author: BARROW, Justice.

text:
    Robert C. BERRY, Appellant, v. SUNSHINE LAUNDRIES & DRY CLEANING CORPORATION, Appellee.
    No. 14344.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1965.
    Rehearing Denied March 17, 1965.
    Green, Green & Wiley, Preston H. Dial, ^r'’ San Antomo> for appellant.
    Moursund, Ball & Bergstrom, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a take-nothing judgment entered on the jury verdict in a suit for damages allegedly incurred when an automobile operated by appellant, Robert C. Berry, was struck from the rear by a delivery truck operated by Rudy Gomez in the scope of his employment for appellee, Sunshine Laundries & Dry Cleaning Corporation. The jury found Gomez failed to have the truck under proper control and failed to keep a proper lookout and that each of these acts of primary negligence was a proximate cause of the collision. The judgment was entered upon the finding of contributory negligence that Berry failed to keep a proper lookout and that this failure was a proximate cause of the collision.

Appellant attacks these findings as not being supported by any evidence, and in the alternative as being so contrary to the great weight and preponderance of the evidence as to be clearly wrong. He also urges that under the undisputed evidence he owed no legal duty to keep a lookout to the rear. Appellant complains also of the jury finding that he is not entitled to anything for doctor bills and medical expenses which, he will in all reasonable probability incur in the future as a proximate result of the injuries ■sustained in the collision.

The collision occurred about 10:00 A.M. •on July 9, 1962, in the middle of the 2100 "block of N. St. Mary’s Street in the City •of San Antonio. This street is approximately thirty feet wide and carries two-way traffic. Appellant was proceeding south .and was going to turn into the private driveway of the City Lumber Company, which is -about the center of the block. He stopped behind another vehicle which was also going to turn left when northbound traffic permitted. After the first vehicle moved to the left, but while appellant’s vehicle was still stopped, it was struck from the rear by appellee’s southbound truck.

Appellant urges that his stopping ■was under compulsion because the lead vehicle stopped, and that therefore no duty -of lookout was required. See Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435, wr. ref., n. r. e.; Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, no wr. hist. In those cases the driver of the lead car stopped at an intersection pursuant to a traffic control. Here, however, appellant stopped in the center of the block of a city street in ■order to enter a private driveway. He ■could have passed the stopped car to the right if he had not desired to turn. In this situation appellant had a duty to keep a lookout to the rear.

The applicable rule was recently stated by this Court in Scott v. McElroy, Tex.Civ.App., 361 S.W.2d 432, wr. ref., n. r. e., as follows: “When one in a stream of traffic slows his vehicle, or stops it, or changes his •course, a duty arises to see what is behind when he makes the change.” See also Dallas Transit Co. v. Young, Tex.Civ.App., 370 S.W.2d 6, wr. ref., n. r. e.; Riles v. Reichardt, Tex.Civ.App., 366 S.W.2d 655, no wr. hist.; Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116, wr. ref., n. r. e.

It is a settled rule that proper lookout is ordinarily a fact question. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332; Griffith v. Hudspeth, Tex.Civ.App., 378 S.W.2d 153, no wr. hist. There was nothing which would have prevented appellant from seeing appellee’s truck for at least a block before the collision. He did not recall looking to the rear and testified that the first he knew of the danger of a collision was when he heard brakes squealing just before his car was struck. Appellant’s testimony, together with the physical facts, supports the jury finding that he failed to keep a proper lookout. From an examination of the entire record, we cannot say that this finding is so contrary to the preponderance of the evidence as to be clearly wrong.

The question of proximate cause presents a more difficult question. Appellant urges that there was nothing he could do to avoid the collision. He testified that he was giving a left turn signal with his light indicator, and Gomez admitted that he saw appellant’s brake lights. The jury found that appellant did not fail to give a signal of his intention to stop. The jury apparently concluded, however, that the first vehicle had moved a sufficient distance for appellant to have moved forward or to the left and avoided the collision.

