award Travelers gave notice in writing to the Board that it would not consent to abide by the award and that it would within twenty days after the date of filing of such notice, bring suit in a court of competent jurisdiction to set aside the award. Then we see that Plaintiff’s Original Petition was filed within the twenty-day period (after notice was filed before the Board as above referred to) in the name of “Charter Oak Fire Insurance Co. a/k/a Travelers Insurance Co.” as Plaintiff.

Charter Oak never was shown to have been a party before the Industrial Accident Board in this matter, nor did it appear in any way until Plaintiff’s Original Petition was filed. The record before us does not show why Charter Oak was named in the petition; however, by holding that Travelers is the real plaintiff, then the petition constitutes a logical sequence to all the proceedings which have theretofore taken place before the Industrial Accident Board. We therefore hold that Travelers Insurance Co. was in truth and in fact the Plaintiff in the Original Petition; and since such petition was timely filed, the trial court had jurisdiction of the cause.

It is the settled rule in this State that the mere misnaming of a plaintiff in an original petition does not prevent the tolling of a statute of limitations by the filing; and that this misnomer is properly eorreetible by an amended petition, even after the running of the time prescribed in the statute. Womack Machine Supply Co. of Houston v. Fannin Bank (Tex.Sup.Ct.1974) 504 S.W.2d 827; San Antonio and A. P. Ry. Co. v. D. M. Picton & Co. (Tex.Civ.App., San Antonio CA 1938) 111 S.W.2d 842, 844, writ refused; Wisconsin Chair Co. v. I. G. Ely Co. (Tex.Civ.App., Fort Worth CA 1936) 91 S.W.2d 913, 914, no writ history. Applying the reasoning of the foregoing authorities to the case at bar, we hold that when the Original Petition was filed herein (which was done within the twenty days prescribed by Section 5, Article 8307, Vernon’s Texas Civil Statutes), the potential jurisdiction of the trial court to hear the appeal de novo of the compensation award was invoked. This being so, the order of dismissal entered by the trial court was error.

Accordingly, we reverse the trial court’s order of dismissal and remand the cause for trial on the merits.

Reversed and remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Russell M. RAYNER, Appellant, v. JOHN BUIST CHESTER HOSPITAL et al., Appellees.
    No. 5456.
    Court of Civil Appeals of Texas, Waco.
    July 17, 1975.
    Rehearing Denied Aug. 7, 1975.

      Ruth Rayner, Dallas, for appellant.
    Seay, Gwinn, Crawford, Mebus <& Blake-ney, James S. Maxwell, Dallas, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a medical malpractice suit against defendants’ hospital and medical doctor.

Plaintiff sued defendants for personal injuries sustained by him when a great amount of blood flowed into his scrotum when the diatube was inserted into his groin during a routine catheterization test. Plaintiff plead seven specific acts of negligence on the part of the defendants, and then in paragraph VII plead in the alternative “he does not know the exact cause of said accident, the blood flowing into the scrotum, but that the character and circumstances of the said accident is such as to lend reasonably to the belief that without negligence the accident would not have happened. * * * By reason of the foregoing plaintiff is entitled to rely upon the doctrine of res ipsa loquitur in holding said defendants liable for the said injuries resulting from said accident”.

Defendants specially excepted to the foregoing “for the reason that same attempts to plead the theory of res ipsa loqui-tur which under the facts and circumstances of this case * * ⅜ is not permitted * * *

The trial court sustained such exception and deleted plaintiff’s plea of res ipsa loqui-tur from plaintiff’s pleadings.

After trial to a jury on plaintiff’s plead acts of negligence, the trial court on motion of defendants, withdrew the case from the jury, and rendered judgment plaintiff take nothing by his cause of action against defendants.

Plaintiff appeals on one point:

“The court erred in disallowing plaintiff’s ■ alternative pleading of Res Ipsa Loquitur for either or both of the two reasons, to wit:

“1) The facts and circumstances of this case fall within one of the three types of Texas malpractice cases in which no expert testimony is required and in which Res Ipsa Loqui-tur is applicable.
“2) There is no basis in medical malpractice cases in Texas to warrant a blanket rule that Res Ipsa Loquitur cannot be applied to malpractice cases.”

Plaintiff has brought forward no Statement of Pacts asserting “the only Point of Error being alleged is one of law concerning the use of the Res Ipsa Loquitur doctrine in a malpractice case and it is felt that there is adequate information concerning the case in the Transcript and Supplement to the Transcript.”

The doctrine of res ipsa loquitur is generally held by Texas courts to be inapplicable to medical malpractice cases. Harle v. Krchnak, Tex.Civ.App., NWH, 422 S.W.2d 810; Shockley v. Payne, Tex.Civ.App., NRE, 348 S.W.2d 775; Bell v. Umstattd, Tex.Civ.App., NRE, 401 S.W.2d 306.

An exception to this rule is recognized where the nature of the alleged malpractice and injuries are plainly v/ithin the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such eases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Harle v. Krchnak, supra; Shockley v. Payne, supra; Goodnight v. Phillips, Tex.Civ.App., NRE, 418 S.W.2d 862; Louis v. Parchman, Tex.Civ.App., NRE, 493 S.W.2d 310; Stinnett v. Price, Tex.Civ.App., NRE, 446 S.W.2d 893.

In the case at bar plaintiff plead that while undergoing a routine catheteri-zation test, blood flowed into his scrotum causing injury.

Whether such described injury resulted from negligence is not within the common knowledge of laymen, but is peculiarly within the knowledge of medical witnesses. See Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782; Amerine v. Hunter, Tex.Civ.App., NRE, 335 S.W.2d 643; Shockley v. Payne, supra.

Plaintiffs pleadings do not allege facts that would invoke the doctrine of res ipsa loquitur in a medical malpractice case.

Plaintiffs point is overruled.

Affirmed.


author: SPURLOCK, Justice.

text:
    Norris BRANHAM et al., Appellants, v. Eva Mae SHORT, Appellee.
    No. 17660.
    Court of Civil Appeals of Texas, Fort Worth.
    July 18, 1975.

      Hill, Branham & Graham, and Norris G. Branham, Arlington, for appellants. ■
    Meier, Keith & Adams, and William C. Meier, Euless, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal by Junie A. Johnson, Jr., and wife, Gladys Rosalie Johnson; and Norris Branham, substitute trustee, from an order of the trial court, granting appellee, Eva Mae Short, a temporary injunction enjoining the Johnsons from exercising during the pendency of this suit their power of sale under the deed of trust executed by appel-lee covering a residence in Tarrant County. Branham, the substitute trustee, is likewise enjoined from foreclosing on the property during the pendency of this suit.

This suit initiated by Mrs. Short is one in equity seeking rescission of a real estate sale on the grounds of overreaching, misrepresentation, and fraud, and in the alternative, for damages; and for a temporary injunction restraining for the duration of the suit a foreclosure of a deed of trust lien on the property given to secure the balance due on the purchase price of the property.

When the temporary injunction came on for hearing all the parties were present through their attorneys and stipulated that the plaintiff would testify substantially to all the facts as pleaded in her original petition and that all the facts as pleaded were uncontroverted for the purposes of the hearing. The parties further stipulated that the order of the Court would be determined by its resolution of the legal issue of whether or not the foreclosure of the property in question would cause plaintiff to lose her cause of action to sue for rescission under the transaction in question.

The parties in their respective briefs treat the facts alleged under oath in plaintiffs petition as being true for the purpose of this appeal

We then look to plaintiffs pleading for the facts considered by the trial court in granting the temporary injunction.

Plaintiff alleges at length various acts of fraudulent misrepresentation made by sellers and their real estate agent concerning the property they sold to plaintiff which induced plaintiff to pay $2,000.00 cash and sign a note secured by a vendor’s and deed of trust lien for the balance of the purchase price in the amount of $11,500.00, payable in installments of $100.00 each month.

Plaintiff alleges she is a widow who is elderly, is suffering from ailing vision, and the disabilities and infirmities which sometimes affect the aged. She is not experienced in land values or real estate transactions. The sellers and their agents knew this. Sellers misrepresented the physical condition of the property, the cost of placing it in a livable condition, its value on the real estate market, and other material matters that induced plaintiff to enter into the real estate transaction.

She further alleged the sellers had posted the property for sale and it would be sold unless sellers were restrained.

Plaintiff further prayed that the contract of sale, warranty deed, deed of trust note, and deed of trust mortgage be rescinded and that the court place the parties to this transaction in their original position prior to the closing of this real estate transaction.

Appellants predicate this appeal on a single point of error to the effect that the trial court erred in granting appellee’s application for temporary restraining order and injunction for the reason that a trustee’s foreclosure sale will not preclude a cause of action for rescission of the transaction in question as a matter of law.

A suit to cancel written instruments is an equitable proceeding. It seeks a disaffirmance of the instrument and its cancellation so that the parties thereto may be restored in so far as is possible to their original status or position. Normally the plaintiff must offer to do equity in order to maintain his cause of action. What amounts to an offer to do equity is determined by the widely varied fact situations involved.

Ordinarily the plaintiff must return to defendant, or offer to return to him, whatever he may have received from him. Ordinarily, in a suit to rescind a contract for sale of land, the plaintiff must either tender back the property and title thereto, or else abandon possession of the property and tender a reconveyance thereof in court. Price v. Kittredge, 361 S.W.2d 721 (Fort Worth, Tex.Civ.App., 1962, no writ hist.); Whitfield v. Klein Independent School District, 463 S.W.2d 232 (Houston, Tex.Civ.App., 14th Dist., 1971, ref., n. r. e., 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163, cert. denied).

