author: MORRISON, Judge. WOODLEY, Presiding Judge.'. - MORRISON, Judge

text:
    Ex parte Harry RUBIN.
    No. 34887.
    Court of Criminal Appeals of Texas.
    Oct. 10, 1962.
    Rehearing Denied Nov. 28, 1962.

      Simon & Simon, Richard U. Simon, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., and Richard Trickey, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, who is in the custody of the Sheriff of Tarrant County, challenges the validity of such restraint on the grounds that the statute (Article 1436-2, Vernon’s Ann.P.C.) under which he is charged is unconstitutional. The statute reads as follows :

“Any person, association of persons, corporate or other, who customarily engage in the business of obtaining motor vehicles for scrap disposal or resale of parts therefrom or any other form of salvage, shall immediately remove any unexpired license plates from such motor vehicle and place the same under lock and key. An inventory list of such plates showing the license number and the make and motor number of the motor vehicle from which such plates were removed shall be maintained on forms to be furnished by the State Highway Department. Upon demand the license plates and inventory lists shall be surrendered to the State Highway Department for cancellation. It is further provided that all Certificates of Title covering such motor vehicles obtained for scrap disposal, resale of parts or any other form of salvage shall, upon demand, be surrendered to the State Highway Department for cancellation. It shall thereafter be the duty of the State Highway Department to furnish a signed receipt for the surrendered license plates and Certificates of Title. Any person violating any provision of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by confinement in the county jail not less than ten (10) days nor more than one (1) year, or by both such fine and confinement.”

His attack upon the statute is phrased as follows:

“Said Statute is so vague and indefinite that it cannot and does not apprise the defendant of the nature of the charges against him, and said Statute is too uncertain and unclear in regard to setting out what persons are within the scope of the Statute, in violation of Article 1, Section 10, of the Constitution of the State of Texas, and deprives Relator of due process of law, in violation of the 14th Amendment to the Constitution of the United States and of Article 1, Section 19, of the Constitution of the State of Texas and Article 6 of the Penal Code of the State of Texas.”

We shall first discuss his contention that a charge under such, a statute deprives him of due process under the Federal Constitution. In the .relatively recent opinion (1957) of the Supreme Court of the United States in Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and which we ■conclude is here controlling, we find the following:

“This Court, however, hag consistently held that lack of precision is not itself offensive to. the requirements of due process. ‘ * * * [T]he Constitution does not require impossible standards’; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ”

As to his contention that the statute is so indefinite as to be inoperative under Article 6, Vernon’s Ann.P.C., and the Texas Constitution, we call attention to the holding of this Court in Creech v. State, 70 Tex.Cr.R. 229, 158 S.W. 277, where this Court held that one was engaged in an occupation or business if he pursued the same whenever an opportunity presented itself. Attention is further directed to the' holding of the Court in Ex parte Trafton, 160 Tex.Cr.R. 407, 271 S.W.2d 814 (1953), wherein we held the use of the term “excessive and unusual” not to be so indefinite as to render the statute inoperative. See also the cases cited therein.

Reliance is had, among other cases, upon Cogdell v. State, 81 Tex.Cr.R. 66, 193 S.W. 675 (1917), and Wilson v. State, 123 Tex. Cr.R. 415, 59 S.W.2d 399 (1933). In Cog-dell, it was held that a statute which makes it unlawful to offer for sale commercial feeding stuff bearing a label stating that the product contained “substantially a larger percentage of * * * ” was inoperative by virtue of Article 6, V.A.P.C., because the same was so indefinite and of such doubtful construction that it could not be understood. The statute in Cogdell sought to protect the public from being misled by a label which did not accurately describe the ingredients of a feeding stuff offered for sale. In the case at bar, a class of persons who “customarily” or “usually” engage in a certain business are required, for the protection of the public, to comply with certain rules. We conclude that while the phrase “substantially a larger percentage” may be indefinite, one who “customarily” or “usually” engages in a certain business “conveys sufficiently definite warning as to the proscribed conduct when measured ■ by common understanding and practices.” Roth v. U. S., supra. See also Fuller Brush Co. v. Industrial Commission, 99 Utah 97, 104 P.2d 201, 129 A.L.R. 511; Smith v. Title Guarantee & Trust Co., 287 N.Y. 500, 41 N.E.2d 72; and Wolfe v. Bryant, 181 Tenn. 357, 181 S.W.2d 343; 25 C.J.S. Customarily 72.

In Wilson, the statute made unlawful the operation of an automobile by a person who was intoxicated or in any degree under the influence of intoxicating liquor. We agree that the absence of any standard whatsoever in this statute renders the same indefinite but for the reason set forth above conclude that such case is not here controlling.

We further overrule appellant’s contentions that the phrases “any other form of salvage” or “such motor vehicle”1 are too indefinite to be operative.

Relator next contends that Article 1436-1, Section 37, V.A.P.C., and Article 1436-2, supra, both denounce the same conduct and, since they proscribe different penalties, are both inoperative. We answer this contention ' by 'pointing out that the first statute relates to certificates of title only while the second relates to both license plates and certificates of title, and therefore they do not relate to.the same conduct.

Relator’s last contention is that this statute is. unconstitutional since it discriminates against the cipas of persons “who customarily engage in -the business of obtaining motor -vehicles for .pcrap disposal * * A law is not'.unconstitutional so long, as the unequal. treatment of persons is based upon a reasonable and substantial classification of such persons. Rucker v. State, Tex.Cr.App.; 342 S.W.2d 325. Clearly,.. a salvage lot is entirely different from a used car lot alluded to by appellant because the inspection1 of the individual units in. the first is ;far less frequent-and less carefully made, than in the latter, thus rendering the discovery of the loss of .stolen license plates far less likely. We hold that tlie Legislature was clearly empowered to make this distinction, and rely upon Hall v. Gieger-Jones Company, 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, as authority.

The‘writ of habeas'‘horpus is denie'd.",

OÑ RELATOR’S'-MOTIÓN FOR REHEARING1

WOODLEY, Presiding Judge.'. -

In his motion fo.r . rehearing)'1 relator re-urges his cpntenfion'. that Article 1436^1,'. Se.c. 37, and ‘Article 143&-2 Vernon's, Ann. PIC. may be violated by the, commission of the same act or failure'to act and that the conflict is fatal','a different' punishment being provided.

Wg,.do not agree that,.Art-.. 1436-1,, Sec. 37, which:,requires that the .owner last named in the certificate..of title shall surrender such certificate to the State Highway Depantmeftt for cancellationfwhen.the motor vehicle to which such .certificate 'Of title has’beem.issued-'is “ ⅜ <*-. .junked, dismantled,' destroyed, ‘ or -its motor number changed ⅝⅞provides,;^piimish-; ment for the same act for which a different punishment is provided in .Art. 1436-2. The later statute provides that all certificates of title covering motor vehicles obtained for scrap disposal, resale of parts or any other form of salvage shall upon demand, be surrendered to the State Highway Department for cancellation. The former requires the surrender by the owner last named therein of the certificate of title when the vehicle is junked, etc., whether obtained for such purpose or not, no demand for such surrender being required.

■ If, however, the statutes do provide a different punishment for the same act, this would not render Art. 1436-2, - the later of the two statutes, invalid.

If invalid, the provisions of Art. 1436-2 above quoted, which relate to certificates of title, may be stricken leaving the statute as it relates to license plates complete in itself and capable of being executed in .accordance with the legislative intent, which statute must be sustained. Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106; Ex parte Levinson, 160 Tex.Cr.R. 606, 274 S.W.2d 76.

Relator’s second complaint is addressed to our holding that Art. 1436-2 was sufficiently definite as to the- persons who are included within such act.- ■ He •' urges that Roth v. United States, ,citéd- -in. -bur original opinion, does ¡not -sustain such holding. ■

.Be this, as it .may, it does not hold to the contrary and we entertain no doubt as to the correctness of our conclusion that Art. 1436-2, finder which relator is charged, is sufficiently definite and .is valid. The statute applies to persons who customarily, •when the opportunity is presented, obtain moto.r vehicles for scrap disposal, resale of parts or any other form of salvage. It does not apply to persons “who customarily engage in the business of obtaining motor ve-, hides” for any other purpose. It requires immediate removal of any unéxpired license plates from such motor vehicle.. It re'qfiires that such license plates be placed under lock- and key; that an inventory iist of such plates, showing the license number and the make and motor number of the motor vehicle from which such plates were removed, be maintained; and requires that upon demand the license plates and inventory lists shall be surrendered to the State Highway Department for cancellation. (Relator is charged with the violation of the last mentioned requirement of the statute.) The statute does not apply to license plates on a motor vehicle obtained for any purpose other than for scrap disposal or- resale of parts or other form of salvage.

