author: CULLEN, Commissioner.

text:
    Flora BELCHER, Individually and as Administratrix With the Will Annexed of the Estate of May Kirk Heller, Appellant, v. Jean SOMERVILLE, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Rehearing Denied May 6, 1967.

      John C. Anggelis, Anggelis, Collis & Bunch, C. V. Collins, Collins & Collins, Lexington, for appellant.
    John L. Davis and James Park, Jr., Stoll, Keenon & Park, Lexington, for appellee.
   CULLEN, Commissioner.

Probate of the purported holographic will of May Kirk Heller was contested by one of her heirs, the appellee Jean Somerville, a greatniece, on the grounds of undue influence and lack of mental capacity, and on the ground that the will was not wholly in the handwriting of the deceased. The jury found that the purported will “is not the last will and testament of May Kirk Heller,” but did not indicate the ground or grounds on which the finding was made. Judgment was entered setting aside the will, from which judgment Flora Belcher, the chief beneficiary, has appealed, asserting numerous claims of error.

Mrs. Heller, a widow, was 85 years old and was confined in a nursing home when the will allegedly was written. Her heirs consisted of a brother, a nephew and a niece, and a greatniece. She had an estate of some $223,000. The will bequeathed one-half of the estate to her heirs and the other half to Mrs. Belcher, a practical nurse who had attended Mrs. Heller on the night shift for a little over two months before the will allegedly was written. The two nurses on the day shifts, who had cared for Mrs. Heller for several years, were left nothing in the will.

We shall discuss the appellant’s claims of error in the sequence in which they are stated in her brief.

First is a double-barreled claim, that the evidence did not warrant submitting to the jury the issue of undue influence, and that in any event the issues of undue influence and lack of mental capacity should not have been combined in one instruction.

In our opinion there was ample, in fact almost overwhelming, evidence of undue influence. There was evidence of the following “badges” of undue influence: (1) A physically weak, mentally impaired testatrix; (2) a will unnatural in its provisions, in fact, grossly unreasonable; (3) a lately developed and comparatively short period of close relationship between the testatrix and the principal beneficiary; (4) participation by the beneficiary in the physical preparation of the will and possession of the will by the beneficiary after its being written; (5) efforts by the beneficiary to restrict contacts by the testatrix with other persons.

Mrs. Belcher had known the testatrix only 66 days. She was not a natural object of Mrs. Heller’s affection. The will allegedly was written in the middle of the night, when only Mrs. Belcher was in attendance. She immediately put the will in her safety deposit box, after checking with her banker to make sure it was in valid form. She discouraged the banker from talking with Mrs. Heller or from sending a lawyer to advise her concerning her will. The evidence strongly indicated that Mrs. Heller was very susceptible to influence in all of her actions, and in fact depended upon instructions from others even in the simplest matters, such as writing a letter. There was evidence that Mrs. Heller would indiscriminately try to give away things of value, even going so far as offering to give her wedding ring to a cleaning woman she did not know.

That the evidence of undue influence was ample is supported by Golladay v. Golladay, Ky., 287 S.W.2d 904; Hollon’s Ex’r v. Graham, Ky., 280 S.W.2d 544; Roland v. Eibeck, Ky., 385 S.W.2d 37, 7 A.L.R.3d 992; McKinney v. Montgomery, Ky., 248 S.W.2d 719; Hines v. Price, 310 Ky. 758, 221 S.W.2d 673.

As concerns the combining of the issues of undue influence and lack of mental capacity in one instruction, this has long been an approved practice. See Stanley, Kentucky Instructions to Juries, Vol. 2, sec. 749. Perhaps in an unusual case where the issues were clearly unrelated, as where the lack of mental capacity consisted only of an insane delusion in one area and the alleged undue influence did not touch that area, it would be preferable to give separate instructions. However, in most cases, as in the instant one, the two issues are interrelated and one goes hand-in-hand with the other. We find no error in the instruction.

The appellant’s second and third claims of error are that the court should have instructed the jury that there are presumptions of mental capacity and lack of undue influence. The established and (we think) proper rule is that no such instruction should be given. Bannon v. Louisville Trust Company, 150 Ky. 401, 150 S.W.2d 510; Henning v. Stevenson, 118 Ky. 318, 80 S.W. 1135.

The fourth claim of error is that the evidence does not support the verdict. Hereinbefore we have indicated that there was ample evidence of undue influence. Although the appellant seeks to downgrade it, there also was ample evidence that the will was not in Mrs. Heller’s handwriting. A handwriting expert and several persons well acquainted with her handwriting so testified. As concerns lack of mental capacity, again the evidence was ample. Mrs. Heller’s personal physician, who had attended her both shortly before and shortly after the day on which the will allegedly was written, testified that in his opinion she did not have the mental capacity to make a will. Numerous lay witnesses, including two trained nurses and the superintendent of the nursing home, several practical nurses, and some of Mrs. Heller’s relatives, gave their opinions, resting upon suitable bases, that she was not mentally competent. There was evidence that Mrs. Heller on a number of occasions did not recognize her brother and did not know that he had children, although those children had in the past been dear to her; she thought a dead brother had visited her; she was unable to carry on a conversation, and responded with whistling and spurts of song to attempts of others to engage her in conversation ; she said that her deceased brother in a dream had handed her a golden pen and asked her to write her will, leaving a substantial sum to Mrs. Belcher (whom the deceased brother of course had never known); she could not compose a letter; she imagined that only the middle keys on her piano would play; she tried to make gifts of valuables to strangers; she never recognized the nurses in the nursing home who attended her every day; she failed even to recognize her doctor and her longtime friends.

Appellant’s fifth claim of error is that a banker with whom Mrs. Belcher conferred should not have been permitted to testify as to their conversations because they were privileged as communications between attorney and client. This contention rests upon the fact that the banker was qualified as an attorney in New York and Ohio. We think it is sufficient to say that he was not qualified as an attorney in Kentucky; he did not hold himself out as an attorney; and Mrs. Belcher did not go to him as an attorney but as a banker.

Appellant’s final three claims of error relate to evidence and testimony concerning genuineness of handwritings. As they are somewhat interrelated we shall discuss them together.

During the course of testimony by the contestant’s handwriting expert, which testimony was addressed primarily to the question of whether the will was in Mrs. Heller’s handwriting, there were presented to him some samples of Mrs. Belcher’s handwriting and he testified that her writing was like that in the will. Objections were made by the appellant to the admission of the samples and the testimony concerning them. These objections were predicated upon the provisions of KRS 422.120, the specific points of objection being that the samples were not qualified in advance, and were not written before the will was written. We think there are three answers to this. First, the samples were not “other handwritings of that person’’ (Mrs. Heller) introduced on the issue of the genuineness of her alleged handwriting in the will, so KRS 422.120 was not applicable at all. Second, the appellant admitted that the samples were genuine, so there was no need that they be qualified in advance. See Pulliam v. Sells, 124 Ky. 310, 99 S.W. 289. Third, the statute does not require that the writing which is sought to be used for comparison purposes have been written before the disputed writing was written; it requires only that it have been written before any controversy arose as to the genuineness of the disputed writing.

It is our opinion that the samples were admissible for the purpose of showing that the writing in the will was Mrs. Belcher’s, and it was proper to permit the handwriting expert to so testify.

The appellant’s final contention is that the court erred in ruling that certain writings which Mrs. Belcher said she saw Mrs. Heller make were not admissible on the issue of the genuineness of the will. Under Whitcomb v. Whitcomb, Ky., 267 S.W.2d 400, this ruling was entirely correct. Furthermore, the appellant made no offer of testimony or avowal to the effect that the handwriting in the tendered writings was identical with that in the will.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    Jessie James JENKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rebearing Denied May 5, 1967.

      John Y. Brown, Lexington, John Swin-ford, Cynthiana, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This appeal is from a verdict and judgment convicting appellant of arson and fixing his penalty at seven years in the state reformatory.

After relating the facts, we shall discuss the questions raised in appellant’s brief in the order presented therein.

