author: CLAYTON, Justice.

text:
    WALTER E. HELLER & COMPANY, Appellant-Appellee, v. James C. BARNES, Sr., et al., Appellees-Appellants.
    No. 5783.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 22, 1967.
    Rehearing Denied March 22, 1967.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellant and appellee.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., and Milton L. Bank-ston, Midland, for Barnes and others.
    Allan Poage, El Paso, Wm. J. Rochelle, Jr., and John L. King, Dallas, for inter-venor.
    G. H. Nelson, Lubbock, for McSpad-den.
    Walker F. Means, Pecos, for appellees and appellants.
   OPINION

CLAYTON, Justice.

This may be characterized as a “Billie Sol Estes” case. The facts in brief essence are these:

Estes would arrange with a manufacturer of anhydrous ammonia tanks and related equipment, such as, in this case, Superior Manufacturing Company, hereafter referred to as “Superior”, to sell it certain tanks which he claimed he then owned, and further, that he would secure “purchasers” who would buy tanks from the manufacturer. Estes promised the manufacturer that the purchases would be arranged under a price which would allow the manufacturer a profit equal to its normal profit had it indeed manufactured the tanks. Estes (or his agents) would agree with the purchasers that if they entered into his proposed transaction he would pay the down payment, if required by the manufacturer, and pay them a cash “bonus” amounting to approximately ten per cent of the purchase price of the tanks, and further, would lease the tanks from the purchaser on the basis of rentals that would amount to the installments on the unpaid portion of the purchase price of the tanks due the manufacturer. Estes would then secure from the purchasers the lease agreements, chattel mortgages or conditional sales contracts and installment notes on the tanks to be “purchased”, together with balance sheets and credit ratings and financial statements of the purchasers, and would execute his lease of the tanks and make the“bonus” payments. The necessary papers were then turned over to the manufacturer, who, through its agents, would pass the required papers over to finance companies, or individuals, such as Walter E. Heller & Company, in this case, who would discount the paper and pay the manufacturer. The latter would recieve the “mark up” or profit, and pass the balance along to Estes, from which he would make his rental payments, the “bonus”, etc., and continue the cycle, although the tanks, in large measure, were never manufactured. Elaborate arrangements were made to avoid detection, such as dummy number plates to be attached to tanks in existence that would conform to numbers contained in the purchase documents, in the event of possible inspection.

When these Estes schemes became disclosed, this suit was filed by plaintiffs, included in what may be known as the “Barnes Group”: i. e., J. C. Barnes, Sr., J. C. Barnes, Jr., Russell J. Ramsland and W. F. Wynn, one of the many groups or associations of purchasers, against Billie Sol Estes, individually and d/b/a Billie Sol Estes Enterprises or Billie Sol Estes Enterprises, Inc., Superior Manufacturing Company, Barbara Jean Orr, Executrix of the Estate of Harold E. Orr, deceased, Coleman D. McSpadden, who, with Orr, was a former officer of Superior, and Walter E. Heller & Company, one of the finance groups. Other original parties defendant were severed and were disposed of in other suits. This cause of action was for damages and for the cancellation of certain obligations executed by the Barnes Group and held by, among others, Heller & Company. During the proceedings in the trial on its merits, the Barnes Group tendered and paid into the registry of the court, the sum of $81,299.52, as representing the “bonus” payments it had received from Estes for signing some or all of the instruments it sought to cancel. Harry Moore, Jr., Trustee of the bankrupt estate of Billie Sol Estes, intervened in the trial to recover for the estate the tendered amount on the contention that these bonus payments were made from Estes' general bank account and could not be traced to the money that came from Heller through Superior to Estes or to any other specific source, and therefore should be returned to the bankrupt estate for the benefit of all of Estes’ creditors, including the plaintiffs and defendants in this case.

Walter E. Heller & Company, the only defendant in the suit to contest the same, denied the allegations of plaintiffs that it had entered into a fraudulent conspiracy in the transactions in question, and filed a cross-action against the Barnes Group, seeking judgment for the unpaid balance of the notes signed by the latter, thus becoming a cross-plaintiff.

Trial was to a jury, to which was submitted twenty-six special issues, which issues, and the jury’s answers thereto, are as follows:

No. 1. That Walter E. Heller & Company acted in bad faith in taking the Barnes Group instruments involved in this suit. (The court defined “bad faith” as follows: “You are instructed that the term ‘bad faith’, as used in this charge, means that the persons or company making or taking the instrument must have knowledge of substantial facts and circumstances as to create in his or its mind a suspicion that there was something wrong with the subject matter or title of the persons or person for whom he makes it or from whom he or it takes it, the instrument itself, or to the money represented by such instrument, combined with an intentional disregard of and refusal on the part of the maker or taker of the instrument to learn the facts from the means of knowledge which he or it knows or is at hand, and the circumstances must be such as to constitute dishonesty and not merely negligence.”)

No. 2. That the Barnes Group acted in bad faith in signing and executing the instruments.

No. 3. That Heller & Company participated in a conspiracy with Estes or Superior to conceal the non-existence of the anhydrous ammonia tanks from the Barnes Group at the time of the execution of the instruments.

No. 4. That Estes, Orr and Superior did not conspire to conceal the non-existence of the tanks and equipment from Heller at the time of its purchase of the instruments.

No. 5. That Robert K. Graham did not participate in the conspiracy mentioned in No. 4 above. (Robert K. Graham was an officer in Leasing, Inc., and General Leasing of Ft. Wayne, Inc., Indiana corporations, the name of one or the other of such corporations and that of Graham appearing in most, if not all of the lease contracts which were assigned to Heller and others. Graham had represented himself as an “agent” of Heller, and was described in the testimony as being in liaison with Estes and Superior.)

No. 6. That Estes represented that the tanks and equipment described in the instruments were in existence at the time the instruments were obtained from the Barnes Group.

No. 6A. That such representation was false.

No. 7. That the Barnes Group believed and relied upon such representation.

No. 8. That the Barnes Group would not have signed such instruments had such representation not been made.

No. 9. That Robert K. Graham represented that the tanks and equipment described in the instruments were in existence at the time the instruments were obtained from the Barnes Group.

No. 9A. That such representation was false.

No. 10. That the Barnes Group believed and relied upon such representation.

No. 11. That the Barnes Group would not have signed the instruments had such representation not been made.

No. 12. That the Barnes Group represented to Heller & Company that the tanks and equipment had been furnished and delivered by the supplier and accepted by the Barnes Group.

No. 13. That at the time of such representation the Barnes Group knew that the tanks and equipment had not been furnished and delivered by the supplier and accepted by the Barnes Group.

No. 14. That the Barnes Group intended such representation to be relied upon by some financial or lending institutions such as Heller & Company.

No. IS. That Heller & Company did not believe or rely upon such representations.

No. 16. This issue is conditioned upon an affirmative answer to Special Issue No. IS, and was not answered since the answer to Special Issue No. 15 was in the negative.

No. 17. That Robert K. Graham was an agent of Heller & Company at the time and on the occasion when the instruments were obtained from the Barnes Group. (The court gave a definition of “agent” and “apparent” or “ostensible” agent.)

No. 18. That the endorsements on the back of the notes involved in this suit were not changed or altered as to the number of parties to the instruments after endorsement by Superior.

No. 19. The notes and chattel mortgages involved in this suit provided for interest exceeding ten per cent per annum. (The court gave a definition of “interest”.)

No. 20. That $72,000.00 would be a reasonable attorneys’ fee for the legal services incurred by Heller & Company in this cause.

No. 21. The jury answered “None” to the issue of what sum of money, if paid in cash now, would fairly and reasonably compensate the Barnes Group for their damages proximately caused by the acts and conduct of Heller & Company complained of by the Barnes Group, such as is indicated in Issues 1 and 3. (The court gave an instruction that the burden was upon the plaintiff to establish that it had sustained damages proximately caused by the complained-of acts and conduct of Heller & Company.)

No. 22. Left unanswered since it was conditioned upon an affirmative answer to Issues 6, 6A, 7, 8, 9, 9A, 10 and 11, and some amount of money in answer to Special Issue 21, since no amount of money was found in answer to Special Issue 21. This issue was relative to “malice” as defined in the issue.

No. 23. This issue was also left unanswered since it was conditioned upon affirmative answer to Special Issue No. 3, and to some amount of money found in Special Issue No. 21. This issue has to do with “malice” as defined in the issue.

No. 24. This issue is relative to “punitive or exemplary damages” as defined in the issue, to be assessed against Heller & Company and was left unanswered since it was conditioned upon affirmative answers to Special Issues Nos. 22 and 23.

We feel it fair to state at the outset, without a detailed review, that in the mass of testimony (over 3,000 pages) and exhibits (five volumes) contained in the record in this case there was competent testimony and evidence of probative force to support the jury’s answers to all the special issues submitted to it and that their answers cannot be said to be against the great weight and preponderance of the competent evidence. In passing on all assignments of error relating to the existence or sufficiency of the evidence to support jury findings, we have followed the familiar rules for appellate determination of such assignments, to-wit: Where the assignment is that there is “no evidence”, the reviewing court considers only the evidence favorable to the finding and must sustain the finding if there is evidence of probative force to support it. Hartford Accident & Indemnity Company v. Gant, 346 S.W.2d 359 (Tex.Civ.App., n. w. h.); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (S.Ct., 1914). In determining “insufficiency of the evidence” or “contrary to the great weight and preponderance” points, we must consider and weigh all the evidence in the case, and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (S.Ct., 1952).