Relator’s motion for rehearing is overruled.

MORRISON, Judge

(concurring).

My views are expressed in the original opinion herein.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Marvin McKinley HUNT, Appellant, v. The STATE of Texas, Appellee.
    No. 34864.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    James H. Martin, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is negligent homicide in the second degree; the punishment, three years in jail.

Our prior opinion dismissing this case is withdrawn, and the following is substituted therefor.

The unlawful act charged was that appellant was operating a motor vehicle upon a public highway while his operator’s license was cancelled, suspended and revoked. This is followed by the allegations which we held requisite in Townsend v. State, 159 Tex.Cr.R. 29, 252 S.W.2d 941.

We have searched the statement of facts approved by counsel for the State and appellant and fail to find therein any proof that appellant’s operator’s license had been cancelled, suspended or revoked.

This being an essential element of the offense alleged, the judgment must be reversed and the cause remanded.

It is so ordered.


author: McDonald, judge.

text:
    James BRIDGES, Appellant, v. The STATE of Texas, Appellee.
    No. 35041.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    Frank Sparks, Eastland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery by assault; the punishment, twenty years in the penitentiary.

The state’s testimony reflects that Mrs. F. J. Eison was a widow; that she ran a grocery store at Gorman; that her store was robbed by a man with a nylon hose over his face; that he used a pistol; that he took approximately $100; that she saw the appellant in the car as he drove off and that the back of his head looked very familiar; that she saw the car a week later when appellant’s wife came into the store and that she was positive it was his car, a 1957 Mercury.

On cross-examination she said that the man in the car looked like the appellant but she could not be positive; that she had seen him before; that she knew it was his car, and he was driving; that a .38 caliber pistol which was introduced in evidence looked exactly like the one used.

Kay Eison testified that she was seventeen years of age, the daughter of the injured party; that on the afternoon of the robbery she saw the car driving .up. and down in front of the store; that it resembled the car in question and that appellant resembled the driver; that it was a 1957 Mercury; that she learned later that the car belonged to appellant.

The state’s evidence shows that E. T. Woodard owned the gun that was used in the robbery; that he had loaned it to appellant and Lawrence Paul Davis for target practice. The gun was admitted into evidence without objection.

E. L. Dennis testified that he was a constable at Gorman; that appellant’s car was located at Mingus; that it had been described by Mrs. Eison as having been at her place; that appellant and Davis were together; that the tires fit the tracks at the scene of the robbery, for size, and the marks were similar; that the right front was worn a little more than the rest of the tires, and that the tracks were plain.

Appellant, in his confession, taken by Earl Conner, Jr., stated that he was twenty-seven years of age; that he and Lawrence Paul Davis were in appellant’s car; that they had been drinking beer all day; that Davis said something about robbing Hig-ginbotham’s place and also an implement company; that he (appellant) “talked him out of those two places”; that they went to a bootleg joint and got some beer; that they pulled up to the store in Gorman, which he thought was operated by a Mrs. Smith; that he had known her for several months; that he had cashed checks there; that he drove and stopped at the east side of the store. It was further stated in the confession that Davis pulled off his hat, got out of the car, and put a sock over his face, and pulled a .38 caliber gun from under the seat; that in about five minutes he came running out of the store, got in the car and said, “ ‘Let’s go’ ”; that Davis had some money in his hands, which proved to be $70 plus some checks that they tore up; that they went through the yard of the Gorman Peanut Company, went down the old East-land Highway to Duster and DeLeon, picked up their wives and went on to Strawn and then to Mingus; that while they were there they were arrested and taken to Gor-man; that they did not have permission from the lady at the store to take the; money; that he (appellant) got his share thereof, which was $35.

Appellant did not testify nor offer any testimony in his behalf. It is his contention that the evidence is insufficient to support the conviction.

The corpus delicti was established when the injured party testified that she was robbed, that she was placed in fear of her life, and that a gun was used. The appellant’s confession, together with other evidence adduced, is sufficient to support the conviction.

In Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, the conviction was for robbery. This court stated that “Corroboration of the confession” in effect means proof of the corpus delicti and that “corpus delicti” means proof of the fact that the crime charged has been committed by someone. In that case the victim was dead, the corpus delicti was proved by circumstantial evidence, and the confession was sufficient to support the conviction. See: Lyles v. State, Tex.Cr.App., 351 S.W.2d 886; Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411.

The judgment is affirmed.


author: WILSON, Justice.

text:
    E. T. REILLY and Wife, Lucille Reilly, Appellants, v. ALAMO GAS SUPPLY COMPANY, Appellee.
    No. 4060.
    Court of Civil Appeals of Texas. Waco.
    Nov. 15, 1962.
    Rehearing Denied Dec. 6, 1962.

      Muckleroy McDonnold, C. J. Matthews, San Antonio, for appellants.
    Wm. C. Church, Jr., W. Pat Camp, C. R. Eyster, San Antonio, for appellee.
   WILSON, Justice.

In a condemnation case appellants say the court erred in rendering judgment after the expiration of the term, and erred in thereafter rendering another judgment nunc pro tunc, without vacating the first.

The first judgment, rendered after the term expired, did not purport to be nunc pro tunc in nature. One week later, on appel-lee’s motion, a judgment was rendered identical ■ in language to the first, except that it recited it was .rendered nunc pro tunc as of a date within the term at which the jury verdict was returned. Appellants say the first judgment was not void, and was vulnerable only to direct attack. If we sustained the contention we are unable to understand how appellants would be benefited. They did not appeal from the first judgment. They do not ask us to declare the second judgment a nullity, since they say the original judgment is effective. We are asked only to pass upon an academic question which does not affect disposition of the case. Since the second judgment is not asserted to be, and does not appear to be void, and the points concern only its effect on the first judgment, no fundamental error appears; and we are not required to pass on the contention.

Complaint is made of failure to limit the purposes for which evidence admitted without objection could be considered by the jury. There was no motion or request to so limit it, and the complaint was waived. Massie v. Hutchison, 110 Tex. 558, 222 S.W. 962.

Appellants’ point that the compensation allowed is inadequate has been considered and is overruled. Other points are waived. Affirmed.


author: RENFRO, Justice.

text:
    Lea Oles YOST, Appellant, v. TEXAS CHRISTIAN UNIVERSITY, Appellee.
    No. 16367.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 16, 1962.

      Simon & Simon and Sheldon Anisman, Fort Worth, for appellant.
    Brown & Murray, and M. Hendricks Brown, Fort Worth, for appellee.
   RENFRO, Justice.

Plaintiff brought suit against defendant for damages for personal injuries sustained by her when she fell on the steps outside Shirley Hall, the dormitory in which she resided as a student of defendant University.

From an adverse summary judgment plaintiff appealed.

Plaintiff claimed the defendant was negligent in failing to provide a doctor or proper medical care for her, and was negligent in hiring an incompetent employee.

According to plaintiff’s deposition, she fell shortly after 9:00 P.M. on a Saturday. Her ankle was hurt. She was carried to the University infirmary by fellow students where she saw the head of the infirmary, Mrs. Steers. Mrs. Steers told her the ankle was sprained. Mrs. Steers packed the ankle with ice for 20 or 30 minutes, then told plaintiff to walk on it. She was informed the doctor would be at the infirmary the next afternoon, but the nurse (Mrs. Steers) did not think it was necessary for plaintiff to see him. Plaintiff did not ask the nurse to call a doctor. After she returned to the dormitory she was in so much pain she could not sleep. On Sunday a “dorm” mother phoned the nurse and was told plaintiff had a sprained ankle, that plaintiff should walk on it. She did not go to see the doctor at the infirmary at S :0O P.M. (his regular hour at the infirmary) because she was asleep. Plaintiff did not go to classes on Monday because of the pain, nor did she call a doctor. She went to a class on Tuesday but did not go to the infirmary. She went to classes on Wednesday but did not go to the infirmary. She did not go to the infirmary any day that week.

