author: DIXON, Chief Justice.

text:
    NORTEX OIL & GAS CORPORATION, Appellant, v. Max D. CLARK et al., Appellees.
    No. 16233.
    Court of Civil Appeals of Texas. Dallas.
    July 5, 1963.

      Lyne, Blanchette, Smith & Shelton, Fritz Lyne and Erich F. Klein, Jr., Dallas, for appellant.
    Fred Erisman and Henry H. Harbour, Longview, for appellees.
   DIXON, Chief Justice.

This appeal presents a venue question involving Subd. 7, Art. 1995, Vernon’s Ann. Civ.St.

Appellant Nortex Oil & Gas Corporation brought suit in Dallas County against Max D. Clark, W. E. Mitchell, Jr., Tom Cook, Joe W. Hart and G. U. Yoachum, residents of Gregg County, Texas, alleging conspiracy and fraud in the sale by Clark to Nortex of his .09375 working interest in the Annie Dickson Oil and Gas Lease. Nortex alleges that at the time of the sale Clark knew the interest was worthless because the only oil well on the lease was a “slant well”, that is, the well deviated from a vertical line from the surface to subsurface sands to such an extent that its bottom was on a different lease than the Annie Dickson lease. This well is known as Well No. 5.

Appellees filed pleas of privilege asking transfer of the suit to Gregg and Upshur Counties, Texas. Appellant filed a controverting affidavit alleging that fraud was committed in Dallas County. The trial court sustained the pleas of privilege and ordered the case transferred to Gregg County for trial.

The substance of appellant’s first six points on appeal is that the undisputed evidence shows, or the preponderance of evidence shows that an act of fraud was committed in Dallas County and there is no evidence to support any theory of appellees upon which judgment could have been rendered.

Findings of fact and conclusions of law were not filed or requested. We are therefore required to affirm the judgment of the trial court upon any theory of the case finding support in the evidence. Texarkana Water Supply Corp. v. L. E. Farley, Tex.Civ.App., 353 S.W.2d 885; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Ulrich v. Krueger, Tex.Civ.App., 272 S.W. 824.

A study of the record has convinced us that there is ample evidence to support the trial court’s judgment sustaining appellees’ pleas of privilege. We certainly cannot say that as a matter of law the evidence conclusively shows fraud committed by Clark in Dallas County. At best appellant raised only fact issues as to when and by whom Well No. 5 was slanted, and that Clark knew that the well was slanted when he sold appellant his interest in 1961. The trial court’s implied findings on these and other fact issues are binding on this court.

To present even a summary of all the evidence would extend this opinion to an unreasonable length. However we believe a brief survey of some of the evidence is necessary to an understanding of the controversy.

There was no privity of contract between Nortex and the other appellees. They had disposed of their interests several years prior to 1961. The only privity of contract was between Clark and Nortex. Nevertheless, Nortex charges that all the appellees were involved in a conspiracy to drill and did drill slant oil wells, including Well No. 5. Appellant admits that its view is supported only by circumstantial evidence and that the evidence presents a “jigsaw” puzzle.

Well No. 5 was drilled in August 1956. Appellee Yoachum was the driller. Ap-pellees Clark, Mitchell, Hart and Cook were the original lessees. Subsequent to the completion of the well all or portions of their interests in the lease were transferred to other parties. In 1957 appellees Cook and Clark assigned one-half of their interest and Mitchell assigned all of his interest to Ebro Oil Company. Clark retained a working interest of .09375. In February 1961 Nortex purchased Ebro Oil Company’s interest in a number of oil and gas leases, including Ebro’s interest in the Annie Dickson Lease.

Sometime in May 1961, following the purchase by Nortex from Ebro, Miles Mc-Dow, land man for Nortex, upon instructions from James M. Wendover, President of Nortex, contacted appellee Clark in Longview, Texas for the purpose of buying Clark’s interest in these leases, including the Annie Dickson Lease. There is no evidence that Clark wanted to sell. The evidence is that Nortex wanted to buy and sought out Clark for that purpose.

McDow offered $80,000 for Clark’s interests. Clark refused the offer, insisting on $110,000. A few days later McDow in Dallas called by long distance telephone to Clark in Longview and offered to pay $90,000 for Clark’s interests in the properties. Clark refused the offer, stating according to McDow, “No, they’re worth more than that.” Subsequently McDow in Dallas County again called Clark in Long-view by long distance telephone and made a third offer, this time for $95,000. Clark, at a later conference in Dallas, accepted this third offer.

Appellant says that Clark, in Longview, committed an act of fraud in Dallas County when he told McDow, in Dallas, over long distance telephone, that “they’re worth more than that.” Appellant contends that at that time Clark knew that the No. 5 Well on the Annie Dickson lease was a slanted well and was worthless. Appellant further says that throughout their negotiations Clark committed fraud in Dallas County by remaining silent when it was his duty to inform Mc-Dow that the No. 5 Well was slanted.

There is evidence that Nortex did not rely on any representations that may have been made by Clark. For several months in connection with its purchase of the Ebro interests appellant conducted an investigation on the leases, including the Annie Dickson Lease. James C. Holcomb, appellant’s Vice-President, a graduate petroleum engineer, examined the lease and Well No. 5, his checking and testing continuing over a period of approximately ten months.

Hudnall & Pirtle, consulting engineers and geologists, made reports on the leases in 1957, 1959, 1960 and 1961. Two of these reports were obtained by appellant. It is not shown that any of appellees personally furnished information to Hudnall in connection with these reports, though at the time of one report Clark was a member of a firm operating the Annie Dickson Lease.

Between the time it purchased the Ebro interests and the time it purchased the Clark interests, Nortex obtained additional reports from H. J. Grury and Associates, engineers and geologists. These reports were based on field inspection made by said firm and well tests made by appellant’s personnel.

McDow, appellant’s land man, was the only person who saw, or negotiated with Clark in regard to the purchase of Clark’s interest. He testified that he could not say that Clark knew Well No. 5 was deviated at the time of their negotiations.

In June 1962 appellant wrote a letter to its stockholders containing this statement : “All the wells owned by this company in the East Texas Field, totalling a hundred and five, were purchased in recent transactions based on engineering reports prepared by nationally recognized consulting engineers, that is, Hudnall and Pirtle, and H. J. Grury and Associates. * * * These engineers utilized directional surveys and electrical logs prepared by some of the largest service corporations in the business. The engineers found no evidence at the time that all wells purchased by Nortex had not been properly drilled.” A directional survey is a method for determining whether a well is deviated and if so the extent of the deviation.

It was not until 1962 that it came to light that Well No. 5 was deviated. When was the deviation accomplished? Peddy, assistant sales manager of Sperry-Sun Well Surveying Company, which discovered the deviation, testified that he did not know the condition of the well when drilled in 1956, or when Ebro took over in 1957. He testified that he could not dispute the accuracy of the completion reports made when the wells were drilled.

According to the evidence neither Clark nor any of the other appellees had anything to do with the actual operation of Well No. 5 after Ebro Oil Company took over in 1957.

Appellant’s first six points on appeal are overruled.

In its seventh and eighth points appellant assails the court’s action in transferring the suit as to Clark to Gregg County instead of Upshur County. The evidence shows that Clark maintained residences in both Gregg and Upshur Counties. This is permissible for venue purposes. McDonald, Tex.Civ.Practice, Vol. 1, p. 324. Further, the liability of conspirators is joint. Barbier v. Barry, Tex.Civ.App., 345 S.W.2d 557, 565. The court did not err in transferring the suit as to Clark to Gregg County along with the cause of action against the other joint defendants. Appellant’s seventh and eighth points are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Mozelle Corley TURNER et vir, Appellants, v. Genevieve J. TURNER et al., Appellees.
    No. 4107.
    Court of Civil Appeals of Texas. Waco.
    June 20, 1963.
    Rehearing Denied July 25, 1963.

      Dillingham, Schleider & Lewis, Ben H. Schleider, Jr., W. Harold Sellers, Joseph C. Johnson, Houston, for appellants.
    Fred W. Moore, Lew W. Harpold, Yar-brough, Brigman, Talley & Lucas, Fred C. Brigman, J. E. Winfree, Fred Parks, Houston, for appellees.
   McDONALD, Chief Justice.

This is an alienation of affections suit, in which the plaintiff recovered a judgment for $179,000, based upon a jury verdict.

Plaintiff Genevieve Turner sued Mozelle Corley Turner (joined pro forma by Harry Turner, the former husband of plaintiff), and J. F. (Pat) Corley (former husband of defendant Mozelle Corley Turner), for the alienation of Harry Turner’s affections by Mozelle Corley Turner. (The suit was instituted prior to Mozelle Corley Turner’s divorce from J. F. (Pat) Corley (hereinafter called Pat Corley), and he was made a defendant. After Mozelle Corley Turner’s divorce from Pat Corley, she married Harry Turner, and he was made a pro forma defendant). Plaintiff’s suit sought collection of any recovery, out of the separate property of Mozelle Corley Turner, and if same insufficient to discharge any recovery in full, then out of any property which had formerly been community property of Mo-zelle Corley Turner and Pat Corley.

Plaintiff, Genevieve Turner, alleged (among other things) that defendant, Mo-zelle Corley (Turner), pretended to be her best friend; knew plaintiff and all members of her family; and that defendant, by the use of her wealth and feminine wiles and blandishments upon Harry Turner (plaintiff’s husband), alienated his affections, and as soon as the divorces of the parties involved were accomplished, married Harry Turner within 2 weeks after her divorce.

Defendant denied alienating the affections of plaintiff’s husband, and alleged (among other things) that plaintiff’s own conduct caused the alienations of her former husband’s affections; that the actions and conduct of the former husband, Harry Turner, were responsible for the events which transpired; and further alleged that Pat Corley had induced or aided plaintiff in filing the instant case.

