author: BATEMAN, Justice.

text:
    James FOY et al., Appellants, v. Eagan CLEMMONS et al., Appellees.
    No. 16105.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1963.
    Rehearing Denied March 1, 1963.
    Cantey, Hanger, Johnson, Scarborough & Gooch, Jack C. Wessler and Sloan B. Blair, Fort Worth, for appellants.
    Baldwin & Baldwin, Marshall, and Turner, Rodgers, Winn, Scurlock & Terry, and Lon Sailers, Dallas, for appellees.
   BATEMAN, Justice.

This is a suit to construe the last will of Ida R. Cook deceased, and the sole question presented is whether there is a valid residuary clause contained in the will or whether, the decedent died intestate as to all of her property not specifically disposed of by the will. The will in its entirety is as follows:

“STATE OF TEXAS “COUNTY OF DALLAS
“I, Mrs. Ida R. Cook, of Dallas, Dallas County, Texas being of full age and sound mind and memory, and fully realizing the uncertainty of life and the certainty of death and being desirous of settling my worldly affairs while I possess the capacity and strength to do so, hereby make and declare this my last will and testament, hereby revoking all other wills heretofore made by me, that is to say:
“FIRST: I want my home at 5006 Reiger Ave sold and the money placed in the First National Bank in Dallas. “SECOND. I direct that the expenses of my last sickness, including the expenses of my funeral to be paid first, then all of my just debts be paid in full. I want the Guardian Funeral Home to care for my body after death. I want Mr. S. C. Bovell to draw out of the home sale, all expenses he has made and a gift of Five Hundred Dollars for his tender care of me for many years. I wish Howell G. Foy to have Four Hundred Dollars and Mary Lou Blanchard to have One Hundred Dollars. I wish Francis Johnson, the little girl I raised, now Mrs. Harry JVL Johnson, living at 5500 Harcourt Ave, Los Angeles 43, Calif, to have Three Hundred Dollars. Lucy Foy and Edward Long are each to have One Hundred Dollars. Fifty Dollars is to go to each of the following: Robert Baker Bertch, James Foy, Jr., Yvonne Foy, Harriett Louise B retch’s son, and Howell G.. Foy’s unborn child. Fifty Dollars to Mrs. S. C. Bovell for her loving kindness and tender care. Twenty Five Dollars to Nathan Adams for the crippled Children’s Hospital. Katie McDonald is to have the Ice Refrigerator and a rocking chair that is in her room. My writing desk goes to James Foy, Jr., and my cedar chest to Yvonne Foy. The remainder of the furniture and all else in my house goes to my sister, Hattie Foy. If there is sufficient money left, I want Two Hundred Dollars to go to the old Marshall Cemetery for the upkeep of the lots for my mother, father and myself. All remaining money goes to my sister Hattie Foy in trust to be evenly divided among her four children at her death.
“THIRD. In case there should be complaint or dissatisfaction among the ones mentioned in this will, I direct that he or she forfeit all right to participate in the distribution of any property herein bequeathed.
“FOURTH. I hereby appoint Mr. S. C. Bovell executor of this my last will and testament, and direct that no bond be required of'him and that no action be had in the probate court under this will other other than the filing of an inventory and appraisement and list of claims as required by law.
“In testimony of all of which I hereunto set my hand at Dallas, Texas in-the presence of Mrs. Hattie Foy and Katie McDonald, Witnesses, this 27th day of September, 1945.
“(Signed) Ida. R. Cook
“The above and foregoing will and testament of Ida R. Cook is now here, at the request of said Ida R. Cook and in her presence, witnessed by us in the presence of each other, and we at the request aforesaid, hereto subscribe our names as witnesses in the presence of said Ida R. Cook and in the presence of each other, this 27th day of September, 1945.
“(Signed) Mrs. Hattie Foy
“(Signed) Katie McDonald
“STATE OF TEXAS “COUNTY OF DALLAS
“BEFORE ME, a Notary Public in and for Dallas County, Texas, on this day personally appeared Ida R. Cook, known to me to be the person whose name is subscribed to the foregoing instrument.
“GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 27th day of Sept, A.D., 1945.
“Notary Public in and for Dallas County, Texas
“(Signed) Hazel D. Morrow “(NOTARY SEAL OF DALLAS COUNTY)
“My Commission Expires:
“June 1, 1947
“(Typed) Hazel D. Morrow, Notary Public in and for Dallas County, Texas.”

The court below in a non-jury trial held the will to be unambiguous and that the sentence, “All remaining money goes to my sister Hattie Foy in trust to be evenly divided among her four .children at her death,” bequeaths and deals with money in its usual and ordinary sense and meaning, and refers to money as such and in no way disposes of or deals with any other character of property, real or personal.

The appellants are the four children of Hattie Foy and contend that the above quoted sentence in the will constitutes a residuary clause under which they are entitled to all of the estate of Ida R. Cook not specifically disposed of by her will. The ap-pellees are the descendants of other brothers and sisters of Ida R. Cook and contend that she died intestate as to all of her property not specifically disposed of by her will and that such property passed to her heirs at law.

The inventory and appraisement filed in the probate courts shows only the home at 5006 Reiger Ave. valued at $4,500; household furniture valued at $210; and cash in bank $13.70.

To begin with, the cardinal rule of construction of wills is that the intent of the testator shall be first ascertained if it can legally or reasonably be done. 44 Tex.Jur. 680 WILLS, § 134. The rule is that if the will is unambiguous the testator’s intention must be ascertained from the language used within the four corners of the will, unaffected by any assumption or inference based upon extraneous circumstances. 44 Tex.Jur. 686-7, 710.

We agree with the trial court that the will is unambiguous and properly construable as a matter of law without considering any extraneous facts or circumstances. It is clear that when the testatrix used the word “money” in the clause in question she used it in the usual and ordinary sense, as held by the trial court. Heinatz v. Allen, 147 Tex. 512, 217 S.W. 2d 994; Weathers v. Robertson, Tex.Civ.App., 331 S.W.2d 87, err. ref. n. r. e.; Wolkewitz v. Wood, Tex.Civ.App., 216 S.W.2d 611, err. ref.; Fain v. Fain, Tex.Civ.App., 335 S.W.2d 663, err. ref.; Zahn v. National Bank of Commerce of Dallas, Tex.Civ.App., 328 S.W.2d 783, err. ref. n. r. e.; Christ’s Home v. Mattson, 140 N.J. Eq. 433, 55 A.2d 14, 173 A.L.R. 651.

The judgment appealed from is

Affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    J. N. MATLOCK, Appellant, v. L. A. HOOGE, d/b/a L. A. Hooge Co., et al., Appellees.
    No. 14058.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1963.
    Rehearing Denied March 6, 1963.

      Prickett & Tracy, San Antonio, for appellant.
    Groce & Hebdon, San Antonio, for ap-pellees.
   MURRAY, Chief Justice.

This suit was instituted by James Norman Matlock against L. A. Hooge, d/b/a L. A. Hooge Co., and Charles L. Pattillo, seeking to recover damages for personal injury sustained in an automobile accident near Edin-burg, Texas. The automobile was owned by Hooge Company and was being driven by Pattillo at the time of the collision. Mat-lock, his twelve-year-old nephew, and one Ramirez were passengers in the Volkswagen automobile which Pattillo was driving, and when he fell asleep the Volkswagen struck a palm tree and caused the injuries complained of by Matlock. The trial court granted defendants’ motion for a summary judgment and Matlock has prosecuted this appeal.

Matlock contends that he was not a guest in the Volkswagen at the time of the accident, within the meaning of our “Guest Statute,” Art. 6701b, Section 1, Vernon’s Ann.Civ.Stats., but was a “business invitee.” Pattillo was an employee of Hooge Co., and was manager of the Company’s branch office in Edinburg at the time. Hooge Co. was a buyer and seller of vegetables in the Valley, and it was Pattillo’s duty, among other things, to ship the produce out of the Valley. This produce was shipped either by truck or train. Hooge Co.’s main office was in San Antonio, Texas. Matlock was an independent trucker and hauled produce around the country. He had done a lot of hauling for Hooge Co., but had made only one other trip to the Lower Rio Grande Valley. Matlock and Pattillo had been friends for several years. On May 15, 1961, Mat-lock arrived in San Antonio with a load of produce for Hooge Co., and after unloading he was advised that Hooge Co. had no return load for him, but there was plenty of hauling from the Valley. Matlock decided to continue on to Edinburg and pick up a load there. He arrived late in the afternoon and went to the branch office of Hooge Co., where he contacted Pattillo and asked if he could give him a load. Pattillo took Matlock in his car and they went to several sheds to see if Pattillo could buy a load for Matlock to haul, but was unsuccessful. Matlock then asked Pattillo about going to Reynosa, Old Mexico, to get something to eat. Pattillo informed him that he couldn’t go until he finished his work, and that he would pick him and his nephew up later at the motel where Matlock was staying, and they would go to Reynosa. Afterwards Pattillo went by the motel in the Volkswagen 'for Matlock and his nephew, they proceeded to the office of Hooge Co., where Pattillo picked up a check which he delivered to a hauler somewhere south of Edinburg, and then drove on across the Rio Grande .to Reynosa, Mexico, where they had something to eat, and Matlock drank a beer, but Pattillo did not take any alcoholic drink. They then saw a floor show and prepared to return to Edinburg. Matlock’s nephew was asleep in the rear seat of the Volkswagen. When they reached' the- Volkswagen, one Ramirez', with whom Pattillo was acquainted, asked for a ride back to Edinburg, which request was granted. With Pattillo driving, Ramirez and Matlock on the front seat, and the nephew on the rear seat of the Volkswagen, the party began their return trip to Edinburg. They crossed the bridge, and soon all were asleep except Pattillo. Pat-tillo remembered passing through Pharr, Texas, on Highway 281, about 3 o’clock in the morning, but soon thereafter fell asleep'. The Volkswagen struck a palm tree and Matlock was injured. Pattillo was driving all right until he fell asleep and struck the palm tree.