Plaintiff was under the impression the University had in effect a rule requiring resident students to present themselves to the infirmary before calling for outside medical assistance; however, she had never seen such rule in writing nor been informed of any such rule by any official of the University.

On Friday plaintiff went to All Saints Hospital for X-rays. Her injury proved to be serious. She stayed in the hospital from December 16 until Christmas Day. After spending a few days at home, she returned to the University and stayed in the infirmary about five weeks.

Texas Christian University, a corporation, is a nonprofit organization operated by a board of trustees, a president and other officers, without any one receiving pecuniary profit, and is an institution of higher learning devoted to public education.

In Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749, the Supreme Court held: “Because it is devoted to public education without private gain, the university is a charitable institution, despite the fact that it is under the control of a religious denomination and charges tuition.” The court held further: “It seems definitely established in this state that a charity corporation is liable to an employee for injuries proximately caused by the negligence of its officers, vice principals or agents. Armendarez v. Hotel Dieu, Tex.Civ.App., 145 S.W. 1030; Hotel Dieu v. Armendariz, Tex.Civ.App., 167 S.W. 181; Id., Tex.Com.App., 210 S.W. 518. On the other hand, it is equally well settled that it is not liable for such injuries to beneficiaries of the charity, provided it is not negligent in hiring or keeping the agent whose negligence proximately causes the injuries. The principle has been applied in several cases where injuries were received by patients in charity hospitals because of the alleged negligence of nurses. See St. Paul’s Sanitarium v. Williamson, Tex.Civ.App., 164 S.W. 36; error refused; Barnes v. Providence Sanitarium, Tex.Civ.App., 229 S.W. 588, error dismissed; Baylor University v. Boyd, Tex.Civ.App., 18 S.W.2d 700; Enell et al. v. Baptist Hospital, Tex.Civ. App., 45 S.W.2d 395, error refused; Steele v. St. Joseph’s Hospital, Tex.Civ.App., 60 S.W.2d 1083, error refused.”

Plaintiff’s affidavit and deposition presented no testimony that the defendant was negligent in hiring or keeping any agent whose negligence proximately caused plaintiff’s injuries; hence she failed to bring her claim within any exception to the charitable immunity rule set out in the Clayton case.

Plaintiff contends the defendant had a nondelegable duty to maintain the step on which plaintiff fell in a safe condition, and that it was negligent in several respects thereto.

In an affidavit attached to her reply to the motion for summary judgment, the plaintiff merely stated, as to the fall, “I was injured when I fell down some steps leading to Shirley Hall where I was a resident on the 10th day of December, 1960, thereby severely injuring my right ankle.”

In her deposition she testified she had lived in Shirley Hall for three months and frequently used the south entrance; that there is a wide set of steps that go down with hand rails on either side, then a long cement patio, then double steps with no hand rails and no lights near them; she was wearing rubber soled kedge type shoes; the bottoms of the shoes were corrugated; she could not say if the steps were wet; they did not feel slippery; there were lights on either side of the double doors of the dormitory. She was asked, “Tell me exactly what happened as you went down that last set of steps.” She answered, “I just simply walked down them and the next thing I remember I was on the ground.” She testified there was no foreign object on the steps; there were no holes in the steps; she did not remember seeing any water or mud on the steps; while there were no lights at the steps, it was “not by any means” completely dark. In answer to a question as to what caused her to fall on that particular step, she answered, “That is what I was trying to figure out all this time. I felt as though my foot was caught, only I don’t see how it could have been because there wasn’t anything about the step to catch my foot.”

In our opinion the affidavit and deposition failed to present an issue or issues which would establish negligence on the part of defendant in the manner of maintenance of the step in question.

The mere fact that plaintiff fell on the step did not establish negligence on the part of the defendant. Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    Charles H. FAULHABER, Appellant, v. DIAL TEMP AIR CONDITIONING COMPANY et al., Appellees.
    No. 11031.
    Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1962.
    Rehearing Denied Nov. 28, 1962.
    Wilbur T. Knape, Dallas, for appellant.
    Tobolowsky, Hartt, Schlinger & Blalock, Dallas, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a summary judgment in favor of appellees as defendant below, and that appellant, plaintiff in the Trial Court take nothing.

This suit was filed by appellant against appellees seeking recovery of damages by reason of fraudulent procurement of the original stock transaction contract, the fraudulent breach of the contract, the acquisition of $6,500.00, the property of plaintiff, and to set aside and cancel a release and to recover for actionable fraud under Article 4004, Vernon’s Ann.Civ.St.

The defendants answered by general denial and by many special exceptions to plaintiff’s pleadings, a plea of limitations, and a plea of compromise and settlement executed by the plaintiff and the defendants on February 28, 1957, setting out the written agreement in full by its terms, the said Hugh S. Martin, plaintiff below, and appellant herein, received $1,828.00 in full settlement of his claim and stock and transferred his stock in the Dial Temp Air Conditioning Company, and released all claims he may have had.

Defendants, appellees herein, filed their motion for summary judgment alleging there was no genuine issue as to any material fact and sought an order granting a summary judgment.

The plaintiff filed his controverting plea to the motion for summary judgment and alleged that there were fact questions presented constituting genuine issue of material fact.

This case has been before the Court of Civil Appeals, Dallas, in Dial Temp Air Conditioning Co. et al. v. Faulhaber, 340 S.W.2d 82, error ref. n. r. e. and in that court’s opinion the entire history of this litigation was fully set out in an exhaustive opinion by Chief Justice Dixon and we refer to this decision and do not again restate such history. The court held:

“It is undisputed that appellee Faul-haber, executed the written release on February 28, 1957, and that in doing so he had the services and advice of his own attorney. At this time he had full knowledge of the claims against appellants, which claims he relies on as a basis for his recovery of this judgment. Therefore, until set aside the release must stand as a bar against appellee’s claim in regard to the fraudulent sale of corporation stock, which claim is the basis of appellee’s suit against appellants. Hart v. Traders & General Ins. Co., 144 Tex. 146, 189 S.W.2d 493; Atkins v. Womble, Tex.Civ.App., 300 S.W.2d 688. We think it is significant that no one claims in pleadings or testimony that the release is ambiguous. The case was not tried on that theory.”

We believe the Court correctly stated the law and that the release, until set aside, does stand as a bap against appellant’s claim in regard to the fraudulent sale of corporation stock, the basis of appellant’s claim. 4 Tex.Jur.2d 696, Appeal and Error, 1007 et seq.; State Board of Morticians v. Cortez, Tex.Civ.App., 323. S.W.2d 56, affirmed 160 Tex. 532, 333 S.W.2d 839.

We believe that the Trial Court properly granted a summary judgment. Allen v. Western Alliance Insurance Co., Tex., 349 S.W.2d 590. In this case the Court held:

“ * * * In an action on a motion for summary judgment, where the motion is supported by affidavits, depositions and other extrinsic evidence sufficient on their face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing eviden-tiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate protection.”

The Trial Court properly followed the instructions of the appellate court in the prior Faulhaber case. 4 Tex.Jur.2d, Appeal and Error, Paragraph 981, p. 662 and p. 670, Paragraph 987.

Appellant contends that claims or causes of action based on actionable fraud cannot be waived or compromised and released, and that the release is void as a matter of law. This contention is overruled.

Under the annotations of Art. 4004, V.A. C.S., Note 33 on p. 559, Subtitle “33— Waiver of Right of Action,” there are many cases showing a waiver of various rights which would accrue to a party as a result of fraudulent transactions, such as: Waggoner v. Zundelowitz, 231 S.W. 721, (Tex.Com.App.), Opinion adopted by the Supreme Court; Frenkil v. Silver et al., Tex.Civ.App., 197 S.W.2d 127, err. ref. N. R.E. In the Frenkil case the court held:

“ * * * further, that since he has shown such original verbal contract to have been procured from him by actionable fraud upon part of the appellees, the verbal contract was void * * *.
“What seems to this court to be a complete answer to this overall position upon the appellant’s part is, as the trial court found, presumably at least, upon the facts, that all the quoted recitations in the motion of the appellees for the instructed verdict have been established; in other words, when the writings were indisputably shown to constitute part and parcel of the whole transaction involving the sale by the one and the purchase of the business by the others, the general averments of actionable fraud against the appellant were swallowed up and the contractual relationship so determined to have been entered into in writing between him and the appellees, whereby he had agreed * *

The judgment of the Trial Court is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Beatrice P. FUNDERBURG, Appellant, v. Marvin L. PULLIN, Appellee.
    No. 4053.
    Court of Civil Appeals of Texas. Waco.
    Nov. 8, 1962.
    Sanchez & Idar, McAllen, for appellant.
    Bridges & Oxford, Mission, for appellee.
   McDONALD, Chief Justice.