Defendant, Pat Corley, denied that defendant Mozelle Corley Turner had alienated Harry Turner’s affections; denied any participation .therein if she had; prayed that any recovery by plaintiff be out of Mozelle Corley Turner’s separate property; and prayed for judgment against Mozelle Corley Turner for his reasonable attorney’s fees, in the event plaintiff recovered against Mozelle 'Corley Turner.

Trial was to a jury which, in answer to issues submitted, found:

“1) The alienation of the affections of Harry Turner for his former wife, Genevieve Turner, was brought about and produced through the wrongful acts of Mozelle Corley Turner.
“2) Such wrongful acts were the producing and controlling cause of the alienation of affections of plaintiff’s husband, Harry Turner, from her (Genevieve Turner).
“3) $150,000. will fairly and reasonably compensate plaintiff for the pecuniary loss she has sustained by reason of the alienation of the affections of Harry Turner from her.
“4) $29,000. should be recovered by plaintiff as exemplary damages (for punishment of defendant for the wilful, wanton and reckless disregard of the marital rights of plaintiff).
“5) Genevieve Turner, by her own actions and conduct, did not cause the alienation of the affections of Harry Turner, independent of anything Mo-zelle Corley (Turner) did or did not do.
“6) Pat Corley did not induce plaintiff, Genevieve Turner, to file this suit.
“7) Pat Corley did not aid plaintiff, Genevieve Turner, in prosecution of this suit.
“8) $30,000. is a reasonable attorney’s fee for attorney Fred Parks in representing Pat Corley in the instant suit.”

The Trial Court overruled defendant’s motion for judgment non obstante; entered judgment on the verdict for plaintiff, Gen-.evie.ve Turner for $179,000. against defendant, Mozelle Corley Turner; decreed that such would be collected out of defendant’s separate properties, and that no execution would levy on properties of Pat Corley (which were former community property of Pat Corley and Mozelle Corley Turner), until the separate properties of defendant, Mozelle Corley Turner, were exhausted; and entered judgment for Pat Corley against Mozelle Corley Turner for $30,000. as reasonable attorney’s fees.

Defendant, Mozelle Corley Turner, appeals on 44 points, which we have consolidated into 7 contentions.

Plaintiff, Genevieve Turner, and Harry Turner were married in 1938. Mozelle and Pat Corley were married in 1941. The Turners had 2 children; the Corleys had 4 children. The 2 couples became good friends, travelled in the same social circle, and took several trips together. In 1957 and 1958 Harry Turner acted as architect on a $350,000. home the Corleys built, and was frequently in the home consulting Mrs. Mozelle Corley with reference to the construction and furnishings. In January, 1959, Harry Turner and Mrs. Mozelle Cor-ley embraced in the bedroom of the Corley home, and during 1959 saw a great deal of one another. On December 29, 1959 Harry Turner told his wife, Genevieve Turner, he was in love with Mozelle Corley. On 30 December, 1959 Mozelle Corley admitted a relationship with Harry Turner, to her husband, Pat Corley. The Turners were divorced on August 2, 1960. The Corleys were divorced on March 27, 1961. Harry Turner and Mozelle Corley were married on April 6, 1961. The alienation of affections suit was originally filed on June 6, 1960.

Defendant’s 1st contention is that the judgment entered by the Trial Court is not a final judgment, in that it did not dispose of all issues raised by the pleadings and the evidence. Defendant contends that the Trial Court’s judgment did not dispose of defendant Mozelle Corley Turner’s request for judgment over against Pat Corley for any sum recovered against her. We think the judgment clearly disposes of all issues made by the pleadings and evidence. Pat Corley was given judgment against Mo-zelle Corley Turner. By necessary implication, Mozelle Corley Turner recovers nothing against Pat Corley. There can be no question but that the judgment herein is a final judgment. Southern Pac. Co. v. Ulmer, (Tex.Com.App.) 286 S.W. 193; Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161; Bennett v. Copeland, 149 Tex. 474, 235 S.W.2d 605; Laros v. Hartman, 152 Tex. 518, 260 S.W.2d 592.

Defendant’s 2nd contention is that Fred Parks was disqualified from acting as attorney for defendant, Pat Corley. Plaintiff filed her alienation of affections suit on June 6, 1960 prior to the actual divorce of defendant, Mozelle Corley Turner and Pat Corley, and sought recovery from both defendants. Pat Corley employed attorney Parks to represent him and his wife in such suit. Attorney Parks filed a general denial on behalf of the Corleys, and talked with both Mr. and Mrs. Corley several times. Mozelle Corley filed suit for divorce against Pat Corley on August 10, 1960, and such divorce was granted on April 6, 1961. On September 1, 1960, after Mozelle filed for divorce, she notified Fred Parks she was substituting Ben Schleider as her counsel in the alienation of affections suit. Pat Corley was still a defendant in the alienation of affections suit. He was entitled to an attorney. Mr. Parks had been in his employ since early 1960 to represent him. Mozelle Corley’s divorce from Pat Corley, and substitution of attorneys representing her did not disqualify Mr. Parks from continuing to represent Mr. Corley. Pat Corley’s position was that Mozelle was not guilty. There could be no conflict of interest between Mozelle Corley Turner and Pat Corley, until plaintiff established liability, and sought to satisfy her judgment. The question of indemnity between the defendants is collateral to the main issue, and presents purely a question of law. Retail Credit Co. v. Hyman, CCA W/E refused, 316 S.W.2d 769.

Defendant’s 3rd contention is that the Trial Court erred in denying her 6 peremptory challenges in the selection of the jury. The Trial Court allowed defendants a total of 6 peremptory challenges; 3 each to Mozelle Corley Turner and Pat Corley, in the selection of the jury. There were no issues of fact between the defendants ; only the question of indemnity, which is a question of law. In such instance the 2 defendants were only entitled to 6 peremptory challenges between them. Retail Credit Co. v. Hyman, CCA, Er.Ref., 316 S.W.2d 769. Moreover, defendant does not show material injury by showing that an objectionable jury sat on the case. A judgment will not be reversed for a trial court’s error in allowing peremptory challenges unless the complaining party show material injury by the court’s action. He must show that an objectionable juror sat on the case as a result of the court’s action. Gussett v. Nueces County, Tex.Com.App., 235 S.W. 857; Ralston v. Toomey, CCA (n. r. e.) 246 S.W.2d 308.

Defendant’s 4th contention complains of the time allocated for argument by the trial court, and of alleged inflammatory argument by attorney Fred Parks.

The Trial Court allocated 3J4 hours of argument to plaintiff; followed by 2 hours for defendant, Mozelle Corley Turner; followed by 1 hour for defendant, Pat Corley; followed by ¼ hour of rebuttal by plaintiff; followed by ¼ hour for rebuttal on the reasonableness of attorney’s fees for Pat Corley. We cannot say the Trial Court abused its discretion in so fixing the time of argument. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596.

The argument of attorney Parks was not objected to. While it is too lengthy to set out here, we cannot say that it was so prejudicial that it could not have been corrected by retraction or instruction from the court. Wade v. Texas Emp. Ins. Ass’n, 150 Tex. 557, 244 S.W.2d 197.

Defendant’s 5th contention is that there is no evidence or insufficient evidence to support the verdict of the jury; and that the damages awarded are shockingly excessive; and that defendant was entitled to judgment non obstante.

The record reflects that the Turners and Corleys had been friends for many years. The Corleys were people of wealth, worth some 3 million dollars. In 1958 Harry Turner presented his wife (plaintiff herein) with flowers on their 19th wedding anniversary. The card read “Thank you for 19 years of love and happiness. I hope we have at least 100 more. All my love, Harry.” Harry Turner was an architect making between $15,000. and $20,000. per year; and was architect on the Corley’s $350,000. home. He consulted almost daily with defendant during part of 1958 and 1959. He observed her situation; great wealth; and womanly charms. Early in 1959 they embraced in the bedroom of the Corley home; continued to meet throughout 1959; and in December 1959 advised their respective spouses they were in love with each other. Shortly thereafter, the Turners and Corleys got divorces and Harry Turner and Mozelle Corley married. At Christmas in 1959 defendant Mozelle Corley sent plaintiff a dozen roses for Christmas telling her “every rose says I love you.” Four days later she told her husband she had a relationship with plaintiff’s husband. We think the evidence ample to sustain the findings, and that same are not against the great weight and preponderence of the evidence. While the award of $179,000. damages is great, the financial condition of the parties is likewise great. The jury fixed the reasonable value of Fred Parks’ services as attorney’s fee for Pat Corley at $30,000. In view of the amount of the suit; the work spent in preparation, and the record as a whole, such is not excessive, or against the great weight of the evidence. The record reflects that; defendant Mozelle Corley Turner’s attorney, plead for $125,000. attorney’s fees in-connection with her divorce case.

Defendant’s 6th contention complains of misconduct on the part of the jury. Defendant contends that the jury, arrived at their verdict by the quotient method. While the jury did add figures and divide by the number of jurors, there is no showing that the jurors agreed in advance to be bound by the results, and in fact the results were not the result of the quotient obtained. The asserted jury misconduct with reference to attorney’s fees of Joe Ed Winfree (one of plaintiff’s attorney’s), if error, was invited by defendant’s questioning Attorney Winfree about his contingent fee in the case.