If Matlock was a “business invitee” at the time Pattillo was driving him around Edinburg, trying to get him a load to haul back to San Antonio or some other point north, he ceased to be such “business invitee” when he, his nephew and Pattillo left Edinburg to go to Reynosa to get something to eat. Matlock did not pay Pattillo anything to take him and his nephew to Rey-nosa. They were simply going across the river as friends. Each paid for his own meal. Pattillo. told Matlock that he would not be able to get him a load until the following evening. Pattillo was not in the habit of taking truckers across the river to dine. It was not the policy of Hooge Co. to have him do so. The trip to Reynosa was simply a side trip taken by friends, and it had nothing to do with business. Matlock was Pattillo’s guest at the time of the accident within the meaning of Art. 6701b, Sec. 1, supra. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

The record conclusively shows that the only negligence Pattillo was guilty of was falling asleep while driving at about 3 o’clock in the morning. Such negligence is ordinary negligence and does not constitute gross negligence. Wood v. Orts, Tex.Civ.App., 182 S.W.2d 139; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564; Kaplan v. Kaplan, 213 Iowa 646, 239 N.W. 682; 28 A.L.R.2d, § 32, p. 60. The record shows that Pattillo was not guilty of willfulness, heedlessness or recklessness, and therefore the trial court properly granted appellees’ motion for summary judgment.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    R. A. BENSON, Savings and Loan Commissioner of Texas et al., Appellants, v. SAN ANTONIO SAVINGS ASSOCIATION, Appellee.
    No. 11049.
    Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1963.
    Rehearing Denied March 13, 1963.

      Kampmann & Kampmann, San Antonio, Will Wilson, Atty. Gen., Bob E. Shannon and Dudley D. McCalla, Asst. Attys. Gen., Austin, for appellants.
    Graves, Dougherty, Gee & Hearon, Austin, for appellee.
   ARCHER, Chief Justice.

This is an action brought by appellee to set aside an order of the Savings and Loan Commissioner of the State of Texas, denying its application for permission to open and operate its eleventh branch office in, San Antonio, Texas, (said branch to be located in Handy-Andy Grocery Store No. 23, located at 4600 Fredericksburg Road). Ap-pellee’s application was submitted in July of 1961, a hearing was held on September 26, 1961, and the Commissioner’s order of denial was entered on October 26, 1961, on the grounds that the public convenience and advantage would not be promoted; that undue injury to Alamo Savings and Loan Association would result, and that the area designated by appellee was adequately served.

Appellee brought this suit, alleging that such order, and the Commissioner’s action, was “illegal, unreasonable, arbitrary and capricious and deprives (appellee.) of its rights without due process of law.” Appellants First Federal Savings and Loan Association of San Antonio, Travis Savings and Loan Association and Texas Savings and Loan Association, as well as Alamo Savings and Loan Association, all located in the City of San Antonio, Texas, intervened in support of the Savings and Loan Commissioner’s denial.

Following a pretrial hearing and order, the parties went to trial on April 16, 1962. The court entered judgment in favor of ap-pellee, holding: (1) that the order of the defendant denying appellee’s application was not reasonably supported by substantial evidence and was unreasonable, arbitrary, and capricious, and was, therefore, null and void; (2) that appellee is granted permission to maintain and operate said branch office in San Antonio; (3) that defendant Commissioner, his employees and agents, and anyone acting for him are permanently enjoined from enforcing said order or interfering in any manner with the opening, maintenance and operation of appellee’s office; (4) that said Commissioner, his employees and agents were to enter such orders, execute such instruments and take such other action as may be required to enable appellee to open and operate said office, so long as appellee complies with the valid rules and regulations of the Savings and Loan Commissioner; and (S) that the procedures and actions of the Commissioner did not deny appellee due process of law.

The appeal is founded on three points, with five subpoints under point No. 1, and in substance are that the Trial Court erred in setting aside the order of the Commissioner dated October 26, 1961, which denied appellee’s application to maintain a branch office in Handy-Andy Grocery Store No. 23, as not being reasonably supported by substantial evidence, in holding that public convenience and advantage in the area proposed to be served would be promoted by allowing the establishment of the office; in holding that there is no other association adequately serving the neighborhood; in holding proposed operation would not unduly injure any other association operating in the neighborhood; in holding that the volume of business at the proposed location is such as to indicate a profitable operation; in holding that appellee has operated its principal office for at least three years in accordance with law; in holding that Section 3.3(f) of Chapter 3 of the Rules and Regulations for Building and Loan Associations, as amended November 5, 1960, is not applicable, and in overruling appellant’s objections to appellee’s questions inquiring into the purported bias or prejudice of the Commissioner.

The record is long and we have read and considered such in detail but will not attempt to state such herein, other than to determine if the finding of the Commissioner is reasonably supported by the record, as adduced on the trial.

The issue before a Trial Court in an appeal from an order of the Commissioner denying (or granting) an application, to be determined, is: Was such action illegal or without reasonable support by substantial evidence? An order of the Commissioner is presumed valid, and the Court cannot substitute its discretion for that of the Commissioner.

We, then, consider whether or not the Commissioner’s order may be supported by the testimony under the substantial evidence rule.

Under Article 88la-2, Vernon’s Ann.Civ. St., the Commissioner finds to his satisfaction, certain fact situations.

In this instant case the Commissioner appears to have been satisfied with all phases of the application except two, although he made no findings to such effect. In stating his reasons for denying the application the Commissioner said:

“The public convenience and advantage will not be promoted by allowing such proposed additional office to engage in business taking into consideration that the proposed location of said additional office is only 2.1 miles from the applicant’s Service Center # 7, 2716 Fredericksburg Road; that proposed operation will unduly injure the Alamo Savings and Loan Association presently 3 miles distant and only 1.7 miles from their future location (land purchased for erection of) office building at the corner of Fredericksburg Road and Vance Jackson Road; that the proposed area is being adequately served.”

Since the only fact finding made hy the Commissioner is that public convenience and advantage will not be promoted by allowing such proposed additional office to engage in business; and, that the proposed operation will unduly injure the Alamo Savings and Loan Association. The Alamo is not appealing and is no longer a party to the case.

We therefore do not consider as essential to a disposition of this appeal, other phases of the case since we judge the propriety of the Commissioner’s action solely by the reasons given therein. Cleveland A. Skates v. City of Paris, No. A-9237, Vol. 6, Page 226, No. 14, T.S.C.J., January 12, 1963. Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207, December 17, 1962.

The evidence relied on in refusing the application may be sufficiently reviewed without going into too great detail, as that given by Roy E. McGinnis, a witness called by the defendant, who testified that he was vice-president of Alamo Savings & Loan Association and detailed his qualifications and experience in the savings and loan industry and as to the area of the proposed location of the branch office and the Wonderland City and the population and trade of the business situated therein. The witness further testified as to the number and location of the several branches of loan associations, and the expenses of usual operations and of the expected revenue and doubted that the branch proposed would realize a profit within three years, (the witness described the effort to secure a new location by the Alamo and the granting thereof and that he believed that the granting of the branch sought by the plaintiff would injure Alamo) and that the operation of a savings and loan branch in a grocery store was undignified and actually unsafe and extravagantly costly in nature.

Louis L. Michael, called by defendant, testified that he was president of Travis Savings & Loan Association, an intervenor, and of his experience in the loan and real estate business and that his association had no branches. The witness gave detailed testimony as to the operation of loan companies and particularly as to branches, and that he did not believe the proposed branch would be profitable and that the opening of any branch would injure all savings associations and would tend to create a monopoly.

Charles W. Cart called by intervenor, First Federal Savings & Loan Association and president thereof, testified as to the operation of savings associations generally and of his own in particular and that the granting of the branch would injure his association and would strangle his association to death; that First Federal had never applied for a branch and had no plans to apply for one.

There was much testimony given in regard to the trade area for the Wonderland Shopping City and the population growth thereof.

The proposed location is 2.1 miles from appellee’s branch No. 7, 2.6 miles from branch No. 2, 3.6 miles from branch No. 11, 4.5 miles from branch No. 20, 2.8 miles from Alamo Savings and Loan Association and 1.7 miles from Alamo’s new office location. ;

The testimony in support of the application for the branch are exhibits concerning growth of savings, population of area and the shopping center as a whole and that of witnesses testifying as to a profitable operation of the branch, public needs, and that the branch would not unduly injure any'other association operating in the area concerned,' among whom were Dr. Lawrence J. Tidrick, testifying as an expert, 'Who'set’out his qualification and business experience, stated that the growth in San Antonio, as to population and business was very great, and in the. witness’ opinion would continue to expand with a population of nearly 1,000,000 in 1970.

Walter Lehr, Jr. a real estate consultant and appraiser, concurred in the statements 'given by Dr. Tidrick.

Charles Becker, vice-president of Handy-Andy and primarily responsible for the development of Wonderland Shopping City, testified as to selection of the site for the center beginning in 1954, .and of its growth and that the site was' believed to be a coming' area, rather 'than an exclusive residential district, and described the extent, value, .size -.and development of' the center; that «there .were 38 business establishments in ■ operation and’others moving .in. The wit-■itess testified that customers from great ■distances would be pulled in, but that its steady business is the primary trade zone of jabout 27 .mile radius around it.

' 'The expanding area was testified to as containing over 36,000 people' with approximately 10,000 new homes constructed since .1945; p-nd of a need for a savings office.

:-We do not believe that the action of the 'Commissioner in denying the application is or was supported by the evidence adduced {on the trial-and that such action was arbitrary and unreasonable and that the Trial Cqurt was justified in setting such order ..aside and we affirm such judgment.