This is a garnishment case. Plaintiff, Beatrice Funderburg, on 28 August 1961, filed this proceeding against the office of Federal Employees Group Life Insurance, alleging such office held moneys due to Marvin Pullin; that Marvin Pullin was indebted to her; and prayed for judgment of garnishment. Thereafter, Bridges and Oxford filed plea of intervention alleging that Federal Employees Group Life Insurance held $2500. payable to Marvin Pullin as beneficiary on an insurance policy of Lloyd Pullin, deceased; that Lloyd Pul-lin died on 25 July 1961; that . Marvin Pullin assigned to intervenors all interest in such $2500. on 31 July 1961; and prayed for judgment for the $2500.

The Insurance Company tendered the $2500. into court.

Trial was before the Court without a jury, which, after hearing, rendered judgment for intervenors Bridges and Oxford for $2250., and $250. for attorneys for the Insurance Company for its answer in garnishment.

On plaintiff’s request, the Trial Court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized as follows:

FINDINGS OF FACT

1) In 1954, plaintiff Funderburg obtained judgment against Marvin Pullin for a sum in excess of $2500., which judgment has never been satisfied.

2) On 27 July 1961 Lloyd Pullin died, at which time he had a life insurance policy for $2500. with garnishee company, with Marvin Pullin as beneficiary.

3) On 31 July 1961 Marvin Pullin executed an assignment of his interest in such insurance policy to Bridges and Oxford (intervenors).

4) Bridges and Oxford drew the assignment.

5) No notice of such assignment was given to plaintiff Funderburg.

6) Marvin Pullin was indebted to Bridges and Oxford for sums in excess of $3000. on 31 July 1961.

7) Marvin Pullin agreed to assign his interest in the policy to Bridges and Oxford as payment on his indebtedness to them.

8) Bridges and Oxford credited Pullin’s account on 31 July 1961 for $2500.

9) Bridges and Oxford paid a valid consideration in the form of cancellation of a debt for the assignment.

10) Pullin retained no power or control over the funds after execution of the assignment on 31 July 1961.

11) The assignment was not furnished', to garnishee prior to service of the Writ of Garnishment.

12) Bridges and Oxford notified garnishee of the assignment by letter dated! 14 October 1961.

13) Pullin sought by telegram to collect the money from garnishee on 20 September 1961 and on 22 September 1961.

14) In such telegrams Pullin made no-reference to the assignment to Bridges and' Oxford.

15) Bridges’ and Oxford’s letter of 14-October, 1961 directed that the funds be-paid by a check to Marvin Pullin and Bridges and Oxford.

16) No vagueness or ambiguity exists-in the assignment by Pullin to Bridges and Oxford dated 31 July, 1961.

17) Plaintiff Funderburg caused Writ of Garnishment to be served on garnishee on; 28 October 1961.

18) Such writ was in all things regular.

19) 20) 21) Garnishee admitted its liability for $2500. subject to the rights of Bridges and Oxford, and deposited the $2500. into court.

22) $250. is a proper fee for garnishee’s attorney.

23) Plaintiff and Intervenor stipulated that the issues to be determined on trial were: 1) whether Pullin had assigned the funds prior to garnishment; 2) Whether the assignment was sufficient in law to defeat the writ; 3) The assessment of costs.

CONCLUSIONS OF LAW

1) The garnishment proceedings are regular and the court has jurisdiction of all parties.

2) Plaintiff Funderburg had burden of proving that the assignment from Pullin to Bridges and Oxford was invalid.

3) Plaintiff Funderburg failed to meet ■such burden.

4) There was good consideration for the assignment by Pullin to Bridges and 'Oxford.

5) Pullin retained no power or control •over the funds after execution of the assignment on 31 July 1961.

6) 7) Intervenors Bridges and Oxford are entitled to the $2500. less $250. for attorneys’ fees for the garnishee.

8) All other costs should be .assessed against plaintiff Funderburg.

Plaintiff Funderburg appeals, contend-' ;ing:

1) The Trial Court erred in finding that Pullin did not retain any powers or control ■over the fund after execution of the assignment to Bridges and Oxford.

2) The Trial Court erred in holding that the burden of proof was on Garnishor to prove that the assignment by Pullin to Bridges and Oxford was invalid and that Garnishor failed to meet said burden.

3) The Trial-Court erred in holding that no ambiguity or vagueness existed in the assignment by Pullin to Bridges and Oxford.

4) The Trial Court erred in admitting •such assignment into evidence.

On 31 July 1961, Pullin executed and acknowledged an assignment of “all my interest in a certain insurance policy and the proceeds thereof, on the life of my brother, Lloyd Pullin * * * Such assignment recites a consideration of his indebtedness of “several thousand dollars.” Such assignment is clear, unambiguous, unequivocal and admissible in evidence. The record is without dispute that Pullin retained no power or control over the fund after executing such assignment. Pullin testified he sent the 2 telegrams to the garnishee on 20 and 22 September, in an attempt to assist Bridges and Oxford to collect the money. Bridges and Oxford corroborated such testimony. We think the assignment valid, binding and sufficient to defeat the writ.

The record is ample to sustain the Findings and Conclusions of the Trial Court. Plaintiff’s contentions are overruled.

Intervenors urge cross points that the Trial Court erred in allowing $250. attorneys’ fees out of the fund to garnishee’s attorneys and contend that such should be adjudged as costs against the garnishor. Such cross points are overruled.

The judgment of the Trial Court is affirmed.


author: WERLEIN, Justice.

text:
    Shirley MILLER et vir, Appellants, v. Frank COWELL, Appellee.
    No. 14007.
    Court of Civil Appeals of Texas. Houston.
    Nov. 15, 1962.

      Henry Klepak, Norman A. Zable, Dallas, for appellants.
    W. T. Bennett, Mac L. Bennett, Jr., Huntsville, for appellee.
   WERLEIN, Justice.

This suit was brought by appellants, Shirley Miller and husband, W. F. Miller, in the District Court of Walker County, 12th Judicial District, Cause No. 10520, against appellee, Frank Cowell, to set aside an order of said court entered June 20, 1960 in Cause No. 10411, styled Frank Cowell v. Shirley Cowell, which order changed the custody of Deborah Lanae (Lane) Cowell from her mother, Shirley Miller, formerly Shirley Cowell, to the minor’s father, Frank Cowell.

Appellants allege in their original petition that when the judgment of divorce was rendered in said Cause No. 10411 on March 18, 1957, the custody of said minor was awarded to its mother, the present Shirley Miller; that on May 17, 1960, at the time appellee filed his petition in Cause No. 10411 to modify the court’s judgment therein and give him custody of said child, appellants were domiciled in and residents of the State of Illinois; that appellee caused to be issued notice to serve nonresident defendants in said cause and the same was served on them in Illinois; that at such time they and said minor were without the State of Texas; that although they made no answer or appearance in said cause, the court entered judgment therein giving the care, custody and control of said minor child to ap-pellee; and that the court had no jurisdiction to enter such judgment.

Appellee filed a sworn plea in abatement and special exceptions to appellants’ un-sworn petition, stating that the judgment sought to be set aside was regular on its face, adjudicated subject matter over which the court had jurisdiction, and contained affirmative recitals of due and proper service of citation upon Shirley Miller and her husband; that the court had jurisdiction of the parties and subject matter; that process had been on file for more than 10 days next prior to date of trial; that the judgment sought to be set aside was valid and subsisting; that in a direct or collateral attack upon a judgment over which the court is invested with jurisdiction the judgment of the court controls over the remainder of the judgment .roll and is not subject to being impeached; and that plaintiff’s petition should be abated and dismissed.