On February 17,1965, at 11:05 p. m., Mrs. Elizabeth Williams and Carl Wilson were in the home of the former when smoke was detected and a fire discovered. A hole had been drilled into the side of the house and gasoline and kerosene poured through the hole and on leaves near the edge of the building. Then it was ignited. The fire was put out with little damage.

One witness testified he saw appellant and his wife riding away from the scene of the fire and in the direction of their home in their automobile.

On the following day the police went to see appellant, who was raking leaves for a neighbor. One of the officers testified he asked appellant if he would answer some questions when he got a break in his work; that appellant consented and came over to the police crusier and got in the back seat; that he, the officer, advised appellant of his right to counsel, not to talk unless he desired to do so, and that any statement he might make could be used against him; that defendant promptly, without use of fear, plying questions, or urging by the police, confessed to drilling the hole in Mrs. Williams’ house, pouring the kerosene therein, and igniting it. He stated that he wanted to “get it off his chest”; that he did it for his wife; that his wife wanted to get Mrs. Williams “out of the way” so she could be free to see Carl Wilson, the friend of Mrs. Williams.

Appellant first maintains his confessions introduced in evidence were “involuntary” and should not have been admitted. But he did not deny the statements of the police and county attorney. (He made the same admissions to the county attorney after confessing to the police.) So, the evidence is clear and undenied that the confessions were freely, voluntarily, and intelligently made. Furthermore, the first confession to the police was made before he was arrested or his liberty of movement restrained. He also waived the right to counsel by stating that he did not want to see an attorney. See Carson v. Commonwealth, Ky., 382 S.W.2d 85, certiorari denied, 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed. 2d 825.

Another argument, with some analogy to the subject just discussed, relates to the failure of the trial court to inquire into the voluntariness of the confession upon'the first objection to its admission. KRS 422.-110. Again, there was no objection to hearing evidence on voluntariness in the presence of the jury, although we hasten to point out that a specific motion for a hearing out of the presence of the jury is not in all cases necessary. However, in Harris v. Commonwealth, 301 Ky. 818, 193 S.W.2d 466, it is written:

“The amendment provides that such determination shall be made ‘Independent of and without the hearing of the jury trying the case.’ If, however, the investigation was had in the presence of the jury, and it was clearly shown that the section had not been violated in obtaining the confession, and was, therefore, held to be competent, then no possible prejudice could result from its admission * * *. On the contrary, if the court had heard the testimony concerning the relevancy and competency of the confession in the presence of the jury, and had then rejected the confession, the object and purpose of the statute would be glaringly violated and would no doubt constitute grounds for reversal.”

It is concluded the rights of appellant have not been prejudiced by the failure of the trial court to hear the question of voluntariness out of the presence of the jury.

Appellant complains of the introduction of evidence of another crime. There was some evidence appellant tampered with the gas cutoff valve of Mrs. Williams’ home some three or four weeks before the attempted arson. He now contends this evidence was incompetent and prejudicial. KRS 433.010 requires proof that the act must be wilful and malicious. Certainly, evidence that he attempted to “gas” Mrs. Williams a short time before the attempted arson furnishes some evidence of motive and malice and whether his present crime of arson was done wil-fully.

Finally, appellant attacks the instructions (1) for failure to instruct the jury on the the offense of attempted arson, and (2) for failure to instruct on the defense of insanity.

Arson is defined by the statute as: “Any person who wilfully and maliciously sets fire to, burns, or causes to be burned * * * any dwelling house * *

The indictment charged, “Jessie James Jenkins committed the crime of arson by wilfully and maliciously setting fire to and causing to be burned the house and residence of Elizabeth Williams * * The house “burned,” although not to the ground. The fire was extinguished with no great damage.

There was no necessity for an instruction on “attempted” arson.

Did the trial court err in refusing to instruct the jury on the question of appellant’s claimed insanity? The only evidence concerning appellant’s claimed insanity is that “he retired from the railroad two years” before due to nervousness and “spent eight weeks in the hospital” after the commission of the crime with which he is charged here. Appellant also contends in his brief that: “Besides no one in his right mind would try to eliminate his wife’s competition for a boyfriend as the Commonwealth contends.”

It must be conceded the conduct of appellant was strange, unnatural, and contrary to the instincts of evéry living animal that walks upon this earth — with the exception of man. It must be recognized also that among the millions of men inhabiting this earth, a few may pander every evil wish and whim of their mate. But, this alone does not amount to insanity as we use the word in determining criminal intent. True, there was evidence appellant “gets mad” and “flies off the handle” and “runs out of the house”; but the evidence shows that he “always has” been guilty of this behavior. That he is nervous and “shakes when he gets pinned down,” does not constitute sufficient evidence of insanity as to require an instruction thereon. We conclude there was not sufficient evidence of insanity to demand the giving of an instruction thereon. See McDaniel v. Commonwealth, 277 Ky. 824, 172 S.W.2d 866, and Corder v. Commonwealth, Ky., 278 S.W.2d 77.

The judgment is affirmed.


author: STEINFELD, Judge.

text:
    Betty Lou SHERLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    Rehearing Denied May 5, 1967.
    John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, Lucien L. Kinsolving, Shelbyville, Bruce Hamilton, LaGrange, for appellee.
   STEINFELD, Judge.

On June 1, 1966, Betty Lou Sherley was convicted of “unlawfully possessing intoxicating beverages in dry territory, * * * ”. Motion for a new trial was timely made and was overruled. Notice of appeal was given in the following form: “The Commonwealth of Kentucky is hereby notified that the Defendant, Betty Lou Sherley, does hereby appeal to the Court of Appeals the Order entered June 3, 1966, denying her Motion for a New Trial.” The statement of appeal filed in this Court shows that this was not an appeal from the order “denying her Motion for a New Trial” but on the contrary from “The Judgment entered June 3, 1966 * * * ”. The Commonwealth moved to dismiss the appeal for the reason that the notice of appeal did not comply with RCr 12.52(3).

The Commonwealth argues that the above rule requires a proper designation of an appealable order or judgment. It points out that the order overruling the motion for a new trial was not appealable. The statement of appeal stated that it was an appeal from a judgment rather than the denial of the motion for a new trial.

This Court has adopted a policy of requiring strict compliance with the rules of appellate practice. Rose Bowl Lanes, Inc. v. City of Louisville, et al., Ky., 373 S.W.2d 157.

We agree with the contention of the Commonwealth that in this case the order overruling the motion for a new trial was not an appealable order. Hardin v. Waddell, Ky., 316 S.W.2d 367. For these reasons the motion to dismiss the appeal is sustained and the appeal is dismissed.


author: STEAKLEY, Justice. NORVELL, Justice

text:
    Louis C. LEITHOLD, Petitioner, v. Thyra Nichols PLASS and Gilbert Norman Plass, Respondents.
    No. A-11509.
    Supreme Court of Texas.
    March 1, 1967.
    Rehearing Denied April 26, 1967.

      Turner, Hitchins, Mclnerney, Webb & Hartnett, J. Glenn Turner, Jr., Dallas, for petitioner.
    William A. McKenzie, Conway R. Lam-mers, Dallas, for respondents.
   STEAKLEY, Justice.

In 1959, petitioner, Louis C. Leithold, and respondent, Thyra N. Plass, while husband and wife, adopted a minor child, Gordon Marc Leithold. They were divorced by decree of an Arizona court in 1962. Respondent was awarded custody of the child and petitioner was accorded certain visitation rights. Thereafter, respondent married Gilbert Norman Plass and moved to Dallas, Texas, in 1963 where she, her husband and the adopted child now reside. Petitioner now lives in California. In 1965, he instituted this suit against his former wife and her present husband in the Juvenile Court of Dallas County, Texas. The petition was styled “Application for Modification of Visitation and Custody” and sought substantial modifications of the Arizona decree upon allegations of changed conditions and circumstances. After hearing the Dallas court modified the Arizona decree with respect to Petitioner’s visitation rights as follows:

“It is therefore, ordered, adjudged and decreed that the Plaintiff Louis C. Lei-thold shall have visitation with his minor son, Gordon Marc Leithold, in his home in Malibu, California, from September 2 to September 12, 1965, and for a two-week period of each year hereafter commencing with the year 1966. Defendants are ordered to. deliver.'up said child to the Plaintiff on the date each period of visitation commences hereunder. Plaintiff shall pick up said child in Dallas and return him at the close of such visitation.”