Plaintiffs, defendant and cross-plaintiff, Heller & Company, and the Intervenor all made motions for judgment. The court recited in its judgment that: “all parties herein participated, as a matter of law, in a conspiracy of fraud and are not entitled to any relief in equity or law or to be in position to invoke the relief of the judiciary in any manner”, and entered judgment denying the motions of all parties for judgment and denying all parties the relief sought and decreeing that “no party make any recovery against any other party”; and as to the funds tendered and paid in to the Registry of the Court, “that no party hereto recover such funds or any part thereof”, to which all parties duly excepted and gave notice of appeal. Therefore, although this case has come up to us under the style as shown on this opinion, or variations thereof, all parties are, in fact, both appellants and ap-pellees. However, since the effect of this judgment was to grant the Barnes Group relief from their obligations held by Heller & Company, and for the sake of simplicity, the style of the case will remain as shown in this opinion. The “bonus” money tendered and paid into the Registry of the Court is now held in the account of the Registry Trust Fund in the First National Bank of Pecos, Texas.

The Heller Company presents twenty-seven points of error in its appeal. The First, Second and Third Points, for convenience, can be grouped together. The First Point alleges error in denying Heller recovery upon the notes it sued upon, and in effect cancelling them, and (in the Second Point), in giving effect to the defenses of fraud, failure of consideration and the like, asserted by the Barnes Group, in view of answers to Special Issues 2, 12, 13 and 14; and the Third Point asserting that estoppel by contractual provisions prevented the Barnes Group from asserting the defenses relied upon by them. The Barnes Group replied to the first two points by its Counterpoint No. 1, asserting that the court did not err in failing to grant affirmative relief to Heller. The Barnes Group, in its prayer for relief, asked the court to cancel all instruments it had executed, such as notes, chattel mortgages, equipment, leases, etc. pleaded by Heller and attached to its cross-action, and requiring all such instruments to be surrendered to plaintiffs. Heller asserts that rescission or cancellation is an equitable remedy, and cites cases and text authorities in support of this principle. Heller then follows with the well-known maxim that “He who comes into equity must come with clean hands” and points to the jury’s answers to Issues 2, 12, 13 and 14 as disqualifying the Barnes Group, both as to affirmative relief in its lawsuit and as to a defense to the Heller cross-action on the grounds of fraud, failure of consideration and the like. The Heller complaint is that while the trial court did not expressly decree rescission or cancellation, it did grant cancellation of the Barnes notes in effect by relieving the Barnes Group of any liability and denying Heller recovery on them. But, on the other hand, it must be borne in mind that the jury, in answer to Special Issue No. 1, found that Heller acted in bad faith, as defined by the court, in taking the Barnes Group instruments involved in this suit. The court’s definition of “bad faith” follows closely the definition of bad faith given in Fenner v. American Surety Co. of New York, 156 S.W.2d 279, 282 (Tex.Civ.App., 1941; err. ref., w. o. m.) and approved by the Texas Supreme Court in Citizens Bridge Co. v. Guerra, 152 Tex. 361, 258 S.W.2d 64, 70, and that this is normally a question of fact. To allow Heller to recover on the instruments in question would, under the circumstances, allow it to benefit from its own misconduct and dishonesty, as found by the jury, even though the Barnes Group would not be entitled to rescission or cancellation of the instruments. Heller cannot place itself in the position of an “innocent person” under the principle of estoppel asserted by it “that when one of two innocent persons must suffer, the sufferer should be the one whose confidence put into the hands of the wrongdoer the means of doing the wrong.”

The “contractual provisions” asserted by Heller which it claims gave rise to estoppel against the Barnes Group were written representations by the latter that the tanks were in existence and had been delivered to the latter, contained in.mortgage contracts, delivery certificates, etc. Heller relies on Crutchfield v. Associates Investment Company, 376 S.W.2d 957 (Tex.Civ.App., 1964; err. ref.), where the court gave a summary judgment to the appellee who was in a somewhat similar position to Heller here, and held that appellant was estopped by like contractual provisions as we have here, and that if the appellant there had any right of redress it was against Superior Manufacturing Company. However, as pointed out by Barnes in their brief-, although the jury here found in Special Issues 12, 13 and 14 that Barnes was guilty of misrepresentations intended to be relied upon by a similar institution to Heller, the latter did not believe or rely upon them, but instead (Special Issue 3) was a party to the conspiracy and therefore could not benefit from the principle of estoppel since it had actual knowledge of the non-existence of the equipment. Appellant’s First, Second and Third Points are overruled.

The Fourth and Thirteenth Points assert error in failing to render judgment N.O.V. the jury’s answers to Special Issues 1, 3, 9, 9A, 10, 11, 15 and 17 because of no competent evidence of probative force to support them, or insufficient evidence and against the great weight and preponderance of the competent evidence. Here again we state, as we did earlier in this opinion, that there is to be found in this record sufficient competent evidence to support the answers of the jury to all the special issues submitted to it. In these points Heller selects all the issues answered adversely to it and to Robert K. Graham, found to be its agent. Some of these issues will be touched upon later in this opinion. The Fourth and Thirteenth Points of Error are overruled.

What has been said applies to the substance, if not the wording, of the Fifth Point, that there is no competent evidence of probative force that Heller took part in a conspiracy to defraud itself, nor that it knowingly paid out great sums of money for the purchase of fraudulent notes upon non-existent tanks. There is no special issue that asked, or any answer that found, that Heller had engaged in a conspiracy to defraud itself, but while this point is at this time overruled, we presume that it is related to Special Issues Nos. 9 and 17, that Robert K. Graham was an agent of Heller & Company at the time and on the occasion when the instruments were obtained from the Barnes Group, and that at such time Graham had represented that the tanks and equipment described in the instruments were in existence. This matter will he touched upon now under the Sixth and Seventh Points of Error.

The Sixth Point of Error states that as a matter of law under this record Graham was not an agent of Heller, and that his knowledge, statements and conduct are not chargeable to it. The jury, having before it the court’s definition of “agent” and “apparent” or “ostensible” agent, found that Graham was an agent of Heller, as stated above, and probably based this answer in part upon the testimony and evidence that Graham had the Heller papers that were executed by the Barnes Group and given back to Graham and were delivered to Heller, and apparently received for delivery, the Heller money on the Barnes’ papers. This is further borne out by a memorandum of January 8, 1962 from H. Krieger, Jr., to Mr. Sid Bloom, both of the Heller Company, relative to “new documentation” in the Barnes deal, which had been sent to Graham, who was to try to “get same signed”. If the jury’s finding of agency was correct, then the Seventh Point of Error becomes pertinent here. It asserts that the record establishes as a matter of law that there was such adverse interest on the part of Graham as to preclude Heller from being charged with his knowledge, statements and conduct. Heller’s brief cites numerous authorities for the proposition, set out in Binder v. Millikin, 201 S.W. 239, 241-242 (Tex.Civ.App., 1918; err. ref.) that:

“The law abhors double dealing, especially upon the part of one in whom a trust is reposed and confidence given; and when the agent turns aside from the plain paths of his agency and seeks individual advantage inconsistent with, and antagonistic to, the rights and interests of his principal, his authority is automatically destroyed and agency revoked. He cannot be permitted to hold a position where self-interest and honor become contending forces, and where dire temptations would assail and ordinarily conquer him.”

But there is also impressive authority for the holding in Bankers’ Trust Co. v. Calhoun, 209 S.W. 826, 829 (Tex.Civ.App., 1919; err. ref.) as follows:

“ * * * The general rule is:
'Where an agent in negotiating a transaction or making a contract on behalf of his principal makes representations, declarations and admissions in connection therewith respecting the subject-matter, they will be binding on the principal, where they are made at the time, and as a part of, the transaction, and although they are false and fraudulent, made without the knowledge or authority of the principal, and even though contrary to the instructions of the principal, and constitute a breach of trust against the principal.’ Corpus Juris, vol. 2, § 541, p. 956; 21 Ruling Case Law, § 25, p. 844, and section 30, p. 850.
“This is the rule in Texas.”

This holding was approved in National Bankers Life Ins. Co. v. Watson, 266 S.W.2d 420, 423 (Tex.Civ.App., 1953; n. w. h.) which described the Calhoun case as “often thereafter cited with approval”. We cannot say as a matter of law that Heller was precluded from being charged with Graham’s knowledge, statements and conduct, in view of this record, and we overrule the Sixth and Seventh Points of Error.

Related to these points are the following Points of Error: Eighth, that there is no evidence of any representation by Graham to the Barnes Group that the tanks were in existence nor any reliance by them upon such a representation by him; Fourteenth, complaining of improper admission of hearsay declarations of Graham and others to establish agency and on other matters; Sixteenth, that the court should not have overruled Heller’s objection to the definition of agency in Special Issue No. 17 which stated that agency may be implied from the words and conduct “of the parties” when under the law it can be implied only from words and conduct of the alleged principal and not the alleged agent; Seventeenth, that the court erred in overruling Heller’s objection to Special Issue No. 17 in the foregoing respect; and Eighteenth, that the court improperly and over objection admitted a copy of a letter purportedly from one R. W. Alexander of Superior, to Graham at Heller’s address, as involving at most a conclusion of Alexander.