Defendant’s 7th contention is that Pat Corley is not entitled to recover judgment for his attorney’s fees against Mozelle Corley Turner. Pat Corley was made a party defendant to this suit, although he himself had committed no tort. The wrongful acts alleged by plaintiff were committed by Mozelle Corley Turner. Any recovery by plaintiff, could have been satisfied out of the community funds of Pat Corley and defendant, Mozelle Corley Turner. Pat Corley prayed for indemnity over against Mozelle Corley Turner. Pat Cor-ley was entitled to indemnity over against Mozelle Corley Turner for any judgment which might have been rendered against his interest in the former community estate of himself and his former wife. While a right of indemnity generally arises by contract, express or implied, it also exists whenever the relation between the parties is such that either in law or in equity, there is an obligation on one party to •indemnify the other, as where one person is exposed to liability by the wrongful act of another, in which he does not join. Gammage v. Weinberg, CCA, (n. r. e.), 355 S.W.2d 788. This is exactly the' situation in the case at bar. Pat Corley' is entitled to indemnity from Mozelle Cor-ley Turner, because he in no way participated in the alienation of affections, which gaire rise to this suit. Being enititled to indemnity, Pat Corley is entitled to a reasonable attorney’s fee which has been incurred in resisting the claim indemnified against. Rothschild Company v. Moore, CCA, Er. Refused, 166 S.W.2d 744; Gammage v. Weinberg, CCA, (n. r. e.) 355 S.W.2d 788.

All defendant’s points and contentions have been considered and are overruled. We think the case, although a lengthy and difficult one to have been fairly and adequately tried.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    John E. BURKHART, III, Appellant, v. L. B. HORN et al., Appellees.
    No. 14136.
    Court of Civil Appeals of Texas. San Antonio.
    June 26, 1963.
    Rehearing Denied July 24, 1963.

      Head & James, Charles R. Cunningham, Corpus Christi, for appellant.
    ■Morrison, Dittmar, Dahlgren & Kaine, San Antonio, Keys, Russell, Keys & Watson, Corpus Christi, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Duval County by John E. Burk-hart, III, against L. B. Horn and others, seeking by trespass to try title to recover the title and possession of an oil, gas and mineral leasehold estate on 240 acres of land fully described in the pleadings, and in the alternative seeking a declaratory judgment under the provisions of Art. 2524-1 Vernon’s Ann.Civ.Stats., establishing rights under his oil, gas and mineral lease on the 240 acres, dated June 20, 1960, granted to him by the alleged fee simple owners of the said mineral estate, Antonio E. Garcia and wife, Antonia G. Garcia, Leopoldo D. Garcia and wife, Rebecca T. Garcia, Maria Antonia Stansell, a feme sole, C. T. Stansell, Jr., and Alicia G. Stansell; and alleging that defendants are asserting an adverse claim to this leasehold estate.

The trial was to the court without the intervention of a jury and resulted in judgment that plaintiff take nothing, and denying all other relief sought by any of the parties, from which judgment John E, Burkhart, III, has prosecuted this appeal.

The trial court made and filed the following findings of fact:

“(1) That on the 20th day of April, 1955, Antonio E. Garcia and wife, Antonia G. Garcia; Leopoldo Garcia and wife, Rebecca T. Garcia; Maria Antonia Stansell and father, C. T. Stansell, Jr., as lessors, executed and delivered to Prescott Williams, as lessee, an oil, gas and mineral lease covering 240 acres of land, more or less, being described as the South one-half of the North one-half (S ½ of N ½) and the East one-half of the Southeast one-quarter (E ⅛ of the SE ¼) of Survey No. 407, Abstract 37, Certificate No. 1021, A. B. & M. Original Grantee, in Duval County, Texas, for a primary term of five years and so long thereafter as oil, gas or other minerals should be produced from said land in accord with the various provisions of said lease (hereafter referred to as defendant’s 240 acre lease).
“(2) That by mesne conveyances the defendants, L. B. Horn, Ray Ellison, H. P. Orts, Reginald H. Roberts, Everett J. Carlson, James A. Rehler, Duward W. Dassow, Northern Pump Company and Henry W. Volk, Jr., hereinafter referred to as the defendant lessees, in this law suit are successors in interest to Prescott Williams in and to the leasehold estate created by the lease referred to in fact finding number (1).
“(3) That the lease instrument referred to in fact finding number (1) authorized the lessee to pool the land described therein with other lands and leases.
“(4) A written declaration of Northern Pump Company pooling the 240 acres of land described in the lease referred to in fact finding number (1) with other land to constitute a unit designated as the Northern Pump Com-(the Antonio E. Garcia Gas Unit) pany Unit ^ for the production of gas and gaseous substances was filed for record on April 1 (April 6), 1960.
“(5) That the 240 acre lease referred to in fact finding number (1) was kept in force during the five year primary term by the payment of delay rentals as provided in the lease instrument.
“(6) That prior to the discovery of oil and gas on the land covered by the 240 acre lease referred to in fact finding number (1) the defendant L. B, Horn drilled a dry hole thereon, which was completed on or about April 6 (April 14), 1960.
“(7) That on April 19, 1960, within 'sixty days after the completion of the dry hole referred to in fact finding number (6), the defendant, L. B. Horn, commenced drilling operations for the drilling of a well on land covered by the Northern Pump Company Unit referred to in fact finding number (4), but not on any of the land described in the 240 acre lease referred to in fact finding number (1), and the actual drilling of the well was commenced on April 23, 1960.
“(8) The drilling operations of the well referred to in fact finding number (7) were prosecuted continuously until May S, 1960, when it was discovered that it was capable of producing gas in paying quantities and after the well was cleaned, tested and potentialled, it was thereafter shut-in on or about May 26, 1960.
“(9) That there was no production from the land covered by the 240 acre lease on April 20, 1960, the end of the five year primary term of such lease referred to in fact finding number (1).
“(10) That a check for the shut-in gas royalty payment in the proper amount, payable to all lessors, was mailed to Antonio E. Garcia, May 6, 1960, and received by him.
“(11) That the shut-in gas royalty payment tendered to lessors was returned to the defendant, L. B. Horn, on or about June S, 1960, without explanation.
“(12) That after shut-in gas royalty payment was tendered to the lessors, they signed a division order.
“(13) That thereafter actual production of gas from the well on the pooled acreage has continued up to and including the present time.
“(13a) That on or about October 9, 1959, Antonio E. Garcia and wife, Antonia G. Garcia, and Leopoldo Garcia and wife, Rebecca T. Garcia, as lessors, executed and delivered to John E. Burkhart III and James S. Adams, as lessees, an oil and gas lease effective April 20, 1960, covering the south half of the northeast quarter (S/2 of the NE/4), the south half of the northwest quarter (S/2 of the NW/4), and the east half of the southeast quarter (E/2 of the SE/4) of the A. B. & M. Survey # 407, A-37, Duval County, Texas, containing two hundred and forty (240) acres, more or less.
“(14) That to sustain his claim of title by proof of common source the plaintiff established that his claim of title to the 240 acres of land in dispute grew out of a lease from Antonio E. Garcia and wife, Antonia G. Garcia, Leopoldo Garcia and wife, Rebecca T. Garcia; that to sustain the defendants’ claim of title under a common source the plaintiff established that the defendant lessees’ claim of title to the 240 acres of land in dispute grew out of a lease from Antonio E. Garcia and wife, Antonia G. Garcia, Leopoldo Garcia and wife, Rebecca T. Garcia, Maria Antonio Stansell and father, C. T. Stansell, Jr.”

Appellant has pointed out certain inaccuracies in these findings which we have corrected by interlineation, but these corrections do not change the substance of such findings in any way so far as this appeal is concerned.

We shall first consider appellees’ counterpoint one, reading as follows:

“Where the Appellant as Plaintiff in trespass to try title suit failed to establish that his oil and gas lease leasehold estate in the 240 acres of land was better than that of Appellees, the trial court did not err in entering judgment against Appellant.”

We sustain this counterpoint. Appellant did not attempt to deraign title from the sovereignty of the soil but attempted to prove a common source of title. In attempting to do this he introduced a chain of, title from the above named Garcias and Stansells to the appellees and introduced an oil and gas lease from the four Garcias only as lessors to himself and one James S. Adams, lessees. This did not establish a common source, and the trial court so found. This exact question was before the Supreme Court in the case of Howard v. Masterson, 77 Tex. 41, 13 S.W. 635, and the very recent case of Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775. In this latter case Justice Greenhill, speaking for the Supreme Court, said:

“We hold that under this Court’s opinion in Howard v. Masterson, 1890, 77 Tex. 41, 13 S.W. 635, this does not constitute proof of common source. Reduced to the simplest terms, a deed from X to A does not prove a common source from X, Y, and Z to B.”

Appellant contends that a common source of title was stipulated by the parties. The Statement of Facts shows that at the onset of the trial the following stipulation was announced:

“MR. CUNNINGHAM: * * * We have stipulated that we have a common source of title on the instruments that come on down to ours. * * * And for the sake of the record I would like to announce that the plaintiff’s counsel and the defense counsel have stipulated that we are claiming title under a common source.”

Thereafter, near the close of the testimony, the following occurred:

“MR. DITTMAR: If it please the Court, these are actually plaintiff’s exhibits. I don’t know that they’ve ever been identified with the defendants. Do I understand, according to our stipulation, it’s considered that these instruments that you introduced, without us putting them in one at a time, are in evidence as exhibits?
“MR. JAMES: Yes, sir.
“MR. CUNNINGHAM: That’s a . correct stipulation.
“MR. DITTMAR: As far as the de- ' fendants are concerned, all except yours.
“MR. CUNNINGHAM: Yes.
“MR. KAINE: As I understand, Cotinsel, that is, and necessarily so, is a part of our stipulation of the common source of title.
“MR. DITTMAR: I think that’s cor- , rect, but I mean I want it clearly under- . stood that ours were introduced by us as defendants.
“MR. JAMES: Sure.
“MR. CUNNINGHAM: I introduced the chains to show a common source in accordance with the Rules of Civil Procedure.
“MR. DITTMAR: And we would like to have introduced that same chain to show our chain of title.
“MR. JAMES: That’s right.
“MR. CUNNINGHAM: That’s correct.
“MR. DITTMAR: We rest, Your Honor.”

We interpret these stipulations as going no further than agreeing that there was a common source of title, and that it would not be necessary for appellant to de-raign title any further back than that common source, but there was no stipulation as to who that common source was. Thus the burden still remained on appellant to prove who or what that common source was, and that both appellant and appellees were deraigning title from that common source, and that his title was superior to that of appellees. Having failed to show a com-mon source, it was impossible for appellant' to show his title was superior to that of ap-pellees.