Petitioner was required to post a $500.00 bond conditioned upon his returning the child to the Dallas Court at the close of the visitation periods. Only respondent appealed from the judgment.

The court of civil appeals was of the view that the judgment of the trial court modified the Arizona decree with respect to custody of the child, rather than visitation, and held that petitioner failed to show a change of conditions that would authorize a modification of the custody provisions of the prior decree. The court expressed the further opinion that the trial court “under this record could have undoubtedly entered a true visitation order” and remanded the case for the stated reason that in its opinion the trial below was upon an erroneous theory.

It is clear to us that the judgment of the trial court modified the Arizona decree with respect only to the visitation rights of petitioner and that custody of the child as awarded by the Arizona court was unaffected. There being evidence of a change of conditions sufficient to support such order, we reverse the judgment of the court of civil appeals and affirm that of the trial court.

Custody of a child connotes the right to establish the child’s domicile and includes the elements of immediate and direct cafe and control of the child, together with provision for its needs. See Glasgow v. Hurley, 333 S.W.2d 658 (Tex.Civ.App. — Dallas 1960, no writ); Quick v. Lindsay, 208 S.W.2d 910 (Tex.Civ.App.—Galveston 1948, no writ); McFadden v. McFadden, 206 Or. 253, 292 P.2d 795 (1956); Selby v. Selby, Ohio App., 69 Ohio Law Abst. 257, 124 N.E.2d 772 (1952); Burge v. City and County of San Francisco, 41 Cal.2d 608, 262 P.2d 6 (1953); and In re Parks’ Petition, 262 Minn. 319, 114 N.W.2d 667 (1962). These rights inherent in a custody status are not held by one enjoying visitation rights as provided in the custody decree.

This is well-illustrated here. The Arizona decree ordered that the “permanent care, custody and control of the minor child of the parties, Marc Leithold, is awarded to the plaintiff [respondent here] with visitation rights in the defendant [petitioner here] as follows, etc.” The decree of the trial court in the instant proceeding did not purport to disturb this existing and permanent custody status. The judgment explicitly speaks in terms of “visitation * * * from September 2 to September 12, 1965, and for a two-week period of each year hereafter commencing with the year 1966.”

Respondent is quite forthright in presenting her position and the issue before us. In her Supplemental Brief to Petitioner’s Application for Writ of Error, respondent urges the proposition that the visitation decree of the trial court did not conform to Petitioner’s pleadings for which reason “it is fundamentally erroneous and void,” and summarizes her position as follows : “In the instant case the Trial Court entered a judgment based on visitation not custody, and it therefore remains the contention of Respondent that the order entered by the Trial Court disregarded completely the pleadings of Petitioner and entered a judgment granting visitation privileges, which privileges were not even pled in the original petition.”

As we have previously noted, Petitioner in his pleadings sought a modification of the Arizona decree with respect to “custody and control” of the child and specifically prayed:

“WHEREFORE, premises considered, Plaintiff prays that Defendants Thyra Nichols Plass and Gilbert Norman Plass be cited to appear herein and upon final hearing hereof this Court grant the following relief:
“1. That the aforesaid Judgment and Decree be modified so that Plaintiff be given custody and control of Gordon Marc Leithold from June IS to September 1 of each year hereafter commencing with the year 1965, and during such period of each year Plaintiff shall have the right to take said child to his home in Malibu, California;
* íjc »

Respondent would have us hold that such a pleading and prayer will not support a judgment for lesser relief in the nature of modified visitation rights with permanent custody as previously decreed remaining unaffected. To the contrary, we are of the view that a suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child. The courts are given wide discretion in such proceedings. Ex Parte Eaton, 151 Tex. 581, 252 S.W.2d 557 (1952); Furrer v. Furrer, 267 S.W.2d 226, (Tex.Civ.App.—Austin 1954, no writ) Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. Conley v. St. Jacques, 110 S.W.2d 1238, 1242 (Tex.Civ.App.—Amarillo 1937, writ dism’d); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App.—El Paso 1936, no writ). It is beside the point that in the instant proceeding the trial court, whether erroneously or not, construed the pleadings of petitioner as seeking only a modification of visitation rights; the point is that once the child is brought under its jurisdiction by suit and pleading cast in terms of custody and control, it becomes the duty of the court in the exercise of its equitable powers to make proper disposition of all matters comprehended thereby in a manner supported by the evidence.

Here the trial court has done no more than modify the existing visitation privileges of petitioner and the validity of its judgment in such respect is to be tested on the assumption that the court found every disputed fact in support of its judgment. Rules 296-299, Tex.R.Civ.P.; Construction & G. L. Union, etc. v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950). All necessary fact findings are implied. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1951). It is unnecessary for us to review the competent evidence of a change of conditions since the entry of the Arizona decree which rendered its visitation provisions unworkable and inappropriate The court of civil appeals recognized that the record amply supports “a true visitation order” but under its view of the case ruled there was no evidence of probative force to support an implied finding of material changes supportive of a change of custody. As indicated above, respondent does not argue there is no evidence to support the trial court decree if considered as modifying visitation rights only; nor did respondent assert by point of error in the court of civil appeals that the judgment of the trial court was so against the weight and preponderance of the evidence as to show an abuse of discretion. Rather, it is respondent’s basic position that the trial below was limited to a question of custody by virtue of petitioner’s pleadings; that the order was one modifying custody and as such was without support in the evidence. But our view is otherwise, and we hold that the pleadings of petitioner support the modification of the visitation provisions of the Arizona decree and that such was the effect of the judgment of the trial court. It is also our view that the visitation order of the trial court did not, as urged by-respondent, provide for a divided custody, in the sense of the cited case of Martin v. Martin, 132 S.W.2d 426 (Tex.Civ.App.—Waco 1939, no writ).

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

SMITH, NORVELL and HAMILTON, JJ., dissent.

NORVELL, Justice

(dissenting).

This Court, the Court of Civil Appeals and, seemingly, the trial court have turned this case upon a distinction between “visitation rights” and “custody rights”. In my opinion, this distinction is elusive at best and wholly immaterial to- the true issue in the case which is the best interest of the child. There is a well recognized distinction often encountered in cases involving the custody of children or the right to visit them which is clearly pointed out in our venue cases. In Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App.1962, no writ), the Amarillo Court of Civil Appeals said:

“Appellee takes the position that this suit is one to enforce the original divorce judgment, and that the District Court of Bailey County is the only Court that can enforce its judgment. To support this contention appellee principally relies on Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635, and Carlson v. Johnson (Tex.Civ.App.) 327 S.W.2d 704 (no writ history). These cases do hold that the Court granting the divorce is the only Court which can properly hear the contempt motion. However, it is equally well settled that venue in actions for change of custody of minors lies in the county of the residence of the person having legal custody. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Ellington v. Floyd (Tex.Civ.App.) 255 S.W.2d 948 (no writ history); Taylor v. Taylor (Tex.Civ.App.) 348 S.W.2d 226 (no writ history). It is therefore apparent this case must turn on the question of what is the true nature of the case as viewed from appellee’s motion and the judgment entered thereon. If the case is one to enforce the original divorce judgment by contempt, venue is properly in Bailey County. On the other hand, if the case is one to attempt to relitigate and readjudicate some feature of the custody of the child, it comes under the holding of Lakey v. McCarroll, supra, and venue would lie in Lubbock County”.

See also, Nemec v. Degelia, 285 S.W.2d 411 (Tex.Civ.App.1955, no writ), Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App. 1951, no writ), Quick v. Lindsay, 208 S.W. 2d 910 (Tex.Civ.App.1948, no writ).

