author: GREENHILL, Justice.

text:
    Waggoner CARR, Attorney General of the State of Texas, Petitioner, v. Oliver RADKEY et al., Respondents.
    No. A-10554.
    Supreme Court of Texas.
    July 28, 1965.
    Rehearing Denied Oct. 6, 1965.

      Waggoner Carr, Atty. Gen., Austin, J. Arthur Sandlin, Asst. Atty. Gen., for petitioner.
    Arthur P. Bagby and John C. Foshee, Austin, John E. Allen, Alpine, J. C. Hinsley, T. B. Kellum, Austin, for respondents.
   GREENHILL, Justice.

This is a will contest. Upon a finding by the jury that Miss Hattie Hewlett did not have testamentary capacity, the trial court denied probate to her holographic wills of April 17 and December 28, 1936. The only serious contest was and is over the instrument of December 28, 1936. Except for procedural problems later noticed, this opinion will deal only with the December 28 will.

The State appealed on the ground that it (and those aligned with it in support of the will) had not been given a fair trial because of the exclusion of what they regarded as their most important evidence, the testimony of Dr. Sam Hoerster, an expert in mental illnesses. The evidence which was excluded was Dr. Hoerster’s opinion, in answer to a hypothetical question, as to whether Miss Hewlett, when she wrote her will, had sufficient ability to understand the business in which she was engaged, the effect of her acts in making the will, realized what she was doing, knew her people and relatives, and knew the property she owned. Also excluded was his answer to a question as to whether Miss Hewlett wrote the will during a lucid interval. Outside the hearing of the jury, in completing a bill of exceptions, Dr. Hoerster answered both questions in such a way as to support the probate of the will.

The Court of Civil Appeals did not pass on whether it was error to exclude Dr. Hoerster’s testimony. The majority of that court was of the opinion that the error, if any, in the exclusion of the evidence was not harmful because of other evidence given by Dr. Hoerster. 384 S.W.2d 736 (1964). The dissenting justice was of the opinion that it was error to exclude the evidence and that its exclusion was harmful. 384 S.W.2d at 744.

Miss Hewlett wrote the will when she was 62 years of age, while in the Brown Rest Home in Austin. Before she became mentally ill, she had supported herself and had been in charge of the safety deposit boxes at the American National Bank in Austin. She lived close to the university’s campus. She had made investments in Austin real estate, some of them relatively close to the time of her mental illness, which proved to be profitable. Her estate was appraised at $240,000 upon her death in 1960.

The instrument of December 28, offered as her last will, is set out in the opinion of the Court of Civil Appeals. 384 S.W.2d at 738-739. The jury found it to have been written in her own handwriting. A few weeks before December 28, 1936, she had been taken against her will to the Brown Rest Home and confined in a solitary room without any legal form of commitment or finding of lack of mental capacity. There is nothing in the will itself to evidence any mental illness or insanity. It is in proper form. Without in any manner here attempting to construe the will, it may be said that in general it creates a trust for the benefit of five named nieces and nephews and their issue for a period of time with remainder to be used for five scholarships: in law, music, business administration, education and home economics for worthy students of The University of Texas. Because of this latter charitable bequest, the Attorney General is in the case in defense of the will.

Miss Hewlett died in 1960, some 23 years after the execution of the will of December 28, 1936. She spent several years of that period of time in the Brown Rest Home. She had very few visitors during these 23 years; and because of the great lapse of time since 1936 when she executed the instrument, the witnesses had difficulty in remembering with accuracy how she acted about the time of the execution of the instrument. The proprietor, a Mr. Bert Brown, had lost “his book” which covered this period. It is fair to say, however, that Mr. and Mrs. Brown who operated the rest home, as well as some others, gave testimony which would clearly support a jury finding that Miss Hewlett did not have testamentary capacity at the time she wrote the instrument. As will be later discussed, there was evidence that Miss Hewlett was subsequently declared by the County Judge to be non compos mentis on January 18, 1937; and a guardian was appointed for her at that time. The admission of this evidence is the subject of a point of error.

The testimony of Dr. Hoerster, not objected to, was that from the symptoms described, Miss Hewlett was suffering from a mental illness which would cause her to be diagnosed as a manic depressive. Such a person has periods of great stimulation, the manic period. During such periods she would, according to the Browns, talk or jabber continuously, tear the wallpaper off the wall, tear her clothes, hide her food, beat on the wall, and the like. In the periods of depression, she would sit silently, sometimes on the floor, and refuse to talk or eat. There were also periods when Miss Hewlett “was very nice.” She would be taken to a picture show or for a ride in an automobile. In 1939, she accompanied the Browns on an automobile trip through eight states.

The periods of mania and depression suffered by Miss Hewlett made relevant testimony as to (1) whether people suffering with such mental illness have periods of remission, and (2) whether Miss Hewlett was in such a period when she executed the instrument on December 28, 1936. Dr. Hoerster explained that “a remission is a period of absence of the illness, when the illness goes away, apparently. It actually is not — does not necessarily mean a cure, but it is a time when the illness is not active.”

We will assume that there is evidence to support a jury finding of want of capacity to execute the will, and we need not set out any more of that evidence. We are concerned mainly with whether there was harmful error in excluding Dr. Hoer-ster’s testimony as to his opinion about Miss Hewlett’s condition at the time she executed her will.

Mrs. Radkey, wife of respondent Dr. Oliver Radkey, was permitted to testify over objection of the Assistant Attorney General, that based on her personal observation of Miss Hewlett on January 12, 1937, Miss Hewlett was not mentally capable of knowing and understanding the nature of her acts. This testimony was brought out by counsel for Dr. Radkey, a contestant of the probate of the will.

The next witness, S. P. Kinser, an Austin real estate man, over objection, expressed the conclusion that Miss Hewlett was not of sound mind, and for that reason he would be afraid of any title to real estate conveyed by her. The nurse at Brown’s Rest Home, Mrs. Dearing, testified without objection that in her opinion Miss Hewlett was of unsound mind in December, 1936. Mrs. Dearing was the sister of Mr. Brown, operator of the rest home.

These opinions were expressed to the jury before Dr. Hoerster was called to the stand. He had not seen and did not know Miss Hewlett. He, however, had received specialized training in mental diseases and psychiatry and had been with the State Hospital System since 1950. As Superintendent of the Austin State Hospital since 1955, he had under him some 50 physicians on a full-time basis. The hospital admitted about 5,000 patients a year. They had on hand about 3,000 at the time of trial. He actively participated in treating the patients. His qualifications as an expert witness in the field of mental illnesses were not challenged.

After being so qualified, Dr. Hoerster was asked a hypothetical question. As a predicate to the question, counsel reviewed the evidence about Miss Hewlett, including the fact that she had been taken to a rest home in the latter part of 1936. He was told of her periods of excitement and depression. He was told that her brother, David Hewlett, had died, and that she was informed of his death on December 28, 1936, the same day on which her will is dated; she showed no emotion. Her will was read to Dr. Hoerster. Assuming these facts, he was asked whether Miss Hewlett, when she wrote the will, “had sufficient ability to understand the business in which she was engaged, the effects of her acts in making the will, realized what she was doing, knew her people and her relatives, and knew the property she owned.” He was not permitted to answer. The court also sustained objections to other questions breaking down the larger question into various elements.

The doctor was then asked if he had an opinion as to whether she was of unsound mind. He testified that he did think she was of unsound mind in that she had a mental illness “which fluctuates between one end of the 'mood scale to the other. In other words, that she had periods of elation or manic behavior and periods of depression; and that her thinking probably went along with her mood, and that at times would be quite rational, and at other times, not; but this manic depressive — I would consider her to have had a manic depressive illness, psychosis.” He continued, “I think she was mentally ill, but was of this type that would have fluctuations in her mood, where she would be quite lucid and then sometimes would be quite depressed and then at other times be elated.”

He was asked whether the writing would indicate that she was experiencing a lucid interval when she wrote the will. He was not permitted to answer.

Outside of the hearing of the jury, Dr. Hoerster testified that in his opinion Hattie Hewlett, when she wrote the will, did have sufficient ability to understand the business in which she was engaged, the effect of her act in making the will, realized what she was doing, knew her people and her relatives, the property she owned, and the objects of her bounty. He also testified that in his opinion the will was written during a period of remission.

Thereafter, Mrs. Brown was permitted to testify that in her opinion Miss Hewlett was not mentally capable on December 28 of knowing the nature and effects of her acts.

Respondents contend that the error, if any, in excluding the answers of the doctor was harmless because he gave other testimony which furnished the answers to the questions. That testimony was admitted in the following context:

After the court sustained respondents’ objections, Dr. Hoerster was asked if he thought a person in Miss Hewlett’s condition was of sound mind when she wrote such a document. He said it depended upon the definition of “unsound mind.” He thought such a person was mentally ill and hence was of unsound mind; that such a person would have the periods of elation and depression; that sometimes such a person would have a good memory and be quite lucid. This was followed by the question of whether the writing of the document would indicate a lucid interval. Obj ection to this was sustained.

Then the doctor was again asked if in his opinion a person in Miss Hewlett’s condition was of sound mind. He said, “I think she was of unsound mind in my definition of it.” He repeated that in many cases such persons might at times be able to understand the nature of their business, the nature of their property, and the natural objects of their bounty in the disposition of their property. He did not mean, he said, that everyone of unsound mind had all of these facets; and that such a person could at some time, though not necessarily all the time, be mentally capable of knowing and understanding his relationship to his next of kin. Then counsel again put the hypothetical question to the doctor as to whether the subject of the question “was not mentally capable to understand the business in which she was engaged on or about the 28th of December, 1936.” Objection was sustained. He was asked if “she was mentally capable and had sufficient mind to understand the effect of her acts in making a will.” Objection was sustained. Objection was also sustained as to whether she might have been between a manic and a depressed state so as to he mentally capable of knowing or understanding the nature and effect of the business in which she was engaged.

We hold that the exclusion of the evidence was error. There has been confusion in the Texas cases as to what questions may properly he asked of lay or expert witnesses in a contest regarding the capacity of a testator or a grantor. The conflicts are recognized in able articles by Stout, Some Problems in the Trial of a Will Contest, 7 Baylor Law Review 121 (1955), and Marschall, Opinion Testimony on Testamentary Capacity, 25 Texas Bar Journal 385 (May 1962). The confusion stems from a failure to distinguish (1) testimony relating purely to legal capacity, a question involving legal definitions, and (2) testimony relating to mental condition.