The police officer testified that the point of impact was six feet east of the west curb line of the street. The right rear of appellant’s southbound vehicle was struck by the left front of the truck. Appellant demonstrated the position of the first vehicle at the time of the collision, by means of models of cars on a plat. The police officer also used this method of demonstrating the position of the vehicles at the point of impact. These demonstrations, although in the presence of the jury, have not been brought forward in the record. We cannot say from the entire record before us that the finding that appellant’s failure to keep a proper lookout was a proximate cause of the collision is so contrary to the preponderance of the evidence as to be manifestly unjust. Zalta v. Houston Transit Co., Tex.Civ.App., 384 S.W.2d 914; Scott v. McElroy, supra; Jones v. Downey, supra; Womacks v. Horne, Tex.Civ.App., 300 S.W.2d 765.

In view of this finding of contributory negligence proximately causing the collision, appellant’s point regarding the sufficiency of the evidence on the issue of future medical expenses is immaterial. Rule 434, Texas Rules of Civil Procedure; Valdez v. Yellow Cab Co., Tex.Civ.App., 260 S.W.2d 715, no wr. hist.

The judgment is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Grace BUCHANAN, Appellant, v. R. B. THRASHER et al., Appellees.
    No. 11265.
    Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1965.
    Rehearing Denied March 17, 1965.
    Emmett Shelton, Austin, for appellant.
    J. Hubert Lee, Robert B. Thrasher, Austin, for appellees.
   HUGHES, Justice.

This suit was filed by Grace Buchanan, appellant, originally against R. B. Thrasher, Mrs. Pauline Maufrais and others. A motion for summary judgment was filed by all defendants and was granted as to the defendants whom we have not named and refused as to Mr. Thrasher and Mrs. Mau-frais.

The suit is one for damages for fraud, concealment and deceit which, it is alleged, prevented the probate of the last will and testament of Mortimer H. Deats, deceased, in which Mrs. Buchanan was a beneficiary of property of the probable value of $30,-000.00. She alleged that this was a “valid will”

Trial was to a jury which returned the following verdict:

“SPECIAL ISSUE NO 1;
“Do you find from a preponderance of the evidence that the deceased, Mortimer H. Deats, signed the original copy of the will dated in 19S3 before two witnesses?
“Answer ‘Yes’ or ‘No.’
“ANSWER: YES
* * * * * *
"SPECIAL ISSUE NO. 2:
“Do you find from a preponderance of the evidence that the defendant, Robert B. Thrasher, was one of the attesting witnesses to such will?
“Answer ‘Yes’ or ‘No.’
“ANSWER: YES
******
"SPECIAL ISSUE NO. 3:
“Do you find from a preponderance of the evidence that the defendant, Robert B. Thrasher, has falsely contended that he does not remember whether he was a witness on such will in order to keep it from being offered for probate?
“Answer ‘Yes’ or ‘No.’
“ANSWER: YES
"SPECIAL ISSUE NO. 4:
“Do you find from a preponderance of the evidence that the defendants, Pauline Maufrais and Robert B. Thrasher, have conspired with one another in destroying or concealing such will to prevent it from being offered for probate?
“Answer ‘Yes’ or ‘No.’-
“ANSWER: NO
******
"SPECIAL ISSUE NO. 5:
“Do you find from a preponderance of the evidence that the defendant, Pauline Maufrais, has destroyed or concealed the will of Mortimer H. Deats?
“Answer ‘Yes’ or ‘No.’
“ANSWER: NO
"SPECIAL ISSUE NO. 6:
“Do you find from a preponderance of the evidence that the defendant, Robert B. Thrasher, has destroyed or concealed the will of Mortimer H. Deats ?
“Answer ‘Yes’ or ‘No.’
“ANSWER: NO”

Appellant and appellees moved for judgment on this verdict. Mr. Thrasher also moved that issues three and seven and their answers be disregarded.

The trial court rendered judgment that appellant take nothing and that appellees go hence with their costs without day.

Appellant has but one point of error which we quote:

“The Court should have entered judgment in favor of the plaintiff, Grace Buchanan, upon the answers of the jury to special issues number 1, 2, 3 and 7, which issues found that the defendant, R. B. Thrasher, after having drawn and witnessed the will of Mortimer H. Deats later falsely contended that he did not remember being a witness to such will in order to keep the will from being offered for probate to plaintiff’s consequent loss of her bequest under the will of about $30,-000.00.”

Mortimer H. Deats was a life long resident of Travis County. He was never married. His parents predeceased him. He left surviving him one sister, appellee, Mrs. Pauline Deats Maufrais, and four children of a deceased sister. Mr. Deats died August 26, 1960, at the age of 71 years.

