author: GRISSOM, Chief Justice. WALTER, Justice

text:
    Winnie Slaughter ROGERS et al., Appellants, v. Paul HICKIE et al., Appellees.
    No. 3839.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1964.
    Rehearing Denied March 13, 1964.

      Tilley, Hyder & Law, Ft. Worth, for appellant.
    J. Arthur Sandlin, Asst. Atty. Gen., Austin, for appellee.
   GRISSOM, Chief Justice.

This is a suit to construe an holographic will.

In a trial to the court, it was held that real estate and bonds of the testatrix which were not specifically disposed of in her will had been devised and bequeathed to a bank in trust for local charities, and that the will disposed of her entire estate. The testatrix’ heirs at law have appealed.

Mrs. Frey, in July, 1958, at the age of 83, executed a will and, in October, 1958, a codicil thereto, as follows:

“I, Birdie Hartsough Frey, of the City of Stephenville, County of Erath, State of Texas, being of sound and disposing mind, memory and discretion, do hereby make and publish this, my last will and testament, hereby revoking and making void any provisions made at any time heretofore.

I desire that all my just debts be paid as soon as it conveniently may be after my demise. (At this date I owe no one.) I desire that my funeral expenses may not exceed, four hundred dollars, if possible.

Item 1 — I give and bequeath the following legacies to the several persons hereafter named, to my nieces and nephew first—

Item 2 — To my niece Winnie Slaughter Rogers of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 3 — To my niece Elizabeth Slaughter Watson, Austin, Texas, or her heirs the sum of Seven Thousand ($7,000.00) dollars.

Item 4 — To my niece Mary Jo Slaughter Townsend of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 5 — To my nephew Solomon Robert Slaughter of Texas City, Texas, or his heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 6 — To my beloved niece Isabella Hartsough Guffey, 301 Elm Cove, Abilene, Texas, the sum of Seven Thousand ($7,000.-00) dollars. If she is not living at the time of my demise, I wish this sum to go to her husband, Theron Guffey, my friend, every ones friend. If he is not living, I want this sum to go to the Salvation Army, Dallas, Texas.

Item 7 — I give, devise and bequeath to my beloved daughter Naoma Frey Hickie, all of my Oil, Gas or other mineral rights of what ever nature and wheresoever situated — all interests, royalties or dividends accruing therefrom, forever.

Item 8 — -My stock in the Farmers First National Bank of Stephenville, Texas: (At this date consists of 95 shares) — I desire that these shares be held in trust by the Trust Department of the Fort Worth National Bank, Fort Worth, Texas, and that all profits accruing therefrom shall be used each year, as follows—

First $25.00 per month to be paid to a competent man for the proper care of my burial plots, situated in the East Memorial Cemetery of Stephenville, Texas — The W. H. Frey and Hartsough lots — The Capt. John A. Frey, Sr’s family plots — My plot adjoining the W. H. Frey plot to the East, two spaces of which I have given to Mr. and Mrs. D. G. Hunnewell and the remaining spaces to Paul and Naoma Hickie.

Item 9 — The remaining income from Bank Stock may be set up as a Birdie Hartsough Frey Memorial Fund (Because Naoma wanted it so identified) and from this fund I desire that the following donations be made yearly to the Bethel C. M. E. (Colored Methodist) Church of Stephenville, Texas, and the St. John Baptist Church (Colored) of Stephenville $150.00 on Easter Sunday, each year.

Item 9 — The remainder from the income to be used to assist worthy local charities, this fund to be contributed at the discretion of the Board of Directors of the Farmers First National Bank of Stephenville, Texas.

Important, I desire that Paul and Naoma Hickie shall act as administrators of my Estate, without Bond, and that a reasonable percentage of the estate be used to reward them for their labor. If cash in the Bank is insufficient to pay the legacies to my nieces and nephew, I desire Government Bonds be sold and that these legacies he paid without any delay.

Extra Important — any beneficiary, contesting any part of this will, shall forfeit all benefits at once.

I desire that Leona Gray Harris receive my piano, her residence Ozona, Texas. My other belongings, dishes, crystal ware,, silver, brie a brae to be distributed by Naoma Frey Hickie, Isabella Guffey, Elizabeth Watson — the surplus to be sold and the money added to Charity Fund.

Written this the 17th day of July, 1958.

Birdie Hartsough Frey

Witness — Jack Henderson

Witness — Mrs. Jack Henderson

Witness — Miss Mary Jones.

All of this Roger’s Silver Ware was presented to me by The Simon’s Hardware Co. of St. Louis, Missouri, while we were attending the World’s Fair in that City 1903.

Mr. Frey was in the China and Hardware business at that time and was a good customer of their.

At my death either sell it — or give it some worthy person.

All of my relatives from top to bottom own Sterling and lots of it.

Birdie H. Frey

October 7th, 1958.”

Appellants contend the court erred in holding that said will disposed of the entire estate. We sustain that contention. Among Mrs. Frey’s properties not expressly disposed of in her will were two houses and six lots and $30,000.00 worth of United States bonds. The testatrix, in the first six “items” of her will, after providing for payment of her debts and funeral expenses, made bequests “first” to her nieces and a nephew, her nearest relatives, to whom she was “quite close.” By Item 7, she devised all her minerals to Mrs. Hickie, formerly the wife of a deceased son to whom she referred to as her “daughter.” No children or grandchildren survived Mrs. Frey. By Item 8, Mrs. Frey expressly and in detail provided that her stock in the Stephenville bank should be held in trust and that from the income thereof $300.00 per year should be used for the upkeep of cemetery lots and $300.00 per year should be donated to two local churches and that the remainder of the income from said stock should be used to assist other local charities. This annual remainder of income from her bank stock to be used to assist other local charities amounted to approximately $2,250.00. She then provided for the administration of her estate, directed that the legacies to her nieces and nephew be paid without delay and that, if necessary, some of her bonds should be sold to pay their legacies. Then came the paragraph which is the cause of this suit. It was not even given a number. Therein, she gave her piano to Mrs. Harris. She then stated that her “other belongings, dishes, crystal ware, silver, bric-a-brac” should be “distributed” by her “daughter”, Mrs. Hickie, her “beloved” niece, Mrs. Guffey, and her niece, Mrs. Watson, and that any surplus thereof should be sold and the proceeds added to the charity fund.

It is appellees’ contention, sustained by the court, that by the last part of the last sentence of said last, brief, unnumbered paragraph, Mrs. Frey devised and bequeathed all of her property not therein previously specifically devised or bequeathed to the Fort Worth bank in trust for the benefit of local charities. The chief property of the testatrix which was held to be thereby impliedly so devised and bequeathed in trust for local charities consists of two houses and six lots, having a value of approximately $15,000.00, and $30,000.00 worth of United States bonds, one-third of the value of her estate. (Apparently, also incidentally included would be about $500.00 worth of stock in Texas Power and Light Company and some cash in the bank.) The household goods were inventoried in 1961 at $500.00.

We agree with appellants that the paragraph giving Mrs. Harris her piano and stating that her other belongings, dishes, crystal ware, silver and bric-a-brac, should be distributed by said persons and any surplus sold and the proceeds added to the charity fund, cannot reasonably be interpreted to include said real estate and bonds. It is unreasonable to conclude that the testatrix would set out in detail the bequests to her nieces and nephew, whom she expressly wanted to “first” provide for; that she would plainly and in detail devise all of her minerals to Mrs. Hickie; would specifically and in great detail bequeath her bank stock in trust for local charities, provided for specific contributions from the income therefrom, provide specifically that the remainder of the income from the bank stock, about $2,250.00 annually, should be used to assist local charities selected by the Stephenville batik, and then, mixed-in with household effects of the value of about $500.00, consisting of dishes, crystal ware, silver and bric-a-brac, she would, in the same sentence, without mentioning bonds and real estate which constituted one-third of her estate, lump them off in the latter part of the last sentence of her will and add such a large sum to the charity fund, already specifically and in detail provided for. It is evident that such incidental provision for the sale of property, at the discretion of the distributors, and addition to the charity fund, meant the sale of articles such as those specifically named which might not be wanted by members of the family when they were distributed by Mrs. Hickie and the named two nieces.