A stipulation that there is a common source without stipulating the common source, is more or less meaningless. The common source still has to be established by evidence. Appellant having failed to establish a common source, was not entitled to recover on his trespass to try title count, and therefore the appellees being in possession were entitled to judgment in their favor, recovering the leasehold estate in the 240 acres involved. 41-A Tex.Jur. 665, § 138.

Appellant having lost his trespass to try title cause, and appellees being entitled to a judgment awarding the title and possession of the leasehold estate in the 240 acres involved, appellant was not thereafter entitled to a declaratory judgment establishing his lease as being superior to that held by appellees. In trespass to try title appellant must recover, if at all, upon the strength of his own title and he may not recover upon the weakness of appellees’ title. 41-A Tex.Jur. 665, § 138 et seq.

There is another reason why appellant was not entitled to the declaratory judgment for which he prayed. The lease held by him was an “unless” lease. Under its terms, unless he began drilling operations or paid $240.00 rentals before July 12, 1961, his lease would terminate. The record is silent as to whether appellant began drilling operations or paid the rentals in the sum of $240.00. The burden was upon appellant to show affirmatively that he had an actual, real, bona fide and justiciable controversy with appellees as to the leasehold estate asserted by him. In order to do this the burden was upon him to show that his lease had not terminated by its own provisions. The declaratory judgment statute, Art. 2524-1, supra, does not authorize courts to determine abstract or hypothetical questions, or to render merely advisory opinions on contingent facts that do not presently exist or that may be subject to change or are unknown. Willis v. Sabine River Authority, Tex.Civ.App., 363 S.W.2d 172; 19 Tex.Jur.2d, p. 147, § 9, p. 162, § 23, and p. 172, § 32.

We are familiar with Petroleum Producers Company v. Stolley, Tex.Civ.App., 137 S.W.2d 207. In that case the State of Texas was the holder of the fee in the strip being contested over. The State joined the lessee in the suit, thus creating a presumption that lessee had performed his obligations under the terms of the lease, and that it had not terminated. The Court said: “The fact that the State has joined its lessee in prosecuting the suit precludes any presumption that the lessee has forfeited his leasehold interest, and the lessee is entitled to recover along with the lessor.” Here the alleged landowners were made parties defendant by appellant and appeared in the case, taking an absolute neutral position as between appellant and appellee. Furthermore, the Stolley case did not involve a declaratory judgment.

The judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    George G. MITCHELL, Jr., Appellant, v. Barbara E. MITCHELL, Appellee.
    No. 6531.
    Court of Civil Appeals of Texas. Beaumont.
    June 13, 1963.

      Earl B. Stover, Silsbee, for appellant.
    Carl Vaughan, Port Arthur, for appellee.
   HIGHTOWER, Chief Justice.

This is a child custody suit. On July 18, 1961, suit was brought by Barbara Mitchell, appellee herein, in the district court of Hardin County, Texas, for judgment changing, altering and modifying a judgment heretofore entered by a California court in favor of George Mitchell, Jr., appellant herein, for the care, custody and control of the parties’ three young daughters and son of the ages of 16, 10, 9 and 8, respectively. The previous California judgment sought to be modified was the result of a divorce and custody case between the parties which was tried before the Superior Court of the State of California in and for the County of Orange on January 25, 1961. This California judgment, entered March 1, 1961, bestowed full custodial rights of the children to appellant, with the right of reasonable visitation to appellee. Reference is made to pertinent parts of said court’s findings of fact upon which its judgment was based.

Appellant, on the date of suit in Hardin County, and some years prior thereto, was a member of the United States Marine Corps. On said date, he and said children were on a temporary visit from California to his parents in Hardin County. About this time, he was served with order from the Hardin County District Court temporarily restraining him from returning with his children to his home and residence in Orange County, California. Shortly thereafter, he filed his plea to the jurisdiction of the Hardin County court and upon the same being overruled by said court, he filed his answer of a general denial. After a hearing before the court without a jury, said court proceeded to modify the judgment of the California court by giving custody of the children to appellee from the 1st day of July to the 15th day of August of each year, and thereafter adjudging that their custody be in appellant. This judgment was rendered and entered by the trial court August 21, 1961.

We sustain appellant’s contentions to the effect that the trial court abused its discretion (1) in taking jurisdiction of the case and (2) in modifying said California judgment, there being no material change of conditions established from the time of the same.

From the findings of facts upon which the California judgment was based, it is made to appear quite plainly that said court found appellant herein to be seriously addicted to the use of intoxicants and that it considered her totally unfit to have the custody of any of the minor children herein involved. In Short v. Short, Tex., 354 S.W.2d 933, the Supreme Court, in quoting Justice Barrow of the San Antonio Court of Civil Appeals, 350 S.W.2d 397, stated:

“But when a court of competent jurisdiction, in a proceeding in which a mother was present and represented by counsel in a full and fair hearing, has found and rendered judgment that she has so conducted or misconducted herself as to positively disqualify herself to have such custody, the judgment is res judicata and extinguishes her right and privilege. The burden of proof is on her in a subsequent proceeding to show material changes that require, in the interest of the children, that their custody be changed.”

It remains then to determine what material changes have occurred in and/or between the parties hereto and said minor children. First, let us recognize that the present suit was filed in Hardin County, Texas, only 140 days after a hearing was had and judgment was rendered between the same parties over the same subject matter on March 1, 1961, in the State of California. It is established by the testimony of appellee and her parents that said parents had agreed to take appellee and the minor children into their home for such duration that the trial court should see fit to grant their custody to appellee. It is established that appellee’s parents were well able to provide for these children, that they loved them, and that said home was a proper and suitable one. The District Court of Hardin County, in support of its judgment, filed findings of facts and conclusions of law, the pertinent parts of which are in substance that: There has been a change of conditions in the following respects:

That appellee has resided continuously with Mr. and Mrs. J. S. Trim, her mother and father, the maternal grandparents of the children herein involved; that both maternal grandparents are characterized by stability, dependability, a sound religious environment and sound responsible citizens of Jefferson County, Texas; that since the granting of the California divorce, appellee has shown vast improvement in her physical and mental condition, “and even volunteered to place herself on daily and weekly probation to the court”; that the court finds that appellee, while living with her parents, to be a fit and proper mother, suitable to have the custody of the children during the normal summer school vacation; that there is great love and affection by the mother and maternal grandparents for said children. (Emphasis added.)

It is to be noticed by the foregoing findings that the trial court did not find appellee to be a proper person to have the custody of the children. It only found her to be suitable to have their custody while she lived with her parents. The sum and substance of the trial court’s findings is simply the thinly veiled implication that as between appellee and her parents, said parents are the only ones found by the court to be fit and proper persons for the custody of these children. This is not sufficient grounds upon which the California judgment could be modified. As stated by the Supreme Court in Ogletree v. Crates, Tex., 363 S.W.2d 431:

“There may be a technical distinction between a suit to obtain custody and possession of a minor child through modification of a final judgment and a suit to obtain custody of the child by setting aside a final judgment, but the broad cause of action and relief sought * * * are both the same.”

Again, in Short v. Short, supra, the Supreme Court reiterated the well established rule of law by stating:

“A showing of only slight change of conditions is not sufficient grounds to change custody of children. Frequent custody hearings are discouraged and not encouraged. It is our opinion that the trial court abused its discertion in taking custody of the children from their father and awarding it to their mother. Leonard v. Leonard, 218 S.W. 2d 296 (Tex.Civ.App. no writ hist.).”

Again, as stated in Mumma v. Aguirre, Tex., 364 S.W.2d 220:

“However, wholly aside from the binding force of the rule of res judicata, the law favors a high degree of stability in a young child’s home and surroundings, and to achieve that stability will not permit a change of custody, once judicially determined, except upon a showing of materially changed conditions, Short v. Short, Tex.Sup., 354 S.W.2d 933; and will not require it, even then, unless denying it would constitute an abuse of discretion by the trial judge. Taylor v. Meek, 154 Tex. 305, 311, 276 S.W.2d 787, 790.”

Although the trial court has found as a fact that the California judgment was interlocutory rather than a final judgment, we have found no basis in the record for such conclusion. The record fails to reflect that Rule 184, T.R.C.P., was invoked for the purpose of having the trial court take judicial knowledge of the statutory or common law of the State of California and the California law of res judicata is presumed to be the same as Texas law where no proof of California law was introduced. Ogletree v. Crates, supra.

Moreover, if our courts were to take jurisdiction of cases in circumstances such as these, any suitable person having legal custody of a child by reason of a foreign judgment solemnly pronounced would travel through our state at the peril of being harrassed by litigation at the whim of any party to the prior suit who might consider a Texas court a more propitious forum. The practice of assuming jurisdiction under such circumstances is not sanctioned by our courts. Wicks et al. v. Cox et al., 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1.

Being of the opinion that the honorable trial court was in error in the first instance in assuming jurisdiction of this custody case and in determining that there had been a material change in conditions since the California decree as to warrant a modification of the same, we must reverse its judgment, and judgment is here rendered in accordance with this opinion in favor of appellant.

Reversed and rendered.