I would say that for a plaintiff to prevail in a suit which involved a change in the provisions of a decree as distinguished from one to enforce the provisions of a decree as written must show a change in conditions since the entry of the first decree in order to escape the bar of res ju-dicata. For example, in this case, the original decree was entered by the Supreme Court of Arizona. If no change of conditions had taken place since the entry of that decree, a Texas court would be precluded from modifying such decree by the full faith and credit clause of the Constitution of the United States. A change of conditions being essential to effect a modification of the decree, why confuse the issue by attemping to draw a distinction between visitation rights and custody rights? Yet, the trial judge seems to have proceeded upon the theory that he could substitute a two week period of visitation in California for a number of single day visits in Arizona or Illinois under some different rule or standard if visitation rights only as distinguished from custody rights were at issue. And, despite the pleadings of the parties, he insisted that he was trying a “visitation” case and not one involving custody. However, the decree entered reduced the custody period of Mrs. Plass from 52 weeks to 50 weeks. And here we might inquire, when would visitation become custody — in a period of two, twenty-two or forty-two weeks ?

To me, this case is what is generally referred to as a split custody case. Most courts that have been called upon to decide cases of this character place no emphasis upon a distinction between custody and visitation. The distinction, if any there be, has no place in the problem. Under certain conditions where the welfare of the child is involved, the privilege of access to the child may be denied. “This privilege (of visitation) must yield to the good of the child, and may be denied to either, or both, parents where the best interests of the child will be served thereby”. 27B C.J.S. Divorce § 312, p. 480. The welfare of the child should have been the controlling criterion of the trial court’s decision, and not a distinction between visitation and custody rights. I cannot say with confidence that said trial court applied the correct standard or policy in rendering its judgment. It is argued most forcibly that this is not a case for divided custody, but one in which the petitioner should be denied all access to the child.

The minor here is an adopted child. The feeling between the adoptive parents, the contending parties here, is extreme in its bitterness. I shall not elaborate as to details. I would like to feel certain that the trial judge exercised his best judgment without reference to spurious and immaterial distinctions.

The argument that the principle of Martin v. Martin, 132 S.W.2d 426 (Tex.Civ. App.1939, no writ), has no application to this case is wholly untenable. By referring to a two week sojourn in California as a “visitation” does not avoid the evil that is discussed in Martin v. Martin. The child is being “hawked about from one parent to the other”. “Putting a saddle on a duck does not make it a horse”. Smith v. Morgan, 235 S.W.2d 938, 1. c. 942 (Tex.Civ.App.1950, wr. dis.). In McDermott v. McDermott, 192 Minn. 32, 255 N.W. 247 (1934), the Supreme Court of Minnesota applied the same reasoning as that set forth in Martin v. Martin in a case wherein the wife had been awarded a divorce and custody of a minor child. Subsequently, the custody decree was modified over the mother’s objection and the father was allowed to have the child for one week each month. The Supreme Court of Minnesota reversed the modifying decree and in the course of its opinion said:

“There should be here an end to the disturbances of this child and mother by the shifting of the child back and forth between the two homes, and an end to repeated motions and court proceedings in reference to the child’s custody. So long as the mother is able to and does properly care for the child, she should be left in undisturbed custody.”

In the recent case of Paynter v. Janca, 331 S.W.2d 814 (Tex.Civ.App.1960, no writ), the San Antonio Court of Civil Appeals had before it a situation similar to that disclosed by the record here in that the divorced parents lived in different states. The court said:

“Appellee argues that because his visiting privileges will necessarily be hampered on account of appellant’s present residence in Norfolk, Virginia, the divided custody is justified. We overrule this contention. Judge Alexander in Martin v. Martin, Tex.Civ.App., 132 S. W.2d 426, 428, the leading and most often cited case concerning divided custody of children, said:
“ ‘In our opinion, the original decree awarding the child part time to each of the parents was unwise. Certainly, no child could grow up normally when it is hawked about from one parent to the other with the embarrassing scene of changing homes at least twice each year. Such decrees are usually prompted by a laudable desire to avoid injuring the feelings of the parents, but the net result is a permanent injury to the child without any substantial benefit to the parents. In addition to the lack of stability in his surroundings, the child is constantly reminded that he is the center of a parental quarrel. It is readily apparent that such practices are calculated to arouse serious emotional conflicts in the mind of the child and are not conducive to good citizenship. Moreover, the parents are continuously pitted against each other in the unenviable contest of undermining the child’s love for the other parent. Each parent is afraid to exercise any sort of discipline for fear of losing out in the contest. As a result, the child is reared without parental control. Such decrees by which the child is awarded part time to each of the parents have been condemned by numerous decisions. 19 C.J. p. 344, sec. 797, and authorities cited in Note 27; Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241.’
“This statement of the rule has consistently been followed: Carter v. Carter, Tex.Civ.App., 318 S.W.2d 471; Alexander v. Alexander, Tex.Civ.App., 309 S.W.2d 886; Cluck v. Parchman, Tex. Civ.App., 303 S.W.2d 526; Bartlett v. Bartlett, Tex.Civ.App., 293 S.W.2d 508; Milim v. Mayfield, Tex.Civ.App., 285 S. W.2d 852; Tedder v. Bloyd, Tex.Civ. App., 283 S.W.2d 409; Bronner v. Bronner, Tex.Civ.App., 278 S.W.2d 530; Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347; Byrd v. Byrd, Tex.Civ.App., 195 S.W.2d 822. In our opinion, the rule is particularly applicable where the parents reside in distant states.”

Can it reasonably be said that a child’s mind may escape the feelings and expressions of ill will and bad feeling with their consequent emotional disturbance by designating the adoptive father’s two week period of possession of the child as a “visitation” rather than a “custody” right? The controlling issue in this case — the best interest of the child — should not be “named” away. The trial judge should determine the issue without reference to how the father’s two week possession of the child may be classified.

I would affirm the judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause. (There is no prayer for rendition of judgment for respondents.) Upon retrial, however, all issues made by the pleadings should be tried and the case should not be arbitrarily limited to an issue of so-called “visitation rights” and the paramount issue of the welfare of the child should be determined without regard to the elusive distinction between “visitation” and “custody” rights.

I respectfully dissent from the order reversing the judgment of the Court of Civil Appeals and affirming that of the trial court.

SMITH and HAMILTON, JJ., join in this dissent.

      . “It is' further ordered that the permanent care, custody and control of the minor child of the parties, Mare Leithold, is awarded to the plaintiff (Thyra P. Leit-hold) with visitation rights in the defendant (Louis O. Leithold) as follows:
      * * * * ⅜
      “2. At all times that Marc is outside the limits of the State of Arizona, which privilege shall be the plaintiff’s, she shall notify the defendant of her plans to leave the State at least five (5) days before she departs. Whether Marc is within or with- . out the State of Arizona, plaintiff shall keep the defendant notified of Mare’s address by written notice to defendant’s attorney, John B. Marrón. During her absence from Arizona, the defendant shall have the privilege of visitations with Marc, without the supervision, following or interference of the plaintiff, or her friends, agents or employees upon five (5) days’ written notice prior to the date selected by the defendant for such a visitation. The defendant’s rights of visitation shall be between the hours of 9:30 A.M. and 4:00 P.M. on any one day of each week selected by the defendant by written notice as aforementioned. In lieu of such one-day visitation during any week, the defendant shall have from 9:30 A.M. to 4:00 P.M. on each day the right to a visitation on two consecutive days followed by a subsequent visitation of two consecutive days of like hours, provided the two period of consecutive day visitations are separated by a 24-hour period free of visitation. Such a series of two (2) two-day consecutive visitations may not occur, however, more than once in any consecutive 90-day period. Provided, however, that during the balance of such a consecutive 90-day period the defendant shall be allowed his normal weekly one-day visitations, except that after the last visitation of two (2) consecutive day visitations there shall he no visitation for the succeeding six (6) days. All visitations under this provision shall be within the city limits of the City of Pekin, Illinois, so long as the residence of the plaintiff is in the Town of Green Valley, Illinois, or in transit between the Town of Green Valley and the City of Pekin.”

      . The OCA directed that its opinion be not published. See Rule 452, Texas Rules of Civil Procedure.

