author: HAMILTON, Justice.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Petitioner, v. Leroy H. ALLRED, Respondent.
    No. A-11402.
    Supreme Court of Texas.
    March 16, 1967.
    Rehearing Denied May 10, 1967.

      Buck & Buck, Brown, Day & Crowley, M. Hendricks Brown, Fort Worth, for petitioner.
    Schulz & Hanna, Malcolm Schulz, Yates & Yates, Jack M. Yates, Abilene, for respondent.
   HAMILTON, Justice.

This is a workmen’s compensation case. The trial court entered judgment on the verdict for respondent, Leroy H. Allred, who was the plaintiff below. The Court of Civil Appeals has reversed that judgment and remanded the case for trial. 400 S.W. 2d 778. Both parties filed applications for writ of error; both applications were granted. For convenience we will designate Commercial Standard Insurance Company petitioner.

Respondent Allred contends here that the Court of Civil Appeals was in error in reversing and remanding the case on the ground that Special Issue No. 1 was an erroneous comment on the evidence. Petitioner Commercial Standard Insurance Company contends that the Court of Civil Appeals was in error in not rendering the cause because, inter alia, there was no evidence to support the jury’s affirmative answers to Special Issues Nos. 1 and 2. These issues are as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that Leroy Allred sustained an injury to his body as the result of a heat exhaustion on or about April 9, 1963?
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that at the time the plaintiff sustained an injury as the result of heat exhaustion, if you have found that he did, he was subject to a greater hazard of heat exhaustion than applied to the general public?”

We shall consider respondent’s application for writ of error first. Respondent alleged and presented evidence tending to show that he had sustained total and permanent disability and that such disability was caused by an injury to his body as the result of heat exhaustion. Petitioner contended and presented evidence designed to show that respondent’s disability, if any, was not caused by such an injury but was the result of high blood pressure, otherwise known as hypertension.

The Fort Worth Court of Civil Appeals holds that Special Issue No. 1 is an erroneous comment on the weight of the evidence, and relies on a decision of this Court in Johnson v. Zurich General Accident & Liability Insurance Company, 146 Tex. 232, 205 S.W.2d 353 (1947). The issue in the Johnson case read:

“Do you find from a preponderance of the evidence in this case that the injury, if any you have found, was sustained by R. M. Johnson because of heat exhaustion experienced on or about July 18, 1945?”

This Court held that the issue as framed assumed that Johnson experienced heat exhaustion and called upon the jury to answer the single question of whether petitioner’s injuries, if any, resulted from heat exhaustion which he experienced that day.

In 1952 this Court decided the case of Eubanks v. Texas Employers’ Insurance Association, 151 Tex. 67, 246 S.W.2d 467. The issue in that case read:

“Do you find from a preponderance of the evidence that J. L. Eubanks sustained personal injuries during the first two weeks of January, 1945, as the result of being struck a blow on his head by a piece of timber?”

We held that the issue was not a comment on the weight of evidence. We pointed out that this Court had held that “It is sufficient for the jury to be asked to find merely whether the employee sustained an accidental injury to his body, it not being necessary for the issue or the jury’s finding to show the manner in which the injury was sustained.” We went on to hold, however, that “it was not reversible error for the issue submitting the question as to the suffering of injury to contain words descriptive of the manner of the injury.”

In the course of our opinion in Eubanks we approved, at least inferentially, a holding by the Court of Civil Appeals in Texas Employers Insurance Association v. Rowell, 104 S.W.2d 613, (Tex.Civ.App., 1937, no writ) that an issue in the following language was not a comment on the weight of the evidence:

“Do you find from a preponderance of the evidence that the plaintiff, H. Rowell, on or about the 10th day of August, 1934, sustained an injury as that term is herein defined, as a result of heat exhaustion or sun stroke?”

We also pointed out in Eubanks that the Court of Civil Appeals, in Texas Employers Insurance Association v. Clack, 112 S. W.2d 526, 529, had approved an issue in the following language:

“Do you find from a preponderance of the evidence that the plaintiff, P. K. Clack, sustained any personal injuries, as alleged, by falling from a cooling tower on September 27, 1935?”

We further pointed out that in the Clack case this Court had affirmed the judgment of the Court of Civil Appeals (134 Tex. 151, 132 S.W.2d 399) without discussing the above ruling.

In the Eubanks case particular reference was made to an article by Preston Shirley in 18 Texas Law Review 365, in which a recommended special issue in this type of case was put in this language:

“Do you find from a preponderance of the evidence that (claimant) sustained an injury (particularly describing the injury) by (particular manner of injury) on the _ day of - 1940?”

In that case we also distinguished the Johnson case by emphasizing that the issue in question there contained the word “experienced”.

On rehearing in the case before us the Court of Civil Appeals wrote that “by interpolating the words ‘the’ and ‘which occurred’ into the issue it will then read as did the issue in the Johnson case: ‘Do you find from a preponderance of the evidence that Leroy Allred sustained an injury to his body as the result of the heat exhaustion which occurred on or about April 9, 1953 ?’ ” We agree with the Court of Civil Appeals that if such interpolation is made that we would have an issue similar to that in the Johnson case. In the Johnson case the issue seemed to assume that a heat exhaustion had been experienced. In this case with the interpolation the issue would assume that a heat exhaustion had occurred. We think the issue given by the court in this case does not assume anything; it simply asks the jury if Leroy Allred sustained one certain kind of injury to his body, and that kind was one resulting from a heat exhaustion. We hold that the trial court did not err in submitting this issue to the jury.

We now turn to petitioner’s writ of error, which presents two major questions: First, is there any evidence of probative force to support the jury finding that the claimant suffered an injury from heat exhaustion? Second, is there'any evidence to support the jury finding that at the time the claimant sustained the injury he was subjected to a greater hazard of heat exhaustion than applied to the general public ?

In deciding “no evidence” points such as these, an appellate court must consider only the evidence and the inferences tending to support the findings, and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938 (1959).

The insurance company contends that there is no evidence that claimant suffered a heat exhaustion because the testimony of the claimant’s doctor is insufficient to support an inference that such injury occurred. Allred’s doctor testified that his findings upon examination of the claimant were consistent with those of a person that has suffered a heat exhaustion. The company contends that “consistent with” is merely equivalent to a “possibility of” heat exhaustion ; that proof of the injury must be made by expert testimony as to reasonable medical probability. We do not reach this question, for there is additional evidence of probative force which will support the jury finding.

Two medical experts testified at the trial, one for petitioner and one for respondent. There is testimony that the symptoms of heat exhaustion are hot skin, either a red or exceedingly pale face, a fast heart rate, considerable variations of blood pressure, cramps, nausea and vomiting; furthermore, if after recovery the patient overexerts or gets too hot he is likely to have a recurrence of the same symptoms.

There is testimony from Allred, and other nonexpert witnesses, that on the day Allred got sick he became very dizzy and nauseated, suffered cramps and vomiting; his entire body cramped the whole night following the incident; whenever he has attempted to engage in physical exertion since that time he suffers cramps, nausea, dizziness; he has been unable to undertake any type of gainful employment since that time due to this recurrence .of symptoms. There was no objection to the introduction of this lay testimony, and, furthermore, as to the other nonexperts such would be admissible as opinions of witnesses familiar with a person as to his general health, bodily vigor, apparent illness, or change in physical condition. Shuffield v. Taylor, 125 Tex. 601, 83 S.W.2d 955 (1935).

In addition respondent’s medical expert testified on cross-examination that not only were the claimant’s symptoms consistent with heat exhaustion, each one was consistent with some other condition: The irregular pulse was consistent with a heart block or a nerve injury; high blood pressure with hypertension and kidney disease; pain in the chest with a coronary condition or osteotrophic or osteoarthritic spurring of .the vertebrae and so forth. On redirect examination the doctor testified that the reason for the exhaustive physical examination was to rule out these other conditions. He stated that he found no other condition to explain respondent’s symptoms. The jury could reasonably find that in effect the doctor ruled out everything but heat exhaustion.

In Associated Employers Lloyds v. Self, 192 S.W.2d 902 (Tex.Civ.App.1946, writ ref’d n. r. e.), the employee allegedly suffered an injury to the small of his back. In a suit for workmen’s compensation benefits the insurance company’s medical experts testified that the disability could have been caused by the employee’s fall or it could have been caused by chronic arthritis. The employee’s medical expert testified that it could have been caused by the fall and it could not have been caused by arthritis. The jury awarded compensation, and judgment. was entered on the verdict. The Court of Civil Appeals held that there was evidence to support the judgment. This Court refused the insurance company’s application for writ of error with the notation, “no reversible error.”

In the instant case, the symptoms of heat exhaustion were elicited from the medical experts, and Allred’s symptoms were elicited from lay witnesses. There was expert testimony that the claimant’s symptoms were consistent with heat exhaustion, as well as many other conditions. The doctor further testified that after examination he could find none of these other conditions. Under Associated Employers Lloyds v. Self, supra, this is sufficient to support a finding of an injury from heat exhaustion. We hold that there is evidence of probative force to support the jury finding.

The insurance company contends that even if the claimant suffered an occurrence of heat exhaustion on the day in question, there is no evidence that he was subjected to a greater hazard of heat exhaustion than applied to the general public.

Heat exhaustion is compensable, under the workmen’s compensation law, if the employee is at the time engaged in the performance of duties that subject him to a greater hazard of heat exhaustion than ordinarily applies to the general public. Vernon’s Tex.Civ.Stat.Ann. art. 8309, § 1 (1967); Scivally v. Texas Employers’ Ins. Ass’n, 77 S.W.2d 919 (Tex.Civ.App.1934, writ ref’d).