Mrs. Frey evidently knew and appreciated the value of money. Her automobile at the time of her death in 1961, was a 1935 Chevrolet. She wanted a $400.00 funeral. She owed no one. If some small household item existed which no relative wanted, the three distributors could, if they so desired, sell it and the pittance thus obtained be added to the charity fund. We think that if this conclusion were not otherwise required it would be compelled by testatrix’ language in her codicil. She was evidently thinking of the same things that she had mentioned in the paragraph in dispute when she, three months later, wrote her codicil. She told the history of her silverware, which had already been included in said important paragraph of her will, and told the same three persons to “either sell it or give it to some worthy person”, at their discretion. She then said why her silverware was not to be distributed among her relatives, along with her “other belongings”, as she had directed in the last paragraph of her will, that is, because all her relatives had a lot of silverware and wouldn’t want it. Therefore, either give it to some worthy person outside the family, or sell it. She did not even bother to add in the codicil that the small amount so obtained, if said distributors decided to sell the silverware, should be added to the charity fund. She did not mention the trustee bank, by name or otherwise, in either said last paragraph or codicil. Yet, if appellees’ contention is correct, by the last sentence of the last, unnumbered, paragraph of her will she added more than $45,000.00, one-third of her estate, to that already specifically and in great detail bequeathed to the Fort Worth bank in trust for the benefit of local charities. Local charities already had $2,500.00 coming to them annually. She had already used three paragraphs of her will to make it clear what she was placing in trust for the benefit of local charities. She emphasized in the codicil what she had already said in the paragraph of her will in dispute. That the named three ladies should dispose of those trivial items as they thought best. She did not bequeath the dishes, crystal ware, silver and bric-a-brac to anybody, neither did she in her codicil bequeath the silverware to anyone. She was evidently saying to her “daughter”, Mrs. Hickie, her “beloved” niece, Mrs. Guffey, and to her niece, Mrs. Watson, that they could distribute it as they saw fit and, if there were some thing no relative wanted, they could sell it and add that trifle to the charity fund. It was discretionary with the distributors. In the codicil she said that all of her relatives had lots of sterling and, therefore, they would not want it, so said distributors could at their discretion, either sell it or give it to some worthy person outside the family, simply because the relatives didn’t need it. This was a repetition of the same idea expressed in the disputed paragraph. Of the household effects, what the relatives don’t want, sell and give the trifle to charity.

Mrs. Frey was very charitable, but she was justly proud of her charity. If she had intended to add more than $45,000.00 to the gift to local charities she would have proudly so announced. That pride was evident in the three paragraphs where, in greater detail than anywhere else in the will, she left her bank stock in trust for the benefit of local charities, most of which were to be selected by the Stephen-ville bank. It would be contrary to human nature for her to lump off in the last part of a sentence dealing with trivial household effects, United States bonds and real estate which constituted one-third of her estate, without mentioning them as the very valuable real estate and bonds she was, with pride, giving to local charities. Would she have specifically mentioned a few dollars worth of dishes, and the like, and not mention $45,000.00 worth of bonds and real estate? She was giving income from her property to local charities. She made no provision for investment of the large amount the sale of such things would bring for the benefit of local charities. If she had intended for them to go to local charities, it is more probable she would have considered that the income from United States bonds, real estate and electric light stock would be ideal for such a trust, and she would not have ordered them sold. She certainly did not intend for excess cash in the bank to be sold.

It is evident that, despite her charitable inclination, her first desire was to take care of her nearest relatives. She said so. In Item 1 she bequeathed certain legacies to her nieces and nephew “first.” Following item 9 she provided that if the cash in the bank was insufficient to pay the legacies to her nieces and nephew, some bonds should be sold and those legacies “paid without any delay.” Three persons very close to her, Mrs. Hickie, her “daughter”, Mrs. Guffey, her “beloved” niece, and her niece, Mrs. Watson, were told to “distribute” her household effects. She told them to either sell the sterling silver or give it to some worthy person outside the family because her relatives had plenty of it. She didn’t even give the items specifically named in the important paragraph in connection with her “other belongings” to anyone. She was satisfied that they would be properly “distributed” by the persons named. It would be more reasonable than appellees’ contention to say that Mrs. Frey directed that all her “other belongings,” those not specifically disposed of, were to be “distributed” by the three persons named.

We think the last paragraph of Mrs. Frey’s will was not, nor was it intended as, a general residuary clause. We think it is evident that the word “surplus” in the bric-a-brac sentence referred to things of the same kind or character as those named, and not to those of an entirely different kind, character and value. It is inconceivable that Mrs. Frey, who had so carefully listed the gifts to each beneficiary and to local charities would come down to the bric-a-brac sentence, mention dishes, crystal ware, silver and bric-a-brac, and, without even starting a new sentence, merely use the word “surplus” to dispose of her major properties, such as two houses, six lots and $30,000.00 worth of United States bonds. She would not jump from bric-a-brac to real estate and bonds in one sentence, without even mentioning real estate and bonds. She would not jump from household effects of less than $500.00 in value to bonds and real estate worth more than $45,000.00, and constituting one-third of her estate, without even mentioning bonds and real estate. The rule of ejusdem generis “is a rule of almost universal application.” Farmers’ and Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1123, 1124. Under that rule, where specific and particular enumerations of things are followed by general words, the general words are not to be construed in their widest extent but are to be treated as limited and applied only to things of the same kind and class as those mentioned. Stanford v. Butler, 142 Tex. 692, 181 S.W. 2d 269, 272. The rule has been applied in cases of this character. Ellis v. First National Bank of Dallas, Tex.Civ.App., 311 S.W.2d 916, (Ref. N.R.E.) ; Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268; Harris v. Strawbridge, Tex.Civ.App., 330 S.W.2d 911, (Ref. N.R.E.),

We recognize the presumption against partial intestacy, but that presumption does not authorize a court to make a new will, or to add to a testamentary disposition something which is not there. 95 C.J.S. Wills § 615, p. 831. “This presumption is but one of the factors to be considered in arriving at the intention of the testatrix as expressed in the will itself. It cannot be invoked to add to or to change the express language of a will. Kostroun v. Plsek, Tex.Com.App.1929, 15 S.W.2d 220.” Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 890. That presumption may be applied in construing a will “only where an intention to pass the whole estate is expressed in some form, and where the testator has failed to provide for the disposition of all of his property * * * the court cannot place a construction on the will not warranted by its language but the testator must be held to have died intestate as to such property.” 95 C.J.S. Wills § 615, p. 839. Mrs. Frey’s will did not, as is usual, contain a statement that she desired to dispose of all of her property while she was able to do so and an intention to pass the whole of her estate was not expressed. Mrs. Frey simply evidenced no intention, and made no attempt, to dispose of said real estate and bonds in her will. To guess that she so intended is to make a will for her. To further guess that she intended to add them to her specific, detailed gift to local charities violates the rule that her intention is to be deduced from the words she used. Since she did not dispose of them it is not material whether their omission was intentional or otherwise. In construing wills the courts must determine what a testator meant from the words used in his will “and may not redraft the will.” Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 889. See also Fain v. Fain, Tex.Civ.App., 335 S.W.2d 663, (Writ Ref.) ; Wolkewitz v. Wood, Tex.Civ.App., 216 S.W.2d 611; Engelke v. Schultze, Tex.Civ.App., 275 S.W.2d 158, (Writ Dis.); Salvation Army of Texas v. Ford, Tex.Civ.App., 256 S.W.2d 953.

We conclude that the will did not dispose of the entire estate. The judgment is reversed and judgment is rendered for appellants.

WALTER, Justice

(dissenting).

I respectfully dissent.

Paul Hickie and Naoma Hickie, individually and as executors of the estate of Birdie Hartsough Frey, deceased, filed this suit to construe her will.

Mrs. Frey died on July 1st, 1961, at the age of 86. Her holographic will, which she executed on July 17,1958, and codicil, which is dated October 7, 1958, are as follows:

“I, Birdie Hartsough Frey, of the City of Stephenville, County of Erath, State of Texas, being of sound and disposing mind, memory and discretion, do hereby make and publish this, my last will and testament, hereby revoking and making void any provisions made at any time heretofore. I desire that all my just debts be paid as soon as it conveniently may be after my demise. (At this date I owe no one.) I desire that my funeral expenses may not exceed, four hundred dollars, if possible.

Item 1 — I give and bequeath the following legacies to the several persons hereafter named, to my nieces and nephew first—

Item 2 — To my niece Winnie Slaughter Rogers of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 3 — To my niece Elizabeth Slaughter Watson, Austin, Texas, or her heirs the sum of Seven Thousand ($7,000.00) dollars.

Item 4 — To my niece Mary Jo Slaughter Townsend of Haines City, Florida, or her heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 5 — To my nephew Solomon Robert Slaughter of Texas City, Texas, or his heirs, the sum of Seven Thousand ($7,000.-00) dollars.

Item 6 — To my beloved niece Isabella Hart-sough Guffey, 301 • Elm Cove, Abilene, Texas, the sum of Seven Thousand ($7,-000.00) dollars. If she is not living at the time of my demise, I wish this sum to go to her husband, Theron Guffey, my friend, every ones friend. If he is not living, I want this sum to go to the Salvation Army, Dallas, Texas.

Item 7 — I give, devise and bequeath to my beloved daughter Naoma Frey Hickie, all of my Oil, Gas or other mineral rights of what ever nature, and wheresoever situated —all interests, royalties or dividends accruing therefrom, forever.

Item 8 — My stock in the Farmers First National Bank of Stephenville, Texas: (At this date consists of 95 shares) — I desire that these shares be held in trust by the Trust Department of the Fort Worth National Bank, Fort Worth, Texas, and that all profits accruing therefrom shall be used each year, as follows—

First $25.00 per month to be paid to a competent man for the proper care of my burial plots, situated in the East Memorial Cemetery of Stephenville, Texas — The W. H. Frey and Hartsough lots — The Capt. John A. Frey, Sr’s family plots — -My plot adjoining the W. H. Frey plot to the East, two spaces of which I have given to Mr. and Mrs. D. G. Hunnewell and the remaining spaces to Paul and Naoma Hickie.

Item 9 — The remaining income from Bank Stock may be set up as a Birdie Hartsough Frey Memorial Fund (Because Naoma wanted it so identified) and from this fund I desire that the following donations be made yearly to the Bethel C. M. E. (Colored Methodist) Church of Stephenville, Texas, and the St. John Baptist Church (Colored) of Stephenville $150.00 on Easter Sunday, each year.