The only evidence introduced on the hearing of the present suit consists of said judgment entered by the trial court on June 20, 1960 in Cause No. 10411, and the notice served upon appellants in the State of Illinois, in connection with the change of custody proceedings. Said judgment recites;

“And the Defendants, Shirley Miller and husband, W. F. Miller, though having been served with citation for the time and in the manner provided by law, came not, but wholly made default, and the Court having observed the pleading of plaintiff, Frank Cowell, and having determined that the citation had been issued and served upon the Defendants, Shirley Miller and husband, W. F. Miller, for the time and in the manner required by law, and that the same has been on file for more than ten days next prior to the date hereof, and that all prerequisites of the law invoking the jurisdiction and venue of this said cause and the parties hereto had been in all things complied with, and the Defendants, Shirley Miller and husband, W. F. Miller, though having been served with process as above set out, came not, but wholly made default, and came the Plaintiff, Frank Cowell, in person and by his attorney of record, and announced ready for trial, and the Court proceeded to hear said cause as under the law provided without the intervention of a jury, and after hearing the pleadings and evidence, argument of counsel having been waived, the Court determined that the law and the facts were with Plaintiff, Frank Cowell * ⅜ ‡»

After said judgment in Cause No. 10411 and the citation in said cause were introduced, the court entered judgment sustaining appellee’s plea in abatement and dismissing the present cause of action, from which judgment appellants have duly perfected their appeal.

It is appellants’ contention that the trial court erred in sustaining appellee’s plea in abatement and in failing to set aside the judgment rendered in Cause No. 10411 changing the custody of said child, for the reason that nonresident service in child custody cases is insufficient in law and for the further reason that the trial court attempted to exercise extraterritorial jurisdiction in said cause and its judgment is, therefore, subject to direct attack.

There is nothing in the record to show that appellants were nonresidents of the State of Texas at the time appellee filed his petition to change the custody of said child or at the time nonresident notice was served upon appellants in the State of Illinois, or at the time of the change of custody hearing and entry of the judgment in question. It is true that appellants allege in their original petition that they were at such times nonresidents of this State. Their petition, however, is not evidence of the recitals made therein. The judgment of the court recites proper service and is controlling. As stated in Litton v. Waters, Tex.Civ.App., 161 S.W.2d 1095, writ ref.: “A judgment is void and may be wholly disregarded only when a lack of jurisdiction of the court rendering the same is disclosed by the record of the judgment. Although the process is considered a part of the .record, it does not follow that recitals of the judgment may be contradicted thereby.”

Furthermore, the return on the citation showing that appellants were actually served in the State of Illinois does not constitute evidence that at that time they were nonresidents of this State and citizens of the State of Illinois. Under Rule 108, Texas Rules of Civil Procedure, the form of notice to a defendant, who is a citizen of this State but absent therefrom, and to a nonresident of the State, is the same. Such rule provides that “A defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with a citation within this State.”

The notice served on appellants in Illinois shows no more than that they were served in that state. It does not show whether appellants were at such time residents of the State of Texas temporarily absent or nonresidents domiciled in the State of Illinois. Service without this State of process against a defendant who is a resident citizen of this State, but temporarily absent, confers jurisdiction. Fernandez v. Casey, 1890, 77 Tex. 452, 14 S.W. 149; Martin v. Burns, 1891, 80 Tex. 676, 16 S.W. 1072. A party may be absent from the state and yet be a citizen, and as such subject to the process of its courts. Horst v. Lightfoot, 1911, 103 Tex. 643, 132 S.W. 761; Milliken v. Meyer, 1940, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357.

The only evidence introduced by appellants in the present cause consists of said citation. No offer was made by them to introduce any other evidence. Since there is no evidence in the record contradicting the court’s .recitals in the judgment of due service of process upon appellants, and no evidence that appellants and the minor were not residents and citizens of the State of Texas and within the jurisdiction of the court at all times pertinent to the change of custody proceedings and judgment, the judgment of the trial court must be affirmed.

Judgment affirmed.


author: McDÓNALD, Chief Justice.

text:
    Loran W. HILL et al., Appellants, v. Melecio VILLARREAL, Jr., et al., Appellees.
    No. 4056.
    Court of Civil Appeals of Texas. Waco.
    Nov. 15, 1962.
    Rehearing Denied Dec. 6, 1962.
    W. R. Smith, Crawford B. Reeder, City Atty., Jack A. Efron, Asst. City Atty., Dib-rell, Gardner & Dotson, San Antonio, for appellants.
    Wolff & Wolff, San Antonio, for appel-lees.
   McDÓNALD, Chief Justice.

This is an appeal, from an order dismissing plaintiffs’ suit, after plaintiffs refused to amend, following the sustaining of exceptions to plaintiffs’ pleadings.

This suit was instituted by Hill and others, against Villarreal and V. & L. Products Company, to permanently enjoin defendants from operating a rendering plant located within the city limits of San Antonio, and surrounded by closely settled residential districts of said town. The City of San Antonio intervened in the suit as a plaintiff.

Plaintiffs plead that defendants’ rendering plant as operated constituted a nuisance; that defendants bring in and boil carcasses of dead animals; that such attracts flies, gives off offensive odors and disease germs; thereby destroying the enjoyment, comfort, health and lives of the people in the surrounding area; that such conditions proximately result from the operation of the rendering plant; that such is a continuous and permanent nuisance; that plaintiffs have no remedy at law; that the defendants were negligent in building and locating the plant under the circumstances; and plaintiffs pray for a permanent injunction abating the nuisance and enjoining the defendants from operating the rendering plant.

Defendants filed a number of special exceptions to various portions of plaintiffs’ pleadings, the effect of which was to urge that plaintiffs must allege negligent operation of the rendering plant, to plead a cause of action against its maintenance as a nuisance.

The Trial Court sustained the exceptions, and upon plaintiffs’ refusal to amend, dismissed plaintiffs’ case.

Plaintiffs appeal, contending among other things that the Trial Court erred in sustaining such exceptions; dismissing the suit; and in effect holding, that plaintiffs must allege negligent operation of the rendering plant in order to plead a cause of action against the maintenance of a nuisance.

We sustain the foregoing contention. We think plaintiffs’ pleadings alleged a cause of action for the abatement of a nuisance, and that it is not necessary for plaintiffs to allege negligent operation of the rendering plant. See Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615. In the foregoing case our Supreme Court holds:

“A business which is lawful ini itself may become a nuisance either because of the locality in which it is carried on or because it is conducted in an improper manner. * * * ”
(and) “the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business. * * *
“In determining whether a thing or a business is a nuisance the location and surroundings are important and should' be considered with other circumstances of the case. A business or industry otherwise lawful may be a nuisance because of the place where it is located or carried on, and although it is not in itself a nuisance, it may become such when it is located in a place forbidden by law or wholly uncongenial to its type of enterprise. ‘A nuisance may be a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ ”

See also: King v. Columbian Carbon Co., 5th Cir., 152 F.2d 636; Marvel Wells, Inc. v. Seelig, Tex.Civ.App., n. w. h., 115 S.W.2d 1011; Soap Corp. v. Balis, Tex. Civ.App. (n. r. e.), 223 S.W.2d 957; Vera v. Davis, Tex.Civ.App. (n. w. h.), 274 S.W.2d 739; McKee v. City of Mt. Pleasant,. Tex.Civ.App. (n. w. h.), 328 S.W.2d 224.

The foregoing authorities clearly establish that negligence need not be alleged' in order to abate the nuisance resulting from-, the operation of the rendering plant.

Moreover, plaintiffs need not seek-damages in order to be entitled to injunc-tive relief where the nuisance complained' of is of a recurring nature. Lamb v. Kinslow, Tex.Civ.App., (n. r. e.), 256 S.W.2d 903; 31 Tex.Jur. 447.

In view of another trial, we further hold that the City is not estopped from suing to abate the nuisance because of granting a building permit for the construction of the building. See City of Belton v. Baylor Female College, Tex.Civ.App., 33 S.W. 680; City of Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S.W. 724; Dworkin v. Town of Lakeview, Tex.Civ.App. (n. w. h.), 327 S.W.2d 351.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    Ben BREWER et al., Appellants, v. Cecil FOREMAN et al., Appellees.
    No. 14009.
    Court of Civil Appeals of Texas. Houston.
    Nov. 15, 1962.
    Rehearings Denied Dec. 6, 1962.

