author: PRESLAR, Justice.

text:
    GREAT SOUTHWEST LIFE INSURANCE COMPANY, Appellant, v. Doretha James HENSON, Appellee.
    No. 5732.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.
    Fowler & Donk and Terry K. Donk, Odessa, Thompson, Coe, Cousins & Irons, Robert W. Porter, Dallas, for appellant.
    Charles Winston and John Howze, Odessa, for appellee.
   PRESLAR, Justice.

This is a suit upon an alleged contract of life insurance, based upon an application for a policy of life insurance and a “binding receipt” issued by the insurance company in connection with such application. The applicant, Henry Henson, died before the policy was issued, and suit was brought by his named beneficiary against the insurer, Great Southwest Life Insurance Company. Trial was to a jury and, based on the jury’s verdict, judgment was for the plaintiff beneficiary, Doretha James Henson, for the face amount of the policy applied for, $5,000.00. We affirm.

Henry Henson made application to the Great Southwest Life Insurance Company for insurance on his life on September 11, 1961, paid the first month’s premium with the application, and was issued a receipt completed on the following form:

“RECEIPT
“Do not detach unless full first premium is paid with application.
“Received from --- the sum of - ($-) Dollars for the full first premium specified in the application for insurance in the Great Southwest Life Insurance Company, Dallas, Texas.
The insurance under the policy for which application is made shall be effective on date of this receipt or the date of completion of the medical examination (if required) whichever is the later date if, in the opinion of the authorized Officers of the Company at its Home Office in Dallas, Texas, the applicant is insurable and acceptable for insurance under its rules and practices on the plan of insur-anee, for the amount of insurance, and at the premium rate set forth in the application, exclusive of any amendments in the space for ‘Home Office Additions or Corrections’. However, if the applicant dies prior to the Company’s actual issuance and delivery of the policy applied for, the total liability of the Company under this receipt and other insurance in force in this Company shall not exceed $50,000.”

Henry Henson died of a heart attack on October 10, 1961, and at that time no policy had been issued, but his application was being processed in the home office of the insurance company at Dallas, Texas, where it had been received on September 13, 1961. The trial court submitted the following issues (and others not material to this appeal) to the jury, which answered them as indicated :

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the proper official of Great Southwest Life Insurance Company approved the application of Henry Henson for insurance on his life?
“Answer ‘Yes’ or ‘No.’
“ANSWER: Yes
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that prior to Henry Henson’s death in the opinion of the proper official of Great Southwest Life Insurance Company Henry Henson was insurable and acceptable for insurance under its rules and practices on the plan of insurance, for the amount of insurance and at the premium rate set in his application for life insurance?
“Answer ‘Yes’ or ‘No.’
“ANSWER: No
“If you have answered the foregoing Special Issue No. 2 ‘No’, and only in such event, then answer Special Issues Numbered 3 and 4.
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence that such opinion, if any was not made in good faith?
“Answer ‘Yes’ or ‘No.’
“ANSWER: No
“SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that a reasonably prudent and careful authorized officer of Great Southwest Life Insurance Company, acting in good faith, would, on the evidence available, find that Henry Henson was at the time of such opinion, if any, insurable and acceptable for insurance under said company’s rules and practices on the plan of insurance, for the amount of insurance and at the premium rate set in his application for life insurance?
“Answer ‘Yes’ or ‘No.’
“ANSWER: No.

Both parties moved for judgment, and, as indicated, judgment was for the plaintiff, and defendant (appellant) assigns two points of error, which are:

1. “The trial court erred in over-ruling defendant’s motion for judgment upon the jury’s answers to special issues number 2, 3, and 4.”
2. “The trial court erred in over-ruling defendant’s motion for new trial because the jury’s answer to special issue number 1 does not support a judgment for plaintiff.”

Under these broad assignments it is contended that the relationship of the parties being contractual, the language of the application and receipt controls, and the jury having found that a proper officer of the insurer never formed the opinion that Henson was insurable and that such opinion was reached in good faith, the terms of the contract were never met; that the application was an offer which the company had a right to accept or reject, and the findings show non-acceptance, so that a contract never came into existence.

Whether or not a receipt of the nature of the one here involved provides temporary insurance or interim insurance has been much before the courts. The holdings are analyzed in 2 A.L.R.2d 943, and Vol. 1, Later Case Service, A.L.R.2d 183, and in an article in 44 Yale Law Journal 1223. The latest cases on the construction of such receipts are digested in the January, 1966, issue of Insurance Counsel Journal, Vol. 1 at page 32.

In a majority of the jurisdictions, it is held that the question of whether interim insurance is provided by the “conditional receipt” or “binding receipt” is determined by the particular wording of the receipt. In what must be considered a minority view, some states hold that the acceptance of the premium and the issuance of the receipt provides interim insurance. Such holdings are usually on the basis that otherwise the applicant would be paying for insurance for a period of time when he actually had no coverage. Texas decisions have been that the insurer had the right to accept or reject the application, and that a contract of insurance did not come into existence until acceptance. Silva v. Sentinel Life Insurance Co., Tex.Civ.App., 361 S.W.2d 731 (n. r. e.). Debenport v. Great Commonwealth Life Insurance Co., Tex. Civ.App., 324 S.W.2d 566, held that there was no interim insurance where there was no evidence that the application was approved by the insurer. In the most recent pronouncement by our Supreme Court on the question, United Founders Life Insurance Company v. Carey, Tex., 363 S.W.2d 236 (1962), a receipt in language substantially identical to the one before us was construed. The receipt was held, to be ambiguous, with ambiguities' to be construed against the insurer, and fact questions presented as to the question of acceptance. The court of civil appeals had affirmed a judgment for the beneficiary (347 S.W.2d 295), and in remanding the case for retrial the Supreme Court indicated that issues such as numbers 2, 3, and 4, above, were appropriate. Important to a determination of the case before us is the holding that the receipt was intended to provide temporary insurance for some period of time. The only question was — when was it to be effective? Speaking for the majority of the Court, Justice Hamilton wrote:

“One thing we may say with certainty is that the receipt is intended to provide temporary insurance for some period of time. That conclusion necessarily follows from the express provision of the receipt that the insurance is to be effective upon completion of the medical examination if in the opinion of the authorized officers the applicant is insurable and acceptable rather than upon acceptance of the application or upon issuance or delivery of a policy. The opinion must be formed before the application is approved and a policy issued. There is no way of knowing how long in advance of approval of the application or issuance of a policy the requisite opinion will be formed, whether thirty minutes or three months, but in no event is the applicant to be without insurance until the application is accepted and the policy is issued. * * * ”

The only material factual difference between the United Founders case and the case before us is that the applicant there had been required to have a medical examination and had completed it before his death, and in the case before us the applicant died before knowing any examination was desired. It was to meet the former situation that Justice Hamilton formulated the above issues. There is testimony in the case before us by the chief underwriter of appellee, the officer who passed on applications, that he had determined that Henson should have a medical examination; that he had communicated that to the agent in Odessa who took the application. The agent testified to having received the request on October 8th, but stated that he was unable to locate Henson on October 9th, before Henson’s death on October 10th. Henson’s application shows it to have been approved by the chief underwriter on September 12, 1961, given a policy number, and an effective date of September 28, 1961; but these notations had a line drawn through them, and the chief underwriter testified that he drew such lines, but we are not given the date that such action was taken. He also testified that at one time he had approved the application, but later changed his mind and canceled it. We view all of such testimony as unimportant in our consideration here, for the jury found that the proper officer of the insurer approved the application, and appellee has not challenged the absence or sufficiency of the evidence to support such finding. This court is thus bound by such finding, which is a different situation from that which existed in the United Founders case. There the court was trying to ascertain when the various factors were determined which led to an ultimate conclusion of approval or disapproval of the application. The court there did not have established approval, but was faced with the problem of determining when the interim insurance would be effective short of, or prior to, ultimate approval. Note Justice Hamilton’s language: “The opinion must be formed before the application is approved and a policy issued. There is no way of knowing how long in advance of approval of the application or issuance of a policy the requisite opinion will be formed, whether thirty minutes or three months, but in no event is the applicant to be without insurance until the application is accepted and the policy is issued.”

In the case before us, we have a jury finding that the proper official of the insurer approved the application of Henry Henson for insurance on his life. As indicated, we are bound by that finding in the state of the record before us. It is the final step, short of issuing the policy, in passing on the application. Other opinions as to the state of the applicant’s health, his insurability, etc., are but factors in determining the ultimate question of approval or disapproval. Thus, we think that Issues 2, 3, and 4 must yield to Issue 1. Issue 2 is not a finding that an opinion was formed that the applicant was not insurable. Rather, it is a finding that the insurer never did form an opinion that he was insurable. That they never had an opinion that he was insurable is not the same thing as an opinion that he was not insurable. The latter would be in conflict with their good judgment in approving the application, but we do not have such a finding here. Regardless of what their opinions were, the fact remains that the application was approved. Issue No. 1 may have been too broad or too general, but it was submitted without objection. We adhere to the rule that the terms of the receipt must be met, and that the burden of proof is on the applicant’s beneficiary to prove that the temporary insurance provided by it was in force at the time of the applicant’s death, and we are of the opinion that the record before us calls for an affirmance of the judgment so holding.