      . “V. The minor children of the parties hereinabove named are now in the custody of plaintiff and the plaintiff is a fit and proper person to have and be awarded the care, custody and control of the said children, and the court further finds that the best interests of the minor children demand that they be kept in the custody of the plaintiff until further or•der of the court. The court finds that ■the defendant is neither a fit nor proper person to have the care, custody or control of the minor children, or any of them.
      “VI. Defendant, in disregard as her ■duties as wife towards plaintiff, has been guilty of habitual intemperance continuously for more than one year prior to the separation of the parties and she has, during all of said period, used intoxicating drinks to such an extent that she was disqualified a great portion of the time from properly attending to her work as housewife and mother of said children, .and to such an extent as would and did reasonably inflict great mental anguish •on plaintiff.
      “VII. Since the marriage of the parties, defendant and cross complainant has treated plaintiff and cross defendant with extreme cruelty and has wrongfully inflicted upon him grievous mental suffering. Particularly this court finds that:
      1. Defendant, during a period in March, 1959, neglected her house and home by allowing it to become dirty and untidy, refusing to wash the dirty dishes, refusing to sweep and mop the dirty floors, refusing to pick up soiled and dirty clothing which had been discarded and were strewn about the house, refused to make the beds which had been slept in, neglected the children by failing to maintain adequate food in the house, failed to prepare the regular meals. This same conduct occurred during June, August, October, November, December, 1959, February, March, April and May, 1960.
      2. During March, 1959, defendant permitted herself to pass out by reason of prior indulgence of alcohol in front of the Garden Grove News, a newspaper in Garden Grove, California, and did by virtue thereof attract a number of spectators and men from said newspaper, who attempted to revive defendant with hot coffee.
      3. That during the month of June, 1959, while incapacitated from the prior indulgence of alcoholic beverages and while intoxicated, defendant drove into a patrol ear, was arrested and jailed in the Orange County Jail, requiring plaintiff to borrow the sum of $263.00 for defendant’s bail in order to obtain defendant’s release. Defendant was subsequently convicted upon a charge of driving while under the influence of alcohol.
      4. That during the month of August, 1959, after inviting a group of children below the age of ten years to visit the home of the parties, defendant became incapacitated to supervise such children by reason of the prior indulgence in intoxicating liquor.
      5. That during the month of February, 1960, because of being under the influence of intoxicating liquor, defendant was unable to pick up her husband who was stranded at March Air Force Base, although said husband had requested her to do so, not knowing at the time of said request that she was intoxicated.
      6. That during the month of March, 1960, defendant while intoxicated forced the daughter of the parties, Peggy Ann Mitchell, age 10 years, to blow her nose while it was bleeding.

        7. That during the month of March, 1960, while intoxicated, defendant negligently set fire to the living room carpeting.
      8. That during the month of April, 1960, defendant without just cause slapped Bonnie Sue, daughter of the parties, chased said child about the house and yard with a rake and when said child sought sanctuary in the bathroom of said house, defendant threatened to chop the bathroom door down with an axe and subsequently thereto defendant locked said Bonnie Sue out of the house until a late hour of the evening.
      9. That during the month of May, 1960, defendant deserted and abandoned plaintiff and the minor children of the parties.
      10. That on the 21st, 22nd and 23 rd of May, I960, defendant, having returned to the house of the parties, continually consumed alcoholic liquor until she passed out in a drunken stupor.
      11. That on or about May 24, 1960, in the presence of the minor children of the parties, plaintiff feigned a suicide attempt and caused a neighbor woman to be brought to the home to save said defendant from herself.
      12. That on or about May 24, 1960, while in an intoxicated condition, defendant caused or nearly caused, through negligence, a fire to be started in said house.
      13. That on or about May 24, 1960, defendant passed out on the living room floor of the house of the parties and caused one of her children to bring a neighbor man to the house to revive said defendant.


author: ARCHER, Chief Justice.

text:
    AMERICAN BANKERS INSURANCE COMPANY, Appellant, v. Constance McDONALD, Appellee.
    No. 11115.
    Court of Civil Appeals of Texas. Austin.
    July 3, 1963.
    Rehearing Denied July 24, 1963.

      Upton, Upton, Griffis, Shannon & Porter, James D. Johnson, San Angelo, for appellant.
    Snodgrass, Smith, Rose & Finley, San Angelo, for appellee.
   ARCHER, Chief Justice.

Appellee filed suit to recover benefits allegedly due under a policy of health and accident insurance issued by appellant, together with attorney fees and statutory penalty. Appellant admitted issuing the policy, but contended the policy had been non-renewed and thus terminated prior to appellee’s having incurred any of the medical expenses for which recovery was sought, and that accordingly, no benefits were payable. The cause was submitted to the Court, sitting without a jury, upon an agreed statement of facts, including a stipulation of the amount due under the policy if coverage were found to exist, and further, showing that on July 9, 1960, while the policy was in full force and effect, appellee sustained an accidental bodily injury in connection with which she was hospitalized on three separate occasions for which appellant paid benefits under the policy. After the termination of the third hospital confinement, appellant notified appellee that the policy would not be renewed as of January 28, 1961, the date to which premiums had been paid, and after such notification, appellee did not pay or tender any further premiums under the policy. Some eight months after the policy was non-renewed, appellee was again hospitalized in connection with the accidental injury of July 9, 1960, and the Trial Court awarded appel-lee benefits under the policy for this confinement.

The appeal is based on three points assigned as error and are:

“FIRST POINT: The Court erred in rendering judgment for appellee for benefits under the policy when, as a matter of law, under ihe agreed Statement of Facts, the policy had been terminated prior to appellee’s incurring the medical expenses for which recovery was awarded appellee.
“SECOND POINT: The Court erred in rendering judgment for appellee for attorney fees and statutory penalty for the reason that, as a matter of law, under the agreed Statement of Facts, appellant was liable for no payments under the policy.
“THIRD POINT: The Court erred, in any event, in rendering judgment for appellee for attorney fees in the Court of Civil Appeals and Supreme Court in event of appeal, for the reason that said judgment is conditional and therefore void.”

The facts are stipulated and are as follows :

“It is hereby stipulated and agreed between Constance McDonald, Plaintiff in the above entitled and numbered ' ■cause, and American Bankers Insurance Company, Defendant in the above entitled and numbered cause, as follows :
“1.
“That the Court has jurisdiction over the parties and the subject matter of the suit.
“2.
“That on September 28, 1959, the Defendant issued its Policy No. 216120, insuring Plaintiff for certain medical and surgical benefits as provided in such policy, which is attached hereto.
“3.
“While such policy was in full force and effect on July 9, 1960, Plaintiff sustained an accidental injury to her back while riding in a city bus in San Angelo, Texas, such injury resulting in the rupture of an intervertebral disc. Plaintiff was admitted to St. John’s Hospital in San Angelo, Texas, on three occasions, for ten days beginning July 13, 1960, for five days beginning November 5, 1960, and for six days beginning December 6, 1960, and coverage was afforded her under the above mentioned insurance policy for each such hospitalization. This hospitalization was for conservative treatment of plaintiff’s back injury.
“4.
“Plaintiff was notified by Defendant, in its letter dated January 12, 1961, that the company would be unable to offer coverage beyond January 28, 1961, the date to which premiums on said policy had been paid, and after such notification Plaintiff did not pay ■or tender any further premiums under the policy.
“5.
“On August 3, 1961, and then from August 9, 1961, through August 20, 1961, Plaintiff was again hospitalized for the surgical removal of a ruptured disc in Shannon Hospital in San Angelo, Texas, and Dr. James Wimpee of San Angelo, Texas, and Dr. Ralph Munslow of San Antonio, Texas, performed such surgery. Shannon Plospi-tal is a ‘hospital’ as defined in Part 9 of the insurance policy.
“6.
“The ruptured intervertebral disc suffered by Plaintiff, which was surgically removed in Shannon Hospital in August of 1961, was a direct result from accidental bodily injury sustained by Plaintiff on July 9, 1960. By registered letter dated August 26, 1961, from Plaintiff’s attorneys to Defendant, Defendant was notified of the hospitalization and medical services received by Plaintiff in Shannon Hospital and claim forms were requested. By letter dated September 5, 1961, from Defendant to Plaintiff’s attorneys Plaintiff was notified that since Plaintiff’s hospital confinement began after January 28, 1961, no benefits were payable under the insurance policy.
“7.
“Defendant was furnished with the hospital and medical expenses in connection with the Plaintiff’s confinement in the hospital in August of 1961, and demand was made on Defendant for the benefits due under the policy, by certified mail, dated April 5, 1962, which was more than thirty days prior to the institution of the above entitled and numbered cause.
“8.
“If the Defendant’s insurance policy does cover the hospitalization and surgery incurred by Plaintiff in the Shannon Hospital in August of 1961, the total benefits due under such policy to Plaintiff would be in the amount of Four Hundred Six & 15/100 Dollars ($406.15), together with the statutory penalty of twelve per cent (12%) of said amount.
“9.
“That if Plaintiff is entitled to recover attorneys’ fees, reasonable amounts therefor are One Hundred Twenty-five & 00/100 Dollars ($125.00) in the Trial Court, One Hundred Seventy-Five & 00/100 Dollars ($175.00) in the Court of Civil Appeals, and One Hundred Seventy-Five and 00/100 Dollars ($175.00) in the Supreme Court of Texas.”

We believe that the Court properly held the appellant liable for payments of benefits under its policy for hospital confinement and the other expenses resulting from an accidental injury occurring while the policy was in force.

The injury, out of which the hospital expenses have accrued, was had on July 9, 1960, at which time the policy was in force.

Appellee was admitted to the hospital on July 13, 1960 for conservative treatment of her back injury. Subsequent hospitalizations were in December, 1960 and in January, 1961.

The company notified appellee that it would be unable to offer coverage beyond January 28, 1961.

Appellee was again admitted to the hospital on August 3, 1961, and from August 9, 1961 through August 20, 1961, and a ruptured disc was removed which injury was a direct result from the accidental bodily injury sustained on July 9, 1960.

Appellant refused to pay for the hospitalization benefits occurring in August, 1961.

The question presented is whether or not under the policy issued appellant is responsible to pay the benefits provided for an operation occurring after appellant had refused to renew the policy, occurring as a¡. direct result of an accidental injury sustained while the policy was in force.

As above stated, we believe that appellant is liable for such hospital expenses».