In the event appellee Short did not apply for and obtain a temporary injunction prohibiting the trustee’s sale of the property here involved she might have lost her cause of action for the rescission. Texas Co. v. Tucker, 129 S.W.2d 762 (Fort Worth, Tex.Civ.App., 1939, writ ref.); Graham & Locke Investments v. Madison, 295 S.W.2d 234 (Dallas, Tex.Civ.App., 1956, ref., n. r. e.).

In the case of Bank of Southwest National Ass’n v. La Gasse, 821 S.W.2d 101 (Houston, Tex.Civ.App., 1959, no writ hist.) the court had before it a very similar fact situation. In that case a suit was filed for cancellation and rescission of the sale of real property and, in the alternative, damages. A temporary injunction was granted enjoining the sale of the property under a deed of trust and there were allegations of fraud concerning the value of the subject property. The court noted the status of the Texas law concerning the misrepresentations as to value and stated it was actionable if the seller claiming special knowledge makes misrepresentations as to value to one ignorant in respect to the values, when such were known to the seller, with the intention that the representations will be relied upon. The court fully discussed the question of the adequacy of legal remedies and pointed out that the appellees’ legal remedy was not as plain and adequate; and, in any event, not as practical and efficient to the ends of justice and its prompt administration as the remedy in equity and noted that in the event of rescission and cancellation of the instrument, attorney’s fees and penalties that would accrue if the foreclosure were allowed, would not be chargeable to appel-lees as both parties would be restored to their former position prior to the property sale. The court concluded: “In the present case fraud is the gravamen of the complaint. Appellees have pleaded a cause of action for rescission and cancellation and, in the alternative, for damages. The proof has raised issues of fact as to whether ap-pellees are entitled to rescission. In balancing the equities between the parties, we are of the opinion that appellant is adequately protected by appellees’ bond and that the temporary injunction will not deprive appellant of any benefits that it might show itself entitled to, whereas a dissolution of such injunction might place appellees in a position where they could lose benefits that otherwise might accrue to them. We have concluded that there is nothing in the record that manifests such an abuse of discretion upon the part of the Trial Court in granting the injunction maintaining the status quo pending final adjudication of the cause, as would require this Court to revise that ruling and reverse the Trial Court’s judgment.”

Appellants urge that even though there may have been several valid reasons for the court having granted the temporary injunction, the court granted the injunction on an incorrect principle of law in that a foreclosure would not preclude plaintiff’s right to rescission and therefore the case should be reversed.

If the fact were established that the trial court gave an erroneous reason for granting the temporary injunction, that fact alone does not require its dissolution. In the case of City of Irving v. Dallas County Flood Control Dist., 383 S.W2d 571 (Tex.Sup., 1964), in passing upon this point of law, that court stated: “But the fact that the courts below gave an erroneous reason for issuing and sustaining the temporary injunction does not require its dissolution if the pleadings and the evidence provide a sound basis in law for its issuance. A trial court is not required in granting a temporary injunction to assign reasons for finding that the applicant will probably prevail in a trial on the merits.”

The applicable law is well stated in the case of Texas Foundries v. International Moulders and F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952) as follows: “The appellate court cannot substitute its discretion for that of the trial court. It has no independent discretion in reviewing such an order; its sole function is to determine whether there has been a clear abuse of discretion by the trial judge. . . .We held in Railroad Commission v. Shell Oil Company, supra, that even though the district court erred in its conclusion on the applicable substantive law, it did not follow that that court abused its discretion in granting a temporary injunction to preserve the rights of the parties pending trial on the merits.” See also Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 285 (Tex.Sup., 1947).

The plaintiff further alleged in effect that the Johnsons, the holders of the installment note, had attempted to accelerate the payments and foreclose for the entire face amount of the note including payments not yet due without complying with the terms of the note and without making proper demand for such payments.

These facts alone are sufficient grounds to sustain the judgment of the trial court.

■In the case of Allen Sales & Servicecenter, Inc. et al. v. Ryan et al., 525 S.W.2d 863 in an opinion delivered by the Supreme Court of Texas on July 9, 1975, that court held that the holder of an installment note must make a demand to the maker for payment of an overdue installment before he cam exercise the optional acceleration clause in the note.

The sole question before the trial court at the time it granted the temporary injunction was whether or not Eva Mae Short had a probable right to injunction relief or would suffer a probable harm unless a temporary injunction was issued.

It is well settled that in determining whether a trial court erred in granting a temporary injunction, the sole question is whether the court abused its discretion. The scope of the inquiry is limited to this issue. Bank of Southwest National Ass’n v. La Gasse, supra; Texas Foundries v. International Moulders and F. Wkrs., supra; Railroad Commission v. Shell Oil Co., supra. Numerous cases are cited in support of this legal principle in 31 Tex.Jur.2d, “Injunctions”, Sec. 224, p. 345, “Issues — Trial court’s discretion”, (1962 Ed.).

We are of the opinion that there is nothing in the record that manifests such an abuse of discretion upon the part of the trial court in granting the injunction maintaining the status quo pending final adjudication of the cause, as would require this Court to revise that ruling and reverse the trial court’s judgment.

Appellants’ point of error is overruled.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    Clyde M. FORD, Appellant, v. Ronald Albright ALLEN et al., Appellees.
    No. 12255.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Rehearing Denied Aug. 13, 1975.

      Stephen D. Ramsey, Coffee, Goldston & Bradshaw, Austin, for appellant.
    William S. Lott, Georgetown, for appel-lees.
   O’QUINN, Justice.

Clyde M. Ford, individually and as administrator with will annexed of the estates of his deceased parents, brought this suit in 1973, naming as defendants the three grandsons of his mother, by an earlier marriage, and sought judicial construction of certain portions of the wills which plaintiff asserted are ambiguous.

The three defendants, Ronald Albright Allen, James Donald Allen, and Claude William Allen, all non-residents of Texas, answered and defended under two principal contentions. Defendants contended that the wills of their grandmother and her husband were not ambiguous, and that their grandmother, who survived her husband, after taking under his will died without providing a contingent devisee in event her husband, the sole devisee, predeceased her. Since there was no taker under her will, defendants contended, the entire estate passed under the laws of descent and distribution of Texas, entitling them to share in the property.

Trial was before the court without intervention of a jury, and the court entered judgment sustaining contentions of defendants that the wills were not ambiguous and that the surviving wife died intestate, after taking all property under the will of her husband, and that her estate “passed and descended in fee simple to her heirs at law under the laws of descent and distribution of Texas.”

We will affirm the judgment of the trial court.

The trial court filed findings of facts and conclusions of law in addition to the findings and conclusions contained in the judgment. A statement of facts has been brought forward. When specific findings and conclusions are filed and a statement of facts is before the appellate court, the findings will be sustained if there is any evidence to support them. The appellate court will review the legal conclusions drawn from the facts found to determine their correctness. 4 McDonald: Texas Civil Practice, sec. 16.10(b), p. 29 (1971).

Chester Melvin Ford and Lola Mae Ford, the deceased persons whose wills are under review, were married in August of 1943, and Clyde M. Ford, appellant here and plaintiff below, was the only child bom to their marriage. Mr. Ford had been married twice prior to his marriage to Mrs. Ford, but had no children from those marriages. Mrs. Ford also had been manned earlier, and from that marriage she had a son, Otis Martin Allen, who died in April of 1958, leaving three sons, resulting from two marriages. The three surviving sons were defendants below and are appellees in this appeal.

The undisputed evidence supports the finding of the trial court that Chester Melvin Ford and his wife, Lola Mae Ford, each executed a holographic will on the same day in April of 1960, and each of them devised “all my property to my beloved” spouse, followed by certain additional identical language which is under dispute. Mr. Ford died November 25, 1972, and less than a month later Mrs. Ford died, on December 18, 1972.

It also appears undisputed that, as the court found, Mr. Ford at the time of his death owned approximately 450 acres of land in Bell County, as Ms separate property, and owned community property with Ms surviving wife which consisted of cattle, money, and other personal property.

The language of the wills giving rise to this suit, as contained in the will of Mr. Ford, follows:

“After the Payments of my Just Debts I devise all my property to my beloved wife Lola Mae Ford to do with as she Bee fit except that she is not to Bell, Morage [sic], or Lease any of our real Estate for more than Three (3) years without the written agreement of our son Clyde Melvin Ford.”

Appellant contends that the language is ambiguous and requires construction, and that under a proper construction the language “created a life estate in real property in Lola Mae Ford with remainder to Clyde M. Ford in fee simple, or alternatively created a testamentary trust expressly or by implication for the use and benefit of Clyde M. Ford.”

The trial court correctly determined that the language of the wills, identical in each instrument, is clear and unambiguous, and that Mr. Ford devised “fee simple title to all the property, real and personal, owned by . [him] at the time of his death to his surviving wife . . . ” and that if Mr. Ford had been living at the time of his wife’s death, Mrs. Ford’s will would have devised all the property to Mr. Ford.

The trial court further concluded properly that (1) “ . . . neither of such wills create [sic] a life estate to the surviving spouse with remainder to Clyde M. Ford . ” and (2) “ . . . such wills do not create testamentary trusts, expressly or by implication, for the use and benefit of Clyde M. Ford.”