Both assignments of error are overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Olivia BOOTH et al., Appellees.
    No. 5765.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 23, 1966.
    Waggoner Carr, Atty. Gen., Sam V. Stone, Jr., T. B. Wright, Hawthorne Phillips, Stanton Stone, Watson C. Arnold and Carroll R. Graham, Asst. Attys. Gen., Austin, for appellant.
    Hill D. Hudson, Pecos, for appellees.
   CLAYTON, Justice.

This is a condemnation suit brought by the State of Texas against the appellees to condemn approximately 55.30 acres plus an additional 2.70 acres of land for drainage easements out of approximately 9,350 acres owned in fee by defendants, known as the “Booth ranch”, and situated in Hudspeth County, Texas, said condemned land to be used in connection with the construction of Interstate Highway 10. On the land condemned was a fence which was removed and laid over on the remaining land and a new fence constructed by appellant and tied into appellees’ existing cross-fences. Appellant having filed its petition in condemnation, special commissioners were appointed and after proper notice and hearing an award was entered in the amount of $7,000.00, to which appellant objected and the case was tried before a jury in County Court. Appellant and appellees stipulated that the only questions involved were (1) the fair market value of the property taken on November 29, 1963, and (2) the damages, if any, to the remainder. These were embodied in special issues submitted to the jury as follows:

Special Issue No. 1: The market value of appellees’ strip of land condemned on November 29, 1963, considered as severed land, to which the jury found $2,900.00.

Special Issue No. 2: The market value of the remaining land, approximately 9,290 acres, immediately before the strip was taken, to which the jury answered $185,-000.00

Special Issue No. 3: The market value of the remaining land immediately after the strip was taken, to which the jury answered $175,000.00

Judgment was entered against appellant, in accordance with the verdict, in the amount of $12,900.00. Motion for new trial having been overruled, this appeal was taken.

Appellant presents ten points of error. The first complains of the action of the trial court in refusing to strike the testimony of appellee-landowner Oscar Booth, relative to the damages to the remaining 9,290 acres after the strip was taken for the reason that such testimony was based on improper and non-compensable methods of evaluation and not based on market value as of the day of taking. The witness Booth testified that prior to the time of taking, the strip taken and the remaining land were being operated as a ranching unit and that immediately before November 29, 1963, the day of taking, the “value” of that land per acre as a ranching unit was “approximately twenty dollars”. However, he later testified that the land which fronted on the old highway before the construction of Interstate 10, that is, Old Highway 80, was worth per acre $150.00, or $8,700.00 for the strip that was actually taken. No explanation is given in the witness’ testimony clarifying this difference in valuation, nor does he justify the $150.00 valuation by any testimony as to “market value”. Clearly, there is no probative value to this testimony. Tennessee Gas Transmission Company v. Wood, 331 S.W.2d 808, 810 (Tex.Civ.App., 1960; n. w. h.):

“ * * * We cannot presume that when these witnesses were talking about the ‘value’ of the land or what it was worth to them, or what they would be willing to pay for it, they were talking about the market value of the land. The trial court erred in permitting these witnesses to testify as to what the land was worth, or what its ‘value’ was, without a clear showing that they were testifying concerning the ‘market value’ of the land.”

See also Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956):

“It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.”

The following further answers were elicited from the witness by appellees’ attorney:

“Q I believe we figured it (the strip taken) fifty-eight acres roughly. There would be then at least nine thousand two hundred and eighty five acres out of that that wasn’t taken by the State ?
A Yes, sir.
Q Is that correct ?
A Yes, sir.
Q And you place the value on that immediately prior to this condemnation on November 29th, 1963, at twenty dollars per acre, is that correct?
A Yes, sir.
Q All right sir. I figure then the total value of the owned property within the ranching unit and operated as such prior to that time was a hundred and eighty-five thousand six hundred dollars. Is that approximately correct?
A Yes, sir.
Q Now, Mr. Booth, considering what you would have to spend to get that watering replaced how much less than that, how much would be deducted from that for that reason? What was that figure you gave me awhile ago ?
A Seven thousand nine-fourten-ninety-eight.
Q Seven thousand-nine-fourteen-ninety-eight. Well, lets call it seven thousand-nine hundred and fourteen dollars. Is that satisfactory to you?
A Yes, sir.
Q And how much did you say that your land now, not the T & P Land but your land as a whole has depreciated in value by reason of the, of your failure, on account of this situation to be able to run sheep on there ?
A Approximately twenty-two percent plus.
Q Then the value has decreased, the hundred and eighty-five thousand six hundred has decreased twenty-two percent, in your opinion, of the hundred and eighty-five thousand-six hundred?
A Yes, sir, about twenty-two and a half percent.
Q Twenty-two and a half percent. Can you multiple that out and give me the actual figures on it?
A I have forty-two thousand and sixty-six dollars but that was including the fifty-five acres that the Highway Department has taken.
Q I see. Well exclusive of that lets figure it, Mr. Booth. Figure a hundred and eighty-five thousand at six hundred — Mathematically I am very poor.
A I figure forty-one thousand-seven-sixty, if I haven’t made an error.
Q Forty-one-seven-sixty? Forty-one thousand seven hundred and sixty dollars?
A Yes, sir.
Q All right, sir. And then you have got seven thousand nine hundred and fourteen to be added to that. Am I correct ?
A Yes, sir.
Q You figure then a total decrease in value before the condemnation and afterwards as forty-nine thousand six-hundred and seventy-four, is that figure correct?
A Yes, sir.
Q Now, Mr. Booth, allowing and being as conservative as you can and placing your actual value, I mean your actual depreciation, in your opinion, as low as it could possibly be, what would you say was the difference between the value of the tracts of land in that ranch that you own that were not taken by the State by condemnation but by cause of it between, before November 29th, 1963, and after the condemnation?
A A little over sixty thousand dollars.
Q All right, sir. Now, —
MR. CURTIS: I don’t think he understood you.
MR. HUDSON: I don’t think he did either.
MR. HUDSON:
Q Mr. Booth, I am not figuring the land that they took. You had a difference in the twenty-two percent deduction figure of forty-one-thousand seven hundred and sixty?
A It would be forty-nine thousand-six-seventy-four.
Q All right. Now what do you figure, just being absolutely conservative what do you know to be the damage in your opinion?
A Around forty thousand.
Q Around forty thousand dollars?
A Yes, sir.
Q All right, sir. Mr. Booth, you have been deprived of access to all of the land which you own in Section 12 and 16 which previously fronted on Highway 80, have you not?
A Yes, sir.
Q From the south side?
A Yes, sir.
Q And there were a total of fifty-eight, whatever that point was, acres of land taken by the State. What do you estimate the value of that land that fronted on Old Highway 80 to have been worth per acre?
A A hundred and fifty dollars. It would be a total of — -
Q I am just figuring fifty-eight acres for this purpose. If it is fifty-eight acres at a hundred and fifty dollars, it would be eighty-seven hundred dollars for that tract that they have actually taken, is that correct ?
A Yes, sir.”

It was at that point, after completion of Mr. Booth’s direct testimony, that appellant made its motion to strike the testimony of the witness, which motion was overruled by the court. Appellant’s position, as expressed in its motion to strike, finds support in the Commission of Appeals adopted opinion in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 at pages 200 and 201:

“Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. Evidence should be excluded relating to re-
mote, speculative, and conjectural uses, as well as injuries, which are not reflected in the present market value of the property.
“As indicated above, the correct method of adducing evidence as to market value is by witnesses, after suitable qualification, giving their opinion as to the market value of the residue before and after the taking, rather than undertaking to testify to specific items of injury and • damage.”

As stated, the motion to strike was overruled by the court. We feel that in this the court was in error, since the testimony offered dealt with specific items of injury and damage, rather than being an opinion as to the market value of the residue of land before and after the taking. On this ground, we sustain appellant’s first point of error.

Appellant’s second and third points of error assert that there was no evidence, and insufficient evidence, that there was any diminution in the market value of the remainder of the land immediately after the taking of the land condemned, and points of error numbers four and five assert that the court erred in not granting appellant’s motion for a new trial because of no evidence, and insufficient evidence to support the jury’s findings and answers to special issue number three, and that such answer was against the great weight and preponderance of the evidence and is manifestly unjust.

Another witness for appellees, Mr. Hermit Holmes, testified on voir dire that he was not a real estate broker nor an expert on the value of real estate in the vicinity of appellees’ ranch; that he made one purchase of 0.9 of an acre in the vicinity because the property was on Interstate 10. Over objection, the witness was allowed to testify that he paid a thousand dollars for the 0.9 of an acre. Another witness, Mr. Ed Love, had lived and ranched in the particular area of the country and was familiar with the Booth ranch and, while not a real estate man, was, to the best of his ability, familiar with the value of ranch land in that area and testified that the value of such land immediately prior to November 29th, 1963 was around twenty dollars per acre, and that at such time land which fronted on Old Highway 80 had a minimum value of $100.00 per acre. The witness further testified that land such as the Booth ranch, with proper fencing, could run sheep but would be unable to do so where the fence planned by the Highway Department immediately prior to taking, in drainage areas, had the lowest wire twelve inches above the ground, and that this consideration would decrease the value of such land as a ranching unit. The witness was familiar with the washing and filling of earth tanks in the general area and with the flow of water in heavy rains specifically in the area of appellees’ tank, and had examined the drainage provided under the new Interstate 10 in that area, and stated that such drainage in his opinion would increase the wash of sediment into the tank and eventually destroy its use for watering.