In Pigg v. State, 43 Tex. 108 (1875), it was held to he error to exclude a physician’s opinion as to whether the defendant was of sound or unsound mind. In Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314 (1891), the problem was whether the grantor had capacity to execute a deed. Witnesses were permitted to testify whether they thought the grantor was of sound or unsound mind. Then a lay witness who had observed the grantor was asked whether in her opinion the grantor had “mental capacity sufficient to understand the nature and effect of such deed.” The question was answered affirmatively. This Court held that it was correct for the testimony to have been allowed, saying:

“When the issue is one upon which the witness may properly state his opinion, he may do so, notwithstanding his answer embraces the very issue on trial. * * * The right to express an opinion includes the right to give it as to the degree or extent of the mental infirmity, and to apply it to the particular matter in controversy.” 16 S.W. 314, 315.

Then came Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64 (1895). In that will contest, the question was asked whether in the witness’s opinion, Lizzie Brown had sufficient mental capacity to make and declare her last will and testament. Justice Stayton for this Court held that the question was a proper one; and the cause was remanded for a new trial. Upon the subsequent appeal, Justice Stayton no longer being on the Court, this Court overruled its former opinion. It was held that the question was one of the legal capacity of Lizzie Brown to execute the will. The Court emphasized that a witness, lay or expert, might have a different opinion or understanding as to what legal capacity to perform the act was. The Court concluded that “no witness [lay or expert] * * * will be permitted over proper objection, to state his opinion of the capacity of the testator * * * when such opinion assumes the shape and has the effect of being an opinion upon the legal capacity of the party in question.” 31 S.W. 621, 628. The Court in Brown v. Mitchell did not cite or refer to Scalf v. Collin County.

This Court recently followed Brown v. Mitchell when the witness was asked a question involving the legal definition of an insane delusion. A doctor was not permitted to answer a question as to whether the testatrix was under an insane delusion when she executed her will. Lindley v. Lindley, 384 S.W.2d 676 (Tex.Sup.1964). The Court reasoned that “a doctor’s concept of what constitutes an insane delusion may be quite different from the legal concept.” The question involved the application of a legal definition. This same reasoning was applied in Knight v. Edwards, 153 Tex. 170, 264 S.W.2d 692, 696. See also Jackson v. Watson, 10 S.W.2d 977 (Tex.Com.App.1928), where it was held that the witness should not have been permitted to testify that in his opinion “the said Jackson was mentally competent to execute the deed * * Here again the testimony related to legal competence and involved a definition of competence. The difficulty has come when the question is one concerning the mental capacity or condition of the testator, and the question is one not involving a legal definition.

After Brown v. Mitchell, there were several cases by the Courts of Civil Appeals which fell to both sides of the matter: whether the questions involved a legal definition of capacity or were directed to mental condition. Then came the case which caused much of the difficulty. It was Pickering v. Harris, 23 S.W.2d 316 (1930), an opinion of the Commission of Appeals which was not adopted by this Court. In that suit to cancel a deed, various witnesses were asked: did the grantor understand that he was transferring the property; did he have mental capacity sufficient to understand the nature and extent of the transaction; and whether he knew the nature and extent of the property he owned. It was held that under Brown v. Mitchell, these questions were improper. The Commission of Appeals said that these questions were permissible under Scalf v. Collin County by this Court, set out above; but it stated that this Court, while not mentioning the Scalf case in Brown v. Mitchell, had overruled Scalf in Brown v. Mitchell. The Commission in Pickering v. Harris said these questions (1) invaded the province of the jury, and (2) amounted to legal conclusions. While the witness in Brown v. Mitchell was asked the single legal conclusion involving a legal definition, the court in Pickering v. Harris said the same thing could not be done by asking several fragmented questions all amounting to the same legal conclusion.

After Brown v. Mitchell, this Court cited the Scalf opinion with approval in Houston & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808, 810 (1908). And in an able opinion by Mr. Justice Norvell, it is stated that the Commission of Appeals was wrong in Pickering v. Harris in concluding that Brown v. Mitchell overruled Scalf. Adamson v. Burgle, Tex.Civ.App., 186 S.W.2d 388, 400. This Court refused the application for writ of error in Adamson v. Burgle for want of merit. The particular questions held to be admissible in Adamson v. Burgle were asked of a doctor: would the testatrix “have been able to know anything intelligently about any business transactions she might have had? * * * Would she have been able * * * to make an estimate of the type and character and the amount of her estate and those who would naturally be entitled to her bounty?”

We now examine the reasons given in Pickering v. Harris for excluding the testimony: it invades the province of the jury, calls for an answer to the ultimate question, and constitutes a conclusion.

In Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332 (1938), a doctor in a workmen’s compensation case was asked if the disabling condition of the plaintiff was permanent; whether the workman would thereafter be able to procure and retain employment. The objection was that this question [and the answer thereto in the workman’s favor] invaded the province of the jury; that it asked the ultimate question to be answered by the jury. Brown v. Mitchell and Pickering v. Harris were cited. Judge Smedley for this Court said those cases were limited to the questions involving legal conclusions [legal definitions]. Whether a person is totally incapacitated, the Court said, was a question of fact. And Pickering v. Harris was construed as being limited to the narrow question of a legal conclusion as to the ultimate issue in the case.

It is understandable that the bench and bar have been unable to reconcile these holdings. A. R. Stout in his article previously referred to, Some Problems in the Trial of a Will Contest, 7 Baylor Law Review 121 (1955), recognizes the conflicts and concludes that Adamson v. Burgle is the better view, “but such cases as Pickering v. Harris, supra, should not be overlooked and it must be remembered that Brown v. Mitchell has never been cited by the Supreme Court in a will case, on the direct question involved, since the day it was written * * [Lindley v. Lindley, supra, had not then been written.]

The question of a witness, lay or expert, being allowed to answer questions regarding the capacity of a testator has been given considerable attention by persons regarded as authorities in the field. They have considered and discussed the objections to the admission of the testimony which fall into these general categories: (1) it invades the province of the jury; (2) the witness is asked to answer a question the jury must answer, or the ultimate issue; and (3) the witness, lay or expert, may not have in mind the same definition of capacity to execute an instrument as is contained in the legal definition of capacity. These textwriters and authorities are almost uniform in their criticism of using “invasion of the province of the jury” as a reason for excluding testimony in this area. The function of the witness is to give information which will be helpful to the jury. The province of the jury is to believe or disbelieve, weigh evidence, and to evaluate it. The witness could not invade that province if he wanted to. Wigmore says the phrase “is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric.” 7 Wigmore, Evidence 17 (3d ed. 1940). McCormick says the phrase if taken literally is absurd. It suggests that the jury may forego independent analysis and bow too readily to the opinion of an expert or otherwise influential witness. McCormick, Evidence 25-28 (1954). This indicates a mistrust of the mentality and capacity of jurors to decide matters for themselves. See Norvell, Invasion of the Province of the Jury, 31 Texas Law Review 731 (1953).

Regarding the second objection, that the juror is asked the ultimate question the jury must answer, Mr. Justice Smedley held for this Court in Federal Underwriters Exchange v. Cost, 132 Tex. 299, 123 S.W.2d 332 (1938), discussed above, that there are many occasions on which a witness may be asked the same question the jury must answer. For example as in Cost, a doctor was permitted to give his opinion as to whether an incapacity of a workman would be permanent. Again, an automobile intersection case may turn on whether a party ran a red light, failed to stop at a sign, gave a particular signal, and the like. In all of these, witnesses may testify, if they know, that the person did or did not do these things; and the jury is then asked the same question. Many authorities would permit questions even on an ultimate issue. See McCormick, The Opinion Rule and Expert Testimony, 23 Texas Law Review 109, 115 (1945); Slough, Testamentary Capacity, Evidentiary Aspects, 36 Texas Law Review 1, 11 (1957); Ladd, Expert Testimony, 5 Vanderbilt Law Review 414, 423 (1952); 7 Wigmore, Evidence 18 (3d ed. 1940). It is when the question involves a legal definition and a conclusion based on the definition that Brown v. Mitchell and Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964) are offended.

It is the third objection listed above which is the basis for the holdings of Brown v. Mitchell and Lindley v. Lindley. A witness may not be asked whether a person had the [legal] capacity to execute a deed, or was acting under an insane delusion when he executed his will, because these concepts involve legal definitions. As stated in Lindley, the doctor’s or lay witness’s definition or understanding of capacity to perform the act in a legal manner may be different from the legal standard. 2 McCormick and Ray, Texas Law of Evidence 256, § 1421 (2d ed. 1956).

It is our conclusion that the jury in cases such as these should be given all relevant and competent testimony with regard to the mental condition of the testatrix; and in our opinion, competent evidence about her mental condition and mental ability or lack of it which does not involve legal definitions, legal tests, or pure questions of law should be admitted. This is in accord with the modern trend in this field. Slough, Testamentary Capacity: Evidentiary Aspects, 36 Texas Law Review 1 (1957); Ladd, Expert Testimony, 5 Vanderbilt Law Review 414, 423 (1952); Norvell, Invasion of the Province of the Jury, 31 Texas Law Review 731, 740, 742 (1953); Model Code of Evidence rule 401 (1942); Grismore v. Consolidated Products, 232 Iowa 328, 5 N.W.2d 646 (1942).

This has also been the trend of the better cases in Texas. In Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941), several witnesses were asked if they thought the testator was of sound or unsound mind. Objection was sustained. This Court reversed, saying that “[t]he courts below failed * * * to observe the distinction between evidence bearing on the mental condition of the testator and that bearing on his legal capacity to make a will.”

There are several well-considered opinions of the Courts of Civil Appeals which follow this view. See Fox v. Lewis, 344 S.W.2d 731 (wr. ref., n. r. e., 1961), in which the questions permitted were whether grantor could understand the nature and extent of her property, the effect of the disposition of it, and whether she had the mental capacity to understand the nature and extent of her property. See also McDaniel v. Willis, 157 S.W.2d 672 (Tex.Civ.App. wr. ref., 1941) and Adamson v. Burgle, 186 S.W.2d 388 (Tex.Civ.App. wr. ref., w. o. m., 1945).