Item 9 — The remainder from the income to be used to assist worthy local charities, this fund to be contributed at the discretion of the Board of Directors of the Farmers First National Bank of Stephenville, Texas.

Important, I desire that Paul and Naoma Hickie shall act as administrators of my Estate, without Bond, and that a reasonable percentage of the estate be used to reward them for their labor. If cash in the Bank is insufficient to pay the legacies to my nieces and nephew, I desire Government Bonds be sold and that these legacies he paid without any delay.

Extra Important — any beneficiary, contesting any part of this will, shall forfeit all benefits at once.

I desire that Leona Gray Harris receive my piano, her residence Ozona, Texas. My other belongings, dishes, crystal ware, silver, brie a brae to be distributed by Naoma Frey Hickie, Isabella Guffey, Elizabeth Watson — the surplus to be sold and the money added to Charity Fund.

Written this the 17th day of July, 1958

Birdie Hartsough Frey

Witness — Jack Henderson

Witness — Mrs. Jack Henderson

Witness — Miss Mary Jones

All of this Roger’s Silver Ware was presented to me by The Simon’s Hardware Ca. of St. Louis, Missouri, while we were attending the World’s Fair in that City 1903.

Mr. Frey was in the China and Hardware business at that time and was a good customer of their.

At my death either sell it — or give it some worthy person.

All of my relatives from top to bottom own Sterling and lots of it.

Birdie H. Frey

October 7th, 1958.”

The executors called upon the court to answer the following question: “Are the Executors directed to sell all of the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds, after all expenses, to the Fort Worth National Bank of Fort Worth, Texas, as trustee, said proceeds to become a part of said trust-fund?” The court answered the question in the judgment as follows: “Said will directs the executors to sell all of the residue of the estate of Birdie Hartsough Frey and deliver the net proceeds after all expenses, to the said Fort Worth National Bank, Fort Worth, Texas, as trustee, said proceeds to become a part of said charitable trust fund, and the court specifically finds and holds that the will and codicil of said testatrix disposed of her entire estate and that she did not die intestate as to any portion thereof.”

Mrs. Frey’s heirs at law have appealed on one point of error as follows: The trial court erred in holding that the will “considered as a whole and read ‘from its four corners’ ”, disposed of the entire estate of the Testatrix.

Some of the rules to be followed in construing a will are as follows: “It is competent to admit extrinsic evidence to explain the intent of the testator by showing his situation in his relation to persons and things around him or by proof of the surrounding circumstances in order that the will may be read in the light of the circumstances in which he was placed at the time of making it. McDow v. Lund, Tex.Civ.App., 250 S.W.2d 247, ref.; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Houston Bank & Trust Co. v. Lansdowne, Tex.Civ.App., 201 S.W.2d 834.” Conway v. Estes, Tex.Civ.App., 346 S.W.2d 374.

“We must consider the will as a whole and give effect to every part where possible. It is presumed that the testatrix disposed of her entire disposable estate and that she desired to avoid partial intestacy. Kos-troun v. Plsek, supra. Where a will is ambiguous or open to two constructions, that interpretation should be adopted which will prevent intestacy, since the fact that she made a will at all shows an inten. not to die intestate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 79 A.L.R. 1163; Kuchn v. Bremer, Tex.Civ.App., 132 S.W.2d 295. The force of the positive presumption against intestacy, otherwise stated, is that the one who insists upon the partial intestacy must be in a position to show that the will clearly intended that the testator should die intestate. Unless we are pointed to something which clearly expresses or necessarily implies intestacy, the presumption of testacy will prevail. Boone v. Stone, Tex.Civ.App., 142 S.W.2d 936; Ellet v. McCord, Tex.Civ.App., 41 S.W.2d 110; 44 Tex.Jur., Wills, § 148. This presumption is said to be particularly strong when the subject of the gift is the residuary estate. Note, 17 A.L.R.2d 654 — 5. Based on this presumption, we start off with the rule that the testatrix died testate until the contrary is demonstrated.” Urban v. Fossati, Tex.Civ.App., 266 S.W.2d 397, (Writ Ref. N.R.E.).

A fair summary of Mrs. Hickie’s testimony is as follows: She was first married to Earl Leofflin Frey, one of testatrix’ sons. He died in 1941. She is now married to Mr. Paul Hickie, Chairman of the Board of the Farmers First National Bank. She continued to have cordial relationship with Mrs. Frey. She and Mrs. Frey owned stock in the bank and owned a common interest in the business. Mrs. Frey’s other son died in 1933. She had no grandchildren, “and her lack of other children and no one in the town that was close to her made a moral responsibility for me to maintain a relation that was very pleasant for both of us.” Mrs. Frey had one brother, deceased, leaving one child, one of the appellants herein. She also had one sister, now deceased, leaving three daughters and one son, who are also appellants. Mrs. Frey only had an elementary school education. At the time she wrote her will she was apparently in good health. Mrs. Frey didn’t spend much “on herself but she gave enormously to charity.” She was a member of the Mormon Church. She donated money to all churches and faiths and to charities of all kinds.

The residue of Mrs. Frey’s estate consists of approximately $30,000.00 in United States bonds; two houses and four lots valued at $15,000.00 and two lots of undetermined value and a small amount of cash in the bank and some stock in Texas Power and Light Company. Appellants contend that Mrs. Frey simply forgot to dispose of the residue. It is difficult to believe that she forgot her bonds because in item 9 she provided: “If cash in the Bank is insufficient to pay the legacies to my nieces and nephew, I desire Government Bonds be sold and that these legacies be paid without any delay.” Item 7 indicates that she was also thinking about some of her real estate. Mrs. Frey demonstrated her affection for her nieces and nephew when she bequeathed to each of them an equal amount. Apparently this was the maximum of her estate which she intended for them to receive.

Appellants contend that the word “surplus” in the bric-a-brac sentence has reference to the things of the same kind and character under the doctrine of ejusdem generis. We agree that this portion of the will is susceptible to that construction. Under such a construction the word “surplus” would mean belongings such as dishes, crystal ware, silver and bric-a-brac. It would necessarily follow from such a construction that testatrix died intestate as to the residue of her estate.

In Rogers v. Nixon, Tex.Civ.App., 275 S.W.2d 197, at page 200 (Writ Ref.), the court said: “The second rule is that as it is presumed the testator desired to make a full disposition of his estate, a will should be construed to prevent partial intestacy, if such construction is reasonably compatible with the words employed by the testator. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147; 44 Tex.Jur. 707, Wills, § 148.” Would it be reasonably compatible with the words “ — the surplus to be sold and the money added to Charity Fund,” as used in the last clause of the will to construe them as meaning that the testatrix intended thereby for such words to constitute the residuary clause of her “last will and testament?” Of course, it is impossible for us to know exactly what the testatrix’ intentions were when she wrote these words. We can only say the words are subject to the construction placed upon them by the appellants, but they are, likewise, subject to the construction placed upon them by the trial court. That interpretation should be adapted which will prevent partial intestacy.

Appellants have failed to establish that partial intestacy was intended by Mrs. Frey “in her last will and testament.” Urban v. Fossati, 266 S.W.2d page 397, (Writ Ref. N.R.E.); Glover v. Glover, Tex.Civ.App., 331 S.W.2d 804.

I would affirm the judgment.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    W. J. RICHARDSON et ux., Appellants, v. Sherman D. RABY et ux., Appellees.
    No. 31.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 27, 1964.

      Chas. E. Rattan and Neal C. DeShazo, Dallas, for appellants.
    James J. Collins, Jr., Dallas, for appel-lees.
   DUNAGAN, Chief Justice.

This suit was instituted by appellants W. J. Richardson and wife Christine Richardson, against appellees, Sherman D. Raby and wife Lilla Mae Raby, for a deficiency arising by reason of alleged balance due after a foreclosure of a $20,000.00 note and deed of trust given by the appellees as part of the purchase price for the Flora Motel located at 2838 Fort Worth Avenue, Dallas, Texas.

The case was tried upon its merits before the court without the aid of a jury and resulted in judgment for appellees.

The appellants contend that this is an appeal from a summary judgment. The record in this case consists of the Transcript and Statement of Facts. No findings of fact and conclusions of law were requested by the trial court and none appear in the record. No motion for new trial was filed and none was required. The only judgment in the record is one disposing of the case on its merits which contains appellants’ notice of appeal. The appeal was perfected by appellants.

In appellants’ first, second, third and fifth assignments of error they complain of the court rendering judgment for defendants when the only issue before the court was a hearing on a motion for summary judgment; rendering judgment for defendants when controverted issues of fact were submitted in answer to the motion for summary judgment; in rendering judgment for defendants on controverted issues of fact without the intervention of a jury which had been called for by defendants and not waived by plaintiffs or defendants.

The Statement of Facts in this case reveals the following proceedings:

“THE COURT: Call vour first witness.
“MR. COLLINS: Your Honor, this is not a hearing on the plea in abatement, your Honor, this is a trial.
“THE COURT: This is a trial. Call your first witness.”