The policy was issued for a term of 30-days and renewable for subsequent thirty-day periods, and while the right to refuse to renew the policy is not questioned, but under the terms of the policy, any such-refusal could not prejudice appellee’s rights, which had accrued under the policy.

An insurance policy must be strictly-construed against the company writing it,, and particularly of provisions which tend to defeat coverage. National Security Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 38 A.L.R.2d 764.

Appellant takes the position that two-conditions must precede any liability under the policy, (1) that the insured sustained' accidental bodily injuries while the policy was in force, and (2) that the insured, as-the result of accidental bodily injury while the policy is in force, incurred expense for hospital confinement, and/or some of the other specified expenses.

There is no question but that appellee sustained accidental bodily injury while the policy was in force, and no question that the hospital expense, the subject of this suit did not occur at a time while the policy-was in force.

Part 1 of the insurance policy provides-in part as follows:

“If the insured or any member of the Family Group shall be necessarily confined within a Hospital as defined herein, as a resident patient on account of such injury or such sickness, the Company will pay the Insured the following-items of hospital expense actually incurred by the insured * * * but not to exceed the amount stated below.”

The amounts for which the company is responsible, includes hospital room, not to exceed $10.00 per day for a period of 200 days. The policy provides that for each complete policy year during which the policy is maintained in force, 30 days is adde'd, until the maximum number of days reaches 365.

In the instant case the policy had been in force for more than one year.

We believe that under the terms of the policy appellee had coverage for 230 days for hospitalization and for other charges. The company wrote the policy and we construe it most strongly against the company.

American Indemnity Co. v. Mexia Independent School Dist., Tex.Civ.App., 47 S.W.2d 682, er. dism.

We do not believe that the judgment is conditional but makes a finding as to reasonable attorney’s fee to be taxed as costs.

Section 3.62 Insurance Code, V.A.T.S., provides in part:

* * * in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case.”

Appellant cites Preferred Life Insurance Company v. Dorsey, Tex.Civ.App., 281 S.W.2d 368, no writ history. In the above case an attorney’s fee of $750.00 in a suit wherein insured recovered $1560.00 was not excessive.

The Court held:

“In the event we are mistaken in the application of the above rule, it is our view that under all the facts and circumstances surrounding the services rendered by appellee’s attorney in this behalf, that the trial court abused his discretion in awarding the additional fee of $300.”

The judgment of the Trial Court is affirmed, and costs, including an attorney’s fee of $175.00 is taxed against appellant.

Affirmed.


author: TIREY, Justice.

text:
    Edwin G. REINKE, Appellant, v. C. L. THOMAS et al., Appellees.
    No. 4144.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1963.
    Rehearing Denied Aug. 1, 1963.

      Edwards & Faulkner, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, for appellees.
   TIREY, Justice.

Plaintiff’s cause of action is one for damages to himself and his automobile growing out of a rear end collision. Pertinent to this discussion the jury found substantially that Charles Thomas, the driver, failed to keep a proper lookout for plaintiff’s car, and that such failure was a proximate cause of the collision; that C. L. Thomas entrusted his car to Charles Thomas, and this was the proximate cause of the collision; that plaintiff received personal injuries to his body and awarded plaintiff damages in the sum of $392.00 for necessary medical services, and further found in reasonable probability that plaintiff would not incur any further sum for medical, surgical or hospital services from this date in the future and awarded him $350.00 for loss of decrease in earning capacity, but further found that in reasonable probability there would be no further loss in the future, and further found that the reasonable cash market value of plaintiff’s car immediately prior to the collision was $825.00, and immediately after the collision the sum of $650.00, and awarded plaintiff damages for his car in the sum of $175.00. After the verdict was returned plaintiff filed what he designated as a motion for mistrial in which he alleged that certain findings of the jury were in irreconcilable conflict, which motion was overruled,, and the Court granted defendants’ motion that plaintiff have judgment on the verdict of the jury, and awarded to plaintiff total damages in the sum of $917.00 with interest from date and for costs, and awarded to Noley Bice, Guardian Ad Litem for Charles Thomas, a minor, a fee of $430.00 for his services in the trial representing the minor and taxed such fee as a part of the costs. Plaintiff’s motion for new trial was overruled, and he perfected his appeal to this Court.

The judgment is assailed on six points. Points one to four, inclusive, assail the verdict of the jury on the ground that there is no evidence to support findings to subheads 1, 2, 3, 4, 5, 6, 7 and 8 under issue 16, and that the evidence is insufficient to support such findings, and that such findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, and that such findings are manifestly too small and inadequate. Five is to the effect that the answers to subhead (a) in issue 15, and answers to issues Nos. 7, 8, 14, and 15 are in irreconcilable conflict with the jury’s answers to subheads 1, 2, 3, 4, 5, 6, 7 and 8 under issue 16. Point 6 is to the effect that the jury was guilty of misconduct in considering evidence outside the record which resulted in probable harm to plaintiff; and 7, in failing to grant a new trial because the cumulative effect of the errors resulted in rendition of an improper verdict and judgment.

Going back to points 1 to 4 inclusive, we find that much testimony was tendered in this cause. The Statement of Facts contains 430 pages, and quite naturally it is impossible for us to state it in detail. We feel that there is ample evidence to sustain each of the jury’s findings, and it would serve no precedential value for us to set out the evidence. It was the province of the jury to weigh the evidence and pass upon the credibility of the witnesses, and since we believe that there is ample evidence to sustain the findings of the jury, we are bound by' the jury verdict. For example, substantially all of the evidence concerning the pain and suffering by appellant, as well as the extent of his alleged injuries, came from him or medical witnesses to whom he had related his alleged pain and suffering. Needless to say the testimony of the plaintiff with reference to the pain and suffering that he endured was quite comprehensive, but the jury had the duty to consider the plaintiff’s testimony, as well as all of the testimony tendered thereon in the light of all the surrounding facts and circumstances, and the plaintiff’s testimony as to pain and the extent of the injury did not impress the jury in the way that plaintiff thought it should. The jury had the right to accept or reject any part or all of the testimony tendered by plaintiff and defendants, and to reconcile any inconsistent statements if found therein, taking into consideration all the facts and surrounding circumstances. See Hood v. Texas Indemnity Insurance Company, 146 Tex. 522, 209 S.W.2d 345.

The appellant says that this Court ought to reverse this case under the rule announced by this Court in the case of Smith v. Bullock, Tex.Civ.App., 317 S.W.2d 232, n. w. h. We have re-examined the opinion in the Smith case and we find that the factual situation here does not bring this cause within the rule announced in the Smith case. We think a careful reading of the Smith case sustains this view, and that the evidence in the case at bar is not such that we can say that the verdict of the jury in its answers to subheads 1, 2, 3, 4, 5, 6, 7 and 8 in issue 16, are against the great weight and preponderance of the evidence so as to be manifestly wrong. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. It is true that the jury did not fix the full amount of past medical expenses shown by the plaintiff’s evidence; however, under the evidence the jury had the duty to fix what it believed was reasonable or necessary as to the amount of medical expenses that resulted from the accident, and by reason thereof had a right to fix the sum at $392.00. See Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377. In this connection we think we should say that there was no evidence tendered concerning any reasonable and necessary future medical expenses resulting from the accident except as such expense related to plaim-tiff’s knee injury. Appellant’s counsel asked Dr. Anderson: “Q. * * * tell the jury whether or not you have an opinion with a reasonable degree of medical probability * * * as to whether or not he has damage to the cartilage in his knee, the left knee ? A. I believe that he does not.”' As we understand Dr. Wilson's testimony concerning the knee, it is to the effect that he did not think that the injury to appellant’s knee came about in the blow which appellant described he received in the car accident, and felt that such a blow as described would have broken the knee cap' rather than given him the injury which Dr. Wilson found appellant had; that had appellant received a blow to his knee there should or would have been a bruise which would have been visible and that if no> bruise appeared until three or four months after the accident he would have suspected there would have been a subsequent injury to the knee which appellant said appeared two or three months later. Moreover,, there were conflicts and inconsistent statements in appellant’s testimony, and the jury had the right to take all the facts and surrounding circumstances into consideration in arriving at its verdict. The doctors had to rely on appellant’s testimony largely as to the extent of pain he sustained as well as his disability with reference to carrying on his work, and in view of the appellant’s statements to the doctor concerning his pain and his disability, it was not unnatural for the doctors to state that they would not recommend the appellant for full employment. It is true that the doctors tendered as witnesses in this cause were outstanding in their profession, but under our system the testimony of these physicians is only evi-dentiary and is never binding upon the trier of the facts. The jury was in its province in rejecting all or any of the theories of each of the doctors concerning their respective views as to the pain and suffering sustained by appellant on account of his claimed injuries. Our Supreme Court in Hood v. Tex. Indemnity Company, supra, re-announced the long standing rule in Texas to the effect: “Opinion testimony does not establish any material fact as a matter of law.” In view of appellant’s contention of insufficient evidence, and the further contention that certain answers of the jury are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, we have given our most careful consideration to this entire statement of facts, and we cannot honestly say that the verdict of the jury in any respect is against the great weight and preponderance of the evidence. In fact, we think the evidence is ample to sustain each finding of the jury. All points have been considered and each is overruled.

Accordingly, the judgment of the Trial Court is affirmed.


text:
    Ocie L. JACOBS, Appellant, v. George I. MIDDAUGH et ux., Appellees.
    No. 14126.
    Court of Civil Appeals of Texas. San Antonio.
    June 19, 1963.
    Rehearing Denied July 17, 1963.

      Pat Maloney, San Antonio, for appellant.
    Ay cock & Steinle, Jourdanton, for appel-lees.
   MURRAY, Chief Justice.

