author: NYE, Justice.

text:
    Robert OLIVER et al., Appellants, v. Ethel WILLIAMS et al., Appellees.
    No. 33.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 20, 1964.
    Rehearing Denied Sept. 10, 1964.

      W. S. Fly, of Fly, Cory & Moeller, Victoria, for appellants.
    James A. Hunt and Pat Kelly of Hunt, Cullen, Mallette, Maddin & Edwards, Victoria, for appellees.
   NYE, Justice.

This case involves a Will contest on the testamentary capacity of the testator. The County Court of Victoria County on September 18, 1962, entered judgment after a contest of the Will was heard admitting the Will to probate. An appeal was perfected to the District Court and a jury in that court on the 13th day of June, 1963, found that the testator had testamentary capacity at the time he executed the Will. The trial court entered his judgment from this verdict on July 2, 1963, and contestants’ amended motion for new trial was overruled on the 21st day of August, 1963. Appeal was then perfected to the Court of Civil Appeals of the Fourth Supreme Judicial District of Texas and, by order of the Supreme Court, assigned to this Court for hearing.

The testator was John P. Oliver, a bachelor. The Will was dated and signed, valid in form, on October 21, 1960, witnessed by-two witnesses. Mr. Oliver died April 26, 1962. Ethel Williams, niece of the testator, and her twelve-year old son were the sole beneficiaries.

Lottie Burg, Robert Oliver and Jessie Oliver, sister and two brothers of the testator, were contestants in the probate court; and Lottie Burg later having died, her heirs, Joe Burg, Patti Lee Gerbert, joined pro forma by her husband Gene Gerbert, Allen Sloan, Oliver Sloan and Jack Sloan, were substituted for such decedent contestant and, hereinafter, all of such contestants will be referred to as appellants.

After application to probate the Will was filed, J. S. Williams, named in the Will as Independent Executor, died. His widow, the said Ethel Williams, before the trial was held in the District Court, was named as administratrix c. t. a. Ethel Williams, individually, as administratrix and as legal guardian of her minor son, thereafter acted as proponents of the Will, hereinafter referred to as appellees.

The sole special issue submitted to the jury was “Do you find from a preponderance of the evidence that the said John P. Oliver had testamentary capacity at the time he signed the said instrument introduced as the Will of said John P. Oliver? ” To this special issue, the jury returned answer “Yes” as their verdict.

Motions for instructed verdict by both the appellants and appellees were overruled as likewise was appellants’ motion for judgment non obstante veredicto. The appellants then perfected their appeal to this court.

Appellants’ first points are (1) no evidence; (2) insufficient evidence to sustain the issue of testamentary capacity; and the trial court’s failure to grant: (3) appellants’ motion for instructed verdict, and (4) appellants’ motion for judgment non obstante veredicto. These points cf error will be discussed together inasmuch as they relate to the sufficiency of evidence.

The question of insufficient evidence requires the Court of Civil Appeals to consider and weigh all of the evidence supporting the verdict, along with the other evidence in the case, including that which is contrary to the verdict. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Fisher Construction Company v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959).

The testator, John P. Oliver, lived on a farm near Victoria, Texas, on some property he inherited from his family. He was uneducated and lived most of his life by himself. The testator had several brothers and sisters one he was particularly fond of by the name of Andrew Oliver. A true kindred spirit of brotherly love developed between the testator and this brother. This brother, Andrew Oliver, had several children, one of whom was a daughter, Ethel Williams, who was a co-beneficiary under the Will, along with' her son, a minor. The testator could write his own name but was unable to read or write otherwise. This favored brother, Andrew, co-signed his checks until the time of Andrew’s death. Later on the testator designated Andrew Oliver’s daughter, Ethel Williams, to cosign the checks with him. The Will was executed some fifteen months prior to his death. There was no evidence of undue influence nor any special issue requested on this point by the contestants, the appellants herein. Several months before the testator’s death, he moved into town and lived with Mrs. Williams and her family. She took care of him until his death in April, 1962.

There were many witnesses for both the contestants and for the proponents of the Will. Appellants’ witnesses all testified that in their opinion the testator did not have the ability to understand the nature and extent of his property, nor did he have the ability to conduct a business transaction. Without attempting to detail all of their testimony, the pertinent summary of each, in addition to the above, was as follows:

Appellants’ first witness, Ann Oliver, wife of one of the contestants, testified that she had known the testator for fifty years, that he was not able to conduct a normal conversation.

The second witness called by the appellants was R. B. Magee, who had known the testator since 1911 and had employed him to work for him in his gin. He stated that he had employed him off and on for fifteen years and that he did mostly roustabout jobs about his gin, watching the feed house, keeping the feed pushed back and sometimes running the “sucker”. He stated when he was asked the question “Was he able to count bales?” “Well, that didn’t come under his job. I never risked him at that.” He testified that he did not believe that the testator had the ability to comprehend and understand business transactions. On cross examination he admitted that the only business transaction that he had ever had to do with the testator was employing him and paying him for his services. He never did buy or sell anything to the testator.

Witness William Castillo, for the appellants, testified that he had known the testator for many years, that he had tried to lease the testator’s land, which the testator said was ten acres (the proof showed that it was 330 acres). Appellants’ attorney questioned him:

“Q. Did he tell you how much land he had?
“A. Yes, sir, at first I had understood that he had more land than what it came out to be when he talked to me. Somebody told me he had more land to lease so I came by to the place to deal with him and he said he only had ten acres right by the house where he was living so I forgot it
“Q. Did I understand you to say he told you ten acres was all the land he owned?.
“A. Yes, sir, that was what he told me all the land he owned.”

Castillo testified, further that the testator told him that he had sold his land for $10,-000.00 (the proof showed it was sold for approximately $50,000.00, but the proof also showed that the testator received $9500.-00 cash and a note for the balance).

Felix Gonzales, who had known the testator for many years, had the same opinion of testator.

Witness Selzer testified that he stopped and visited with the testator one morning and asked him about his pick-up truck and stated that the testator did not give him any satisfactory answer about the price that he had paid for the pick-up. The witness admitted testator had been going to church all during his lifetime and after the testator had moved to town he had been going to church fairly regularly (a different denomination from Ethel Williams, the beneficiary, with whom he was living).

Witness John Lolla testified that he went with the testator on a trip to Marlin, Texas, and that the testator told him that he was afraid he could not find his way home from Marlin. He further testified that the testator said that he had received $70,000.00 for his property when in fact he received approximately $50,000.00.

Witness Bianchi stated that the testator told him he was selling his hens because he had roosters which could lay eggs, that testator was unable to say how many acres of land he had and that he had received $300.00 per acre for his land, which was twice as much as he had actually received.

Witness Joe Ann Martin testified that testator told her that it took all the money he had to buy the new car, when it was undisputed that he received $9500.00 cash from the sale of his farm, and he had only paid $2100.00 for the car.

Proponents likewise produced a number of witnesses, two of whom were witnesses to the execution of the WilL Mr. Lawrence Stange, Assistant Vice President of the Victoria Bank & Trust Co., testified that he was a friend of the Oliver family for a number of years, that he had known the testator first, as a young fellow growing up, through his family who operated a grocery store. He testified that the testator expressed the desire that he be a witness to the Will, that the Will had been explained to the testator and that he had executed.it; that he had witnessed the Will in the presence of the testator and in the presence of witness Janda, and that the pertinent high points of the Will were explained to the testator. Appellees called Laddie Janda, the other witness to the Will, who was Assistant Cashier at the Victoria Bank & Trust Co. Mr. Janda testified that the Will was explained to the testator and that he expressed the desire to execute the Will and that the testator had signed the Will in his presence and in the presence of Mr. Stange. He testified that the testator executed it of his own free will and accord as if he was willingly and happy to do it.