A further witness for appellees was Mr. William Wyche, a ranch owner in the area until he sold out in 1963. His ranch was about five or six miles from the Booth ranch and somewhat comparable thereto. The Wyche property sold for twenty-two dollars per acre. Mr. Wyche testified that an earth tank would fill up on an average of five or six years. The ap-pellee-witness Booth had testified that he had used his earth tank since, he believed, 1947.

Mr. Kenneth Wheeler, a witness for the State, was a civil engineer who had been a real estate appraiser for about six years, who had studied in the American Institute of Real Estate Appraising, held a real estate broker’s license and was a member of the Texas and National as well as the local (El Paso) Real Estate Boards. He had appraised property for authorities exercising the right of eminent domain as well as for owners whose property was being condemned, including over a hundred ranches, twelve of which were in Hudspeth County. He was employed by the Texas Highway Department to make an appraisal of the Booth ranch and had driven or walked over it about a half dozen times, alone or accompanied by Mr. Booth. After giving an explanation of the term “market value” the witness then went into the three approaches to market value — the “cost approach, the market approach, and the income approach”. The witness then testified to several confirmed comparable sales. The first was on the basis of $11.00 per acre, including improvements, in 1963. The next, also in 1963, was the Wyche sale, on the basis of $23.36 per acre, including improvements. The third was in 1961 on the basis of $9.75 including improvements. A fourth, no year date given, was based on $12.80 per acre, including improvements, and a fifth, in 1963, at $13.25, including improvements. The witness then testified to market values of the Booth ranch. Of the part taken, including fee and easement, he stated the market value to be $905.00. As to the market value of the remaining land, excluding the part taken, and before it was taken, he stated to be $204,095.00 as of the date of taking, November 29, 1963. He placed the same value on the remaining land after the taking, but excluding the land taken. He broke this figure down to $150,000.00 for the land alone and $55,000.00 for improvements. He also gave the estimated market value of the land remaining and the part taken in fee as $16.00 per acre, plus improvements, and for the easement land $8.00 per acre. He did not consider the sale of the 0.9 acre to Mr. Kermit Holmes as comparable to the 55 acres in fee taken from the Booth ranch.

We consider the above to be a fair condensation of the pertinent testimony in the instant case relative to market value of the Booth ranch. While that testimony is to some extent related to specific items of injury and damage, we consider that there was some evidence, hut insufficient evidence, to show a diminution of the market value of the remainder of the land immediately after the taking of the land condemned, and that the jury’s answer to special issue number three was against the weight and preponderance of the evidence. We therefore sustain appellant’s points of error numbers three and five, but overrule points two and four, “no evidence” points. We also sustain appellant’s point of error number seven, that there was insufficient evidence to support the jury’s finding in special issue number one, relative to the market value of the strip of land taken, considered as severed land, but overrule point of error number six, which is a no evidence point. Under this state of findings, we deem it unnecessary for us to pass upon point of error number eight, complaining of the trial court’s admission of the witness Kermit Holmes’ testimony as to the sale of the 0.9 acres of land as not being a comparable sale. Point of error number nine relates to a claimed excessiveness of the trial court’s judgment and demands a re-mittitur of $11,508.00, but we feel that a new trial should be granted without requiring a remittitur, as set out in point of error number ten alleging that the cumulative effect of the alleged errors amounted to a denial of appellant’s rights and was reasonably calculated to cause and probably did cause the rendition of an improper and excessive verdict and judgment. Scott v. McLennan County, 306 S.W.2d 943, 948 (Tex.Civ.App., 1957; ref., n. r. e.) :

“Bearing in mind the errors here pointed out, and bearing in mind that the sole question before the jury was the reasonable cash market value of the property at the time it was being condemned, we feel that we must take into account the cumulative effect of the errors here pointed out, and that such errors, when considered together under all the facts and surrounding circumstances, constitute reversible error. As we understand our Supreme Court in Southern Pacific Co. v. Hubbard, [156 Tex. 525], 297 S.W.2d 120, point 1 on page 125, the court may consider the cumulative effect of the errors it finds in a cause. We do not mean to hold that the errors pointed out, standing alone, are insufficient to reverse this cause. We are holding that the cumulative effect of all the errors, under all the facts and surrounding circumstances, does constitute reversible error. We are of the further view that the errors complained of and here discussed amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. See Rules 434 and 503, Texas Rules of Civil Procedure.”

Appellant’s point of error number nine is overruled, but point of error ten is sustained and the judgment of the trial court is reversed and the cause remanded for a new trial.


text:
    In re ESTATE of Nora A. PRICE, Deceased.
    No. 5772.
    Court of Civil Appeals of Texas. El Paso.
    March 16, 1966.
    Rehearing Denied April 6, 1966.

      See also Tex., 375 S.W.2d 900.
    Guinn & Guinn, W. Barton Boling, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, J. Samuel Moore, Jr., El Paso, for appellee.
   CLAYTON, Justice.

This is a will contest in which The State National Bank of El Paso, Texas, which was named as trustee and independent executor by the decedent, Nora A. Price, is the proponent and appellee here, and Herbert R. Stone, son of decedent, is the contestant and appellant here. The will of Mrs. Price was admitted to probate and letters testamentary were granted to The State National Bank by order of the County Court at Law No. Two of El Paso County, Texas, dated May 20, 1960. Contestant appealed to the District Court of El Paso County, Texas, basing his contest on the grounds of lack of testamentary capacity and undue influence. The record reveals that some time prior to 1958 Mrs. Price had been adjudged incompetent and a guardian of her property had been appointed. The record further reveals that shortly before February, 1958 she had been taken by her son to a rest home near Pasadena, Texas and that she had not previously seen her son for thirty or thirty-five years due to the fact that, when he was a young baby, Mrs. Price’s husband had run off with her sister, taking the little boy with them. After Mrs. Price’s return to El Paso from Pasadena, Texas, she evidenced a desire to her lawyers to change her previous will on the ground that she felt her son had misled and mistreated her, claiming among other things that she thought she was going to his home, and not a rest home, and that the son, his wife and the people at the rest home in Pasadena had not been kind to her. Therefore, on her return to El Paso it appears that she got in touch with her attorneys in order to make a new will. In pursuance of this request a restoration proceeding was initiated in the County Court of El Paso County, and on February 25-, 1958 an Order of Restoration was entered by the said County Court of El Paso County. Immediately thereafter, on the same day and date, Mrs. Price executed the will herein contested. The record reveals that her attorney handed her a copy of the will in the presence of the County Judge and other witnesses, and read it to her, and that she said it was exactly as she wished it to be. She then signed and executed the will in the presence of her attorneys and other witnesses and the County Judge, who himself appears to have been a witness to the will. The new will left her property to the State National Bank in trust for her brother, a disabled World War II veteran, with remainder after her brother’s death to a family friend named Dan King. She left the sum of $1.00 to her son, the contestant herein. Mrs. Nora A. Price passed away approximately two years after executing this will, to-wit, January 14, 1960, at the age of 79 years. On the trial of the appeal the trial court granted proponent’s motion for summary judgment on the issue of testamentary capacity, and submitted the issue of undue influence to a jury. The sole ground asserted in proponent’s motion for summary judgment was the proposition that the order of restoration was conclusive on the court and on all parties as to the issue of testamentary capacity on the part of Mrs. Price as of the time it was entered and for the remainder of the day. Attached to the motion were certified copies of the will and the order. Upon a verdict of no undue influence, judgment was entered for proponent, admitting the will to probate and affirming the appointment of the bank as independent executor of the estate. From this judgment appeal was taken to this court. In that appeal appellant presented six points of error, complaining that the trial court erred (1), in precluding him from offering evidence as to the testamentary capacity and soundness of mind of testatrix; (2), in precluding submission of issues as to the testamentary capacity or soundness of mind of testatrix; (3) and (4), in granting the motion for summary judgment and holding as a matter of law that testatrix possessed testamentary capacity and a sound mind and was not suffering from any insane delusions; and (5) and (6), that the court erred in precluding contestant from offering evidence or submitting issues relative to alleged insane delusions of testatrix. In an opinion dated June 19, 1963 (369 S.W.2d 647) we held that the order of restoration by the County Judge of February 25, 1958 was merely a matter of evidence, attesting to the sanity of the individual as of the time it was rendered, and did not preclude any attack on any legal instrument executed by the individual later the same day, but that because contestant had not created, by affidavit or otherwise, a fact situation, the trial court was correct and within his authority in granting proponent’s motion for summary judgment, and the judgment of the trial court was affirmed. However, the Texas Supreme Court, on March 18, 1964, In Re Price’s Estate, 375 S.W.2d 900, held “it must be assumed that the contestant filed his petition in good faith, and would have undoubtedly filed a controverting affidavit had it been indicated that any question other than one of law was being presented to the court for determination or that the court would take into consideration in passing upon the motion any matters not therein urged. We believe that the summary judgment rule does not contemplate that under such circumstances, contestant’s right to a trial would be foreclosed”, and said court therefore reversed the judgments of the trial court and of this court of civil appeals and remanded the cause “for a trial upon the issue of testamentary capacity”.