The trial court concluded (1) that the language in the wills, providing that the devisee was not to sell, mortgage, or lease any of the realty for three years without written agreement of Clyde M. Ford, was “void as being a restraint on alienation and repugnant to the devise in fee; ” and (2) the language of the wills, under provisions of Article 1291, Vernon’s Ann.Tex.Civ.8t., devised fee simple title to all property, since the wills contained no “language clearly showing a lesser estate than the fee was intended to be devised.” We approve these conclusions as correct applications of the law to the language of the wills.

Appellant contends that by extrinsic evidence it may be demonstrated that the true intent of Mr. and Mrs. Ford was to devise their real property to their only son, Clyde M. Ford, and that because of the ambiguity of the language in the wills, such evidence should have been considered. The trial court permitted the introduction of extrinsic evidence offered for the purpose of showing an intent different from results reached by the trial court.

In brief, the evidence was that the real estate was the separate property of Mr. Ford, and that the three grandsons of Mrs. Ford were not kin to Mr. Ford; that Clyde M. Ford had helped to work the lands contained in the 450 acres, whereas the defendants had never worked any part of the land; that the grandsons were not close to their grandmother or to Mr. Ford, and none of them attended either the funeral of Mr. Ford or their grandmother; that Mrs. Ford set up a savings account for the grandsons and this alone was intended to take care of them; that Clyde M. Ford was close to his parents and was the natural object of the deceaseds’ bounty, and the defendants were not; that during their life both Mr. and Mrs. Ford indicated orally that they wanted Clyde to have the land.

It is the established rule that an ambiguity arises only when the meaning which emanates from language used in the will admits of more than one interpretation. We find no ambiguity in the language of the Ford wills which in each writing clearly and plainly devises all property to the other spouse to do with as the other may see fit. The attempt, in language that follows, to place a restraint on alienation could not change or nullify the devise. It is not a function of the courts, nor is it a role the courts may assume, to revise or to make over the writing in a will to achieve results different from results which flow from the plain language used by the maker of the will. The courts may not speculate, from extrinsic evidence or otherwise, that some other result may have been intended. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). These principles were examined in greater detail and additional authorities were reviewed in the recent opinion of this Court in Price v. Austin National Bank, 522 S.W.2d 725, 781 (Tex.Civ.App. Austin 1975, writ ref., n. r. e.).

Appellant presents twenty-seven points of error on appeal. Under the holdings we have announced, we have disposed of appellant’s principal contentions, and those points are overruled. Appellant also urges that the trial court erred in refusing to make a determination of heirship, and under these points insists that if Mrs. Ford died intestate, appellant is entitled to one-half of her estate and defendants are entitled only to the remaining one-half. The trial court correctly declined to decide the matter of heirship since administration of the estates is still pending in Bell County, where the County Court has acquired jurisdiction to determine heirs of the deceased. Sec. 48, Texas Probate Code (as amended Acts 1971, 62nd Leg., p. 971, ch. 173); 17 Texas Practice, Woodward and Smith: Probate and Decedents’ Estates, sec. 7, p. 15; sec. 202, p. 170 (1971), and cases cited.

All of appellant’s points of error have been carefully examined and considered, and all points are overruled.

The trial court in its judgment denied the request of Clyde M. Ford that attorney’s fees, court costs, and other expenses incurred by this suit to construe the wills be paid out of the two estates as costs and expenses of administration, and ordered all such costs and expenses to be paid by Ford individually.

The judgment of the trial court is in all things affirmed. It is ordered that costs of this appeal be taxed against appellant, Clyde M. Ford, individually.

Affirmed.


author: OSBORN, Justice.

text:
    In the Matter of J. T.
    No. 6457.
    Court of Civil Appeals of Texas, El Paso.
    July 23, 1975.

      Ater & Hirsch, H. Thomas Hirsch, Odessa, for appellant.
    Walter M. Holcombe, County Atty., Pecos, for appellee.
   OPINION

OSBORN, Justice.

This is a juvenile delinquency case. The jury found the Appellant engaged in delinquent conduct as charged in receiving and concealing stolen property and in committing malicious mischief, but found in Appellant’s favor on the charges of aggravated assault and possession of marijuana. The Court committed Appellant to the care, custody and control of the Texas Youth Council. We reverse and remand.

The Appellant presents twelve points of error. The State has made no reply. Point of Error Number Seven contends that the trial Court erred in not granting a motion for instructed verdict because the State failed to prove the age of the child. The order of commitment recites that the trial “court also finds that said child at the time of this hearing was 17 years of age, ⅞ ⅞.” The first paragraph of the motion for instructed verdict states:

“1. The State has wholly failed to prove that the minor child is in fact a minor child, under the age of 17 years, as susceptible to the jurisdiction of this Court. Let me get my notes here . the Respondent would respectfully allege that the age is jurisdictional in the instant cause and without proof of age, the said Court has no jurisdiction over the minor child, if in fact, he is a minor child, and if, in fact, he was a minor child at the time the alleged offenses were committed.”

The Texas Family Code provides in Section 51.02 that a “child” means a person who is:

“(A) ten years of age or older and under 17 years of age; or
“(B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.”

This provision of the Code defines a jurisdictional prerequisite for juvenile court proceedings. 5 Tex.Tech.L.Rev. 513 (1974).

The language of the Court in Miguel v. State, 500 S.W.2d 680 (Tex.Civ.App.—Beaumont 1973, no writ), is determinative of the issue before this Court. In that ease, the Court said:

“The State’s petition contained the necessary jurisdictional allegations; but, the juvenile court being one of limited jurisdiction, the allegation as to the age of the accused must be proved upon the hearing in order to show jurisdiction in the court. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1089 (1926); Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 688 (1928). Being an inferior court, as distinguished from a court of general jurisdiction, there are no presumptions as to the proper exercise of jurisdiction. Geffert v. Yorktown Inde pendent School Dist., 290 S.W. 1083, 1085 (Tex.Com.App.1927).
U * * *
“Thus, in order for the juvenile court to have jurisdiction of our appellant, it was incumbent upon the State to allege and prove that appellant was within the age limits of its statutory jurisdiction. Such proof is wholly lacking in our record.”

There being no evidence to support the trial Court’s finding, the Appellant’s seventh point of error is sustained, and the judgment of the trial Court is reversed and the cause remanded to the trial Court.


author: SHANNON, Justice.

text:
    Talmadge F. COMBS, Appellant, v. The STATE of Texas, Appellee. Talmadge F. COMBS, Appellant, v. RAILROAD COMMISSION OF TEXAS, Appellee.
    Nos. 12313, 12314.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.

      Thomas Burch, Sour Lake, for appellant; Talmadge F. Combs, pro se.
    John L. Hill, Atty. Gen., Jerry H. Roberts, Linward Shivers, Asst. Attys. Gen., Austin, for appellees.
   SHANNON, Justice.

Upon our motion we have consolidated for purposes of appeal, cause numbers 12,-313 and 12,314. Both causes will be disposed of in this opinion.

In No. 12,313, appellee, The State of Texas, sued appellant, Talmadge Combs in December of 1972, in the district court of Travis County for civil penalties for an alleged violation of a special order of the Railroad Commission of Texas. In general, the special order required appellant to plug certain oil and gas wells in Hardin County. In its suit appellee also sought an injunction requiring appellant to comply with the special order. Upon trial to the court, judgment was entered denying appellee recovery of civil penalties, but requiring the clerk to issue an injunction ordering appellant to comply with the special order. We will affirm the judgment.

On August 3, 1971, the Railroad Commission of Texas entered Special Order No. 3-60,475. That order pertained to the plugging of the Norvell Lease Wells one and three, Sour Lake Field in Hardin County. The Commission found in that order that appellant was the “operator” of the wells within the meaning of Tex.Rev.Civ.Stat. Ann. Art. 6005; that those wells were abandoned and were causing, or were likely to cause, pollution of fresh water above or below the ground; and that those wells had not been properly plugged pursuant to Art. 6005. By the terms of the special order appellant was directed to plug the wells.

Appellant’s first point of error fa that appellee “. . . failed to produce evidence necessary to prove that the defendant [appellant] is the ‘operator’ as term is defined . . .’’in Art. 6005.

Special Order No. 3-60,475 named appellant as operator of the wells and ordered that he plug the wells. That order was entered in August of 1971, and appellant took no appeal. The order is regular on its face, is presumed valid, and will be enforced in the absence of a direct attack. Magnolia Petroleum Co. v. Railroad Commission, 128 Tex. 189, 96 S.W.2d 273 (1936), Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (Tex.1945). Appellant’s first point of error is overruled.

Appellant’s second point is that the court erred in entering judgment for appellee because the evidence “. . . clearly proved SUBSTANTIAL PERFORMANCE on the part of the defendant [appellant] in plugging the wells to remove a condition for which the defendant [appellant] was not responsible for creating in the first place and to order defendant [appellant] to make forced expenditures for a condition which he did not create is to deny him due process and equal protection guarantedd [sic] to defendant under the Constitution of the State of Texas.”

That part of point of error two claiming a violation of appellant’s constitutional rights was not pleaded. Had that violation been pleaded, it, like the first point of error, would have constituted an impermissible collateral attack on Special Order No. 3-60,-475.