The next witness called was Mrs. Jimmy Lattimore, who had known the testator about twenty years. She stated that she and her husband operated a drug store and that they had done his prescription work. She testified that she had talked with him many times about his prescriptions, and that he was always able to tell her what the doctor said was wrong with him; that the testator would come back for re-fills. She stated that she had had many other conversations with him and that the conversations were that of a normal human being. She testified that he knew the members of his family, his sisters and brothers, and that he spoke of them from time to time. Testator knew of his property and talked to her about his farm. In response to a question if the testator ever mentioned what he wanted to do with his estate, the witness answered:

“Before he sold his land, he told us Mrs. Williams was very kind to him. She came out to the farm and did things for him and would bring him into her home and that if he did have anything he would like for Mrs. Williams to have what he had left.”

Again, the witness testified, in response to the question as to whether he ever mentioned the disposition of his estate after he sold the farm, she answered:

“A. Yes. One time he was in the store, he was in there many times, but this particular time he asked us to go out and see his new car. And we did. And he said, I want to enjoy my money, but, you know, I want to let Ethel and her family the money because they were very kind to me and I love them.
“Q. These times he would come to the store he was by himself?
“A. Yes, sir.”

Witness Fossati testified that the testator patronized his place of business and he had known the testator for a long time. He stated that the testator knew his brothers and sisters and members of his family and spoke of them; that the testator not only spoke English, but also spoke the Spanish language well; that he knew the testator in September and October of 1960 and that he patronized his place of business then and was a normal customer like anyone else. He testified that the testator was a person who could make up his own mind and that his memory was very good.

Mr. G. H. Schroeder, officer of the First Victoria National Bank, testified that the testator had purchased a perpetual care certificate through him from the Evergreen Endowment Association for the Oliver family; that he had appeared all right in his presence and that he knew what he was doing and appeared to be normal when he paid for the certificate.

A Mr. Bronson Maulch testified that the testator had purchased a new car from him in 1960; that he did the usual hasseling and horse trading, and drove a pretty hard bargain when he purchased the car; that he picked out the car he wanted and the color; that this sale was the same month that the testator executed his Will; that he signed his name to the application for certificate of title; that based on witness’s experiences of previous car sales and other car deals, he knew that the testator knew what he was doing when he signed the application for title; that the testator came back to his place of business on two occasions subsequently for servicing of the car.

Witness Zatopec had known the testator approximately four years prior to his death. He testified that he saw the testator occasionally in church and that, although the testator had been trading at another store, he was able to strike up an acquaintance and by the exercise of good service and salesmanship had been able to get the testator to start trading with him; that he was prompt in paying his bills and that whenever he had four or five tickets he would always come and pay them by check counter-signed by Mrs. Williams.

Mrs. Dorothy Bohn, a housewife and neighbor of Mrs. Williams, stated that she knew the testator because they visited back and forth and had coffee and occasionally had family barbecue together on Sunday. She testified that he was treated as a member of the family; that he could definitely tell his favorite television programs and when they were coming on; that they had little family jokes; that he was a happy person; that he drove his car by himself and came and went as he wished. She was then questioned:

“Q. Based on your experience around the home and hearing him talk and discuss the matters with the family, do you have an opinion as to whether he knew he had the mental capacity to transact business?
“A. I think he definitely did.
“Q. Based on your observations and discussions with him and visiting in there from time to time, do you have an opinion as whether or not he had a memory to remember transactions and matters that may have come on days ago, weeks ago or months ago ?
“A. Yes.
“Q. Do you have an opinion ?
“A. Yes.
“Q. Was that memory good or bad?
“A. I think he remembered about like all of us. Ball games and discussing it for one thing.”

In submitting the issue to the jury, the trial court gave the following instruction:

“By testamentary capacity is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which he is engaged, the effect of his act in making the will, and the general nature and extent of his property. He must also be able to know his next of kin and the natural objects of his bounty. He must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.”

The testimony in this case shows that the testator was uneducated and in declining years. He lived alone most of his life and was probably eccentric. He was not required to hold steady employment because of his worth and his station in life. As a bachelor he did not enjoy the companionship of a wife and children. But he was a happy man, not burdened with the worries of the world; mindful of the general nature and extent of his property and the natural objects of his bounty; and he was possessed with sufficient mental ability to understand the business in which he was engaged, though limited when compared with the complexity of this modern business world.

The test is not whether the person who has made testamentary disposition of his property possesses a high order of intelligence. Jowers v. Smith, 237 S.W.2d 805 (Tex.Civ.App.1950). The lack of education or proof of illiteracy has little, if any, bearing on the mental capacity to make a will. 94 C.J.S. Wills § 16, p. 706. Here we are concerned with the sufficiency of the evidence concerning the testamentary capacity of the testator as the able trial judge has defined it. Such definition is correct. Welch v. Shoubrouek, 260 S.W.2d 84 (Tex.Civ.App.1953); Morris v. Morris, 279 S.W. 806 (Tex.Com.App., opinion adopted by Sup.Ct.1926).

We have read the entire statement of facts in this case and we are satisfied that the evidence is sufficient to support the jury’s findings of testamentary capacity. Jowers v. Smith, supra. In re Finkelstein’s Estate, 61 S.W.2d 590 (Tex.Civ.App.1933, Writ. Dism.); Barton v. Bailey, 202 S.W.2d 277 (Tex.Civ.App.1947, Wr.Ref.). Appellants’ points 1 through 4 are overruled.

Appellants’ fifth and sixth points of error complain of the trial court’s ruling in admitting certain testimony of witnesses Fossati and Maulch as to their opinions or conclusions and the trial court’s ruling on some non-responsive answers. The witnesses were non-expert witnesses who had demonstrated that they knew the testator and, through their acquaintance, they had a reasonable opportunity to observe his acts, his conduct, and his characteristics sufficiently to support an opinion or conclusion about the matter. As such, these opinions and conclusions expressed, constituted competent evidence. See In re: Hardwick’s Estate, 278 S.W.2d 258 (Tex.Civ.App.1954, Wr.Ref. n. r. e.) and the many cases cited therein. Even a ten minute acquaintance with a testator was sufficient for a witness to express an opinion as to his sanity. Mueller v. Banks, 273 S.W.2d 88 (Tex.Civ.App.1954, Wr.Ref. n. r. e.); Ross v. State, 153 Tex.Cr. 312, 220 S.W.2d 137 (1948). The weight to be given such evidence was of course a matter for jury determination. However, some inadmissible testimony was also received, but nothing has been pointed out which demonstrates that the receipt of such evidence probably caused the entry of an improper judgment in this case. Rule 503, Texas Rules of Civil Procedure; Hernandez v. Heldenfels, 374 S.W.2d 196 (Sup.Ct.1963).

The mere fact that the answer is not responsive is not of itself ground for a reversal or, for that matter, for its exclusion. Is it not true that many contested trials with numerous witnesses elicit occasionally, non-responsive answers? Here the answers complained of did not contain facts that were not clearly inadmissible for other reasons. Therefore, if there was error, it was harmless. See McCormick & Ray, Vol. I, § 582, p. 400.

Appellants’ seventh and eighth points complain of sidebar remarks by counsel for appellees and that the attorney constantly asked improper questions in an attempt to prejudice the jury and influence their minds against the appellants. We overrule these points.

Such testimony, to quote it all, would extend this opinion too long. It is sufficient to say that this was a hotly contested case, tried by able counsel for both the contestants and proponents. We have carefully examined the record as a whole and, after doing so, are unable to say that such alleged errors were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment by influencing the jury to return a verdict that they probably would otherwise have not returned. Rule. 434, T.R.C.P.; Lehmann v. Krahl, 155 Tex. 270, 285 S.W.2d 179, and the cases cited therein.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    TEXAS SANITATION CO., Inc., Appellant, v. F. J. MAREK, Appellee.
    No. 22.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 20, 1964.
    Rehearing Denied Sept. 10, 1964.

      Pat Kelly and Richard Cullen, Hunt, Cullen, Mallette, Maddin & Edwards, Victoria, for appellant.
    Larkin T. Thedford, Edna, for appellee.
   NYE, Justice.