As stated, the case which has caused the difficulty in the Texas cases is Pickering v. Harris, 23 S.W.2d 316 (Tex.Com.App.1930). It is out of line with the Supreme Court case of Scalf v. Collin County by this Court, and it is out of line with the better opinions of the Courts of Civil Appeals of recent times in which this Court has denied writ of error. It was criticized shortly after it was written in a casenote by Byron G. Skelton, 8 Texas Law Review 589; and it was criticized by Dean McCormick in his article in 23 Texas Law Review 109, 120 n. 35. While attempts have been made to distinguish and explain the Pickering case, we are of the opinion that it is incorrectly decided and should be overruled. It is accordingly overruled. Our holding is that a witness may not be asked whether a testator had the mental capacity to make and publish a will because, under Brown v. Mitchell, whether a person has mental capacity to execute a will involves a legal definition and a legal test. A witness may be asked, assuming he knows or is a properly qualified expert, whether the testator knew or had the capacity to know the objects of his bounty, the nature of the transaction in which he was engaged, the nature and extent of his estate, and similar questions.

The particular question here was whether Miss Hewlett, when she wrote her will, had sufficient ability to understand the business in which she was engaged, the effect of her acts in making a will, realized what she was doing, and knew the property she owned. The trial court erred in excluding the question and the answer thereto.

We are also of the opinion that the error was harmful. While Dr. Hoerster, the only medically trained expert tendered by either party, did get in bits of testimony here and there, he was never permitted to develop his testimony, the Petitioner’s side of the lawsuit, after he had answered that in his opinion Miss Hewlett was of unsound mind. At least three of Respondents’ witnesses were perjnitted to testify that in their opinion Miss Hewlett was of unsound mind, giving their reasons. Mrs. Radkey had been permitted to testify that in her opinion the testatrix was not mentally capable of knowing or understanding her acts. Similarly, Mrs. Brown was permitted to testify that Miss Hewlett was not mentally capable of knowing the nature and effect of her acts. The Petitioner was entitled to meet that evidence with Dr. Hoerster’s testimony.

It was also error to exclude the testimony of Dr. Hoerster .that in his opinion the will was executed during a period of remission in Miss Hewlett’s mental illness. He stated what he meant by a period of remission, and no legal test or definition was involved. This error was likewise harmful.

A Sensible Holographic Will Is Not Self-Proving

The State contends that the sensible holographic will of Miss Hewlett proves itself; and that, as a matter of law, it should have been admitted to probate. There is a statement in 94 C.J.S. Wills § 63, p. 769, which says, “When an insane person writes his own will in his natural manner, and the provisions are sensible, proper, and judicious, the will itself proves that it was written during a lucid interval.” The text in 57 Am.Jur. 102, Wills § 96, states that there are cases which say that wise and judicious provisions in a will, which is shown to have been drawn by the testator himself, create a presumption, even in the case of persons habitually insane, that the will was executed during a lucid interval. The cases cited are from Louisiana.

This line of cases and others were cited with approval by two Texas Courts of Civil Appeals: McCannon v. McCannon, 2 S.W.2d 942, 944 (wr. dism., 1928); and Reiche v. Williams, 183 S.W.2d 587, 592 (1944). The latter case in its discussion quotes with approval this statement, “The strongest and best proof that can arise as to a lucid interval is that which arises from the act itself of making the will. * * * Here is a rational act, rationally done. * * * [and] where you are able completely to establish that, the law does not require you to go further.”

In the Reiche case quoted from just above, there was evidence that the testator had capacity to execute the will, and the jury so found. The Court of Civil Appeals went further, however, and said that the validity of the will was established as a matter of law, using the language above quoted. It also said the evidence to the contrary amounted to no evidence. This Court refused the application for writ of error for want of merit with an opinion which said that the court below had reached a correct result based on the jury verdict; but it disagreed that the will was established as a matter of law. 143 Tex. 365, 185 S.W.2d 420 (1945).

We agree with the Court of Civil Appeals in Reiche v. Williams to the extent that a rational and sensible holographic will, prepared by a testator or testatrix, is evidence of the fact that the will was written during a lucid interval. We cannot agree, however, that the will establishes itself as a matter of law. Reiche v. Williams, 143 Tex. 365, 185 S.W.2d 420 (1945); In re Price’s Estate, 375 S.W.2d 900 (Tex. 1964). The legislature in 1955, long after this will was executed, made provision for self-proof of holographic wills. 17A Vernon’s Ann.Texas Civil Statutes, Probate Code, § 60. Obviously the will in question does not come within that section of the new Probate Code. Our holding is that the will, even though sensible, does not prove itself.

Admissibility of County Court’s Subsequent Judgment That Miss Hewlett Was Non Compos Mentis

The will in question is dated December 28, 1936. Some three weeks thereafter, at the request of J. T. Hewlett, cousin of the testatrix, the County Court of Travis County appointed J. T. Hewlett guardian of the person and estate of Miss Hewlett. This action was taken without a jury, and the order recites that the action was taken for the protection of Miss Hewlett and her property. It contained a finding that she was of unsound mind, but it did not purport to authorize any commitment or confinement of Miss Hewlett. She was at that time already being held against her will in solitary confinement at the Brown Rest Home. An attorney ad litem was appointed for her seven days before the adjudication. He filed a general denial on her behalf and appeared for her.

At the beginning of this trial, the Respondents offered in evidence this action of the County Court. It was excluded. At the close of the trial, it was reoffered and was admitted on the ground that it had been invited: that Respondents had a right to show the order because of questions and statements by the State’s counsel which indicated that Miss Hewlett had been wrongfully held in the Brown Rest Home, and had not been held under a court order, thus reflecting prejudicially upon Respondents.

While there is authority in some other jurisdictions that a subsequent adjudication that a person is of unsound mind is admissible in evidence on the question of testamentary capacity, the Texas cases are uniformly to the effect that this evidence is not admissible. Uecker v. Zuercher, 54 Tex.Civ.App. 289, 118 S.W. 149 (1909, writ ref.); Black v. Boyer, 21 S.W.2d 1094 (Tex.Civ.App.1929, writ dism.); Wright v. Matthews, 130 S.W.2d 413 (Tex.Civ.App.1939, writ dism., judg. corr.); Joy v. Joy, 156 S.W.2d 547 (Tex.Civ.App.1941, wr. ref., w. o. m.).

The inquiry before the court and jury was the mental capacity of Miss Hewlett. Her kin who had her committed and the Browns were not on trial. No damages were being sought for wrongful detention. Since the evidence in the subsequent guardianship proceedings was not admissible, it should not have been admitted at all.

It is undisputed that Miss Hewlett was not judicially committed. It has been held that before a person can be committed indefinitely to a state hospital, there must be a jury verdict not only that the person is of unsound mind, but that his mental condition is such as to render it necessary that he be placed under restraint. Hatton v. State Board of Control, 146 Tex. 160, 204 S.W.2d 390 (1947). It is also undisputed that Miss Hewlett was taken and held without her consent. She had been at the Brown Home at the behest of her brother a brief period before and had managed to “escape.” She returned to her home. On the pretext of giving her a ride home from the grocery store, one member of the Brown Home staff drove the car while another slipped into the seat on the outside and pinned Miss Hewlett in the car. Then she was driven to the Home. Mrs. Brown, who was in the car, testified that Miss Hewlett, when she realized what was happening, hollered, “Help! Help! I am being kidnapped.”

. The evidence of this occurrence and the facts regarding her stay at the Home, as well as her conduct in the Home, were admissible, and the State had the right to ask questions and comment on the answers. Upon another trial, the Court will, of course, have the power to control the extent of the questions and comments. But the evidence as to the guardianship proceedings and the finding that Miss Hewlett was of unsound mind after the will was written is not admissible under the Texas cases set out above.

There are other points of error. We have examined them and are convinced that they will probably not arise upon a retrial of this case.

The judgments of the courts below are reversed and the case is remanded to the district court for a new trial.

GRIFFIN, J., not sitting.

      . It has been argued by many of the authorities set out above that any difference of definition could be brought out by proper cross examination; and so the question and answer should be allowed if it would be helpful to the jury. Nevertheless, this Court’s position is stated in Brown v. Mitchell and followed in Lindley.

      . M. O. Slough was Dean of the School of Law, the University of Kansas.

      . Mason Ladd is Dean of the School of Law of the University of Iowa.

      . Succession of Schmidt, 219 La. 675, 53 So.2d 834; Kingsbury v. Whitaker, 32 La.Ann. 1055, 36 Am.Rep. 278.

      . Milton D. Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 Tale Law Journal 271, 286; M. O. Slough, Testamentary Capacity: Evidentiary Aspects, 36 Texas Law Review 1, 17; and Annotations, 7 A.L.R. 568, 569, and 68 A.L.R. 1309, 1311.


source: Caselaw Access Project

author: WALKER, Justice.

license: Public Domain

text:
    STATE of Texas et al., Petitioners, v. A. E. WILEMON et al., Respondents.
    No. A-10589.
    Supreme Court of Texas.
    July 7, 1965.
    Rehearing Denied Oct. 6, 1965.
    Henry Wade, Dist.. Atty., Dallas, Jerome E. Dawkins, Don Stodghill, Asst. Dist. Attys., for petitioners.
    Bonney & Wade, Robert A. Stripling, Jr., Dallas, for respondents.
   WALKER, Justice.

This is an eminent domain proceeding in which the Court of Civil Appeals has held that a statement made by the trial judge during argument of counsel constituted a prejudicial comment on the weight of the evidence. The judgment of the County-Court at Law was reversed and the cause remanded for a new trial. 385 S.W.2d 573. We have concluded that the error asserted was not properly preserved in the trial court.