On this appeal the contestant raises seven points of error: No. 1, the failure of the trial court to give contestant’s requested instruction number one, pertaining to insane delusions; No. 2, the failure to submit contestant’s requested issue number two relative to insane delusions; and No. 3, the absence from the court’s charge of any instruction or issue as to insane delusions when the same was adequately raised by the evidence; No. 4, the failure of the court to submit contestant’s requested issue number one pertaining to undue influence; and No. 5, the absence from the charge of any issue or instruction pertaining to undue influence when same was adequately raised in the evidence; No. 6, refusing to allow contestant to read those portions of his pleadings relating to undue influence; and No. 7, in refusing contestant the right to open and close final arguments to the jury.

It must be remembered that the Supreme Court remanded this case to the trial court “for a trial upon the issue of testamentary capacity”. In his charge at the time of the new trial the court gave the following instruction to the jury:

“You are instructed that by the term ‘sound mind’ as used in this charge is meant, that the person making the will must at the time of the execution of the will, have had sufficient mental ability to understand the business in which she was engaged, the effect of her act in making it, and the nature and extent of her property; she must be able to know her next of kin and the natural objects of her bounty and the claims upon her; she must have memory sufficient to collect in her mind the elements of the business about to be transacted, and to hold them long enough to perceive their obvious relation to each other, and to be able to perform a reasonable judgment as to them.”

The sole issue submitted was as follows:

“QUESTION NO. 1:
“Do you find from a preponderance of the evidence, that at the time Nora A. Price executed the instrument offered for probate as her last will and testament, dated February 25, 1958, that she was of sound mind, as that term has been defined herein? Answer ‘yes’ or ‘no’.”,

to which the jury answered “Yes”.

Contestant’s requested instruction number one was that, if at the time of the execution of the will by Mrs. Price on February 25, 1958 she was under the influence of an insane delusion or delusions about her son, Herbert A. Stone, which affected the disposition of her property which she was making, then she did not have at that time “sound mind or testamentary capacity”. And further, that “an insane delusion is the belief of the existence of a state of supposed facts which no rational person would have believed.” His requested issue number two would have instructed the jury that if at the time of the execution of the will Mrs. Price was under the influence of an insane delusion or delusions, again defining the term, affecting the disposition of her property she was making, that she lacked at that time testamentary capacity. This was followed by “Question No. Two” which would ask the jury whether at the time of the execution of the will Mrs. Price was under the influence of an insane delusion or delusions. His requested Issue No. One was a definition of undue influence followed by an issue as to whether Mrs. Price was caused to execute the will of February 25, 1958 by the exercise of undue influence upon the part of Dan King (the remainder-man in her will).

Appellant’s requested instruction and issue relative to undue influence were properly refused by the trial court and Points of Error numbers 4, 5 and 6 before us now are overruled. The issue of undue influence was presented to the jury in the first trial and answered adversely to the contestant. On appeal from that trial the matter before us was solely on the question of the correctness of the summary judgment on the matter of testamentary capacity and no points of error relative to the jury finding on undue influence were presented to us or to the Supreme Court on the first appeal. This matter, therefore, has already been adjudicated adversely to appellant and has become the law of the case and will not be considered here.

The contestant’s Points of Error numbers 1, 2 and 3 pertaining to insane delusions present greater difficulty.

“An ‘insane delusion’ has been defined as a belief in a state of circumstances that no rational person would accept as true. Although the term implies an adherence to a fixed belief against reason and evidence, a mere mistaken belief or an erroneous or unjust conclusion is not an insane delusion if there is some foundation in fact or some basis on which the mental operation of the testator may rest, even though it may be regarded by others as insufficient. And as bearing on the question of whether the decedent has some grounds for belief claimed to have been a delusion, events that have occurred since execution of the purported will may be considered.
“Evidence of delusions is probative on the issue of a testator’s soundness of mind under statutory requirements. But delusions are not a ground of attack against the probate of a will, except as they indicate a lack of testamentary capacity sfi ‡ ⅜ if

61 Tex.Jur.2d 136, 137, Wills, § 30. Delusions. Contestant relies heavily upon Lindley v. Lindley, 384 S.W.2d 676 (Tex.S.Ct., 1964). That opinion recites:

“ ‘ * * * Each case must rest on its own circumstances, the question of law for the trial court being whether the contestant has introduced substantial evidence, not only of a mental error affecting the terms of the will, but that the persistence of this mental error was caused by defective cerebration.’ See Annotation, 175 A.L.R. 882, 889.” (Emphasis supplied.)
“ * * * Contestants were entitled to have an instruction on insane delusions given if there is any evidence of probative value which, with the inferences that may reasonably be drawn therefrom, will support a finding that Mrs. Lindley was laboring under such a delusion which affected the terms of her will. In determining that question, moreover, we must consider only the evidence which, when viewed in its most favorable light, tends to support such a finding, and must disregard all evidence that would lead to a contrary conclusion.”

In the Lindley case, the judgments of the trial court and the court of civil appeals were reversed and the case remanded, the court having found that there appeared to be no basis whatever for certain beliefs of the testatrix and under the circumstances contestant was entitled to an instruction on insane delusions and that the court erred in refusing to give the same. In the instant case, we do not believe that the disposition made of her property by testatrix in trust for her disabled brother witli remainder to a family friend is so unnatural as to indicate insane delusions on her part, or lack of testamentary capacity. And even if unnatural, “An unnatural disposition of property in and of itself does not justify denial of admission of a writing to probate on the ground of incompetency, since one may dispose of his property as he sees fit, regardless of ties of relationship.” 61 Tex.Jur. 2d 138, Wills, § 32 — Unnatural disposition of property.

On February 25, 1958, the date of the restoration hearing at which decedent was declared to have been restored to her right mind and to be of sound mind, and the date upon which she executed her last will, she was interrogated by her attorney who drew the will and by County Judge McGovern as to what her property consisted of, what b°r business affairs were, her attitude toward the restoration proceedings and her desire to execute the new will, and she then proceeded with the execution of the will, to which the County Judge, a trust officer of the State National Bank, and Mrs. Hartman (Godin), the operator of the rest home at which decedent was staying in El Paso, were witnesses. Dr. Arlin B. Cooper, a neuropsychiatrist of El Paso, examined decedent on February 17, 1958 at the request of the trust officer who had informed him that decedent wanted to change her will. His examination was for the purpose of determining whether decedent was mentally clear, if she knew fully the nature and extent of her estate and whether any individual was unduly influencing her in changing her will. The doctor, in addition to his testimony, made a report of his findings dated February 19, 1958, which was introduced in evidence and which recited that deceased at the time of the examination was correctly oriented, with no sign of a psychotic process present, either overt or latent. Her memory was sharp, detailed and accurate, and she was fully aware of the nature of her estate and her plans for the future seemed to be logical and based on sound judgment. The doctor further found that she was of sound mind and capable of administering the affairs of her estate, and capable of executing legal documents and wills and testaments. He found that her expression of a desire that the Trust Department of the State National Bank be given the power to administer to her needs in case she should become ill 0⅛ incapacitated was logical. At the trial of the case the doctor testified that the decedent, concerning her son, had expressed her unhappiness at being placed in a nursing home, and she was unhappy with the attentions in the nursing home. These complaints, “more or less general”, “could have been somewhat overdrawn” but “certainly not to any major degree to cause her to be incapacitated for making a will”. Another doctor of internal medicine, deceased at the time of the trial, but who had been Mrs. Price’s personal physician, wrote a letter dated February 15, 1958, which was introduced in evidence and which recited that he had examined Mrs. Price on February 14th and found her markedly improved, mentally alert and capable of caring for her affairs.

Without further burdening this record by outlining the other testimony at the time of the new trial in this cause, we find and hold that the trial judge could have issued a peremptory instruction on the issue of insane delusions and was therefore justified in refusing to submit such issue in other than the form submitted on “sound mind”. We accordingly overrule appellant’s points of error numbers one, two and three.

Appellant’s seventh point of error complains of the action of the court in refusing contestant the right to open and close final arguments to the jury. The will in this case is a self-proving will. Section 88(b) of the Probate Code, V.A'.T.S., provides :

“ § (b) Additional Proof for Probate of Will.
To obtain probate of a will, the applicant must also prove to the satisfaction of the court:
(1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, * * * was of sound mind; * * *

Contestant takes the position that under the law and facts in this case the actual burden of proof on the whole case at the new trial was on the contestant, and the contestant should have been allowed to open and close final arguments, and makes the further statement that “The right to open and close final arguments undoubtedly had a substantial bearing on how the jury finally answered the single issue submitted in the case.” Contestant’s position as to the burden of proof seems to find support in Brewer v. Foreman, 362 S.W.2d 350 (Tex.Civ.App., 1962; n. w. h.), in which it is stated that the effect of Sec. 88 of the Probate Code is to place the burden of proof as to the issue of soundness of mind on the contestants. However, if the trial court here was in error in not granting- contestant the right to open and close final arguments, there is no showing of resulting injury to appellant, or that such error actually brought about the rendition of an improper verdict by the jury. We therefore hold such error, if any, to be harmless and we accordingly overrule appellant’s seventh point of error.