We are satisfied that the statement of facts shows that appellant had not complied with the special order, and that the district court properly ordered appellant to so comply. Statewide Rules 14(c)(1-a), 14(e)(1-e) and 14(c)(1-g) of the Commission require the placement of a one-hundred-foot concrete plug immediately above perforations and additional cement plugs as requested by the district director at the fresh water depth, and the use of mud of a certain weight. Appellant’s testimony showed a noncompliance. Appellant testified that he had caused the wells to be filled with pit mud and that thirteen sacks of cement were then used to cement the upper sixty feet of the wells. Brooks Pe-den, an employee of the Commission, was permitted to testify without objection that from an examination of the records of the Commission he had made a determination that appellant had not complied with the special order.

The remaining portion of this opinion concerns cause number 12,314. On November 21, 1974, appellant, Talmadge Combs, filed suit against appellee, Railroad Commission of Texas, in the district court of Travis County. In response, the Commission filed a number of special exceptions and “pleas in abatement” and a general denial. Upon hearing, the district court entered an order in which the cause was “. . . dismissed from the docket of this Court. ...”

The language of appellant’s trial pleading is neither very clear nor precise. In those pleadings appellant referred to the Commission’s special order of August 3, 1971, (No. 3-60,475) by the terms of which he was ordered to plug the Norvell Lease Wells one and three. Appellant pleaded that he did plug the wells and that he furnished the Commission with the required reports. Appellant’s pleading then referred to the investigation of the Commission to ascertain whether or not the wells had been properly plugged, and to the intra-agency determination that appellant had not complied with the special order. Appellant’s pleadings made further reference to the fact that at his request he was invited to a conference with Brooks Peden, an employee of the Commission, and others, concerning whether or not he had complied with the special order. Appellant described that meeting as a “hearing” and contended that it was invalid because it was “. . . not held before the Commission sitting as a body ..” As a result of that meeting, appellant received a letter dated March 5, 1974, presumably from Peden, in which was detailed the position of the Commission with respect to what appellant had to do to comply with the special order. Appellant’s pleading characterized that instrument as an “executive order.” Some claim is made by appellant that his suit was an appeal to the district court from the so-called executive order.

In further paragraphs, appellant averred that he “. . . cannot be the LEGAL OPERATOR of the wells so as to give the defendant [the Commission] jurisdiction over him,” and, thereafter, he alleged facts to support that contention.

Among other things, the Commission specially excepted to appellant’s pleading as a whole upon the basis that it failed to state a cause of action. The basis for the special exception was that appellant’s pleading showed on its face that it was an attempt to appeal from the special order entered by the Commission on August 3,1971, and that the petition filed on November 21, 1974, was, as a matter of law, not timely filed.

We have experienced some difficulty in determining the exact nature of appellant’s claim. We have concluded that appellant’s basic complaint is that, for many reasons, the Commission should not have determined that he was an “operator” under Art. 6005, and for the Commission “. . .to single him out to remove a condition [plug the wells] for which he is in no way responsible for [sic ] violates due process and equal rights of the plaintiff gauranteed [sic] to him under the Constitution.” Appellant’s contentions are those properly made in an appeal of the special order to the district court. Accordingly, we construe appellant’s suit to be an attempt to appeal from the special order.

Tex.Rev.Civ.Stat.Ann. Art. 6049c § 8 provides in part: “Any interested person affected by . any . order made ... by the Commission and who may be dissatisfied therewith, shall have the right to file a suit in . Travis County ... to test the validity of said . . . orders.” Though the statute fixes no time limit during which the dissatisfied party must file this appeal, such appeal must be brought within a reasonable time. Midas Oil Co. v. Stanolind Oil and Gas Co., 142 Tex. 417, 179 S.W.2d 243 (1944), Board of Water Engineers v. Colorado River M. W. Dist., 152 Tex. 77, 254 S.W.2d 369 (1953); see Railroad Commission of Texas v. Aluminum Company of America, 380 S.W.2d 599 (Tex.1964). Appellant’s delay of three years, three months, and eighteen days from the date of the entry of the special order to the date of the filing of his petition in district court is, as a matter of law, unreasonable. Board of Water Engineers v. Colorado River M. W. Hist, supra.

The judgments in both cause numbers 12,313 and 12,814 are affirmed.


text:
    Hazel A. BOIES, d/b/a North Star Mobile Homes, Appellant, v. B. R. NORTON et ux., Appellees.
    No. 12299.
    Court of Civil Appeals of Texas, Austin.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.

      John Davenport, Davenport & Davenport, Austin, for appellant.
    Victor Valadez, Jr., Austin, for appellees.
   SHANNON, Justice.

Appellees, B. R. Norton and wife, Pamela R. Norton, sued appellant, Hazel A. Boies, doing business as North Star Mobile Homes in the county court at law of Travis County for breach of contract to properly deliver a trailer house. Upon trial to a jury, judgment was entered for appellees for $2275.15. We will affirm that judgment.

In their trial petition appellees pleaded that in April of 1973, they purchased the trailer house from appellant for $11,568.50. By the terms of the purchase agreement, appellant agreed to “. . . deliver, block, level and connect water and sewer to the trailer. All of the evidence was that appellant’s agent in delivering the trailer to appellees’ lot damaged the rear part of the trailer. The nature and extent of that damage was disputed. Ap-pellees accepted the trailer, and appellant’s agents attempted to block and level it. No one was able to block and level the structure to appellees’ satisfaction. Appellees concluded, after some time, that the trailer had suffered damage to its frame and was incapable of being leveled, and filed suit against appellant for damages.

Appellant attacks the judgment by eight points of error. Points of error numbers one through three, in general, concern the refusal of the trial court to submit three special issues. The requested issues inquired (1) whether the trailer could be repaired, (2) whether appellant offered to repair the trailer, and (3) whether appellees prevented appellant from repairing the trailer. Appellant claims authority for the submission of those issues under Tex.Bus. and Comm.Code Ann. sec. 2.508(a), (b), and appellant claims that affirmative answers to those issues would bar a recovery by appellees.

Section 2.508 provides:

“2.508. Cure by Seller of Improper Tender or Delivery; Replacement
“(a) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
“(b) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender. (59th Legis., Ch. 721, Sec. 2-508.) Acts 1967, 60th Leg., vol. 2, p. 2348, ch. 785, § 1.”

Section 2.508 is not applicable to the facts of this appeal Section 2.508(a) allows the seller whose first tender has been rightfully rejected to make a second conforming delivery if he can do so within the contract time and if he so notifies the buyer. Section 2.508(b) permits the seller a reasonable time to substitute a conforming tender if he had reasonable grounds to believe that his first tender would be acceptable to the buyer and if he seasonably notified the buyer. The appellees did not reject the trailer house. Their cause of action was not one for rescission, but instead one for damages for breach of contract.

By three points of error appellant asserts that the court erred in entering judgment for appellees grounded upon the answer of the jury that the value of the trailer house after delivery was $9,298.85 because there was no evidence, or insufficient evidence, to support that answer. The appellees placed into evidence the testimony of Elvis L. Pulley who is an appraiser with Property Damage Appraisers. Pulley testified that upon examination of the trailer house he found some buckling or “warpage” of the frame which had resulted from an impact to the back of the trailer. Pulley noted some damage to the exterior or “skin” of the trailer. Pulley also testified that the overall condition of the trailer house was poor and that there could be more damage which was not apparent to him upon preliminary examination. He was permitted to testify without objection that the trailer could be repaired for the sum of $1,118.30. In addition, Pulley testified that the fair market value of the trailer at a time before the accident occurred was about $9500 to $10,-C00. After the accident, Pulley estimated that the trailer had a salvage value of about $3500 to $4000.

Appellant called several witnesses who testified that the impairment caused by the impact was minor and that there was no damage to the trailer’s frame. Those witnesses were of the opinion that .the damage could be repaired for about $125 to $130. Some of the witnesses said that the primary need of the trailer was a proper blocking job. Appellant called Roy Alfred Smith who, upon default by appellees, assumed their note and moved into the trailer house. Smith said that he was satisfied with the trailer and was of the opinion that there was no structural damage.

The general rule for measuring damages to personal property is that the owner may recover the difference between the market value immediately before and immediately after the injury to the property at the place where the damage was occasioned. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.M 127 (1950). Where the damaged personal property may be repaired the owner of the injured property may recover the reasonable costs of such replacements and repairs as are necessary to restore the damaged article to its condition immediately prior to the injury. Pasadena State Bank v. Isaac, supra; Merrill v. Tropoli, 414 S.W.2d 474 (Tex.Civ.App.1967, no writ). Even in those instances where the litigant has pleaded a recovery grounded upon the difference in market value before and after the injury, evidence of the reasonable cost of necessary repairs to the personalty is admissible as bearing upon the difference in the market value. Horton v. Schultz, 148 S.W.2d 252 (Tex.Civ.App.1941, no writ).

Having viewed the evidence in its most favorable light in support of the answer of the jury, considering only the evidence and the inferences which support the answer of the jury and rejecting the evidence and inferences which are contrary to that answer, we are satisfied that there was evidence to support the jury’s answer. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). And we have considered all of the evidence and have concluded that the jury’s answer is not so contrary to the great weight and preponderance of the evidence so as to be clearly wrong.