The proceeding was instituted by the State of Texas and County of Dallas, petitioners, to condemn an easement for highway purposes upon and across slightly less than one acre of land, which is about one-half of the tract owned by A. E. Wilemon et al, respondents. The special commissioners fixed the damages at $7,000.00, and the amount of the award was deposited by petitioners and withdrawn by respondents. Respondents perfected their appeal to the County Court at Law and admitted petitioners’ right to condemn. The jury found that the value of the property condemned was $1,215.00, and that there was no diminution in the value of the remainder of respondents’ tract as a result of the taking. Judgment was entered on the verdict vesting in petitioners an easement on the land described in the petition and decreeing that they recover from respondents the $5,785.00 difference between the award of the special commissioners and the damages assessed by the jury.

The comment of the trial judge which led to a reversal by the Court of Civil Appeals related to the testimony of Joseph R. Smith. Smith was the only witness offered by petitioners who gave any evidence bearing on the value issues. He stated that in his opinion the property condemned was worth $1,215.00, and that the remainder of respondents’ tract was not damaged by the taking. The jury obviously accepted his testimony and based its findings thereon.

On direct examination, Smith testified that there are three generally accepted methods of determining the value of real estate, and that each has its place depending upon the type of property being appraised. These are: (1) the income approach which, according to the witness, is highly desirable where the net income can be computed over a period of time with such certainty that it partakes of the nature of an annuity; (2) the cost approach, which the witness stated could not properly be used in the present case; and (3) the market value approach, i.e. the price for which similar property suitable for the same use might be purchased. Smith stated that he had used the third method, and testified in detail regarding sales of comparable land in the area on which his appraisal was based.

At the time of the taking, the land was leased by respondents to a tenant who used the same for a wrecking yard. The rent was $75.00 per month, but the other terms of the lease are not disclosed by the record. Smith was asked on cross examination whether the land taken would be worth only $1,215.00 if it was rented for $75.00 a month. He again stated that before an opinion as to value could be based on income, it was necessary to have some assurance that the income would continue over a relatively long period of time. The witness also explained that in this instance the disparity between the contract rent and the amount for which similar property could .be leased was so great that it was unlikely the property would continue to yield $75.00 a month after the end of the current lease. For that reason he disregarded the monthly rental received by respondents in making his appraisal.

In arguing the case to the jury, counsel for respondents attempted to discredit Smith’s valuation because he had not considered the $75.00 monthly rental. His argument on this point and the ensuing objection, ruling and exception were as follows :

“MR. BONNEY [counsel for respondents] : * * * Another thing that Mr. Smith would never agree to and never admit was that his method— one of his recognized methods of appraisal using the rental from a property to determine its value would have anything to do with the value of this property—
“MR. ROBERTSON [counsel for petitioners] : That is not correct, Your Honor, and we object to any statement of this nature which is outside the record. Mr. Smith did not so testify. He testified that the income approach was a proper method to use to appraise property if you had a tenant like Kress or somebody like that.
“THE COURT: Well, I thought Mr. Smith explained his position with regard to this rental matter, and I will sustain Counsel’s objection.
“MR. BONNEY: Note our exception.”

Respondents contend that the quoted statement by the trial judge was an improper comment on the weight of the evidence. They say it advised the jury that Smith’s testimony was credible, or at least that the judge believed the witness and accepted his explanation. The remark that the court thought Mr. Smith explained his position with regard to the rental matter was a simple and accurate statement of fact, and in itself could not constitute a comment on the weight of the evidence. It must be' viewed in context, however, and when so considered we are inclined to believe that respondents’ basic contention is sound. Their counsel was attacking the witness because he had refused to consider the monthly rental in appraising the property. When the court stated that he thought Smith had explained his position and in the same breath ruled that the argument could not be made, the jury might have understood this to mean that the witness properly gave no weight to the contract rent in determining value.

There is reason to doubt that the remarks were so interpreted at the time by anyone in the courtroom, and we are satisfied that they could have been rendered harmless if the construction now urged by respondents had been called to the attention of the trial judge. It is not likely that the members of the jury would have allowed the statement to influence them after they were instructed to disregard the same, reminded that they were the sole judges of the credibility of the witnesses and the weight to be given their testimony, and advised that the court did not mean to suggest that the position taken by Smith was sound or unsound or that his explanation of that position was satisfactory or unsatisfactory.

As pointed out by the Court of Civil Appeals, an objection to improper conduct or comment on the part of the court in the trial of the case generally must be made at the time of the occurrence if the error is to be preserved for appellate review unless the conduct or comment is of a character that cannot be rendered harmless by proper instruction. See Rule 373, Texas Rules of Civil Procedure; 3 Tex.Jur.2d, Appeal and Error § 151, and authorities there cited. “The policy underlying our rules is that for most procedural errors to be considered on appeal the defendant must by timely objection give the trial judge a chance to correct his errors.” Lewis v. Texas Employers’ Ins. Ass’n., 151 Tex. 95, 246 S.W.2d 599. Here respondents excepted to the sustaining of the objection to the argument of their counsel, but they did not object to the statement made by the court on the ground that it constituted a comment on the weight of the evidence. Any right they may have had to complain of the remarks of the court was thus waived, and the ruling on the argument was not brought forward on appeal.

Respondents had a number of other points of error in the Court of Civil Appeals. We have considered those which present questions of law and agree with the intermediate court that none of them affords a basis for reversing the judgment of the trial court. The judgment of the Court of Civil Appeals is accordingly reversed, and that of the trial court is affirmed.


author: CALVERT, Chief Justice. SMITH, Justice

text:
    Ellen D. BAY et al., Petitioners, v. John W. MECOM, Trustee, et al., Respondents.
    No. A-10697.
    Supreme Court of Texas.
    July 21, 1965.
    Rehearing Denied Oct. 6, 1965.
    Overton B. Banks, Houston, for petitioners.
    J. L. LyBrand, Orgain, Bell & Tucker, Beaumont, for respondent Sun Oil Co.
    Fouts, Moore, Williams & Caldwell, Joe E. Coleman, Houston, with above firm. C. B. Cain, Liberty, for respondents Mecom, Weaver & Freeport Sulphur Co.
   CALVERT, Chief Justice.

Ellen D. Bay, Overton B. Banks and W. F. Hooks, petitioners, sought to appeal from two judgments of the District Court for the 75th Judicial District, Liberty County. The judgments were entered in causes numbered 16,695 and 16,695-A on the docket of the trial court. The Court of Civil Appeals dismissed the appeals of all three petitioners in both causes. 387 S.W.2d 482. We sever the two causes, and affirm the judgment of the Court of Civil Appeals in cause No. 16,695-A. In cause No. 16,695 we affirm the judgment of dismissal of the appeal of Ellen D. Bay, but reverse the judgment of dismissal of the appeal of Banks and Hooks. We remand cause No. 16,695 to the Court of Civil Appeals with directions to reinstate the appeal of Banks and Hooks on the docket for a determination of the appeal on its merits.

The Court of Civil Appeals dismissed the appeals of all three petitioners in both causes because petitioners filed in that court a single transcript containing copies of all papers and orders relating to both causes and the separate judgments entered therein. In support of its action the Court of Civil Appeals cited Mohr v. Cochran, Tex.Civ.App., 49 S.W. 677 (1899), writ dismissed, and Missouri K. & T. Ry. Co. of Texas v. Davison, Tex.Civ.App., 55 S.W. 188 (1900). We do not consider those cases as controlling. The Court of Civil Appeals did not dismiss the appeal in Mohr v. Cochran; it struck the transcript and affirmed on certificate. This Court thereafter dismissed application for writ of error. Writ of error was not sought in Missouri, K. & T. Ry Co. v. Davison, and the opinion of the Court of Civil Appeals in that case clearly indicates an obvious misinterpretation by the court of Mohr v. Cochran. Neither is the action of the Court of Civil Appeals in this case supported by Chambers v. Fisk, 9 Tex. 261 (1852), cited by respondents. In that case the appellant sought to perfect an appeal from three different judgments by filing a single appeal bond, and the appeal was dismissed for want of a sufficient bond. That is not the situation in this case. While not precisely in point on the facts, the clear holding of this Court in Metropolitan Trust Co. v. Farmers’ & Merchants’ Nat. Bank, 89 Tex. 329, 34 S.W. 736 (1896), is that an appeal is not to be dismissed merely because more than one final judgment is appealed from and embraced in the appeal.

Rule 1 dictates that a liberal construction be given the Rules of Civil Procedure “to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” Rule 376 requires the clerk of a trial court to prepare a transcript under the direction of the appellant, and Rule 370 enlists the cooperation of the appellant in including in the transcript only those documents and orders necessary to a full and fair consideration of the questions to be decided on the appeal. We find nothing in the Rules, however, which requires or authorizes the dismissal of an appeal, otherwise validly perfected, merely because the transcript includes matters unrelated to the appeal or matters relating to two causes and two judgments. Appellate review of trial court judgments disposing of the substantive rights of litigants is a valuable right and should not be denied when under a liberal interpretation of the Rules it is possible to give it. If any one or more of the three petitioners had a right to appeal and perfected one from the judgments in the two causes, or from either of them, they are entitled to have the appeal considered and decided on its merits.

The transcript filed in the Court of Civil Appeals contains four hundred and fifty-five pages. No good purpose would be served by analyzing it in detail in this opinion. It reflects that a suit by Ellen Bay against Mecom, Sun Oil Company, Weaver, Freeport Sulphur Company, Banks and Hooks, numbered 16,695 on the docket of the trial court, became three suits by virtue of orders of severance entered by that court. The three suits were numbered 16,695, 16,695-A and 16,695-B on the trial court’s docket. Final judgments, of one type or another, were rendered in all three suits. While use of erroneous cause numbers on some of the papers filed and orders and judgments entered has created a confusion difficult to unravel, a careful analysis of the transcript leads us to the following conclusions: (1) Banks and Hooks had no right of appeal from the only final judgments entered in cause No. 16,-695-A. (2) Ellen Bay had a right of appeal from the judgment entered in cause No. 16,695-A, but she did not perfect her appeal therefrom. (3) Ellen Bay had no right of appeal from the judgment entered in cause No. 16,695, and her effort to perfect an appeal therefrom is abortive. (4) Banks and Hooks had a right of appeal from the judgment entered in cause No. 16,695, and they duly perfected their appeal therefrom.