Relative to the Eighth Point, the jury found in answer to Special Issue Nos. 9, 9A, 10 and 11 that Graham represented that the tanks and equipment described in the Barnes instruments were in existence when such instruments were obtained, that these representations were false, but were believed and relied upon by the Barnes Group who would not have executed such instruments had not these representations been made. Again we assert that there was ample justification in the record for such jury findings. Under the Fourteenth Point, we feel that certain hearsay testimony and conclusions were admitted by the trial court, but we further feel that there was ample admissible testimony under the court’s charge and instructions as to the meaning of the words “apparent” and “ostensible” agent for the jury to find agency in Graham. The court’s definitions followed the definitions contained in Collins v. San Antonio Food Products & Produce Co., 188 S.W.2d 888 (Tex.Civ.App., 1945; err. dism.) which were followed by this court in Gibbins, Inc. v. McMillan, 383 S.W.2d 94 (Tex.Civ.App., 1964; err. ref. n. r. e.). These cases hold that “apparent agent” or “ostensible agent” is one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, though he has not, either expressly or by implication, conferred authority on him. This court continued: “Thus, it is based on estoppel, and it must come from representations or acts of the principal”, citing Minneapolis-Moline Co. v. Purser, 361 S.W.2d 239 (Tex.Civ.App., err. ref., n. r. e.) ; 2 Tex.Jur.2d, pp. 484-485. This matter was treated at greater length under our discussion of the Sixth Point of Error. Under the Sixteenth and Seventeenth Points of Error, we believe that the trial court should have sustained the objection of Heller to the court’s explanation of the “relation of agency” in Special Issue No. 17, but we are of the opinion that its failure to do so does not constitute reversible error, especially since there was evidence to support a finding under the definitions of “apparent” and “ostensible” agency. Thus we believe that this case is distinguishable on the facts from the State Amusement Co. v. Turrentine & Thompson, Tex.Civ.App., 21 S.W.2d 344 case, cited by appellant, since in the latter case the agent’s statements alone were relied upon to show agency. But that case does say, “Where there is evidence aliunde from which a jury could find agency, the declarations of the agent, made during the agency, in regard to the transaction connected therewith, are admissible as to the declarations of the principal, but not to prove agency.” As to the Eighteenth Point of Error, we think the objection of Heller that the letter from R. W. Alexander of Superior addressed to Graham at the Heller address, constituted a mere conclusion on the part of Alexander is a valid objection, and the letter should have been excluded. But here again, since the letter was not admitted for the truth of its contents, but as further evidence of agency, we believe under the circumstances its admission was harmless error. We overrule the Eighth, Fourteenth, Sixteenth, Seventeenth and Eighteenth Points of Error.

We propose to discuss the Ninth, Tenth, Eleventh, Twelfth and Fifteenth Points of Error together. The Ninth Point asserts that there is “no competent evidence of probative force” in the record that Hilbert. Kreeger, of Heller, had knowledge of the non-existence of the tanks, or (Tenth) if he did, he was acting adversely to Heller so that his knowledge would not be imputed to it. The Eleventh Point charges error of the trial court in denying Heller’s amended motion for new trial on the basis of newly discovered evidence, and in the Twelfth Point, that jury argument by the Barnes Group’s counsel that ore Lutich had told his attorney, Feuille, that there were no tanks and that Feuille told Kreeger, was knowingly false, improper and prejudicial and constituted reversible error. To begin with, there was no specific finding by the jury that Hilbert Kreeger had knowledge of the non-existence of the tanks, since there was no issue submitted to the jury on this precise matter, although a presumption of knowledge might have been derived from the testimony. But the Ninth Point must be overruled, and therefore the Tenth Point requires no discussion. The Eleventh Point relates to the execution by one Lutich of El Paso County of instruments relative to anhydrous ammonia tanks and equipment, and a subsequent telephone call by Lutich’s attorney, Feuille, presumably to Hilbert Kreeger, in which Feuille asked for the return of the instruments Lutich had signed. Lutich had stated that he (Lutich) first learned of the non-existence of the tanks when Feuille had told him, but Feuille, in his deposition, denies that he had told this to Lutich or to Kreeger, but merely told Kreeger that Lutich had not received any tanks and was not expected to receive any, and that therefore there was no consideration for the instruments and that he, Feuille, considered the whole transaction as a bogus, fraudulent transaction, and that he wanted Lutich’s papers returned to him. There is here at least a strong presumption that the man Feuille talked to was Kreeger, since the call was meant for Kreeger, and the man who answered it said he was Kreeger and that the Lutich papers had been received and were on his desk, but Heller would not buy them, and while he could not send them directly to Feuille, that they would be returned to the source from which he had gotten them, and they were actually returned to Lutich with a transmittal letter from Estes. But be that as it may, there was not such a conflict between Lutich’s testimony and Feuille’s deposition as to warrant a new trial on the basis of newly discovered evidence, since it was such evidence as could have been adduced from Feuille at the time of the trial; nor do we feel that argument of Barnes’ counsel as set out in the Twelfth Point was so highly prejudicial as to constitute reversible error. Consequently, we overrule the Ninth, Tenth, Eleventh and Twelfth Points. The Fifteenth Point again refers to agency and Heller’s requested instruction as to Special Issues 1, 3 and 17 on the matter of agency and scope of agency and the imputation of acts and knowledge of the alleged agent to his principal. We feel that this matter has been sufficiently treated before in this opinion, and again refer to the holding in Bankers’ Trust Co. v. Calhoun, Tex.Civ.App., 209 S.W. 826 as being determinative of this point of error, which we overrule.

We now turn our attention to the Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third and Twenty-fourth Points of Error, all relative to alleged error of the trial court in admitting or excluding testimony, which points will be discussed together. The Nineteenth Point complained of the admission against Heller of evidence of forgery by others of papers in transactions other than those involved in this suit, and in the Twentieth, conduct and statements of employees of Pacific Finance Company, not a party to this suit; and in Twenty-first, statements and conduct of alleged co-conspirators in the absence of independent evidence establishing participation by Heller in the claimed conspiracy. The Twenty-second attacks the admission of evidence concerning a meeting of finance company representatives in Dallas in 1962, after the non-existence of the tanks had come to light, the complaint being that such evidence was immaterial, irrelevant and prejudicial, as well as that the evidence constituted privileged efforts toward settlement. The Twenty-third Point related to the prejudicial injection of claims of usury and the Twenty-fourth objects to the exclusion of testimony that at the Lubbock meeting and elsewhere neither Bloom nor Greenberg of Heller indicated that they had known all along that the tanks did not exist or that Estes.was involved. As to the first four of the points mentioned above, we conceive them to be related to the conspiracy in which Heller (and Graham) participated, as found by the jury in answers to Special Issues Nos. 3, 9, 9A, 10 and 11, and are governed by the law governing conspiracies as a whole. This is set out clearly in Vittitoe v. Junkin, 54 S.W.2d 166,167 (Tex.Civ.App., 1932; err. dism.) as follows:

“ ‘It is a well-settled rule of evidence that, when the testimony establishes a conspiracy, the acts and declarations of a co-conspirator made in furtherance of the common design, are admissible against all of the conspirators. “The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the person prosecuted, is that, by the act of conspiring together, the conspirators have jointly assumed to themselves as a body the attribute of individuality so far as regards the prosecution of the common design; thus rendering whatever is done or said in furtherance of that design a part of the res gestae, and therefore the act of all.” 3 Greenl.Ev. § 947 ”

The order of the proof is not very material, Daggett v. Farmers’ Nat. Bank, 259 S.W. 198, 202 (Tex.Civ.App., 1924), affirmed 2 S.W.2d 834 (Com.App., 1928): “ * * * The order of proof is not very material; it being discretionary with the court to admit proof of declarations before proof of conspiracy.” That a conspiracy was proved is shown by the jury’s answers. The testimony complained of, therefore, became admissible, and Points Nineteen, Twenty, Twenty-one and Twenty-two are overruled. As to the Twenty-third Point, the matter of usury was developed in the case, and an issue, No. 19, was submitted to the jury which found that in the notes and chattel mortgages involved in the case, provision was made for interest exceeding the legal limit of ten per cent per annum. Mr. Sidney Bloom, of Heller, himself testified that the finance charge of the Heller notes figured 10.8 per cent per annum. A correct definition of “interest” was given in the court’s charge: “ * * * compensation allowed by law or fixed by the parties to a contract for the use, forbearance or detention of money.” National Bond & Investment Co. v. Atkinson, 254 S.W.2d 885 (Tex.Civ.App., 1952; err. dism.); Art. 5074a, Texas Rev.Civil St. The Twenty-third Point is overruled.

The Twenty-fourth Point charges error of the court in excluding evidence that neither Bloom nor Greenberg, of Heller, stated or indicated that they had known that the tanks did not exist or that Estes was involved. Actually, any such statements by the parties involved would have been self-serving and should have been excluded, whatever the statements involved. This point presents no error, and the point is overruled.

Heller then concludes its specific points of error with the Twenty-fifth, stating that the cumulative effect of the many errors herein, prejudicial to Heller, requires reversal. From what has been stated before, we have found no “many errors” on which a “cumulative effect” may arise, and overrule this point.

The Twenty-sixth point complains of the failure of the court to grant an instructed verdict as to the cross-defendants other than the Barnes Group. The record fails to reveal that the cross-defendants other than the Barnes Group were ever served with citation of Heller’s cross-action, nor did they appear in person or by counsel to contest this matter. We therefore conclude that these cross-defendants other than the Barnes Group were not before the court as to Heller’s cross-action, and we therefore overrule this Twenty-sixth Point.

In the Twenty-seventh Point Heller asserts error in retaining the tendered funds in the registry of the court and failing to award them to Heller. This is really two points, the first of which — retaining these funds in the registry of the court — we modify; but the second — failing to award them to Heller — we overrule. We believe these funds should have been awarded to Harry Moore, Jr., the Trustee of the Bankrupt, Estes. He was instructed to, and did intervene in this cause, by authority of the United States District Court for the Western District of Texas, to recover these “bonus” payments from Estes to the Barnes Group. We are persuaded that the Trustee is not in a position, as described by Heller, as “standing in the shoes of Estes”, and involving an “unjust enrichment” at the expense of Heller, while Heller was entitled to a “constructive trust” as to these funds. Under the findings of the jury, neither the Barnes Group nor Heller would be legally or equitably entitled to these funds. As to the Barnes Group, the In-tervenor has cited us to various authorities, which, like 10 C.J.S. (1938 Ed.) Bills and Notes § 483, p. 1047, holds:

“Where a party seeks to defend on the ground of fraud, undue influence, or failure of consideration, he must, if he has received anything of value for the note, return the same or make a tender thereof before he can defeat the instrument as a cause of action by offering such defenses as an absolute bar to the action * ⅜ ⅝ »

Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (S.Ct., 1955) states:

‘He who seeks equity must do equity.’ Thus it is held that one seeking a cancellation of an instrument, with certain exceptions not pertinent here, must restore the original status; he cannot repudiate the instrument and retain the benefits received thereunder.”