We now consider that portion of the judgment ordering the Commissioner to enter such order, execute such instruments and take such other action as may be -required to enable plaintiff to open and maintain such office, so long as the plaintiff complies with valid rules and regulations of' the Savings and Loan Commissioner respecting such operation, and do not believe the Trial Court can make necessary findings not found or rejected by the Commissioner- or substitute its discretion for his, and reverse the judgment in this respect.

“A court has the right to review the .action of the Railroad Commission, and to strike 'its orders down if they are illegal; but it has no authority to write a proration order for the Commission, nor to prescribe the terms of a subsequent Order to be entered by the Commission.” Marrs et al. v. Railroad Commission of Texas, 142 Tex. 293, 177 S.W.2d 941. Railroad Commission of Texas v. Rowan Oil Company, 152 Tex. 439, 259 S.W.2d 173. City of Waco v. Akard, 252 S.W.2d 496, Tex.Civ.App., er. ref. n. r. e. Railroad Commission of Texas v. The Texas Company, 298 S.W.2d 666, Tex. Civ.App., er. ref. n. r. e.

In view of our disposition of this cause we do not deem it essential to give further consideration of other phases of the appeal.

' ‘ The judgment of the Trial Court is affirmed insofar as the action of the Commissioner in denying the application is concerned, but reverse the judgment in granting appellee-permission to operate a branch ■office as applied for, and in enjoining the Commissioner from interfering with the opening and operating the said branch office, and in ordering the Commissioner to enter such orders as may be required to enable appellee to open and maintain said office, etc.

The judgment is affirmed in part and reversed in part.

Affirmed in part and reversed in part.


author: HUGHES, Justice.

text:
    The CITY OF TEMPLE, Appellant, v. Billie Edd WILSON, Appellee.
    No. 11048.
    Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1963.
    Rehearing Denied March 13, 1963.

      Joe Carroll, Temple, for appellant.
    Lee Curtis, Belton, for appellee.
   HUGHES, Justice.

This is a suit for damages .resulting from a collision between a City of Temple owned and operated truck and a pick-up truck and trailer owned and operated by Billie Edd Wilson. The collision occurred about 2 p. m. August 31, 1960, approximately three miles east of the County Courthouse in Belton on Farm Road No. 1741 where it makes a T intersection with a graveled road which runs south to the Belton Sand and Gravel Company headquarters.

The day was clear. The City truck was traveling west on Road 1741. Appellee was traveling east on this road. The driver of the City truck, Mr. Willie Whitley, desiring to make a left turn and enter the graveled road running south made his turn, without giving any signal, and appellee, although applying his brakes, was unable to stop his pick-up before colliding with the City’s 31' truck, at a point about six feet from the end. The point of impact was in ap-pellee’s half of the road.

Trial was to the Court without a jury. Judgment for damages for appellee was rendered. No findings of fact nor conclusions of law were requested or filed. We, therefore, make all factual statements in a manner most favorable to appellee and in support of the judgment, when authorized by the evidence.

The City charter of the City of Temple provides that notice in writing must be given the City of any claim for damages for personal injuries or destruction of property within sixty days after such damage has been sustained which notice shall, among other matters, state “when” the damage or injury occurred.

The timely notice given to the City by appellee is attacked by the City on the ground that the date of the collision is given as “August 30, 1960,” when the true and correct date was August 31, 1960.

This error is made the subject of appellant’s eighteenth point.

We regard this criticism of this notice under the circumstances of this case to be hypercritical and without substance. The damages and injuries were caused by a City employee when using a City truck. Other City employees were at the scene of the accident on the date of its occurrence and assisted in caring for the City truck.

The charter provision under consideration does not require letter perfect compliance. It does require reasonably substantial good faith compliance. Appellee has, in our opinion, met this test.

Appellant has twenty-four points other than the one above discussed. Points five to ten, inclusive and points twenty-two and twenty-three, briefed jointly, relate the absence or insufficiency of the evidence to support an implied finding that W. L. Whitley was an employee of the City and acting within the scope of his employment at the time of the collision.

Mr. John Roark, director of public works for the City at the time in question, testi-fled that it was the obligation of the City to haul the asphalt from the plant ten miles from the City to a street job in Belton.

Mr. Whitley testified, in part, as follows :
“Q. Were you working for the Street Department in August of 1960?
“A. Yes, sir.
“Q. At the time of the wreck? A. Yes, sir.
“Q. Have you always worked in that department?
“A. Yes, sir.
“Q. Now, let us talk a bit about August 31, 1960, the day of the collision. On that day who was your immediate superior or who was the man that was next in line- — I don’t guess the mayor told you what to do did he ?
A. No, sir.
“Q. Who was the first man over you in the Street Department ?
"A. Ed Candler.
“Q. Ed Candler? A. Yes, sir.
“Q. What was his title? A. Street Superintendent.
“Q. Is he still Street Superintendent?
“A. Yes, sir.
“Q. And who was over Mr. Candler? A. John Roark.
“Q. He is the City Engineer?
“A. Well, he used to be. He is the City Engineer and builder.
“Q. And was that Mr. Roark’s title back in 1960?
“A. Yes, sir.
“Q. Which one of them ordinarily gave you instructions about what you were to do each day?
■“A. Mr. Candler.
Was he the man who told you what to do on August 31, the day this wreck happened? a
Yes, sir. >
What did he tell you to do, Bill? ¡O
Well, to get No. 18, which all trucks have numbers, and to go to Mr. Bert Camp’s and to haul asphalt back to Avenue M to the laydown machine. >
Was Avenue M being paved with asphalt ? a
Yes, sir. c
You work for the City of Temple, you drive trucks and heavy equipment? a
Yes. >
And you did on August 31, 1960? 0
Yes. >
“Q. You were driving the city vehicle that was involved in a collision with a pickup and welder in which Billie Edd Wilson was driving ?
“A. Yes.
“Q. And did that occur at the intersection of that farm to market road at the Belton Sand and Gravel Company in Bell County?
“A. Yes.”

There is no evidence contrary to the above evidence on these issues. We find it not only sufficient to support the judgment as to the liability of the City for negligence of Mr. Whitley at the time of the collision, but conclusive in this respect.

By points one, two, three and four appellant contends that there is no evidence or insufficient evidence that appellee had and kept his vehicle under control at and immediately prior to the collision, and in failing to stop before the collision.

Appellee’s pick-up was pulling a trailer with a welder on it. The trailer had no brakes. The pick-up had brakes in good condition. When appellee saw the City-truck suddenly and without giving any signal commence a left turn into the side road he was traveling about thirty-five miles an hour and was about 60 steps or 180 feet from the City truck. The brakes held but the wheels failed to maintain traction and the pick-up skidded into the City truck. This sliding is accounted for by the presence of loose gravel on the asphalt farm road, a fact unknown to appellee.

Appellant cites Renner et al. v. National Biscuit Company, 173 S.W.2d 332, writ .ref. w. o. m., Tex.Civ.Galv., for the rule there stated that having a motor vehicle under control means “ * * * that the operator, by the means at his command and by the use of ordinary care, could so lessen the speed of his automobile or even stop it if necessary, as to avoid the danger of a collision without injury to any person or thing he could have reasonably anticipated as probably being on his right-hand half of the highway, or near enough thereto to be struck by any part of his automobile.”

The key words in the above quotation, applicable here, are “reasonably anticipated.” We cannot say, as a matter of lavf, that appellee, traveling at a moderate speed, could have reasonably anticipated that a 31' truck would suddenly and without warning swing into his path 18(7 from him. .. ,.

We also note here that the abruptness of the turn of the City truck is made manifest by the presence of a truck, called the Grimes truck, which was standing at a stop sign waiting to enter the farm road from the side road .into which the City truck was turning. The City truck could not “angle” into this .road. A hard left turn was necessary in order to avoid striking the Grimes truck.

We believe the question of proper control of appellee’s car was for the fact trier, and \ye overrule the points under consideration. Point eleven is that the evidence having probative force establishes that appellee was driving at an excessive rate of speed at the time of the collision. Appellant points to evidence of the force of the impact as bearing on the speed of the pick-up. These are circumstances properly considered on the issue of excessive speed of an automobile, but they are not conclusive; neither is the opinion of Mr. Whitley that appellee’s car was approaching at sixty miles per hour. Appellee testified that he was driving about 35 miles per hour. If Mr. Whitley’s estimate of speed is correct, then, it seems to us, his act in turning his truck into the path of the approaching car tends to aggravate his recklessness.

In our opinion, this issue was for the trier of the facts.

Points twelve and thirteen are that there is no evidence or insufficient evidence to sustain an implied finding that Whitley, driver of the City truck, failed to keep a proper lookout for other vehicles just prior to the collision, as alleged. The basis for this contention is the testimony of Mr. Whitley that he did not see the approaching Wilson pick-up until he had commenced his turn into the side road. The reason for this failure is explained by Mr. Whitney as follows:

“Q. Can you tell us why you didn’t see him before you started making the turn?
“A. Well, there is a low spot down in the road where you can hide a car and you can come around the corner and there is a no passing zone both ways.
“Q. Are there signs out there that say no passing?
“A. No.
“Q. Were there any signs that said no passing when this wreck happened?
“A. No, sir.
“Q. Were you aware of that spot where you say you couldn’t see a vehicle when this wreck happened?
“A. No, sir.
“Q. You did not know about it at that time ?
“A. No, sir
“Q. Who called it to your attention that there was such a spot there ?
“A. Mr. Carroll.
“Q. Have you been out there in the cab of the same truck or a similar truck to the one you were driving on that day, and driven that last hundred yards from east of the intersection, have you driven that last ICO yards down to it to see if you can see a vehicle coming up from the west?
“A. Yes, sir..
“Q. And you couldn’t see the vehicle ? .
“A. No, sir.”