      . The right of visitation is generally equated with the parent’s right of access to his child. 27B C.J.S. Divorce § 312, p. 477. In Corpus Juris Secundum, it is also said that, “A decree which merely permits visitation does not authorize the visiting parent to transport the child away from its home”. 27B C.J.S. Divorce § 312, p. 483, and also that it has been held “that the right of visitation should not be extended to a point where it becomes a divided custody or the equivalent thereof”. In Patrick v. Patrick, 17 Wis.2d 434, 117 N.W.2d 266 (1962), the Wisconsin Supreme Court departed from the usual concept of the right of visitation and for the purposes of the particular ease adopted a different classification. That Court said:
      “Ruth’s (the wife’s) counsel argues that the judgment provides for dual custody (sometimes referred to as divided, or split custody) even though it specifically refers to James’ (the husband’s) right as ‘visitation.’ In the most restricted sense, a parent’s right to visit his child while in the custody of another, means a right of access to the child.
      “When custody has been awarded to one parent or a third party, and the other parent is awarded the right, for the purpose of visitation, to remove the child from the immediate care of the one having custody, the parent who exercises such right obtains a measure of authority over the child which would not be involved in mere access to it. In the nature of things the parent who removes the child and keeps it during a visit has an obligation to care for its immediate welfare and safety, and must control the child so far as is necessary to fulfill his obligation. His authority and obligation are not, however, equivalent to the authority and obligations of the one to whom the court has awarded custody.
      “ ‘ * * * “Custody”, in the sense we use it connotes, among other things, the right of the legal custodian to establish the legal domicile for the child, whereas such right does not abide with the parent who enjoys only the occasional right of visitation, i. e., the right to visit the child wherever it is, at certain time, or to have the child visit the parent for stipulated periods. * * * ’ [McFadden v. McFadden (1956), 206 Or. 263, 292 P.2d 795, 799]
      “ ‘Custody embraces the sum of parental rights with respect to the rearing of a child, including its care. It includes the right to the child’s services and earnings, Civ.Code, § 197, and the right to direct his activities and make decisions regarding his care and control, education, health, and religion.’ [Burge v. City and County of San Francisco (1953), 41 Cal.2d 608, 262 P.2d 6, 12]”

      . Martin v. Martin must be considered a leading ease in Texas. It has been cited with approval some thirty times by the Texas appellate courts. See also, Annotation, 92 A.L.R.2d 695.
      It might be remarked here that if the classification set forth in the Wisconsin case of Patrick v. Patrick, mentioned in the first footnote, be accepted, no difference in ruling or principle is suggested.

      . Under the Arizona decree, Mrs. Plass received custody of the minor subject to the rigidly regulated privilege of Louis C. Leithold to visit the child at the place of residence of the adoptive mother. When this privilege is changed so as to allow Leithold to take the child out of the State of Texas where the mother now resides to the State of California for a two week period, a substantial change was effected in the terms of the original decree rendered by the Arizona court and it makes no difference in principle whether this change is called a change in visitation rights or a change of custody.


author: ONION, Judge.

text:
    Lewis Charles WHEELER, Appellant, v. The STATE of Texas, Appellee.
    No. 40283.
    Court of Criminal Appeals of Texas.
    April 12, 1967.

      J. Rodney Brister, Dallas, for appellant.
    Henry Wade, Dist. Atty., John J. Stauf-fer, Scott Bradley and Kerry P. FitzGerald Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a conviction for the possession of marihuana. After a trial before a jury, the punishment assessed by the Court was thirty (30) years confinement in the Texas Department of Corrections.

In the early morning hours of May 14, 1966, officers of the Dallas Police Department, armed with a search warrant and an arrest warrant, forcibly entered appellant’s home after no one answered their knocks. The validity of the search is not challenged on appeal. Subsequent to their entry, appellant asked the officers if he could go to the bathroom. This request was granted and one of the officers accompanied him. Once there, appellant reached for a package and attempted to flush it down the commode. One officer physically prevented such action and another officer took possession of the package containing five cigarettes. A subsequent search of appellant’s house revealed a green vegetable substance in a tinfoil wrapping. The chain of custody of these items and the fact that the chemical analysis showed the cigarettes and the substance to be marihuana was stipulated.

Appellant’s sole contention on appeal is that the trial court erred in refusing to grant a mistrial when the prosecuting attorney asked appellant’s daughter, his only witness, an improper question on cross-examination. Such action he contends was calculated to show the guilt of the defendant and amounted to an oral confession of the Defendant while under arrest.

The testimony in question is as follows:

“Q Now, the defense counsel over here asked you whether at any time except after the officers had carried you all down to the police station you had seen any evidence or heard of any evidence which would lead you to believe that the defendant had used or smoked any marijuana cigarettes. Now, then, I want to ask you if you were present when this man down here, your own father, told Officer Taylor that he smoked three marijauna-
MR. BRISTER: I'm going to object to that, Your Honor.
THE COURT: I’ll sustain it.
Q (By Mr, Bradley) I’m talking about before you got down here, when they asked-
MR. MURPHY: Objection.
THE COURT: I’ll sustain the obj ection.
MR. MURPHY: Your Honor, we’re going to have to at this time, move for a mistrial on the basis of what we consider prejudicial testimony, testimony from the lips of Mr. Bradley, and not from anybody from the witness stand.
THE COURT: I’ll overrule your motion for a mistrial.
MR. MURPHY: Note our exception, please.
THE COURT: I’ll instruct the jury to disregard it.”

It is to be observed that neither question was completed, no answers were given, and the record does not reflect that appellant was under arrest at the time inquired about, and the Court promptly instructed the jury to disregard.

It is well established law that the error in propounding improper questions or in admitting improper testimony may be generally cured by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. 5 Tex.Juris.2d, Sec. 437. McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29; Harris v. State, Tex.Cr.App., 375 S.W. 2d 310. See also Reed v. State, Tex.Cr.App., 377 S.W.2d 641; Spriggins v. State, Tex.Cr.App., 372 S.W.2d 676.

In Harris v. State, supra, the appellant, as in the case at bar, was charged with the possession of a narcotic drug. The arresting officer testified that when the appellant came to the door of the apartment, “I told him we had information that he had some dope at his house.” Appellant moved for a mistrial which was denied. The jury, however, was instructed not to consider the statement for any purpose.

After stating the general rule above quoted and ruling that the trial court’s failure to grant a mistrial was not reversible error, this Court stated, “The evidence in question was not of such import that the court’s instruction to disregard the answer could not have removed its effect on the minds of the jury * * * It should also be noted in this regard that marijuana was found in the apartment and no issue was made of the fact that it was marijuana.”

Unlike the case at bar the question in Harris was actually answered. Further, as in Harris, marihuana was found in appellant’s residence and no issue was made of the fact it was marihuana.

Appellant relies principally upon Andrews v. State, 160 Tex.Cr.R. 570, 273 S.W. 2d 430, 431 and Scroggins v. State, 133 Tex. Cr.R. 378, 111 S.W.2d 273. In these cases, the prosecutor persisted in asking the same or similar improper question until he had secured an answer despite the defendant’s objections and in willful disregard of the Court’s rulings and admonishments. In each case, the Court held the instructions to disregard were insufficient to cure the prejudicial character of the testimony.

In the case at bar, the record is devoid of any such calculated attempt to circumvent the rulings of the Court and does not demonstrate such repetition as is evident in the cases cited by appellant. The record fails to reflect that the prosecutor acted in bad faith in propounding the questions complained of.

We conclude that the Court’s instruction to the jury to disregard was sufficient under the circumstances, and that the trial court did not err in refusing to grant a mistrial.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Allen WILLIAMS, alias Junior Barnes, Appellant, v. The STATE of Texas, Appellee.
    No. 40184.
    Court of Criminal Appeals of Texas.
    March 29, 1967.

      Tom Upchurch, Jr. (on appeal only), Amarillo, for appellant.
    Alton R. Griffin, Dist. Atty., Tom M. Richards, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is the violation of Art. 489c, Vernon’s Ann.P.C., which makes it unlawful for any person who has been convicted of a felony involving an act of violence with a firearm to have in his possession, away from the premises upon which he lives, any pistol, revolver, or other firearm capable of being concealed upon the person.