Appellant’s final points complain of alleged procedural irregularities committed by the court immediately before trail and after the entry of the judgment. An examination of the transcript shows that on the day before the trial commenced, appellees filed their second amended original petition. On the same day appellant filed her second amended original answer which consisted of a general denial and four special exceptions. None of appellant’s exceptions was that the petition did not state a cause of action, but instead the exceptions were designed to require the appellees to plead more specifically with respect to what person damaged the trailer, what the person did, the nature of the damages, and the substance of the contract which appellant allegedly breached. We understand the court sustained the exceptions, but no order was entered on that date. Appellees did not amend their petition to meet the exceptions prior to the beginning of the trial.

About two weeks after the entry of the judgment, the court entered an order which recited the fact of the hearing on the special exceptions on the day before the trial and the fact that the court had sustained the exceptions. Also, after judgment the court permitted the appellees to file a “trial amendment” in which appellees pleaded more specifically in response to appellant’s special exceptions.

Before being put to trial, appellant had a right to require that appellees file an amended petition curing the deficiencies pointed out by her special exceptions. Appellant permitted the case, however, to proceed to trial without insisting that appellees file an amended petition. If appellant was content to try the case without the amended petition, she now has no grounds for complaint. See Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1944); Texas Rules of Civil Procedure, rule 67.

The judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    The FROST NATIONAL BANK OF SAN ANTONIO, Appellant, v. Lewis KAYTON, Administrator of the Estate of Roy Campbell Booth, Deceased, Appellee.
    No. 15378.
    Court of Civil Appeals of Texas, San Antonio.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.

      Sawtelle, Goode, Davidson & Troilo, John W. Davidson, Terry Topham, Richard A. Flume, Jr., San Antonio, for appellant.
    Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit for damages by appellee, Lewis Kayton, permanent administrator of the estate of Roy Campbell Booth, against the Frost National Bank for physical loss of the value of improvements to real estate and their contents occurring during Hurricane Celia. The Bank cross-claimed against Kayton for a contribution in the event the Bank should be held to have breached any duty to the estate of Roy Campbell Booth. The case was tried to a jury and, in answer to special issues submitted to the jury, the jury found: (1) that the Bank was negligent in failing to obtain extended coverage insurance (hurricane, wind, etc.) for the property in issue; (2) that the Bank’s negligence was a proximate cause of monetary damages to the estate; (3) that, in the exercise of ordinary care, the Bank should have obtained extended coverage insurance for the improvements and their contents in the sum of $75,000.00; (4) that Kayton did not know nor should have known that such improvements were not covered by extended coverage insurance; (5) that the reasonable cost of repairs to the improvements in issue v/hich would have been covered by extended coverage insurance was $62,-817.38; (6) that the difference in the market value between the contents located in the improvements which would have been covered by extended coverage insurance before and after damages thereto was $7,500.00. The trial court entered judgment upon the verdict of the jury against the Bank in the sum of $70,313.78 and denied the cross-claim of the Bank against Kayton.

Although the Bank asserts twenty points of error, they can be divided into three general categories and will be so discussed in this opinion: (1) points of error pertaining to liability; (2) points of error pertaining to admission of evidence; and (3) points of error pertaining to damages awarded.

Roy Campbell Booth died intestate at the age of 33 years, leaving an estate valued in excess of $600,000.00 of which approximately $325,000.00 was in liquid negotiable assets. The death certificate of Mr. Booth, which was introduced into evidence, listed the cause of death as (a) alcoholic brain disease, (b) acute alcoholism, and (c) chronic alcoholism. Included in the assets of the estate were certain properties located at Port Aransas, Texas, consisting of Milliboo Motel and cottages and the Malibu Club, which are sometimes referred to as “Milli-boo-Malibu,” a rent house on Cotter Street, and a residence on Sea Secret Street. The litigation here involves only the Milliboo-Malibu properties. The Milliboo-Malibu properties suffered severe property damages in Hurricane Celia, which losses were not covered by the type of insurance policies which the temporary administrator had on such properties.

Frost National Bank was appointed temporary administrator of the estate of Roy Campbell Booth on July 11,1969, and qualified on July 14,1969, by taking the required oath and bond. About a month after the Bank’s appointment, it assigned trust officer Stanley R. Lobley to take charge of the Booth estate. Mr. Lobley testified that he was responsible for the insurance on the various properties; that he discussed the matter of insurance coverage on the various properties with Mrs. Sally Walsh of the Heilbron Insurance Agency in September or October of 1969 and was aware that the insurance coverage on Milliboo-Malibu did not contain extended coverage (windstorm, hurricane, hail, etc.). He testified that at this time he purchased insurance with this type of coverage on the Cotter Street property and the Sea Secret Street property which carried excess premium rates of three times the normal rate; that at such time he also discussed the matter of premium on this type of insurance on the Milli-boo-Malibu properties; that the rates for this type of insurance were three times the normal rate; that the extended coverage insurance on such Milliboo-Malibu properties would cost approximately an additional $1,000.00 a year; that the estate was able to pay for such insurance but that he did not think it was the prudent thing to do considering the high cost of the premiums and the relative low risk involved. There is testimony that he made no independent investigation to determine the frequency of hurricanes, high winds or hail and did not consult with other banks and trust officers, or motel owners or other property owners on the Gulf Coast area. There is also testimony that the Milliboo-Malibu properties are worth about $160,000.00, approximately one-fourth of the value of the total assets of the estate.

After the Bank had served as temporary administrator for about a year, Lewis Kay-ton, the grandfather of the deceased’s minor son, made application to become permanent administrator; and, on the afternoon of Wednesday, July 29, 1970, Kayton executed oath, filed his bond and qualified as administrator of the estate of Roy Campbell Booth.

On Thursday, July SO, 1970, a tropical depression had formed in the northwestern Caribbean Sea; on Friday, July 81, 1970, the National Hurricane Center reported that the weak cyclone moved northwestward and crossed the western tip of Cuba. On Saturday, August 1, at 5:00 p. m., Celia was upgraded to the status of a hurricane by the National Hurricane Center. On Sunday, August 2, hurricane watches were put into effect for the Texas coast from Corpus Christ! northward and on Monday, August 3, hurricane warnings were put into effect. Hurricane Celia crossed the Texas coastline midway between Corpus Christi and Aransas Pass on August 8, 1970, at approximately 8:30 p. m. At the time of the hurricane, Frost had not filed its final account and no order discharging the Bank had been entered.

Liability

By a number of points of error, appellant asserts (a) that there is no evidence to support the jury’s answers to special issues No. 1, 2, 8 and 4, and that the jury’s answers to such special issues were against the great weight and preponderance of the evidence, (b) that there was no duty on the part of appellant to insure the premises, (c) that the court erred in overruling appellant’s motion for instructed verdict.

In reviewing appellant’s no evidence points of error, we may consider only that evidence, if any, which viewed in its most favorable light supports the jury’s findings, and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 851, 303 S.W.2d 359 (1957); Ford v. Panhandle and Sante Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 (1952); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). However, we must review all of the evidence submitted to the jury to determine if the verdict is against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence,” 38 Tex.L.R. 361 (1960).

The applicable rule for passing on motions for instructed verdict as set forth in 3 McDonald, Texas Civil Practice, Section 11.-28.2 (1970), is as follows:

“[Ujpon motion for instructed verdict, the trial court, without passing upon the credibility of witnesses, accepts as true all evidence which, when liberally construed in favor of the adverse party, tends to support such adverse party’s contention (as to the truth of the fact propositions on which he relies or the falsity of those urged by the movant); indulges every reasonable inference which can properly be drawn in favor of such opponent’s position from the evidence; and discards all contradictory evidence favorable to the movant. If, so viewed, the evidence amounts to more than a scintilla, i. e., more than a mere suspicion or speculation that the fact propositions asserted by the opponent might be true or that those urged by the movant might be false, as the case may be, an issue is at least raised.” (Citations omitted)

Appellant asserts a multi-pronged attack on the judgment involving the area here involved. It complains, among other things, that (a) there was no duty on the part of appellant to insure the premises, in that appellee had qualified as permanent administrator of the estate prior to the damages by Hurricane Celia, and that, at the time of the damages to the property involved, appellee had superseded the Bank as administrator and that the Bank had no authority to insure the premises after July 29, 1970, and any failure of the Bank to obtain insurance on or before such date could not have been the proximate cause of the damages; (b) in any event, it asserts that if it had a duty to insure the property, the duty of an administrator is only to use reasonable care to preserve property from loss or damages and if fulfilled its duty by maintaining the type of insurance it had; that an ordinary prudent man under the same or similar circumstances would not have maintained extended coverage insurance due to the high cost involved and the relatively low exposure in connection therewith; (c) the negligence of the Bank, if any, could not have been the proximate cause of the monetary damages to the estate in that the evidence shows that the damage was caused by tidal wave or rising waters, and under the exclusions in an insurance policy containing extended coverage insurance, this type of loss is not covered; that even if appellant had obtained extended coverage insurance, the damage involved would not have been paid; (d) even if appellant was negligent in not maintaining such type of coverage, appellee was also negligent in that appellee had qualified as permanent administrator prior to the occurrence of the damages and his failure to secure such type of insurance was also negligence; (e) the overwhelming weight and preponderance of the evidence shows that appellee knew or should have known that the property did not have extended coverage insurance, and if the Bank was negligent, appellee was also negligent; (f) under the record, there is no credible evidence to support the jury’s answers to Special Issues No. 1, 2, 3 and 4, and, in any event, the jury’s answers to such Special Issues are against the great weight and preponderance of the evidence.