Banks and Hooks seek to have this Court adjudicate the merits of their appeal. We cannot do so. When a Court of Civil Appeals erroneously dismisses an appeal, this Court can only affirm the judgment of dismissal or reverse the judgment and order the case reinstated on the docket of the Court of Civil Appeals for a determination of the merits of the appeal. Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944); Frank v. Tatum, 87 Tex. 204, 25 S.W. 409 (1894). See also Ward v. Scarborough, Tex.Com.App., 236 S.W. 441 (1922).

Based upon the conclusions enumerated, we render judgment as hereinabove set out. Costs in this Court are adjudged one-half to petitioners and one-half to respondents Me-com, Weaver and Freeport Sulphur Company.

SMITH, J., dissenting.

SMITH, Justice

(dissenting).

I respectfully dissent. The Court of Civil Appeals in its opinion stated: “We dispose of this appeal by sustaining all appellees’ motions to dismiss same.” John W. Me-com, Trustee, Carnes Weaver and Free-port Sulphur Company moved that the transcript be stricken and that the appeal be dismissed. Their prayer was: “Appellees * * * pray that the Transcript filed herein by the Appellees be stricken and that Appellants’ said appeal be dismissed.” Although the judgment does not expressly strike the transcript, the legal effect of the action of the Court of Civil Appeals was to do so. Without a transcript, Banks and Hooks were left with nothing but their brief. The brief confirms the allegations of Me-com et al. in their motion to strike and dismiss. The points of error in the Court of Civil Appeals are absolutely meaningless unless the appeal is good as against Sun Oil Company. The Court has affirmed the action of the Court in sustaining the motion to dismiss filed by Sun Oil Company. The Court should not compel the Court of Civil Appeals to reinstate the appeal since that court will not be able to follow a pointless brief. Banks and Hooks admitted in oral argument that their cause was hopeless unless they are able to proceed against the Sun Oil Company. My examination of the record leads me to conclude that no sound or legal reason has been advanced which requires this Court to order the reinstatement of the appeal of Banks and Hooks. Their only cause of action is against Sun Oil Company. The sun has set on their appeal. I would affirm the judgment of the Court of Civil Appeals.

      . All references to Rules are to Texas Rules of Civil Procedure.


author: PER CURIAM.

text:
    TEXAS POWER & LIGHT COMPANY, Petitioner, v. F. M. HOLDER et al., Respondents.
    No. A-10645.
    Supreme Court of Texas.
    July 14, 1965.
    Rehearing Denied Oct. 6, 1965.
    Burford, Rybum & Ford, Wayne Pearson and Robert E. Burns, Dallas, for petitioner.
    Howard S. Smith, Sulphur Springs, Joe H. Tonahill, Jasper, Jackson, Walker, Win-stead, Cantwell & Miller, L. P. Bickel, Dallas, for respondents.
   PER CURIAM.

It is the opinion of the Court that the judgments of the trial court and the Court of Civil Appeals are correct. 385 S.W.2d 873. This action is not, however, to be taken as an approval of the dictum in the opinion of the Court of Civil Appeals that lines along a street or highway must be twenty-two feet above the ground. The application is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: GREEN, Chief Justice.

text:
    The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Frank J. DEPOISTER, Appellee.
    No. 90.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 26, 1965.

      Adams, Graham, Lewis & Graham, John E. Lewis, Harlingen, for appellant.
    William E. York, McAllen, Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   GREEN, Chief Justice.

This is a workmen’s conpensation case tried to a jury, resulting in a judgment for appellee, Frank J. Depoister, against appellant The Aetna Casualty & Surety Company, for total and permanent incapacity.

The parties stipulated below that appellee sustained accidental bodily injuries on or about August 5, 1961, while working in the course of his employment for T. E. Mercer Trucking Co., and that all jurisdictional prerequisites to the maintenance of this suit had been complied with. Appellee claimed total and permanent disability as a result of a back injury, and a left, direct, inguinal hernia. In answer to special issues, the jury'found that the accidental injury was the producing cause of (1) total incapacity, (2) beginning August 5, 1961, which was (3) permanent; (4) no partial incapacity; (8) another employee of the same class worked at least 210 days of the year prior to August 5, 1961; (9) his average daily wage rate was $22.00; (10) $80.00 per week is just and fair to the parties as an average weekly wage of Depoister.

The undisputed evidence showed that ap-pellee had been subjected to two operations prior to the accident, as follows: a double hernia operation in 1955, and a cervical operation on his neck by reason of a neck injury occurring February 21, 1959, both being compensable. The jury found (12) that his incapacity was not solely caused by his previous injuries, but (13-14) that they had contributed 12% to his incapacity; that (15-16) the incapacity was not solely caused by nor contributed to by his ulcer condition.

Appellee’s motion to disregard the answers to Issues 13 and 14, that the prior injuries had contributed 12% to his incapacity, was granted, and judgment was rendered for appellee in accordance with the remainder of the verdict, payable in a lump sum as stipulated.

In its First Point, appellant contends that the trial court erred in granting appellee’s motion in limine, and instructing appellant’s counsel that they would not be permitted to show the beneficial effects of surgery, in instructing the jury not to consider the beneficial effects of surgery, and precluding counsel for appellant to argue such effects before the jury.

In this connection, it is the position of appellant that it admitted liability for ap-pellee’s claim of injury before the Industrial Accident Board and tendered an operation to appellee, in compliance with the requirements as stated by the Supreme Court in Texas Employers Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519, and Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, and that although the Board failed to order either a medical examination or an operation, evidence of the beneficial effects of surgery on appellee was admissible. Appellee contends (1) that appellant did not make either an unequivocal admission of liability or an unequivocal tender of operation for either of the alleged injuries while the matter was before the Bogrd; (2) that no such offer was timely made in accordance with Board’s rules; and (3) that appellant, while the matter was before the Board, expressly refused to provide an operation for the inguinal hernia, and (4) that appellee was not put to a choice of having or refusing an operation, since the Board refused to order one.

Appellee’s claim before the Industrial Accident Board was set for hearing on November 14, 1961. On November 6, 1961, counsel for appellee made written demand to the Board for surgical operation on ap-pellee for hernia, accompanying same with written report of Dr. James Albert Brown recommending such operation. Thereafter, on November 14, 1961, the date of the hearing, appellant delivered to the Board its letter, listing the style and number of appel-lee’s claim there, and reading in part as follows:

“STATUS OF CASE: Compensation has been paid in the amount of $350.00 covering period from 8-6-61 to 10 — 15— 61 comprising 10 weeks. NATURE AND EXTENT OF DISABILITY is one of the issues involved in this claim.
“EVIDENCE: Kindly allow us to submit the following to the Honorable Board:
“1. Your carrier herein admits liability.
“2. In line with Article 8306 Section E and the Shelton and Seelbach cases, carrier herewith tenders any and every surgical procedure which is calculated or could be calculated to effect a cure for any and all conditions which claimant might or could have which surgery will aid or cure.
“3. Your carrier further demands any and all indicated surgical procedures be performed on claimant herein which are calculated to aid, be beneficial and/or effect a cure.
“4. Your carrier herein further requests the Board to have claimant examined by Dr. of their choice to determine what surgery is indicated and required and make all orders and findings necessary as per the statute and the law to necessarily complete this transaction and record.”

Attached was a medical report of Dr. William H. Hagan, applicable only to ap-pellee’s claimed back injury, and being entirely negative as to any operation.

Appellee’s attorney, Mr. McDermott, testified that while the matter was pending before the Board, he requested of appellant’s duly authorized agent an operation to remedy appellee’s hernia, and that such operation was refused by appellant, and that thereafter appellant continued in its refusal. This testimony was not controverted.

On November 27, 1961, the Board entered its award, which included the provision “that demand for surgery is denied.”

Appellee’s motion in limine was to preclude any reference to benefits appellee might obtain from surgery upon appellee for a ruptured disc, and also for the hernia condition. The motion was sustained, and appellant’s offered evidence thereon was excluded by the trial court. The bill of exceptions taken out of the presence of the jury discloses that appellee’s doctor, Brown, if permitted would have testified that in his opinion appellee would have been benefited by surgery.

The offer or demand of appellant for an operation was not timely made. Rule 5.20 of the Industrial Accident Board, and before us in connection with appellee’s written demand for an operation for hernia, provides that written demand for surgical operation must be filed with the Board at least seven calendar days immediately prior to the hearing. Appellant’s letter was received by the Board on the day of the hearing.

In Texas Employers’ Insurance Association v. Curry, Tex.Civ.App., 347 S.W.2d 334, writ ref., the letter from insurer demanding an operation was received by the Board on the date set for the hearing. The Court held Rule 5.20 to be reasonable and valid, and said:

“We therefore hold that since appellant’s written demand for surgery was not timely filed with the Industrial Accident Board under its Rule 5.20, the Board had ample authority to refuse appellant’s demand for surgical operation upon appellee. * * *
“Under the record in this cause medical testimony asserting the curative effects of surgery upon a herniated disc was not admissible in evidence in this cause over the objections made by appellee.”

See, also, Standard Insurance Company v. Biggers, Tex.Civ.App., 352 S.W.2d 290.

Although appellant’s letter to the Board contained the statement that it admits liability, there was nothing to show what it admitted liability for. At the time of the letter, it was evidently denying liability to appellee for his right to compensation, for it had quit paying him compensation three weeks earlier, and the letter so shows. The opinion of appellant’s doctor, as contained in a report accompanying the letter set out above was that appellee’s claim of back injury was entirely subjective, that there is no organic basis for his back trouble, that a myelogram showed no cause for the continued back trouble, and that there was no evidence of any permanent disability. Appellant refused appellee’s request for a hernia operation, made direct to appellant by appellee while the matter was before the Board. Appellant’s letter to the Board nowhere assumed unequivocally liability for the costs of an operation, including doctors’, hospital, medical and convalescent care, as prescribed by the statute, and liability for the consequences of the operation. No copy of the letter was sent appellee or his lawyer, and no tender of an expense free operation was made by appellant to appel-lee while the matter was pending before the Board, or at any other time.