This is a damage suit based on a breach of contract. The suit was brought by F. J. Marek, hereinafter called appellee, against the Texas Sanitation Co., Inc., hereinafter referred to as appellant. Appellee owned a wood frame stucco type home in Edna, Texas. On March 5, 1959, he entered into a contract with the appellant who agreed to exterminate and control subterranean termites in the appellee’s home and to make semi-annual inspection of the premises in order to control these termites. Appellee paid the appellant $155.00 for the first extermination and inspection and agreed to pay, and did pay, the sum of $15.00 annually thereafter for the inspection and control of such termites. The appellant, in turn, guaranteed that the property would be free from damage caused by subterranean termites during the period of the contract.

On September 15,1961, while the contract was in force, the appellee’s home sustained slight damage to the roof as a result of a hurricane. During the examination and inspection of this damage, the appellee discovered that his home had apparently been infested with termites.

The case was tried before a jury on special issues. The jury found that the ap-pellee’s residence had been damaged by termites during the period covered by the contract. The other issue submitted to the jury was on the question of damages. This ■ issue was as follows:

“Special Issue No. 2. What sum of money, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff for the damage done to his residence, if any, by termites after March 5, 1959, and prior to March 5, 1962?
“Answer by stating in dollars, or nothing, as you may find.
“We, the jury, answer $2,000.00.’'

The trial judge instructed the jury to take into consideration and consider only the difference in the reasonable market value of the residence in the vicinity immediately prior to the damage done by the termites during the period covered by the contract, and the reasonable market value of said residence immediately after March 4, 1962. The court further instructed the jury as to “market value”, and not to consider or allow any recovery for damages, if any, to the improvements of the property existing prior to March 5, 1959, or to any damages occurring after March 4, 1962. Based on the answers of the jury, judgment was entered in favor of Marek, the appellee, for the sum of $2,000.00. Appellant perfects its appeal to this court.

The appellant’s first point on appeal complains of the trial court in overruling appellant’s exceptions to the appellee’s amended petition, thereby allowing appellee to proceed to trial without stating the nature of the cause of action he was proceeding under. Appellant contends that appellee’s allegations in his petition as to negligence and damages were not sufficient to give fair notice to the appellant, and that the court should have sustained his special exceptions thereto. Rule 45(b), Texas Rules of Civil Procedure, states: “[p]leadings * * * shall * * * (b) Consist of a statement in plain and concise language of the plaintiff’s cause of action * * and again in Rule 47(a), T.R.C.P.: “A pleading which sets forth a claim for relief * * * shall contain (a) a short statement of the cause of action sufficient to give fair notice of the claim involved * *

The appellee filed an original and amended petition, setting forth in detail (four and one half pages) the nature of his cause of action. In addition, he adopted by reference a copy of the bond or service contract which was attached to his original petition and made a part of the amended petition. It would serve no useful purpose to recite the entire petition of the appellee, it being sufficient to state that the petition set forth the following: the contract and consideration paid; the date upon which it was entered into; that the appellee had fulfilled all of the terms of the contract; that appellant was liable to appellee on the contract; that his home, which was covered by the contract, had been infested by termites while the contract was in force; that the home had been damaged in certain particulars (describing such damage); that he had suffered damages, setting forth the before and after value of the property; and that, in the alternative, the cost of reasonable repairs to restore his home would be in the sum of $15,000.00. The appellee has alleged a cause of action sufficient upon its face to result in a judgment favorable to him. If there was any error, the overruling of the special exceptions by the trial court is harmless, unless it appears that the error probably caused the rendition of an improper judgment. Panola Motor Co. v. Corbin, 253 S.W.2d 688 (Tex.Civ.App.1952, Wr.Ref.) In this connection, the record does not reflect that the appellant was in any wise surprised by the evidence offered under the pleading or justifiably unprepared to defend against it. See Appellate Procedure in Texas, 17-10(1), and the cases cited therein. We hold that the allegations contained in appellee’s petition are sufficient to state the nature of the cause of action that he was proceeding under. Appellant’s first point is overruled.

Appellant’s second point is multifarious and general. It alleges that:

“The Court erred in allowing the witnesses, Muschalek, Tlucek, Cervenka, and Holloway, to testify as to the reasonable cost of repairs to the house in question over Appellant’s timely objection, and in failing to sustain Appellant’s timely motion to strike from the record the testimony of Muschalek and Tlucek, it having been shown that they had no reasonable way of knowing the cost of repair to the premises in question, (Germane to Paragraphs 14, 15, 16, 19, 20, 21, 22, 23, 24 and 25 of Appellant’s First Amended Motion for New Trial. Tr. 45-48), further, if the case were not to be submitted on cost of repair as measure of damages, the testimony was inadmissable as being immaterial.”

The appellant, in Point Two (2), complains of multiple rulings by the trial court; the admission of the testimony of four witnesses ; the failure of the trial court to strike the testimony of two witnesses; and an allegation that the testimony (without describing such testimony) was inadmissible as being immaterial. The appellant does not set out the testimony complained of, nor does it specify with reference to the pages of the record where the same may be found. There are two volumes contained in the Statement of Facts. A substantial portion of the Statement of Facts' is committed to the testimony of these four witnesses. We are left with the task of searching for the testimony complained of, the objections and reasons given, and the alleged objectionable rulings by the trial court. The appellant does not make any attempt to separate the multiple points in his statement or argument section of his brief. Such point does not comply with Rule 418, T.R.C.P. Alpine Telephone Corporation v. McCall, 195 S.W.2d 585 (Tex.Civ.App., Wr.Ref. n. r. e.); Commercial Travelers Casualty Co. v. Perry, 281 S.W.2d 130 (Tex.Civ.App.1955); State v. Hays, 361 S.W.2d 401 (Tex.Civ.App.1962, Wr.Ref. n. r. e.) ; J. Weingarten, Inc. v. Benavides, 323 S.W.2d 166 (Tex.Civ.App.1959); see Rule 418, T.R.C.P., and the cases cited thereunder.

We recognize that the reviewing courts should be liberal in the construction of briefing rules and where an appellant shows that error was committed, especially fundamental error, we should and will consider it. But where the appellant does not, either in his point or in the discussion or argument thereunder, show us where any one of the multiple errors occurred, (especially when other evidence of the same character was admitted without objection) we feel no compulsion to consider appellant’s many sided point, germane to ten assignments of error. The rules of technicality are designed to see that justice is done. We feel, however, compelled to discuss such testimony and the applicable law that would sustain the lower court’s judgment. Appellee, in his brief, sheds some light upon the points in appellant’s brief. The complaint, as we see it, is made concerning the testimony of' certain witnesses as to the damages to appellee’s home.

The first witness is Victor H. Tlucck who testified on behalf of appellee. He was examined extensively on his qualifications. He stated that he had been in the lumber business about twenty-nine years and that he did construction work on both residential and commercial property, including remodeling work. He testified that he knew the Frank Marek home and residence; that he had been there and examined it recently; that it had extensive termite damage from the flooring through the walls and up to the roof. The witness testified that he would have to rework all the damaged sills; that he would have to go into the inner walls; that in the living room he would have to go all the way down to the top plate, then to the decking, tearing it out and replacing it with new material; that such repairs would cost in the neighborhood of Twelve to Thirteen Thousand Dollars; that it would cost this much because there is more labor involved in tearing out and building back than in just building a house; that that is what the cost would be if it was done right. On cross examination, he testified extensively as to the cost of different types of boards, studding, flooring and stucco. He testified as to the number of square feet involved in the house; that his estimate of the cost of repairs was made in the last few days but would have been the same in September of 1961 because the cost of material and labor had not changed materially since that time. Tlucek further testified as to the termite damage in specific portions of the house, behind the walls, in the ceilings, the rafters and flooring; however, he admitted that “you just don’t know how much actual damage because it is all covered with walls.” Appellant would strike all of the witness’s testimony because appellant says that: “The opinion is sheer speculation with no reasonable foundation whatsoever.” We do. not agree.

Complaint is made of witness Cervenka because his testimony of the before and after value of the house was based partially on the cost of repairs in arriving at his opinion of the value of the house after the damage had occurred.

