It is with great reluctance that I join in the affirmation of the portion of the opinion which orders the lump sum payment of the attorney's fees of counsel for the plaintiffs.
In our first exposure to the question, Walden v. Royal Globe Ins. Co., 577 S.W.2d 296, 301 (Tex.Civ.App. Beaumont 1978, writ ref'd n. r. e.), in speaking for the Court, I noted:
"(T)he propensity or the likelihood of a widow remarrying is not, in our opinion, subject to such actuarial proof. Indeed, in our study we have found but one case on the subject, Osborn v. Osborn, 252 S.W.2d 837, 840 (Mo.App. 1952), where the court states:
"`Missouri Jurisprudence has not yet advanced to the point where re-marriage statistics have much evidentiary weight in solving this difficult problem.'"
As noted in Walden v. Royal Globe Ins. Co., supra, the Supreme Court in Twin City Fire Insurance Co. v. Cortez, 576 S.W.2d 786, 790, fn. 5 (Tex. 1978), did not specifically approve the use of remarriage tables; it simply noted that some states "have provided for the use of remarriage tables." It could have, with equal accuracy, continued by noting that Texas has not provided for the use of such tables.
We faced the problem again in Texas General Ind. Co. v. Dougharty, 606 S.W.2d 725 (Tex.Civ.App. Beaumont 1980, no writ), and expressed our "judicial unease" as to the question of taking judicial notice of such unqualified tables.* The insurance carrier did not seek judicial approval or rejection of our "unease", and permitted our unease to continue unabated.
In Texas Employers' Insurance Association v. Clapper, 605 S.W.2d 938, 943 (Tex.Civ.App. Houston (1st Dist.) 1980, no writ), the court noted that since the defendant did not offer evidence in rebuttal of the "plaintiff's case on this issue" the certified copies of a named table the trial court did not abuse its discretion in fixing and allowing the fees. Here there was no evidence offered; consequently, there was no opportunity to rebut.
I respectfully suggest that now is an appropriate time for the Supreme Court to review the subject so as to set out guidelines for the allowance of attorney's fees under the new statute.
In Texas Employers' Insurance Association v. Clapper, 605 S.W.2d 938, 943 (Tex.Civ.App. Houston (1st Dist.) 1980, no writ), cited by the majority, after a hearing at which certified copies of a named instrument had been exhibited, the court then took judicial notice of the tables. No such showing has ever been made in this case or any other reaching this court.