Our State Supreme Court, in Hardware Mutual Casualty Co. v. Courtney, 363 S.W. 2d 427, in affirming the trial court and the Court of Civil Appeals, and in holding that under the facts presented evidence of the beneficial effects of surgery offered by appellant insurance carrier in a workmen’s compensation case was not admissible, discussed the holdings theretofore made in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521; Texas Employers’ Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519; and Cook v. City of Austin, 161 Tex. 294, 340 S.W.2d 482. We quote from the opinion in Courtney as follows:

“These cases then point out that the first thing the insurer must do to make the proffered testimony admissible is to admit liability. The cases have not said what liability must be admitted.
“While we would not attempt to prescribe the form for such admission, to remove the question of liability, the insurer would have to admit unequivocally the substance of the following: a compensable injury to the employee in the scope of employment; liability for the injury for which a surgical operation would or should prove beneficial to the employee; liability for the cost of the operation, including doctors, hospital, medical, and convalescent care as prescribed by the statute and the Board; and liability for the consequences of the operation, within the provisions of the workmen’s compensation act. Compare Texas Employers Ins. Ass’n v. Musick (Tex.Civ.App. 1961, no writ), 349 S.W.2d 619.
“The carrier here fell short of these requirements. First and last, its position was that the claimant had been overpaid and that claimant had no residual disability. In between, it did not unequivocally offer surgery and full responsibility therefor. Neither the insurer nor its doctors recommended surgery while her case was before the Board. It made an offer to pay compensation during the period beginning when she appeared for her myelogram and continuing until she was released by the doctor. There was nothing said about liability thereafter.
“The insurer in its briefs say that this, or at least some of this, is implied in its letters, and that, if not, it would be estopped to deny liability. It is our holding that the tender and admission of liability must not be left to implication and estoppel.”

In the present case, the Board refused to order an operation. Thus, appellee was not put to an election to have surgery or refuse such. He was never called upon by the Board either to accept or to reject an operation under any of the provisions of Art. 8306, Vernon’s Ann.Tex.Civ.St., and consequently never refused an operation. There was no evidence before the Board that an operation would effect a cure, or materially and beneficially improve appellee’s condition. In fact the only evidence before the Board, the doctor’s report attached to appellant’s letter, was to the contrary.

For the reasons stated, the evidence offered by appellant as to beneficial effects of an operation was inadmissible. Consolidated Underwriters v. Foster, Tex.Civ.App., 383 S.W.2d 829, writ ref., n. r. e.

Appellant’s First Point is overruled.

Appellant’s Second and Third points allege error in the trial court’s definition in the charge to the jury of the terms “total incapacity” and “partial incapacity.”

The definitions given were as follows:

“By the term ‘Total incapacity,’ as used in th'is charge, does not imply an absolute incapacity to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to both obtain and retain employment doing the usual tasks of a workman is regarded as being totally incapa-cited.”

The italics are ours, to indicate the portion of the definition objectionable to appellant.

“By the term ‘Partial incapacity’ as used in this charge, is meant any incapacity less than ‘total incapacity’ as defined herein.”

Appellee argues that the appellant failed to preserve any error to the complaint alleged in these two points because the assignments in the motion for new trial were too general to apprise the trial court of the alleged error attempted to be raised. The assignments in the motion for new trial on which the points are based read as follows:

“II.
“The error of the court in overruling Defendants’ objections to the Court’s charge which objections are hereby incorporated herein by reference and adopted as though the same were set forth herein verbatim.
ifc ^ ^ * *
“X.
•“The Court errored in submitting its definition of ‘total disability’ for the reason that when same is taken in connection with the definition erroneously given by the Court of partial disability same does not correctly encompass the elements that can be considered and should be considered by a jury in determining partial incapacity and by the definition thus given in the Court’s comments upon the weight of the evidence and amounts to an instruction by the Court to the effect that one who is able to perform labor of a less remunerative class .which would result in a depreciation or reduction of his earning capacity, would not be partially incapacitated when the true definition of partial incapacity is in substance that one who can perform labor of a less remunerative class which would result in a deduction or depreciation in his earning capacity is only partially incapacitated and thus the Defendant was prejudiced by the Court’s comment and was deprived of an opportunity to have the issue of partial incapacity truly determined by the jury.”

We have copied the above Paragraph X of appellant’s motion for a new trial in order to show that nowhere therein was the trial court advised that appellant contended he erred in including in the definition of total disability, otherwise standard and unobjectionable, as agreed by appellant, the repetition of the phrase “doing the usual tasks of a workman”, as heretofore stated. We have read all of the objections made by appellant to these definitions, and nowhere in such objections does appellant state to the trial court that it was the repetition of this phrase that was objectionable to him in the definition of total incapacity. As stated in McDonald v. New York Central Mutual Fire Insurance Co., Tex.Sup.Ct., 380 S.W. 2d 545, “[i]t (the objection to the court’s charge) certainly does not as clearly state the nature of the error as the insurer does in its brief filed here * *

There was no separate assignment that the court erred in its definition of partial incapacity.

In Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, in discussing Rules 320, 321, 322 and 374, Texas Rules of Civil Procedure, governing the forms of assignments of error in motions for new trial which become the basis of points of error on appeal, the Court, in a per curiam opinion, said:

“While Rule 1 states that the rules are to be given a liberal construction to the end that a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law may be obtained with expedition and dispatch and without unnecessary expense, Rules 320, 321, 322 and 374 were deliberately adopted to serve a useful purpose. There must be a substantial compliance with the provisions of those rules if a litigant is to have his points of error based thereon considered by an appellate court. * * *
“An assignment of error in a motion for new trial which merely directs the trial judge to scan all of a party’s objections to the charge of the court is legally insufficient to require or to justify consideration of a point of error based thereon. * * *
“Assignments of error in a motion for new trial which do no more than adopt from or refer in general terms to other motions, etc. do not ‘specify’, or ‘distinctly set forth’, or ‘clearly identify’ a ground of error.”

Clearly, under the authority of Wagner v. Foster, supra, appellant’s assignment II contained in his motion is insufficient. Assignment X appears to be a complaint concerning the definition of “total incapacity” (the motion states disability) as a comment on the weight of the evidence, and amounts to an instruction concerning what is partial incapacity. The assignment does not set forth, as ground for new trial, that the trial court erred in its definition of partial incapacity.

It is our opinion that appellant’s motion for new trial did not present allegations of error in the definition of total incapacity, or of partial incapacity, in such a manner that the same might be clearly identified and understood by the trial court as required by Rules 320, 321 and 322, T.R.C.P., and for such reason appellant is not entitled to present the question as raised by its Second and Third Points. Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, supra; Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, writ ref., n. r. e.

Appellant in his Fourth Point contends that the trial court deprived it of an offset by committing error in setting aside the jury’s answers to Special Issues Nos. 13 and 14, appellant stating that such findings were supported by the evidence.

The jury found, in answer to these issues, that plaintiff’s prior injuries of February 21, 1959, and of 1955 (13) contributed to incapacity to plaintiff (14) to the extent of 12%. The jury also found in answer to Issue 12 that appellee’s incapacity was not caused solely by his previous injuries. As stated above, the court sustained appel-lee’s motion to disregard findings No. 13 and 14 and rendered judgment in accordance with the remainder of the verdict.

We feel that the court erred in sustaining appellee’s motion to disregard such answers to Issues 13 and 14. A careful study of the statement of facts shows sufficient evidence to support such findings. However, we find that such error did not lead to the entry of an improper judgment, and becomes immaterial in view of the other answers of the jury. Rule 434, T.R.C.P.

The evidence is uncontradicted that appel-lee did not work 210 days in the same or similar employment during the year preceding August 5, 1961. The jury found in answer to Special Issue No. 8 that another employee of the same class of appellee had worked at least 210 days of such period in the same or similar employment in the same or in a neighboring place; in answer to No. 9, it found that the average daily wage of such employee was $22.00 per day. According to the formula as established in Associated Indemnity Corporation v. McGrew, Tex.Com.App., 138 Tex. 583, 160 S.W.2d 912, this results in an average weekly wage rate of $126.92.

The jury further found that a just and fair average weekly wage rate for both parties was $80.00. However, an employee is not entitled to judgment under the “just and fair” rate, being subdivision 3 of Sec. 1 of Art. 8309, until he has shown that subdivisions 1 and 2 of said Article have no application. Griffin v. Superior Ins. Co., Tex.Sup.Ct., 338 S.W.2d 415. Nevertheless, the same ultimate result is reached whether we use, as a basis of judgment, an average weekly wage of $80.00 per week, or $126.92.

100% less 12% = 88%
88% of $80.00 = $70.40
60% of $70.40 = $42.24

$42.24 being in excess of $35.00 compensation rate, the judgment was properly calculated at $35.00 per week for 401 weeks.

This formula is based on the provisions of Article 8306, Sec. 10, V.A.T.S., as amended in 1957, which reads as follows:

“While the incapacity for work resulting from the injury is total, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of his average weekly wages, but not more than Thirty-five Dollars ($35) nor less than Nine Dollars ($9) and in no case shall the period covered by such compensation be greater than four hundred and one (401) weeks from the date of the injury.”

Appellant contends that by virtue of the jury’s answers to Issues 13 and 14, its liability to appellee was reduced by 12% under Article 8306, Sec. 12c, which 12% should be deducted from the maximum -recovery of $35.00 per week. We have found no authority supporting this latter contention.

We feel that our conclusion that the 12% contribution to the present incapacity of appellee by the prior injuries should be deducted from the average weekly wages before computing the compensation rate is supported by the following authorities: Associated Indemnity Corp. v. McGrew, Tex.Com.App., 138 Tex. 583, 160 S.W.2d 912; Texas Employers Insurance Ass’n v. Upshaw, Tex.Civ.App., 329 S.W.2d 144, writ ref., n. r. e.; Traders & General Insurance Co., v. Robinson, Tex.Civ.App., 222 S.W.2d 266, writ ref.

Appellant’s Fourth Point, in so far as it claims to present reversible error, is overruled.

Appellant’s Fifth Point was not briefed, and we consider same as having been waived. Weatherred v. Kiker, Tex. Civ.App., 357 S.W.2d 182, writ ref., n. r. e.