Mr. W. J. Cervenka was a real estate and insurance agent holding a Texas Real Estate broker’s license. He was primarily engaged in the real estate business selling residential, farm and ranch property. He was acquainted with real estate values in Edna, Jackson County, Texas. He testified he was well acquainted with the residence of Mr. Frank Marek (appellee) at 701 South-well Street, Edna, Texas; that he had examined the house within the last six months and that the last time he had examined the property was about six or seven weeks before the trial. He testified in detail as to-the description of the house, stating the number of rooms, where they were located, the type of construction and the number of square feet contained in the house. The-witness further testified that this was not the first time he had seen the property, as he had been there three or four years prior to this time because these people (the Mar-eks) were tentatively trying to work out a trade on this property. He then testified that based on his qualifications as a real estate man and his familiarity with the market value of houses in this vicinity that he could state an opinion as to reasonable market value of this particular real estate as of approximately two months ago when he examined it, and that in his opinion the property had a reasonable market value of $20,-956.00, without damage. He was asked then if he could state whether he had an opinion as to the fair market value of the property two years ago and he stated that the value would be the same; that “there would be very little difference.” Witness Cervenka then testified as to the damages that he saw in the house caused by termites. He was then asked the question: “Presuming and suppose that in this house there was termite damages * * * (then a detailed description of such damage, its extent and location) * * * and there was testimony to the fact that the reasonable cost of repairing this would run between ten thousand to $13,000.00, do you have an opinion as to what the reasonable market value of that house would be based on these additional facts that I have given you?” The witness answered $11,316.00.

Appellant’s complaint is that the evidence on damages is “ * * * based merely on surmise or speculation and as such inadmis-sable.” Appellant specifically complains: “ * * * that Cervenka had no knowledge of the reasonable cost of repairs.” Appellant then refers us to page 181 of the Statement of Facts. This reference does not substantiate appellant’s version of the testimony complained of on page referred to. It reads as follows: (Cross examination by appellant’s attorney).

“Q Actually, Mr. Cervenka, if you did not have a definite figure as to what it would cost to replace or correct the damaged area, then, you would have no way of knowing of your own knowledge the reduction in market value of the premises; is that correct?
“A No, it isn’t. We do have working knowledge of what it would would be, because in dealing with the prospective buyers, we soon find out what they would be willing to pay under certain conditions. When we run into this condition here, we know that they are not going to pay the same as they would for a house with no termite damage.
“Q Assuming that it was repaired— Let’s not assume that it was repaired, but you do not know the depreciation in value unless you know how much it would cost to repair it?
“A Well, you have to assume the difference the buyer would be willing to pay.
“Q Once it was repaired, of course, the buyer would have no way of knowing, no reason why he should, if it has all been repaired, would be repaired with new materials, would it not?
“A Well, I — I am speaking of my appraisal there as the house is today. Now, if you will repair it, I will be glad to come back and reappraise it. Then, —
“Q Probably be the best way to go about it, Mr. Cervenka, but unfortunately that wasn’t done.
“A When the repairing was done, then I will appraise that. Would be foolish for me to appraise something without the work being completed.”

The rule as to the recovery of uncertain damages generally has been directed against uncertainty as to cause rather than uncertainty as to the measure or extent of the damages. In the Supreme Court case of Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938), we quote:

“The courts draw a distinction between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. Cases may be cited which hold that uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery.”

See also Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (Sup.Ct.1955); Adams v. Hood County Sand & Gravel Co., Inc., 354 S.W.2d 593 (Tex.Civ.App.1962); 25 C.J.S. Damages § 28, p. 493.

There is no question raised by the appellant that the appellee’s house had been damaged by termites. In fact, appellee’s witnesses admit such damage. This infestation was extensive (from floor to attic) but several witnesses testified that it was difficult to determine the exact amount that was damaged until the damaged portions were opened and actually repaired. There is no question, nor has any been raised on this appeal, as to the appellant’s liability under its contract with appellee. Quoting from 17 Tex.Jur. § 14, pp. 92-95:

“One who is damaged must not be deprived of a remedy merely because of the difficulties lying in the way of proving his damages and the courts will not permit a guilty party to reap an advantage from his wrong by insisting on a degree of proof which, by reason of his wrongful act, is unobtainable * *. In cases in which damages should be awarded but there is difficulty in determining the sum that would constitute a fair and adequate compensation, determination of the amount will be left to the sound judgment and wisdom of the trier of facts.”

Apparently, the appellant is complaining of the “opinion” of these witnesses as to the extent of the damage. In many cases opinion evidence is the only available evidence as to value and damage. In this case it would be most difficult to see how the damages could be proved otherwise without the opinions of the witnesses offered. It has been said that anyone familiar with values may testify, leaving the sufficiency of the knowledge to the d’iscrdtion of the trial judge. See McCormick & Ray, Vol. 2, § 1422, p. 256.

In many cases, although substantial damages are established, their amount is, insofar as susceptible of pecuniary measurement, either entirely uncertain or extremely difficult of ascertainment. In such cases, plaintiff is not denied all right of recovery. The amount of damages is fixed by the court or by the jury in the exercise of sound discretion under proper instructions from the court. In the case of contracts a party who has broken his contract will not ordinarily be permitted to escape liability because of the uncertainty in the amount of damage resulting. 25 C.J.S. Damages § 28, p. 495.

In the case of Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881 (Tex.Civ.App.1940):

“The rule forbidding the recovery of damages which are uncertain or contingent does not apply where the amount, measure or extent of loss or injury is uncertain; it ‘only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount’.” At page 888: “Nor, in a case where the damages are incapable of exact ascertainment, is it necessary to place a money estimate on the amount of loss or injury; the jury are allowed to use their own judgment and discretion. Consequently, where it is shown that the defendant’s act has occasioned damage to the plaintiff, and the only uncertainty is as to the amount, there can rarely be good reason for refusing, on account of uncertainty, any recovery whatever for the breach.”

Adams v. Hood County Sand & Gravel Company, supra; O’Donell v. Preston, 301 S.W.2d 288 (Tex.Civ.App.1957, Wr.Ref. n.r.e.).

The trial court correctly permitted the witnesses to testify after a showing of their qualifications. The appellate court should not disturb the action of the trial court in admitting such testimony in absence of a clear abuse of discretion. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944); Breithaupt v. State, 321 S.W.2d 361 (Tex.Civ.App.1959). The witness, having been qualified, was properly permitted to testify as to market value. The alleged weakness of the supporting facts or reasons given as the basis for his answer to the market value after the property had been damaged, goes to the weight of the witness’s testimony, not to its admissibility. The court did not abuse its discretion in admitting the challenged testimony. State v. Sides, 348 S.W.2d 446 (Tex.Civ.App.1961).

In the case of State v. Willey, 351 S.W.2d 907 (Tex.Civ.App.1961), the witness testified as to the wrong definition of market value and the plaintiff moved to strike the witness’s testimony because it was predicated upon an erroneous definition of market value. The trial court overruled the motion.- The Court of Civil Appeals stated:

“We perceive no error. The witness was qualified beyond any doubt to testify as to values. The objection made goes to the weight rather than to the admissibility of (the witness’s) testimony. City of Teague v. Stiles, Tex.Civ.App. (n.r.e.) 263 S.W.2d 623. Moreover, it is largely discretionary with the trial judge as to what witness is qualified to testify as to market value, and that discretion will not be disturbed, absent a clear abuse thereof. State v. Evans, Tex.Civ.App. (n.r.e.) 340 S.W.2d 99.”

We are unable to agree that the trial court erred by permitting .the witness to testify.

Appellant’s third point on appeal complains that the trial court erred:

“ * * * in overruling Appellant’s Motion for Instructed Verdict in its submission of Special Issue No. Two, over Appellant’s timely objection, and in sustaining the verdict of the jury to Special Issue No. Two because there was no evidence to support such submission and the evidence does not support the finding of the jury in their verdict. (Germane to Paragraphs No. 5, 6, 8, 9, 10, 11, 17 and 18 of Appellant’s First Amended Motion for New Trial. Tr. 42-44, 46).”

The first part of appellant’s third point complains of no evidence to support the submission of the special issue.