In opposition to this testimony, appellee testified that he saw the City truck when he was more than 180' west of the intersection and the Whitley truck was approximately 375' east of the intersection or side road, á total distance of about 185 yards.

On cross examination Mr. Whitley testified that sitting in his truck at the intersection and looking west, the direction from which appellee’s car came, he could see the pavement for 600 yards and that there was ■“complete visibility to the west.”

In addition, tests were made by Mr. Emmett West and Mr. Mack Birtchet from points SO7, 100', 200', and 250' east of the intersection at the eye level of a person sitting in the City truck. At 50' all the approaching cars from the west, about one half mile distant, could be completely seen; at 100' they were visible from the bumper up; at 200' from the hood up; at 250' from about half the windshield up.

We believe, that, at most, the question of a proper lookout was one of fact; We also believe that the implied finding of the Trial Court was not against the weight of the evidence. We, accordingly, overrule the points under discussion.

Points fourteen and fifteen are that there was no evidence or insufficient evidence to sustain an implied finding that Mr. Whitley failed to give a proper signal of his intention to make a left turn into the side road. Mr. Whitley testified that he signaled by use of his directional light signal. Ap-pellee testified just as unequivocally that no signal of any kind was given. They were both interested witnesses and their testimony presented a pure fact issue. In addition, Mr. Grimes, a disinterested witness who was stopped at the stop sign on the side road, testified that he did not remember paying any attention to a signal. Also, Mr. R. L. Porter who was driving a car following appellee testified that he saw the. approaching City truck and that he did not see any kind of signal given before the left turn by the City truck was attempted. These points are overruled.

Points sixteen and seventeen are that there is no evidence or insufficient evidence ‘ to sustain an implied finding that Whitley did not, as charged, change the direction in which the City truck was traveling without observing that such -change could be safely made.

Appellant refers to the statement and argument made under its points fourteen and fifteen. Similarly, we refer to our discussion of those points. It is our opinion that the evidence fully supported the implied findings here attacked and we overrule these points.

Points nineteen, twenty, twenty-one, twenty-four and twenty-five, jointly briefed, are that there was no evidence or insufficient evidence to establish that Whitley was negligent or that his negligence was the proximate cause of the collision, and- that all the points specifically made require judgment for appellant.

In discussing these points appellant does not refer to any evidence not previously referred to by him nor to evidence not noticed in this opinion. For this reason, we do not again recite the facts or the evidence. It is our opinion that negligence and proximate cause were fact issues for the Trial Judge, and that his implied findings in this respect are founded upon sufficient evidence of an almost compelling nature.

Having disposed of all assignments of error presented by appellant and finding no error requiring a reversal, we affirm the judgment of the Trial Court.

Affirmed.


author: McNEILL, Justice.

text:
    Louis F. ROTHERMEL, Individually and as Independent Executor under the Will of Sallie A. Rothermel, Appellant, v. Sarah Rothermel DUNCAN et al., Appellees.
    No. 6546.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 7, 1963.
    Rehearing Denied March 6, 1963.

      W. H. Betts, Hempstead, for appellant.
    J. C. McEvoy, Hempstead, W. C. McClain, Conroe, Williams, Lee & Lee, Houston, for appellees.
   McNEILL, Justice.

This will contest involves Sallie Rother-mel’s will, which left all of her property to her son, Louis F. Rothermel, and appointed him Independent Executor of her estate. This will was probated by the County Court on October 27, 1958. Within a year thereafter this suit, contesting its validity upon the grounds of mental incapacity and undue influence, was filed against appellant by appellees, who are the children of the late Bill Rothermel, the other child of Sallie Rothermel. The contest was denied in the County Court. Trial was to a jury in the District Court and the only issue submitted was whether the will .was the result of undue influence exercised upon the deceased, Sallie Rothermel, by her son, the appellant. The jury having answered that the will was the result of such undue influence, judgment was entered favorably to the contestants and this appeal resulted.

The widow, Sallie Rothermel, and her 'own surviving offspring, the two sons, moved from Pennsylvania to Houston in 1920. The son Louis Rothermel, appellant, was married, and his mother and brother Bill, who was 16 years his junior, lived in the same house until 1934 when Bill married. For a few years then Mrs. Rothermel lived with Bill. The family was a close one and kept in touch with and helped each other. Since Bill was considerably younger than his brother, the mother leaned toward the older son for more help and assistance, especially in the earlier years of her widowhood. Bill was associated with his brother for 20 years in the very successful business of the Maritime Oil Company, which operated out of Houston transporting oil to foreign countries. In 19S2 Louis and Bill became partners in the business that lasted until Bill’s death in 1955. The mother lived alone for a period of time in the ’50’s and both sons and their families kept in close contact with and helped her. After Bill’s death the mother, Sallie Rothermel, lived with her son Bill’s widow, Bessie Rothermel, and the children, appellees, from October, 1955 to March, 1956. From March, ’56 to October, ’56 she lived with appellant. From October, ’56 to October, ’57 she lived in an old ladies’ home in Houston. During all of this time the family frequently visited her. In October, ’57 appellant, who owned a farm in 'Waller County, took his mother from the old ladies’ home to his farm. This, he stated, was done at his mother’s request. He had had for two or three years as an employee on the farm a single woman named Mary Blumberg. She lived in a 4-room house on the farm. His mother was brought to Mary’s home, where she lived from that time until her death at the age of 94 years in October, 1958.

Appellant’s brief assigns 39 points of error; but four have been expressly waived. It would be impossible in any reasonable space to deal at length with each of these points. However, we shall attempt to express our conclusions upon the controlling issues of this appeal. The first point urges that the district court erred in failing to sustain his special exception to appellees’ allegations of undue influence, asserting that they were mere conclusions and failed to allege facts or actions of appellant which destroyed the free will of testatrix. The allegations assailed are:

“B. If the said decedent did execute said will, she was unduly influenced to do so by the said Louis Rothermel and allowed the mind of such Defendant, on account of the lack of vigor of her own, to take the place of her own mind and to guide her in the making of such instrument without in fact assenting herself thereto, thus overcoming her free agency because of her age, weakness and fear, and the confidence which she placed in said Defendant.”

The exception was first filed in the district court. Trial on the question of undue influence was held in the County Court on March 7, 1960, more than a year before this special exception was presented to the court. Rule 45, Texas Rules of Civil Procedure, provides that an allegation of legal conclusion is not objectionable when fair notice to the opponent is given. Since appellant has failed to show that he was surprised, or prevented from presenting his evidence, or in anywise injured by the ruling complained of, the point must be overruled. King v. Harris Co. etc., Dist., Tex.Civ.App., 210 S.W.2d 438 (441) ; Reed v. Markland, Tex.Civ.App., 173 S.W.2d 346; Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707.

Complaint is made that the trial court erred in permitting appellees’ counsel to qualify prospective jurors by requiring them to state that they would take into consideration the fact that the witnesses to the disputed will were, at the time of its execution, in the employ of appellant. The questioning to which appellant objects, including colloquy of counsel, is found on pages 17-22 of the Transcription of Voir Dire. Appel-lees’ counsel stated * * * we say that the will is the result of undue influence.” Appellant’s counsel objected that appellees’ counsel must define “the terms or the basis upon which they propose to contest the will.” Appellees’ counsel responded, “Well, I will be glad to go into that just a little bit.” He then stated that the court will define the terms, but he asked the jury if in considering the issue they would “listen to all the evidence, (and) take into consideration” a number of facts, including “the witnesses, as to whether or not they were under the control, whose control they were under * * We think appellant’s statement that opposing counsel must define “the terms of the basis upon which they propose to contest the will” was an invitation to go into the details and explain the circumstances “a little bit” as stated by appellees’ counsel. Too, it is one thing to ask a juror if he will take certain facts into consideration and another as to the weight he would give such evidence. For this reason Lassiter v. Bouche, Tex.Civ.App., 41 S.W.2d 88, holding that the trial court did not abuse its discretion in refusing to allow prospective jurors to answer, in effect, what weight they would give oral evidence as compared to written evidence, is not in point.

Complaint is also made that in the voir dire examination appellees’ counsel asked, “Will you also take into consideration, if selected on this jury, evidence of expressions that Mrs. Rothermel had previously made as to how she wanted her property to go, if such evidence should be offered before you ? ” The contest of the will was, as stated above, on two bases, mental incapacity and undue influence. It is urged by appellant that since the issue of mental incapacity was not submitted to the jury, the question on voir dire should not have been permitted over his objection. The record reflects no request made at the conclusion of the evidence that the jury disregard the expressions made by Mrs. Rothermel. Points 2 and 3 fail to show error.

Since the points attacking the verdict of no evidence, insufficient evidence, and that of being against the great weight and preponderance of the evidence, are vigorously urged, and a discussion of those points here will be an aid to understanding rulings hereinafter made on the evidence and other matters taking place at the trial, we will next discuss these points. The briefs, both original and reply, and the statements of facts have been carefully studied.