Finding no error in this record, the judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    Glenn FORGUS, Appellant, v. Gordon HODNETT, Appellee.
    No. 4029.
    Court of Civil Appeals of Texas. Eastland.
    March 11, 1966.
    Rehearing Denied April 1, 1966.
    Guilford L. Jones, Big Spring, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, Midland, for appellee.
   GRISSOM, Chief Justice.

Glenn Forgus, individually and as next friend for his minor daughter, sued Gordon Hodnett for damages suffered by her injury in an automobile accident. At the time of the accident, defendant’s automobile was being driven by his minor daughter and plaintiff’s daughter was riding therein as her guest. Plaintiff asserted liability of the defendant automobile owner for ordinary negligence in entrusting his automobile to his daughter knowing that she was an unlicensed and inexperienced driver and that his automobile had a defect in its steering mechanism.

The defendant pleaded Article 6701b, the guest statute, as a defense. In a motion for summary judgment, the defendant contended that, as a matter of law, plaintiff was not entitled to recover under said allegations, and that to recover he was required to allege and prove gross negligence of the owner of the automobile so entrusted. In opposing defendant’s motion for a summary judgment, plaintiff took the position that Article 6701b was not applicable and that defendant was liable to his daughter’s guest for his ordinary negligence in entrusting his automobile to his daughter under the circumstances mentioned. The court sustained the defendant’s motion for a summary judgment and held that the guest statute barred recovery for ordinary negligence in entrusting the automobile to his daughter. Appellant says the only question presented by this appeal is whether Article 6701b applies to negligent entrustment in Texas. We hold that it does.

Section 1 is as follows:

“No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

Our Supreme Court has held that this statute was intended to give added protection to the host-driver of an automobile and his insurer against suits by guests, Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, and to prevent fraudulent collusion between an insured and his guest. Cedziwoda v. Crane, 155 Tex. 99, 283 S.W.2d 217, 218. See also Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022.

In Snyder v. Jones, Tex.Civ.App., 392 S.W.2d 504, 508, it was held that proof of knowledge by the owner that his automobile had a dangerous defect when he permitted his daughter to use it for herself and her guest did not show gross negligence, which was essential to establish liability under Article 6701b.

Appellant says there is no Texas case deciding the question presented, but he calls attention to language used in some that, perhaps, tends to support his contention that the guest statute is not applicable here. None of said cases hold that a guest has a cause of action against the owner of an automobile for ordinary negligence in entrusting his automobile to another.

In Ortman v. Smith, 8 Cir., 198 F.2d 123, 126; 344 U.S. 856, 73 S.Ct. 95, 97 L.Ed. 664, cert. den., a circuit court construed the South Dakota guest statute. The plaintiff contended the defendant automobile owner should be held liable for ordinary negligence in letting his minor child use his automobile and that it was not necessary to establish willful and wanton misconduct. The court held that the absent automobile owner, who entrusted it to his minor child, could avail himself of the guest statute as a defense. It cited the California case of Benton v. Sloss, Cal. App., 234 P.2d 749, 753, wherein it was held that to hold an automobile owner liable to a guest for ordinary negligence in entrusting his automobile to another would defeat the purpose of the guest statute. The South Dakota statute is substantially the same as ours. It provides as follows:

“No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself.”

The Supreme Court of Colorado in Graham v. Shilling, 133 Colo. 5, 291 P.2d 396, held that a guest who was injured while the automobile was being driven by one to whom the owner had entrusted it, could not recover from the owner without proof of his gross negligence.

The Supreme Court of Ohio in Tonti v. Paglia, 171 Ohio St. 520, 172 N.E.2d 618, 91 A.L.R.2d 317, said that the question presented was whether its guest statute provided a defense to an action for wrongful death against an automobile owner for negligent entrustment of his automobile to an incompetent driver, where the person injured was a guest of the driver and willful and wanton misconduct of the owner was not alleged. It said:

“An examination of the guest statutes in all the jurisdictions which have adopted such statutes reveals that in no such jurisdiction is the owner of a motor vehicle, who entrusted such motor vehicle to an incompetent person, held liable for injury, death or loss suffered by a guest of the driver in the absence of an allegation and proof of willful or wanton misconduct by the owner which resulted in the injury or loss to or death of the passenger. The entrustment of the motor vehicle to such incompetent person does not, in itself, constitute willful or wanton misconduct.”

Plaintiff’s contention that the defendant is liable to his daughter’s guest for ordinary negligence in entrusting his automobile, with a defective steering mechanism, to his unlicensed, inexperienced minor daughter seems to find some support in California and Kansas decisions and possibly others. But, most courts have taken the opposite view and hold that such guest statutes insulate such owners from liability for ordinary negligence and that a guest must establish the gross negligence of the owner to recover from him. 91 A.L.R.2d 326.

“The requirement of the guest statutes that the injured automobile guest, to recover from his host, must show gross negligence or similar aggravated misconduct has frequently been held to be also applicable where the guest seeks to recover from the owner of the vehicle, driven by another at the time of the accident, on the theory that the owner negligently entrusted the vehicle to an incompetent driver.” 91 A.L.R.2d 327.

Under the recognized general rule in the United States the defendant is not liable for the negligence alleged. The evident purpose of our guest statute requires application of the general rule in Texas. The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    John R. MEINDERS et al., Appellants, v. The SHAMROCK OIL AND GAS CORPORATION et al., Appellees.
    No. 7591.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1966.
    Rehearing Denied April 4, 1966.

      James S. Robinson, Canadian, Gordon, Gordon & Buzzard, Pampa, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Winston Smith, Amarillo, of counsel, for appellees.
   CHAPMAN, Justice.

This is an appeal asserted by brief to be by appellants, John R. Meinders and others, from an order of dismissal entered on August 9, 1965, for The Shamrock Oil And Gas Corporation and others wherein appellants were seeking to void or alter the consolidations of oil and gas leases owned by Shamrock.

There is no statement of facts in the record and no findings of fact or conclusions of law, nor is there a showing of any request therefor.

Plaintiffs’ Fourth Amended Original Petition, the only initiating proceeding shown in the record, indicates the number of petitioners in the suit are legion and in practically every capacity conceivable. The same may be said for the number of defendants. The transcript, the only record brought to our court from the court below, shows the trial court filed a judgment on August 9, 1965, in which the alleged cause of action filed by petitioners and all proceedings therein were dismissed with “prejudice to plaintiffs.” John R. Meinders and all other petitioners filed their notice of appeal on August 11,1965, but only the former filed his cost bond for appeal. No record of an affidavit or cash deposit in lieu of appeal bond is shown.

The requirement that a bond be filed within thirty days after rendition of judgment, where a bond is required as here, is mandatory, jurisdictional, and cannot be enlarged upon by the courts for any reason. Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315. See also Texas Employers’ Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434.

Perfecting appeal by one of two or more parties seeking to appeal from an adverse judgment will not satisfy the jurisdictional requirement as to any other party or parties. Southern Surety Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789.

1'he necessity of dismissing an appeal because the appeal bond was not filed in time may be raised at any time in the Court of Civil Appeals or the Supreme Court by any interested party, or it may be acted upon by any appellate court before which the appeal is pending on its own motion. Jones v. Campbell, Tex.Civ.App., 188 S.W.2d 679 (writ ref.).

Under these authorities we hold that only John R. Meinders has perfected his appeal and is before our court for an adjudication thereof. Therefore, the appeal where parties are named will be hereinafter referred to in the singular.

There being no statement of facts before our court and nothing whatever in the record before us to the effect that the judgment was rendered without supporting evidence, every presumption must be indulged in its favor, the court having jurisdiction of the subject matter and of the parties. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649.

Another case that appears to shed some light on our case is Hernandez v. Light Pub. Co., Tex.Civ.App., 245 S.W.2d 553 (writ ref.). There, in a hearing conducted prior to a trial on the merits, a proceeding was held before the court to determine whether claimant was an employee in the course of his employment or an independent contractor. The court found the claimant was an employee and defendant was a subscriber under the workman’s compensation law. The suit was dismissed. As in our case, the point brought to the appellate court was that the trial court proceeded improperly in sustaining defendant’s pleas in advance of a trial on the merits of the case. Just as here the record nowhere reflects that any objection was made to the hearing by the court either before or during the proceedings. The San Antonio Court of Civil Appeals in that case speaking through Justice Pope, now a member of the Texas Supreme Court, said, “ * * * even if the necessary steps had been taken to obtain a jury, the judgment and record show no objection to the court’s proceeding into the hearing * * *. The complaint that appellant was denied a jury trial is made for the first time in this court.” The court then held whether the plea was in abatement or in bar, the parties willingly submitted to the hearing, participated in it prior to the trial on its merits, and even if the court committed error it was not apparent on the face of the record. The dismissal of the case by the trial court was affirmed.

We believe the fact that the court in the Hernandez case was applying some of its statements to an interpretation or construction of Section (b) of Rule 174, Vernon’s Ann.Tex. Rules of Civil Procedure, does not make such holding inapplicable in our case. That rule provides:

“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

Shamrock’s pleadings and exhibits constituted 45 legal size pages of numerous defenses, exceptions and exhibits to appellant’s various contentions seeking to void or alter the consolidations of leases into the units complained about. Its argument under counterpoint three states positively: “This hearing, in which appellants participated, was held before the court sitting without a jury and evidence was there introduced." Such statement is not challenged by appellant in a reply brief. Though we are not considering such statement in a brief as any proof that evidence was heard at the hearing, we would regret to think that appellant would deliberately mislead this court by such statement. (Emphasis ours.)