All issues on controverted facts raised by the pleadings, which are material elements in the grounds of recovery, must be submitted to the jury for determination, if there is some evidence raising them. Rule 272, T.R.C.P. In the last part of this point the appellant contends that there was “no evidence” to sustain the finding of the jury in reference to the amount of damages (Special Issue No. 2). The question as to “no evidence” is a question of law and is to be tested by considering only that evidence most favorable to the verdict and by disregarding that which is opposed to it or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951); Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App.1962, Wr.Ref. n. r. e.)

It was virtually undisputed and admitted by appellant that damages were incurred, although the extent and the amount of damages were in issue. We have set forth in this opinion sufficient facts to support the verdict of the jury on the issue of damages. It would only lengthen this opinion by recitation of other evidence of the damages sustained by the appellee.

After a careful consideration of the record, we have concluded that the finding of the jury in answer to the damage issue was supported by the evidence and the trial court properly submitted the issue on damages. Appellant’s third point is overruled.

Finding no reversible error, the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    ASSOCIATES INVESTMENT COMPANY, Appellant, v. FIRST NATIONAL BANK IN CONROE, Texas, Appellee.
    No. 7590.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 4, 1964.
    Rehearing Denied Aug. 25, 1964.
    Patterson, McDaniel, Moore & Browder, Houston, for appellant
    Lynn Coker, McClain & Harrell, Conroe, for appellee.
   FANNING, Justice.

A venue case. Appellee bank, as plaintiff, in the District Court of Montgomery County, Texas, sued Carl Walker, d/b/a Walker Motor Company, a resident of Montgomery County, Texas, Associates Investment Company, a corporation, a resident of Harris County, Texas, and also sued two other corporate defendants, residents of Harris County, Texas.

Defendant-appellant Associates Investment Company filed a plea of privilege to be sued in Harris County, Texas, the county of its residence. Appellant was the only party who filed a plea of privilege. Appellee bank duly controverted the plea. The trial court, after hearing the evidence adduced, overruled Associates’ plea of privilege and it has appealed.

Appellee seeks to maintain venue in Montgomery County, Texas, under Subd. 4 of Art. 1995, Vernon’s Ann.Tex.Civ.St.

Plaintiff-appellee’s petition alleges to the effect that it was requested by the resident defendant Walker to pay three drafts he had drawn or was to draw, against defendant-appellant Associates Investment Company, in the total sum of $7,410.43; that the said resident defendant on said occasion exhibited to appellee three manufacturer’s certificates of motor vehicles, two of said certificates having been assigned from defendant, Rosenstock Motors, Inc., and the third having been assigned from defendant, Art Grindle OST Chrysler-Plymouth, Inc., to resident defendant Walker; that on said occasion Walker represented to appellee bank that he owned said above referred to motor vehicles, and it was further represented by Walker to appellee that he, Walker, had worked out a floor plan arrangement with defendant Associates Investment Company, by the terms of which Associates was to finance the floor plan transaction of each motor vehicle, and that it was Walker’s desire to draw drafts on Associates for the prices of such motor vehicles, stating that Associates would accept such drafts. Plaintiff-appellee’s petition further alleges that during the course of a telephone conversation between representatives of appellee and appellant that appellant Associates verified the representations made by Walker to ap-pellee regarding the floor plan arrangement, with appellant further stating to appellee that the drafts made the basis of appellee’s suit, if paid by appellee, would be honored by appellant, and that pursuant to said understanding appellee paid to Walker the total amount of the three drafts, the payment of which was later refused by appellant. Plaintiff-appellee further alleged that the drafts were again sent through and dishonored again, and that it has been unable to recover the money paid on the drafts, and that demands had been made for payment by appellee and that appellee had not been paid by anyone, hence the filing of the suit.

We quote in part from plaintiff-appellee’s petition as follows:

“Plaintiff then stated to Associates Investment Company that the said Carl Walker was then requesting that the three drafts as above referred to and hereinafter specifically described, be paid by said Bank and made inquiry of Associates Investment Company if Plaintiff should pay said drafts if Associates Investment Company would accept same, to which inquiry Defendant, Associates Investment Company, stated that it would, and instructed said Bank to send the drafts through to the Texas National Bank, 345, Houston, Texas.
* * *
“Plaintiff further represents that the acts, conduct and representation upon the part of the defendant, Associates Investment Company, constitutes a promise upon the part of the Defendant, Associates Investment Company, to honor and pay said drafts so drawn by said Carl Walker and cashed by Plaintiff, as directed by Defendant, Associates Investment Company.”

On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959).

In James v. Drye, supra, it was also stated in part as follows:

“In Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302, this Court, in answer to certified questions inquiring as to the allegations and proof necessary to sustain venue under Sec. 4, Art. 1995, said:
“’The first of these two venue facts, that one of the defendants resides in the county where the suit is pending, must be proven by affirmative evidence upon the hearing. Proof of it is not made by, or by the introduction of the allegations of the petition or of the controverting affidavit. The other of the two venue facts named by the terms of exception 4, that is, that the suit is brought against two or more defendants, pertains to the nature of the suit. The reasonable inference is that a proper suit against two or more defendants is meant, that is, a suit in which the defendants are properly joined. It is essential that a plaintiff seeking to obtain the benefit ■of exception 4 allege in his petition a joint cause of action against the resident and non-resident defendants, or ■a cause of action against the resident defendant so intimately connected with the cause of action alleged ■against the nonresident defendant that the two may he joined under ihe rules intended to avoid a multiplicity of suits. * * * ’ (Emphasis added).
“In the case at bar it is alleged and was proved that the defendants Eagle Rock Corporation and Eagle Rock Ranch, Inc. were each corporations whose principal place of business was in Hays County, Texas. The allegations and proof were sufficient to allege and establish a cause of action on behalf of plaintiffs against Eagle Rock Ranch, Inc. and also Eagle Rock Corporation and the other James-defendants for an accounting and also for damag- • es. The petition alleged a cause of .action against resident defendants so intimately connected with the cause of .action alleged against the nonresident • defendants that it requires the two to 'be tried at one and the same trial in • order to avoid a multiplicity of suits. .McDonald, Texas Civil Practice, Vol. I, Sec. 4.10, pp. 339-341.
“What has been said above has been in discussion of the hearing on the plea of privilege, and, of course, is no decision of any issues which may arise on the trial on the merits.
“Judgment of the Court of Civil Appeals is affirmed.”

In Pams Advertising Agency v. Hartley, Tex.Civ.App., 357 S.W.2d 764, no writ (1962), plaintiff sued United and Ajax, resident defendants and three non-resident defendants. The proof showed that the plaintiff furnished advertising to the resident defendants, and that they became delinquent in their accounts. The three non-resident defendants orally promised to pay the delinquent accounts if the plaintiff would continue to handle advertising for the resident defendants, and they became delinquent in their accounts. The trial court sustained the non-resident defendants’ pleas of privilege. The Court of Civil Appeals in said case in reversing the judgment of the trial court stated in part as follows:

“The trial court took the view that no cause of action was made in the pleadings against Hartley, Bearfield and International because they were guarantors and their promises would have to be in writing to be enforceable under Section 2, Art 3995, Vernon’s Ann.Civ.St
“Subdivision 4, Art. 1995, Vernon’s Ann.Civ.St., provides: ‘Defendants in different counties. — If 2 or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * »
“Our Supreme Court construing such subdivision, held in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 that the venue requirements in such situations are: 1) To plead a cause of action against both the resident and non-resident defendants. 2) To prove a cause of action against the resident defendants. (Such case affirmatively holds that there is no requirement that the plaintiff, to maintain venue under exception 4, prove a cause of action against the non-resident defendant). See also: Atlas Roofing Co. v. Hall, Sup.Ct., 150 Tex. 611, 245 S.W.2d 477.
“We think that plaintiff’s pleading that the 5 defendants ‘expressly promised and agreed to pay to plaintiff for the services performed, furnished, or caused to be furnished by plaintiff’; and had not paid for some $7500. balance due for same, is sufficient to plead a cause of action against all 5 defendants.
“As noted, the plaintiff proved a cause of action against United and Ajax. The fact that defendants Hart-ley, Bearfield and International were oral guarantors, and had a defense available to them under Sec. 2, Art. 3995, Vernon’s Ann.Civ.St., relates to the proof and cannot negate the fact that plaintiffs did in fact ‘plead’ a cause of action. The Statute of Frauds (Sec. 2, Art. 3995, Vernon’s Ann.Civ.St.) is a defense which must affirmatively be set forth. Rule 94, Texas Rples of Civil Procedure. Such does not have to he affirmatively negated by plaintiff. The failure to raise such defense results in a waiver of such defense. 26 T.J. Sec. 135, p. 305; Sec. 136, p. 307.
“It follows that we think plaintiffs ‘plead’ a cause of action against all 5 defendants, and proved a cause of action against United and Ajax, the resident defendants. Under the authorities, venue,, of the cause of action against all 5 defendants, lies in Dallas County.
“The judgment of the trial court is reversed and judgment rendered in plaintiff’s -favor overruling such pleas of privilege.”