Mr. De Shazo, one of the attorneys for appellants, called as the first witness Mr. Charles E. Rattan, another attorney also-representing appellants on this trial. Mr. Rattan testified at length and the only other witness called to testify for appellants was W. J. Richardson who gave testimony in the case. The only witness called to testify by the appellees was Lilia Mae Raby. These three were the only witnesses who testified. After a full and complete trial the judge rendered judgment that appellants (plaintiffs) take nothing by their suit against the appellees (defendants). This judgment reads in part as follows:

“On this the 15th day of March, 1963, came on to be considered the matter of entering judgment in the above entitled and numbered cause of action wherein both parties appeared in person and by their attorneys and announced ready and submitted the matters in controversy as well of fact and as of law to the Court without the intervention of a jury, and the pleadings and the evidence and the arguments of counsel having been heard and fully understood * * * ft

Appellants appeared and announced ready and submitted the matters in controversy as of fact and as of law without the intervention of a jury. Further, the record is wholly devoid of a motion for continuance, a request for jury or any objection at all to the court proceeding with the trial of the case on its merits. The record before us does not reflect a demand for a jury for either party in this case or that a fee had been paid to secure one. The record does not support the first, second, third and fifth assignments of error in that it does not show any such action or ruling as that mentioned in the assignments. Assignments of error must be supported by the record, and, if not, that alone requires them to be overruled. Western Union Life Company of Houston, et al v. Ensminger, Tex.Civ.App., 103 S.W.2d 162; Johnson v. Sabine & E. T. Ry. Co., 69 Tex. 641, 7 S. W. 379; Foust v. Jones, Tex.Civ.App., 90 S.W.2d 665.

Even though we may assume that a timely request for a jury was made in compliance with Rules 216 and 217, Texas Rules of Civil Procedure, appellants came into court and entered upon a hearing before the court without objection and called upon the court to decide any and all issues of fact. After the court ruled adversely to their position, appellants will not be heard to complain that they were entitled to have a jury to decide the fact questions rather than the court. Appellants had a choice between submitting their fact questions to the court or a jury as the trier of the facts, but their right to a jury could be waived if they chose that course, which we think they did by entering upon the hearing without complaint. Hernandez v. Light Pub. Co., et al, Tex.Civ.App., 245 S.W.2d 553; Trinity Construction Company, Inc. v. Franklin, Tex.Civ.App., 323 S.W.2d 668; Roberts, et vir v. Jolly, Tex.Civ.App., 282 S.W.2d 436.

Appellants’ assignments of error one, two, three and five are overruled.

Appellants, by the way of assignment of error Number four, next contend the court erred in rendering judgment for defendant Lilla Mae Raby Murray without sufficient evidence, and rendering judgment for Sherman D. Raby without any evidence to support the judgment.

Appellees in their first amended original answer filed on May 24, 1962, plead fraud and misrepresentations on the part of appellants in that appellant falsely represented to appellees that the gross monthly rental income from such motel was and would be in the amount of $3,000.00 per month; that the utility bills amounted to only $96.00 or $100.00 per month; that the telephone rental charges were $40.00 per month, when in fact the gross monthly rental income from such property was far less than $3,000.00 per month; that the utility bills were grossly in excess of such sums represented; that the telephone rental charges amounted to approximately $90.00 per month. They further allege that appellees relied upon the aforesaid false misrepresentations, believing them to be true, and were thereby induced to execute said note and deed of trust which they would not have otherwise done.

During the time this suit was pending in the trial court and before it proceeded to trial and judgment, Mrs. Raby divorced her husband, Sherman D. Raby, and had married a man by the name of Murray and her third amended original answer was filed under the name of Lilla Mae Murray.

Appellee Lilla Mae Raby Murray, on February 21, 1963, filed her third amended original answer and alleged that at the time of the signing of the note forming the basis of this suit she was the wife of ap-pellee Sherman D. Raby, and at the time this suit was instituted she was the wife of the said Sherman D. Raby; that she divorced Raby on or about May 1, 1962; that the debt in question was a community debt created during marriage to be paid for out of community funds; that at the time the appellee Lilla Mae Raby Murray, formerly Lilla Mae Raby, executed the promissory note and deed of trust in question her disabilities of coverture had not been removed by any court of competent jurisdiction, and that the said promissory note and deed of trust were not executed for the purpose of securing' necessities to be furnished her and/or her minor child, nor were they executed for the purpose of protecting', managing, controlling or disposing of her separate property and estate, nor were they necessary for this purpose, and at the time she executed the said instrument (note) she did not have the legal capacity to bind herself personally liable for the debt created by the said instruments; that she cannot be legally held personally liable for a debt created under these conditions.

In paragraph 4 of said answer she pleads material misrepresentation of facts so as to constitute fraud and misrepresentation on the part of the appellants; that the plaintiff grossly exaggerated the income to be derived from the property involved herein and grossly minimized the operating expenses necessary to operate the said property in question; that the plaintiff made these material misrepresentations for the sole purpose of inducing the defendant to execute the note and deed of trust in question; that said misrepresentations were wilfully and intentionally made for the purpose of defrauding her, and that by reason of such fraud and misrepresentations perpetrated upon her by the appellants the said note should be set aside and declared for naught since the same is void.

Appellee Lilla Mae Raby Murray testified at length in the trial of this case covering every defense pleaded in her third amended original answer and we think it fully supports her plea of disabilities of coverture and every element of fraudulent representations; also we think her testimony is sufficient to raise an issue on each of her defensive pleas. The court, the trier of the facts, resolved these issues in her favor.

As heretofore stated, there is a Statement of Facts in the record, but there are no findings of fact or conclusions of law in the Transcript. To warrant a reversal' of the judgment on this character of record, the appellant must show from the record that under no theory to be gathered therefrom was the trial court authorized to render the judgment; and it is the duty of this court to affirm the judgment if the evidence supports it upon any theory of the case. Shoop v. Shoop, et al, Tex.Civ.App., 114 S.W.2d 373.

Judgment having been rendered by the trial court in favor of appellee, Lilia Mae Raby Murray, the evidence will be considered in the light most favorable to her; and, there being no findings of fact and conclusions of law, the judgment will be affirmed on any theory having support in the pleadings and the evidence. Athans, et al v. Rossi, Tex.Civ.App., 240 S.W.2d 492.

We think the evidence is sufficient to support the judgment for appellee, Lilla Mae Raby Murray.

In a case tried before a court without a jury, the court sits as a trier of th'e facts as well as the law and stands in the same relation to the factual aspect of the case as does a jury when one is had. He is the judge of the credibility of witnesses and the weight to be given their testimony, and his findings are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. And where there is some evidence of a substantial and probative character to support the trial court’s findings and judgment, they are controlling upon a reviewing court and will not be disturbed even though the appellate court might have reached a different conclusion therefrom. Taylor v. Stanford, Tex.Civ.App., 229 S.W.2d 427; Republic Casualty Co. v. Obregon, et al, Tex.Civ.App., 290 S.W.2d 267; Lane v. Brown, Tex.Civ.App., 312 S.W.2d 735; Alamo Motor Lines v. Moreland, Tex.Civ.App., 269 S.W.2d 858.

Turning now to the assignment of no evidence to support the judgment in behalf of appellee Sherman D. Raby.

The Texas Supreme Court in Pridham v. Weddington, et al, 74 Tex. 354, 12 S.W. 49, in discussing appellant’s assignment of error that the court erred in permitting the appellee Weddington to state, over the objections of the appellant, that he would not have purchased the stock had not the representations been made to him, because such statement was a conclusion, and permitted the appellee to decide one of the most important issues in the case. The court said:

“We do not think the statement a mere conclusion, but rather the terse statement of a fact, which was peculiarly within the knowledge of the witness. What particular influence acts upon the mind of an individual to induce him to perform a particular act is known to him alone until disclosed by his declarations and conduct. If there has been no such disclosure, then not only the best evidence, but the only source of information on the subject, is the testimony of the party himself. * * * ”

Sherman D. Raby did not testify or appear at the trial of this cause, nor was he represented by counsel, his attorney having withdrawn prior thereto. Neither is there a brief in his behalf on file with this court.

There is not any testimony that Sherman D. Raby, by such alleged false statements of appellants, was induced to sign the note or deed of trust, or that he relied upon such statements. The evidence does not disclose any declarations or conduct on the part of Sherman D. Raby in regard thereto. Since proof of these essential elements of actual fraud are lacking, we agree with appellants’ contention that there is not any evidence to support the judgment of the trial court for Sherman D. Raby.

Appellants, in their original petition, prayed for judgment against defendants and each of them for the sum of $10,000.00, together with interest to date of said judgment at the rate shown in said note, and attorney’s fees and trustee’s fees as is called for in said note and deed of trust. The note provides that in the event of default and it is placed in the hands of an attorney for collection or collected by suit or through probate or bankruptcy proceedings, the makers agree to pay reasonable attorney’s fees.

The deed of trust provides that out of the money arising from the sale the trustees shall pay first all charges, costs and expense of executing this trust, including a fee of 5% to the trustee on the total of the indebtedness secured by the deed of trust.

This is not a suit for foreclosure of lien under the terms of the deed of trust. The deed of trust lien given by appellees to secure payment of note was foreclosed and the real estate described therein was sold by the trustee under the terms of the deed of trust on March 1, 1960, for a total consideration of $10,000.00. The proceeds from the sale were deducted from the said $20,000.00 principal, leaving a balance of principal of $10,000.00 due and owing to appellants with interest thereon and reasonable attorney’s fees as provided in the note. This suit was instituted on November 4, 1960, for the sum of $10,000.00 representing the unpaid balance on the principle of the note.