This Court held in Guthrie v. Texas Employers’ Ins. Ass’n, 146 Tex. 89, 203 S.W.2d 775 (1947), that a fact issue as to compen-sable injury was raised where it appeared that the employee working in a cotton mill’s weave room which was heated with steam and kept closed to keep the dust and fuzz settled suffered heat exhaustion. The Court emphasized that the nature of the premises could have been a causative danger in the employment.

Traders & General Ins. Co. v. Ross, 263 S.W.2d 673 (Tex.Civ.App. 1953, writ ref’d) involved a claimant who had lived in the foothills of the Rockies, where it was cool, until about a month before he moved to Houston. The day was hot and he worked outdoors. Shortly after beginning work he became ill and had to quit work. The court held that this was sufficient to require submission of an issue of greater hazard than ordinarily applies to the general public.

The Commission of Appeals held in Hebert v. New Amsterdam Casualty Co., 1 S. W.2d 608 (Tex.Com.App.1928, jdgmt. adopted), that the fact that the employee was engaged in unusually arduous manual labor in a forest, where it was possible that the heat did not dissipate as rapidly as it would have otherwise, was evidence of a causative danger in the employment.

There is testimony in the instant case that Allred was engaged in arduous manual labor on the day in question, carrying steel reinforcing rods. The day was relatively hot for April, reaching a maximum temperature that day of 95 degrees. Allred was working harder than some of the men engaged in the same work; his brother testified that Allred was continuously carrying steel while others would swap off and do something else for a while. Part of the time he was using a torch to cut the steel which, he testified, “gets pretty hot.”

These facts support the jury finding that Allred was subject to a greater hazard of heat exhaustion than applied to the general public, and are not inconsistent with the cases discussed above; nor are they inconsistent with the cases from the Courts of Civil Appeals relied upon by petitioner: Texas Employers’ Ins. Ass’n v. Moore, 279 S.W. 516 (Tex.Civ.App. 1925, no writ); Trinity Universal Ins. Co. v. Walker, 203 S.W.2d 308 (Tex.Civ.App. 1947, no writ); Safety Casualty Company v. Malvoux, 204 S.W.2d 862 (Tex.Civ.App.1947, writ ref’d n. r. e.). We hold that there is evidence of probative force to support the jury finding.

We have considered the remaining points of error urged by petitioner and overrule them as being without merit. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. MORRISON, Judge.

license: Public Domain

text:
    Clifford Henry BOWEN et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40079.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Rehearing Denied May 3, 1967.
    Brooks Holman, Austin, for surety Jack B. McClellan.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a bond forfeiture case. On the 4th day of April, 1966, the principal, Clifford Henry Bowen, posted bail in cause No. 13,107, in the 47th District Court of Potter County, Texas, in which cause the principal was charged by complaint with the felony offense of possession by a felon of burglary tools. J. H. Stelfox, of Travis County, Texas, and appellant, Jack B. McClellan, signed the principal’s bail bond as sureties. The amount of the bond was seven thousand five hundred dollars ($7,-500.00).

On the first day of August, 1966, No. 13,107 was called and the defendant, principal, having failed to appear, judgment nisi was entered forfeiting said bond.

Citation was issued and served on each of the sureties.

The Surety J. H. Stelfox answered by general denial. Appellant filed motion to quash the citation; plea in abatement; motion to set aside the judgment nisi and subject to such motions and plea his original answer. He also filed demand for a jury.

After the foregoing motions, pleas, answers and jury demand had been on file for some 18 days, the state filed motion for summary judgment alleging that there were no material fact issues in the cause and no sufficient cause had been shown for the failure of the principal to appear.

Appellant filed motion in opposition to the state’s motion without waiving any of his pleas and motions previously filed and hearing was held on October 20, 1966. Appellant’s motion to quash the citation; his plea in abatement and motion to set aside the judgment nisi being, in turn, overruled, the court, at the conclusion of the hearing, rendered judgment making final the judgment nisi and ordered that the state recover from Clifford Henry Bowen, principal, Jack B. McClellan and J. H. Stelfox, sureties, the sum of $7,500.00 and costs of suit.

Jack B. McClellan alone appeals.

Appellant’s first point relates to the overruling of his motion to quash the citation, his contention being (A) that the citation is contrary to law and hence void, since it is directed to “any sheriff or any constable within the State of Texas,” (Rule 15 Texas Rules of Civil Procedure) rather than to the defendant (Rule 101 T.R.C.P.) ; and (B) the citation does not contain the name of appellant Jack B. McClellan, but contains that of Jack B. McLellan.

Appellant having filed answer, subject to his motion to quash the citation, was before the court for all purposes and the defect in the citation was waived. Hickey et al. v. Sibley, Tex.Civ.App., 304 S.W.2d 165; see also Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 and since adopted Rule 120a T.R.C.P.

Appellant’s second point relates to the variance between appellant’s true name, Jack B. McCZellan, which he signed to the bail bond and the Oath of Sureties, and the name Jack B. McLellan used in the judgment nisi.

The Oath of Sureties was sworn to in Travis County before appellant’s counsel. in his capacity of Notary Public. The name “Jack B. McLellan” is typewritten only in this oath.

It is apparent that McClellan and Mc-Lellan both refer to the same person and that the judgment appealed from is against Jack B. McClellan, the person who signed his name to the bond and to the Oath of Sureties.

In view of such facts, we do not regard the variance between the judgment nisi and the bond as fatal. The judgment nisi followed the spelling of appellant’s name typewritten in his Oath as a surety, rather than the deciphering of his signatures. We further observe that the names McLellan and McCtellan appear to be idem sonans.

Appellant’s third point is that the trial court erred in granting summary judgment because his motion and affidavits in opposition sufficiently apprised the trial court of the existence of fact issues which should have been tried to a jury, and which, if found in appellant’s favor, would have entitled him to exoneration or, in the alternative, to remittitur of the amount of the bond.

As to exoneration, appellant directs attention to four affidavits in opposition to the state’s motion for summary judgment. One is appellant’s affidavit to the effect that he was not a resident of Potter County and received no notice of any kind prior to or on the first day of August 1966 that the criminal cause “was called for trial on said date.” Another is the affidavit of appellant’s co-surety to the same effect.. The third is the affidavit of John Flanagan to the same effect, and the fourth is the affidavit of John W. Flanagan stating:

“I was attorney for Clifford Henry Bowen at the time of his release on bond in said criminal cause, and at the time of his said release I told the said Clifford Henry Bowen that since the new Texas Code of Criminal Procedure required that his mailing address be written upon the bail bond in said cause for the purpose of providing an address for the mailing of notice of any setting in said cause, he, the said Clifford Henry Bowen would be notified of any setting in said criminal cause.”

Art. 17.08(4) Vernon’s Ann.C.C.P. provides: “That the bond be signed by name or mark by the principal and sureties, if any, each of whom shall write thereon his mailing address * *

The bail bond which appellant signed as surety does not show the address of the principal or the address of either surety.

The trial court’s conclusion that the affidavits mentioned did not raise a fact issue as to exonerations that should be submitted to a jury was not error.

As to remittitur, appellant directs attention to the following allegation of his sworn motion in opposition to the state’s motion for summary judgment.

“After August 1, 1966, the principal in this cause appeared and entered into new bail in the amount of $3000.00 which bail is but 40% of the original $7500.00 bail upon which forfeiture is sought in the instant proceeding and such bail reduction . prima facie establishes good cause to exonerate this surety within the intent of Articles 22.13(3) and Article 22.17 of the Code of Criminal Procedure; or in the alternative the facts and circumstances set forth in this paragraph present a situation in which the Court, at its discretion should remit the sum specified in the bond as authorized by Article 22.16, Code of Criminal Procedure.”

Appellant argues that the trial judge abused his discretion in failing to remit the whole of the sum specified in the bond.

We do not agree with appellant’s contention that the trial court failed to consider the issue of remittitur, or with his contention that Johnson et al. v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574; Ricard et al. v. State, 171 Tex.Cr.R. 456, 350 S.W.2d 938, or Glass et al. v State, 103 Tex.Cr.R. 451, 281 S.W. 861, sustain his contention that the trial court abused his discretion.

Assuming that the facts alleged were sufficient to invoke the provisions of Art. 22.16 C.C.P. and to authorize the court, in its discretion, to remit the whole or part of the sum specified in the bond, the court exercised its discretion by granting the motion for summary judgment and ordering that judgment nisi be made final and that the state recover the full amount of the bond.

Gibson et al. v. State, Tex.Cr.App., 401 S.W.2d 822, and cases cited support our conclusion that no abuse of discretion by the trial court is shown.

The judgment is affirmed.

DISSENTING OPINION

MORRISON, Judge.

Under Rule 166-A, T.R.C.P., and the holding of the Supreme Court of this State in Richards v. Allen, 402 S.W.2d 158, the sworn motion in opposition to the motion for summary judgment was before the Court for his consideration. The fact that the principal appeared prior to the entry of final judgment and was released on a new bond for the same offense in a sum far less than the original bond, would clearly show an abuse of discretion in the Court’s failure to grant a remittitur and in granting judgment for the full amount of the original bond.