In the case at bar there is no contention made by appellant that no cause of action was proven against the resident defendant Walker. There is ample evidence of probative force in the record to show that ap-pellee proved a cause of action as alleged against the resident defendant Walker and ample proof was made that defendant Walker was a resident of Montgomery County, Texas.

We further hold that plaintiff-appellee’s petition alleged a cause of action againsj the resident defendant Walker so intimately connected with the cause of action alleged against the non-resident defendant-appellant that it requires such causes of actions to be tried at one and the same trial in order to avoid a multiplicity of suits. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Atlas Roofing Company v. Hall, 150 Tex. 611, 245 S.W.2d 477 (1952); McDonald, Texas Civil Practice, Vol. 1, Sec. 4.10, pp. 339-341.

As stated in James v. Drye, supra, what has been said above has been in discussion of the hearing on the plea of privilege, and of course, is no decision of any issues which may arise upon the trial on the merits.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    R. J. DARRETT, Appellant, v. CHURCH OF GOD IN CHRIST NO. 1, OF SILSBEE, Texas, S. E., Appellee.
    No. 7588.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 18, 1964.
    Rehearing Denied Sept. 8, 1964.

      R. O. Wyatt, J. Leonard Gotsdiner, Houston, for appellant.
    H. A. Coe, Jr., Kountze, for appellee.
   CHADICK, Chief Justice.

This is a permanent injunction suit. The judgment of the trial court granting injunc-tive relief is affirmed.

At the center of the disagreement spawning this litigation is the pastoral office of the Church of God in Christ No. 1 of Silsbee, Texas, and the rights, privileges and emoluments appertaining thereto. At all times pertinent to this litigation it is alleged in the plaintiff’s original petition the plaintiff church was an unincorporated religious association “affiliated with, belonged to, and operated under, a National Organization known as the ‘Church of God in Christ’, which National Organization is composed of numerous Churches over the United States of America, and is controlled or supervised by National Officers, and is divided into districts, such as the ‘Southeast District of Texas’, of which Plaintiff is a member, which District has a District Superintendent, who is S. J. Singleton of Beaumont, Texas, and with a Bishop, who is Rt. Rev. R. E. Ranger of Fort Worth, Texas.” Allegation is also made with the import that defendant Darrett, as an individual without right to the pastorship of the church, has held and threatens to continue holding religious services as pastor of the church and in such capacity collected and threatens to continue collecting tithes and offerings and otherwise has interfered with and threatens to continue to interfere with the duly constituted pastor in the administration of the church’s affairs, to the church’s irreparable injury, etc. Evidence was offered tending to sustain the allegations made.

The nature of appellant Darrctt’s points of error 29 and 30 suggest their disposition preliminary to discussion of other points.

‘‘29. The court erred in hearing the matter in suit as Appellee is an unincorporated entity and therefore, according to law, it would have no right "to sue or be sued in its own name and no relief can be granted a non-entity.
“30. The Court erred in permitting the matter to go to trial where the suit was filed by a purported deacon of the church, and no evidence is presented that authority was delegated to him by the governing authorities of the church to bring such action.”

The language of Rule 28 Vernon’s Ann.Texas Rules appears broad enough to clothe an unincorporated religious association, as well as partnerships, individuals doing business under an assumed name and other unincorporated associations, with a procedural right to bring an action in its common name to enforce a substantive right. Mims Bros. v. N. A. James, Inc., Tex.Civ.App., 174 S.W.2d 276, writ of error action reported 141 Tex. 554, 175 S.W.2d 74; Dillard v. Smith, 146 Tex. 227, 205 S.W.2d 366; 44 Tex.Jur.2d Sec. 4, p. 142; Associations and Clubs 6 Tex.Jur.2d Sec. 32 p. 542; and 26 Tex.Law Rev. 812. The plaintiff church, in this instance, alleges an action to protect its tithes and offerings from the hands of a stranger, one of several substantive rights it sues to enforce.

A thematic undertone of protestation pervades the argument under these points, and several others, that the civil courts have neither competency nor jurisdiction to decide the true issue between the parties, because the real issue is ecclesiastical in nature. In a somewhat similar case, where this same religious organization was involved, Jones v. Johnson, Ct.Civ.App.1962, 353 S.W.2d 82, ref. n. r. e., this argument was answered adversely to the appellant, to wit:

“Where rules and regulations are made by the church functionaries or by long and established custom and usage, they will be enforced by civil courts if not in conflict with some civil law bearing upon the subject of such rules and regulations. Schumann v. Dally, Tex.Civ.App., 29 S.W.2d 422; Alexander v. Bowers, Tex.Civ.App., 79 S.W. 342.”

Appellant argues under point number 3 that the trial judge’s failure to sustain his motion in limine prohibiting plaintiff’s counsel from reading to the jury a temporary restraining order dated January 18, 1963, was so prejudicially erroneous as to require a reversal of the judgment herein. The transcript contains the motion. The motion refers to and requests the trial judge to prohibit the reading of an order dated January 18, 1963. The trial judge’s notation on the motion shows it to have been granted in part and refused in part, though the part granted or refused is not specified. The record does not show by bill of exception, or otherwise, that the order was in fact read to the jury. Counsel for the appellee denies that it was, at the same time saying that an order dated September 11, 1962 was read. The September order was not mentioned or dealt with by the motion in limine. Under the circumstances, the record not showing that the order referred to in the motion was actually read to the jury, there is no basis for this court to conclude that harm was done to the appellant’s case in the trial court even though it be assumed that the judge erred in not sustaining the motion as made. Rule 434.

The appellant’s brief tenders 32 points of error, and each one has been given consideration. Many of the points are concerned with the admission of testimony, some with its sufficiency, while others relate to the charge. A prolongation of this opinion to discuss each point is not warranted. No error requiring reversal of the case is manifest. Accordingly the judgment of the trial court will be affirmed.


author: COLEMAN, Justice.

text:
    Betty NEDOW, Individually and as Independent Executrix of the Estate of Ben Nedow, Deceased, Appellant, v. C. E. NICHOLSON, Appellee.
    No. 14391.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Sept. 10, 1964.
    J. Edwin Smith, Houston, Smith & Leh-mann, Houston, of counsel, for appellant.
    Fred Much, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a summary judgment in favor of the payee of a promissory note. Appellant contends that part of the consideration for the note was illegal, rendering the entire note unenforceable.

Appellee filed an affidavit in support of his motion for summary judgment. Appellant filed no affidavits and relies, to support her plea of illegality, on appellee’s affidavit.

It is appellant’s contention that appellee’s affidavit establishes that part of the consideration for the note was an agreement not to bring to the attention of the Securities Exchange Commission or the State of Texas information concerning the financial instability of Nedow Oil Tool Company. She further reasons that, since the company had application for permission to market securities pending, such an agreement was contrary to public policy, and, the consideration for the note not being severable, the note was unenforceable.

As authority for her position, appellant quotes from 13 Tex.Jur.2d 376, § 177, as follows: “Contracts that are intended to deceive third persons or even the public itself, or contracts that have a tendency to perpetrate such fraud or deception, are against public policy and will not be enforced by the courts.”