This is an appeal by Ocie L. Jacobs as administratrix of the estate of R. T. Ellison, deceased, from a judgment refusing to set aside a deed, dated December 9, 1961, from R. T. Ellison to George I. Middaugh and wife, Geralyn Middaugh. George I. Mid-daugh, a licensed practicing attorney, was retained by R. T. Ellison in May, 1961, to probate the will of his deceased wife, Melvy C. Ellison. Appellant is the daughter of R. T. Ellison and Melvy C. Ellison, who, along with her brothers, would have inherited her parents’ estate had it not been for the deed of R. T. Ellison to appellees, George I. Middaugh and wife, Geralyn Mid-daugh, executed nine days before his death at the age of eighty-five years.

The cause was submitted to a jury on seven special issues, in response to which the jury found as follows:

(1) That on December 9, 1961, Robert T. Ellison had sufficient mental capacity to understand the nature and effect of such deed, and the consequence of his act in executing the same. (2) At the time of the execution of the deed in question, the attorney-client relationship between R. T. Ellison and George I. Middaugh had terminated as to the sale and execution of the deed in question to George I. Middaugh. (3) That the deceased, R. T. Ellison, did not rely upon George I. Middaugh for legal or business advice in the matter of the sale and execution of the deed in question to George L Middaugh. (4) That the defendant immediately prior to the execution of the deed in question, did not exercise upon the deceased, R. T. Ellison, undue influence, causing the said R. T. Ellison to sign the deed in question. (5) That prior to the execution by R. T. Ellison of the deed in question, the defendant George I. Middaugh gave him full information concerning the transaction. (6) That prior to the execution by R. T. Ellison of the deed in question, George I. Middaugh gave him disinterested advice concerning the transaction. (7) That the consideration paid by George I. Middaugh to Robert T. Ellison for the purchase of the properties in question, was a full, fair and reasonably adequate consideration.

Based upon these findings, the trial court rendered judgment that Ocie L. Jacobs and the other plaintiffs below take nothing by reason of their suit, from which judgment Ocie L. Jacobs as administratrix of the estate of R. T. Ellison, deceased, alone has prosecuted this appeal.

During the trial, the appellees offered in evidence Exhibit 7, reading as follows:

“GEORGE I. MIDDAUGH Attorney at Law Jourdanton, Texas
November 24, 1961
“Mr. R. T. Ellison General Delivery Pleasanton, Texas
“Dear Mr. Ellison:
“When you were in my office last week and wanted to sell me the Duval County property, including both surface and mineral rights, and the other mineral interests which you own in McMullen, Karnes and Atascosa Counties, I promised you that I would give you my answer this week. I want you to know first that I think that you should keep this property, because it is your only source of income, however, if you still wish to sell I will buy it under the following terms:
“1. That you understand that you are selling at a price set by you and who ever you want to use as an appraiser. You stated in my office last week that you wanted me to cancel all accounts existing between us, that I was to assume the back taxes, and that I was to do all of the legal work involved at my own expense. I agree to do this if you will accept a $1,000.00 note, unsecured, as part of the $3,000.00 sale price. In other words you will get $2,000.00 cash and my personal note in the sum of $1,000.00.
“2. That you take the deed which I have prepared, and which I have enclosed herewith, to any attorney of your choice and have him explain it to you. This deed conveys everything that you own in the way of land or interests in land, in Karnes, Atascosa, McMullen and Duval Counties. It conveys both the one-half interest which you inherited by virtue of your wife’s will, plus your own one-half interest which you owned in your own right.
“3. If, after reading this letter and having the enclosed deed read to you and explained to you, you still wish to sell please sign your name on the line above your name and return it to me.
“Very truly yours, /s/ George I. Middaugh
“/s/ R. T. Ellison R. T. Ellison”

It will be noted that this letter is signed by both George I. Middaugh and R. T. Ellison. When this instrument was offered in evidence appellant objected to its admission in the following language:

“Our objection is, if it please the Court, that the letter in question is violative of Article 3716, the Dead Man’s Statute, it is hearsay and it is self-serving, and it is a letter drawn by Mr. Middaugh, and it contains hearsay statements twice removed, and for those three reasons we suggest to the Court that it is not in any way admissible.” This objection was overruled and the instrument admitted in evidence. The admission of this instrument in evidence over appellant’s objection is assigned here as reversible error. We have concluded that this instrument is admissible in evidence and was not subject to the objections made by appellant.

Elmo Mangum was called as a witness and testified that he was Vice-President of the First State Bank of Poteet, and that Mr. R. T. Ellison came to him as a notary public to sign the deed in question. That Mr. Ellison had with him the instrument in question. Mr. Ellison was asked if he had read the letter and understood it, and he said that he had. Mr. Ellison signed the letter in Elmo Mangum’s presence. Thereafter, the deed was executed by R. T. Ellison and acknowledged before Elmo Mangum as notary public. Mangum further testified that he explained the deed to Mr. Ellison, and that he fully understood the provisions and the effect of the deed before he signed and acknowledged it.

The so-called letter is in effect a sales contract between Middaugh and Ellison, agreeing to the purchase and sale of the land conveyed by the deed from Ellison to Middaugh, for the sum of $3,000., $2,000 of which was to be paid in cash and $1,000 by a personal note of Middaugh. The instrument was not subject to be excluded by the provisions of Article 3716, Vernon’s Ann.Civ.Stats., known as the Dead Man’s Statute, because it is in writing and was signed in the presence of Elmo Mangum by R. T. Ellison. Its provisions, having been fully agreed to by both parties, would ordinarily be binding upon them. R. T. Ellison, by signing the instrument, agreed to each and every statement therein, and they are binding upon the administratrix of his estate. Sparkman v. Massey’s Estate, Tex.Civ.App., 297 S.W.2d 308; Newsom v. Fikes, Tex.Civ.App., 153 S.W.2d 962; Jones v. Selman, Tex.Civ.App., 109 S.W.2d 1003; Box v. Ussery, Tex.Civ.App., 108 S.W.2d 230; Hagelstein v. Blaschke, Tex.Civ.App., 149 S.W. 718; 1 McCormick & Ray, Texas Law of Evidence, 2d Ed., § 331, et seq., beginning on page 299. This instrument is of great importance in this case, as it has a far-reaching bearing upon the validity of the deed dated December 9, 1961, which appellant is seeking to have set aside and held for naught.

Appellant contends that this record shows as a matter of law that the relationship of attorney and client between R. T. Ellison and George I. Middaugh had not terminated on December 9, 1961, but still existed. The evidence is sufficient, if believed by the jury, to show that as to the execution of this deed on December 9, 1961, the relationship between attorney and client had ceased to exist. If we are mistaken in this, and the relation of attorney-client did exist at that time, the other findings of the jury are sufficient to support the judgment rendered. The evidence is also sufficient to support the finding of the jury that George I. Middaugh gave disinterested advice concerning the transaction to R. T. Ellison, and that the consideration for the purchase of the property in question was full, fair and reasonably adequate, and that George I. Middaugh gave R. T. Ellison full information concerning the transaction. We overrule appellant’s contention that she was entitled to an instructed verdict in this case.

Every transaction between an attorney and client is not absolutely void, but where the relationship of attorney and client exists a suspicion is cast upon any transaction between attorney and client, and the burden is cast upon the attorney in suits of this nature to show that the transaction was open and above board, and that no advantage was taken of the client by reason of the transaction. Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Bell v. Ramirez, Tex.Civ.App., 299 S.W. 655.

Appellant does not raise the issue that the verdict of the jury was so against the overwhelming weight and preponderance of the evidence as to he clearly wrong. There was sufficient evidence to support all of the findings of the jury, and this is apparent from a mere reading of the statement of facts.

In view of the jury’s answers to the issues submitted, the implication of constructive fraud was removed and the deed should be given the force and effect of a valid deed.

The judgment is affirmed.


text:
    G. Frank LIPPER, Individually and as Independent Executor of the Estate of Sophie Block, Deceased, et al., Appellants, v. Julian A. WESLOW, Jr., et al., Appellees.
    No. 4128.
    Court of Civil Appeals of Texas. Waco.
    July 18, 1963.
    Rehearing Denied Aug. 8, 1963.

      Vinson, Elkins, Weems & Searls, William R. Eckhardt, Houston, for appellants.
    Dyess, Dyess, Prewett & Cantey, A. D. Dyess, Jr., Houston, for appellees.
   McDONALD, Chief Justice.

This is a contest of the will of Mrs. Sophie Block, on the ground of undue influence. Plaintiffs, Julian Weslow, Jr., Julia Weslow Fortson and Alice Weslow Sale, are the 3 grandchildren of Mrs. Block by a deceased son; defendants are Mrs. Block’s 2 surviving children, G. Frank Lipper and Irene Lipper Dover (half brother and half sister of plaintiffs’ deceased father). (The will left the estate of testatrix to her 2 children, defendants herein; and left nothing to her grandchildren by the deceased son, plaintiffs herein). Trial was to a jury, which found that Mrs. Block’s will, signed by her on January 30, 1956, was procured by undue influence on the part of the proponent, Frank Lipper. The trial court entered judgment on the verdict, setting aside the will.

Defendants appeal, contending there is no evidence, or insufficient evidence, to support the finding that the will was procured by undue influence.

Testatrix was married 3 times. Of her first marriage she had one son, Julian Wes-low, (who died in 1949), who was father of plaintiffs herein. After the death of her first husband testatrix married a Mr. Lip-per. Defendants are the 2 children of their marriage. After Mr. Lipper’s death, testatrix married Max Block. There were no children born of this marriage. Max Block died several months after the death of testatrix.