I respectfully dissent.


author: DICE, Judge.

text:
    Robert W. CULLOM, Appellant, v. The STATE of Texas, Appellee.
    No. 40159.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Rehearing Denied May 3, 1967.
    Marks, Time & Aranson, by Don Black and Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Joe K. Hend-ley, and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for knowingly passing as true a forged instrument; the punishment, five years.

Trial was had and notice of appeal given after January 1, 1966.

Three grounds of error are urged by the appellant in his brief filed in the trial court.

In two of the grounds, appellant contends that the evidence is insufficient to sustain the conviction and that the court erred in refusing to charge the jury on circumstantial evidence.

The evidence presented by the state germane to such grounds shows that, on the date alleged, the appellant came to the place of business where the complainant, C. D. Massey, was employed. At such time, appellant had in his possession a check — which was introduced in evidence— dated March 11, 1965, in the amount of $100, drawn on the Citizens National Bank, of Dallas, Texas, payable to Robert W. Cullom and purportedly signed by George R. Milner. A dispatcher at the place asked Massey to take the appellant to where he could cash the check and then take him home. After a discussion in which appellant told Massey that Milner had given him the check as a loan, they went to the Oak Cliff Bank & Trust Company drive-in, where they both endorsed the check and deposited it to Massey’s account at the bank. Appellant prepared the deposit slip, which provided for the withdrawal of $50 in cash, by Massey. Massey then gave appellant the $50 in cash, with the understanding that he would give him $50 more the next day. The following day when appellant called and asked for the money, Massey refused to give it to him.

In explaining why he refused, Massey testified:

“Because I had already discovered that the check wasn’t any good and I explained it to him and he admitted it wasn’t.” (Emphasis, supplied.)

It was shown by the testimony of George Milner, whose name was purportedly signed to the check, that he did not sign the instrument and that it was a forgery.

Testifying in his own behalf, appellant admitted going to the bank with Massey and depositing the check. He related that he received the check from one Lloyd Miller, who requested that he cash it for him. He further stated that when he received the check the “payee portion” was in blank and that he filled it out. He denied, however, that he signed the maker’s name to the check.

We find the evidence sufficient to support the conviction, and overrule the contention that the proof fails to show that appellant knew the check was a forgery. The testimony of the witness Massey that appellant admitted the check was not good was sufficient proof of his knowledge of its falsity.

We also overrule the contention that the court erred in refusing to charge the jury on circumstantial evidence because there was no direct evidence that appellant knew the check was a forgery.

Massey’s testimony that appellant admitted to him that the check “wasn’t any good” constituted direct evidence that he knew the instrument was a forgery.

In Roach v. State, 138 Tex.C.R. 382, 136 S.W.2d 614, and Boatright v. State, 160 Tex.Cr.R. 590, 273 S.W.2d 632, relied upon by appellant, there was no direct evidence that the accused knew the instrument was a forgery, and a charge on circumstantial evidence was required.

In his third ground of error, appellant complains that the court erred in permitting the state’s witness, Milner, to testify that he had a telephone conversation with someone who identified herself as “Mrs. Massey.” It is insisted that this testimony violated the rule against hearsay and was prejudicial to appellant.

We perceive no reversible error. The careful trial judge did not permit the witness to relate details of the conversation. We do not agree that the mere proof that the witness had a telephone conversation with a Mrs. Massey was injurious to appellant.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ex parte Manuel Montoya RODRIGUEZ.
    No. 40319.
    Court of Criminal Appeals of Texas.
    April 19, 1967.

      Maloney & Black by Frank Maloney, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., W. T. McDonald, Jr., Asst. Dist. Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

An indictment is pending in the 147th District Court of Travis County, Texas, charging that appellant was guilty of driving while intoxicated as a second offender in that he had theretofore been convicted in 1958 for the misdemeanor offense and thereafter in 1966 drove a motor vehicle while intoxicated.

By writ of habeas corpus appellant seeks to challenge the validity of the 1958 conviction prior to trial on the merits for the 1966 offense. This he may not do. Appellant in his application filed in the trial court attacks the validity of the indictment alleging that it is void because at the time he plead guilty to the 1958 misdemeanor offense, he was an illiterate indigent and without counsel. In Ex parte Fertitta, 167 Tex.Cr.R. 483, 320 S.W.2d 839, the appellant’s contention was that the indictment was void, therefore subject to collateral attack. In that case appellant had filed a motion to quash the indictment which was overruled. The Court stated, “[ajppellant pursued this proper course and moved to quash the indictment. A review by this Court of the trial court’s ruling thereon before a trial, conviction and appeal would not be appropriate. This Court is not authorized to enter a declaratory judgment.”

In the case at bar the appellant filed a plea to the jurisdiction as well as his application for writ of habeas corpus. Such plea will be made a part of the trial record of the case upon its merits. Article 28.01, Sec. 2,-Vernon’s Ann.C.C.P. (1965).

The judgment remanding appellant to custody is affirmed.


author: WOODLEY, Presiding Judge.

text:
    James Timothy OVERTON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40081.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Rehearing Denied May 3, 1967.
    Brooks Holman, Austin, for surety Jack B. McClellan.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a bond forfeiture case in which Jack B. McClellan appeals from a judgment making final a judgment nisi forfeiting the appearance bond entered into by James Timothy Overton, as principal, and J. H. Stelfox and appellant Jack B. McClellan as sureties, in the sum of $7,-.500.00.

The claims of error raised on this appeal appear to be identical with those raised by the same appellant in his appeal from the forfeiture of the appearance bond of Clifford Henry Bowen in Bowen v. State, Tex. Cr.App., 413 S.W.2d 915, this day decided, which were overruled.

The judgment is affirmed.

MORRISON, J., dissents.


text:
    Roy Lee BRILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40242.
    Court of Criminal Appeals of Texas.
    April 19, 1967.
    No attorney of record on appeal for appellant.
    Carol S. Vance, Dist. Atty., James C. ' Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, enhanced by two prior convictions for felonies less than capital, life.

Trial was before a jury on a plea of not guilty. Appellant not having elected to have the jury assess his punishment, and the prior convictions having been stipulated, the court assessed the punishment at life. (Art. 63, Vernon’s Ann.P.C.)

The record was approved November 17th, 1966.

No brief for the defendant having been filed in the trial court, the record was forwarded to this court and filed February 13, 1967.

Appellant was represented by counsel at the trial and counsel was appointed to represent him on appeal.

The record contains no bills of exception and we find nothing which should be considered by this court as unassigned error in the interest of justice.

The judgment is affirmed.


text:
    Lee Andrew BROWN, alias James Andrew Green, Appellant, v. The STATE of Texas, Appellee.
    No. 40201.
    Court of Criminal Appeals of Texas.
    April 19, 1967.
    Willis S. Carpenter, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Ross Teter, Kenneth E. Blassingame and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for unlawfully breaking and entering a motor vehicle, with punishment — enhanced under Art. 63, V.A.P.C., by reason of two prior convictions for felonies less than capital — assessed at life imprisonment.

Trial was prior to January 1, 1966, under the 1925 Code of Criminal Procedure.

It was shown by the state’s testimony that on the day in question, when the prosecuting witness, Elex White, went to work at 7 a. m. he parked his 1959 Chevrolet automobile on a service road off the North Central expressway in the city of Dallas. At such time the windows were rolled up and the glove compartment was locked. Later in the day, between 5 and 6 p. m., while Officer Gregory was traveling on the expressway he observed the door of the Chevrolet automobile open and a window broken. He also noticed that “some feet were sticking out of the door.” He stopped and went to the vehicle, where he found appellant in an intoxicated condition, lying on the front seat, “propped up on his elbow holding a glass, cleaning some things, and he had his hand in the glove compartment of the car.” Some pistol shells and razor blades were in the glass. Appellant was also holding a pair of dice. Fresh pry marks were-on the glove compartment and the lock had been broken. A tire tool and screwdriver were on the front seat.

It was shown by the testimony of the prosecuting witness that he did not give appellant permission to break and enter the automobile and take property therefrom. It was further shown that he did not own the tire tool and screwdriver found in the automobile and that when he parked the vehicle that morning there was a glass in the glove compartment in .which were some bullets, razor blades, and a pair of dice.

In proof of the two prior convictions, the state introduced in evidence certain records of Criminal District Courts Nos. 2 and 3 of Dallas County. Also introduced were certain duly authenticated prison records of the Department of Corrections, containing photographs and fingerprints. From such records it was shown that in the years 1956 and 1959 one James Andrew Green was convicted in the two district courts of the felony offenses of burglary. Deputy sheriff James Kitching, whose qualification as a fingerprint expert was shown, testified that he had compared appellant’s fingerprints with those in the records of the Department of Corrections, and expressed the opinion that they were made by the same person. Proof was also made that the offense for which appellant was convicted in 1959 was committed after the 1956 conviction and that the primary offense for which he was on trial was committed after the convictions in 1956 and 1959.

Appellant did not testify or call any witnesses whose testimony was material to the issue of his guilt.

In his brief, appellant insists that the court erred in permitting the state to examine its witnesses relative to the tire tool and screwdriver found at the scene (state’s exhibits 1 and 2), over his objection that the exhibits were not shown to be connected with the offense.

The record reflects that the prosecuting witness was permitted to testify that the two exhibits were similar to those he observed when he returned to his automobile about 5 p. m. and found appellant in custody of the officers and under arrest.

Officer Gregory identified the two exhibits as the tire tool and screwdriver lying by appellant on the front seat of the car.

We perceive no error, as testimony relative to the finding of burglars’ tools at the scene is admissible. Rice v. State, 129 Tex.Cr.R. 52, 83 S.W.2d 964.