Appellant also likens the agreement to one to suppress evidence and one interfering with public officials in the discharge of their official duties, and cites appropriate authority demonstrating that such agreements are invalid as being contrary to public policy.

We are unable to agree with appellant’s interpretation of appellee’s affidavit. While the affidavit recites that part of the consideration for the note was appellee’s agreement “to postpone any complaints to the Securities Exchange Commission or to the State of Texas about Nedow’s previous statements and representations concerning the securities and financial stability of Ne-dow Oil Tool Company,” there was nothing in the affidavit showing an agreement not to bring to the attention of public officials information showing that the firm was presently in financial straits. We might assume that the representation made to appel-lee by Ben Nedow concerning the value of the patent rights, assets and equipment of the company was in fact untrue, and that the representation that approval of the application for permission to sell securities would be received in a short time was optimistic. There is, however, nothing in this record showing that appellee had knowledge of any information which Nedow was required to furnish the governmental agencies, and which had not been made available to them. Nor does this record reflect that the financial condition of the company had been misrepresented to these agencies, or that any such information was withheld from them.

It is apparent that Ben Nedow had faith in the invention which the corporation apparently had been organized to promote, since he was willing to borrow money for the use of the corporation. It is also apparent that a law suit alleging misrepresentations concerning the value of the corporate stock and financial condition of the company, whether well founded or not, would be likely to affect adversely action on the application for permission to sell securities as well as the prospects for selling the securities. There seems to be no reason to deny one the right to purchase his peace under such conditions.

Appellant admits that there is no evidence in the record that the objectives, purposes and consideration for the note actually brought about harm or deception to the public, but contends that, under such decisions as Amarillo Oil Company v. Ranch Creek Oil & Gas Company, Tex.Civ.App., 271 S.W. 145, the test is not whether the unlawful agreement resulted in harm or injury, but whether it had the tendency to harm or injure the public. This case, and others cited, are inapplicable here because there is no evidence from which the conclusion that the public will probably be injured by the agreement can be drawn. The mere agreement not to bring to the attention of a governmental agency certain information cannot be found unlawful or injurious to the public in the absence of evidence that the information is true and material to some issue to be considered by the agency. In addition there must be a duty on the part of one of the parties to the agreement to disclose the information.

Ordinarily, before a contract is found to be illegal it must be established that it contravenes public policy in that it is contrary to statutory law or is immoral in itself, and the injury to the public must be clearly apparent. 13 Tex.Jur.2d, Contracts, § 171.

Where a party can present a complete cause of action without being obliged to prove his own illegal act, he can recover notwithstanding the fact that the illegal act may appear incidentally and may be important in explanation of other facts in the case. City of Galveston v. O’Mara (Heffernan), Tex.Civ.App., 146 S.W.2d 416, aff’d 138 Tex. 16, 155 S.W.2d 912; Smothers v. Gawlik, Tex.Civ.App., 214 S.W.2d 894, ref., n. r. e.; Carnes Corp. v. Thermal Supply, Inc., Tex.Civ.App., 359 S.W.2d 99; Norman v. B. V. Christie & Co., Tex.Civ.App., 363 S.W.2d 175, ref., n. r. e.

The judgment is affirmed.


author: WERLEIN, Justice.

text:
    Warren Leslie BRINKLEY, Appellant, v. Claudia Eulalia BRINKLEY, Appellee.
    Ne. 14389.
    Court of Civil Appeals of Texas. Houston
    June 25, 1964.
    Rehearing Denied Sept. 10, 1964.

      Ben G. Levy, Houston, for appellant.
    Petty & Lively, Victor M. Petty, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from a summary judgment. Warren Leslie Brinkley sued ap-pellee, his former wife, in trespass to try title to recover title to Lot 2 in Block S3 in Garden Oaks, Section 5, an addition to the City of Houston, in Harris County, Texas. Appellee alleged in her amended answer in substance that on March 25, 1963, in the Court of Domestic Relations No. 2 of Harris County, Texas, in Cause No. 598,839, styled Claudia Eulalia Brinkley v. Warren Leslie Brinkley, she recovered judgment against appellant for divorce, and that in such judgment the court awarded her said property as her sole and exclusive separate property, and awarded other property to appellant as shown by a copy of said decree attached to her answer and marked “Exhibit A.”

The copy of the divorce judgment, shown to be a nunc pro tunc judgment entered August 30, 1963, is duly certified by the District Clerk of Harris County, Texas, as a true and correct copy of the decree entered in said Cause No. 598,839. Said decree recites, among other things, that “It further appeared to the Court that the said Plaintiff and Defendant had accumulated some community property during their marriage and that justice and equity requires that the house and furniture located at 10060 Gardenia Drive, Houston, Texas, which property is owned by the Plaintiff and the Defendant; * * * be awarded to the Plaintiff as her separate property.” The judgment makes a division of the community property between appel-lee and appellant, who were respectively the plaintiff and defendant in said cause.

After filing her amended answer, appel-lee filed her sworn motion for summary judgment. In such motion she alleges, among other things, that:

“The pleadings on file herein show that on the 25th day of March, 1963, in the Court of Domestic Relations Number Two of Harris County, Texas, in a certain suit therein pending under Cause Number 598,839, wherein the said CLAUDIA EULALIA BRINK-. LEY was Plaintiff and the said WARREN LESLIE BRINKLEY was Defendant, a verdict was entered in favor of the said CLAUDIA EULALIA BRINKLEY as shown in Defendant’s pleading herein, which judgment still remains in full force and effect, has never been appealed from, reversed, satisfied or made void and the same is and stands as a bar by res judicata of the present suit.”

To such motion appellant pleaded that a summary judgment does not properly lie in this case, for the reason that under plaintiff’s petition, and under the attached affidavit, there is a fact question presented of a material nature. The attached affidavit states:

“I have held fee simple title to the homestead of my family, as described in my Original Petition, for over ten years, and under the three, the five, and the ten-year statutes of limitation. At all times relevant to this suit, I have resided in said homestead at 1006 Gardenia, and more particularly described as follows, to-wit:
“Lot 2, Block 53, in Garden Oaks, Section 5, an addition to the City of Houston, Harris County, Texas
and have always, since living there, regarded it as my domicile and have lived therein with such intention.”

After a hearing, the trial court rendered a summary judgment in favor of appellee, from which judgment appellant has perfected his appeal.

Appellant first asserts that since ap-pellee did not include a plea of “not guilty” in her answer to his trespass to try title action, appellee’s pleadings cannot support any judgment, and that the court erred in granting her motion for summary judgment.

Rule 788, Texas Rules of Civil Procedure, provides:

“The defendant in such action may file only the plea of ‘not guilty,’ which shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff against him, except that if he claims an allowance for improvements, he shall state the facts entitling him to the same.”

Rule 789, T.R.C.P., provides: “Under such plea of ‘not guilty’ the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.”

Rule 788 merely provides that the defendant may file a plea of not guilty. The rule operates in the interest of the defendant, since it relieves him from pleading specially his various defenses, and under such plea he is given the right to give in evidence any lawful defense except the defense of limitations which must be pled specially. Appellee in her answer to appellant’s suit pleaded only a general denial and specially pleaded the judgment in the divorce case as res judicata of appellant’s cause of action.

The law is well settled in Texas that a plea of general denial by a defendant in a trespass to try title suit puts the plaintiff upon proof of his right to recover the land in controversy. A defendant is not required to file a plea of not guilty. He may file a general denial and special pleas. In Butcher et ux v. Tinkle, Tex.Civ.App., 183 S.W.2d 227, writ ref., the court said:

“The plea of not guilty in a trespass to try title suit was first provided for by the Congress of the Republic of Texas in 1844. Gammel’s Laws of Texas, Vol. 2, pp. 69, 70. In the case of Harlan’s Heirs v. Haynie, 9 Tex. 459, nine years after the passage of such Act, the court held that under a general denial the defendant could attack the sufficiency of plaintiff’s title, saying:
“ ‘The general denial put the ap-pellee upon proof of his right to recover the land in controversy; and that proof must be sufficient for the purpose. The Supreme Court, in the case of Mason v. Russel’s [Heirs], 1 Tex. [721], 726, not only determined that such was the effect of the general denial, in actions of trespass, but that, under it, proof having relation to objections dehors the grant, was admissible.’
“In the case of Robb v. Robb, Tex.Civ.App., 41 S.W. 92, it was held that in an action to determine title to the land where the defendant pleads the general denial, a deed conveying the land to defendant is admissible and that the court could not properly reject such deed upon the ground that the pleadings of appellant did not authorize its admission. Under these authorities the deed from N. E. Tinkle to J. H. Tinkle, of date April 13, 1940, was admissible under a plea of general denial.”