Hey v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1, was a case involving the question of whether Section (b) of Rule 174 authorizes a separate trial of the damage issues and the liability issues in a suit for damages for personal injuries. Though the Texas Supreme Court speaking through Justice Calvert held it did not that court cited numerous cases in which the judgment of the trial court was affirmed where they tried without challenge some separate issue before a trial on the merits. In any event, where there is no statement of facts or findings of facts before us and no record showing an objection to the proceeding, there is not any way for us to know but what the trial court’s dismissal was based on some probative evidence which supported a finding that Shamrock had used a high degree of good faith, care and loyalty in forming the consolidation units complained about, if such finding was necessary. However, we are not to be understood as holding by the statement just made that Shamrock was under such obligation. We do not reach that point under the record before us.

For other cases holding that in the absence of a statement of facts or findings or requests therefor, every presumption must be indulged in favor of the trial court’s judgment, see Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363; Central Surety & Insurance Corporation v. French, Tex.Civ.App., 72 S.W.2d 699 (writ dismissed) ; Stovall v. Scofield, Tex.Civ. App., 325 S.W.2d 221 (N.W.H.).

As stated in Iley v. Hughes, supra, our Texas Supreme Court has held Rule 174(b) “ * * * authorizes a trial court ‘in furtherance of convenience or to avoid prejudice’ to order a separate trial ‘of any separate issue or of any number of * * * issues,’ and we have said that the discretion to require severances and separate trials conferred on trial courts by this and other Rules is ‘about as broad as language could make it.’ Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731, 735.”

Under the record presented to us, we feel appellant’s appeal shows to be without merit. Accordingly, the judgment of the trial court is affirmed.

      . Our transcript shows an application for a jury had been made about ten months before the hearing at which the judgment of the trial court dismissed the case.


author: NORTHCUTT, Justice.

text:
    HOT SPOT DETECTORS, INC., Appellant, v. FARMERS SUPPLY COMPANY OF HARTLEY, Texas, Appellee.
    No. 7592.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 28, 1966.
    Rehearing Denied April 4, 1966.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, Wayne P. Sturdivant, Amarillo, of counsel, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Harlow Sprouse, Amarillo, of counsel, for appellee.
   NORTHCUTT, Justice.

This is an action brought by Farmers Supply Company of Hartley, Texas, hereinafter referred to as appellee, against Hot Spot Detectors, Inc., hereinafter referred to as appellant, to recover the value of wheat that was alleged deteriorated as a result of the failure of appellant to properly install certain equipment purchased from appellant by appellee.

Appellee pleaded that appellant agreed in writing to design, manufacture, assemble and install a temperature measuring system for the purpose of measuring, detecting and reflecting the temperature of grain located in “A” Building and to install same in said building. Appellee further alleged that appellant knew appellee would depend and rely upon the use of the system so installed to determine and reflect the condition of the wheat that was stored in “A” Building. Appellee acknowledged and agreed there was nothing wrong with the system nor the materials used in the construction if properly installed and it was relying solely upon the theory that appellant failed to properly install the system.

The case was submitted to a jury upon special issues. The right of appellee to recover herein is based solely upon the answers to the first three issues submitted to the jury and appellee made no objections to the submission of these issues nor the court’s charge as to proximate cause. In answer to the first issue (a) the jury found the temperature detecting system sold by appellant was installed by the employees or servants of appellant acting within the scope of their employment; (b) that the employees installed the system in such manner that some of the cables did not reach the floor; (c) that such installation spoken of in subdivision (b) was negligent; (d) but that the manner of installation inquired about in subdivision (b) was not a proximate cause of the damages to the grain in appellee’s building.

In answer to the second issue (a) the jury found that appellee purchased the equipment and the installation thereof for the purpose of detecting temperature changes caused by insect infestation in any significant portions of the grain; (b) that appellant at the time of the sale knew the purpose for which appellee was purchasing said equipment and installation; (c) that the equipment as installed was not reasonably fit for the purpose for which it was purchased; (d) that the unfitness as installed was not a proximate cause of appellee’s damage. In answer to Special Issue 3 the jury found that the reasonable market value of the grain lost at the time of the loss as a result of the improper installation of the equipment in question was $11,139.60. There were several other special issues submitted but we do not believe they have any connection with this appeal.

The appellee presented its motion for judgment on the jury verdict. The appellant presented its motion for judgment on the jury verdict and also its motion for judgment non obstante veredicto, both of which were denied by the court. Judgment was granted in favor of appellee for the sum of $11,139.60. From that judgment appellant perfected this appeal.

The appellant presents this appeal upon two assignments of error as follows:

I.
“The honorable trial court erred in overruling appellant’s motion for judgment for the reason that the jury’s answers to special issues submitted in the court’s charge do not as a matter of law support the judgment in favor of appel-lee.
II.
“The honorable trial court erred in refusing appellant’s motion for instructed verdict and its motion for judgment non obstante veredicto for the reason that while the jury in response to special issues found that appellant impliedly warranted to appellee that the system sold to appellee was fit for a particular purpose and such warranty was breached, the ap-pellee was judicially estopped or in the alternative was equitably estopped to deny the execution of a written contract which contained a valid and effective disclaimer of any implied warranties and which contract further contained a limitation on the liability of appellant.”

It is true the jury held in reply to Special Issue 11 there was no written contract between the parties. We think such holding by the jury is contrary to the undisputed record in this case. The appel-lee’s pleadings state there was a written contract and appellant contends there was one. There are admissions that there was a written contract and in fact copies thereof are shown in the record.

It is undisputed that appellant installed the system here involved and nothing was wrong with the system and appellee contends the only thing that caused its damages was the negligence of appellant in installing the system. The appellee pleaded in its alternative pleading that appellant negligently designed, manufactured, assembled and installed the system here involved and that such acts of negligence were a proximate cause of the appellee’s loss and damage. The case was submitted to the jury under this theory of the case of negligence on the part of the appellant. Appel-lee filed its motion for judgment upon the verdict of the jury contending that the jury had found that there was an implied warranty of fitness for the purpose of detecting temperature changes and that such implied warranty was breached and that the finding of proximate cause inquired about was not necessary. We believe the appel-lee was correct in stating that the trial court in granting judgment for appellee upon the verdict of the jury held that the issue as to proximate cause was an unnecessary issue. We cannot agree with such holding. Appellee contends the cables were to extend to the floor but this was contested by appellant. There was testimony that where the thermocouple cables were registering it would be more inclined to register a hot spot ten feet directly below than it would ten feet directly on either side of it. There was a device used for reading the reports given by the thermocouples. There was evidence introduced by appellant as to how often the reading device should be checked and the reading would be recorded to see at the next reading if there was any change. Appellee’s general manager testified they would spot check but did not necessarily record it but knew it had to be recorded to find the trend. We think the jury could take into consideration the evidence introduced by appellant as to how often the appellee should have read the recording device and to record such readings in order to establish a trend and to establish the change in temperature, and the testimony of appellee’s general manager showing this was not done, in arriving at the cause of the damage.

The mere showing of negligence alone will not justify holding the one guilty thereof liable for damages. The plaintiff must go further and allege and prove facts that show that the negligence of the defendant was the proximate, not the remote cause, of the resulting injury. Uvalde Const. Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247 and the many cases there cited. It is stated in Clay v. Richardson, Tex.Civ.App., 38 S.W.2d 849 as follows:

“ * * * where injuries either to the person or property of the complainant is the basis for the suit and the question of negligence or contributory negligence enters into the controversy, of course, proximate cause has its proper place.”

It is stated in Texas Power & Light Co. v. Culwell, Tex.Civ.App., 19 S.W.2d 816 as follows:

“It necessarily follows, in our opinion, that appellant was guilty of such a breach of duty towards deceased that warranted the jury in finding it guilty of negligence. Because, however, the one sought to be made to respond in damages for an injury is shown to have committed a negligent act, does not complete the case and warrant a recovery. Plaintiff, in such an action, must go further and show that such negligent act was the proximate cause of injury.”

This statement was approved by the Supreme Court at 34 S.W.2d 820 in which it reversed the holding of the Court of Civil Appeals on other points.

The appellant’s conduct might be held the proximate cause of the damages only when the damages were the natural and probable result of its negligent acts. The jury in this case held the acts were not the proximate cause. We cannot say that the failure of the appellee, if it did so fail, to read the recording device as often as it should have and to record the same to determine a trend and change of temperature to learn whether there was a condition that should be checked to determine whether the wheat had begun to heat, was not a proximate cause of the damage.

We are of the opinion, under this record and the findings of the jury, that the acts of appellant were not the proximate cause of appellee’s damage; and that the trial court should have rendered judgment for the appellant.

Judgment of the trial court is reversed and rendered.


author: WERLEIN, Justice.

text:
    Reuben NEINAST et al., Appellants, v. Mrs. Lena BRAUCKMULLER et al., Appellees.
    No. 14699.
    Court of Civil Appeals of Texas. Houston.
    March 17, 1966.