Appellant asserts that the evidence shows (1) the decision by the Bank not to insure the property involved for the extended coverage insurance was a conscious, deliberate decision; (2) the deceased himself did not carry extended coverage insurance on such property; (3) improvements were well constructed and the risk involved did not justify the high premiums for extended coverage insurance; (4) the estate had a great need for cash with notes, bills, claims and obligations to be paid; (5) the Milliboo-Mal-ibu properties had lost money from 1966 through 1968; (6) the Bank had had bad experiences with extended coverage insurance on properties which were damaged by Hurricane Beulah; (7) Hurricane Celia was an unusual hurricane in that it had severe high winds and relatively low storm tides; (8) the greatest risk from a hurricane is rising water, which is excluded under extended coverage insurance; (9) the Bank was not temporary administrator at the time of the loss to the Milliboo-Malibu properties.

Appellee urges that there is ample evidence to support the submission of and the jury’s answers to Special Issues No. 1, 2, 3 and 4.

There is evidence that the damages were caused by high winds and/or rainfall and not by rising tides. A copy of a report of the U. B. Department of Commerce on Hurricane Celia was introduced into evidence which states, in part, that Celia’s extreme winds caused the greatest destruction; that Port Aransas and Mustang Island, which took the brunt of Hurricane Celia, suffered damages to 75 percent of the buildings and that most of the damage was caused by wind and not water. Various photographs of the property involved, taken after the hurricane, were introduced into evidence which showed extensive damage to the improvements, including blown off roofs and timber, boards and other parts of the building blown away from the building and scattered about. It is obvious from the pictures that extreme damage was caused by the high winds. Several witnesses testified as to the accuracy of such photographs, and that such pictures accurately depicted the damages.

Winford Smith, president of the Island State Bank at Port Aransas, a witness for Frost, testified that he observed the loss to the Milliboo-Malibu, and that he did not believe the tides “got up there.”

Plaintiffs (appellee’s) witness, Coleen Cody, testified she went to the Milliboo-Malibu the weekend after the hurricane and that she saw no evidence of any high tide water; that if there had been high tide water, there would have been marks on the walls and other things, and there were no water marks and no evidence of water getting up to the motel. Lewis Kayton testified that he went to Port Aransas after the hurricane, that at such time there was no water inside the motel; that he could see where water had been on the floors and on the carpets; that there were no water marks on the walls; that the rains came in and it had “lots of rains.” Birdie Goodwin, manager of Milliboo-Malibu, testified as to the extent of the damages; that the damage was caused by the hurricane and the rains; and when asked about the damages, she stated that it was mostly wind damage and there was not too much water until the rains started.

With regard to appellant’s contention that the testimony shows that even if the property had been covered by extended coverage insurance, the loss would not have been paid, there is testimony to the contrary. Sally Walsh, an insurance agent who testified for the Bank, stated, “If there had been extended coverage on the property, I imagine it would have been paid almost totally.”

There was testimony that damages suffered by the Cotter Street property and Sea Secret Street property in Hurricane Celia and covered by extended coverage insurance had been paid. There is testimony that policy holders had no trouble getting paid for losses sustained during Hurricane Celia. F. Burton Barnes, an insurance agent, testified that the rising water exclusion in the extended coverage insurance applies to water that rises from the floor level into the structure, and that the question really is, which came first, the wind or the water.

Appellant also asserts that there is no evidence to support the jury’s answer that Lewis Kayton knew or in the exercise of ordinary care should have known that the Milliboo-Malibu was not protected by extended coverage insurance, and that such answer is against the great weight and preponderance of the evidence.

It appears from the record that Lewis Kayton did not qualify as administrator until the afternoon of Wednesday, July 29, 1970. By July 30, 1970, a tropical disturbance had crossed the Atlantic and formed a tropical depression in the northwestern Caribbean Sea. By Friday, July 31, the tropical storm had become a weak cyclone which moved across the western tip- of Cuba, and on Saturday, August 1, the National Hurricane Center upgraded the storm to the status of a hurricane. Mr. Kayton testified that he did not recall seeing anything about Hurricane Celia until he read it in his Sunday newspaper on August 2, 1970. There were introduced into evidence, copies of relevant San Antonio newspapers for all dates between Wednesday, July 29,-1970, and the date that the damages were sustained, which indicate that Hurricane Celia was first reported on Sunday, August 2,1970. The hurricane crossed the Texas coast midway between Corpus Christi and Aransas Pass at about 3:30 on the afternoon of August 3.

Moreover, Kayton testified that at the time Humean Celia hit, he had not received the insurance policies on the Milliboo-Mali-bu complex. Although there is some testimony that an insurance agent told Kayton that the property had fire and lightning coverage only, Kayton testified positively that no one ever told him or otherwise gave him any indication that such properties were not covered by windstorm, hurricane and extended coverage insurance prior to the time of the damages, and that he assumed that Frost Bank was carrying extended coverage insurance. He testified that he was shocked when Lobley, after the storm, told him for the first time that there was no extended coverage insurance on Mil-liboo-Malibu.

Moreover, there is testimony that even if Kayton had known of the lack of extended coverage insurance, he could not have obtained such insurance after he qualified as administrator. There is evidence that a tropical disturbance was brewing as of that time, and by July 30, had formed a tropical depression in the Carribean Sea. While the evidence is somewhat conflicting, there is evidence that, in such a situation, an insurance agent would not thereafter have written such insurance.

With regard to appellant’s no duty contention, it appears from the record that on July 14, 1969, Frost Bank qualified as temporary administrator of the estate of Roy Campbell Booth. The general rule is that a temporary administrator, having qualified, is charged with the duty of reasonable care to preserve the estate. Barfield v. Miller, 70 S.W.2d 632 (Tex.Civ.App.—Amarillo 1934, writ dism’d); 18 Tex.Jur.2d, Decedents’ Estates, Section 357 (1960). The Probate Code provides that a personal representative must take such care of estate property as a prudent man would take care of his own property. Section 230, Tex.Prob. Code Ann. (1956). See also McMullen v. Sims, 37 S.W.2d 141, 144 (Tex.Comm’n App. 1931, holding approved); Richardson v. McCloskey, 276 S.W. 680, 684 (Tex.Comm’n App.1925, opinion approved). There is testimony that the duties of trustees and administrators with respect to preserving assets are basically similar. In Professor Bo-gert’s treatise on the law of trusts, it is stated: “[T]he trustee has a duty to secure the type of insurance necessary for protection, in order to preserve the trust property against destruction or diminution in value. If he fails to obtain any insurance, or the insurance is inadequate, the trustee will be liable to the beneficiary for the loss arising from the lack of protection.” Bogert, Trusts and Trustees, Section 599 (2d ed. 1960).

Mr. Lobley testified that it was the general policy of the Frost National Bank Trust Department to buy fire and extended coverage insurance; that as an ordinary rule he would buy fire and extended coverage insurance on assets belonging to a decedent even if the assets were not mortgaged. Beverly Rust, head of the Frost National Bank Trust Department, testified that in this situation Lobley made an exception to the general rule. W. T. Burk, a retired trust officer, testified that it is almost an inviolate rule to insure any property with the usual and customary coverage — fire, windstorm, hail, extended coverage.

Section 189 of the Tex.Prob.Code Ann. (1956) provides that a personal representative shall be deemed to have qualified when he shall have taken and filed his oath and bond and has the same approved by the judge.

Section 221 of the Probate Code provides that no resigning personal representative shall be discharged until the application has been heard, the exhibit and account examined, settled and approved, and until he has satisfied the court that he has delivered the estate, if there be any remaining in his possession, or has complied with all lawful orders of the court with relation to his trust. There is evidence in the record that the Bank’s final account had not been made or filed until sometime after the loss here involved and that the Bank had not been discharged at such time.

The jury found appellant to have been negligent and that such negligence was the proximate cause of the damage involved. There is more than a scintilla of evidence to support such findings and such findings are not against the great weight and preponderance of the evidence. The jury also exonerated Kayton of any responsibility for the damages and there is sufficient evidence to support such findings. The trial court did not err in overruling appellant’s motion for instructed verdict. All of appellant’s points of error pertaining to the question of liability are overruled.

Admission of Evidence

By four points of error, appellant complains of the admission into evidence of (a) certain documents (deeds of trust, executor booklet, Kayton memo); (b) certain testimony of W. T. Burk.

By such points of error, appellant asserts that such evidence was erroneously admitted, and that the effect of such erroneous admission was to substantially increase the burden of proof required of appellant.

The Deeds of Trust

There was introduced into evidence, over appellant’s objection, a number of deeds of trust covering property on the Texas coast and the Port Aransas area. Such deeds of trust were given by persons who had borrowed money from the Frost National Bank and which indebtednesses were secured by deeds of trust liens on coastal property. The pertinent portions of such deeds of trust complained of provide substantially as follows: “To insure and keep insured all improvements now and hereafter created upon such said property against loss or damages by fire and windstorm and any other hazard or hazards as may be reasonably required from time to time by the beneficiary.”

Frost objects to such evidence on two basic grounds: (1) the deeds of trust are not relevant evidence in that the standard of care required by one department of the bank, the lending department, has no relevance to the standard of care required of an administrator; (2) that the Bank was required by law to have such a provision in deeds of trust securing loans.

Appellee says such evidence is relevant and material and is admissible on a number of bases: (a) they were made on coastal property in the same region in Texas, (b) they were executed before, during and after the Bank’s administration and the storm, (c) they reflect the course of conduct and custom by the same defendant and throw light on the standard of care used by the Bank to protect its interest in this type of property, (d) the documents confirm the Bank’s knowledge and appreciation of the probability of loss and damages to Texas coastal property from windstorm.