In Edwards v. Edwards, 52 S.W.2d 657, writ ref., which was a suit in trespass to try title, the court said: “It was not necessary to plead a verbal partition, specifically. The general denial puts in issue any title appellees might show to defeat that asserted by appellant.” Appellee relies upon the case of Foust v. Jones, Tex.Civ.App., 90 S.W.2d 665, no writ hist., in which the court said: “In a trespass to try title suit in this state, the issues tendered by the plaintiff’s pleading are joined by a plea of not guilty. In the absence of such plea no proof is required on the part of plaintiff to establish the allegations of his petition.” In the Foust case the defendants that the court was speaking of had not appeared and answered but had wholly made default. The court evidently was not considering the question as to whether the defendants could have filed merely a general denial and special pleas instead of a plea of not guilty, because that question was not before the court. If, however, the court intended to rule that it was essential to file a plea of not guilty rather than a general denial in order to join issues tendered by the plaintiff, we would be compelled to disagree.

Appellant next complains that the court erred in overruling plaintiff’s motion for new trial because the judgment awarded her was not supported by her pleadings. We overrule this assignment. Appellee’s answer, motion for summary judgment, and the accompanying certified copy of the decree in the divorce case, in which the property in question was awarded to appellee as her separate property, constitute sufficient pleadings to support the summary judgment rendered by the court. In his pleading appellant refers to the old case of Tiemann v. Tiemann, 1871, 34 Tex. 522, in which the court held that the provision against divesting title to real estate applied to community land as well as separate land. For many years there was a substantial conflict in the cases. Some held that community realty could be awarded to one spouse if the other spouse was compensated for his or her interest with money or other assets; whereas other cases held, that such a decree divested title to land in violation of the statute, now Article 4638, Vernon’s Annotated Texas Statutes.. The conflict has now been finally settled, by the Supreme Court. In Hailey v. Hailey, 1960, 160 Tex. 372, 331 S.W.2d 299, the Court said: “That part of Art. 4638: contained in the last sentence, which prohibits the divestiture of title by cither party to real estate, has no application to the community real estate but applies only to the separate property of each party.” See also Adams v. Messer, Tex.Civ.App., 335 S.W.2d 676 dism.; Eagle Lumber Company v. Trainham, Tex.Civ.App., 365 S.W.2d. 702, ref., n. r. e.

The judgment of the court in said Cause No. 598,839 clearly shows that the property in question was the community property of appellant and appellee, who had been husband and wife for many years,, and that it was awarded to appellee as. her separate property. Such judgment is res judicata of appellant’s cause of action. Appellant does not assert that in such judgment the court did not make a just, fair and equitable division of the community property, nor does he attack such judgment in any way. His affidavit with respect to limitations and homestead is in the nature of a conclusion and is, in view of such judgment and the recitals therein, wholly without any merit or basis. He has not raised any fact issue with respect to appellee’s title to the property in question, nor has he denied any of the allegations in appellee’s motion for summary judgment.

Judgment affirmed.


author: MILLIKEN, Chief Justice.

text:
    M. V. BURKE, Administrator of Icy Mae Burke, Appellant, v. MINERS MEMORIAL HOSPITAL ASSOCIATION, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Rehearing Denied Oct. 2, 1964.
    C. W. Napier, Jr., Hazard, Robert .T. Winston, Jr., Norton, Va., for appellant.
    Grant F. Knuckles, Pineville, Emmett G. Fields, Whitesburg, for appellees.
   MILLIKEN, Chief Justice.

This is an appeal from a judgment entered upon a verdict directed for the defendants at the close of the plaintiff’s testimony in an action brought by M. V. Burke, appellant-administrator, against the Miners Memorial Hospital Association, Inc., and two physicians whose alleged negligence caused the death of his wife, Icy Mae Burke, a woman forty years of age.

About a year before her death Icy Mae Burke had been treated and hospitalized by Dr. E. E. Musgrave for pains in her arm, shoulder and chest and for shortness of breath, and told to lessen her physical activities. On June 14, 1960, she had a recurrence of her trouble and her husband, the appellant herein as administrator of her estate, took his ailing wife to see Dr. Mus-grave who happened to be away and as a result they consulted Dr. Loyd Pendergrass of Jenkins and sketched for him a history of her illness. Lacking technical equipment to examine her heart thoroughly, Dr. Pendergrass prescribed medicine and requested Mr. Burke to bring his wife back the next day at 11:00 a. m. Later in the day (June 14) Mrs. Burke’s symptoms became so severe that her daughter took her to Sharon Heights Hospital in, Jenkins where she was examined by Dr, Haynes who referred her to the Miners Memorial Hospital at Whitesburg where she.' was. seen later that day by defendant-appellee Dr. Harry Caldwell, who gave her an appointment card for July 29, some one and a half months later, so that she 'vyould not have to wait in line to be examined at. that time. There is no evidence whatsoever that Dr. Caldwell was given a history of- her condition or what he told her.

On the next day, June 15, her condition had not improved and her husband took her back to see Dr. Pendergrass who gave her a referral slip for Dr. Caldwell at the Miners Memorial Hospital and told her to report there prepared to stay. Late the next afternoon her daughter took her to the hospital as directed, Dr. Caldwell was absent, and the defendant-appellee Dr. Bennett on his return from dinner, worked Mrs. Burke into his appointment schedule for the evening, examined her and gave her a prescription — one which was never filled, for she died at her home about 2:30 that night, the morning of the 17th. Again, we have no evidence to show that Dr. Bennett was informed of her medical history or had any fair opportunity to examine her thoroughly.

An autopsy performed shortly after her death disclosed a hardening of the arteries of the heart, a necrosis of a heart muscle which probably was a long time developing, and an apparently severe hardening of one of the arteries to the brain. The pathologist commented that the “clinical findings and the autopsy findings were not quite in keeping with a diagnosis of coronary heart disease * * * she had a blood pressure of 130/100, which is rather unusual in a patient who is affected with coronary heart, or coronary artery disease.”

The only other testimony offered to support the claim, elicited largely by a dubiously framed hypothetical question, was that of Dr. Musgrave who had treated the deceased for heart trouble the year before her death, and the testimony of Dr. B. F. Wright who gave his professional opinion. Both of these physicians were critical of the treatment accorded Mrs. Burke in the face of the symptoms she displayed and opined that she might have survived had she received proper medical treatment for her condition. However, both physicians admitted that there was no way they could conclude that Mrs. Burke would have survived had she had the treatment they recommended and neither would say that her failure to get it was the cause of her death.

If we assume arguendo that the evidence offered establishes negligence, there is still no evidence that that negligence was the proximate cause of the death. The autopsy disclosed the deterioration of the patient’s arteries, a condition so serious that death might have occurred regardless of the treatment given. But the evidence of negligence itself is unconvincing for, as Dr. Musgrave testified, “ * * * Let’s say there is no one sign that can be associated with heart disease and nothing else.” He further observed, “The human doesn’t respond to disease the same way, and that’s why we don’t have science in medicine. We have art in medicine.”

In the present case, the absence of any evidence of the defendants-appellees having any information as to the medical history of the patient, the cursory opportunity to examine her afforded them, the admitted difficulty of diagnosing from symptoms alone, and the complete failure to establish that the treatment or lack of treatment accorded her was the cause of her death, convince us that the trial court properly directed a verdict for the defendants.

The judgment is affirmed.