On the question whether the record raises the issue of undue influence, it was said in Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, at p. 1036: “Bear in mind that the jury has found such undue influence. We must therefore indulge the presumption that the jury believed and accepted all probative evidence tending to sustain its verdict.” So considering the evidence, the facts substantially show: (1) that Sallie Rothermel, mother of appellant and grandmother of appellees, was a very old woman when she executed the will on January 30, 1958; that she was then old and feeble and hard of hearing, her eyesight was bad, her hands shook and she walked with a cane. She was suffering from arthritis and diabetes. After she was taken to the farm she never got out of the small tenant house except when she fell and broke a rib soon after she moved there. On that occasion she was taken to a hospital in Hempstead for two or three days because of the injury. (2) Sallie Rothermel, the deceased, was devoted to appellant, trusted him completely and relied entirely upon him to handle her affairs. He took care of all her business correspondence, affairs, and signed her checks. He kept all of her papers, including her wills (later better described herein) in his own safety deposit box. As previously stated, she lived the last year of her life on appellant’s farm, in his employee’s house and was physically unable to get outside. (3) Sallie Rothermel executed her will in 1939 by which she left all of her property equally to her two sons, appellant and Bill, appellees’ father. Appellant testified he knew of only two wills made by his mother, the ones of 1939 and 1958. There was other testimony that she executed a will in 1938. There was further testimony that she had executed a will some time between 1942 and 1943 witnessed by a Mr. and Mrs. Hill. The will presently involved was dated January 30, 1958. Testatrix discussed the preparation of this will with appellant only. This was done some time in the latter part of ’57 or the early part of January, ’58. The testimony in reference to this came only from appellant and his testimony thereon vacillated back and forth. He stated that his mother requested him to bring her old will of 1939 to her and after she had had it a few days she told him she wanted to make another will leaving everything to him. He then drew the will in Houston and either used the 1939 will, or one of his own, as a pattern. He stated he consulted no attorney, but said he added to the will the clause that if he should predecease his mother then the property would go to all of her grandchildren which would include appellees and the child and grandchildren of appellant. He stated that he took this will out to the farm and gave it to his mother, who kept it several days. Then, a short time before she became 94 years old, she advised him she wanted him to get Mary Blumberg and her brother, August Blumberg, who was another farm employee of appellant, to witness the will, which he did. The will was signed by his mother before these two witnesses of appellant. At the time he was in the house but not in the room where they were. (4) Immediately after the will was executed it was delivered by Sallie Rother-mel to appellant. He took it and placed it in his safety deposit box and no one knew of its execution except the witnesses thereto and appellant until some time after his mother’s death. The testatrix signed the will without comment at his suggestion. No one read the will or explained the will to her or saw her read it. She never mentioned the execution of this will except to Mary Blumberg. Appellant gave $1,000 to the witness Mary Blumberg shortly after the will was probated. (5) Sallie Rothermel was equally devoted to her two sons and she loved her grandchildren equally, and her 1939 will left her estate equally to her two sons. Disinterested witnesses had heard her declare numerous times that she intended to leave her estate equally to her grandchildren after her death. (6) Testatrix was proudly aware that appellant was a very successful business man and she knew the nature and extent of his wealth. If the 1939 will which appellant described had been left to be the last will of the deceased, one-half of her property would have passed to her son Louis, appellant, and the other half to the children of her son Bill, appellees here. She did not attempt to change this 1939 will for more than two and one-half years after her son Bill’s death and then only after she had moved to appellant’s country farm. Appellant did not suggest to his mother that an inheritance tax saving would exist if she left her 1939 will in effect. The testimony clearly raises the issue of undue influence, Long v. Long, supra.

Against the above, appellant urges that the only direct testimony of the making of the questioned will was that of appellant and his witness Mary Blumberg, and it is said that their testimony was clear, concise and convincing; that the witness Blum-berg is a disinterested one. It is true that no direct testimony controverts most of what was testified to by appellant and his witness. This sort of direct contradiction is in almost all such cases impossible. Proof of undue influence must come in most cases through circumstantial evidence. Truelove v. Truelove, Tex.Civ.App., 266 S.W.2d 491 (W.R.). The following testimony of Mary Blumberg is emphasized by appellant. She stated that the deceased told her, “I’m happy that I have my will fixed up like I want it, so that Louis can get what I want him to have. I think he’s the — is the deserving one.” This witness also stated that the deceased was a person of strong will and could see well. As stated later herein, we think the testimony of Mary Blumberg is subject to the charge of bias. Appellant testified that when his mother wanted to change her will in January, 1958, leaving everything to him, he reminded her that under the will (of 1939) she then had, one-half of her estate would go to the family of her deceased son, Bill Rothermel, but in answer to him he quoted her as saying: “I know that, but I want you to have it. You can’t tell what might happen to you, you might need it and I want you to have it * After you get through with it, you can leave it to — you can dispose of it any way you want,”. The jury probably doubted, in view of the fact that she knew her son was wealthy and he was then 69 years of age, that she had any such belief or made such statement. Near the end of the trial, appellant clouded his last testimony, that he advised his mother that the 1939 will would pass one-half of her property to Bill’s children. His last testimony on this was he did not discuss the terms of the 1939, will with her. Considering all of the evidence, we conclude that the finding of the jury is not subject to the charge of insufficiency of the evidence nor that of being against the great weight and preponderance of the evidence.

The contested will was made January 30, 1958. Mrs. Rothermel died in October following. On December 1, 1958, appellant made out checks for $1,000 each, one to Mary Blumberg, a witness to this will, and one epch to ' two nieces, two nephews, a daughter and two grandchildren, totaling $8,000.00. These checks were transmitted to the recipients by letters, one being written to Mary Blumberg and another to Bessie Rothermel, appellees’ mother, for the benefit of her children, the two nieces and two nephews. While the witness Mary Blumberg was on the stand she testified without objection that she had received a letter from appellant with the $1,000 check shortly after testatrix died. When later in the trial appellant was examined about this check, his counsel objected that it was irrelevant, incompetent, immaterial and calculated to prejudice appellant before the jury, and pyramiding inferences upon inferences. The trial • court allowed the testimony for the limited purpose of an admission against interest, showing bias or interest of the witness Mary Blumberg, and as a part of the circumstances surrounding the execution of the- will. In testifying further, appellant stated he wanted to give the whole story about payment of these sums of money, which he did without objection. He stated that his mother, not long before her death, told him she wanted him to give Mary Blumberg something as she had been very helpful to her. The letter to Mary Blum-berg was never offered in evidence. Although the letter to Bessie Rothermel transferring checks for her children stated that it was the testatrix’s wish that each of her grandchildren and ' great-grandchildren should have $1,000 out of her estate, appellant testified that the gifts to these nieces and nephews were out of his own generosity and not at the testatrix’s request. Bessie Rothermel testified without objection that she knew nothing about the will until she received the four $1,000 checks from Louis Rothermel in the máil. The letter accompanying these checks was admitted over appellant’s objection as set forth above. Appellant had himself, however, voluntarily testified to the same effect without objection previously.

Appellant insists that Chaddick v. Haley, 81 Tex. 617, 17 S.W. 233, is directly in point and holds that the evidence with reference to the payments of said sums of money, and the letter written to Bessie Rothermel were improperly admitted. The Chaddick case does not control the present one. When testatrix changed her will so as to eliminate her son Bill, and consequently his children, from sharing in her estate, and left all of it to her son, the appellant, he must have realized that in all probability these nieces and nephews, Bill’s children, would be unhappy. Faced with this situation, it may have behooved him to send Mary Blumberg, who worked for appellant for years prior to a short time before the trial and who lived with testatrix for the year immediately before her death, the gift of $1,000. In view of the fact that appellant relied upon Mary Blumberg’s testimony to sustain the will, it was proper for appel-lees to contend the money could have been given to her in order to influence her interest in behalf of appellant. Mary Blum-berg was not mentioned in the will. Her possible bias could be shown. McCormick & Ray, Evidence, Vol. 1, pp. 514, 516. See, also, Tex-Jersey Oil Corp v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062. The gift of $4,000 to the nieces and nephews could be said to have been for the purpose of keeping them from contesting the will. The will, so recently made, made no mention of them. Later though, these checks for the children were returned by their mother to appellant. Appellant himself having testified without objection to sending these checks, we fail to see how testimony by Bessie Rothermel to the same effect may .be used to show material error. Sanger Bros. v. Craddock (Tex.Sup.), 2 S.W. 196; McKee v. Reed, Tex.Civ.App., 166 S.W.2d 353.

Appellant complains that appellees’ -counsel elicited from the witness Mrs. Hill testimony concerning the execution of a will by the deceased between 1941, or ’43 and ’45, and her testimony that testatrix stated to her, “I have a new grandchild and I am going to have to change my will because what little I have, and my bonds, I want to divide it equally, and would you sign-—■ witness my will some time soon.” This testimony was offered by appellees to show that testatrix told the witness she was leaving her property to her grandchildren, and in order to throw light on appellant’s testimony when he said he knew of no wills •other than those executed in 1939 and 1958. Appellees’ witness Mrs. Bessie Rothermel was permitted to testify that she was a witness to the will made by testatrix in 1938 and knew about the one witnessed by Mr. and Mrs. Hill in 1941; and by inference stated that the 1938 will left her property to the grandchildren. Appellant examined the witness at length with .reference to these wills. The circumstances fail to show error.

Complaint is also made the witnesses Mrs. Hill, Mrs. Rothermel and Mrs. Liver-man were permitted over appellant’s objections to testify that testatrix had stated in their presence long prior to the execution of the 1958 will that she intended to- devise her property to her grandchildren equally. While there was some reference to statements thus made many years ago in explanation of the circumstances of the earlier wills having been made, there was substantial testimony by these witnesses that within the last five years of the life of the testatrix she had made these same statements. Appellant relies upon the case of Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 to exclude the testimony. On a careful examination, this case clearly upholds the admission of statements of the kind testified to. See 166 S.W. 1147. Ordinarily remote statements of this kind should not be admitted, however. See Vol. 1, p. 676, McCormick & Ray, Evidence, Sec. 896.

Appellant’s 9th point states that the trial court erred in permitting appel-lees’ counsel to elicit from their witness Mrs. Bessie Rothermel her testimony to the effect that her late husband, Bill Rothermel, had told her several times that the estate of testatrix was going to be equally divided among her grandchildren, over the objection that same was hearsay. We think the complaint takes the circumstances out of context. At that time the witness was relating her telephone conversation with appellant in December, 1958. In this conversation appellant wanted to know how the witness knew about the stock testatrix owned in the Insurance Company of North America. She replied she knew plenty about it and then stated that her husband Bill had always said that Grandma’s estate was to be equally divided among her grandchildren, and that her stock was to go to her grandchildren. If the admission of this last statement was improper on the ground that it was hearsay, it certainly would be cumulative of much testimony to the same effect and its admission was therefore harmless.