In view of the provision in the deed of trust expressly providing a method for collecting trustee’s fee, we hold that appellants were confined to that method in collecting the trustee’s fee and must look to the proceeds of the sale of the property for the trustee’s fee and cannot recover such fee in this lawsuit.

For the reasons herein stated, the judgment of the trial court is affirmed as to ap-pellee Lilla Mae Murray, and is reversed and judgment is here rendered for appellants against appellee Sherman D. Raby for the principal sum of $10,000.00, the amount of the note, together with 6% interest thereon from April 16, 1963.

Under the record presented appellants pleaded recovery of a reasonable attorney’s fee and are likewise entitled to recover such as provided for on the face of the note collectible in case of default in payment thereof from appellee Sherman D. Raby only. However, although the evidence reveals that appellee Sherman D. Raby contracted to pay a reasonable attorney’s fee, the record does not reflect proof showing what constituted reasonable attorney’s fee for appellants, for which reason that part of the alleged cause of action must be remanded to the trial court with instructions to hear evidence on the issue of reasonable attorney’s fee for appellants and render judgment accordingly. McPherson, et al v. Keeling, et al, Tex.Civ.App., 280 S.W.2d 948; Herrin Transportation Co. v. Robert E. Olson Co., et al, Tex.Civ.App., 325 S.W.2d 826.


author: BATEMAN, Justice.

text:
    Francis McLEAN, Appellant, v. Dorothy LEWIS, Appellee.
    No. 16304.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 7, 1964
    Reboaring Denied Feb. 28, 1964

      Burt Barr, Dallas, for appellant.
    Joann Peters, Dallas, for appellee.
   BATEMAN, Justice.

Habeas corpus proceedings. The sole question involved is the right to custody, possession and control of a three-year old boy, Francis McLean, Jr. The writ was granted and custody awarded to appellee, Dorothy Lewis. The appellant, Francis McLean, presents six points of error on appeal.

It is undisputed that the parties, though never married to each other, are the natural parents of the child, and that about three months after the child’s birth the father, appellant here, filed in the Juvenile Court of Dallas County his petition for adoption of the child. The judgment of adoption made no specific disposition of the matter of custody.

At the time of the adoption appellee and the child were living on premises owned and occupied also by appellant, although apparently in separate houses. Later, on request of appellant, she left those premises and took the child with her, her right to do so not being challenged or disputed in any way by appellant. Several times thereafter the appellee, who had a serious drinking problem, became intoxicated and, realizing she was becoming incapable of giving the small child proper parental care, sent word to appellant who took possession of the child and kept him in his home until appellee regained sobriety and requested the return of the child to her. This request was complied with each time until the last, when it developed that appellant had placed the child in a Catholic orphanage in Fort Worth, Texas and refused to authorize its return to appellee. This habeas corpus proceeding was then instituted by her in the same court which had granted appellant’s petition for adoption.

The material portions of Sections 7 and 9 of Art. 46a, Vernon’s Ann.Tex.St, which was the adoption statute then and now in effect, should be noted here as follows:

“Sec. 7. Nothing in this Act shall prevent a Court of Competent Jurisdiction. from taking away from such adoptive parent the custody of the adopted child and awarding the same to its natural parents, or either of them or to any other person, upon proof of the bad moral character of such adoptive parent, or upon proof of abuse, neglect or ill treatment of such adopted child by the adoptive parent.”
“Sec. 9. When a minor child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine, and such child shall thereafter be deemed and held to be for every purpose the child of its parent or parents by adoption as fully as though naturally born to them in lawful wedlock. Said * * * parent or parents by adoption shall be entitled to the services, wages, control, custody and company of said adopted child, all as if said child were their own natural child.” (Italics ours.)

By his first, second, fifth and sixth points of error on appeal appellant contends that he has a valid judgment of adoption entitling him to the legal custody of the child, and that the granting of the writ of habeas corpus was a collateral attack on that judgment and therefore erroneous. He relies on the above quoted portions of Sec. 9, Art. 46a, V.A.T.S.

While it is true that appellee does not attack the validity of the judgment of adoption, she does take the position that the evidence introduced is sufficient to bring the case within Section 7 of Art. 46a, V.A. T.S. and justify the trial court in taking the custody of the child from the appellant and awarding it to her. In the light of the record as a whole, we are unable to say that the trial judge abused his discretion in doing so.

The time-honored maxim, “The rights and welfare of the children are the paramount things to be considered in adoption and child custody cases,” announced by our Supreme Court in Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807, 811, and reiterated many times, should apply here. The writ of habeas corpus has come to be recognized as a proper form of procedure for litigating the matter of proper custody of children and ascertaining how best to secure their welfare as well as to protect society. The application invokes the equity jurisdiction of the court; the trial judge sits as a chancellor vested with broad equitable powers, and the rules regulating the exercise thereof should always be liberally construed. “He should hear all legitimate testimony bearing upon the question, unhampered by narrow technical rules.” Tunnell v. Reeves (Tex.Com.App.), 35 S.W.2d 707, 710. The trial judge here had the right and duty, under all of the facts and circumstances of the case, to resolve the question as he did, and we have no authority to substitute our judgment for his in the absence of an abuse of discretion. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Wade v. Shaughnessy, Tex.Civ.App., 231 S.W.2d 494, err. ref.

By his third point of error appellant asserts that the granting of the writ of habeas corpus was error because appellee failed to plead or prove that appellant was of bad moral character or that he abused or neglected or ill treated the child. It is true that no such specific allegation is contained in her pleading. However, evidence was introduced, including statements by appellant himself, bearing on his moral character and his treatment of the child, which evidence is hereinafter summarized. No objection was made to this testimony on the ground that it was not supported by pleading, or on any other ground. As heretofore indicated, the general rule in this state is that technical rules of pleading and practice need not be strictly followed in child custody cases, because the best interests and welfare of the child are paramount. Hendrick v. Voss, Tex.Civ.App., 334 S.W.2d 308, 314, no wr. hist. “It seems to us that the welfare of the minor child should rise above the technical rules of pleadings as well as the technical rules of evidence.” Sparks v. Gandy, Tex.Civ.App., 213 S.W.2d 559, 561, no wr. hist. Accordingly we hold that the issue was tried by implied consent and overrule the third point. Rule 67, Texas Rules of Civil Procedure; Lolley v. Lolley, Tex.Civ.App., 181 S.W.2d 941, err. dism.; Lacy v. Hitzcman, Tex.Civ.App., 190 S.W.2d 764.

Appellant’s fourth point of error complains that it was not shown that depriving him of custody would benefit the child. We are quite impressed by the very commendable attitude of appellant toward this child — in recognizing him, paying his living expenses, formally adopting him and attempting within his limited capabilities to provide a suitable home for him. Nevertheless, our concern is primarily to determine whether the trial judge abused his discretion in his effort to serve the best interests of the child. The trial court evidently considered that the evidence touching appellant’s character and his manner of caring for the child was sufficient to show one or more of the grounds specified in Section 7 of Art. 46a, V.A.T.S. It therefore becomes our duty to examine that evidence.

The evidence showed without dispute that appellant was a man sixty-one years of age who had never married, that he was admittedly an alcoholic (although he had not had a drink in about nineteen years), that he owned several hundred acres of valuable land near Carrollton, Texas on which he operated a recreation park, and on which was also situated his home wherein he kept from time to time a number of derelict alcoholics whom he hired to do the chores around the park and home. Appellant testified that he had been “going with” a certain girl for twelve or fourteen years, who worked for him as a cook until January 1963, when she quit. He first testified on cross examination that he slept with this girl, although he did not plan to marry her, that she was also an alcoholic and that while she was there and was sleeping with him he had the child in question on the premises, not in the bedroom with him but in a separate cottage; that this girl did not live in the house with him but in a separate cottage, and that the child did not ask him who she was. He later testified that he didn’t actually sleep with this girl but did have “relations with her” from time to time.

Appellee admitted that she was also an alcoholic, although she had not had a drink in eighteen months. Both parties testified that an alcoholic is never cured, that no matter how long the urge or desire to drink may have been "arrested” he or she might again succumb to it at any time. She has been active in Alcoholics Anonymous and attends their meetings with some regularity. She had been married to one J. W. Lewis and was divorced from him in 1954. Living with her is also a daughter of that marriage, twelve years of age. She receives $40 a month from Lewis for her support. Appellee is employed by a life insurance company as a bookkeeper and receives $142 (after taxes) twice a month as salary, and occupies a duplex apartment for which she pays $90 per month.

Appellant testified that after appellee left his place with the child she became drunk six or eight times and on each occasion sent word for him to come and get the boy, and after she sobered up she asked for the boy’s return, with which requests he complied because he “thought the proper place for the child was with his mother.” He said he planned to leave the child in the orphanage until fall, then hire a young couple, who have a child of their own, to take care of him in a separate building on his place. He also testified that appellee sent him an obscene card through the mail; also that the boy in question used foul language on one occasion shortly after having been with his mother; and that ap-pellee does not have “character as regards truth, honesty, ideals, strength of purpose, things of that sort.”