As to the Heller interests, they were not able to, or didn’t trace these funds. See 57 Tex.Jur.2d 465, Trusts, § 72:

“Although the relation between the parties where property has been unfairly acquired is important when undue influence is claimed and as an element to be considered in determining whether a trust was created, in order to establish a constructive trust and to impress it on title to property it is not essential to show such strict and technical fiduciary relationships as trustee and cestui que trust, principal and agent, or attorney and client; informal relationships such as moral, social, domestic, or merely personal ones, where one person trusts in and relies on another, are sufficient. However, though a relationship of trust and confidence may be shown to arise from a purely personal relationship, there must be sufficient evidence of a justifiable trust and confidence as will create a fiduciary relationship; mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship. Parties to a contract have an obligation to protect themselves by reading what they sign, and unless there is some basis for finding fraud, either actual or constructive, they may not excuse themselves from the consequences of failing to meet that obligation because they unwisely trusted the other party.”

and in the same reference, at § 90:

“As against third persons having a competing interest, in order to establish a claim to' property on the theory that it is trust property it is incumbent on the claimant to trace the funds used in the purchase of property, or placed on deposit in a bank, as being his own or as being trust funds * * * ”

and Morris Plan Industrial Bank of New York v. Schorn, 135 F.2d 538 (C.A.2d 1943):

“ * * * Also in line is the well settled rule that property converted, embezzled, or otherwise taken by the bankrupt, or obtained by him by fraud, can be claimed from the bankrupt estate only so long as it can be definitely traced, with the consequence that an attempted repayment by the bankrupt prior to bankruptcy is a preference, except where made from the very property taken, Walser v. International Union Bank, 2 Cir., 21 F.2d 294, 298; Clarke v. Rogers, 228 U.S. 534, 33 S.Ct. 587, 57 L.Ed. 953, affirming 1 Cir., 183 F. 518; 3 Collier on Bankruptcy, 14th Ed., 814-818 * * * ”

Further, Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1923):

“But, even if we assume that the payment of these unmatured notes was not according to the contract with Ponzi, and that what the defendants here did was a rescission for fraud, we do not find them in any better case. They had one of two remedies to make them whole. They could have followed the money wherever they could trace it, and have asserted possession of it on the ground that there was a resulting trust in their favor, or they could have established a lien for what was due them in any particular fund of which he had made it a part. These things they could do without violating any statutory rule against preference in bankruptcy, because they then would have been endeavoring to get their own money, and not money in the estate of the bankrupt. But to succeed they must trace the money, and therein they have failed. It is clear that all the money deposited by these defendants was withdrawn from deposits some days before they applied for and received payment of their unmatured notes. It is true that, by the payment into the account of money coming from other banks and directly from other dupes, the bank account, as such, was prevented from being exhausted ; but it is impossible to trace into the Hanover deposit of Ponzi after August 1st, from which defendants’ checks were paid, the money which they paid him into that account before July 26th. There was, therefore, no money coming from them upon which a constructive trust or an equitable lien could be fastened. Schuyler v. Littlefield, 232 U.S. 707, 34 S.Ct. 466, 58 L.Ed. 806; In Re [12] Mulligan, D.C., 116 F. 715; In Re A. D. Matthews’ Sons, 2 Cir., 238 F. 785, 151 C.C.A. 635; In Re Stenning [1895] 2 Ch. 433, 13 Reports, 807, 73 L.T.N.S. 207. In such a case, the defrauded lender becomes merely a creditor to the extent of his loss, and a payment to him by the bankrupt within the prescribed period of four months is a preference. Clarke v. Rogers, 228 U.S. 534, 33 S.Ct. 587, 57 L.Ed. 953; In Re Dorr, 9 Cir., 196 F. 292, 116 C.C.A. 112; In re Kearney, D.C., 167 F. 995.”

The awarding of these funds to the Trustee of the estate in bankruptcy would not be an “unjust enrichment” of Billie Sol Estes, but merely a relief to his creditors.

Since it cannot be denied that this case has been most thoroughly tried and that we have been favored with careful and extensive briefs from all sides, we do not remand this matter except as hereinafter stated, but affirm it, except that the trial court is hereby instructed to revise the judgment so as to grant the Intervenor, Harry Moore, Jr., Trustee of the Estate of Billie Sol Estes, Bankrupt, the funds tendered into the registry of the court by the Barnes Group, in the amount of $81,299.52.

Therefore, the trial court’s judgment is reversed and remanded only as to these instructions to the trial court to modify its judgment awarding such funds to the In-tervenor, and as so reversed and remanded in part, with instructions, the judgment of the trial court is in all other respects affirmed.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Lloyd R. BLUME et al., Appellants, v. James C. WEAVER et al., Appellees.
    No. 4084.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 20, 1967.

      Heath & Robinson, Bob Heath, Houston,, for appellants.
    Fuhrhop & Green, John R. Green, Dickinson, for appellees.
   COLLINGS, Justice.

James C. Weaver, individually and as next friend for Michael Weaver, a minor, and his wife Lorraine W. Weaver, brought suit against Lloyd R. Blume, Lowell R. Blume and Linton Building Company, Inc. Plaintiffs alleged that defendants had contracted to construct a dwelling in a good and workmanlike manner and in accordance with an agreed plan, including provisions for central heating and air conditioning; that there was an improper construction of the house and of the central heating unit by the defendants or their subcontractors, wherefore, plaintiffs sought damages for an alleged breach of contract to correct such defects. Plaintiffs also sought damages for alleged physical pain and mental suffering by reason of carbon monoxide poisoning or intoxication sustained by plaintiffs because of the improper construction of the central heating system. The case was tried before a jury and based upon its findings, judgment was rendered against the defendants Lloyd R. Blume and Lowell R. Blume for damages on both counts. All relief sought against Linton Building Company, Inc., was denied. Lloyd R. Blume and Lowell R. Blume have appealed.

The record shows that appellants entered into a written contract with Mr. and Mrs. Weaver to sell them a certain tract of land and to construct thereon a dwelling in accordance with an agreed plan. The evidence further shows that the Weavers fully complied with their obligations under the contract by certain payments of money, the execution of a vendor’s lien note in the sum of $13,100.00 and a deed of trust on the property. Appellants acted as general contractors on the construction job and some of the work was let by them to subcontractors. In connection with appellees’ claim for damages by reason of carbon monoxide poisoning because of improper construction of the central heating system the jury found that James C. Weaver, Lorraine Weaver and the minor, Michael Weaver, suffered injuries in December, 1962, and January 1963; that such injuries resulted from monoxide intoxication; that the furnace installed in the Weaver home gave off carbon monoxide gas which escaped into the house; that the giving off of such carbon monoxide gas resulted from the manner in which the furnace was installed; that the manner of the installation was negligent, and that such negligence was a proximate cause of the injuries suffered by the Weavers. The jury further found that the amount of money, if paid in cash, which would reasonably compensate the Weavers for their injuries proximately resulting from the inhaling of such carbon monoxide gas was as follows: James C. Weaver, Five Hundred Dollars; Lorraine Weaver, Eight Hundred Dollars, and Michael Weaver, One Hundred Dollars. In their points 19 through 39 appellants complain of the lack of pleadings and the lack and insufficiency of the evidence to support such findings.

We sustain appellants’ points complaining of the insufficiency of the evidence to support the findings that the furnace in the Weaver home gave off carbon monoxide gas and that the injuries sustained by appellees resulted from carbon monoxide intoxication. The testimony concerning carbon monoxide poisoning and the injuries alleged to have resulted to appellees therefrom came from three witnesses, ap-pellees, James Weaver and wife, Lorraine Weaver and Mr. James R. Gant. Mr. and Mrs. Weaver testified, in effect, that in November of 1962, two months after moving into the house in question, the weather became cold enough to turn on the furnace; that after the furnace was turned on and the nights began to be cold members of the family would wake up in the mornings with headaches, dizziness and nausea; that such conditions were particularly apparent when it was so cold that the heater was burning a great portion of the night; that when the nights were not so cold or when they turned the thermostat down so that the furnace would not operate so much they were not bothered by headaches, dizziness and sickness, but, if in the morning they turned the thermostat up so the furnace would begin to burn again, the nausea, dizziness and headaches would reappear; that, particularly in the back bedrooms and bath, one’s head would begin to ache within a short period of time and there would be nausea and dizziness. Mrs. Weaver stated that on some occasions she got up with a headache and went out of the house to her clothes line and the fresh air always made her feel better. She also stated that on mornings when her husband woke up with a headache and nausea which continued until he went to work that he would feel better after he left the house and got to his work. Mr. and Mrs. Weaver both testified concerning the condition of their son who occupied a back bedroom. They stated that one night while the furnace was on they heard their son calling and went back to see about him; that his lips and fingernails were blue; that he complained of a bad headache and was very sick and dizzy; that on one occasion he began feeling bad as he sat at his desk; that when he went to his closet and reached up on the shelf for something he felt even worse and went to his bed. The boy’s condition was such that the parents were alarmed and carried him to Galveston County Hospital where he was examined and treated by a physician. He was so ill that his parents had to support him to get him into the car. The visit to the hospital was on Saturday night January 12th and the boy continued to be sick and dizzy and suffer from headaches until Monday when the Weavers took him to their family physician. The Weavers testified that their physician could not determine the cause of their son’s illness; that it was evident that the boy was ill but the doctor was unable to determine what was causing it; that the doctor did not at that time recognize the boy’s condition as anything that he could identify. Mr. and Mrs. Weaver testified that during this period they also suffered greatly from nausea and headache.