In support of appellant’s contention that it was required by law to have such type of provision in deeds of trust on loans held by it, the Bank relies on Article 342, Tex.Rev. Civ.Btat.Ann. (1973), and in particular, Article 342-504, Section 2(d). Section 342 is sometimes referred to as the Texas Banking Code. Under such Article, state banks are authorized to make loans upon security of real estate and invest their funds in obligations secured by real estate subject to certain rules and regulations required by such Article. ' Article 342-504 provides in part that no state bank shall make a loan upon security of real estate or invest its funds in obligations secured by real estate unless: Section 2(d) “if the improvements situated upon such real estate constitute an appreciable portion of security, adequate coverage insuring the interest of the bank against loss by fire and tornado.”

It is to be noted that appellant is a national bank, as its name indicates. The pertinent portion of the statute relied upon refers to state banks. It is also to be noted that the provision in the statute as above quoted calls for insurance against loss by fire and tornado. Random House Dictionary of the English Language (Unabridged 1966) defines a tornado as a localized, violently destructive windstorm occurring over land characterized by long, funnel shaped clouds. It defines a hurricane as a violent, tropical, cyclonic storm of the Western North Atlantic having winds of in excess of 72 miles per hour. The ordinary distinction is that a tornado is a localized, violent windstorm over land, whilé a hurricane is not so localized and is spawned over water. The provision in the deed of trust objected to contains a much broader provision than provided by the statute above referred to.

As a general rule evidence is relevant if it tends to prove or disprove a material fact involved or the question being tried. The material issue here involved is the standard of care required by an administrator. In determining this question, we have to look and consider all relevant evidence in the record.

The Booklet

The booklet complained of by appellant is entitled “The Importance of an Experienced Executor” and bears the name Frost National Bank on its face. Such booklet points out the importance of having a knowledgeable and experienced executor or administrator, and the portion here particularly involved states in effect: “Real estate for which the executor is responsible and tangible personal property require the executor’s attention and should be adequately insured against fire and other hazards.”

There is testimony by officers of the Bank that the booklet accurately portrays the standards of care exercised by the Bank and that the booklet is not false or puffed in any way.

Appellant asserts that the booklet was properly admitted by the trial court as an admission. See generally Anno.: Admissibility of advertisements, brochures, catalogs and the like as containing admissions by a litigant contrary to the position taken by him. 44 A.L.R.2d 1027, 1031, 1032 (1955); Gould v. State, 66 Tex.Cr.R. 122, 146 S.W. 172 (1912); Sportatorium, Inc. v. State, 104 S.W.2d 912 (Tex.Civ.App.—Dallas 1937, no writ); Southern Pacific Co. v. Godfrey, 48 Tex.Civ.App. 616, 107 S.W. 1135 (1908, writ ref’d). Appellee also asserts that the booklet accurately portrays the standard of care required by an administrator, and is relevant and admissible testimony.

The Memo

The memo objected to (Exhibit 16) was a memorandum by Lewis Kayton, the permanent administrator, of a telephone conversation with Sally Walsh, an employee of an insurance corporation and a witness for the Bank. The substance of the alleged objectionable material in such memo is: (a) Mr. Lobley did not ask for any quotations on the cost of windstorm insurance on the Milliboo-Malibu property; (b) that the Bank needed an insurance person in their trust department who would help keep the Bank informed as to what type of coverage the Bank had; (c) when Mr. Lobley covered the Cotter Street and Sea Secret Street properties for windstorm and hail, he never mentioned Milliboo-Malibu.

The trial court, in admitting such evidence, stated that it met the basic requirements of a memorandum made in the regular course of business. Article 3737e, Tex.Rev.Civ.Stat.Ann. (Supp.1975).

Appellant asserts that the memo was not a business record and was not properly admitted as such; that, at most, it was but a random jotting or isolated memorandum. Appellee asserts that such memo was properly admitted because the evidence clearly shows and the trial court properly held that the memo qualified as a business record.

Mr. Kayton testified that he presently had an independent recollection of the telephone conversation with Mrs. Walsh here involved; that he made a memoranda of such conversion at such time; that as a part of his functions as administrator of the estate, he customarily made such memorandum on important matters; that he kept the memo as a part of the official files of the administration; that he prepared the memo about the conversation almost immediately; that such memo was accurate and correct; that it was kept in the usual and regular course of business of the estate and that such memo came out of the files of the estate.

While we do not feel such evidence should have been admitted because of its hearsay nature, we do not regard the admission thereof as harmful error.

Testimony of W. T. Burk

Frost attacks the admissibility of Mr. Burk’s testimony pertaining to the failure to provide extended coverage insurance on two basic grounds: (1) such testimony invaded the province of the jury; and (2) the use of the word “prudent” in his testimony constituted reversible error.

Mr. Burk testified in some detail as to his professional experience. He practiced law for a number of years; worked for the Reconstruction Finance Corporation for approximately 18 years, and served as assistant manager and loan manager; that he worked for the Groos National Bank from February of 1955 to December of 1970; and at the time of his retirement, was vice-president and trust officer. He testified that the trust department of such a bank acts as administrator and independent executor of estates; trustees under wills; trustees under other types of trusts; and guardians of estates of minors and incompetents; and that he was generally familiar with the habits, customs and operations of a prudent trust department and trust officer in administration of estates. He testified in some detail about the handling of insurance, factors to be considered, etc.

Appellant complains basically of the testimony of Mr. Burk as to the habit and custom of prudent trust officers acting in administration to purchase extended coverage insurance and, in particular, to the use of the word “prudent.” 1

During the course of his testimony, the following testimony was elicited from Mr. Burk without objection:

“Q. Is there a rule customarily followed by a trust officer as to the purchase of insurance on a commercial building or business property held in an estate, and if so, please explain your understanding of that general rule?
A. My understanding of the general rule is that the administrator, the bank, owes a duty to the heirs and beneficiaries of an estate to protect the property against loss, and it is almost an inviolate rule to insure any property, any real estate owned by trust because of the fact that the failure to do so can lead to a surcharge of the bank.
Q. Now what type of coverage [sic] are you talking about?
A. I am talking about the usual and customary coverage, fire, windstorm, hail, plate glass . . . .”

There is other testimony elicited from employees of appellant with regard to the standard of care exercised by the Bank. There is testimony of the importance of having an experienced administrator; there is testimony that each of its trust officers are trained to handle or recognize insurance problems. The professional training or experience of Mr. Lobley, the trust officer of the estate here involved, was presented to the jury, and he was qualified as an expert. He testified that his decision not to purchase liability insurance on the property involved was based upon his total experience. With regard to appellant’s objection to the use of the word “prudent,” Mr. Lob-ley himself testified that he had not purchased extended coverage on the property involved because he did not think it was the prudent thing to do at the time.

With regard to appellant’s contention that Burk’s testimony invaded the province of the jury, see 1 McCormick and Ray, Texas Practice, Section 1395 (1956), wherein it is stated:

“The reason usually given is that such testimony would invade the province of the jury. If such statements were literally enforced opinion evidence would practically disappear from the courtroom and the fact finders would be robbed of one of their best aids in determination of difficult issues. Despite the wide currency of such expressions it is believed that they are unsound. Furthermore the controlling cases from the Texas Supreme Court do not support any general rule forbidding properly qualified witnesses from giving opinion upon facts which are the ultimate issues in the case. On the contrary it is believed that such opinions are receivable whenever they are likely to be of appreciable aid to the jury in arriving at the correct conclusion.”

See Nor veil, Invasion of the Province of the Jury, 31 Tex.L.R. 731 (1953).

Although we consider some of the objected to evidence of dubious materiality, we do not consider the admission of such testimony or any part thereof as harmful error. Rule 434, Tex.R.Civ.P. (1967), provides that no judgment shall be reversed on appeal on the grounds that the trial court has committed error in law during the course of the trial unless the appellate court be of the opinion that the error complained of amounts to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the ease. In determining whether an erroneous admission of evidence constituted harmful error, a reviewing court will consider the record as a whole. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955). Whether a particular error was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case is always a judgment call to be made according to the reviewing court’s opinion from a review of the entire record in the case. Gomez Leon v. State, 426 S.W.2d 562 (Tex.1968); Texas Power and Light Company v. Hering, 148 Tex. 350, 224 S.W.2d 191; Appellate Procedure in Texas, Harmless Error, Section 17.112(2).

As heretofore noted, in some instances, similar evidence containing the substance of the objected to evidence was admitted without objection. Generally, the court’s admission of evidence over objection is deemed harmless if the objecting party permits similar evidence to be admitted without objection. Delhi Gas Pipeline Co. v. Heddin, 508 S.W.2d 417 (Tex.Civ.App.—Tyler 1974, no writ); City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App.—Houston [14th District] 1967, writ ref’d n. r. e.); Rowe v. Liles, 226 S.W.2d 253 (Tex.Civ.App.—Waco 1950, writ ref’d).

Even if we disregard all the objected to evidence, there is sufficient evidence of probative value in the record to support the jury’s answers to the issues pertaining to standard of care. There is other evidence, some of it by the Bank’s officers and employees, as to the standard of care required of an administrator which sufficiently supports the jury’s answers. Under such evidence, the jury could have reasonably believed that the Bank as administrator of the estate did not exercise that degree of care which would be used by a person of ordinary prudence under the same or similar circumstances in failing to have one of the estate’s most valuable assets located on the Texas coast insured against loss by fire and windstorm.