Trial was before a jury on a plea of not guilty. Appellant elected to have the jury which had found him guilty assess the punishment and a term of one and one-half years was assessed.

The record on appeal was approved by the trial judge on October 25, 1966.

Under the provisions of Art. 40.09, Vernon’s Ann.C.C.P., Sec. 9, appellant had 30 days or “such additional period as the court may in its discretion authorize” in which to file his brief setting forth each ground of error of which he desired to complain'on appeal.

The brief which accompanies the record was not filed in the trial court within the 30 days allowed by Article 40.09, Sec. 9, and there is nothing before this Court to show that the trial court authorized a later filing of said brief or that he considered it in the performance of the duties prescribed by Sec. 12 of said Article 40.09 C.C.P.

The procedure outlined in Article 40.09, Sections 9 to 13 inclusive, allows the trial court to consider each ground of error of which the defendant desires to complain on appeal in light of the approved record and, from the briefs and oral arguments, if any, to decide whether the defendant should be permitted to withdraw his notice of appeal and be granted a new trial.

Upon refusal of the trial court to' grant a new trial, it becomes the duty of this Court to review the grounds of error urged in defendant’s brief filed in the trial court as provided in Section 9, and transmitted to the Court of Criminal Appeals with the record, and to review “any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.” (Sec. 13 of Art. 40.09)

We find no ground for reversal of this conviction which may be reviewed as assigned error or which should be reviewed as unassigned error “in the interest of justice.”

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    CONSOLIDATED UNDERWRITERS, Appellant, v. Joe WHITTAKER, Appellee.
    No. 268.
    Court of Civil Appeals of Texas. Tyler.
    March 16, 1967.
    Rehearing Denied April 13, 1967.

      Fairchild & Hunt, Billy Hunt, Center, for appellant.
    R. W. Fairchild, Vernis Fulmer, Nacog-doches, for appellee.
   DUNAGAN, Chief Justice.

This suit was brought by appellee for workmen’s compensation benefits for an injury alleged to have occurred on July 30, 1964. A jury trial was had in the 123rd Judicial District Court of Shelby County, Texas, in March, 1966. Judgment was entered for appellee for 401 weeks of compensation at the rate of $35.00 per week, in a lump sum, and for $612.50 for hospital and medical care. The court overruled defendant’s (appellant) amended motion for new trial and it has perfected its appeal to this court.

The appellant has brought forward 24 points of error. The points of error will be discussed in an order different from that followed by the appellant.

The appellant in its points of error 7 through 14 complains that the answers of the jury to each of the first four issues are based upon insufficient evidence, as a question of fact, and that each such answer is against the overwhelming preponderance of the evidence. Such issues, and the answers thereto, were as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the injury sustained by the Plaintiff, Joe Whittaker, on or about the 30th day of July, 1964, was a produc- • ing cause of any total incapacity, as that term has been defined herein?
“ANSWER: ‘WE DO’ or ‘WE DO NOT’.
“Answer: Yes — We do
“If you have answered Special Issue No. 1 ‘WE DO’, and only in that event, then answer this issue:
“SPECIAL ISSUE NO. 2
“When do you find from a preponderance of the evidence that such total incapacity, if any, began?
“Answer by stating the date, if any.
“ANSWER: July 30, 1964.
“If you have answered Special Issue No. 1 ‘WE DO’, and only in that event, then answer this issue:
“SPECIAL ISSUE NO. 3
“How long do you find from a preponderance of the evidence that such total incapacity, if any, has continued or will continue from the date of its beginning, if any ?
“Answer by stating the period of time, if any.
“ANSWER: Permanent
“SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that plaintiff sustained any partial incapacity as a result of the injury, sustained by him on the occasion in question?
“Answer: ‘WE DO’ or ‘WE DO NOT’
“Answer: We do not ”

The appellee was an employee of L. D. Tyer Lumber Company doing sawmill work. This work required him to do lumber stacking, trip logs, tail the saw, set trimmers, work on the skid-weight and roll logs. His work involved heavy lifting, stooping and bending. At the time of his injury on July 30, 1964, he was running trimmers. While so engaged, a two-by-six piece of lumber got caught in a chain that carried it across the trimmer and allegedly struck him in the right lower abdomen in about the area of the groin, knocking him down, injuring his lower abdomen, hips and low back; and it is further alleged that he sustained immediate total and permanent disability by reason of such injury.

It was admitted by Leonard Tyer, the owner of L. D. Tyer Lumber Company, upon direct examination, that the appellee did receive an accidental injury while in the course and scope of his employment with his company on the date alleged.

Appellee, Joe Whittaker, testified that he was 46 years of age; that he had done manual labor all of his life; that he had never had any back trouble before July of 1964; that he was injured on July 30, 1964, when a board struck him in the groin on the right side; that the blow knocked him down; that he immediately began hurting in the lower abdomen and back and has not been free of pain in either place since the accident; that pain radiated down his back and left leg; that he was taken by the foreman to Dr. Conway H. Mal-lery; that Dr. Mallery x-rayed his side and back and gave him a prescription; that he went back to Dr. Mallery the following day but was not able to see him because the office was closed; that he went to Dr. Hooker, Dr. Mallery’s associate, three or four days later; that he went to Dr. Glen R. Johnson sometime later when his employer told him he could see any doctor he wished to see; that he saw Dr. Johnson about three weeks after the accident; that Dr. Johnson finally put him in the hospital for three days and allowed him to go home on Sunday of that week; that Dr. Johnson operated on him (for removal of his appendix) and he was released from the hospital September 2, 1964; that he remained off work until some time in February, 1965; that when he first saw Dr. Mallery the doctor told him that if he felt like it, he might “work tomorrow but don’t work this afternoon; ” that he has made complaints of his back hurting him to his employer; that he was employed by the Tyer Lumber Company at the time of the trial as a night watchman, and had to use a stick to make his rounds to punch the clock; that he works with a back brace prescribed by Dr. Mallery; that he is not able to work, but does it anyway with pain because he needs the money as he has no other way to feed his family.

Joe Whittaker testified further that the nightwatching work he does involves exertion that hurts him; that after working, his back hurts worse; that he has to take medicine on the job to ease his pain enough so that he can continue working; that the work he was doing after his injury and until he was hospitalized was hard work, and he was doing it in pain; that everything he has done since he was hurt has been with pain and suffering and he has not felt able to do it; that he has complained to Mr. Tyer that he couldn’t do the work and Tyer told him he’d just have to do the work; that there wasn’t any easy work at the sawmill and he couldn’t put him on a pension; and that he has complained to Mr. Tyer many times about his back giving him trouble. He told Mr. Tyer he was wearing a back brace.

Dr. Mallery, the treating physician, testified that he first saw Joe Whittaker July 30, 1964; that he was bruised and there was some swelling present in the right groin; that there was some muscle spasm in the back and pain on percussion; that x-rays were normal except for arthritic spurring in the area of the fourth and fifth vertebrae; that an injury can aggravate an arthritic condition and a person is more likely to have pain when an injury occurs in the area of the arthritis; that he did not feel that Whittaker had been able to do hard physical work at any time since he first saw him;, that Whittaker’s condition had stabilized, sometimes better, sometimes worse; that lifting, bending, pulling or other heavy work is going to cause him to have pain; that the pain has been reported to be worse after bending and sweeping; that on July 30, 1964, he complained not only of his right groin where he was struck, but also of pain in the lumbar region of his back. On examination, he found muscle spasm and pain in the back. Pain causes muscle spasm, and the existence of arthritis in the back does not mean that the person suffers pain from it; an injury to the area may cause pain in itself, and may aggravate the arthritis and cause it to become painful; if the pain still continues after a year and a half or two years, most likely it is going to be permanent. Whit-taker has continued to have pain which varies in intensity; he is still seeing Whit-taker; from the time he first saw Whit-taker on the day of the injury, while the intervals between have varied, he has seen Whittaker on the average of every two weeks; Whittaker has consistently complained of pain in the low back, and the muscle spasm present in his back varies with the amount of pain; if Whittaker does much work, he is going to have pain; if Whittaker does heavy physical work, like lifting, bending, pulling and walking, he will have pain permanently; Whittaker told him his work was harder than he really felt like he could do, but he had to work; most every time Whittaker saw him, he would complain of pain in the back, though occasionally he would not. He was hospitalized in November, 1964, because of the persistence of the pain; Whittaker’s pain was related to the intensity of the treatment and amount of work he did; after hospitalizing him and giving him intensive treatment, he was relatively free of pain in January, 1965, but after he started back to work, he started having pain again. If Whittaker could stay at rest and have intensive therapy, he might be free of pain, but if he continues doing heavy work, he won’t improve.