Mrs. Grace Buchanan had been an intimate friend of Mr. Deats for about twenty years prior to his death. During this time, the evidence shows, Mr. Deats did not keep the company of any other woman.

Mr. R. B. Thrasher was, and is, an attorney practicing in Austin, Texas. He was a cousin of Mr. Deats and is a cousin of Mrs. Pauline Maufrais.

In 1953, Mr. Deats went to the law office of Mr. Thrasher who, at the request of Mr. Deats, drew his will. Frequently, although not invariably, Mr. Thrasher and his secretary, or in her absence someone in a neighboring office, witnessed the wills which Mr. Thrasher drew.

Neither Mr. Thrasher nor his secretary could remember, so they testified, whether either had witnessed the will of Mr. Deats or whether either had seen him sign it.

Mr. Thrasher kept a copy of the will he had drawn for Mr. Deats, furnishing a copy of this copy to the attorney for appellant upon learning that litigation was developing regarding it. A copy of the will is in evidence, and we quote the provisions beneficial to appellant:

“THIRD: I give and bequeath to my friend, Grace Buchanan, all of my United States Savings Bonds of any and all denominations on hand at the time of my death,
“I also give and devise unto the said Grace Buchanan 283 acres of land out of the O. Bruckman League and the Thomas Toulson One-fourth League in Travis County, Texas, and being TENTH TRACT of land sold and conveyed to Mortimer H. Deats by Eliza A. Thrasher et al by deed of date June 3, 1938, of record in Book 589, pages 313-336 of the Deed Records of Travis County, Texas, to which reference is here made.”

The value of this property is shown to be about thirty thousand dollars.

The produced copy of the will does not have in it the names of the witnesses. The spaces for them are blank.

There is no proof that this will was executed in the manner prescribed by law. Mrs. Buchanan testified that she first saw the will in 1953; that it was signed on the line under which the word “Testator” was typed “Mortimer H. Deats;” that she knew the signature of Mr. Deats; that on the “two bottom lines” there were two signatures, one of which was “Robert Thrasher,” and the other she did not remember.

Mrs. Buchanan testified that she was shown this completed will by Mr. Deats in mid-August 1960 in the room of Mr. Deats in the Sandifer home in Manor, Texas, where Mr. Deats had lived since 1959.

Following the death of Mr. Deats, search was made in the places where a will, if he left one, would normally be kept. No will was found.

No effort has been made by anyone to probate a will, lost or otherwise, of Mr. Deats. Appellant did, however, file a proceeding in the Probate Court of Travis County under Art. 75 of the Texas Probate Code against Robert B. Thrasher to require him to produce the will of Mortimer H. Deats.

This proceeding resulted in a judgment of the Probate Court denying the relief sought.

There is no evidence that anyone destroyed a will of Mr. Deats. There is evidence that, if Mr. Deats left a will, an opportunity for its destruction or concealment was open to Mr. Thrasher, Mrs. Maufrais and her son Jack. On the second day after the burial of Mr. Deats, Mrs. Maufrais and her son Jack went to Manor and procured all of Mr. Deats’ papers from his room, carried them to Mr. Thrasher’s office and inspected them. No will was found.

It is our opinion that the verdict of the jury will not support a judgment for appellant and the trial court properly so held.

This suit is, in essence, a suit for ■damages for the suppression of a will. The case of Wilburn v. Meyer, 329 S.W.2d 228, Kansas City Missouri Court of Appeals, was such a case. The Court there made the following statement which we believe to correctly define the burden cast upon appellant in this suit:

“It was incumbent upon plaintiff to offer substantial proof of at least two facts: (1), that a valid will was executed by deceased; (2), that defendant procured its suppression. Having failed to prove the first, she obviously could not prove the second. Proof of the execution of a valid will was as essential here as is proof of the corpus delicti in a criminal case.”

The findings of the jury do not support the conclusion, either singly or collectively, that Mortimer H. Deats executed a will in the manner prescribed by law.

A written will not wholly in the handwriting of the testator, as is the instrument sought to be proved the will of Mr. Deats, must have been attested by two or more credible witnesses above the age of fourteen years, subscribing their names thereto in their own handwriting in the presence of the testator according to Art. 8283, R.C.S.1925, which Article was in force in 1953.