A Catholic priest, called as a witness by appellant and examined chiefly by the court, testified that appellant regularly attended his parish church and contributed to its support. When asked his opinion as to whether or not appellant would make a good father to the child, he expressed some doubt because of appellant’s age, the business he is in, and the company the youngster would be around all of the time. He also testified that he knew appellee, who had called him about baptizing the baby; that appellee had called him on numerous occasions when she was drinking and mentioned that she was trying to overcome it. He also said: “My opinion was it would be extremely difficult under present circumstances for that youngster to be given a proper home at Sandy Lake [appellant’s home]. I say under present circumstances. I also feel that it would be very difficult to render a good judgment on my part regarding Mrs. Lewis.” He also said that if he were to assume that appellee has been active in Alcoholics Anonymous, has abstained from the use of alcohol and was gainfully cm-ployed for a period of a year and a half, he would say that the law of averages would be in favor of the youngster being given a good home with her. He added that he thought the child would be better off in the Fort Worth orphanage than he would with either one of these parties.

There was thus some evidence to support the conclusion reached by the trial court, and there is nothing in the record before us to indicate that the court abused his discretion or “closed his eyes to the welfare and best interest of the” child involved. Bell v. Hoskins, Tex.Civ.App., 357 S.W.2d 585, 588, no wr. hist.; Cuellar v. Flores, Tex.Civ.App., 238 S.W.2d 991, no wr. hist.; Gillespie v. Gillespie, Tex.Civ.App., 343 S.W.2d 281, 284, err. ref. n. r. e. That being true we are constrained to overrule appellant’s fourth point of error.

Finding no error requiring reversal, we affirm the judgment of the court below.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Nettie Whitley Otis HENDERSON, Appellant, v. Marie BARRETT, Appellee.
    No. 4203.
    Court of Civil Appeals of Texas. Waco.
    Feb. 20, 1964.
    Rehearing Denied March 12, 1964.

      Walter Chalmers, Houston, for appellant.
    E. H. McLaren, Madisonville, for appel-lee.
   McDONALD, Chief Justice.

This is an appeal from a judgment refusing to probate a will.

Appellant, Nettie Whitley Henderson, offered the will of her mother, Willie Whitley, dated February 12, 1958, for probate. The probate of such will was opposed by appellee (a granddaughter of deceased), on the ground that the deceased had executed a valid will on September 21, 1959, which later will, expressly revoked the 1958 will offered for probate.

Trial was to a jury which, in answer to the sole special issue submitted, found that the deceased revoked the 1958 will. Judgment was entered on the verdict denying probate of the 1958 will.

Appellant appeals, contending that the Trial Court erred in denying probate of the 1958 will for the following reasons:

1) Appellee failed to prove that testatrix was over 19 years of age when the 1959 will was executed, and failed to prove that the witnesses to such will were over 14 years of age.
2) Appellee failed to produce both witnesses to the 1959 will.
3) The Trial Court erred in admitting into evidence a photostat of the carbon copy of the 1959 will, retained by the attorney, who prepared such will.
4) The Trial Court erred in admitting into evidence testatrix’ husband’s 1959 will, and probate proceedings thereon.
5) Testimony of the attorney who prepared the 1959 will, was inadmissible as violative of the Dead Man’s Statute. .

The record reflects that the deceased testatrix, Willie Whitley, and her husband, in 1958, executed a joint will leaving their property to the survivor for life, and upon death of the survivor, to their two children, Nettie and Sybil. (Such will did not leave anything to 3 grandchildren, children of 2 deceased sons).

On September 21, 1959, Mr. and Mrs. Whitley executed new separate wills, each containing a clause expressly revoking all other wills theretofore made. Mr. Whitley’s 1959 will left everything to Mrs. Whitley; and Mrs. Whitley’s 1959 will left everything to Mr. Whitley. Mr. Whitley died in August, 1962, and his 1959 will was probated. Mrs. Whitley died in September, 1962, and appellant offered the 1958 will of Mrs. Whitley for probate. Appel-lee contested on the ground that the 1959 will revoked the 1958 will.

The record reflects that testatrix was over 19 years of age, as well as the fact that she was married, when she executed the 1959 will; and that the witnesses were over 14 years of age. One of the witnesses was an attorney at law, and before the court during the instant proceeding.

The 1959 will could not be produced, and the trial court permitted one of the witnesses to it, to testify as to its execution and contents. The Trial Court further admitted into evidence a photostat of the carbon file copy of the will, of the attorney who drew the will. Still another witness testified that she heard testatrix read the 1959 will aloud at the time that she signed it. The Trial Court further permitted the introduction into evidence of Mr. Whitley’s 1959 will and the probate proceedings probating such 1959 will.

Testimony of only one of the witnesses to the 1959 will was sufficient to prove it. The photostat of the attorney’s carbon file copy of the absent will, along with his testimony, was ¿dmissible as the best available evidence of the absent and missing will. Mr. Whitley’s will and probate proceedings of his, will, were admissible as a circumstance tending to show revocation of the 1958 will.

The attorney who prepared the 1959 will, testified as to its preparation, contents, and execution, and identified the photostat of the file carbon copy retained by him of such will. He testified he had no contingent fee contract in the instant case. Such testimony was admissible, and was not violative of the Dead Man’s Statute. See: Trantham v. Roper, Tex.Civ.App., 308 S.W.2d 195 n. r. e.; Joyce v. Williams, Tex.Civ.App., 301 S.W.2d 696 n. r. e.

We think the Trial Court properly submitted the sole issue in the case; that the jury’s answer to such issue is amply supported by the evidence; and that the judgment is correct.

All of appellant’s points and contentions are overruled and the judgment of the Trial Court is affirmed.


author: NORTHCUTT, Justice.

text:
    RICKS-MAGUIRE COMPANY, Appellant, v. J. T. OLIVER, Appellee. RICKS-MAGUIRE COMPANY et al., Appellants, v. William L. SPENCER, Appellee.
    Nos. 7329-30.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1964.

      Paul Thorp, Dallas, for appellants.
    Gibson, Ochsncr, Harlan, Kinney & Morris, Harold C. Rector, Amarillo, of counsel, for appellees.
   NORTHCUTT, Justice.

The two suits here involved were brought by the appellees on December 7, 1962, seeking to recover upon certain promissory notes. Appellants appeared and filed pleas of privilege but did not answer on the merits. The appellees filed controverting pleas on January 14, 1963. The pleas of privilege were overruled on February 19, 1963, and appellants appealed therefrom. At the regular call of the docket of the trial court on March 4, 1963, the cases were set for trial on May 2, 1963. The appellants did not appear and answer and trial was had and judgments nihil dicit were entered on May 2, 1963. Appellants filed motion for new trial together with answers on the merits on May 17, 1963. The motions were overruled by the trial court. It is from those orders overruling appellants’ motion for new trial that appellants perfected this appeal. The appeal in both cases were presented together. Appellants present this appeal upon the following two assignments of error:

“Point No. One. (Germane to Point No. One contained in Motion for New Trial) The Honorable Trial Court erred in proceeding to trial and judgment in the absence of Defendants and Defendants’ counsel of record where no notice of the trial date had been received by Defendants or Defendants’ counsel of record and where Defendants and Defendants’ counsel of record relied upon the policy of the Court known, to them of notifying out-of-county attorneys and parties of trial settings.
“Point No. Two. (Germane to Point No. One contained in Motions for New Trial filed in the above cases). The Honorable Trial Court abused its discretion in refusing to sustain the Motions for New Trial filed by Defendants in the above cases, since such cases are considered under rules applicable to default judgments and defendants fall clearly within the limit of such rules.”

By appellants’ contention as to being notified of the setting of the cases here involved it is shown they relied upon the court reporter to notify them. The judge’s secretary testified they notified out-of-town attorneys of their cases and as far as she knew she followed that procedure in these cases but could not recall addressing an envelope to the defendants in these cases. These cases were set at the regular call of the docket, and since the defendants were not present and had not answered, although they had appeared and filed their plea of privilege, which was overruled, the trial court entered judgments nihil dicit.

Rule 245 provides the court shall provide by rule for placing of actions upon the trial calendar without request of the parties. At the regular docket call of the court on March 4, 1963, these cases were set for trial on May 2, 1963. Neither the appellants nor their attorney ever answered in the case and did nothing about said cases until May 17, 1963, when they filed their motion for new trial and also filed an answer in the cases.

Rule 246 provides the clerk of the court shall notify out-of-town attorneys of such settings when the attorney so requests and accompanies such request with a return envelope properly addressed and stamped. Such request was never made in these cases.

When the appellants filed their pleas of .privilege that was appearance in the cases for all purposes. The judgment here entered is different from a default judgment and imports waiver of all objections and admits the cause of action substantially as stated in the petition. Negligence, mistake, or fraud of one’s own attorney is not grounds for the granting of a new trial. We consider the case of O’Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241 (writ refused) determinative of the matter here involved and do not think the trial court abused its discretion.

An appeal may be had from a judgment sustaining or overruling a plea of privilege but it suspends a trial pending determination of the appeal only in the event the judgment appealed from is one sustaining the plea. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602. The plea of privilege herein was overruled February 19, 1963, and appellants appealed from that order but never answered or did anything further in the case as above stated until May 17, 1963, when they filed an answer and a motion for a new trial. We are of the opinion and so hold the trial court was justified in overruling appellants’ motion for new trial. Judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    William B. BRAY, Jr., et al., Appellants, v. Iley COMPTON, Appellee.
    No. 4231.
    Court of Civil Appeals of Texas. Waco.
    Feb. 12, 1964.
    McCown & Cobb, Dumas, for appellant.
    Eli Willis, Lovell & Lyle, Dumas, for appellee.
   TIREY, Justice.