      M. M. Williams, Houston, for appellants.
    Schmidt, Garrett & Hensley, Max Gar. rett, Houston, for appellees.
   COLEMAN, Justice.

Appellants, Ben Brewer and his wife, Ann Brewer, were the proponents of a will, which was admitted to probate by the Probate Court of Harris County, Texas, as the last will of Cornelia Foreman Culpepper. On appeal to the District Court of Harris County, Texas, after trial to a jury, probate was denied.

Issues were submitted to the jury on contestants’ contentions that Mrs. Culpepper was not mentally competent to execute a will and that the will offered for probate was a result of undue influence exercised on Mrs. Culpepper by Ann Brewer. The jury was unable to agree on an answer to the issue on mental capacity, but did answer that the will was the result of undue influence. Judgment was entered on the partial verdict.

Appellants contend that there was no evidence to support the jury verdict. In considering this assignment we must accept as true all of the evidence tending to support the jury verdict. If the evidence is susceptible of different reasonable interpretations, we must adopt that interpretation most favorable to the verdict. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034.

The will offered for probate was dated October 16, 1957, and by its terms leaves all of the property belonging to Mrs. Cul-pepper to Ann and Ben Brewer, except her bonds, money on hand and bank accounts, which were left to Betty Knight and Mrs. Bob Gilmer equally. None of the devisees were related to Mrs. Cul-pepper.

The contestants are Cecil Foreman, a brother, Madora F. Blount, a sister, Dora Lee Foreman, a niece, and Clarence Fisher, a nephew. At the time the will was executed Mrs. Culpepper was 77 years of age. There was no visiting back and forth and very little correspondence between Mrs. 'Culpepper and her relatives, although Dora Lee Foreman, who lived in California, had visited with her and with Raiford Perritt, Dora Lee’s half-brother, in 1955, 1956 and 1958. Mr. and Mrs. Perritt visited Mrs. Culpepper regularly. At a time near the date on which the will was executed, whether before or after is not shown, Mrs. ■Culpepper received a letter from her brother informing her of the death of her sister Nettie, and she called Cecil at his home in Doyline, Louisiana. There is no evidence •of close attachment between Mrs. Culpepper •and her relatives. Contestants introduced into evidence copies of instruments purporting to be wills executed by Mrs. Culpepper in 1929 and in 1950 by which all of her •property was left to Mrs. Ellen Flemming .‘Smith, who was not related to her, but was ■a lifelong friend, and had visited or talked with her almost daily for many years.

Mr. and Mrs. Brewer came to the city of Houston on October 19, 1956. Mr. Brewer ■was seeking work as a millwright. They rented an apartment for one week from Mrs. Culpepper. Mr. Brewer secured jobs through the union hall from time to time. "When he had no work, he would often do ■maintenance work on Mrs. ‘ Culpepper’s property. Mrs. Brewer began to clean the halls of the apartment house. When apartments became vacant, she would clean them so that they could be rented. After Mrs. Culpepper’s maid quit, she did her apartment. Mrs. Brewer testified that' she did mot become a close friend of Mrs. Culpepper •until the Spring of 1957 and not real close until April 19, 1957. Mrs. Brewer was a licensed beautician in Kentucky and she took care of Mrs. Culpepper’s hair and ■performed other personal services for her. After a few months Mrs. Culpepper quit ■charging the Brewers rent for the apartment they used. There is little, if any, dis-pute about the facts set out above.

Other facts are disputed, but from the •evidence the jury could reasonably have believed the matters next set out, some of ■which were strongly controverted.

Mrs. Culpepper was suffering from heart trouble, periodic vaginal bleeding, arteriosclerosis, high blood pressure, a tumor on her hip, kidney or bladder trouble, varicose veins, arthritis and rheumatism. She was an alcoholic and had some difficulty with her memory. She was vain and proud and craved attention and affection. She left her apartment only once or twice in five years. She took medication regularly, including codeine and digitalis, and complained of pain. She was able to walk around her apartment and her friends visited her regularly. She had parties on her birthdays and other occasions.

Prior to April, 1957, Mrs. Smith and some of testatrix’s tenants ran errands for her, got her groceries, and did her banking. She had a maid to cook and clean her apartment. Her savings account was made to her or Mrs. Smith, as were some bonds she had purchased. Her papers and bonds were kept in a safe deposit box rented in both her name and that of Mrs. Smith.

After April, 1957, Mrs. Brewer cooked her meals, upholstered some of her furniture, and made slacks and shirts for her. She prepared the apartments and showed them to prospective tenants, but Mrs. Cul-pepper collected the rents and wrote or signed all checks. After the will in question was- signed, Mrs. Culpepper asked Mrs. Smith to remove her name as cotenant of the safe deposit box and Mrs. Brewer’s name was substituted.

In September and October, 1957, Mrs. Smith and Mr. and Mrs. Perritt noticed a change in the friendly relationship existing between them and Mrs. Culpepper. However, they continued to visit and call Mrs. Culpepper on the telephone. Mrs. Cul-pepper received' numerous visitors in private, both before and after the will in question was executed.

While the testimony of the attorney who drew the will would be considered that of an interested witness, it is undisputed that his name was secured by Mrs. Culpepper from a list furnished her by her bank. He came to her house at her request to consult with her about a will change. He prepared the will at his office in accordance with the instructions given him at that time and a day or two later returned to her home where the will was executed. Mrs. Cul-pepper requested two of her tenants to witness the will. There is no evidence that either Ben Brewer or Ann Brewer had discussed the will with the attorney or either of the witnesses prior to the execution of the will, and the lawyer testified that he had never seen nor talked to the Brewers until several months after the will was executed. The will was placed with the bank for safekeeping and, after Mrs. Culpepper’s death, was delivered by the bank to the County Clerk. Mrs. Culpepper requested Mrs. Smith to get the old will out of the bank and bring it to her because she wanted to add a codicil to it and she told Mrs. Honish, one of the attesting witnesses, that she had made a small change in her will. After the will was executed she told Mr. Perritt that she had provided in her will that she be cremated although, in fact, she had signed a separate instrument so directing.

During the summer of 1957 Mrs. Brewer told Mrs. Culpepper that she was going back to Kentucky on a visit. The idea that the Brewers might return to Kentucky, where they had lived prior to coming to Houston, worried Mrs. Culpepper. Mrs. Brewer testified that Mrs. Culpepper told her that she would always have a home with her. In June, 1957, Mrs. Culpepper wrote an instrument in her own handwriting, apparently intended as a codicil to an existing will, reading: “6/4/57 While in my right mind, at my death am leaving property at 2905 Austin St. to Mrs. & Mr. Ben Brewer — other wise my will stands as is, my diamond ring to Mrs. Pearl Perritte. /s/ Mrs. Cornelia Culpeper. Witnesses /s/ Mrs. Josie Kelley /s/ Mrs. E. N. Burger.” This instrument was given to Mrs. Brewer. The diamond ring was given to Mrs. Perritt before Mrs. Culpepper’s death. After the will'was executed in October, Mrs. Culpepper said nothing further to Mrs. Smith indicating concern that the Brewers would leave her. Mrs. Brewer knew that Mrs. Culpepper intended to make a will leaving everything to her. Neither Mrs. Brewer nor Mrs. Culpepper told the Perritts, Mrs. Smith, or the contestants that a new will had been executed.

Dr. Corbett treated Mrs. Culpepper from April 29, 1957, until her death. He was introduced to Mrs. Culpepper by Mrs. Brewer. The doctor testified that Mrs. Cul-pepper had a sound mind during October, 1957, and a number of lay witnesses testified concerning her mental capacity. There was testimony from which the jury could conclude that Mrs. Culpepper suffered from weaknesses of the mind and body caused by old age, disease, and the use of alcohol.