His Sixth Point alleges that the jury’s answers to Special Issues 1, 2 and 3, finding total and permanent incapacity, beginning from the date of the accident, are so against the greater weight and preponderance of the credible evidence as to be manifestly wrong and unjust. Here again we have a similar problem as existed as to Points 2 and 3, concerning insufficiency of the assignment in the motion for new trial to preserve this point. The only assignment to which this point can be referrable reads:

“The answers of the jury to Special Issues Nos. 1, 2, 3, 4, 8, 9, 10, 11, 12, 15, 16 and 17, and each of them, is without support in the evidence; or alternatively, such answers of such jury and each of them is not supported by a preponderance of the evidence, or alternatively, such answers and each of them are so against the greater weight and degree of the credible evidence as to be manifestly unjust and wrong.”

This is a general assignment, and this Court would be “in error in reversing and remanding this case for another trial only on a general assignment of error.” Texas Employers Ins. Ass’n v. Hawkins, Tex.Sup. Ct., 369 S.W.2d 305. See, also, Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 368; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

However, we have thoroughly read and studied the 765 page statement of facts, and find that there was evidence and sufficient evidence to sustain the answer of the jury to Issues 1, 2 and 3, and that such answers were not against the great weight and preponderance of the evidence.

Appellee, a truck driver, was injured August 5, 1961, while unloading pipe weighing 210 pounds per joint from his truck onto a pipe rack. He slipped and fell about to 4 feet as the pipe started rolling toward him on the catwalk of a drilling rig, falling spread out, hitting-flat on his back, hip and left leg. He was then taken first to a hospital in Falfurrias, and thereafter to a hospital in Houston. He has since been treated by a number of doctors, some furnished by the company, and some employed by appellee. The medical testimony differs radically as to the diagnosis and prognosis concerning appellee’s physical condition. Suffice it to say that there was medical evidence that appellee, due to the accident of August 5, 1961, was suffering from a ruptured disc at L4 and a left unguinal hernia, both of which were disabling and permanent and which would disqualify ap-pellee from the performance of regular, sustained manual labor.

Appellant’s argument in its brief is based largely on appellee’s work record since the accident, contending that appellee could not be totally and permanently injured under the evidence, since he had been employed doing hard physical labor during most of the 27 months before the accident and the trial. Testimony from appellee in explanation was that he was compelled to work due to economic necessity of supporting himself and his family, and the work he was doing was lighter than he was accustomed to.

As stated in Texas State Highway Dept. v. Kinsler, Tex.Civ.App., 230 S.W.2d 364, writ ref., quoted in Employers Mutual Liability Ins. Co. of Wis. v. Gallardo, Tex. Civ.App., 359 S.W.2d 933, 935, writ ref., n. r. e.:

“We think it too well settled to require discussion that the fact that an injured employee continued to work and make money after his injury is not a bar to recovery for total and permanent disability if the evidence supports a finding of a court or jury that he is in fact so disabled.”

See, also, Muro v. Houston First & Casualty Ins. Co., Tex.Civ.App., 329 S.W.2d 326, writ ref., n. r. e.; Trinity Universal Insurance Co. v. Scott, Tex.Civ.App., 342 S.W.2d 348, writ ref., n. r. e.; Zurich Insurance Company v. Graham, Tex.Civ.App., 335 S.W.2d 673, writ ref., n. r. e.

Appellant’s Sixth Point is overruled.

In answer to Special Issues 15, 16 17, the jury found that appellee’s incapacity was not solely caused by his ulcer illness and subsequent operation, that such ulcer illness and operation did not contribute to his incapacity, and that the percentage of contribution was none. By its Seventh, Eight and Ninth Points, appellant alleges error in that such answers were not supported by the evidence, and were against the great weight and preponderance of the evidence.

The facts show that in the spring of 1963, appellee became bothered with ulcers, that he was hospitalized for about two months and was operated on in October, 1963. Dr. Brown testified there was no relation between the ulcer condition and the compen-sable injuries suffered by appellee to his back and hernia in the accident of August 5, 1961.

The ulcer condition was a non-compen-sable illness, and not one to which Art. 8306, Sec. 12c, supra, applies. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744.

The jury’s answers were supported by ample evidence, and were not against the great weight and preponderance of the evidence, and these points are overruled.

Appellant’s Tenth Point is that the trial court erred in preventing the defendant from producing evidence and from cross-examining plaintiff in connection with prior claims of total and permanent disability after defendant had requested permission to do so for purposes of impeachment.

Appellant was not denied the right to cross-examine appellee or the doctors concerning the extent of his prior injuries of 1955 and 1959. In fact, both parties examined and cross-examined appellee and the doctors extensively on such claimed injuries.

Appellant in its statement in its brief says that it desired to offer plaintiff’s petition in a prior damage suit involving the accident heretofore mentioned which occurred in 1959 to show that appellee was there claiming he was totally and permanently injured. The mere fact that appellee filed the suit, the amount of money sued for, the claim in the petition of total and permanent injury, (which the Supreme Court holds is a prediction, not a statement of facts), settlement and the amount thereof, were not admissible for impeachment, and were irrelevant as to any other issue in this trial. Hartford Accident & Indemnity Co. v. McCardell, Tex.Sup.Ct., 369 S.W.2d 331, 338. Appellee did not in his testimony ■ deny the facts of such prior injuries, or the operation on his neck, or any other of the facts alleged as to his injuries. Appellant points out no statements of fact either in the pleadings offered or in its bill of exceptions inconsistent with any testimony given by appellee, and we have failed to find any. We recognize the rule that pleadings in other actions which contained statements of facts inconsistent with the party’s present position are receivable in evidence as admissions. St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 747. The trial court’s error in excluding the prior pleadings where there was testimony inconsistent with allegations was held harmless in that cause, the jury having found that the prior injuries did contribute to the present incapacity of plaintiff. Even if we did find inconsistencies, the same situation would be present here.

We hold (1) that no error is shown to have been committed by the court in excluding from evidence the petition filed by appellee in the prior suit, and in excluding the evidence contained in appellant’s bill taken in the absence of the jury, much of which evidence was not objected to by appellee, and (2) that no reversible error is shown in the rulings of the trial court on this matter.

Appellant’s Eleventh Point reads:

“The Court erred in permitting the witness, Dr. Oates, to testify concerning his findings and conclusions based upon readings and sounds emitted from an electromyography machine without having first required an introduction of such readings and sounds into evidence when same were available upon tape and thus depriving the Defendant, Appellant herein, of the opportunity to cross examine in connection therewith, said evidence being hearsay without the introduction of such sounds and readings which were available.”

Dr. Oates, used by appellee as a medical witness, qualified as an expert in the diagnosing and treatment of cases involving ruptured discs. One of the machines used by him in his practice is the electromyo-graph, which is somewhat similar to and works on the principle of an electrocardiograph, or an electroencephalograph, and is called, for brevity, E.M.G. It is a means of picking up the messages sent by the brain to a muscle in the form of an electric current, and amplifying it so that it can be seen on an oscilloscope screen (similar to a TV screen), and the electric impulses can be heard on a loud speaker. If there be total damage to the nerve, the electric impulse is shown by the E.M.G. to be blocked, and if partial damage be present, it will foe distorted; and one who is expert in such matters can see the abnormalities on the screen, and hear the impulses on a loud speaker. The findings on appellee’s examination were recorded on an electromagnetic tape, which could he heard and seen only when the tape is played back through the electromyograph machine.

While Dr. Oates was testifying concerning the manner of using the E.M.G. Machine in making tests on appellee, appellant objected to such evidence as follows:

“Mr. Graham: We will object to any testimony here concerning something done on or heard on something, some screen or something like that, which is not in evidence. We do not have an opportunity to review it or repute it or cross examine in connection with it.”

The court overruled such objection. Thereafter, and before any evidence had been given by the witness concerning his use of E.M.G. on appellee, the following occurred:

“Q. What does it look like on the screen you have?
A. When the muscle is completely relaxed and not moving, we have simply a base line, a beam flashing back and forth * * *.
Mr. Graham: Your Honor, could we have a running objection to this, concerning something which the Doctor, saw, which is not in evidence ?
The Court: I will give you your exception.”

This was the only running bill of exception which appellant was given to any of the testimony of Dr. Oates, and is what appellant in his brief indicates is the subject matter of his point of error.

Thereafter, the witness proceeded to testify through 83 pages of the statement of facts, on direct and cross-examination, without further objection on this score concerning his examination and diagnosis of appel-lee, based in part on the EMG studies, and confirmed by his studies of the x-ray pictures and myelogram already in evidence, and of his physical examination of appellee.

Unlike x-ray pictures, which should be produced in court before testimony is admissible as to what they show (Drake v. Walls, Tex.Civ.App., 348 S.W.2d 62, writ ref., n. r. e.), the production of the tape recordings in court would have been meaningless unless the electromyograph machine was also present, for as stated above, the findings could only be heard and seen when the tape is played back through the machine. There was no showing made that this machine was available, and no request made by appellant that it be produced in court. Appellant’s counsel cross-examined witness at great length concerning the testimony he had given on direct examination and there is no indication presented that he was in any way handicapped by the absence of the tapes.

It is clear from the record that Dr. Oates was competent to give his medical opinion, not only from the findings of the EMG performed on appellee, but he was competent to give his opinion based on the x-rays and myelogram studies which had theretofore been introduced into evidence, and on his physical examination of appellee. The sum and substance of his testimony is to the effect that the EMG study confirmed the clinical findings of a ruptured disc at the L-4 level, and of nerve root involvement which the witness found based .on his physical examination of appellee, which findings were also confirmed by the myelographic studies theretofore introduced in evidence, and by the x-rays. Except for the EMG studies, similar testimony had been given by Dr. Brown and Dr. Tyner.

We believe that no error was committed by the trial court in permitting the testimony concerning the EMG tests to be introduced over the objections as made. Lantex Construction Company v. Lejsal, Tex.Civ.App., 315 S.W.2d 177, writ ref., n. r. e. We are convinced, that since the testimony was merely cumulative of other evidence given by the same witness and by other qualified medical experts, there is no showing of any harm to appellant probably causing the entry of an improper judgment, and that no reversible error is presented by appellant’s Point No. Eleven. Rule 434, T.R.C.P.; Drake v. Walls, supra; Hess, Inc. v. Garcia, Tex.Civ.App., 358 S.W.2d 391; 4 Tex. Jur.2d, Appeal and Error, Civil, Sec. 941, pp. 566, et seq.