The findings of the jury are inadequate to show that Mortimer H. Deats executed a will in the manner prescribed by the law in force at the time of its purported execution. The relevant findings are only that Mr. Deats “signed” the will and that Mr. Thrasher was one of the attesting witnesses to the will. There is no finding that the will was signed by a second witness or that the attestation of the will by Mr. Thrasher was accomplished in the presence of Mr. Deats.

It is not contended that there is undisputed evidence of a conclusive nature that Mr. Deats executed a will in 1953 in conformity with the statutory requirements. We have recited enough of the evidence to demonstrate that this contention could not be successfully made. Without discussing the evidence in its entirety, we point out that there is no evidence that a second witness attested the will in her or his own handwriting.

If appellant had established the execution of a lawful will by Mr. Deats, then we would be confronted with the following rule of law:

“A careful examination of the adjudicated cases on the question, which are few in number, leads us to the conclusion that neither relief at law nor in equity may be obtained on account of the destruction or suppression of a will unless it is made to appear that it is impossible to probate such will in the court having jurisdiction of the probate thereof, or unless the plaintiffs have undertaken to probate such will and have failed.” McGregor v. McGregor, 201 F.2d 528, U.S.Ct. of Appeals, 10th Cir.

Since, in our opinion, appellant has not proved that Mortimer H. Deats executed a valid will, there is no occasion for us to apply this rule to the case pleaded by appellant.

The judgment of the trial court is affirmed.

      . This judgment does not mention the previous summary judgment in favor of other persons originally sued. We hold that this interlocutory summary judgment merged with the interlocutory judgment in favor of appellees to create a final judgment.

      . For convenience, we will refer to this instrument as the “will” of Mr. Deats without denoting its validity.

      . It should be borne in mind that this was not a self-proving will drawn under present Section 59 of the Probate Code.


author: WILSON, Justice.

text:
    W. O. MILLS et al., Appellants, v. C. E. SNYDER et al., Appellees.
    No. 4316.
    Court of Civil Appeals of Texas. Waco.
    Feb. 18, 1965.
    Rehearing Denied March 11, 1965.

      Jackson & Jackson, Crystal City, for appellant.
    B. R. Reeves, Palestine, for appellee.
   WILSON, Justice.

Appellant as judgment creditor sought to have a deed to appellee, executed by the judgment debtor and recorded before appellant’s abstract of judgment, declared void; and to establish and foreclose its judgment lien on the property conveyed. The trial court rendered a summary talce-nothing judgment. We affirm.

Appellant’s position is that the deed was not subject to recordation because the notary’s certificate recites the acknowledgment was taken by a notary public of Freestone County, whereas the seal impressed is that of a Houston County notary. The certificate begins: “The State of Texas, County of Freestone. Before me, the undersigned authority”, etc., and is signed: “Hollis Beall, Notary Public, Freestone County, Texas.” A Houston County notary seal is affixed. The affidavit of the County Clerk of Freestone County states the person who signed the certificate is not shown by the records of his office to be a Freestone County notary public. Appellee’s affidavit, however, asserts the deed was acknowledged “before Hollis Beall, a Notary Public in and for Houston County, Texas.”

Under the evidence properly in the record under Rule 166-A(c), Texas Rules of Civil Procedure, the trial court properly rendered summary judgment, in our opinion, for the following reasons:

Although it was movant’s burden to show there was no genuine issue of material fact, the burden of proof was upon appellant, attacking the authority of the officer or person making the certificate, to show he was not authorized to take the acknowledgment. Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 493; Tilley v. Kangerga, Tex.Civ.App., 83 S.W.2d 787, 792, writ refused; Gomez v. Riddle, Tex.Civ.App., 334 S.W.2d 197, 199. Appellant did not allege the person signing the certificate was not a qualified notary public for Houston County, and there is no suggestion in the record he was not.