In the case of Long v. Long, supra, the Supreme Court of Texas announced certain general rules which govern cases of undue influence. It stated that no two cases are alike and each must depend largely on its own facts and circumstances. After giving several definitions of undue influence, the Court stated:

“2. It cannot be said that every influence exerted by one person over the mind of another is undue. The influence is not undue unless the free agency of the testator has been destroyed, and a will produced that such testator did not desire to make. 42 Tex.Jur., p. 793, sec. 4.
“3. In will cases, after mental capacity has been shown, the burden of proving undue influence is on the party contesting the probate of the will. Hart v. Hart, Tex.Civ.App., 110 S.W. 91.
“4. It is rarely possible to prove undue influence by what is generally known as direct testimony. Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances. Usually a person charging undue influence must substantiate such charges by circumstances extending over a considerable length of time. It is therefore the settled rule that undue influence can be established by what is known as circumstantial, as well as direct, evidence. Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547.
“5. Undue influence and mental incapacity are two distinct grounds for avoiding a will. Undue influence in its essential elements has no real relation to mental incapacity. Mental incapacity implies the lack of intelligent mental power; while undue influence implies within itself the existence of a mind of sufficient mental capacity to make a will, if not hindered by the dominant or overriding influence of another in such a way as to make the instrument speak the will of the person exercising undue influence, and not that of the testator. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.
“6. In spite of the rule just announced, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in determining whether or not a person was in a condition to be susceptible to undue influence. 42 Tex.Jur., p. 796.
“7. A person of sufficient mental capacity to make a will has a right to devise his property as he may see fit, so long as he transgresses no law. Also, a person in making a will rests under no legal obligation to devise his property according to the laws of descent and distribution, or according to any moral law, and the mere fact that a testator has ignored such laws is no ground for setting aside his will. In spite of this, however, the fact that a testator has left a will that is unnatural in its terms, and makes a difference between those who, according to natural law, ought to stand equal as to his bounty, may be considered as a circumstance along with other circumstances in determining whether or not the will was a product of undue influence.”

We have here evidence from which the jury might have concluded that the Brewers had established a confidential relationship with Mrs. Culpepper and had the opportunity and a motive for undue influence; that Mrs. Culpepper was dependent on them in many respects. Possibly the jury might have concluded that the Brewers had a grasping attitude. These matters were considered by the Supreme Court of Texas in Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564, where the Court said:

“ * * * The contestants established a confidential relationship, the opportunity, and a motive for undue influence and that during his last years the testator was virtually dependent upon his daughters, two of the principal beneficiaries. There is proof that the daughters made a daily charge for nursing their brother during his last illness, which indicates a grasping attitude by the daughters and a harsh and unnatural family relationship. Proof of this type simply sets the stage. Contestants must go forward and prove in some fashion that the will as written resulted from the daughters substituting their mind and will for that of the testator. Here the will and the circumstances raise suspicion, but it does not supply proof of the vital facts of undue influence — the substitution of a plan of testamentary disposition by another as the will of the testator.
* * * * * *
“In fact it is not shown that any of the children had any knowledge that the will was being executed until after-wards. There is no evidence of the direct intervention of the will and mind of the daughters or of the dominance of the free will of the testator in the preparation and execution of the will so as to bring this case within Long v. Long, 133 Tex. 96, 125 S.W.2d 1034. The fact that the testator in his will adopted the daughter’s version of the debt question does not prove that he did not do so of his own free will. There is no proof raising a fact issue that the testator did not make a free decision. Proof that the daughters were favored and that the contestants got nothing under the will is not proof that the daughters did in fact substitute their mind and will for the mind and will of the testator. Since witnesses were available to establish the facts surrounding the preparation and planning of the will, we must hold that the contestants have failed to prove their case. Proof of the planning and preparation of the will, where the witnesses are available, is the heart of an undue influence case.”

There is no evidence in this record that proponents had anything to do with the planning and preparation of this will. There is no evidence by any witness of any force, intimidation, duress, excessive importunity, fraud or other undue influence used or practiced by the proponents to overcome or subvert the will of the testatrix and induce the execution of the will.

While in a case where a testatrix is weak in mind and body, a less amount of intimidation or duress would be required to overcome her will than in the case of a healthy, strong-minded person, Taylor v. Taylor, Tex.Civ.App., 248 S.W.2d 820, in this case we find no evidence of fraud, duress, or intimidation.

The only testimony bearing on this point is the testimony of Ann Brewer that she told Mrs. Culpepper that she was thinking of returning to Kentucky on a visit. Mrs. Honish testified that Mrs. Culpepper told her that Mrs. Brewer was going to Kentucky to see her people. Mrs. Perritt testified that Mrs. Culpepper told her, “Oh, they are going to leave and I don’t know what in the world I am going to do.” She also testified that Mrs. Culpepper told her that the Brewers were going back to Kentucky to live, and that she was afraid Ann Brewer was going to go off and leave her. Mrs. Smith testified that Mrs. Culpepper told her, “Ann and Ben are going to leave and I don’t know what I am going to do.” She also testified that she did not hear Mrs. Culpepper say anything about the Brewers moving after October, 1957. The statements made by Mrs. Culpepper are obviously hearsay and are admissible only as evidence of her mental condition. Her declarations are not competent to prove the fact statements contained therein. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138; Burgess v. Sylvester, Tex.Civ.App., 177 S.W.2d 271, aff’d 143 Tex. 25, 182 S.W.2d 358.

The only inferences to be drawn from this testimony are that after Mrs. Brewer told Mrs. Culpepper she was going to Kentucky on a visit, Mrs. Culpepper began to be worried and afraid that she might not return.

Here we have an unnatural will in that the testatrix’s relatives received none of her property. However, the force of this circumstance is weakened by the fact that there was no evidence of close family relationships, and by the fact that the two previous wills executed by the testatrix made no bequests to any of her relatives. In Curry v. Curry, 153 Tex. 421, 270 S.W. 2d 208, the Supreme Court of Texas said:

“The deed made an unnatural disposition of the property only in the sense that one child was preferred over the others. This circumstance is frequently present in cases involving the issue of undue influence, but those in which it appears to have been given weight by the courts involved the absence of a reasonable basis for the preference and the presence of other strong probative circumstances.”

Here we have no evidence connecting the Brewers with the details necessary to the preparation and execution of the will. The presence of such a connection was considered highly significant in Long v. Long, supra, and the absence of such a connection was noted as significant in Burgess v. Sylvester, supra, and Boyer v. Pool, supra.

Considering the evidence in this case most strongly in favor of the contestants, we find circumstances which warrant the inference that the companionship and services of proponents were so agreeable to the testatrix that she executed the will in order to bind proponents to her and insure the continuation of such services. While the activities of Mrs. Brewer might have influenced Mrs. Culpepper to make the will in question, we cannot characterize such influence as “undue”. Curry v. Curry, supra. “Wills executed through love, kindness, and gratitude are not caused by undue influence in the eyes of the law.” Smith v. Mann, 296 S.W. 613, Tex.Civ.App., writ ref.

“The rule has been well established that the issue of undue influence is not raised unless the record contains some evidence of probative force that such influence was exercised, and that it subverted and overpowered the will of testator and caused the execution by him of a will which he would not have executed but for such influences.” Black v. Black, Tex.Civ.App., 240 S.W.2d 458.

The facts of this case suggest the quotation from Sloan v. Maxwell, 3 N.J.Eq. 563, found in McCannon v. McCannon, 2 S.W.2d 942, Tex.Civ.App., writ dism., reading: “The power of disposing of property is an inestimable privilege of the old. It frequently commands attention and .respect when other motives have ceased to influence. How often, without it, would the hoary head be neglected, deserted, and despised.” •

A question of fact was clearly raised by the evidence on the issue of testamentary capacity. Appellants’ point that there is no evidence to raise this issue cannot be sustained. Appellants contend that since the will was self proving as authorized by the Probate Code, the rule found in Leyva v. Pacheco, Tex.Civ.App., 352 S.W.2d 898, reversed Tex., 358 S.W.2d 547, requiring clear and unmistakable evidence to overcome the effect of a certificate of acknowledgment of a deed, should be applicable in this case. A will executed by one not of sound mind is invalid by reason of lack of testamentary capacity. Sec. 57, Vernon’s Ann.Probate Code. If the will is self proved as authorized by the Code, testimony showing that the testator was of sound mind at the time the will was executed is not required. Sec. 88, Vernon’s Ann.Probate Code. The effect of this provision of the Code is to place the burden of proof on this issue on the contestants. We think no further change in the prior law was intended by the provisions of the Code authorizing self proving wills.