The evidence indicates that the trouble with headaches and sickness lasted through the winter of 1962-63 and part of the next winter. Mrs. Weaver testified that it appeared to her and her husband that the trouble was connected in some way with the central heating furnace although they couldn’t smell any gas; that on several occasions they considered the possibility that it might be something in the air they were breathing. In any event the matter caused them much concern, worry and strain. The Weavers left the bedroom windows open at night and took turns staying awake. Sometimes they turned the furnace off, even when it was very cold. They noted that when the furnace was off there were no illnesses, but when the furnace was turned on headaches and nausea returned. Sometimes when it was cold the Weavers had to wear coats in the house because they were afraid to trust the furnace.

Mr. Jim Gant was district manager for Lennox Industries, Inc., which company installed the central heating unit in the Weaver home. Mr. Gant came to the home of the Weavers to inspect the furnace two or three times during October 1963. His visit and inspection was in response to a letter written by the Weavers to his company. He stated that the purpose of his inspection was to determine if the unit had been installed properly and in accordance with good practice. He stated that Mrs. Weaver at the time mentioned the possibility of carbon monoxide gas being emitted by the furnace into the interior of the house; that he inspected the furnace and equipment and found that it was installed in accordance with good practice and as recommended by the manufacturer. He stated that under his direction tests were made by an expert technician to determine whether carbon monoxide gas was being emitted from the furnace into the interior of the house. He testified that all of these tests were negative ; that in his opinion the inspection showed that there was no possibility of carbon monoxide gas entering the interior of the house because of the use and operation of the furnace.

Defendants exhibit number 3 is a letter written by the Weavers to Lennox Industries, Inc., complaining about the furnace. The second paragraph reads as follows:

“The furnace on numerous occasions last winter blew out a gaseous substance we believe to be carbon monoxide into the house and caused us to become violently ill. We spent many very cold nights without any heat because we were afraid we would be asphyxiated in our sleep.”

Appellees contend that the above quoted portion of defendants’ exhibit number 3, which was introduced by appellants without limitation or qualification, binds appellants and that such evidence is, in effect, a conclusive showing that there was carbon monoxide emission which caused the injuries complained of by appellees. We cannot agree with this contention. It is true that where a party to a law suit introduces written evidence without limiting its purpose he is bound by the recitations of fact therein. The recitation of fact in appellants’ exhibit number 3 was that the Weavers believed that carbon monoxide gas was being emitted into the house. The fact that they believed carbon monoxide gas was coming into the interior of the house from the furnace was only an opinion and did not establish conclusively that such gas was coming into the house as they believed.

Appellees admit that the only direct testimony that the symptoms of the Weaver family, such as headaches and nausea, were symptoms of carbon monoxide poisoning was the testimony of the Weavers concerning statements made to them by Doctor Mantooth. Mrs. Weaver testified that Doctor Mantooth told her that such symptoms were the exact symptoms of carbon monoxide intoxication, and that he diagnosed the condition of her son as being the result of carbon monoxide poisoning. The testimony of the Weavers concerning such statements and diagnosis by Doctor Man-tooth was hearsay and not admissible to show that the symptoms of the Weavers were symptoms of carbon monoxide intoxication or that their son was suffering from carbon monoxide poisoning. Even though such testimony was not objected to it was hearsay and constitutes no evidence of probative force to establish such facts. Knapik v. Edison Bros., Inc., 313 S.W.2d 335 (CCA 1958), error refused; Texas Company v. Lee, 138 Tex. 167, 157 S.W.2d 628 (Sup.Ct.1941).

For the reasons stated, that portion of the judgment for appellees for personal injuries should be reversed and remanded because of the insufficiency of the evidence. Even if, as appellants contend, it should be held there is no evidence to support such findings we feel that the matter has not been fully developed and that the ends of justice require a remand instead of a rendition of that part of the judgment.

In answer to special issues 13 through 18 it was found by the jury that the plumbing, roof and interior finish in the Weaver home were not installed and completed in a good and workmanlike manner and there were findings of the amount of expense required to correct such defective construction. Appellants’ points 40 through 55 urge that there was no evidence and insufficient evidence to support such findings and that the court erred in not disregarding same and entering judgment for them non obstante veredicto. These points are not well taken. Both Mr. and Mrs. Weaver testified to numerous material defects in the construction of the house. There was testimony and estimates by qualified plumbers and builders concerning such defects and the cost of necessary repairs. The witness Johnny Arolfo was a building contractor who had been in the business about 12 to 14 years. He stated that about ninety percent of his work was in residential construction; that he would build an average of about 15 to 20 houses a year and that he was contacted by the Weavers and went to their house and examined it. He testified at length concerning defects in the house, set out in approximately 150 pages of the Statement of Facts. Contrary to appellants’ contention Arolfo’s testimony concerning tne cost of repairs of such defects was not hearsay and of no probative force because he relied upon the assistance of helpers in arriving at the estimates made. He was an experienced contractor. He personally examined the house and the defects involved. His opinion and estimates of the damages were admissible and had probative value. Appellants, themselves, placed in evidence their exhibit number 2 which is an estimate by a qualified plumber of the amount of expense required for repairs to the plumbing in the Weaver house. They also placed in evidence their exhibit number 5 which is an estimate by Arolfo of the cost of repairs to the roof and the interior finish. The evidence amply supports the findings complained of in these points. They are overruled.

As heretofore noted, that portion of the judgment for personal injuries sustained by appellees must be reversed and remanded. We find no reversible error in any of the points complaining of the judgment for the Weavers for the cost of correcting and completing the improper construction of their home. However, a partial reversal as authorized by Rule 434, Texas Rules Civil Procedure may be had only where issues are severable. 4 Tex. Jur.2d 459; Waples-Platter Co. v. Commercial Standard Insurance Company, 156 Tex. 234, 294 S.W.2d 375 (1956); Harder v. Sanders, 155 Tex. 149, 284 S.W.2d 144 (1955); Texas Employers’ Insurance Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942).

It is held that the test of whether issues as to which reversal is required are severable is whether or not the issues are indivisible or so closely related that they should be tried together. Cantu v. Casas, 265 S.W.2d 175 (Ct.Civ.Apps.19S3, ref. n. r. e.).

In the instant case the issues concerning damages for personal injuries in regard to which a reversal is required are closely related to the other issues concerning expense necessary to correct defective construction of appellees’ home. All of said issues are damage issues for a breach of the contract. The rule is the same in both actions on contract and in tort. 4 Tex.Jur.2d 460. Such issues are indivisible or so closely related that they should not be tried piecemeal. Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950); Housing Authority of City of Dallas v. Hubbell, 325 S.W.2d 880 (Ct.Civ.Apps. 1959, ref. n. r. e.); Dallas Railway and Terminal Company v. Hendrix, 261 S.W.2d 610 (Ct.Civ.Apps. 1953, no writ history.).

The judgment is reversed and the cause remanded.


author: HUGHES, Justice.

text:
    Dr. Charles Philip AKIN, Appellant, v. Mildred Bustin AKIN, Appellee.
    No. 11466.
    Court of Civil Appeals of Texas. Austin.
    March 1, 1967.
    Rehearing Denied March 22, 1967.
    Maurice Angly, Jr., Ashton & Smith, Austin, for appellant.
    Thompson, Roby & Puett, Van Thompson, Jr., Austin, for appellee.
   HUGHES, Justice.

Mildred Bustin Akin sued her former husband, Dr. Chas. Philip Akin, individually and as next friend for Larry Philip, Janis Gail, Scott Douglas and Brenda Joy, minor children of Dr. and Mrs. Akin, to recover the sum of $1400.00 alleged to be the amount in which Dr. Akin was in arrears in complying with the support order for the children contained in the divorce decree and property settlement agreement approved in such decree entered in Cause No. 139,796 styled Mildred Bustin Akin v. Charles Philip Akin, in the 147th District Court of Travis County, on January 12, 1965.

Dr. Akin answered this suit by filing special exceptions, a general denial and by a sworn affirmative pleading that “the agreement was entered into by mutual mistake” and that “the agreement was entered into defrauding the defendant’s rights, undue influence being used in obtaining said agreement.” No facts supporting these legal conclusions were pleaded.

The trial court granted summary judgment for Mrs. Akin in the sum of $1400.00, pursuant to her motion based upon the divorce decree and property settlement, above mentioned, and her affidavit, from which we quote:

“On or about the 11th day of January, 1965, in contemplation of divorce and in consideration of the full settlement of the rights of defendant and myself in the community estate of defendant and myself, defendant and myself executed a property settlement agreement, a certified copy of which is attached hereto as Exhibit ‘A’, and the same is hereby incorporated herein by reference for all purposes. Said agreement represents the entire agreement between myself and defendant and there were no outside understandings or considerations other than expressed therein.
******
During my marriage to defendant he had the management and control of the community assets and during the pen-dency of my divorce action I relied upon the representations made by defendant as to the nature and extent of our community estate as he alone had the full knowledge of these matters.
During the pendency of the said divorce action and the negotiation and execution of the said property settlement agreement and at the time of the entry of judgment by the court therein and for some time thereafter defendant was represented by his attorney, Carl C. Hardin, Jr., who approved the said property settlement agreement and the judgment prior to its entry by the court. Defendant’s attorney was notified of the date of the trial in said divorce action and was present with defendant when judgment was entered. No objection was made and thereafter said judgment was allowed to become final.
Defendant has received and retained the benefits of all the property specified in said property settlement agreement that he should receive.”
Dr. Akin filed no controverting affidavit.