Error is urged on the ground that only portions of the exhibits introduced in evidence to prove the two prior convictions were read to the jury. It is insisted that this was prejudicial to appellant’s rights. Allen v. State, 150 Tex.Cr.R. 569, 204 S.W.2d 615, cited by appellant, does not support his contention. We perceive no error.

We overrule appellant’s remaining contention that he was not identified as the person convicted in the two prior cases alleged for enhancement.

The testimony of Officer Kitching that he compared appellant’s known fingerprints with the fingerprints appearing in the prison records and that they were of the same person was sufficient, under the decisions of this court, to prove appellant’s identity as the person previously convicted. Robertson v. State, 168 Tex.Cr.R. 35, 322 S.W.2d 620; Matula v. State, Tex.Cr.App., 390 S.W.2d 263.

Finding the evidence sufficient to support the conviction, and no reversible error appearing, the judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    Homer BROWN, Appellant, v. W. P. FRENCH, Individually and d/b/a W. P. French Painting & Contracting, Appellee.
    No. 7702.
    Court of Civil Appeals of Texas. Amarillo.
    March 20, 1967.
    Rehearing Denied April 17, 1967.
    Jerry R. Hollingsworth, Amarillo, for appellant.
    Dunlap & Zimmerman, Amarillo, Warren E. Zimmerman, Amarillo, of counsel, for appellee.
   NORTHCUTT, Justice.

On July 7, 1965, plaintiff, W. P. French, individually and doing business as W. P. French Painting & Contracting, brought suit against the defendant, Homer Brown, contending he entered into a painting contract with the defendant to paint defendant's house. It was plaintiff’s contention that defendant would pay the plaintiff such sum of money as said services were reasonably worth and then pleaded said services for labor and materials were reasonably worth $2,153.83. Plaintiff further pleaded for attorney’s fee. The defendant filed a general denial.

On September 27, 1965, the plaintiff filed his motion for summary judgment. His attorney of record filed his sworn certificate on September 27, 1965, stating that a copy of the motion, affidavit in support and order were forwarded on September 24, 1965, to defendant’s attorney of record by certified mail, return receipt requested. The order set the motion for hearing for October 19, 1965, at 9:00 o’clock a. m. Summary judgment was entered in favor of the plaintiff on October 19, 1965.

On October 27, 1965, the defendant filed a motion for new trial alleging in part as follows:

“At some time unknown to Defendant BROWN, Plaintiff FRENCH filed his Motion for Summary Judgment herein, upon which the Court’s Judgment was based.
“Neither Defendant BROWN nor his attorney of record had any notice of the filing of the Motion nor of setting of the Motion for hearing until Defendant’s Counsel was informed by the Court of the entry of Judgment.
“WHEREFORE this Defendant prays that the Judgment herein be set aside, that a new trial be granted, and that all costs in the proceeding to date be taxed against the Plaintiff.”

The attorneys for the plaintiff and defendant stipulated, at the hearing on motion for new trial, that the notice of the setting of the motion for summary judgment was duly and regularly mailed but that the notice was not received by defendant or his attorney. The court took no further action on the motion for new trial and the same was overruled by operation of law. The defendant gave notice of appeal but did not perfect his appeal in proper time.

On April 11, 1966, defendant filed a bill of review setting out the same matters alleged in his motion for new trial and several other matters as to why the summary judgment should be set aside and after praying that the summary judgment be set aside pleaded a cross-action seeking to recover damages because of fraud on the part of plaintiff. The plaintiff filed a special appearance as to the cross-action of the defendant stating why the defendant could not maintain the cross-action in his bill of review. Judgment was entered by the court denying the defendant any relief upon his cross-action. The court was correct in so holding as such matters were not involved in this bill of review. The court further entered judgment denying the defendant any relief requested in the bill of review and refused to set aside the summary judgment entered on October 19, 1965. From that judgment the defendant perfected this appeal. Hereinafter the parties will be referred to as they were in the trial court.

Although the defendant presents this appeal upon seven points of error, we believe there is only one real issue here involved and that is whether the summary judgment was properly rendered as provided for under Rule 166-A, Texas Rules of Civil Procedure. That rule concerning the entry of summary judgment provides in part as follows: “The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” Attorney for the plaintiff made affidavit that he sent a copy of the motion to defendant’s attorney by certified mail, return receipt requested. He agreed that he never received the requested receipt showing the delivery of the motion to defendant’s attorney. Consequently, the attorney had no reason to believe defendant’s attorney had received the motion for summary judgment; but since it is stipulated that the notice was not received, it definitely shows defendant was never served with such motion.

Plaintiff pleaded that on or about April 8, 1964, defendant requested the plaintiff to render services to defendant as a painter on the improvements of a dwelling house. There are several reasons why we think this judgment should be reversed. The original petition states that defendant promised to pay plaintiff such sum of money as said services were reasonably worth and that said services for labor and materials were reasonably worth $2,153.83. Plaintiff attached to the petition as Exhibit A and made a part thereof a number of articles which the plaintiff sought to recover for together with taxes in the sum of $163.98 and also attached a list of names and figures for which plaintiff seeks to recover the sum of $1,-616.05, for their labor making a total of $1,780.03; then adds ten per cent of the $1,780.03 as expenses which would be $178; then adds those two items making the total $1,958.03; then takes ten per cent of the $1,958.03 as profit, being $195.80; then seeks judgment for the total of the last two items in the sum of $2,153.83, plus attorney’s fees and interest. Judgment was rendered in favor of the plaintiff for the $2,153.83, plus $86.15 as interest and $700 attorney’s fees, making the total of $2,939.98.

There are no pleadings to show who was to furnish the materials or that the plaintiff would furnish the materials and neither is there any pleadings that the men listed performed work for the plaintiff on defendant’s property. As pleaded, this is not a suit upon a sworn account as to require a denial under oath. A summary judgment on the pleadings could not properly be entered for plaintiff when the defendant had a general denial on file. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (1943); Alexander v. Houston Oil Field Material Company, 386 S.W.2d 540 (Tex.Civ.App.—Tyler, 1965, writ ref’d n. r. e.).

However, should we be wrong in the above statements, we think the court erred in granting summary judgment herein without the defendant being served with a motion for summary judgment. The trial court could have been easily misled in believing the defendant’s attorney had been served with notice of the motion by virtue of the certificate of service made by plaintiff’s attorney showing the motion had been forwarded to defendant’s attorney by certified mail, with return receipt requested. When the receipt requested was not returned, it seems to us that that would have caused the plaintiff’s attorney to check to see if the motion had been served and that could have been determined by a local telephone call to the defendant’s attorney. If a suit is filed against a defendant but the defendant has never been served with proper notice the trial court has no right to enter judgment against the defendant and if judgment should be entered, it would be void. Stanley v. Columbus State Bank, 258 S.W. 2d 840 (Tex.Civ.App.—Fort Worth, 1953, writ ref’d n. r. e.).

It is stated in the case of Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958) as follows :

“It must be kept in mind that this case has never been tried on its merits, but only on motions for summary judgment under Rule 166-A. The right to summary judgment was unknown to common law and exists in this State only by virtue of that rule. In order to be entitled to the benefits of the rule all of its terms must be complied with. This the defendants have failed to do.”

See also Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) as follows:

“Summary judgment is possible in this state only by virtue of the provision of Rule 166-A. To entitle a party to a summary judgment, the provisions of this rule must be strictly complied with. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929; Womack v. Allstate Insurance Company, 1957, 156 Tex. 467, 296 S. W.2d 233. ‘The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him,’ McDonald, Texas Civil Practice, Vol. 4, p. 1392, § 17.26 (VI).”

The remedy sought herein by summary judgment is certainly different from that originally sought. The only right that a party has to recover summary judgment is given to him by the provisions of Rule 166-A. Unless the party seeking summary judgment properly brings the matter before the court as provided under that rule the court has no jurisdiction to render that particular judgment. Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question and to determine whether or not they are sufficient to invoke the exercise of that power. Jurisdiction does not relate to the right of the parties as between each other but to the power of the court. There are three kinds of jurisdiction; (1) of the subject matter, (2) of the person, and (3) to render a particular judgment. Did the plaintiff in this case show a right to the relief which he sought? If he did, then defendant should have proceeded by appeal to present any error relied upon; then the next question would be, has the court authority to determine whether or not he has shown such right? The last question is the question of jurisdiction.

The plaintiff did not comply with Rule 166-A, T.R.C.P., in that defendant was never served with the motion for summary judgment and this fact is so stipulated. Consequently, the trial court, so far as entering the summary judgment was concerned, did not have jurisdiction of the defendant as the motion for summary judgment had not been served on the defendant and the court could not render that particular judgment.

It is stated in Taylor v. Phillips Petroleum Company, 295 S.W.2d 738 (Tex.Civ.App.—Galveston, 1956, writ ref’d n. r. e.) as follows: “Power to render the particular relief awarded is an essential element of jurisdiction in a cou/t.” See also Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810 (1947) where it is stated: “If that court did not have jurisdiction, both of the parties and of the subject matter of the litigation, the judgment is void and subject to attack in this collateral proceeding.” In that same case it is stated: “The jurisdiction of a court must be determined, not upon the court’s action in deciding the questions presented in a case, but upon the character of the case itself. Jurisdiction is the power to decide, and not merely the power to decide correctly.” A judgment rendered by a court which does not have jurisdiction of the subject matter is void. Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427 (1932); Ferguson v. Ferguson, 127 S.W.2d 1018 (Tex.Civ.App.—Eastland, 1939, writ dism’d).