Damages

Appellant, by a number of points of error, complains of the damages award. It asserts that (a) there is no evidence to support the submission of or the jury’s answers to Special issue No. 8 and Special Issue No. 9; (b) there is no competent evidence to show the reasonable cost for repairs to the improvements on the Milliboo-Malibu properties; (c) there is no competent evidence of the damages to the contents of the Milliboo-Malibu properties.

We will first consider appellant’s contention with regard to the cost of repairs. Both parties agree that the amount of $62,817.38 found by the jury as the reasonable cost of repairs represents the total of a repair estimate made for Frost in the amount of $59,640.00, plus temporary repairs made on such properties shortly after the hurricane in the amount of $1,131.79 and $2,045.59. Appellee contends there is sufficient evidence to support such award because (1) there were four different estimates in evidence before the jury, and the jury accepted and used the lowest of such estimates; (2) Frost is in no position to complain about the estimate obtained by it; (3) appellant stipulated as to the authenticity and admissibility of such evidence; (4) Lobley, the trust officer testified that he had no reason to doubt the accuracy of such estimates; (5) the jury had before it pictures depicting the extent of the damages; (6) from all the evidence before it, the jury could fairly estimate the amount of the damages.

Appellee concedes that there is no direct testimony of the reasonableness of the cost of the repairs, but asserts that from all of the evidence before it, the jury could accurately estimate the amount of the damages, and there was sufficient evidence that the jury could make a finding as to the reasonableness of the amount of the damages.

In Dallas Railway and Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956), the court said:

“In some jurisdictions proof of the expenses incurred or paid for the treatment of personal injuries is regarded as presumptive proof of the reasonable value of the services, provided the unreasonableness of the charges does not appear from other evidence. This rule has never been followed in Texas, and is now well settled that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable. . We hold that testimony showing only the nature of the injuries, the character of and need for the services rendered, and the amounts charged therefor does not constitute evidence of probative force that the charges are reasonable.”

Appellee cites and relies on Newspapers, Inc. v. Love, 397 S.W.2d 469 (Tex.Civ.App.—Austin 1965), writ ref’d n. r. e. per curiam 405 S.W.2d 300 (Tex.1966); Canales v. Bank of California, 316 S.W.2d 314 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.); Sam v. Sullivan, 189 S.W.2d 69 (Tex.Civ.App.—Galveston 1945, writ ref’d w. o. m.); Dillingham v. Currie, 92 S.W.2d 1122 (Tex.Civ.App.—Amarillo 1936, writ dism’d); and Texas and Pacific Railway Company v. Gurian, 77 S.W.2d 274 (Tex.Civ.App.—El Paso 1934, writ dism’d) in support of their contention that direct proof of reasonableness is not required and that reasonableness may be inferred from other evidence. In all of the cases cited by appellant, there is either testimony that the charges were usual and customary, or testimony that the charges were reasonable.

The problem here is that there is no testimony in the record before us that the costs for repairs shown in the estimates, or the costs of temporary repairs made, were the usual and customary charges, or that such charges were reasonable.

Appellant also relies on the testimony of Mr. Lobley that he had no reason to doubt the accuracy of the estimates. We do not regard such testimony as tantamount to testimony that the charges shown in such estimates were reasonable. Moreover, there is nothing in the record showing Lob-ley’s qualification as an expert as to the cost of repairs on real estate improvements.

In a recent case, Hyatt v. Tate, 505 5.W.2d 873 (Tex.Civ.App.—Houston [1st District] 1974, no writ), a body shop foreman testified that (a) he estimates damages to automobiles; (b) his estimate of the damages to appellant’s automobile was $476.69 as evidenced by his testimony and a written estimate introduced into evidence; (c) all repairs listed by him on such estimate were necessary to put the car in proper condition; (d) the company for which he worked would be willing to repair such automobile for such amount if brought to it on the date of the trial. He was not questioned whether $476.69 was a reasonable charge for the repairs. The jury found that the reasonable cost of repairs was $476.69. The trial court granted defendant’s motion to disregard the jury’s answer to such findings and rendered judgment that appellant take-nothing. On appeal, appellant contended that the testimony and the written estimate of the cost of repairs, together with reasonable inferences which may be drawn from such evidence, was sufficient to support the jury’s finding of $476.69 as the reasonable cost of repairs. The appellate court rejected such contention holding that there was no evidence before the jury to enable it to do anything more than to speculate whether the cost of repairs estimated by appellant’s witness was reasonable.

Under the record, the jury could only speculate as to the reasonable cost of repairs of the Milliboo-Malibu properties. We hold that there is no evidence to support the jury’s answers as to the cost of repairs to the Milliboo-Malibu properties in that there is no evidence of probative value as to what is the reasonable cost of such repairs.

We next consider appellant’s complaint with regard to the award for the damages to the contents of the Milliboo-Malibu properties. Appellant contends that there is no evidence showing what furniture, fixtures and equipment were located in the premises in question at the time of the hurricane, nor was there any evidence of the extent of the damages. On the other hand, appellant asserts that there is sufficient evidence to support the submission of and the jury’s finding of $7,500.00 as the value of the furniture, fixtures and equipment destroyed in the hurricane.

The pertinent evidence in this connection may be summarised as follows: (a) There was introduced into evidence a statement (Plaintiff’s Exhibit No. 4) purporting to list the property of the estate of Roy Campbell Booth for the period of time from 6-30-70 through 9-30-70, with a valuation of the various properties carried on such listing as “carrying value.” One of the items listed therein is the furniture and furnishings in the courts and apartment at Port Aransas, with a carrying value listing of $9,993.25, and another item is a listing for the furniture, furnishings and fixtures of Club Malibu at Port Aransas with the carrying value therein shown of $5,582.53; (b) Lewis Kay-ton, permanent administrator of the estate, testified that to the best of his ability, he felt that the figures shown on such exhibits were reasonably accurate. He further testified that 40 to 50 percent of the personal property was destroyed in the hurricane; (c) Birdie Goodwin, the manager of such properties, testified that the biggest part of the furniture and furnishings had been destroyed.

■ It can be surmised that the jury accepted the valuation shown on the statement (Plaintiff’s Exhibit No. 4), which totals $15,575.78 as the market value of such property on the date of the hurricane, and that they accepted Kayton’s testimony that 40 or 50 percent of the personal property was destroyed as the after-hurricane value. However, there is no evidence showing that all or just what portion of such furniture, fixtures and equipment were present and located on the premises at the time of the hurricane. Nor is there any evidence what the market value of such property was immediately after the hurricane. Under the record, the jury’s award for the contents (personal property) cannot stand.

We do not have the power to remand solely to determine damages only. See Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958); Pope and Sheehan, A Proposal to Limit the Scope of New Trials in Texas, 7 St. Mary’s L.J. 1 (1975). However, because of the reasons hereinbefore set forth, this case must be reversed.

The judgment of the trial court is reversed and remanded.

      . Special Issue No. 1 — that the Bank was negligent in failing to obtain extended coverage insurance for the improvements in issue.
      Special Issue No. 2 — that the Bank’s negligence was a proximate cause of monetary damages to the estate.
      Special Issue No. 3 — that in the exercise of ordinary care, the Bank should have obtained extended coverage insurance for the improvements and their contents in the amount of $75,000.00.
      Special Issue No. 4 — that Kayton did not know nor should have known that the improvements to the real estate in issue were not covered by extended coverage insur-

        . We may not set aside a jury’s finding unless we are so impressed from a consideration of all the testimony that such findings are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Clark v. Brewer, 498 S.W.2d 957, 959 (Tex.Civ.App.—Corpus Christi 1973, no writ).

      . The jury, in answer to Special Issue No. 8, found that the reasonable cost for repairs which would have been covered by extended coverage insurance and which would have been necessary to restore the Milliboo Motel and cottages to the condition in which they were immediately before being struck by Hurricane Celia on August 3, 1970, was $62,817.38.

      . The jury, in answer to Special Issue No. 9, found that the difference in the market value for the furniture, fixtures and equipment located in the Milliboo Motel and cottages and the Malibu Club immediately before and immediately after being struck by Hurricane Celia which would have been covered by extended coverage insurance was $7,500.00.

      . (a) “Although testimony relative to the bill of the McAllen Hospital for $1,087.17 did not include a direct statement that it was reasonable, there was testimony that said charges were the usual and ordinary charges for such services. Under the circumstances, we think this is evidence of the reasonableness of that charge.” Canales v. Bank of California, supra.

      (b) “The nurses’ bills were $6.00 a day. This was proved to be the usual and customary charge at the time the nursing services were rendered, and it was proved that the rates had since risen to $8.00 a day. It was proved that the bills had been approved by the physician in charge. We think that under the evidence, even though no expert testified that such bills were reasonable, there is sufficient evidence to raise the issue of reasonableness of the charge, and sustain a finding of reasonableness.” Sam v. Sullivan, supra.

      . “The rule is, therefore, that it must be shown by both pleadings and evidence, that the amount so paid out was reasonable and the injured party is permitted to recover only such amount as would be reasonably incurred in repairing his property and restoring it to its former condition.” Tinney v. Williams, 144 S.W.2d 344 (Tex.Civ.App.—Amarillo 1940, no writ).