We quote, as follows, from the property settlement agreement approved by the court in the divorce decree:

“WHEREAS, the parties desire to completely and forever settle their property rights in and to their separate and community property, which is all the property that either of them possesses, and to effect a partition of their said property by this Agreement, the same to become effective only if and when the divorce sought by Party of the First Part is granted in the above numbered and styled cause and this Agreement is approved by the Court therein;
Now, therefore, the said parties hereto, in consideration of the premises and pursuant thereto, agree and covenant to and with each other, in the following manner, to wit:
I.
Party of the First Part (Mrs. Akin) shall have and receive as her sole and separate property and estate the following:
1. 1963 Ford Thunderbird automobile or an automobile of comparable value;
2. All household furniture now in her possession ;
3. All personal items, such as clothing, jewelry, etc., now in her possession;
4. $1000.00 cash to be paid to Party of the First Part commensurate with the entrance of the decree in this case and a release signed by Party of the Second Part in favor of Party of the First Part’s father and .brother in the amount of $1800.00 to be executed at the time of the entrance of the decree in this cause.
II.
Party of the Second Part (Dr. Akin) shall receive as his sole and separate property and estate the following:
1. Undivided interest in his dental practice;
2. All assets and all property acquired during the marriage with the exception of those items awarded to Party of the First Part;
3. Personal items now in the possession of Party of the First Part;
4. Total savings on deposit with First Federal Savings and Loan Association of Austin, Texas, said amount being approximately $6500.00.
III.
Party of the Second Part further agrees to pay to Party of the First Part the sum of $150.00 per month for each of their four children for the support of said minor children, said payments beginning on the 5th day of February, 1965, and on the 5th day of each month thereafter for a period of one year from the date of the first payment; and thereafter $125.C0 per month for each of their four children for the support of said minor children beginning on the 1st day of the month following the expiration of said one-year period and theréafter on the 1st day of each month until said children shall reach the age of eighteen years. Party of the Second Part is to have reasonable visitation with said children upon notice and at reasonable times and places not inconsistent with the health, education and welfare of said children.
IV.
Party of the Second Part further agrees to pay for any and all hospital expenses incurred by said children in order to ensure their health.
V.
Party of the Second Part further agrees to pay Party of the First Part’s attorney’s fees in the amount of $500.00.
VI.
Party of the Second Part further agrees to pay all debts of the community estate and to hold harmless Party of the First Part from any and all liability thereon.
VII.
And the parties hereto further hereby covenant and agree that a copy of this Agreement, duly executed, shall be filed among the papers in the above numbered and styled cause, and the parties hereby jointly and severally request and pray of the Court that, if a divorce is granted Party of the First Part on a final hearing in such cause, the Court expressly approve this Agreement if the Court finds the same to be just and fair and include the same in any judgment or decree entered by the Court.”
Dr. Akin’s single point of error is:
“That Plaintiff’s alleged cause of action is contractual in nature and subject to the defenses of mutual mistake, fraud and undue influence raised by defendant’s sworn original answer, all of which were properly before the court upon Plaintiff’s Motion for Summary Judgment.”

This point of error is overruled for the reason that it is academic under this record.

The sworn pleading of Dr. Akin was insufficient to make a fact issue of mutual mistake, fraud or undue influence. The allegations of such pleading have been stated in full. They are but legal conclusions and cannot alone create or refute an issue of fact in a summary judgment proceeding. This rule is so well and authoritatively settled that we cite in support of it only Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

The judgment of the trial court is affirmed.

Affirmed.


author: COLEMAN, Justice. BELL, Chief Justice.

text:
    Herbert A. WALLS et ux., Appellants, v. RAPID TRANSIT LINES, INC., et al., Appellees.
    No. 14865.
    Court of Civil Appeals of Texas. Houston.
    Feb. 2, 1967.
    Rehearing Denied March 23, 1967.

      John H. Holloway, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, Roger R. Wright, Jr., Houston, for appellees.
   COLEMAN, Justice.

This is a suit for damages for personal injuries arising out of an intersectional collision. Judgment for the defendant was entered on a jury verdict. The principal ground relied on for reversal is jury misconduct.

Appellant, Valtra J. Walls, was driving her automobile on Dowling Street through the intersection with Cleburne Street when she was involved in a collision with a bus owned by appellee. She was driving in the rain at night on a well lighted busy street. She was traveling at a speed of about 28 miles per hour. When she was about half a block from the intersection the bus was stopped at a stop sign on Cleburne Street. The head lights of the bus were lighted, as were the lights inside the bus. There is evidence that appellant was driving without lights. The bus slowly pulled out into the intersection and hit the left rear portion of appellant’s car. Although both appellant and the bus driver testified that they looked for approaching traffic, both testified that they failed to see the vehicle driven by the other.

The jury found that the bus driver did not fail to keep a proper lookout, yield the right of way, or timely apply his brakes. It found that appellant failed to yield the right of way, failed to keep a proper lookout, was driving at an excessive rate of speed under the circumstances, was driving without headlights, and that each of these acts of negligence constituted a proximate cause of the collision.

After carefully studying the statement of facts we have reached the conclusion that each of these issues was properly submitted to the jury and that the answers returned by the jury are supported by sufficient evidence and that none of the answers is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Appellants’ first point of error reads:

“The Court erred in denying Appellant’s Motion for New Trial because of material jury misconduct prejudicial to the appellant, or reasonably calculated to result in probable harm, as to each of the following separately assigned sub-points of error, and which errors are also asserted to be cumulative errors:
“(1) The jury considered the issues based upon who was responsible for the accident rather than deliberating calmly upon the facts supporting the individual issues as submitted;
“(2) The jury foreman improperly and wrongfully informed the jury that the issues were to be determined ‘as a matter of law’ upon who had the right of way, as controlled by Issue #1;
“(3) The jury improperly and wrongfully considered the right of way issues, and other issues based upon what they decided was the ‘danger zone’, which they determined to be appellant’s stopping distance from the intersection based upon her speed; differently stated, that once the bus stopped for the stop sign, that it was appellant’s duty to avoid a collision if she was within the ‘danger zone’;
“(4) The jury received new evidence pertaining to braking distances based upon juror’s knowledge of charts and speed as relating to such distances ;
“(5) The jury received new evidence in form of reconstruction of diagram of accident scene and which was used by the jury foreman in argument to pwrsuade jur- or Thompson to change his vote;
“(6) The jury failed to vote upon the damage issues so as to unanimously determine the damages by reason of statement of the jury foreman, and others, that damages could not be awarded because appellant was responsible for the collision, and that such fact was determined from the issue was to whether the bus had the right of way; and,
“(7) The Appellants did not have a fair and impartial jury and was denied a jury trial based upon calm deliberations upon all issues as indicated by juror, Mrs. W. R. Snell’s, testimony that she was ‘agitated’ by having to continue as a juror in the deliberations because they had planned to leave on vaction that week, and her husband was ill.”

The trial court’s order denying the motion for new trial is supported by an implied finding that the specific misconduct complained of did not occur. If the evidence is in conflict as to whether there was misconduct, this Court is bound by the implied finding of no misconduct. Brawley v. Bowen, 387 S.W.2d 383 (Tex.Sup.1965).

Three jurors testified on the jury misconduct issue. Mrs. Snell testified that the jury foreman stated that the first issue (failure of the bus driver to yield the right of way) was the controlling issue and that once that issue was granted the others fell in place; that issue No. 1 controls the other issues; that they had to decide whether the bus driver was in the right. She testified:

“We voted on a number of issues there, I don’t know how many, and we got all ‘yes’, but the first issue we couldn’t get anything. We would come back to the same thing again, then the foreman said, Well, we have got to settle this first issue before we can do anything, because that is the main issue right there.’ ”

At another point Mrs. Snell testified that when the jurors were unable to agree on the answer to Issue No. 1, the foreman suggested that since they were not getting anywhere on that issue, they should consider the other issues and “he read them off and then we voted.” She testified that one jur- or told her that judging from the differences in speeds appellant’s car was seven car lengths from the intersection when the bus entered it. There was some mention of a danger zone, “but it was all according to what you had on that board up here, you know;” that the jury foreman didn’t tell them what constituted the danger zone or the immediate hazard zone “because he knew we were in the courtroom and saw the same thing he did. We formed our own opinion.”

She didn’t remember anybody drawing a diagram in the jury room. She testified that one of the jurors computed some distances on a piece of paper, and that someone did tell what the stopping distance would be for thirty miles an hour, and he drew down as to how far you would go, “just like you did in there.” In answer to the question, “That was some information he got off some charts, wasn’t it, as to the braking distance of the cars?” she answered, “No, that was from the jury * * * what we heard in here.”

She testified that the jury reached unanimous agreement on some of the issues before Issue No. 1 was answered. She identified as such issues the issues on the failure of the bus driver to keep a proper lookout and his failure to properly apply his brakes.

The testimony of this witness alone would support the trial court’s implied finding that there was no agreed plan to answer the issues in such a way as to find a verdict for one or the other of the parties.

Mr. Thompson testified that the jury foreman constructed a diagram similar to the one used in court which purported to show what was on the blackboard, and which he, Thompson, considered equivalent to the one on the blackboard. He testified that juror Cook stated that there were charts which indicated stopping distances at certain speeds and from the stopping distance that appellant used, her speed must have been greater than 25 miles per hour. Thompson stated that although he had seen such charts, he contended that since they were not in evidence, the charts should not be considered. He didn’t remember what Cook said about the charts in the presence of the jury, but that he asked if the charts weren’t based on dry pavement and pointed out that in this case the pavement was wet. He couldn’t remember the figures used, but he understood that Cook was trying to show that appellant had plenty of time to stop after the bus entered the intersection. While his testimony as to the discussion of the “danger zone” was confused, at one point he said that Mr. Cook argued that if appellant was in the area where she couldn’t have stopped, then she had the right of way. As he understood the discussion a stopping distance of 60 feet was used as the “danger zone”.

In answer to the question, “Was the issues relating, as far as what Mrs. Walls did or did not do, in connection with the jury deliberations tied into the question of whether or not the bus yielded the right of way in the first place?” this witness answered, “Not that I can recall.”