We are of the opinion, and so hold, that the plaintiff did not comply with Rule 166-A so as to entitle him to summary judgment and that the trial court erred in not setting aside the summary judgment as requested by the defendant in his bill of review.

Judgment of the trial court is reversed and remanded for a trial upon the merits. It is further ordered that plaintiff pay all costs of this appeal.


author: CHADICK, Chief Justice.

text:
    CENTRAL FREIGHT LINES, INC., Appellant, v. CLARKE & COURTS, INC., Appellee.
    No. 7778.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1967.
    Rehearing Denied March 14, 1967.

      R. Douglas Coffin, Muse, Currie & Kohen, Dallas, for appellant.
    Preston Shirley, Mills, Shirley & Mc-Micken, Galveston, Raybourne Thompson, Jr., Vinson, Elkins, Weems & Searls, Houston, for appellee.
   CHADICK, Chief Justice.

Clarke & Courts, Inc., a retailer of office equipment and supplies, placed an order with Vickery & Company, Inc., a carpet jobber, for two custom made Barwick brand carpets of a certain color and of specific but unusual dimensions. This order was placed with Vickery & Company to secure custom made carpet for two separate floor areas in the Hutchings-Sealy National Bank of Galveston, a Clarke & Courts customer. Vickery in turn placed an order for the carpeting with E. T. Bar-wick Mills, Inc., Chamblee, Georgia, and that firm arranged with Lewis F. Pursley, doing business as Crest Carpet Company, to mill the carpets. The carpeting in two separate rolls was shipped to Clarke & Courts from Pursley’s mill at Douglasville, Georgia. The bill of lading on the shipment dated July 26, 1963, shows Barnes Freight Lines, Inc., as originating carrier, E. T. Barwick Mills, Inc., shipper, and Clarke & Courts, Inc., consignee, with freight charges collect.

The shipment arrived at the Texas City, Texas, “Y”, and an employee of Central Freight Lines, Inc., the delivering carrier, telephoned Clarke & Courts and stated that the two parcels had arrived at the Y, but one was damaged, and suggested an examination be made to avoid the expense of delivery to Clarke & Courts’ business house in Galveston if the shipment was not acceptable in its damaged condition. After an examination of the damaged carpet by an expert, the receipt of the expert’s report and receipt of advice from Vickery & Company, Clarke & Courts’ manager became convinced that the damaged parcel of carpet could not be repaired so as to give satisfactory service, and that the undamaged parcel of carpeting could not be satisfactorily matched in color with a replacement for the damaged carpet. The manager refused to receive both parcels and placed a new order, duplicating the original, for both pieces of carpeting. The two sections of carpeting in the duplicated order were manufactured and on delivery to Clarke & Courts were accepted, paid for, and are not referred to hereafter.

Following trial before the court, without the intervention of a jury, on the pleadings and proof in the actions as instituted by the parties, judgment was entered that Vickery & Company Inc., recover $2,309.23 and an attorney fee of $1,000.00, with interest, costs, etc., from Clarke & Courts, Inc.; that Clarke & Courts, Inc., recover from Central Freight Lines, Inc., $1,632.92, with interest, costs, etc.; and title to the two original parcels of carpeting was adjudged to be in Clarke & Courts, Inc. On request the trial judge filed findings of fact and conclusions of law. Clarke & Courts appealed from the judgment entered, and Central Freight Lines appealed only from the portions of the judgment adverse to it.

The trial judge concluded that the carpeting was delivered in good condition to a common carrier at Douglasville, Georgia, and that (so far as the action between Vickery & Company and Clarke & Courts is concerned) title thereto vested at that time in Clarke & Courts, and such company, as owner, assumed the risk of damage to the shipment after delivery to the carrier. Passage of title to goods under such circumstances depends upon the intention of the parties to the sale contract. John E. Morrison & Co. v. Murff, 212 S.W. 212 (Tex.Civ.App.1919, no writ); Ed Maher, Inc. v. Morris, 67 S.W.2d 340 (Tex.Civ.App. 1934, no writ); F. L. Shaw Co. v. Coleman, 236 S.W. 178 (Tex.Civ.App.1922, writ ref’d). A general rule applicable in the construction of sales contracts is that in the absence of an agreement by the parties that title passes from seller to buyer at a different time, delivery to a carrier by the seller of goods constitutes delivery to the buyer, and title to the goods passes to the buyer at the time of delivery. L. Grief & Bro. v. Seligman, 82 S.W. 533 (Tex.Civ.App.1904, no writ); Alexander v. Heidenheimer, 221 S.W. 942 (Tex.Com.App.1920, Op. adpt by Sup.Ct.); Nashville, C. & St. L. Ry. Co. v. Grayson County Nat. Bank, 100 Tex. 17, 93 S.W. 431 (1906); Luse v. Crispin Company, 344 S.W.2d 926 (Tex.Civ.App.1961, wr. ref’d n. r. e.); Silvers Box Corporation v. J. E. Stone & Co., 248 S.W. 1104 (Tex.Civ.App.1923, no writ).

Clarke & Courts does not question these general rules just noted, but claims the facts in evidence bring this case within an exception to the last stated rule. The brief points out that Clarke & Courts’ order for carpeting placed with Vickery & Company was for chattels not then in existence, and that such chattels were to be thereafter manufactured according to specifications contained in the order. Gammage v. Alexander, 14 Tex. 414 (1855) and Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393 are cited for the proposition that when a vendor sells goods of a specified kind and quality to be manufactured at a later date and agrees to ship the goods to the buyer when manufactured the vendee is not bound to accept the goods without examination and until they are accepted by the vendee as being in conformity with the purchase agreement the vendee acquires no title or property in them. It is not necessary under the record to determine the legal soundness of Clarke & Courts’ proposition, but if its soundness is conceded the facts here do not give relief. The company’s Galveston store manager testified positively that the shipment was rejected because it was damaged, and for no other reason. There is no evidence or implication that the carpeting was rejected because it failed to conform to dimensions, color, quantity or quality the contract specified. The evidence before the trial court supported finding that the title to the carpeting passed to Clarke & Courts when delivered to the carrier at Douglasville, Georgia. Under other points the appellant argues that the contract was violated and Clarke & Courts discharged from its obligation when the E. T. Barwick Mills, Inc., subcontracted manufacture of the carpeting to Lewis F. Pursley. Under the facts of the record the contention can not be sustained. Pursley was the alter ego of E. T. Barwick Mills, Inc. It is elementary that one who acts through another acts for himself. Wright v. Calhoun, 19 Tex. 412; Industrial Acceptance Corporation v. Corey, 19 S.W. 2d 365 (Tex.Civ.App.1929, affirmed Tex. Com.App., 29 S.W.2d 978, 1930); 2 Tex. Jur. Agency § 2, and 3 Am.Jur. Agency § 2. There was no provision in the contract between Clarke & Courts and Vickery & Company that prohibited E. T. Barwick Mills, Inc., from subcontracting the manufacture of the carpet. The carpeting delivered carried Barwick’s brand, quality, reputation as a national manufacturer, and prestige in the market place, largely intangible attributes that Clarke & Courts sought to obtain by purchasing Barwick carpeting from Vickery & Company.

The trial judge concluded that Clarke & Courts was entitled to recover from Central Freight Lines, Inc., only for the depreciation in value of the damaged pieces of carpet, and rendered judgment accordingly. Central Freight Lines asserts that even though the court found the carrier would not be liable for special damages, that the damages proven, except for slight general damages amounting to less than $15.00, are special in nature and the court erred in the amount of the money award made. Clarke & Courts did not plead an action for special damages. A close question is presented by the record. Special damages as the term is understood in the Texas practice are “injurious consequences that are not deemed as a matter of law to have been foreseen". See 17 Tex.Jur. Damages § 10, and cases listed in footnotes 1 and 2.

A common carrier receiving rolls of carpeting for shipment can foresee that damage to the rolls will reduce its usefulness and value whether the pieces be large, small, custom made for special use, or made for sale at retail. It is also obvious that the point of injury to the carpet in all cases has a considerable influence upon depreciation in value. If injury is at a point where the injured portion may be trimmed out and leave a useful remainder, or injury repaired, depreciation in value would necessarily be less than where the destroyed portion was not so fortunately located. A carrier could reasonably foresee the effect of injury to a parcel of carpeting changes with the nature and location of the damage. The evidence of the place and scope of the injury and its impact on value varied with the witness offering testimony. When recognition is given to the discretion a trial judge exercises in the resolution of the facts in a case such as this, this court is unable to say that the judge erred in concluding the damage was general in nature or in the amount of damages awarded Clarke & Courts. There was probative evidence supporting his conclusions.

The parties carefully briefed numerous points of error, Clarke & Courts 22 and Central Freight Lines 8, some raised questions the parties may regard as of more importance or merit than those discussed, all have been considered and the decision reached that reversible error is not shown; each point is overruled. The judgment of the trial court is affirmed.


author: LANGDON, Justice.

text:
    John W. LEE, Jr., Individually and as Independent Executor of Estate of John W. Lee, Sr., Deceased et al., Appellants, v. Lon LEE et al., Appellees.
    No. 16802.
    Court of Civil Appeals of Texas. Fort Worth.
    March 24, 1967.