      Hays Bowers, Caldwell, for appellants.
    Odis Tomachefsky, Brenham, for ap-pellees, Mrs. Lena Brauckmuller, Mrs. Mattie Klingelhoefer, Loretta Leppin Hoke, Oliver Gustav Leppin, Mrs. Minnie Broesche, Marie Broesche, Dell Dee Broesche, Brian Fischer and Howard Fischer.
    George R. Moorman, Brenham, for ap-pellees, R. J. Hueske and Mrs. Estella Neinstedt.
   WERLEIN, Justice.

This suit was brought by Reuben Nein-ast and Oscar Neinast, Incompetents, acting by and through the Guardian of their persons and estates, William H. Neinast, appellants, for the purpose of construing the will of Albert Neinast, Deceased, and declaring the rights of appellants and ap-pellees thereunder. The will, which was duly admitted to probate as a muniment of title, is as follows:

THE STATE OF TEXAS COUNTY OF BURLESON KNOW ALL MEN BY THESE PRESENTS:
That I, Albert Neinast, of the County of Washington and State of Texas, knowing the uncertainty of life and desiring to dispose of my worldly effects now that I am of sound mind and disposing memory, do make and ordain this my last will and testament, hereby revoking any by me formerly made.
1st. I direct that all my just debts and funeral charges be paid out of my personal estate.
2nd. I give, devise and bequeath unto my beloved Nephew, Alvin G. Neinast, of Washington County, he being the son of Meleta Neinast the following real property, which is situated in Washington County Texas. First tract being the ninety acres coming to me thru will from my deceased brother J. P. Neinast and second tract being sixty five acres which is known as my home place.
3rd. I give, devise and bequeath unto my beloved Brother, Amandus Neinast and to my beloved sister Meleta Neinast both of Washington County Texas and to the heirs of my late sister Avanda Hueske the following two tracts of land, both of which came to me thru will from my deceased brother J. P. Neinast. First tract being 526 acres situated in Burle-son County Texas and the second tract being 256 acres situated in Washington County Texas. This two tracts of land to be divided equally three ways, Amandue Neinast to receive one third of the total acreage, Meleta Neinast to receive one third of the total acreage and the heirs of Avanda Hueske to receive one third of the total acreage.
4th. I give, devise and bequeath unto my beloved wife, Emma Neinast all other property of every kind and description whatever of which I die seized or posessed or in or to which I have any interest, claim or demand, including all other (except real property mentioned above) real, personal and mixed property of every kind and character.
5th. I further direct that during the life time of my beloved wife, Emma Neinast, she shall have full charge and shall receive all benefits from all my property with full authority to handle according to her will, all property, of every kind and description whatever, except that she shall not have the right nor authority to sell or dispose of any of the real property, which has been herein set aside for Amandue Neinast, Meleta Neinast, the heirs of Avanda Neinast and the two tracts set aside for Alvin G. Neinast.
In testimony whereof I hereunto sign my name, in the presence of two witnesses, who attest the same at my request and in my presence and in the presence of each other.
/s/ Albert Neinast
[Here follows attestation clause]

The trial court, before whom the case was tried without a jury, found in his judgment that Amandus Neinast and Amandue Neinast are one and the same person, and that Amandus Neinast predeceased the testator, Albert Neinast, and that since Amandus Neinast was a brother and not a lineal descendant of the said Albert Neinast, the one-third interest in the real estate devised to Amandus Neinast as set out in paragraph “3rd” of the will lapsed, and passed under the laws of descent and distribution of the State of Texas to the heirs at law of the said Albert Nein-ast, Deceased. The court further found that said lapsed one-third interest devised to Amandus Neinast did not pass under the residuary clause, being paragraph “4th” of the will, to the surviving wife of Albert Neinast, Deceased, namely, Emma Neinast, inasmuch as the real estate mentioned in paragraph “3rd” of said will was specifically excluded from such residuary clause. The court further found that the one-third interest in said lands devised to Amandus Neinast in paragraph “3rd” of said will, which was the separate prop-ery of the testator, passed under the laws of descent and distribution of the State of Texas, one-half to the surviving wife of Albert Neinast, Deceased, namely Emma Neinast, and the remaining one-half passed to the brothers and sisters of said testator or their heirs who were living at the time of the testator’s death.

Only the appellants herein excepted to the judgment of the court and appealed therefrom. The court’s judgment describes the tracts of land in question and also sets out the names of all the heirs at law of Albert Neinast and the interest that each was entitled to in the lapsed one-third interest that had been devised to Amandus Neinast. The judgment also sets out the interests and names of the heirs of Emma Neinast, who died intestate and who left no children. No one has questioned the devises made in the will, other than the devise of the aforesaid lapsed one-third interest in the property referred to in paragraph “3rd” which was devised to Aman-dus Neinast. It is our opinion that the court properly construed the will in question and properly declared the interests of appellants and appellees in the lapsed devise.

Appellants assert that the trial court erred in finding that the devise to Amandus Neinast lapsed for the reason there was no evidence to support such finding, and that such finding is against the great weight and preponderance of the evidence. Appellants further assert that the trial court erred in holding that the surviving wife of the testator, Emma Neinast, was entitled to inherit an undivided one-half interest in the property through the laws of descent and distribution for the reason that the provisions of the will specifically barred and excluded her from inheriting any interest therein, and because the intention of the testator was that she should not inherit any interest therein.

The principal rules that must be kept in mind when construing a will are here set out. There is a presumption of law that the testator desired to make a full disposition of his estate, and the will should be construed in such manner as to prevent partial intestacy if such construction is reasonably consistent with the language of the will. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147. If the will is ambiguous or is subject to more than one construction, that interpretation will be given it which will prevent intestacy. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163. The primary rule of construction, however, is to give effect to the intention of the testator ascertained by consideration of all of the provisions of the will. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412; Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527.

Section 68, Probate Code, Vernon’s Annotated Texas Statutes, formerly Article 8295, V.A.T.S., prevents the lapse of a devise when the devise is to a child or other descendant. It has been uniformly-held by the courts of this State, however, that said Article and Section 68 of the Probate Code do not prevent the lapse of a devise to a collateral relative of the testator. In the instant case Amandus Neinast was a brother of the testator, and hence upon his death prior to the death of the testator, the bequest to him lapsed unless the testator prevented it by some provision in his will. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212; Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841. The law in Texas is clearly stated in Morton v. Hill, Tex.Civ.App., 355 S.W.2d 269, writ ref., n. r. e., where the court quotes from the opinion of the Supreme Court in Logan v. Thomason, supra, as follows:

“ ‘When a devisee or legatee, other than a lineal descendant, dies during the lifetime of the testator, the gift to him fails or lapses unless the testator prevents it by a provision in his will for the substitution of some other recipient. That is, if the will does not provide for substitution the devise or bequest fails where the deceased devisee or legatee is not a descendant of the testator, or where, being a descendant, he himself was not survived by children or descendants who survive the testator. Bomar v. Carstairs, 124 Tex. 492, 494, 79 S.W.2d 841.' ”

See also Willis v. Snodgrass, Tex.Civ.App., 302 S.W.2d 706, writ ref., n. r. e.; Morton v. Hill, Tex.Civ.App., 355 S.W.2d 269, writ ref., n. r. e.; Riley v. Johnson, Tex.Civ. App., 367 S.W.2d 82.

In Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148, the court in discussing whether a devise made by a testatrix lapsed because of the death of the devisee prior to the death of the testatrix, said:

“It was her province, if she so desired, to provide that the gift to Ida Bittner should not lapse, but this intention should clearly appear. Such intention of the testatrix must be declared in a clear and explicit manner by designating what person or persons she intended to take the devise in case of the death of Ida Bittner, the original devisee. This intention does not clearly appear in the will.”

Appellants contend that the devise to Amandus Neinast did not lapse for the reason that there was a gift by implication to his heirs, and that hence appellants were entitled to the undivided one-third interest in the property devised in the will to Amandus Neinast. They cite as authority three out-of-state cases, to wit: Bragg v. Litchfield, 1912, 212 Mass. 148, 98 N.E. 673, and Attebery v. Prentice, 158 Neb. 795, 65 N.W.2d 138, and Davis v. Anthony, Tennessee Ct. of App., Eastern Section, 384 S.W.2d 60. We find it unnecessary to discuss these cases since the law in Texas is well settled that implied gifts are not favored and are to be strictly construed in accordance with certain rules, one of which is that the implication must be necessary to carry out a plainly expressed intention of the testator. 61 Tex.Jur.2d p. 351, Wills, § 225. We, therefore, hold that in the instant case there was no devise by implication to appellants who are the surviving children of Amandus Neinast. Our Supreme Court, as hereinabove stated, has clearly held that when a devisee, other than a lineal descendant, predeceases the testator, the gift to such devisee lapses, unless the testator prevents it by a provision in his will for the substitution of some other recipient. This was not done by Albert Neinast in his will.

The next question to be considered is whether the lapsed devise in question passed under the residuary clause of the will of Albert Neinast or under the laws of descent and distribution of the State of Texas. It is our view that the trial court correctly held that the lapsed devise did not pass under the residuary clause of the will. In such residuary clause the testator left all other property of every kind and description whatever to his wife, Emma Neinast, with the exception of the real property devised in paragraphs “2nd” and “3rd” of the will. Hence it is clear that it was the intention of the testator that no part of the property described in said two paragraphs of the will should be included in the residuary estate.