Dr. Glen R. Johnson, who was called as a witness by appellant, testified that on his examination of Whittaker on August 17, 1964, his impression was that he had received a severe forceful injury to the right inguinal area; that on August 20, 1964, Whittaker returned with quite severe abdominal pain, and he suspected appendicitis and hospitalized Whittaker for three days for observation. He discharged him from the hospital to go home. In less than two hours after he discharged him, Whittaker came in and he and Dr. Phillips thought he had appendicitis, hospitalized him, and operated and removed the appendix, which was not diseased. He was not suffering with appendicitis. Considering the injury, the most likely thing would be that he was suffering from the injury. He actually doesn’t treat enough arthritis to be able to give an opinion as to the severity of the arthritis of Whittaker. Whether a man with arthritis which is painful would work despite the pain is influenced a lot by his economic necessity — if he had no money to feed himself and his family unless he worked, he probably worked despite the pain. He found in Whittaker not only the inflammatory condition of the lower abdomen, but also the pain and suffering of the back — objectively, he had tenderness over there and it is his feeling that Whittaker had an injury to his back. Since he has not seen Whittaker since September 2, 1964, he is in no position to express an opinion as to his condition since that date or what it will be in the future. A person may have arthritis and yet have no pain or disability and an injury may excite and aggravate it, so that it becomes painful and causes total disability for life. He thought Whittaker was sincere and honest in all his complaints.

It is undisputed that it was necessary for the appellee to work to support himself and his family. It is admitted by the appellant that it has not paid appellee any compensation on account of his injury of July 30, 1964.

It would serve no useful purpose to lengthen this opinion by further detailing the testimony of the appellee and the two doctors who testified in this case and the other evidence relied upon to support the submission and findings of the jury to the special issues in question.

We think the evidence in this case is sufficient to support the jury’s findings to Special Issues 1, 2, 3 and 4. Appellant’s points 7 through 14 are overruled.

In considering appellant’s contention that the jury’s answers to Special Issues 1, 2, 3 and 4 were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, we are required to weigh and consider all the evidence in the case and set aside the verdict and remand the cause for a new trial if we consider the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have studied the statement of facts carefully and we cannot say in applying the rules just announced that the jury’s answers to these issues were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The record in this case, at most, presents only the situation where, on conflicting evidence, the jury in the exercise of its province, as trier of the facts, to pass on the credibility of the witnesses and the weight to be given their testimony, gave credence to the testimony of appellee and rejected that of appellant. Bituminous Fire & Marine Insurance Company v. Jones, 398 S.W.2d 577 (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.).

Basically, appellant’s position is that because the evidence reflects that after his injury Whittaker worked doing hard manual labor and earned as much and more money as he had earned before his injury, for the same employer, he could not have been “totally disabled.”

The rule is established in this state that the fact that an injured employee resumes work after injury, but only under the whip of necessity, does not necessarily preclude a finding of total permanent disability; the latter issue remains, nevertheless, one of fact to be passed upon by the jury. Southern Underwriters v. Grimes, 146 S.W.2d 1058 (Tex.Civ.App., San Antonio, 1940, dism., judg. corr.) ; Texas Employers’ Ins. Ass’n v. Mallard, 192 S.W.2d 302 (Tex.Civ.App., Galveston, 1946, writ ref., n. r. e.); Mabry v. Travelers Ins. Co., 193 F.2d 497 (United States Court of Appeals, Fifth Cir., 1952); Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company v. Gloff, 238 F.2d 839 (United States Court of Appeals, Fifth Cir., 1956).

The appellant relies strongly on Fidelity & Casualty Company of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App., San Antonio, 1966, err. ref., n. r. e.). This case is not in point under the facts presented in this case. The majority opinion in the Burrows case expressly stated that: “There is no evidence of hardship which would compel him to work in spite of incapacity.” In the case at bar, there is evidence which was not disputed that Whit-taker had to work, despite his incapacity to do so, in order to eat and feed his family.

We now turn to a consideration of appellant’s first two points of error.

"First Point
“The trial court erred in submitting Special Issue No. 1 over appellant’s objection that such issue, as submitted, combined two points of inquiry material to the case in one issue in that it did not first inquire as to whether there was any total incapacity in one issue, and then subsequently inquire, in a separate issue, whether the injury of July 30, 1964, was a producing cause of any such total incapacity.
“Second Point
“The trial court erred in submitting Special Issue No. 1 over the appellant’s objection that such issue was duplicitous and multifarious in submitting two distinct questions to the jury in one issue; these questions being whether incapacity existed, and whether or not the injury of July 30, 1964, was a producing cause of such total incapacity.”

Section 10 of Article 8306, Vernon’s Ann. Civ.St. provides for compensation “While the incapacity for work resulting from the injury is total, * * Perforce of the statute the ultimate fact issue in substance is, has the injury resulted in (or caused) total incapacity for work? This is the single inquiry presented in the case at bar by Special Issue No. 1.

The argument of appellant seems to be that the special issue submitted was duplicitous or multifarious, and that, under the evidence, the following separate issues should have been submitted:

(1) An issue asking whether any total disability occurred following the injury of July 30, 1964.
(2) An issue asking whether the July 30, 1964, injury was the producing cause of any total disability.

First, it should be recognized that the ultimate inquiry in a workmen’s compensation case is whether the accident was the producing cause of the injury. We see, therefore, no error in submitting the ultimate facts which make up the claimant’s recovery in such a case if they are all facts which the plaintiff must prove to make out a case. Hodges, Special Issues Submission in Texas, page 115; Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575 (1955); Fidelity & Casualty Co. of New York v. Branton, 70 S.W.2d 780, 785 (Tex.Civ.App., Beaumont, 1934, writ dism.). See also Texas General Indemnity Company v. Deaton, 380 S.W.2d 719 (Tex.Civ.App., Fort Worth, 1964, writ ref., n. r. e.) ; Liberty Universal Insurance Company v. Burrell, 386 S.W.2d 323 (Tex.Civ.App., Fort Worth, 1965, writ ref., n. r. e.); and Texas Employers’ Ins. Ass’n v. Heuer, 10 S.W.2d 756 (Tex.Civ.App., Beaumont, 1928, rehearing denied, 11 S.W.2d 566).

The submission in one issue of the two elements here complained of is, in our opinion, not objectionable as multifarious, duplicitous or as an improper grouping of two issues. It simply embodied the group of facts which the claimant had to prove in order to recover under his theory of total incapacity.

Furthermore, in this case, it seems that (1) the fact that appellee sustained an accidental injury on the date in question while in the course of his employment with appellant is undisputed, and (2) that total incapacity after the accident resulted. Therefore, even if the issue was duplicitous or multifarious, it would be harmless because all but one of the facts in the issue (i. e., producing cause) were undisputed. Wooten v. Crosby County, 219 S.W.2d 553 (Tex.Civ.App., Amarillo, 1949, writ ref.); Lloyds Casualty Co. of New York v. Grilliett, 64 S.W.2d 1005, 1006 (Tex.Civ.App., Texarkana, 1933, writ ref.).

Where evidence as to a fact is' positive and not disputed or questioned, it is to be taken as an established fact; and the charge of the court should proceed upon that basis. Security Union Ins. Co. v. Hall, 37 S.W.2d 811, 813 (Tex.Civ.App., Amarillo, 1931, n. w. h.); Lloyds Casualty Co. of New York v. Grilliett, supra.

If the uncontroverted fact was inquired about along with the fact in controversy, there could be no harm if the issue was answered in favor of the party relying on the uncontroverted fact. Hodges, Special Issues Submission in Texas, page 114; Wooten v. Crosby County, supra. Points 1 and 2 are overruled.