Appellant also asserts that at the end of the evidence he requested an instruction which was refused:

“You are instructed that no statement or declaration made by a testator (or testatrix) can be considered as evidence of undue influence and, in arriving at your answer to this special issue, you will not take into consideration any statement or declaration made by the testatrix, Sallie A. Rothermel, to any of the witnesses before you which are of different import than her will of January 30, 1958.”

The instruction was properly refused. Scott v. Townsend, supra.

Complaint is made that the court severely rebuked appellant’s counsel when during a cross-examination by him of Mrs. Bessie Rothermel she was insisting upon making unresponsive answers and in getting before the jury matters she believed to be helpful to appellees’ case, and appellant’s counsel was attempting to dissuade such witness from continuing to do so. We have carefully examined this excerpt of the record and are satisfied that the complaint is not supported by the .record. Appellant’s counsel was arguing with the witness instead of requesting the court to direct her answers. The following reflects the colloquy :

“THE COURT: Just a minute, Counsel, Now, you just make your objection to the Court and don’t argue with the witness.
“Go ahead. That’s all. You have answered the question. Now, that’s all. Let’s move along.
“MR. BETTS: We take exception to the—
“THE COURT: You may have a bill.
“MR. BETTS: —manner of remonstrance by the Court. It is prejudicial to the defendant.
“THE COURT: You may have a bill, two of them, as far as the Court is concerned, Counsel. Move along.
“MR. BETTS: It is calculated to prejudice the jury.
“THE COURT: Yes, sir. You may have a bill. Move along.”

From a reading of the entire statement of facts, one is impressed by the fairness and clarity of the trial court’s rulings. In mentioning that counsel may have a bill, “two of them”, is some indication that he may have become irritated by the conduct of counsel, but it must be recognized that the decorum and control of the courtroom is in the trial court’s hands and he deserves reasonable discretion in regard to these matters. The proceeding does not reveal error.

Appellant asserts that it was error for the trial court to allow appellees, for impeachment purpose, to introduce in evidence appellant’s pleadings, which had been stricken on exception, to the effect that stock owned by testatrix in the Insurance Company of North America had been purchased, at least partly, by insurance money which testatrix received upon her late husband’s death in the early part of this century. This point fails to reflect error. McCormick & Ray, Texas Evidence, Vol. 1, Sec. 696, p. 544.

Complaint is made of the charge of the court defining undue influence. It is said that the instruction given constituted a charge upon fraud and since no fraud was alleged the charge was improper. The following constitutes the entire instruction of the court on undue influence:

“You are instructed that ‘undue influence’, as used herein, is defined as being any fraudulent or designing means employed upon and with the testatrix by which, under circumstances and conditions by which such testatrix was surrounded, she could not well resist and which controlled her volition and induced her to do that which she otherwise would not have done. In this connection, you are instructed that weakness of body and mind, whether produced by the infirmities of age or by disease, may be considered as a material circumstance in determining whether the testatrix was in condition to be susceptible of undue influence.
“You are further instructed that undue influence can be established by circumstantial as well as by direct evidence. Opportunity to exert undue influence may be considered, but you are instructed that undue influence cannot be inferred alone from motive or opportunity, but there must be some testimony to show that undue influence not only existed but that it was exercised with respect to the making of the will.”

The first sentence of this instruction is practically the same as that found in Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (214), and the balance of the definition was taken verbatim from the charge approved in Truelove v. Truelove, supra, 266 S.W.2d at p. 494. Since our courts hold that undue influence is itself a species of legal fraud, Bradshaw v. Seaton, Tex.Civ.App., 60 Tex.Civ.App. 278, 128 S.W. 943; Smith v. Mann, Tex.Civ.App., 296 S.W. 613, we think the charge given is not susceptible to the criticism that it constituted a charge upon fraud. It is said that the court should have defined the phrase “designing means”. No definition was tendered. The complaint is unsound. Rule 279, T.R.C.P. The other requests for special instructions were properly refused as they would tend to overlap the charge given and confuse the jury. Gallagher v. Neilon, Tex.Civ.App., 121 S.W. 564 (569).

Appellant assigns 9 points against statements made in opposing counsel’s closing argument. They are summarized as follows: he improperly contrasted the wealth of the parties; appellant was grasping and would wrong his own daughter; that appellant has schemed for months to isolate testatrix and take her to his farm and withhold contacts with her friends in order to subject her to undue influence; that appellant gave Mary Blumberg $1,000.00 for the ^purpose of obtaining favorable testimony and that appellant “knew that the $1,000 paid to one of the witnesses, that it wasn’t going to hurt anything”; that appellant had destroyed a previous will, when a disinterested witness testified testatrix destroyed it herself; that it was improper for appellees’ counsel to argue to the jury they were acquainted with the law of Descent and Distribution and urge that the will be set aside ; it was improper to tell the jury that appellant knew in absence of the will that under the law of Descent and Distribution his brother’s children would take one-half and he one-half and was an appeal to sympathy and inflammatory; it was error for counsel to comment on failure of appellant to put August Blumberg on the stand, and implied that his testimony would be unfavorable to appellant. Transcript of the closing arguments is before us.

Only twice did appellant make objection at the time the complained of argument was made. The first is in connection with the 18th point which complains of the statement of appellees’ counsel that appellant destroyed the 1939 will. The argument complained of, in referring to the 1939 will, was that appellees’ counsel stated that appellant “didn’t see fit to preserve it, but was rather willing to rely upon the — ” when obj ection was made:

“MR. BETTS: Your Honor, that is a misstatement of the record. The record shows that Mrs. Sallie Rother-mel told him that she destroyed it.
“THE COURT: The jury remembers the testimony. Go ahead counsel.
“MR. McCLAIN: If the record shows it, if there’s any such testimony as that in the record, I didn’t hear it, and you gentlemen perhaps did. I didn’t.”

No request was made by appellant to instruct the jury to not consider the remark. This was the burden of appellant. 41-B Tex.Jur., Sec. 289, pp. 348-350. In such situation he must have assented to the court’s comment. Texas & P. Ry. Co. v. Mix, Tex.Civ.App., 193 S.W.2d 542(10).

The other objection promptly made to argument is to that assailed in appellant’s 19th and 20th points. The following discloses the record:

“We say that under the previous instrument, that the grandchildren would be participating and now he is ahead any way you go. Even upon the finding here, he still gets half of it because under the—
“MR. BETTS: Your Honor, we object to that argument. It is advising the jury of the effect of their answer.
“MR. McCLAIN: Well, don’t pay any attention to that, gentlemen,—
“THE COURT: Sustained. You won’t consider it.
“MR. McCLAIN: —what I said, and you forget what I said, but we will say this. He did admit under the old will that he said as it existed, he admitted that he got half and they got half. That’s what he said. Under the law of descent and distribution, as you know it is, as you know the law of descent and distribution, that upon—
“MR. BETTS: —and we ask that the jury be instructed not to consider it for any purpose, and we also request that the jury be instructed not to consider the statement just made by counsel with respect to the effect of their answer.
“MR. McCLAIN: I have told them not to—
“THE COURT: The Court has already instructed them upon it.
“MR. BETTS : Note our exception.”

The jury must have realized, as reasonable persons, that if they answered the only issue given them, that the 1958 will was the result of appellant’s undue influence, appellees would share in their grandmother’s estate. Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035 (1040). But if there was error, the court’s instruction along with counsel’s request that the jury “forget” what he said eliminated the error. 41-B Tex.Jur., Sec. 298, pp. 365, 366.

Having read the entire statement of facts and the entire closing arguments, it is believed that the other arguments attacked were warranted by the evidence. It is counsel’s right to draw conclusions from the evidence, although those conclusions may not be the most reasonable ones. Piedmont Fire Ins. Co. v. Dunlap, Tex.Civ.App., 212 S.W.2d 996; In re Northcutt’s Estate, Tex.Civ.App., 340 S.W.2d 510. It was shown that August Blum-berg, appellant’s employee, was in attendance at court. That appellees’ counsel called attention to the fact appellant failed to put his employee on the stand was fair comment. Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062.

It is stressed that the comparison of financial circumstances between appellant and appellees in counsel’s closing argument was inflammatory and prejudicial to appellant. The facts show that testatrix loved her sons and grandchildren equally, and at the time she made the will in contest appellant was practically 70 years of age and well fixed. Though appellees were not in straitened circumstances, it was clear that they had considerably less than did appellant — and were a half century younger. In our judgment the comparative financial circumstances of the parties, their health and age were subjects, in the circumstances of this case, upon which to make fair comment. Craycroft v. Crawford, Tex.Com.App., 285 S.W. 275; 95 C.J.S. Wills § 463, p. 447. The matter was not dwelt upon nor unduly emphasized.

All items of argument criticized against which no objection was made at the time, if improper, could have been corrected by instruction from the court. 41-B Tex.Jur., Sec. 297, pp. 363-365. Failure to object to such argument at the time made waives any possible error. Wade v. T. E. I. A., 150 Tex. 557, 244 S.W.2d 197. The trial court’s judgment is not subject to the points assigned, and is therefore affirmed.


author: WERLEIN, Justice. COLEMAN, Justice

text:
    R. C. OVERSTREET, d/b/a Keeland-Overstreet Hardware Company, Appellant, v. HOUSTON COUNTY, Texas, et al., Appellees.
    No. 14119.
    Court of Civil Appeals of Texas. Houston.
    Feb. 21, 1963.
    Rehearings Denied March 14, 1963.