Appellant’s Eleventh Point is overruled.

Judgment affirmed.

        . T.E.I.A. v. Mallard, 143 Tex. 77, 182 S.W.2d 1000; T.E.I.A. v. Brock, Tex.Com.App., 36 S.W.2d 704.


author: RENFRO, Justice.

text:
    Ray REEDER, Appellant, v. Tim H. OSBORNE, Appellee.
    No. 16658.
    Court of Civil Appeals of Texas. Fort Worth.
    July 16, 1965.
    Rehearing Denied Sept. 17, 1965.
    Coleman & Whitten and Earl L. Coleman, Denton, for appellant.

      Stark & Davey and Gregory L. Underwood, Gainesville, for appellee.
   RENFRO, Justice.

Plaintiff Osborne and defendant Reeder both claimed they were entitled to the commission for sale of property by Stovall to Duffy. Both were licensed real estate brokers. In order that the trade might be consummated the parties agreed that the amount of the commission, $1,420.00, be placed in the hands of the Denton Real Estate Board. Upon the refusal of the Board to arbitrate, Osborne brought this suit against Reeder for the commission, or, in the alternative, for a reasonable value for his services. The Board paid the $1,420.00 into the registry of the court.

At the conclusion of the evidence the defendant moved for an instructed verdict. The motion was overruled.

The jury found: Hoyt Cole had a written contract from Stovall to sell the property; plaintiff had express or implied authority under the Cole listing to sell the property; plaintiff was a procuring cause of the sale and the sale would not have been made except for plaintiff’s efforts; Reeder accepted the benefits of work performed by Osborne after knowing that Duffy (the purchaser) had been secured as a prospect by Osborne; Osborne was entitled to $710.00 for “services rendered in the sale from Stovall to Duffy.”

The jury also found Reeder was a procuring cause of the sale from Stovall to Duffy.

Defendant moved for judgment, and moved that certain issues be disregarded and judgment entered for defendant.

The motions were overruled and judgment entered for plaintiff for the sum of $710.00.

In three points of error defendant contends, under the undisputed evidence, he was entitled to judgment as a matter of law.

On April 6, 1962, by written agreement, Stovall employed Hoyt Cole sole and exclusive agent, until July 6, 1962, to sell a 77 acre farm. John Monroe was a salesman associated with Cole. Monroe wrote the word “void” on the listing on or about July 6, 1962. Neither Cole nor Monroe ever secured a prospective purchaser and neither ever claimed any commission from anyone.

Plaintiff testified that prior to April, 1962, he and Monroe “worked on a number of farms up there that I have had listings on and tried to sell them between us”, and would share the commission.

Plaintiff testified Stovall contacted him in April or May about selling the farm, but told him Cole had the listing. Plaintiff did not contact either Cole or Monroe. He testified “when I got this prospect I started working on him. * * * we dickered back and forth there for a couple or three months.” He advertised the property by ad in the Gainesville paper dated July 25, 1962. Duffy contacted plaintiff as a result of the ad.

After the expiration of the Cole listing, Stovall, by written agreement, gave defendant Reeder the exclusive listing. Defendant’s contract with Stovall was executed July 21, 1962. Duffy contacted defendant in the latter part of August. After Duffy became interested, Stovall informed plaintiff that defendant had the listing.

Plaintiff, in September, prepared a contract of sale from Stovall to Duffy, but Stovall refused to sign the contract proffered by plaintiff.

Thereafter defendant helped Duffy secure a loan and the property was sold by Stovall to Duffy.

It was at Duffy’s request that the amount of the commission was placed in escrow.

There was no agreement between plaintiff and defendant at any time concerning the sale of the property, and at the time defendant secured the exclusive listing from Stov-all he did not know plaintiff was interested in procuring a purchaser for the farm. Plaintiff never talked with defendant concerning the Stovall-Duffy sale until shortly before defendant closed the deal between Stovall and Duffy.

The Real Estate License Act, Art. 6573a, § 28, Vernon’s Ann.Tex.Civ.St., provides no action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.

The salient facts are': Stovall never agreed in writing to pay plaintiff a commission. Neither Cole nor Monroe agreed in writing to pay plaintiff a commission nor did either, orally or in writing, agree to divide or share a commission with plaintiff.

Defendant never promised to pay plaintiff a commission.

Plaintiff testified he never talked with Cole or Monroe about the property in question. He merely assumed it would be all right with them if he did sell it for they had sold for each other in the past. Cole, called by plaintiff as a witness, testified it “would be infrequent” when they (Cole, Monroe, Osborne) worked on each other’s listings. There was no evidence of any standing agreement by Cole to pay plaintiff a commission for any Cole listing which plaintiff might sell.

We think the evidence falls far short of showing any agreement on the part of Cole or Monroe to pay or split a commission with plaintiff on sale of the property in question.

In Struller v. McGree, 374 S.W.2d 256 (San Antonio Civ.App., 1963, ref., n. r. e.), it was held: “Our Courts require a strict compliance with the terms of the Real Estate Dealers License Act if a broker is to use the courts for recovery of his fees or charges for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584. Since there is no written promise to pay a commission for sale of the 80 foot tract, Sec. 28 of this Act precludes appellee from recovering a commission for that sale, although she actually procured a purchaser under her verbal employment contract.”

Section 28 is generally construed literally. Thus, evidence of an executed oral contract or of services performed is not admissible to sustain a suit for brokerage fees. Landis v. W. H. Fuqua, Inc., 159 S.W.2d 228 (Amarillo Civ.App., 1942, ref.); McConnell v. Columbia Company, 326 S.W.2d 20 (Fort Worth Civ.App., 1959, ref., n. r. e.); Taylor v. Sellers, 348 S.W.2d 99 (Fort Worth Civ.App., 1961, no writ hist).

It is no help to plaintiff that the above statute is inapplicable to an agreement between real estate brokers to share a commission received by one of them for selling land, Warren v. White, 143 Tex. 407, 185 S.W.2d 718 (1945), for by plaintiff’s own evidence there was never any agreement by defendant, oral or written, to share a commission with plaintiff.

Plaintiff having failed to prove that he had a promise or agreement, or some memorandum thereof in writing, and having failed to prove that defendant promised to pay him a fee or split a commission, he failed, as a matter of law, under the undisputed material facts, to prove a cause of action against defendant.

The judgment of the trial court, in so far as it allows plaintiff recovery, is reversed and judgment rendered that plaintiff take nothing.

Reversed and rendered in part and in part affirmed.


author: WILSON, Justice.

text:
    Thelma ERIGAN et al., Appellants, v. SIRTEX OIL INDUSTRIES, INC., Appellee.
    No. 4406.
    Court of Civil Appeals of Texas. Waco.
    Sept. 2, 1965.
    Rehearing Denied Sept. 23, 1965.
    John A. Waller, Ralph Graham, Corpus Christi, for appellants.
    Pepos Dounson, San Antonio, Perry E. Burkett, Corpus Christi, for appellee.
   WILSON, Justice.

Whether a surface lease terminated by nonpayment of rental is the question in this case. The trial court granted appellee’s motion for instructed verdict, and rendered a declaratory judgment that it had not terminated. Lessor appeals.

The surface lease contract recited existence of an oil and gas lease, not in evidence, which described the same property. The surface lease provided:

“The term of this lease shall run concurrently and be coextensive with the life of said oil and gas mining lease, and this surface lease shall be deemed to have terminated when such oil and gas lease terminates under its own terms and limitations, unless lessee ’ herein elects to terminate this lease at an earlier date, which it is granted the express right to do.”

The annual rental for the first three years was paid in advance. The contract required subsequent $600 payments of annual rental on January 1 “of each year which lessee desires to keep this surface lease in full force and effect.” Annual rentals were paid to appellants, the ■ landowners, for over 15 years. Those due January 1, 1963 were not paid, but were later tendered.

Appellants’ position is that the annual payment each January 1st was essential to the continued existence of the lease, and failure to make the payment effected its termination. Appellee contends that some additional affirmative action by lessee evidencing intention to terminate was necessary. Its argument is that the “term” of the surface lease was concurrent with that of the oil and gas lease, which was not shown to have terminated; consequently the surface lease “term” continued.

We are not concerned with the “term” of the surface lease; nor with the rule, relied on by appellee, that the breach of a covenant to pay rent does not ordinarily work a forfeiture. Lessee is afforded an express election or option to terminate the surface lease before its term expires. The question is whether failure to pay rental constituted an exercise of that option under the provision that lessee “shall pay” to lessors $600 for “each year which lessee desires to keep this surface lease in full force and effect.”

The last quoted provision constitutes in itself the grant of a yearly option to lessee to continue the surface lease in effect during its maximum term, i. e., the “life” of the oil and gas lease. See 51 C.J.S. Landlord and Tenant § 91; III American Law of Real Property, Sec. 11.17; Thompson, Real Property, (Perm, ed.) Sec. 4569.

The provision as to the “term” of the surface lease, unless sooner terminated at lessee’s election, and the provision that lessee is given an option to extend or continue existence of the lease by an annual payment of rent are not inconsistent. The latter agreement is not a mere covenant for payment of rent. The lease, is treated as a present demise for the full term to which it may be extended or continued. Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 268; Leeland Properties Co. v. Geo. C. Vaughan & Sons, Tex.Civ.App., 253 S.W.2d 77, writ ref. n. r. e. See Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 481.

In our opinion, failure to pay the annual rental under all the lease provisions is a method of exercising lessee’s option to terminate, as well as a failure to exercise the option to continue the lease in effect. All portions of the agreement are thus given effect. Upon failure to pay rent as required, the lease terminated. See Hill and Redman, Landlord and Tenant (10th ed.), Sec. 81; Jacobs, Landlord and Tenant (2d ed.) 774; Taylor, Landlord and Tenant (9th ed.) Sec. 332; 1 American Law of Real Property (3d ed.) Sec. 3.86; I Tiffany, Real Property (3d ed.), Sec. 172.

By withdrawal of the case from the jury, other relief sought was not passed upon in the trial court, and under our holding appellant’s other points are not reached. The judgment is reversed and the cause remanded.