Thompson testified that he was the juror who held out and that after the discussion about the charts he changed his vote on the right of way issue. He testified that while considering the issues relating to appellant’s conduct, there was discussion as to what a witness who was not called would have testified, and that after the discussion he changed his vote on these issues, but he didn’t know which one of the issues was being considered when the discussion took place. He testified that when the damage issues were reached the jury decided to first vote whether to award any damages at all, and if it was agreed that some damages should be awarded, then they would discuss how much to award. Several votes were taken because one juror wanted to allow compensatory damages for medical expenses, but Thompson’s argument that damages couldn’t be allowed against one who was blameless prevailed and, voting on the three damages issues at the same time, it was agreed that the issues be answered “none”. He testified that he thought Issue No. 1 was the first issue answered, but that he was not certain, and each issue was separately discussed and separately decided.

Mr. Cook said that he didn’t remember when the various issues were decided. He remembered the discussion about the danger zone, but that he did not remember relating that discussion to the lookout issue. He did not remember any specific number of feet being mentioned as being the danger zone, nor discussing with Mr. Thompson charts showing various braking distances, and he didn’t remember getting into any detailed discussion with Mr. Thompson about the danger zone, and that he did not discuss with him the charts as related to whether or not they were on wet or dry pavement. He didn’t recall anyone else discussing charts and speed distances with him, although he recalled that there was “some mild discussion on it.”

He remembered that the foreman told the jury that if the bus actually stopped for the stop sign and Mrs. Walls was not in the danger zone at that time, as a matter of law he could proceed across the intersection and that Mrs. Walls, then being outside the danger zone, had to yield to him. He didn’t remember there being any discussion about an absent witness. He did not remember any discussion in the jury room about witness cards. The jurors voted on all the issues, but it was generally agreed that since the bus driver was not at fault, appellant was not entitled to any damages. He did not remember any diagram.

He testified that there was some discussion about how long it takes to stop at certain speeds and that “ * * * it was bandied around there just a few times and then they said, well, no, we won’t * * * since we don't know, we won’t use it, * * * Mr. Thompson said, ‘No, we can’t. We don’t have anything to go on so we won’t use it. If I remember right that whole discussion about the charts was dropped.’ ” He stated that there was discussion that a car going thirty miles per hour could be stopped in half a block and this was used a great deal.

The trial court’s implied finding of no jury misconduct is supported by this testimony. Even if it be conceded that new evidence was presented in the jury room concerning stopping distances, it is not probable that this evidence affected the finding that appellant was driving without lights at night, or that she failed to keep a proper lookout, and that each of these acts of negligence constituted a proximate cause of the collision. Since these findings alone would require a judgment for appellee, the misconduct, if it occurred, was not such as was calculated to, and probably did, cause the rendition of an improper judgment. Appellants’ point of error No. 1 cannot be sustained. Rule 327, Texas Rules of Civil Procedure; Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958); Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028 (1943).

During the trial there was testimony that there were two passengers on the bus at the time of the collision. The bus driver secured from each of them a card giving their names and addresses. Appellant did not find out their names at the scene of the collision. These facts were known to the jury. One of the passengers testified at the trial. The other was not present. Prior to resting appellee produced as a witness an investigator on its payroll and attempted to question him about his efforts to locate the other passenger. This testimony was excluded by the trial court. After both parties had rested, but before the court’s charge was read, the judge, over appellants’ objection, permitted appellee to reopen and admitted the investigator’s testimony that he went to the address written or. the card by the passenger and found no one there; that he inquired at nearby houses and found no one who knew a person having the name listed on the card; that he found a person having that name in a City directory and located him, but he denied having been a witness to the collision. Appellant requested the right to reopen and introduce testimony that she had asked appellee to give her the names of the passengers and that appellee had refused to give the information. The trial court denied this request. One ground urged for a new trial was that since the trial appellant has discovered that the address given by the passenger, at which the investigator testified he tried to locate him, was a vacant lot.

In this connection appellant presents these points:

Second Point
“Error in denying new trial because of newly discovered evidence of false" testimony as to efforts of appellee bus company to locate a witness when both counsel and testifying investigator knew such evidence was untrue and so as to infer to jury that witness would testify favorable to ap-pellee.
Third Point
“Error in refusing appellant right to show that testimony of efforts to locate alleged ‘missing witness’ was not true because of refusal to furnish the names of such witnesses to appellant, where appel-lee was permitted to re-open after case was ready for jury argument, so as to. leave impression with the jury that appellants did not make any attempt to locate the witness because the testimony would be unfavorable on the headlights issue.
Fourth Point
“Error in permitting to re-open after case was closed and just prior to jury argument being abuse of discretion under circumstances.”

While we are unable to find any instance where the investigator testified falsely, his testimony was calculated to leave the impression on the court and jury that the address of the missing witness was a house rather than a vacant lot. It is appellants’ position that the result of the testimony of the attempts to locate the witness was to leave the impression on the jury that the witness would have given evidence favorable to appellee. They further contend that the refusal of the court to permit them tc show that they tried to find the name of the witness left the impression that the appellants thought the testimony of the absent witness would not have been favorable to them.

The jury knew that the man was on the bus at the time of the collision and that the bus driver had his name. The jury knew that appellant did not know the names of the passengers. Under the circumstances the trial .court did not abuse his discretion in permitting the case to be reopened. Central American Life Insurance Co. v. Krause, 284 S.W.2d 192 (Tex.Civ.App.1956). Neither of these points presents an error which probably resulted in the rendition of an improper judgment. The newly discovered evidence was not relevant to a material issue in the case. While it might have been used to discredit appellee as having been somewhat less than candid in its presentation of the evidence of diligence in seeking the witness, the testimony was not such as to require a conclusion that without it appellant was deprived of a fair trial, or that a different verdict would probably have resulted had the testimony been available.

During the course of his argument appellee’s lawyer referred to the attorney for appellants as a “slick tongued young lawyer.” Appellants contend that this remark was so prejudicial that an instruction could not have cured the harm caused thereby. It appears that the trial court sustained an objection to the remark and instructed the jury to disregard it. We do not consider the remark so highly prejudicial as tc be incurable. Ford Motor Co. v. Whitt, 81 S.W.2d 1032 (Tex.Civ.App., Austin 1935, error ref.); Western Cotton Oil Co. v. Patterson, 271 S.W.2d 106 (Tex.Civ.App., Eastland 1954, error ref., n. r. e.).

By points 7 and 8 appellants complain of a number of questions asked of various witnesses by appellees’ counsel. Objections were sustained to most ot these questions. The questions asked the witness, James Evans, were not improper. The mere asking of an improper question is not ground for reversal where it does not appear that the attorney acted in bad faith. The inadmissibility of the testimony sought to be elicited by the questions complained of is not so clear as to warrant the conclusion that appellees’ lawyer could not have reasonably supposed he had a right to ask them. Price v. Pelton, 199 S.W.2d 249 (Tex.Civ.App., Austin 1947).

The trial court’s instruction on the law with reference to right of way followed the applicable statute. It was not subject to the objections made by appellant. McDonald v. New York Central Mutual Fire Insurance Co., 380 S.W.2d 545 (Tex.Sup.1964); Austin Road Company v. Thompson, 275 S.W.2d 521 (Tex.Civ.App., Ft. Worth 1955, error ref., n. r. e.). The requested instructions were improper as assuming that Mrs. Walls' automobile entered the intersection first, and constituted an immediate hazard at the time the bus entered the intersection, both disputed issues of fact.

Appellants’ Points 9, 10, 12, 13, 15, 16, and 18, all charge error on the part of the trial court in refusing to disregard the answers made by the jury to various issues submitted to it. The trial court may not disregard the answer made to a special 'issue by the jury if there is any evidence supporting the answer. These points, therefore, are “no evidence” points. There is some evidence supporting each of the answers of which complaint is made. McDonald v. New York Central Mutual Fire Insurance Co., 380 S.W.2d 545 (Tex.Sup.1964).

While the answers made by the jury to the damage issues are contrary to the great weight and preponderance of the evidence, these answers are immaterial in view of the answers on the liability issues, which are properly supported by evidence. Dunn v. Sears Roebuck and Co., 371 S.W.2d 731 (Tex.Civ.App., Houston 1963, error ref., n. r. e.).

After considering each point of error presented by appellants, we have concluded that the judgment of the trial court should be affirmed.

Affirmed.

On Motion for Rehearing

BELL, Chief Justice.

After our original opinion in this case, and before disposition of the motion for rehearing, we granted appellants’ motion to file an amended brief though the motion denominated it a “Supplemental Brief.” Thereafter the motion for rehearing was considered. We have treated the supplemental brief as an amended one.

We have considered each point of error assigned, and consider each of them to be without merit.

The motion for rehearing is overruled.

COLEMAN, J., not sitting.


author: NORTHCUTT, Justice.

text:
    Merle Leon HEISKELL, Appellant, v. Julia Naomi HEISKELL, Appellee.
    No. 7688.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1967.
    Rehearing Denied March 20, 1967.

      McCown & Sheehan and Louis T. Du-buque, Dumas, for appellant.
    Lovell, Lyle & Cobb and R. A. Renfer Jr., Eli Willis, Dumas, for appellee.
   NORTHCUTT, Justice.

This is a child custody suit filed by the father against the mother for custody of the child awarded to defendant in her divorce suit. The case was tried before a jury and after the plaintiff had submitted his evidence and rested the defendant filed a motion for judgment, which motion was granted by the trial court. From that judgment the plaintiff perfected this appeal. The parties hereafter will be referred to as they were in the trial court.

The plaintiff presents this appeal upon one point of error contending the court erred in granting defendant’s motion for judgment because there was evidence to raise an issue of fact as to a material change in conditions since the original divorce and custody decree was rendered.

Article 4639a, Vernon’s Ann.Tex. Civ.St., provides that a trial by a jury may be had in a child custody case. We think the sole point involved here is a no-evidence point. In other words, was there any evidence introduced as to a changed condition since the defendant was granted custody of the child in the divorce suit? Nothing is more firmly established in our law than that the paramount question to be decided in custody matters is the best interest of the child and any right of a parent must yield to such welfare and best interest. Quarles v. Quarles, 386 S.W.2d 337 (Tex.Civ.App.-Dallas, 1965, no writ) and the many cases there cited. But if there is no evidence to support a finding by the jury that the custody should be changed then the judge has the right to take the matter from the jury and render judgment. Rule 301, Texas Rules of Civil Procedure; Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App.-Dallas, 1963, no writ).