This is an appeal from the order of the District Court of Moore County granting a temporary injunction against William Bray, Jr., and William Bray, Sr., and wife, Bonnie Bray, from removing a minor child, William Michael Bray, from the home of Mr. and Mrs. V. M. Brown, and from taking custody of the minor. The decree also overruled the pleas of privilege filed by each of the defendants to be sued in Hansford County, Texas. The decree was entered on the 8th day of November 1963, to which the defendants in open court excepted and gave notice of appeal to the Amarillo Court and, thereafter, on November IS, 1963, defendants executed their appeal bond and duly filed it with the Clerk of the District Court of Moore County on the 18th day of November 1963, and thereafter filed transcript with the Amarillo Court on the 3rd day of December 1963. The cause is here on transfer.

Appellee, on January 23, 1964, filed his motion to dismiss this appeal on the ground that the cause of action is now moot, and for such grounds we quote the recital in his motion:

“1. That on the 20th day of January, A.D. 1964, the Honorable 69th Judicial District Court in and for Moore County, Texas, did grant to Appellee herein a non-suit in the above styled and numbered cause. That certified copy of such order of non-suit is attached hereto and made a part hereof for all purposes as Exhibit ‘A’ ”.

We quote the pertinent part of Exhibit -“A”:

“TO THE HONORABLE JUDGE OF SAID COURT:
“Conies now Iley Compton for himself and on behalf of the Moore County Child Welfare Board, plaintiff herein, and states that he and they no longer desire to prosecute this suit and moves for the non-suit and dismissal as to the said defendants, without prejudice to his and their cause of action in any respect whatsoever.
“/s/ Iley Compton
Iley Compton”.
“ORDER
■“Be it remembered that on this the 20th day of January, A.D. 1964, ■came the parties in the above styled and numbered cause by their attorney, and plaintiff announced to the court in open session that plaintiff desired to take a non-suit in said •cause.
"“It is therefore ordered by the Court that plaintiff be granted a non-suit herein without prejudice to the rights of plaintiff in any respect, and that all costs be taxed against plaintiff.
“/s/ Harry H. Schultz_
Judge of the District Court in and for Moore County, Texas.”

The foregoing motion and order thereto is certified to by the District Clerk of Moore County.

It is our view that this motion must be granted under the authority of Gladden v. Thurmond, Tex.Civ.App., 77 S.W.2d 703, (n. w. h.), and cases there cited. See also Texas Rules of Civil Procedure, rule 164, and cases there cited. In the Gladden case, supra, we find this statement:

“A plaintiff has a legal right at any time to take a nonsuit and dismiss the cause of action asserted by him. And this holds true even though an appeal is pending from an interlocutory order overruling a plea of privilege.” Citing Atlantic Oil Producing Co. v. Jackson, 116 Tex. 570, 296 S.W. 283.

See also First Nat. Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215, Sup.Ct., Per Curiam opinion. Our Supreme Court, in Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600, points (3-5), page 602, makes this statement:

“In our opinion, the defendants could not successfully oppose the plaintiffs’ motions for a nonsuit. The statute gives them that absolute right.”

Again, in the Gladden case, we find this statement:

“A judgment of the trial court, permitting the plaintiff to take a nonsuit and dismissing the cause while an appeal is still pending from an order overruling a plea of privilege, renders moot the question originally presented by such appeal.” Citing First National Bank in Dallas v. Hannay, supra.

Under the foregoing authorities we feel it is our duty to grant this motion and dismiss this appeal.

Accordingly, the motion is granted and the appeal is dismissed, and all costs in the court below and here are taxed against appellee.


author: MOORE, Justice.

text:
    V. L. (Bo) RAMSEY, Relator, v. Fred MARLOWE et al., Respondents.
    No. 71.
    Court of Civil Appeals of Texas. Tyler.
    March 5, 1964.
    J. E. Jackson and E. C. Winfrey, Carthage, for relator.
    No counsel for respondents.
   MOORE, Justice.

By this original mandamus proceeding relator, V. L. (Bo) Ramsey, seeks to compel’ the respondents, Fred Marlowe, Chairman, of the Panola County Democratic Executive-Committee, and other members of that committee, to certify his name to the County Clerk of Panola County, Texas, to be placed' on the ballot as a candidate for State Representative in the Democratic primary to beheld on May 2, 1964. Relator’s permission to file the application was granted by this-court. The application for writ of mandamus avers that before the first Monday in. February, 1964, relator, V. L. (Bo) Ramsey,, filed with the Democratic Executive Committee of Panola County, Texas, his application to be a candidate for the office of' State Representative for the district composed of Panola and Rusk Counties in accordance with the requirements of Art.. 13.12 of the Texas Election Code, V.A.T.S., duly paying said committee his filing fee as-required by Art. 13.07a of the Election Code in the amount required by law showing in-every respect that he was duly qualified to have his name placed upon the primary election ballot of the Democratic party for-said election.

Relator asserts that respondent, Fred' Marlowe, subsequent to the first Monday in-February, 1964, and after the final announcing date for office, informed relator that the Democratic Executive Committee had held! a meeting and had determined by a majority vote of the members present at such meeting that the name of relator, V. L. (Bo). Ramsey, would not be certified to the Coun-ty Clerk to be placed upon the election ballot. Relator further states that he has examined the list of the candidates which the committee filed with the County Clerk and his name does not appear on such list. He alleges that subsequent to the meeting held by the committee, he requested respondent, Fred Marlowe, to certify him and to include his name on such list or upon a supplemental list, but respondent, Fred Marlowe, has refused to do so. Relator further states that he has requested respondent, Fred Marlowe, to call a meeting ■of the Democratic Executive Committee of Panola County, Texas, for the purpose of ■reconsidering the matter of placing his name on the list of the candidates to be filed with the County Clerk as required by .Art. 13.12, but such request was denied.

Relator states in his application that he ■has been duly certified as a candidate for ■such office by the Democratic Executive •Committee of Rusk County, the other coun■ty in the district. He alleges in his sworn .application that he is qualified in every respect to hold such office under the require■ments of the Constitution and Statutes of ■this state in that he has been a resident of -the State of Texas for more than two years next preceding the election and a resident •of the county for more than one year next ■preceding his election, if elected, and that 'he is more than twenty-one years of age.

This cause was set for hearing before this ■court on February 28, 1964, after due notice •to the respondents. No appearance or answer was filed in behalf of any of the respondents. The application on its face, ■together with the evidence presented in connection therewith, is deemed to be sufficient to demonstrate that the relator is in all respects eligible to have his name certified to •the County Clerk by the committee so that ’his name may be placed upon the ballot.

Although the record is before us without .a reply or any evidence as to the reasons why the committee refused to certify relator’s name, we gather from the application and relator’s argument that it was probably due to the fact that the committee felt that he had not met the residential requirement of being a resident of the district for a period of one year prior to his election, if elected, in accordance with Art. 3, Sec. 7, of the Constitution of the State of Texas, Vernon’s Ann.St. If this be true, it becomes apparent that the Democratic Executive Committee took it upon themselves to resolve the fact issue of residence as required by the Constitution.

In a similar situation, where the County Executive Committee had refused to certify the name of a candidate for the office of sheriff because his application failed to show the county of his residence, but his loyalty oath filed in connection therewith did show the county of residence, the Supreme Court in Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594, in granting a writ of mandamus had this to say:

“Were there an issue of fact in this court, the mandamus would not issue. But that is not the question presented here. What we are called upon to determine is the legal question of whether or not the Democratic Executive Committee was clothed with the power to raise and determine an issue of fact by contradicting the allegations contained in the relator’s application and then deciding the issue so raised. While there is no showing in this record that the respondents did not act in good faith, we think it would be an unwise public policy to permit Executive Committees of political parties to raise and determine such a disputed issue of fact. That issue should be judicially determined. Ferris v. Carlson, [158] Tex. [546], 314 S.W.2d 577.”

In view of respondents’ failure to answer herein, we believe the rule announced in the foregoing case to be especially applicable to the facts before us in this case.

Having concluded that the Executive Committee has no authority to contradict the allegation in relator’s application then pending before them, and then determine the issue raised, we do not reach the question of whether or not only the Legislature has authority to determine the qualification of its members.

Subject to relator tendering the proper filing fee, the writ of mandamus will issue, directing and commanding the respondents to submit the name of V. L. (Bo) Ramsey as a candidate for the office of State Representative upon the list of candidates certified to the County Clerk of Panola County,. Texas, within three (3) days after the first Monday in March, 1964, and that his name be placed upon the ballot as a candidate for such office.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, by and on relation of James V. MARCUM, Commissioner of Revenue, Appellant, v. Bud FITZGERALD, Doing Business as Fitzgerald Brothers, et al., Appellees.
    Court of Appeals of Kentucky
    March 6, 1964.
    Robert F. Matthews, Atty. Gen., Frankfort, William S. Riley, Asst. Atty. Gen., William M. Dishman, Jr., William P. Cur-lin, Jr., Maye Howell Briscoe Burns, Dept, of Revenue, Frankfort, for appellant.
    Wayne W. Fitzgerald, Cynthiana, George M. Catlett, Frankfort, for appellees.
   MONTGOMERY, Judge.