In Kuehn v. Bremer, Tex.Civ.App., 132 S.W.2d 295, writ ref., the court said:

“The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will.” (Emphasis supplied) See also Bittner v. Bittner, supra. In Coleman v. Jackson, Tex. Civ.App., 126 S.W. 1178, writ den., the court said:

“While there is a presumption that a testator intends to dispose of all his estate and not to die intestate as to any of his property, such presumption, however strong it may be, will not authorize the making of a new will by the court or the inclusion of other property that cannot be brought within the terms of the one made by the testator.” See also Waller v. Gilliland, Tex.Civ.App., 231 S.W.2d 939, writ ref.

It is our view that the testator expressly excluded his wife from taking the lapsed devise under the residuary clause of his will. Apparently he was not satisfied with giving, devising and bequeathing to his wife in the residuary clause all other property of every kind and description whatever of which he might die seized or possessed, which would normally have excluded the devises that he had already made in paragraphs 2nd and 3rd of the will. In order to make his intention certain, he expressly excepted from the residuary clause such property. Since such lapsed devise did not pass to the surviving wife under the residuary clause of the will, it necessarily became a part of the testator’s unde-vised estate and passed to his heirs at law.

While we have not found nor been cited to any Texas case containing a residuary clause excepting therefrom certain property, our research has disclosed several cases in other jurisdictions which are quite persuasive in support of the trial court’s judgment. In McCurdy v. Safe Deposit & Trust Co., Maryland Ct. of App., 57 A.2d 302, the testator after making certain bequests to his wife for her life, stated: “ * * * and all the rest of my property to my wife she to do as she pleases except the Maryland Metal Casket Co. stock, * * The court in reversing the trial court held in effect that the word “except” was used in order to take such stock out of the general residue.

In Fidelity-Philadelphia Trust Co. v. Harloff, 133 N.J.Eq. 44, 30 A.2d 57, at page 65, the court said:

“Where the testator has confined his gift of residue to a particular part of his estate and has excluded another part, the part intended to be excluded will not pass under the gift of residue. Roy v. Monroe, 47 N.J.Eq. 356, 20 A. 481; Tindall’s Ex’rs v. Tindall, 24 N.J.Eq. 512.”

See also In re: Bigony’s Estate, 397 Pa. 102, 152 A.2d 901, 72 A.L.R.2d 1166, in which a general residuary clause was held to be modified by the phrase “consisting of securities, stocks, bonds and mortgages”; see also Annotation under In re: Bigony’s Estate, 72 A.L.R.2d p. 1180.

In Vol. 96 C.J.S. Wills § 799, pp. 222-223, it is stated: “The general residuary clause includes property excepted expressly or by implication from other gifts, but not property otherwise disposed of by will or excepted from the residuary clause itself, * * (Emphasis supplied)

Judgment affirmed.


text:
    Jack HENRY, Appellant, v. Clyde RENO et al., Appellees.
    No. 4032.
    Court of Civil Appeals of Texas. Eastland.
    March 18, 1966.
    Rehearing Denied April 8, 1966.
    Mike R. Mason, Odessa, for appellant.
    G. Bert Smith, Jr., Andrews, for ap-pellees.
   GRISSOM, Chief Justice.

Jack Henry sued Clyde Reno and Max E. Ramsey in Mitchell County. Reno is a nonresident of Texas. He was served with citation in Arkansas in accord with the provisions of Texas R.C.P. 108. Henry sought to recover $11,500.00 by virtue of his contract to sell Reno a one-half interest in a fishing camp in Mitchell County for $11,500.00 in cash. Henry alleged that said contract provided that Reno should pay him $11,500.00 in cash within ten days after termination of his suit against Union Oil Company and that Reno had executed a written assignment to him of $11,500.00 out of his said cause of action. Henry alleged that Reno had settled with Union and that $11,500.00 had been placed in escrow with Reno’s lawyer, Ramsey, who was holding it pending consummation of the contract sued on. Henry alleged that when he learned of Reno’s settlement and of the placing of $11,500.00 in escrow with Ramsey he executed a bill of sale and an assignment of a one-half interest in said fishing camp and tendered them to Reno in accord with said contract, but Reno had refused to pay him said sum. Henry alleged that $11,500.00 was being held by Ramsey in Andrews County and that Ramsey should be ordered to pay it to him upon delivery of said bill of sale and assignment, which he tendered into court. He also sought interest and attorneys’ fees.

Reno filed a plea to the jurisdiction. The court sustained it and dismissed Henry’s cause of action against Reno. Ramsey filed a plea of privilege to be sued in Andrews County, where he resides. Upon a hearing, Ramsey’s plea was sustained and the case against him was transferred to Andrews County. Henry has appealed.

Appellant contends, first, that the court erred in sustaining Reno’s plea to the jurisdiction and in dismissing the case against Reno because Henry’s cause of action was in rem and that a citation in 'accord with Texas R.C.P. 108 was served on Reno and brought him within the court’s jurisdiction so that judgment could be rendered against him to the extent of the $11,500.00 held by Ramsey. Appellant also says the court erred in sustaining Ramsey’s plea of privilege because his cause of action was maintainable in Mitchell County against Reno under exception 5, Article 1995, Vernon’s Ann.Civ.St., because said written contract provided that it should be performed in Mitchell County and the case against Ramsey was maintainable there under exception 29, because Ramsey was a necessary party to his suit against Reno. Appellant says that Article 1975 provides that a person claiming a right to or interest in property in Texas may maintain stfch an action as this against a nonresident who claims an adverse interest therein for the purpose of determining such interest and adjudicating the title thereto, and that Texas R.C.P. 810 provides that such a proceeding shall be had as may be necessary to fully settle and determine the right to or title in such property and to decree same to the party entitled thereto and, therefore, the court should have rendered such a judgment; that Article 1976 provides that a suit authorized by Article 1975 may be maintained by any person, regardless of whether he is in actual possession of such property, and that service on such a defendant may be had under Rule 108. Henry contends that said statutes and rules authorize him to maintain the suit to determine his interest in and title to said fund of $11,500.00. As authority therefor, appellant relies principally upon Mutual Home Ass’n v. Zwatchka, Tex.Civ. App., 297 S.W. 317. He says that under its holding the court acquired jurisdiction to render a judgment in rem subjecting said $11,500.00 to payment of his debt under the contract.

Appellee contends, and we think correctly, that appellant’s suit is to enforce a contract expressly performable in Mitchell County; that appellant’s asserted cause of action is in personam and that citation under Rule 108 did not bring Reno before the court so that a personal judgment could be rendered against him. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The contract sued upon does specify the amount and when Reno shall pay $11,500.00 to Henry but it does not provide from what fund or source it shall be paid, merely that ten days after termination of the case Reno shall pay Henry $11,500.00 in cash. The contract sued on does not require payment of the proceeds of the lawsuit to Henry. It provides that Reno shall pay $11,500.00 within ten days after settlement of the lawsuit but it did not specify that it shall be paid out of the money he obtains therefrom. We conclude that Reno’s obligation under the contract sued upon was personal and that no specific res was brought within the jurisdiction of the court. Ramsey does not hold the $11,500.00 in escrow pursuant to the contract to -sell realty in Mitchell County. He holds said $11,500.00 by virtue of an assignment of that amount from Reno’s prospective recovery in a damage suit then pending in Gaines County. The funds were held in Andrews county. There was no specific fund or res before the court in Mitchell County because the funds held by Ramsey were held by virtue of such assignment of an interest in said lawsuit and there was no certain fund or res required to be delivered to Henry under the contract. It provided merely for payment of $11,500.00 in cash, not for payment from any particular fund, source or thing. Judgment against Reno enforcing said contract would have been personal in nature. No specific property of Reno was brought under the jurisdiction of the court to satisfy his obligations under this contract. The contract sued upon does not provide for payment of this $11,500.00 from the fund held by Ramsey or even from the proceeds of the lawsuit. The applicable general rule is stated in 50 C.J.S. Judgments § 908, at page 548, as follows:

“In general, jurisdiction to render a judgment in rem rests upon the seizure or attachment of the property affected or the court’s dominion or authority over the status in controversy. It is essential that the res be within the jurisdiction of the court at the time of the commencement of the action, that some process of the court shall have been served on it; and that it shall have been brought within the direct control of the court by some kind of seizure or similar act under authority of law, actual or constructive, prior to the rendition of the judgment.”

We conclude that the court did not err in sustaining the plea to the jurisdiction and in dismissing the case as to Reno. Knox v. Quinn, Tex.Civ.App., 164 S.W.2d 580; Roumel v. Drill Well Oil Company, 5 Cir., 270 F.2d 550; Pulitzer Publishing Company v. Current News Features, 8 Cir., 94 F.2d 682 ; 49 C.J.S. Judgments § 12, p. 40; United States of America v. First National City Bank, 2 Cir., 321 F.2d 14, 19. In Mutual Home Ass’n v. Zwatchka, 297 S.W. 317, relied upon by appellant, the money in controversy was deposited in court thereby giving it jurisdiction to render a judgment for the money. The court did not have jurisdiction to render a personal judgment against Reno. There was no res before the court which could be subjected to enforcement of the contract sued on. The suit was not maintainable in Mitchell County against Reno under exception 5, Article 1995, and, therefore, it could not be maintained against Ramsey under exception 29a. The judgment is affirmed.