Appellant next contends under its third point that “The trial court erred in submitting Special Issue No. 3 over appellant’s objection that such issue constituted a comment upon the weight of the evidence in that it inquired as to the length of time during which total incapacity has continued, and thus commented to the jury that, in the opinion of the court, such total incapacity still continued on the date of trial.” (Emphasis added).

Appellant does not cite any authority in support of its contention. In fact, counsel for appellant concedes that he has been unable to locate any case where the contention here made has been passed upon by the courts.

In Issue No. 1, the court inquired whether the injury caused total incapacity. In Issue No. 2, the court called on the jury to fix the beginning date of such total incapacity, if any. In Issue No. 3, by inserting immediately after the words “total incapacity” the words “if any” again made it abundantly clear that the court had no opinion that total incapacity existed at all. Issue No. 3 calls on the jury to fix the duration of the total incapacity, if any, from the date of its beginning and Issue No. 2 calls on the jury to fix the beginning date, indicating no opinion of the court as to when it began. The inquiry in Issue No. 2 made it clear that it was for the jury to fix the beginning date at a time which, so far as the court was concerned, would be either before or after the trial date, by the words “as continued or will continue from the date of its beginning, if any.”

The use of the word “has” in Issue No. 3 as submitted in the charge in this case does not imply, suggest or assume that the incapacity inquired about still existed at the time of the trial. Considering the charge as a whole, we think the jury could not have assumed, from the form of this issue, that the court was of the opinion that total incapacity existed at the time of the trial.

We believe that the trial court’s submission of the issue involved was not erroneous; if we be mistaken, under the record as a whole, such constitutes harmless error as it was not one which was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure.

Moreover, in viewing the charge as a whole, we think it is an unreasonable and quite unlikely conclusion that the jury was misled by Special Issue No. 3. Texas Employers Iris. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); Mason v. Yellow Cab & Baggage Co., Inc., 153 Tex. 344, 269 S.W.2d 329 (1954).

Appellant complains in its fifteenth point of error of the argument of appellee’s counsel in his closing argument which it contends cast aspersions upon the ability of appellee’s witness, Dr. Glen R. Johnson, by injecting new and harmful matters which were outside of the record. It further contends that the argument was so harmful and prejudicial to the rights of appellant that the instruction of the court to disregard the statement could not remove the harmful effect in the minds of the jury, and such statement resulted in the rendition of an improper verdict and judgment, and the court’s failure to grant it a new trial was error.

The argument complained of is as follows:

“Now, one other thing, Mr. Billy misunderstood his fine doctor up at Carthage again. He said the doctor said he was able to go back to work so far as the operation is concerned. He did so far as the operation was concerned, and he admitted twice this week and no disrespect, I think he’s a fine doctor, but both times he has appeared here in this Court this week, he’s admitted he missed the diagnosis and even went to the extent of operating and got in there and found—
“MR. HUNT: Please the Court, we object to stating what this witness may have done in some other case, prejudicial. We ask that the jury be instructed to disregard it.
“MR. FULMER: I join in that. I shouldn’t have said that in the previous trial.
“THE COURT: I instruct the gentlemen not to consider that statement.
“And, I beg you not to consider it. That was a slip and I didn’t mean it.”

One of the erroneous diagnoses of appellant’s medical witness, Dr. Johnson, that ap-pellee’s counsel referred to in the part of his argument to the jury, here objected to, was in another case.

Appellant cites Southwestern Greyhound Lines, Inc. v. Dickson, 149 Tex. 599, 236 S.W.2d 115; Robbins v. Wynne (Tex.Com.App.), 44 S.W.2d 946.

We do not believe the Dickson case is in point. In that case the argument complained of contained a lengthy oration filled with a highly personal violent attack upon two of the witnesses which was highly in flammatory and prejudicial. One of the witnesses was a doctor and the court said the argument was “quite susceptible of the interpretation that the witness was unfaithful to his high profession and even a person of inhuman instincts.” The argument here is not of such nature. It is obvious the argument here complained of was not a personal or violent attack upon Dr. Johnson or to the effect that he was unfaithful to his profession. In fact, counsel referred to him as “a fine doctor.” The argument was not such as to be considered inflammatory. The opinion in the case of Robbins v. Wynne, supra, was written in 1932. In respect to the Robbins case, it has been held in Associates Investment Company v. Lenz, 288 S.W.2d 857 (Tex.Civ.App., 1956, n. w. h.) that “the rule as to reversible error in regard to jury argument therein given is no longer applicable. Rules 434, 503, Texas Rules of Civil Procedure.”

In Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953) it was said that: “The rule applied by the Court of Civil Appeals that a reversal should occur unless the court can say that the argument had no effect on the verdict has not been the controlling rule since the adoption of rules 434 and 503, Texas Rules of Civil Procedure. Cases decided prior to the adoption of the Rules have little value as precedents because they were decided under a rule which required a reversal if the court entertained any doubt of the harmful effect of the argument.”

The only conceivable effect of such argument would have been to persuade the jury that Dr. Johnson was not infallible in his judgment. In this respect, it added little, if anything, to Dr. Johnson’s testimony in this case that he was mistaken in diagnosing Whittaker’s condition as appendicitis and operated on him {or it. In view of Dr. Johnson’s admission of this erroneous diagnosis in the present case, part of the statement of counsel was correct.

Except where they are inherently prejudicial, objectionable statements in argument are generally deemed cured where they are promptly withdrawn or corrected by counsel. This is especially true where the action is accompanied by an apology and by an appropriate instruction. 56 Tex.Jur. 2d, Sec. 322, page 683.

Considering the admission of the doctor that he had mistaken the diagnosis on Whittaker and operated for appendicitis; that pursuant to appellant’s objection and at its request, the court immediately instructed the jury to not consider the statement of appellee’s counsel; that appellee’s counsel at the time apologized and also joined the appellant in his motion for the court to instruct the jury not to consider his statement in regard to the doctor’s testimony in the other trial, and from the record as a whole, we do not regard the improper argument here complained of as being beyond correction by means of a proper instruction. Travelers Insurance Company v. Broadnax, 365 S.W.2d 683 (Tex.Civ.App., Texarkana, 1963, n. w. h.).

It unquestionably appears that the argument of counsel for the appellee was improper. Nevertheless, before a judgment is reversed because of argument of counsel, two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause, apd probably did cause, the rendition of an improper judgment in the case. Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App., Tyler, 1964, writ ref. n. r. e.); Aultman v. Dallas Railway & Terminal Co., supra; Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.Sup., 1964).

We have been compelled to examine the entire record, and in the light of the whole record, we do not think the argument was such as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

Appellant next complains by its points of error Nos. 22 and 24 of appellee’s attorney’s argument on the failure of appellant to call Dr. Mahon as a witness. The record reflects appellee submitted himself to Dr. Mahon for a physical examination at the request of the appellant. The appellee so testified to the jury without objection. Ap-pellee further testified without objection about a rather detailed examination given him by Dr. Mahon. Dr. Johnson informed the jury that Dr. Mahon was an “A—1 orthopedist, a good man.” The jury knew they had not heard any testimony from Dr. Mahon or any report he may have made read to them. Therefore, the jury was not informed of anything that they did not already know.

Since Dr. Mahon, who at appellant’s request had examined appellee apparently a short time after his injury, was not offered as a witness for either party, counsel for appellee was entitled to call the jury’s attention to the fact that the doctor did not testify. We therefore conclude the argument was not improper. Meyer v. Great American Indemnity Company, supra; Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 167, 68 A.L.R.2d 1062 (1957); Rodman Supply Co. v. Jones, 370 S.W.2d 951 (Tex.Civ.App., Amarillo, 1963, n. w. h.); Western Fire & Indemnity Company v. Evans, 368 S.W.2d 114, 115 (Tex.Civ.App., Amarillo, 1963, n. w. h.).

The other points of error not discussed in this opinion have been duly considered and deemed not to reveal any reversible error. Accordingly, they are each overruled.

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