Sec. 10, Vernon’s Ann.Probate Code, provides that any person interested in an estate may, before any issue in any proceeding is decided by the court, file opposition thereto in writing and shall be entitled to be heard as in other suits. Sec. 93, Ibid., provides that after a will has been admitted to probate any interested person may institute suit to contest the validity thereof. Appellants contend that contestants have no interest in this estate. In the absence of a valid will, contestants would inherit as heirs of Mrs. Culpepper. Appellants assume the validity of the prior wills introduced into evidence, a matter not established by the evidence. The point is overruled.

Appellants complain of the actions of the trial court in admitting evidence that testatrix used alcohol. While this testimony might have had a prejudicial effect on appellants’ case, it was admissible both on the issue of testamentary capacity and that of undue influence.

Appellants have presented other points pertaining to testimony admitted by the court over their ' objection. These points have not been properly briefed and will not be considered.

Appellants have presented a group of points relating to the argument of counsel for appellees. The argument was not reported by the official court reporter and counsel for the parties were unable to agree on a transcript thereof. Bystander bills were prepared but they were not prepared in accordance with Rule 372, Texas Rules of Civil Procedure. These points, therefore, present no error. In any event, a consideration of the controverting affidavits leads us to find that no error is presented by these points.

All other Points presented by appellants have been carefully considered and are overruled.

The judgment of the trial court is re-' versed and this case is remanded for new trial.


text:
    Mrs. Francis KUTALEK, Appellant, v. C. V. CARSON, dba Carson’s Restaurant, Appellee.
    No. 11000.
    Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1962.
    John D. Reed, Austin, for appellant.
    Clark, Thomas, Harris, Denius & Winters, John Coates and Mary Joe Carroll, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a summary judgment in favor of appellee, growing out of a suit for damages filed by appellant.

The appeal is based on two points assigned as error by the Trial Court in holding: that there was no material fact issues to be determined by a jury; and in granting a summary judgment based on the pleadings and evidence.

' The appellant instituted this suit against appellee, owner of Carson’s Restaurant, alleging that she fell on the entranceway as she was leaving the restaurant on September 16, 1960, at about 2:45 P.M., and alleged that appellee was negligent in the construction and maintenance of the entranceway: (1) in such a manner and with steps of varying degrees of height, (2) in the maintenance of the entranceway without warnings, (3) without proper hand or guard rails for persons using same, (4) in failing to give notice to the public of the dangerous character of the entranceway, and (5) in failing to exercise a reasonable degree of care at the time and place under the circumstances. Appellant alleged that she was severely injured, and set such out in some detail.

The defendant, appellee herein, answered by way of special exceptions, and denied that he was guilty of any act of negligence in maintaining the premises and particularly the front walk and steps.

Appellee -filed his motion for summary judgment alleging that the pleadings, affidavits and depositions of Mrs. Kutalek, plaintiff, appellant herein, and of her daughter Mrs. James, and the depositions of C. V. Carson, appellee, and that of W. F. Carter, show that except as to the amount of damages, there is no genuine issue as to any material fact as between the defendant' and the plaintiff.

The affidavit of William F. Carter was attached to the deposition in which Mr. Carter stated that he saw Mrs. Kutalek start to walk down the steps in front of Carson’s and saw her fall, and did not see anything causing or that could have caused her to fall, that the walk was clean, and there was no grease or other foreign matter that could have caused her to fall and that there were no cracks or defects in the sidewalk.

The plaintiff filed her opposition to the motion for summary judgment, and alleged that there were material disputed issues of fact, which were not sworn to; but there was attached the affidavit of Oscar Payne in which he stated that his wife fell on the steps, at a point opposite the North door of the restaurant in 1958, a different entrance from that used by Mrs. Kutalek.

A hearing on the motion was had and the pleadings, affidavits and portions of the depositions were presented to the court and the judgment was granted.

In the deposition of Mrs. Kutalek in response to questions answered are as follows :

“Q Mrs. Kutalek, did you notice anything about the construction of the sidewalk itself or the steps that you fell on that were the cause of your having fallen; in other words, were they slanted or slick • — in other words, were they a slick substance, or anything of that sort, or do you know anything about them, any particular thing about them that caused you to fall?
“A Well, I don’t know, — know anything, and I just can’t tell you on it.
“Q Would you repeat that again. I didn’t understand your answer? I didn’t understand your answer about the construction of the steps.
“A Well, I don’t know.
“Q Either they are, uh, the level of the steps or the height of the steps, or roughness, bumpiness,—
“A Um-huh
“Q —or anything of that sort — is there anything at all about the construction of those steps that you can attribute to having caused your fall?
“A I just can’t understand.
“Q Well, in the way those steps were built — made there—
“A Yeah.
“Q —After falling, and I’m sure after you fell you looked at the area that you had fallen on, isn’t that correct? To make sure that you hadn’t stepped on any—
“A Yeah.
“Q —grapes or anything of that sort ? Well now, after falling and looking at this place where you fell, do you — can you think of anything about those steps that, that caused you to fall, other than just the fact that they were steps? Was there anything about them, any peculiarity about the way they were constructed that caused you to fall?
“A I just, just, just can’t tell you now because it was already too long now, and I forgot.
“Q You’ve forgotten if there wan anything about them—
“A Yeah.
“Q —that did cause you to fall at the time, you’ve forgotten it since then?
“A Yeah, — Oh, I forgot it, I think. If I tell you, I have to tell you lies.
“Q Well, don’t do that. Had you ever been in this restaurant before ?
******
“Q —Just as best you can remember, just go ahead and tell me as well as you can what caused you to fall?
“A Well, people always, you know— people have the accidents in all kind of ways, you know. I mean, you are going to have the accident, that’s all.
“Q In other words, just, — people just fall—
“A Yeah, sure.
“Q —every once in awhile, is that what you are telling me?.
“A Yeah.
“Q As well as you can determine, it was just on the things that happen everyday ?
“A It’s one of them things, I haven’t fall in so long. When I went over there to the restaurant, then I fall down.
* * ⅜ * * *
“Q Do you know now what caused you to fall?
“A Well, I don’t know, just, just, I I just fell, that’s all.
******
“Q Mrs. Kutalek, did you notice anything on the sidewalk right prior to the time you fell that would make you fall?
“A Well, I never, I never — can’t tell you these lot of things.
“Q At least you didn’t see anything there ?
“A Yeah, Yeah, I didn’t see anything.
“Q Now, Mrs. Kutalek, you mentioned awhile ago that you were tired ?
“A O, yeah, I was tired.
“Q Now I want to clarify when you were tired. You mean you were tired at the time you fell?
“A Yeah.
“Q Well, what made you tired at the time you fell?
“A Well, I was tired because, because —I was just weared out.”

We believe that the trial court properly granted the summary judgment based on the motion, affidavits and the depositions and that there was no genuine issue as to any material fact, and that the moving party was entitled to judgment as a matter of law under Rule 166A, Texas Rules of Civil Procedure.

In Allen v. Western Alliance Insurance Co., 162 Tex. 572, 349 S.W.2d 590, the court held:

“In an action on a motion for summary judgment, where the motion is supported by affidavits, depositions and other extrinsic evidence sufficient on their face to establish facts which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidenti-ary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate protection. * * *
“The rule is stated in 4 McDonald, Texas Civil Practice, § 17.26, at page 1389:
“ ‘Hence the sound rule is that a genuine issue of material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, in the absence of counter-affidavits or evidence to sustain them.’ ”

In Mugrage v. Texas Employers Ins. Ass’n, Tex.Civ.App., 304 S.W.2d 189, writ dismissed, the court stated:

“ * * * An affidavit in answer to motion for summary judgment must set forth facts based on personal knowledge which refute the matters set up in the motion — if such affidavit is to prevent the granting of the motion and make for a factual issue which must be determined on the merits of the case.” Banks v. C. R. Anthony Co., Tex.Civ.App., 293 S.W.2d 858, err. ref. N.R.E.; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492.

In view of the record it is apparent that appellant has not met the burden in showing in opposition to the motion for summary judgment, evidentiary data which would raise an issue as to a material fact. Allen v. Western Alliance Ins. Co., supra.; Mugrage v. Texas Employers Ins. Ass’n, supra.

The judgment of the trial court is affirmed.