      J. B. Sallas, Crockett, for appellant.
    Nat Patton, Jr., County Attorney, Crockett, for appellees Commissioners Court of Houston County, Texas.
    Adams & Granberry; F. P. Granberry, Crockett, for appellees T. D. Craddock, Individually and d/b/a Craddock Hardware Co. and Carl Renfro, d/b/a Renfro Electric Clinic.
   WERLEIN, Justice.

This is an appeal from an order of the trial court denying appellant, R. C. Over-street, d/b/a Keeland-Overstreet Hardware Company, a taxpaying citizen of Houston County, a temporary injunction against Houston County, Texas, et al. The suit was brought by appellant individually and in the nature of a class suit, praying for a temporary restraining order, temporary injunction, and, on final hearing, a permanent injunction, enjoining appellees from proceeding further with the air conditioning of Houston County Courthouse, or from performing or doing any work in connection therewith.

Appellant alleges in substance that on or about June 1, 1962 the Commissioners Court of Houston County invited bids on a proposed project to air condition the Courthouse in accordance with certain plans and specifications; that he and appellee, T. D. Craddock, d/b/a Craddock Hardware, submitted sealed bids; that Craddock was low bidder and was awarded the contract on July 9, 1962; that Craddock thereafter learned that he could not comply with the terms of the plans and specifications because the company he represented, as local agent, did not manufacture the type of units specified, and he so informed members of the Houston County Commissioners Court, who on July 26, 1962 authorized Craddock to deviate from the original plans and specifications and to furnish different types of equipment than that specified, thus letting a new and different contract without advertising for bids, in violation of Section 2, Article 2368a, Vernon’s Annotated Texas Civil Statutes; that the Commissioners Court failed to execute a contract in behalf of the County and failed to require Craddock to execute performance and payment bonds, in violation of Articles 2368a, Sec. 2, and 5160, V.A.T.S.; and that the actions of the Houston County Commissioners Court are void and subject to being enjoined by any taxpayer.

Appellees take the position that the contract awarded Craddock though1 originally not formally prepared, is evidenced by the minutes of the Commissioners Court; that the transaction of July 26, 1962 was simply a change in the specifications with respect to certain personal property after the installation work had begun; that the change consisted of changing the voltage for the new equipment from 208 to 230, together with the installation of necessary transformers, and of changing certain of the window type air conditioners by substituting eleven 1 HP units, six 1½ HP units and one 2 HP unit for nineteen 1 HP units originally specified; that the change in voltage, installation of transformers necessary therefor, and change in the window units specified were at no cost to the County and did not change the contract price; that Craddock sublet to appellee, Renfro, the job of installing the transformers at no additional cost to the County; and that the original agreement of the County and appellee Craddock and the change in the specifications were reduced to formal contract and the performance and payment bonds defined by Article 5160, V.A.T.S., were executed, approved and filed during the temporary injunction trial.

We are of the opinion that the trial court did not err in refusing to grant the temporary injunction upon termination or dissolution of the temporary restraining order which was issued August 4, 1962 and which had been continued in force by timely and appropriate orders. Houston County Commissioners Court advertised for bids as required by Sec. 2, Art. 2368a, based upon the original plans and specifications, and the contract was awarded to appellee Crad-dock, whose bid was $13,358.25, as opposed to appellant’s bid of $14,451.58. After performance of the informal contract awarded said appellee on July 9, 1962 commenced, the Commissioners Court on July 26, 1962, for reasons considered by it to be sufficient, concluded that it was necessary to make changes in the original plans and specifications and approved changes which did not in any way increase the total contract price. As shown by the trial amendment filed by Craddock and Renfro on August 28, 1962 the informal contract of July 9, 1962 and the agreement of July 26, 1962, making the necessary changes, were reduced to writing and duly acknowledged by the parties thereto on August 27, 1962, prior to the. entry of the trial court’s judgment on September 4, 1962 dissolving the temporary restraining order and denying appellant’s application for a temporary injunction.

We do not agree with appellant that the agreement making the changes constitutes a new and entirely different contract. It provides that except as modified, the contract of July 9, 1962 shall remain in full force and effect. It further provides that the specifications set out in the contract of July 9, 1962 are changed by deleting therefrom “19 1 HP window type air conditioning units, 208 Volts with a minimum of 12,-000 BTUs per hour capacity each” and by substituting therefor “11 1 HP units with 10,000 BTUs, 6 U/2 HP units with 15,000 BTUs, and 1 2 HP unit with 18,000 BTUs.” The agreement also provides for certain wiring and the installation of certain transformers necessary to supply the proposed air conditioning system with 230 volt current instead of 208 volt current, and states that the County had made an agreement with Carl Renfro for certain wiring and the installation of certain transformers necessary to supply the proposed air conditioning system with 230 volt current instead of 208 volt current, and that the contract price between the contractor and the County would be reduced by the sum necessary to pay the said Carl Renfro for his services.

Article 2368a, Sec. 2a, V.A.T.S., effective May 8, 1953, provides:

“In the event it becomes necessary to make changes in the plans or specifications after performance of a contract has been commenced, or it becomes necessary to decrease or increase the quantity of work to be performed or materials, equipment or supplies to be furnished, the Commissioners Court or governing body shall be authorized to approve change orders effecting such' changes but the total contract price shall not be increased thereby unless due provision has been made to provide for the payment of such added cost either by appropriating available funds for that purpose or by authorizing the issuance of time warrants as provided in the Act amended hereby.
“Provided, however, that the original contract price may not be increased under the provisions of this Section 2a by more than twenty-five (25%) per cent or decreased more than twenty-five (25%) per cent without the consent of the contractor to such decrease.”

In comparing the original specifications with the change order agreement it is noted that no change is made in some 7 of the air conditioning units, including two 4 HP central system units in the District Court and one 5HP central system unit in the County Court. It is our view that the Commissioners Court was authorized by Article 2368a, Sec. 2a, V.A.T.S., to make the changes deemed necessary by it and that it was not 'required to let on competitive bidding the original specifications and plans as modified by the agreement of July 26, 1962.

Even before the amendment in 1953 adding to Article 2368a Section 2a, which authorizes the Commissioners Court or other governing body to make changes in the plans and specifications after performance of a contract has commenced, the Commissioners Court, had authority to make considerable modifications in the original contract. Headlee v. Fryer, Tex.Civ.App., 208 S.W. 213, writ dism. It is manifest that under Section 2a extensive changes may be made so long as the original contract price is not increased more than 25% or is not decreased more than 25% without the consent of the contractor to such decrease. In the instant case, as above stated, no change was made in the contract price. It may be observed also that the evidence shows that appellee offered to perform the contract according to the original plans and specifications, but the Commissioners Court preferred that the suggested changes be made.

Appellant asserts that the court erred in not granting his application for a temporary injunction since the oral contract between Houston County Commissioners Court and Craddock violated Section 2 of Article 2368a, V.A.T.S., and also Article 5160, V.A. T.S., in that payment and performance bonds were not required. Article 2368a, V.A.T.S., makes it mandatory that the successful bidder on any contract for the construction of public works be required to give a good and sufficient bond in the full amount of the contract price, for the faithful performance of such contract, in accordance with the provisions of Article 5160, V.A.T.S.; 34 Tex.Jur., p. 741, Public Works and Contracts, Sec. 8. Article 5160, V.A.T.S., provides in substance that any person entering into a formal contract in excess of $2,000.00 with any County of this State or any governmental authority authorized under any law of the State to enter into contractual agreements for the construction, alteration or repair of any public building or the prosecution or completion of any public work, shall be required before commencing such work to execute to the governmental authority a performance bond in the amount of the contract conditioned upon the faithful performance of the work in accordance with the plans and specifications for the protection of the governmental authority awarding the contract, and a payment bond in the amount of the contract .for the protection of claimants supplying labor and material for the prosecution of the work provided for in the-contract.

The performance bond and payment bond in this case were not executed, approved and filed until after the .work had commenced and the hearing on the application for temporary injunction had begun. Prior to dissolution of the temporary restraining order, which was properly issued, and the order of the court denying appellant a temporary injunction, appellee Craddock had provided the required bonds which were approved and filed.

We agree with appellant that the contract in question called for the construction of public works, in that the central system air conditioners as well as the window units were to be installed in the Courthouse as fixtures, or improvements of a fixed nature, and that it was therefore necessary for Craddock to provide the required bonds. 34 Tex.Jur., p. 731, Public Works and Contracts, Sec. 2, and authorities cited.

In Globe Indemnity Company v. Barnes, Tex.Com.App., 288 S.W. 121, the court said:

“The purpose of the statute under consideration was to protect persons furnishing material or labor in the construction of public works against which there could exist no lien for their protection. The method pursued was intended to effect this protection through a bond required to be executed by the contractor. The execution of the bond conditioned as required by the statute is made a condition precedent to the right to commence such work. Such a contract can only be carried out lawfully after the execution of the bond as required by statute. The effect of the statute is to declare the liability of one executing the bond for such a contractor.”

In the instant case, while the bonds were filed late, they were filed during the temporary injunction hearing and before judgment was entered and in time to accomplish the legislative purpose of protecting the County and persons furnishing material or labor for the construction work. Ordinarily if the legislative purpose is accomplished the law is satisfied. In Kerbow v. Wooldridge, Civ.App., 184 S.W. 746, error ref., there was a defective bond which did not comply with the statute, but the court allowed a recovery because the bond was good as a common law obligation.

Art. 2368a, Sec. 2, providing for submitting to competitive bids any contract calling for or requiring the expenditure or payment of $2,000.00 or more, and for giving a performance bond in accordance with the provisions of Art. 5160, V.A.T.S., also provides:

“Any and all such contracts or agreements hereafter made by any county or city in this State, without complying with the terms of this section, shall be void and shall not be enforceable in any Court of this State, and the performance of same and the payment of any money thereunder may be enjoined by any property taxpaying citizen of such county or city.”