    Rehearing Denied April 21, 1967.
    Fillmore & Fillmore, and H. W. Fillmore, Wichita Falls, for appellants.
    Paul Donald and Marvin F. London, Bowie, Ernest May, Fort Worth, for ap-pellees.
   OPINION

LANGDON, Justice.

This is a will contest. The testator, John W. Lee, Sr., died May 22, 1964, at the age of 90 years. His wife, Emma Lee, predeceased him, dying intestate in 1946. The contestants (appellees here) are Lon Lee and Gladys Barbee, joined by her husband, Winifred Barbee. Lon Lee and Gladys Barbee, children of the testator, each received a specific bequest of $10.00 under the terms of the will.

The proponents (appellants herein) are John W. Lee, Jr., Individually and as Independent Executor of the Estate of J. W. Lee, Sr. and Winifred C. Lee, Ethel Lee Lambert, a feme sole, Roy Lee and Kenneth Lee, the remaining children of testator who were residuary beneficiaries under the will.

The will was a self-proving will. It was duly probated in the County Court of Montague County, Texas, in Cause No. 5467 on June 22, 1964. The executor qualified on that same date.

Thereafter, on June 29, 1964, contest .was filed by appellees in said County Court on the ground that the testator (a) lacked testamentary capacity; and (b) was unduly influenced. After trial to the County Court without the intervention of a jury, the County Court refused to set aside its former order probating the will.

On appeal to the District Court the trial was to a jury on the sole issue of testamentary capacity. The jury found that the testator “was of unsound mind.” The trial court overruled appellants’ motion for judgment notwithstanding the verdict which was predicated on: no evidence, insufficient evidence and as being so against the overwhelming weight and preponderance of the testimony as to be manifestly wrong.

Judgment was entered on the verdict on June 17, 1966. Motion for new trial filed by proponents based upon the same grounds was overruled. The appellants’ three points of error are consistent with the grounds above stated. We reverse and render.

For many years the testator, John W. Lee, Sr., owned and operated a store in Spanish Fort. He disposed of it and opened a grocery store in Nocona, Montague County, Texas, which he operated for a number of years before he sold it to his son, Winifred Lee, in 1956. After this date he continued to come to the store and sit around the office and visit with his friends until shortly before he died. Gladys Barbee, a daughter and one of the contestants, had lived in testator’s house caring for him and working in his store, both before and after her marriage particularly the period 1958-1959 until she and her husband were injured in an automobile collision in July, 1961. Thereafter, for a short time, testator lived with his daughter Mrs. Lambert and, after leaving Mrs. Lambert’s house, lived the rest of his life in the home of his son Winifred.

Several days before October 2, 1961, the date of the execution of the will, Mr. John W. Lee, Sr., entered the office of Mr. Earl Fitts, attorney in Nocona, Texas. Mr. Fitts, lifelong resident of Montague County, and member of that county’s bar since 1933 had known Mr. Lee for a period of 15 years or perhaps longer, and had done legal work for him in the past including income tax reports, preparation of deeds and collection of accounts. At the time of his visit Mr. Lee requested Mr. Fitts to draw a will for him. He explained how he wanted it drawn and what he wanted to do with his property. He discussed the nature and extent of his property and who he wanted to receive it. He named his children and requested Mr. Fitts to put them in his will as the beneficiaries. Fitts made notes as he talked with Mr. Lee. He prepared the will according to the information he obtained and, “like Mr. Lee told me he wanted it prepared." At the time Mr. Lee discussed the preparation of the will and again on the occasion he signed it he understood the nature of the transaction in which he was involved. He knew what he was doing, that he was making a will.

At the time Mr. Lee came to the office to discuss preparation of the will and when he reappeared to sign it he walked into the office alone and unassisted on each occasion. No one accompanied him either to or from the office on either occasion. No one drove him to the office or waited outside for him.

On October 2, 1961 when Mr. Lee returned to the office Mr. Fitts had completed preparation of the will in line with Mr. Lee’s previous instructions. The will was handed to Mr. Lee and he read it. Mr_ Fitts explained to him that it would be necessary to have two witnesses and a notary public in order to make it a self proved will. Mr. Lee then said, “Well,, you could be a witness, can’t you?” Mr. Fitts said he could. Mr. J. P. Janeway, a native of Montague County, a resident of Nocona since 1922, an employee of the-postoffice, and a person who had been acquainted with Mr. Lee since 1915, was observed standing across the street. He was. summoned to the office by Mr. Lee and Fitts. Janeway, at the request of Mr. Lee,, agreed to act as a witness.

Mr. Clifton C. Willard, an insurance-man with offices nearby, who had resided about 15 years in a residence just south of Nocona and had been acquainted with Mr. Lee for at least 10 or 15 years, was called in by Mr. Fitts to serve as notary public..

It is undisputed that Mr. Lee signed the will in two places in the presence of the two witnesses, Fitts and Janeway, and the notary public and that the two witnesses signed the will at the request of and in the presence of Mr. Lee and of one another and the notary public. All signatures were duly subscribed and acknowledged before the notary public whose signature and seal were affixed.

There is no question under this record hut that the will was prepared by Fitts at the sole request of Mr. Lee and in exact accordance with the latter’s instructions, and that it complied with all of the requisites of a self proved will.

The will contained the names of all of the testator’s children and the second page, beginning with Paragraph VII thereof reads as follows: “After expressing my love and affection for all of my children, my other relatives and friends, I still desire to demise my property and my estate as set out above.

“THIS I MAKE AND PUBLISH as my last will and testament, hereby signing and subscribing my name this the 2nd day of October A. D. 1961. /s/ John W. Lee Sr Testator.”
“THE STATE OF TEXAS ]
COUNTY OF MONTAGUE J

“Before me, the undersigned authority, on this day personally appeared John W. Lee Sr., and Earl C. Fitts and J. P. Jane-way known to me to be the testator and witnesses respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said John W. Lee Sr, the testator, declared to me and to the said witnesses in my presence, that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed for the purposes therein expressed; and the said witnesses, each on his oath stated to me, in the presence and hearing of said testator that said testator had declared to them that said instrument is his last will and testament, and that he executed the same as such and wanted each of them to sign it as a witness; And upon their oaths each witness stated further that they did sign the same as witnesses in the presence of said testator and at his request; And said testator was at such time more than twenty one (21) years of age and is of sound mind; And that each of the witnesses is now at least fourteen years of age. /s/ John W. Lee Sr Testator /s/ Earl C Fitts /s/ J. P. Janeway Witnesses.

“Subscribed and acknowledged before me by the said John W. Lee Sr, testator, and subscribed and sworn to before me, by the said Earl C. Fitts and J. P. Janeway witnesses, this the 2nd day of October A. D. 1961. /s/ C. C. Willard Notary Public, Montague County, Texas.”

“In order to secure probate of a will, the applicant must prove to the satisfaction of the court that the testator at the time of executing his will was of sound mind; competency will not be presumed. But where a prima facie case for probate of the instrument has been established, the contestant must prove his allegations of incompetency by a preponderance of the evidence.

“In an original suit to set aside a probated will on account of the maker’s lack of testamentary capacity, the burden rests on the plaintiff to establish the fact of incapacity. Inasmuch as it has been admitted to probate, the instrument in general will be presumed valid, and the contestant is under an obligation to introduce evidence sufficient to overcome this presumption.

“Where a will is self-proved in accordance with the applicable provisions of the code, testimony showing that the testator was of sound mind at the time the will was executed is not required of the proponent; the contestant must prove testamentary incapacity.” 61 Tex.Jur.2d 120, § 21, and authorities cited.

“The party having the burden of proving testamentary capacity or incapacity must establish the fact by a preponderance of the evidence. The right of a person to dispose of his property by will in whatever manner he sees fit is valuable, and probate will not be denied on the basis of evidence that creates only a suspicion or a surmise of mental incapacity; the evidence presented must be of material and substantial value.

“Testamentary capacity or incapacity may be proved by evidence of circumstances from which it may reasonably be inferred, but the circumstances relied on must be of a satisfactory and convincing character.” 61 Tex.Jur.2d 132, § 27.

In our opinion the evidence relied upon by the contestants, appellees herein, was not satisfactory and certainly not convincing in character. At most it could only create suspicion or surmise of incapacity at intermittent periods not associated with the period of time during which the testator executed his will.

“The issue of testamentary competency must be determined on the basis of the testator’s condition when the instrument in question was executed; that is, when it was signed and attested to. * * * ” 61 Tex. Jur. 123 § 23.

“The state of mind of a testator at the time of the execution of the will must be made the test of sanity, and the state of mind at other times can have no probative force, except as it may tend to show the state of mind of the testator at the time of execution of the will.” Navarro v. Garcia, 172 S.W. 723 (San Antonio Civ.App., 1915, no writ hist.)

On the trial of the case the two witnesses to the will, Fitts and Janeway, and the Notary Public, Willard, were called and each testified as to facts above related with reference to the execution of the will. Jane-way and Willard, who had known Mr. Lee for many years and had visited with him around town frequently in the year or so immediately preceding his signing of the will, stated that in their opinion he was of sound mind on the occasion they witnessed him sign his will. Mr. Willard added that, “I didn’t think anything else but he was sound.” Mr. Janeway discussed with Mr. Lee the purpose of his signature. In his frequent prior conversation with him Mr. Lee was at all times coherent. He had no hallucinations and did not talk about unreal things. He would “kid” and “tease” people. Mr. Fitts testified that in his opinion Mr. Lee was of sound mind at the time he came to his office and told him how he wanted his will drawn and on the occasion he returnéd and signed it. The testimony of these witnesses was unshaken. There is no other testimony in the record as to the testamentary capacity of Mr. Lee as of the date he first contacted Mr. Fitts and on the occasion several days later, October 2, 1961, when he returned and signed it in the presence of persons who had known him over a long period of years.