The Commonwealth of Kentucky, on relation of its Commissioner of Revenue, sued Búd Fitzgerald, doing business as Fitzgerald Brothers et al. to collect a motor fuel tax assessment, together with penalty and interest. The Commonwealth has appealed from a judgment dismissing its complaint as amended.

Appellant filed its brief on November 16, 1962, with appropriate notice. Appellees have failed to file a brief. Pursuant to RCA 1.260(c) (2), the failure of appellees to file a brief is regarded as a confession of error, requiring a reversal. Appellant’s brief reasonably appears to sustain such action. On this record appellant is entitled to relief. W. R. Willett Lumber Co., Inc. v. Hall et al., Ky., 375 S.W.2d 266.

Judgment reversed.


author: WADDILL, Commissioner.

text:
    John CARTER, President of Campbellsville College et al., Appellants, v. Harold MOBERLY, Commissioner of Alcoholic Beverage Control Board et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.

      William A. Young, Frankfort, for appellants.
    Frank M. Dailey, George M. Catlett, Frankfort, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment upholding an order of the Alcoholic Beverage Control Board granting a retail malt beverage license for premises located near Findlay in Marion County.

Initially the malt beverage administrator refused to grant the license following a protest. The applicants for the license requested a hearing before the Board pursuant to the provisions of KRS 243.470. On this hearing it was established that the applicants had complied with the statutory and regulatory requirements of the Board and this fact is not at issue on this appeal. Nor is there any contention that the Board acted without or in excess of its powers, or that the order was procured by fraud.

The appellants, who protested the issuance of the license on aesthetic, moral, economic and other similar grounds, contend that there was sufficient proof introduced on the hearing before the Board to sustain the state administrator’s refusal to issue the license. However, this contention is unavailing since the administrator’s refusal did not become a final determination of the matter after a review had been requested. KRS 243.470. After conducting a hearing the Board was required to make the final determination of whether a license should be granted. The Board’s decision to issue the license superseded the administrator’s original refusal to grant the license and therefore whether the refusal was supported by sufficient evidence is of no consequence.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Mabel Ann BORDERS et al., Appellants, v. Mearlene BORDERS, Appellee.
    Court of Appeals of Kentucky.
    March 6, 1964.

      ,,W. A. Johnson, Paintsville, for appellants.
    Marcus Mann, Salyersville, for appellee.
   CULLEN, Commissioner.

Appellee, Mearlene Borders, recovered judgment upon a jury verdict in the sum of $8,000 against the appellants, Mabel Ann and Johnnie Borders (her sister and brother) for personal injuries resulting from an automobile collision. Mearlene was a passenger in the back seat of Mabel’s car, which was being driven by Johnnie. Mabel and Johnnie had. driven to Mear-lene’s place of employment, a drive-in restaurant, to- bring her home after work. The accident happened when Johnnie drove out of the restaurant premises into the path of an oncoming car.

■ Johnnie was a few days under- 16 years of age and did not have a driver’s license. However, there was evidence that he had been driving his brothers’ and sister’s cars for more than a year and had not previously been involved in any accidents.

The appellants contend that Mear-lene should have been held contributorily negligent as a matter of law in riding with Johnnie, knowing that he was immature and had no license. The contention is not sustainable. The mere riding with an unlicensed driver has 'never been held to be contributory negligence; and in those cases where, -riding with an inexperienced driver has been held to be contributory negligence as a matter of law the inexperience of the driver not only was .undisputed but it, rather than negligence of the driver, was the cause of the accident. See Cambron v. Bartlett, Ky., 333 S.W.2d 764; Richards v. Richards, Ky., 324 S.W.2d 400. Here, there was substantial- evidence that Johnnie was not inexperienced. And the accident, which occurred when Johnnie attempted to enter the highway from a point where his view was partially blocked by a parked car, was ^ue to negligence rather than his inability to handle the vehicle properly.

The appellants next contend that the trial court erred in refusing to give their requested instructions on contributory negligence. The first instruction would in effect have been a peremptory one, because it said that Mearlene could not recover if she knew that Johnnie was under 16 and did not have a driver’s license. For the reasons hereinbefore stated, the court properly rejected the instruction.

The second instruction would have imposed on Mearlene the duty of lookout. Admittedly, Mearlene did not keep a lookout, because as Johnnie was driving out of the restaurant premises she was looking down at her coat and attempting to remove something from it.

We conceive the correct rule to be as stated in Lanning v. Brown, Ky., 377 S.W.2d 590, that in the absence of circumstances that would serve to put him on the alert the law does not require a passenger to maintain a lookout. Of course if the passenger assumes the responsibility of keeping a lookout he must make a reasonably careful lookout. Adkins v. Redwine, Ky., 339 S.W.2d 633; Donnell v. Pruitt, Ky., 265 S.W.2d 784. But in ordinary circumstances the initial responsibility is not imposed on him by law.

Some confusion may arise from the statement in Stephenson’s Adm’x v. Sharp’s Ex’rs, 222 Ky. 496, 1 S.W.2d 957, quoted with approval in Louisville & Nashville Railroad Co. v. Tomlinson, Ky., 373 S.W.2d 601, that when the passenger’s “means of observing obvious dangers are the same as or better than those possessed by the driver and he fails to observe them, or observing them, fails to warn the driver, he is guilty of contributory negligence.” This statement really is not inconsistent with the rule in the Lannin'g case, because by “obvious dangers” it means such dangers as should have been seen by, a passenger who was looking or such dangers as would be calculated to arouse the passenger’s attention through other-senses than hearing. In the Stephenson case the auto-, mobile ran in front of a train in the fac'e of warnings by an- electric wigwag signal and bell at the crossing and repeated blasts of the train whistle. In the Tomlinson case the passenger actually undertook to make a lookout but simply failed to see the oncoming train. So the rule as stated in those cases is not to be construed as imposing an absolute, unqualified lookout duty on an automobile passenger.

In the instant case there was nothing in the circumstances to alert Mearlene to danger and therefore she did not have a lookout duty. Therefore the trial court properly refused to give the requested instruction.

The appellants argue' that Johnnie was Mearlene’s agent and therefore his negligence should be imputed to her so as to bar her recovery. -There is no merit in that argument (even assuming that there could be considered to have been an agency relationship in the family courtesy trip) because the doctrine of imputation of negligence from agent to principal applies only as concerns ' the principal’s liability to, or right to recover from, a third person — not as concerns the liability of the agent to the principal.

The transcript of evidence sets forth that after the jury was sworn the defendants moved to disqualify 8 named jurors for the reason that “they are related and recognize relationship with counsel for plaintiff.” The appellants complain of the trial court’s overruling of that motion.

There is nothing in the record to indicate the degree of the alleged relationship, or when it was discovered (however, it must have been discovered on the voir dire because the motion was made immediately after the jury was sworn). In the absence of a showing of the nature and degree of the relationship we cannot say that the trial court abused its discretion (which it had as respects implied bias arising from relationship) in overruling the motion. See Halleron v. Carrithers Creamery, Ky., 239 S.W.2d 92. Furthermore, the motion was too late - because it appears that the defendants knew of the alleged relationships when the jury was accepted. See Croley v. Owens, 296 Ky. 51, 176 S.W.2d 84; Johnson v. Commonwealth, 311 Ky. 182, 223 S.W.2d 741.

We come now to the contention that the verdict of $8,000 is excessive. Mear-lene was a 20-year-old girl, employed as a waitress at a drive-in restaurant. Her injuries consisted of the loss of several upper teeth; the loosening or “knocking back” of several lower teeth; a cut on the chin or lower lip which required stitches and which “itches and tingles like somebody jabbing a needle in it all the time” and which left a “knot,” scar or “thick place” on the inside; some bruises; a lame knee which lasted for about two months; and a “sprained back.” Mearlene testified that the false upper teeth replacing the teeth that were knocked out “don’t fit right or something;” that her lower teeth are sensitive to hot and cold liquids; and that “I got my back hurt * * * and I can’t do anything. It bothers me all the time.” However, there was no evidence that the condition of her teeth could not be remedied, and despite the complaint of back trouble she returned to full-time work as a car-hop some four months after the accident and has continued in that work.

She was in the. hospital for only two days and saw a doctor on only three occasions, the last time being some two weeks after the accident. She stayed home from work for about four months, losing around $240 of wages. Her medical and dental bills totalled at the most $368.

No medical testimony was offered.

There being no evidence warranting a finding of any permanent impairment of earning capacity, there are no elements of damage here other than the small wage loss, the medical and dental bills, some temporary pain and suffering, a slight facial scar, and some continuing discomfort (not shown to be irremediable) from loss and loosening of teeth.

The verdict of $8,000 for these elements of damage strikes us as being excessive. Cf. Turner v. Johnson, Ky., 333 S.W.2d 749; Herald v. Gross, Ky., 343 S.W.2d 831.

We are reversing the judgment because of excessive damages. We believe that the issue of liability was fairly tried, so a new trial will be confined solely to the issue of damages.

The judgment is reversed with directions that a new trial be granted solely on the issue of damages.