If such contract is not submitted to competitive bids, it is void and of no effect whatever and cannot be ratified. 34 Tex.Jur., p. 734, Public Works and Contracts, Sec. 3, and authorities cited; Limestone County v. Knox, Tex.Civ.App., 234 S.W. 131. In the instant case, the contract was submitted to competitive bids, and hence was not void ab initio. Sec. 2, Art. 2368a, V.A.T.S., further provides that the successful bidder shall be required to give a bond for the faithful performance of the contract in accordance with Art. 5160. Article 5160 provides that the contractor shall be required to give both a performance and a payment bond before commencing the construction work. Since in this case he did not do so, the trial court properly issued a temporary restraining order at the instance of appellant, a taxpaying citizen, enjoining performance of the contract and payment of money thereunder, until and pending the hearing on the application for temporary injunction.

It is our view that appellee’s contract, which was not void ab initio, did not automatically become void when he commenced the construction work. True, the further performance of the contract and payment of money thereunder could be enjoined unless the bonds were given. More-, over, the Commissioners Court had the power and authority to avoid the contract if appellee Craddock did not furnish the required bonds. The Commissioners Court also had the power and authority to enforce the contract and compel Craddock to give the statutory bonds. The contract was binding upon appellee who could not have urged his failure to give the bonds as a defense for nonperformance of his contract. The requirements of Art. 5160, V.A.T.S., are in the interest of the State or other governing authority and not the delinquent contractor. State v. Scholz Bros., Tex.Civ.App., 4 S.W.2d 661.

The Commissioners Court did not choose to avoid the contract but chose to require appellee to give the prescribed bonds before judgment was entered denying the temporary injunction, and in time to protect both the County and those furnishing labor and material. Manifestly, if the contract became void and of no effect whatever upon Craddock commencing the work without having given the bonds, then the Commissioners Court could not breathe life into it by ratification. If on the other hand, the word “void,” as used in Art. 2368a, Sec. 2, with respect to requiring the successful bidder to give a good and sufficient bond for the faithful performance of the contract before commencing work, can be construed with respect to late filing, as voidable at the election of the County, then the County had the authority to either avoid the contract or to insist upon its performance and compel the contractor to post the required bonds. We think the latter construction should be given the word “void” under the circumstances of this case, including the fact that at the time the temporary injunction was denied no payment had been made by the County and the required bonds had been filed.

The word “void” is frequently given the meaning “voidable” in construing statutes. In the expression in the Bulk Sales Law, “shall be void as against creditors” the word “void” is construed as meaning “voidable.” Freedman & Mellinger v. Maier, 238 S.W. 1013, writ dism. For examples of the word “void” being given the meaning “voidable” in the construction of other Texas statutes, see Phelps v. Pecos Valley Southern Ry. Co., Tex.Civ.App., 182 S.W. 1156; Carter v. Green, Tex.Civ.App., 64 S.W.2d 1069, writ ref.; Wiener v. Zwieb, 1911, 105 Tex. 262, 141 S.W. 771, 777; Gress v. Gress, Tex.Civ.App., 209 S.W.2d 1003, writ ref., n. r. e.

This Court is not concerned with the propriety of the action of the Commissioners Court. The only question is whether or not the Commissioners Court in accepting and approving the bonds that were filed late, acted within its lawful authority under the circumstances of this case. Pritchard & Abbott v. McKenna, Tex.Sup.1961, 350 S.W.2d 333.

Appellant’s points are directed to the error of the trial court in dissolving the temporary restraining order and denying the temporary injunction because of alleged violations by the Commissioners Court of Arts. 2368a and 5160, V.A.T.S. There is no evidence, aside from said alleged violations of such articles by the Commissioners Court, that the Commissioners Court acted arbitrarily or without the exercise of discretion or that it abused its discretion in accepting and approving the performance and payment bonds and thus requiring ap-pellee to perform his contract as modified by the agreement changing in some particulars the plans and specifications. Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363.

The record before us presents no dispute between the parties with respect to the controlling facts in this case, although there may be minor disagreements between the parties as to details which are not significant in determining whether the trial court abused its discretion in denying a temporary injunction. The trial court is entitled to have the appellate court pass upon the question of abuse of discretion as of the time the trial court rules. Anderson v. Tall Timbers Corporation, Tex.Sup. 1961, 347 S.W.2d 592. At the time the trial court denied the temporary injunction the original contract and agreement changing the specifications had been reduced to writing and executed and the required bonds had been executed, approved and filed.

In Southland Life Ins. Co. v. Egan, 1935, 126 Tex. 160, 86 S.W.2d 722, opinion adopted by the Supreme Court, it is said:

“While it is true, as stated in Harding v. W. L. Pearson & Co. (Tex.Com.App.) 48 S.W. (2d) 964, 966, that ‘The rule is also well established in this state that the granting or refusing of a temporary injunction is within the sound discretion of the district court, and that the court’s action will not be disturbed on appeal, unless it clearly appears from the record that there has been an abuse of such discretion,’ it is also true that the trial court’s discretion is not unlimited and does not extend to the erroneous application of the law to undisputed facts. If the facts are such that solely questions of law are presented, the trial court’s action is reviewable, and should be reviewed on appeal. Differently stated, the trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts." (emphasis supplied).

It is our view that in the instant case the trial court in denying the temporary injunction correctly applied the law to the undisputed controlling facts, and hence did not abuse its discretion.

Judgment of the trial court affirmed.

COLEMAN, Justice

(concurring).

I concur in the opinion of the majority except on the question hereinafter discussed. Article 5160, subd. A, V.A.C.S., provides in part: “Any person or persons * * * entering into a formal contract in excess of Two Thousand Dollars ($2,000) with * * * any county of this State * * * shall be required before commencing such work to execute to the aforementioned governmental authority * * * the statutory bonds as hereinafter prescribed.”

Article 2368a, Sec. 2, V.A.C.S., prohibits a county from making any contract requiring the payment of $2,000.00 or more out of county funds without first submitting the proposed contract to competitive bids in the manner set out in the article. The article further provides that “if the contract is for the construction of public works, then the successful bidder shall be required to give a good and sufficient bond in the full amount of the contract price, for the faithful performance of such contract, executed by some surety company authorized to do business in this State in accordance with the provisions of Article 5160, Revised Statutes of 1925, and amendments thereto.” The final paragraph of this article provides:

“Any and all such contracts or agreements hereafter made by any county or city in this State, without complying with the terms of this section, shall be void and shall not be enforceable in any Court of this State, and the performance of same and the payment of any money thereunder may be enjoined by any property taxpaying citizen of such county or city.”

It is my opinion that the performance bond required by Art. 2368a, Sec. 2, V.A. C.S., must conform to the requirements of Art. 5160, V.A.C.S., as to content and form. I do not think that by referring to Art. 5160 it was intended that all of the provisions of that article referring to bonds were incorporated in Art. 2368a. Art. 5160 does not provide that a failure to post the bonds required prior to beginning work would render the contract void, nor does it specifically authorize a taxpaying citizen to bring suit to enjoin performance of work under the contract. Art. 2368a does not require that the performance bond be posted prior to beginning work, and does not require that a payment bond be posted.

While the County and the contractor must comply with all of the provisions of both articles, the failure of the contractor to post his performance bond prior to beginning'work did-not violate Art. 2368a, which contained the provision authorizing the injunction by a taxpayer. This failure did violate Art. 5160, but that article contains no provision authorizing a taxpayer’s suit and declaring the contract void and unenforceable.

The County did not terminate the contract after the work had begun because of the contractor’s failure to post the required bonds, and, at the time judgment herein was rendered, had approved and accepted the bonds tendered in fulfillment of the obligation of the contractor.

In Osborne v. Keith, Tex.Com.App., 142 Tex. 262, 177 S.W.2d 198, opinion adopted, the court said:

“This court recognizes the right of a taxpaying citizen to maintain an action .in a court of equity to enjoin public officials from- expending public funds under a contract .that is void or illegal. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367, error refused, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139 Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94. The vigilance of a citizen who takes upon himself that burden in the interest of good government is to be 'commended. However, the procedure is generally recognized as being drastic and, in order to’be authorized to maintain such an action, a citizen must bring himself strictly within the established rules. Governments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official’s public acts under judicial review. The right, therefore, of a citizen to maintain such an action is strictly limited to cases of illegality of the proposed expenditure and does not extend to cases of unwise or indiscreet expenditures. The contract upon which it is proposed to pay out public funds must be illegal and not merely voidable at the option of the public official entrusted with authority in the premises. Spears v. City of South Houston, 136 Tex. 218, 150 S.W.2d 74; Bexar County v. Hatley, 136 Tex. 354, 150 S.W. 2d 980; Mayer v. Kostes, Tex.Civ.App., 71 S.W.2d 398, writ refused; Glimpse v. Bexar County, Tex.Civ.App., 160 S.W.2d 996, writ refused.”

In Globe Indemnity Co. v. Barnes, Com.App., 288 S.W. 121, the court said:

“The purpose of the statute under consideration was to protect persons furnishing material or labor in the construction of public works against which there could exist no lien for their protection. The method pursued was intended to effect this protection through a bond required to be executed by the contractor. The execution of the bond .conditioned as required by the statute is made a condition precedent to the right to commence such work. Such a contract can only be carried out lawfully after the execution of the bond as re-.. quired by. statute. The effect of the : statute is to Redare the liability of one executing the bond for such a contractor.”

Art. 5160 contemplates that the bonds shall be posted after the contract has been signed, but before work has' begun. The contract has not been shown to be illegal. Beginning work prior to the posting of the bonds was illegal, and could have been prevented by the County. It is unnecessary to determine whether or not the plaintiff, as a taxpaying citizen, had a sufficient interest to maintain this suit since the bonds were posted prior to the trial on the merits, and prior to the rendition of judgment at the preliminary hearing. The completion of the work after the required bonds were posted ■was not illegal.