“The terms and provisions of a propounded instrument are admissible and of significant probative force on the issue of testamentary capacity.” 61 Tex.Jur.2d 137 § 31; and p. 121 § 22 and authorities cited. The will in question named all of testator’s children and with clarity designated the proportion of his property he desired each to have. See Bell v. Bell, 237 S.W.2d 688 (Amarillo Civ.App., 1951, no writ); Jowers v. Smith, 237 S.W.2d 805 (Amarillo Civ.App., 1950, no writ); Steinkamp v. Erwin, 249 S.W.2d 1012 (Galveston Civ.App., 1952, no writ).

The record reflects that the testator executed a power of attorney on February 16, 1960 at the office of Mr. Glenn Wilson, an attorney who had practiced in Nocona since 1937. He was acquainted with the testator and each of his children, all of whom appeared in his office, together with Waunzita Simpson, testator’s granddaughter (named as attorney in fact) when the instrument was drawn up and signed by all of them. By this instrument Waun-zita Simpson and the testator were to jointly sign all checks. Mr. Wilson testified that the testator climbed 24 steps and walked unassisted into his office on that date. The instrument was prepared to relieve the testator of business responsibility because he was advanced in years, not too well, and was forgetful. The granddaughter was empowered to handle the business along with the testator. This record contains no hint of incapacity on the part of the testator during the period immediately prior to, the date thereof, or the period immediately subsequent to the execution of this instrument.

Dr. J. W. Major, M.D., who has his own clinic and hospital in Nocona, Texas, testified in essence as follows: he had been consulted by the testator over a period of 9 years from 1955 until his death on May 22, 1964. He first treated the testator in 1955 for a broken arm. He treated him for the usual colds and gave him flu shots along. He saw him in October of 1959 and again two years later on October 30, 1961 for a bad cold. On the latter date he also treated him for arteriosclerosis, commonly known as hardening of the arteries. He was complaining of dizziness caused from a retarded flow of blood to the brain and which results in slowing down but not stopping a person’s ability to organize his thoughts. It affects memory for recent events while memory for distant events may be very clear. The disease is a very slow process which gradually increases in severity. It is difficult to draw a line as to when it begins to interfere with reason but it is not for a good while. The disease is classified with respect to its severity as follows: (1) It can be diagnosed for what it is; (2) it is beginning to bother the patient; (3) it is producing some definite symptoms; and (4) it is becoming disabling.

Dr. Major, as of October 30, 1961, placed the testator under the third classification because he complained of dizziness (a symptom of the disease) at that time. There is no evidence of other symptoms or that it had become disabling as of that time. Nor was there any evidence that his condition affected his capacity to make and execute his will.

Associated with his vertigo and dizziness, the testator may have had a very minimal or mild degree of senile psychosis which is due to old age, arteriosclerosis or a combination of the two. In its milder form it is intermittent. At times a person with this disease is perfectly rational and at other times they have spells of confusion. Some suffer from hallucinations and others do not. The senile psychosis did not affect Dr. Major’s treatment of the testator until sometime in 1963. Prior to then Dr. Major was of the opinion that over the major portion of the time about then (October 2, 1961 when he signed the will), the testator “was probably clear more of the time than he was not, and could probably run his business pretty well. That was my feeling.” The doctor also stated affirmatively, that in all likelihood, the testator understood the business in which he was engaged on October 2, 1961 while he was making his will and that he was able to know what he owned and to gather his thoughts.

Four additional witnesses called by the proponents of the will testified essentially as follows:

Verna Harvey, licensed vocational nurse (LVN). She had known the testator for 20 years. From the time he had the store in Nocona until 1962 she spoke to and had brief conversations with the testator almost every day while “trading”. This continued after he sold the store. He always spoke to and talked with her when he was in the store about the weather and different things, including people he knew and about her family. “He seemed like of sound mind,” to her.

Terrell Thomas Benton, age 83, of No-cona had known the testator from the time he opened the store in Nocona until he died. He put the “bottom” (floor) in the store when testator moved into it. The witness traded at the store. He saw the testator two or three times a week and often sat in the back of the store and talked with him for an hour or so. He was always able to talk and understand what was said to him. He described the testator as “just a dang good man”, jovial and, “it seemed to me like he had as much sense as anybody.” He saw the testator until less than a year before his death.

George Pults, age 71, had known the testator since he opened his store in Nocona and had seen him year in and year out about three or four times a week or more, from that time through 1962. When asked if the testator was, in his opinion, of sound mind, the witness stated, “Well, I couldn’t tell any difference in him.” Mr. Pults generally came in the back door and testator would usually be sitting back there at the desk and ask him how he was getting along and about the crops and stock. They discussed farming and stock in particular. Testator knew how many cattle he had and their condition. He had no difficulty in keeping on a subject. He never indulged in any fantasies.

Waunzita Simpson, granddaughter of the testator, testified that she was given the power of attorney in order that she could assist her grandfather in handling incoming rents and bills and in writing checks. Prior to this arrangement she stated that Lon Lee had written checks on the testator’s account and that the Barbees and Lon Lee had been collecting debts and rents off the testator’s property. She was of the opinion that her grandfather would have had the capacity to know and understand when unauthorized checks were given on his account and the capacity to tell the bank he did not want such checks paid. This witness assisted the testator in the management of his business with the approval of the entire family from February 16, 1960 until he died. In this connection she was around her grandfather; all the time and in her opinion he, “definitely was a person of sound mind.”

Mr. Lawrence Pemberton, who came to Montague county in 1893, had known and frequently seen the testator for many years, and thought he was a person of sound mind.

The contestants relied upon the testimony of seven witnesses, including C. R. (Charlie) Lee, age 78, a brother of the testator and Charlie W. Lee, grandson (son of Lon Lee) of the testator. These witnesses for the most part were of the opinion that the testator was of unsound mind. One of them qualified her answer by stating, “Well, I don’t believe that he was able to really know what he was doing all the time.” This witness looked after the testator almost daily for a period of time as a “baby sitter” until sometime in July of 1961. She stated that most of the time testator knew people who came to see him. He daydreamed a lot and talked about old times, about wagons and that sort of thing. She could not recall him talking about unreal things or fantasies. Another of them stated, “I am going to say he was of unsound mind, because his mind — well, he didn’t have the mind that he should have had. I know that.” He also stated that he would be safe in saying that the witness did not know him the last year of his life. Another of the witnesses stated that the testator told him, “This world is getting in such a mess that you can’t tell when a man is going to shoot you.” (We do not consider this a delusionary statement.) That on at least two occasions during gin season in 1959 the testator would drive to the gin in his car and start walking back without it. Another of the witnesses who “thought it (the estate) was getting in the wrong hands,” stated that on the occasion the testator was honored at Spanish Fort he might at times have acted like a person of sound mind but at times he thought not. This witness had no idea as to how many times or when he saw the testator in 1960 or 1961 and was unable or else unwilling to state when he last saw him before October 2,1961 or thereafter.

The testimony of the witnesses for the contestants additional to that above set out was summarized by the attorney for the contestants in his hypothetical question to Dr. Major as follows: “Now, if a patient has been seen sitting on a tank bank with a gun, (we find no reference to a gun in the record) and has been known to have told people that he was sitting there to watch for a headless woman, and has been known to tell people that a man was going to kill a woman and throw her in the tank, and a man who has been known to have been looking for a woman named Mary Johnson, who died many many years, 50 or 60 years before the time that he was inquiring about her, a man who could not recognize his children, could not recognize a nurse or an attendant who saw him each day and sat with him each afternoon, and once was told who she was and was unable to retain the name for very long periods, a man who saw television programs and imagined them to be real, and told people that they occurred on the streets of Nocona, that he saw Tom Lindsey, the Sheriff, hanging a man on the streets of Nocona, a man who could not remember whether he had eaten or not, and would argue that he had when he hadn’t, and when he hadn’t, he would argue that he had, a man who would forget where his car was and walk off without it, a man who would wander out into the streets and had to be watched and brought back in from off a busy street; if a man had all those symptoms, would you say that he is suffering from senile psychosis?”

To this question the Doctor answered “yes.” He then stated that the severity would depend on how often and how persistent he was in his delusions. He also stated that frequent napping or drowsiness was not specifically a symptom of either senile psychosis or hardening of the arteries.

The witnesses called by the contestants, like those of the proponents, had known the testator over a long period of years. Their testimony described a man approaching his 90th birthday, with the attendant loss of memory, waning health and the other problems of old age which require care and assistance on the part of others. Not one of these witnesses offered any testimony upon which an opinion could be based concerning the capacity of the testator as of the day and time he contacted his attorney or as to the date and time he executed his will.

The record contains only a few dates by which the testimony of witnesses may be dated. These dates are 1956, when testator sold his store; February 16, 1960, date of the power of attorney; July 1961, date of Barbee accident; October 2, 1961, date of the will and May 22, 1964, date of testator’s death. Much of the testimony relied upon by the contestants related to instances which occurred prior to 1958 and up to the year 1960, yet not a single person has raised any question as to the capacity of the testator to execute the power of attorney on February 16, 1960, nor as to the manner in which he handled his business with his granddaughter thereafter when his acquiescence was required in the issuance of all checks. Still more of the testimony of the contestants related to instances occurring about the time of and on the occasion of testator’s 90th birthday and instances which occurred during the last months of his life.