It seemed to be the contention of the plaintiff that the custody should be changed for two reasons, one of those reasons being that the plaintiff had remarried and had a home for the child. That alone is not sufficient. In the case of Fontaine v. Fontaine, 325 S.W.2d 428 (Tex.Civ.App.-Dallas, 1959, no writ) it is stated:

"It is familiar law that ‘where the custody of a minor has by divorce decree been awarded to one party, one seeking a modification of the decree changing the award has the burden of establishing changed conditions arising subsequent to the date of the decree which would materially affect the welfare of the child.’ Neal v. Medcalf, Tex.Civ.App., 244 S.W.2d 666, 670 [10]. ‘The party seeking a change of custody has the burden of proving that since the judgment of divorce conditions have so changed as to render the other parent an improper custodian, or that the welfare of the child demands a change.’ 15-B Tex.Jur. p. 104. Appellee admits to unchanged conditions with respect to the mother as custodian; simply asserting his remarriage which, in itself, is uniformly held not to be a sufficient ground or reason for modification. Tavares v. Tavares, Tex.Civ.App., 207 S.W.2d 916; Lovelace v. White, Tex.Civ.App., 209 S.W.2d 422; 43 A.L.R.2d 364.”

The other reason seemed to be that the defendant was immoral and neglected the child by leaving her with a babysitter. We are unable to find any evidence in this case that defendant has ever been immoral. The plaintiff testified that the child seemed healthy and happy. Naturally, the defendant had to work to make a living. There is no evidence that the babysitters were improper persons or in any manner abused or neglected the child. When this hearing was had the defendant and the four-year old little girl were living with defendant’s parents and defendant was working in her father’s store.

In custody cases the underlying principle paramount to all others is the welfare and best interest of the child. In no way in conflict with this rule is another, equally well established, that once the court has decreed custody there may be no change in the child’s custody except where adequate cause therefor arises out of changed conditions. The principle is based on the idea not only the stability of the home life of the child is an important and vital factor but also that the turmoil of litigation must somewhere end. Short of modification based upon adequate grounds, the decree awarding custody is conclusive and settled beyond recall other than by appeal. Moreover, the actions and conduct of one of the parties to the divorce which gives offense to the other or even to the public at large are not a matter that calls for or permits a change of custody unless such actions and conduct are shown to affect directly the welfare and best interest of the child.

Where a court has decreed custody to one parent, such parent may not be deprived of the custody for any supposed unfitness unless it be shown that he or she is so unfit as to endanger the child’s welfare. A custody proceeding is not one to discipline one parent for such parent’s shortcomings as an individual, nor to reward the other for any wrong suffered therefrom. Before a decree awarding custody may he vacated and the child’s life unsettled, the evidence must he clear and convincing that the child’s welfare and best interest will he directly promoted by a change.

We are unable to find in this record any evidence that would justify a jury or the judge of the trial court in finding there was such a change of conditions as to require the change of custody. The child is healthy and happy and there is nothing even to indicate that anything is wrong with the child’s present surroundings. We think the trial court was correct in holding there was no evidence in this case that would justify a jury to hold the defendant was an improper custodian of the child to demand a change.

Judgment of the trial court is affirmed.

CHAPMAN, A. J., concurs in the result reached.


author: CLAUDE WILLIAMS, Justice.

text:
    Joe PONCE, Appellant, v. Rosalie PONCE, Appellee.
    No. 16856.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1967.
    Rehearing Denied March 10,1967.

      Wm. Andress, of Anrdess, Woodgate, Richards & Condos, Dallas, for appellant.
    Lawrence E. Steinberg, of Whitener, Price, Lewis & Steinberg, Dallas, for ap-pellee.
   CLAUDE WILLIAMS, Justice.

On September 18, 1964 Rosalie Ponce brought this action in the Domestic Relations Court seeking a divorce from her husband, Joe Ponce, and also asking that she be awarded custody of their six-year-old daughter, Julie llene Ponce. On October 30, 1964 the trial court entered an order granting temporary custody of the minor child to the father, pending final hearing of the action. On November 10, 1965, following a hearing, a judgment of divorce was entered in favor of Rosalie Ponce but, by agreement of the parties, the issue of custody was severed for future determination. Thereafter, on February 21, 1966, the court began hearing testimony on the issue of custody of the minor child and on May 25, 1966 entered a final decree awarding custody of the child to the mother and granting the father specified visitation periods.

Appellant Joe Ponce inveighs against the judgment rendered by contending, in four points of error, that it was an abuse of discretion on the part of the trial court to grant permanent custody of the minor child to the appellee Rosalie Ponce.

Where, as here, no findings of fact or conclusions of law were requested or filed, the judgment of the trial court must be affirmed if it has any support in the evidence. Ogletree v. Crates, Tex.Sup., 363 S.W.2d 431; Watts v. Watts, Tex.Civ.App., 390 S.W.2d 30. In testing the sufficiency of the evidence to determine if it supports the findings of the trial court credence is given only to evidence and circumstances favorable to the findings and we should indulge in every legitimate conclusion tending to uphold the findings. Scozzari v. Curtis, Tex.Civ.App., 398 S.W.2d 819. The judgment of the trial court should not be disturbed unless it is so contrary to the great preponderance of the evidence as to show an abuse of discretion. Trevino v. Trevino, Tex.Civ.App., 193 S.W.2d 254; Furrer v. Furrer, Civ.App., 267 S.W.2d 226; Thomason v. Thomason, Tex.Civ.App., 332 S.W.2d 148.

Viewing the record made and here presented in the light of these authorities we find ample evidence to support the implied findings of the trial court that the appellee mother is a fit and proper person and that it would be for the best interest of the minor child for permanent custody to be vested in her. While it would serve no purpose to elaborately detail all of the testimony on the issue involved we do deem it advisable to summarize the essential portions thereof which clearly justify the court’s decision.

It is undisputed that appellee was stricken with a mental illness or disturbance in 1963. Following a two weeks’ stay in Woodlawn Hospital and Beverly Hills Sanitarium in Dallas she was admitted to the State Hospital at Terrell where she remained several months undergoing treatment. She was discharged from the State Hospital in 1964 and the County Court of Kaufman County decreed that she was of sound mind. Following her release and discharge in August of 1964 she started to work in Dallas on April 26,1965 and has continued to work almost all of the time since then. She is engaged as a box office clerk for the Buena Vista Company which distributes motion pictures to theatres. As a part of that job she has to compute the charges and rentals on the film. She testified that if granted custody of the child she intended to temporarily live with her niece who has a large two-story house with four bedrooms in Richardson. She said that she planned to purchase a home out of money that she had saved and also money that had been awarded her in the division of community property at the time of the divorce.

Several lay witnesses testified that ap-pellee had demonstrated to them that she was able to and did take care of and looked after the child as well as a mother could when she had her during visitation periods. There was testimony that the child became upset when she had to leave her mother at the end of these periods. Evidence was introduced to the effect that appellee had always been a devoted mother to her child and that the two were very happy when together.

Dr. F. T. Harrington, a psychiatrist selected by the court to examine appellee and render an opinion concerning her mental condition, testified that appellee was now mentally capable of coping with everyday problems and that in his opinion she had returned to a “state of good social remission”. It was his opinion that a child such as the minor in question here should be in the custody of the mother since it is best for the child to make an identification with the real parent of the same sex during the pre-adolescent period. He said that it would be better for the child to spend more time with the appellee and that her identification should be with the ap-pellee rather than a “mother substitute”.

Appellant lays great stress upon the testimony relating to the mental capacity of appellee and the potential danger that there might possibly be a recurrence of her condition in the future. This contention presents a matter of grave concern but was one within the broad discretion of the trial court. The test to be applied by this court is not what we would have done under the same or similar circumstances but whether the result reached by the trial court amounted to an abuse of discretion to the extent that it should be reversed. Where the decision is supported by evidence of probative value, as we here find it to be, we cannot say that the discretion so vested in the trial court was abused. Madden v. Madden, Tex.Civ.App., 365 S.W.2d 427; Watts v. Watts, Civ.App., 390 S.W.2d 30.

In Kollenborn v. Kollenborn, Tex.Civ.App., 273 S.W.2d 660, the Fort Worth Court of Civil Appeals reviewed a decision much similar in many details to that under consideration. In that case the mother had suffered from paranoid schizophrenia and had been confined to Timberlawn Sanitarium in Dallas and had also been treated in Mayo Clinic and another mental institution in Minnesota. Following her release from the hospital she asked custody of their minor children as a part of the divorce action. The trial court granted her custody of the minor children and the Court of Civil Appeals affirmed the judgment and overruled the contention there made, as made here, that the trial eourt had abused its discretion. The court pointed out that it had been repeatedly held that a child of tender years should be with the mother, if she is a fit person therefor, and that a very clear case of abuse of discretion must appear before the appellate court will interfere with the trial court’s judgment awarding custody of minor children.

In Sarosdy v. Sarosdy, Tex.Civ.App., 297 S.W.2d 852, this court, in an opinion by Mr. Justice Cramer, reviewed a decree awarding custody, as a part of a divorce case, to the mother. The testimony revealed that the mother had undergone schizophrenic episodes and had attempted suicide following which she had been admitted to Timber-lawn Sanitarium. Following her release she had been adjudged to have been in a state of remission and had applied for and been accepted as airline hostess. Based upon a review of conflicting evidence we held that there was no demonstration of abuse of discretion which would justify reversal of the judgment.

Our examination of the record compels the opinion that the trial court’s judgment was based upon sufficient evidence and that we would not be justified in setting it aside or finding contrary thereto.

The judgment of the trial court is

Affirmed.