On 30 January, 1956, Sophie Block executed the will in controversy. Such will was prepared by defendant, Frank Lipper, an attorney, one of the beneficiaries of the will, and Independent Executor of the will. The will was witnessed by 2 former business associates of Mr. Block. Pertinent provisions of the will are summarized as follows:

“That I, Mrs. Sophie Block, * * * do make, publish and declare this my last will and testament, hereby revoking all other wills by me heretofore made.”
1, 2, 3 and 4.
(Provide for payment of debts; for burial in Beth Israel Cemetery; and for minor bequests to a servant, and to an old folks’ home.)
5.
(Devises the bulk of testatrix’s estate to her 2 children, Mrs. Irene Lipper Dover and Frank Lipper (defendants herein), share and share alike).
6.
States that $7000. previously advanced to Mrs. Irene Lipper Dover, and $9300. previously advanced to Frank Lipper be taken into consideration in the final settlement of the estate; and cancels such amounts “that I gave or advanced to my deceased son, Julian.”
7.
Appoints G. Frank Lipper Independent Executor of the estate without bond.
8.
Provides that if any legatee contests testatrix’s will or the will of her husband, Max Block, that they forfeit all benefits under the will.
9.
“ : My son, Julian A. Weslow, died on August 6, 1949, and I want to explain why I have not provided anything under this will for my daughter-in-law, Bernice Weslow, widow of my deceased son, Julian, and her children, Julian A. Weslow, Jr., Alice Weslow Sale, and Julia Weslow Fortson, and I want to go into sufficient detail in explaining my relationship in past years with my said son’s widow and his children, before mentioned, and it is my desire to record such relationship so that there will be no question as to my feelings in the matter or any thought or suggestion that my children, Irene Lipper Dover and G. Frank Lipper, or my husband, Max, may have influenced me in any manner in the execution of this will. During the time that my said son, Julian, was living, the attitude of his wife, Bernice, was at times, pleasant and friendly, but the majority of the years when my said son, Julian, was living, her attitude towards me and my husband, Max, was unfriendly and frequently months would pass when she was not in my home and I did not hear from her. When my said son, Julian, was living he was treated the same as I treated my other children; and, my husband, Max, and I gave to each of our children a home and various sums of money from time to time to help in taking care of medical expenses, other unusual expenses, as well as outright gifts. Since my said son Julian’s death, his widow, Bernice, and all of her children have shown a most unfriendly and distant attitude towards me, my husband, Max, and my 2 children G. Frank Lipper and Irene Lipper Dover, which attitude I cannot reconcile as I have shown them many kindnesses since they have been members of my family, and their continued unfriendly attitude towards me, my husband, Max, and my said children has hurt me deeply in my declining years, for my life would have been much happier if they had shown a disposition to want to be a part of the family and enter into a normal family relationship that usually exists with a daughter-in-law and grandchildren and great grandchildren. I have not seen my grandson, Julian A. Weslow, Jr. in several years, neither have I heard from him. My granddaughter, Alice Weslow Sale, I have not seen in several years and I have not heard from her, but I heard a report some months ago that she was now living in California and has since married William G. Sale. My granddaughter, Julia Weslow Fortson, wife of Ben Fortson, I have not seen in several years and I was told that she had a child born to her sometime in December 1952, and I have not seen the child or heard from my said granddaughter, Julia, up to this writing, and was informed by a friend that Julia has had-. another child recently and is now living in Louisiana, having moved from Houston; and needless to sa^, my said daughter-in-law, Bernice, widow of my deceased son, Julian, I have not seen in several years as she has taken little or no interest in me or my husband, Max, since the death of my son, Julian, with the exception that Christmas a year ago, if I remember correctly, she sent some flowers, which I acknowledged, and I believe she had sent some greeting cards on some occasions prior to that time. My said daughter-in-law, Bernice Weslow, has expressed to me, on several occasions, an intense hatred for my son, G. Frank Lipper, and my daughter, Irene Lipper Dover, which I cannot understand, as my said children have always shown her and her children every consideration when possible, and have expressed a desire to be friendly with her, and them. My said children, G. Frank Lipper, and Irene Lipper Dover, have at all times been attentive to me and my husband, Max, especially during the past few years when we have not been well. I will be 82 years old in June of this year and my husband, Max, will be 80 years of age in October of this year, and we have both been in failing health for the past few years and rarely leave our home, and appreciate any attention that is given us, and my husband, Max, and I cannot understand the unfriendly and distant attitude of Bernice Weslow, widow of my said son, Julian, and his children, before mentioned.”
10.
(Concerns personal belongings already disposed of.)
“In Testimony Whereof, I have hereunto signed my name * * *.
“(S) Sophie Block”
(Here follows attestation clause and signature of the 2 witnesses.)

The record reflects that the will in question was executed 22 days before testatrix died at the age of 81 years. By its terms, it disinherits the children of testatrix’s son, who died in 1949. Defendant, Frank Lip-per, gets a larger share than would have been the case if the plaintiffs were not disinherited. Defendant Lipper is a lawyer, and is admittedly the scrivener of the will. There is evidence that defendant Lipper bore malice against his dead half brother. He lived next door to testatrix, and had a key to her house. The will was not read to testatrix prior to the time she signed same, and she had no discussion with anyone at the time she executed it. There is evidence that the recitations in the will that Bernice Weslow and her childrn were unfriendly, and never came about testatrix, were untrue. There is also evidence that the Weslows sent testatrix greeting- cards and flowers from 1946 through 1954, more times than stated in the will.

Plaintiffs offered no direct evidence pertaining to the making and execution of the will on January 30, 1956, and admittedly rely wholly upon circumstantial evidence of undue influence to support the verdict.

All of the evidence is that testatrix was of sound mind at the time of the execution of the will; that she was a person of strong will; that she was in good physical health for her age; and that she was in fact physically active to the day of her death.

Mrs. Weslow’s husband died in 1949; and after 1952 the Weslows came about testatrix less often than before.

The witness Lyda Friberg, who worked at the home of testatrix from 1949 to 1952, testified that in 1952 she had a conversation with Bernice Weslow in which Mrs. Weslow told her if her children didn’t get their inheritance she would “sue them through every court in the Union”; that she told testatrix about this conversation, and that testatrix told her “she would have those wills fixed up so there would be no court business”, and that she wasn’t going to “leave them (the Weslows), a dime.”

The foregoing was prior to the execution •of the will on January 30, 1956.

Subsequent to the execution of the will, testatrix had a conversation with her sister, Mrs. Levy. Mrs. Levy testified:

“Q. Who did she say she was leaving her property to?
“A. She was leaving it to her son and her daughter.
'“Q. What else did she say about the rest of her kin, if anything?
TA. Well she said that Julian’s children had been very ugly to her; that they never showed her any attention whatever; they married and she didn’t know they were married; they had children and they didn’t let her know. After Julian passed away, she she never saw any of the family at all. They never came to see her.
"“Q. Did she make any statement?
■"A. Yes she did. When she passed away, she didn’t want to leave them anything; that they did nothing for her when she was living.”

Shortly before she passed away, testatrix told Mrs. Augusta Roos that she was going to leave her property to her 2 children, and further:

“Q. Did she give any reason for it ?
“A. Yes. She said that Bernice had never been very nice to her and the children never were over.”

Again, subsequent to the making of her will, testatrix talked with Effie Landry, her maid. Mrs. Landry testified:

“Q. Did Mrs. Block on any occasion ever tell you anything about what was contained in her will.
"A. Yes.
“Q. What did she tell you about that ?
“A. She said she wasn’t leaving the Weslow children anything.”

The only question presented is whether there is any evidence of undue influence. The test of undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208; Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564.

The evidence here establishes that testatrix was 81 years of age at the time of the execution of her will; that her son, defendant Lipper, who is a lawyer, wrote the will for her upon her instruction; that defendant Lipper bore malice against his deceased half brother (father of plaintiffs) ; that defendant Lipper lived next door to his mother and had a key to her home; that the will as written gave defendant Lipper a larger share of testatrix’s estate than he would otherwise have received; that while testatrix had no discussion with anyone at the time she executed the will, she told the witness Friberg, prior to executing the will, that she was not going to leave anything to the Weslows; and subsequent to the execution of the will she told the witnesses Mrs. Levy, Mrs. Roos, and Mrs. Landry that she had not left the Weslows anything, and the reason why. The will likewise states the reasons for testatrix’s action. The testatrix, although 81 years of age, was of sound mind and strong will; and in excellent physical health. There is evidence that the recitations in testatrix’s will about the number of times the Weslows sent cards and flowers were incorrect, to the extent that cards and flowers were in fact sent oftener than such will recites.

The contestants established a confidential relationship, the opportunity, and perhaps a motive for undue influence by defendant Lipper. Proof of this type simply sets the stage. Contestants must go forward and prove in some fashion that the will as written resulted from the defendant Lipper substituting his mind and will for that of the testatrix. Here the will and the circumstances might raise suspicion, but it does not supply proof of the vital facts of undue influence — the substitution of a plan of testamentary disposition by another as the will of the testatrix. Boyer v. Pool, supra.

All of the evidence reflected that testatrix, although 81 years of age, was of sound mind; of strong will; and in excellent physical condition. Moreover, subsequent to the execution of the will she told 3 disinterested witnesses what she had done with her property in her will, and the reason therefor. A person of sound mind has the legal right to dispose of his property as he wishes, with the burden on those attacking the disposition to prove that it was the product of undue influence. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1035; Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208.

Testatrix’s will did make an unnatural disposition of her property in the sense that it preferred her 2 children over the grandchildren by a deceased son. However, the record contains an explanation from testatrix herself as to why she chose to do such. She had a right to do as she did, whether we think she was justified or not.

Plaintiffs contend that the record supports an inference that testatrix failed to receive the cards and flowers sent to her, or in the alternative that she failed to know she received same, due to conduct of defendant Lipper. Here again, defendant Lipper had the opportunity to prevent testatrix from receiving cards or flowers from the Weslows, but we think there is no evidence of probative force to support the con-elusion that he in fact did such. Moreover, the will itself reflected that some cards and flowers were in fact received by the testatrix, the dispute in this particular area, going to the number of times that such were sent, rather than to the fact that any were sent. See also: Rothermel v. Duncan et al., Tex.Sup., 369 S.W.2d 917.

We conclude there is no evidence of probative force to support the verdict of the jury. The cause is reversed and rendered for defendants.

TIREY, J., not participating on account of illness.