It was difficult for any of these witnesses to date any of the occurrences about which they testified and a great deal of their testimony was based upon hearsay, particularly the events involving the headless lady and her identity. Hearsay has no probative value when offered to prove the facts asserted by the various witnesses and upon which their opinions were based.

The evidence described the testator as one who was generally able to attend to his business although he was in bad health, forgetful, occasionally made mistakes, had misgivings about his business ability and was at times confused or subject to delusions of short duration.

There is no evidence in this record of probative value which with the inferences that may be drawn therefrom will support a finding that the testator was laboring under a delusion which affected the terms of his will. Lindley v. Lindley, 384 S.W. 2d 676 (Tex.Sup., 1964). Such delusions as the testator may have sustained from time to time were short lived and did not influence him to make a disposition of his property different from thM which he otherwise would have made. There was no testimony indicating that the testator was influenced by delusions in making the will he did. The mere fact that he may have temporarily entertained such delusions in the past would not affect the validity of the will.

In Safe-Deposit & Trust Co. of Baltimore v. Berry, 93 Md. 560, 49 A. 401, 408 (Maryland, Ct. of App., 1901) it is said: “There must be a basis shown for the formation of a rational conclusion which is not a mere conjecture, but is knowledge. Hence, if that basis is trivial or insufficient, or does not furnish, in the judgment of the court, an adequate ground to support such a conclusion as amounts to knowledge, the witness should not be permitted to express any conclusion at all. Facts must be stated so that it may be seen whether the conclusion deduced from them by the witness has any relation to, or can be fairly said to be dependent on, them.”

To the same effect see Reiche v. Williams, 183 S.W.2d 587 (San Antonio Civ.App., 1944) in which the court speaking through Judge Norvell stated:

“Although under certain conditions non-expert opinions as to the sanity or insanity of an individual are admissible in evidence, ‘a nonexpert witness may not testify as to the sanity or insanity of a person unless he accompanies his opinion with a recital of the facts upon which it is based. The reason for this is that, if the act, conduct or conversation detailed is of a trivial character, it will serve to characterize the opinion given by the witness. If, on the other hand, the circumstance is of an unusual, eccentric or extraordinary character, the witness’ opinion may be of great value to the jury in passing upon the issue.’ 24 Tex.Jur. 430, § 45. In other words, the opinion is no stronger than the facts or circumstances which support it. The statement of the opinion simply rounds out and completes an inference drawn from a certain set of facts. If a factual basis be missing, the opinion is worthless as evidence.”

In the Reiche case the court commented on the remoteness of the evidence of appellant as contrasted to the testimony of the appellees which was directly applicable to the time of the execution of the will. The same situation prevails in the case at bar in which the two witnesses and the notary public, who were present when the will was executed, testified as to the capacity of the testator as of that time and were the only witnesses who did so. In Von De Veld v. Judy, 143 Mo. 348, 44 S.W. 1117, it is stated that: “ ‘The strongest and best proof that can arise as to a lucid interval is that which arises from the act itself of making the will. * * The Supreme Court in Reiche v. Williams, 143 Tex. 365, 185 S.W.2d 420 (1945), disagreed that the will in that case was established as a matter of law. It did not otherwise overrule the language above quoted from the opinion of the Court of Civil Appeals.

“Laymen, as well as expert witnesses, may give their opinion as to the soundness of mind of a testator. This testimony must be preceded, however, by evidence showing adequate knowledge and observation of the decedent by the witness, and opinions based on hearsay are inadmissible.
“The opinion of a witness, expert or non-expert, must be limited to the issue of whether the mental state of the decedent was such that he was able to appreciate the consequences of the testamentary act, since his competency or capacity in general is a legal conclusion to be determined by the trier of facts.
“A nonexpert witness must give in detail the relevant facts on which his opinion is based, if he has testified that the testator was mentally unsound when the will was made, but not otherwise. * * * ” 61 Tex. Jur.2d 126, § 25.
“ * * * A person need not be of a high order of intelligence to dispose of his property by will. The tests regarding competency to contract are not applied in determining the question of testamentary capacity, and less mental capacity is required generally to enable a person to make a will than to make a contract. Nevertheless, if it appears that a decedent was incapable of giving consideration to the relevant facts regarding his property and his beneficiaries, the propounded instrument will be denied admission to probate.” 61 Tex.Jur.2d 118, § 20.
* * * Evidence of delusions is probative on the issue of a testator’s soundness of mind under statutory requirements. But delusions are not a ground of attack against the probate of a will, except as they indicate a lack of testamentary capacity. Consequently, delusions suffered by a testator at the time of the execution of his will do not invalidate it if they were unrelated to his property and to the natural objects of his bounty. A will must be rejected, however, if the maker is shown to have been prevented from making an accurate appraisal of his natural obligations as a result of delusions.” 61 Tex.Jur.2d 136, § 30. See also 61 Tex.Jur.2d 141, § 34 and cases cited.
“There are no limitations on the right of a person of sound mind to make whatever testamentary disposition of his property he wishes. This right is not subject to the decision of any tribunal, and a testator may give his property by will to whomever he desires, regardless of natural ties, so long as he does not violate any statutory or constitutional rights of his spouse or of those claiming under him. Accordingly, if he wishes to do it, a testator may disinherit his children by the provisions of his will, regardless of the generally accepted view that the natural impulse of a normal man is to bestow his final benefactions on the persons and in the order pointed out in the statutes of descent and distribution.” 61 Tex.Jur.2d 114, § 17.
“The evidence is utterly insufficient to destroy the prima facie case made by appellant, and to establish the insanity of the testatrix at the time the will was executed. The testimony of the witnesses who were present when the will was executed was to the effect that the testatrix was perfectly sane at the time she executed the will, and that she was fully apprised of its contents. No delusions which could have affected testatrix and have induced the execution of the will were shown by the contestants. The testimony of the contestants was of such an indefinite character that, even when taken with the suspicious circumstances that the will was drawn by the husband of the beneficiary and that she was not related by blood or marriage to the testatrix, did not justify the verdict.” Navarro v. Garcia, 172 S.W. 723 (Texarkana Civ.App., 1914, no writ). See also Vance v. Upson, 66 Tex. 476, 1 S.W. 179.

The opinion in Specia v. Specia, 292 S. W.2d 818 (San Antonio Civ.App., 1956, Ref. n. r. e.), by Justice Pope stated: “The time of the occurrences testified about is of importance. The record shows overwhelmingly, by witnesses and documents, that testator was competent on May 9, 1944. The evidence of incompetency loses its strength when we examine it against the standard of the definition as stated in the court’s charge.

“A considerable number of will cases leads us to the conclusion that courts have manifested no hesitancy to reverse a case even where stronger proof of incompetency is present. In re Boultinghouse’s Estate, Tex.Civ.App., 267 S.W.2d 614; Bell v. Bell, Tex.Civ.App., 248 S.W.2d 978; * * *»

In Price v. Johnston, 352 S.W.2d 864 (San Antonio Civ.App., 1961, Dism.), Judge Pope wrote: “The evidence shows that the testatrix, of her own free will, went to the office of the attorney who had counseled her and her husband, then deceased, for more than twenty years. She discussed her property and her will at length, with the attorney, and later returned to execute the formal will. By her will, testatrix left one-half of her property to contestant in trust, and the other half to contestees in trust. These transactions were without the knowledge of any of the beneficiaries. Her testamentary capacity was proved by the unshaken testimony of five witnesses. Contestants have done no more than prove that the testatrix was old and sick. These bare facts defeat neither the testatrix’s capacity nor her freedom to act.” See Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup., 1965) as to proper questions concerning testamentary capacity and 36 T.L.R. 1 — ’“Testamentary Capacity: Evi-dentiary Aspects.”

In Green v. Dickson, 208 S.W.2d 119, 124 (Galveston Civ.App., 1948, Ref. n. r. e.). “A testator may be old and infirm, weakened in energy and impaired in his senses, but, if he responds to the test which is applied to human beings in the ordinary affairs of life, the disposition of his property will be respected. ‘It is not for juries nor courts to say how property should be passed by will. They can do no more than see that the testator’s mentality meets the law’s tests.’ Whitney v. Murrie, Tex.Civ. App., 264 S.W. 270, 274.”

In the case of McCannon v. McCannon, Tex.Civ.App., 2 S.W.2d 942, (1927, Dism.) Justice Lane, in speaking for the Galveston Court of Civil Appeals stated: “It must be kept in mind that the issue is, not whether the testator was, at the time of executing the will, of ‘sound mind,’ as that term is generally understood in its broadest sense, but whether or not he was capable at such time of understanding that he was making his will, the nature and extent of his property, the objects of his bounty, and the disposition he was making of his property. Imperfect memory, caused by sickness or old age, forgetfulness of the names of persons a testator has known, idle questions or statements, or requiring a repetition of information, will not be sufficient to establish incompetency, if he has sufficient intelligence remaining to understand the act he was performing, the property he possessed, the disposition he was making thereof, and the persons or objects of his bounty * *

We think it plain from the record in this case that the finding of the jury is unwarranted in that there is no evidence in support of it and that a finding to the contrary conclusively appeared from the evidence. Therefore the judgment will be reversed and judgment admitting the will to probate will be rendered here. If, contrary to what we have held, there is some evidence in support of the finding we then would hold that the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Reversed and rendered.