It has been held to be presumed that the county clerk before recording the deed, under the provisions of Arts. 1941, 6591 and 6595, Vernon’s Ann.Civ.St., ascertained the person taking the acknowledgment was an authorized officer. Tate v. Johnson, Tex.Civ.App., 140 S.W.2d 288, 292, writ dism. c. j.; Caudle v. Williams, Tex.Civ.App., 51 S.W. 560, 562; Broussard v. Dull, 3 Tex.Civ.App. 59, 21 S.W. 937, 940. The showing in appellees’ affidavit that the person making the certificate and taking the acknowledgment was a notary public in and for Houston County is not controverted, and he discharged the movant’s burden under Rule 166-A of establishing this was not an issuable fact.

Art. 6603, V.A.C.S. provides the officer taking an acknowledgment shall make a certificate thereof and “sign and seal the same with his seal of office.” Art. 5960 prescribes the form of the notary’s seal on which shall be engraved “the name of the county for which the officer is appointed,” and with which he is required to authenticate all his official acts. Art. 6606 requires him to sign the certificate which shall be substantially in the form prescribed by Arts. 6607 and 6608, and directs that it be “given under his seal of office.”

Although the statutes of Texas do not expressly require that a notary public formally designate the county in which he is commissioned following or as an adjunct to his signature (see McDonald v. Morgan, 27 Tex. 503), they do require that official notarial acts be authenticated by his seal. It is presumed in the absence of evidence to the contrary that the notary public taking the acknowledgment performed his duty in compliance with law as to the use of the seal. Belbaze v. Ratto, 69 Tex. 636, 7 S.W. 501; Anderson v. Polk, 117 Tex. 73, 297 S.W. 219; Howard v. Perry, 7 Tex. 259; Gomez v. Riddle, Tex.Civ.App., 334 S.W.2d 197, 199.

Alexander v. Houghton, 86 Tex. 702, 26 S.W. 937 is determinative against appellant’s contention. There the caption of the notary’s certificate was “The State of Texas, Runnels County.” The body of the certificate recited the person signing as notary was “a notary public in and for said county”. The signature was followed by “Notary Public, Bexar County, Texas.” A seal with the words “Bexar County” was presumed, the Court said, to be affixed, since the statute prescribed its use. The Supreme Court applied the rules that a document will be construed so as to be given effect if this can consistently be done, and that “all official acts are presumed to have been performed within the limits of such officers’ jurisdiction, if it be limited.” The Court noted the common practice in preparation of deed forms of advance filling of blanks for county names in certificates of acknowledgment which “are sent to other counties to be acknowledged by the grantors”. If the officer in the latter county should fail to change the name of the county, it was said, “Such conflict as appears in this case is inevitable.” A “common sense solution” of the matter was held to be that the notary failed to change the name of the county. The acknowledgment was held sufficient to admit the deed to record.

The Houston County notary seal affixed to the deed is sufficient to show that the person signing the certificate as a notary public, is such officer for Houston County so as to authorize recordation of the deed under Arts. 6627 and 6646, V.A.C.S. See Stephens v. Mott, 81 Tex. 115, 16 S.W. 731, 732; Chamberlain v. Pybas, 81 Tex. 511, 17 S.W. 50, 51; Linskie v. Kerr, Tex.Civ.App., 34 S.W. 765, 766; Lake v. Earnest, 53 Tex.Civ.App. 555, 116 S.W. 865, 867, writ ref.; Texas Osage, etc. v. James, Tex.Civ.App., 129 S.W.2d 327, 328; Blythe v. Houston, 46 Tex. 65, 79. See, generally, 25 A.L.R.2d 1122; 1 Am.Jur.2d, Sec. 46, p. 478.

It is unnecessary to rule on other points..

Affirmed.


text:
    Claude PARKS et ux., Appellants, v. HILL COUNTY, Appellee.
    No. 4306.
    Court of Civil Appeals of Texas. Waco.
    Feb. 11, 1965.

      Carl E. Mason, Waco, for appellants.
    Steve Latham, Whitney, for appellee.
   WILSON, Justice.

A mandatory injunction was issued on the petition of Hill County directing appellants to remove a gate they had erected across a road. The decree, following a non-jury trial, permanently restrained them also from placing any other obstruction on the road.

Appellants’ pleaded defense was that they had sold the land transected by the road and no longer occupied it. They now say that since they were no longer “living on the land or attempting to exercise any control over” the obstruction the court erred in rendering judgment against them.

Appellants were proper parties and were properly enjoined. One who creates and is primarily responsible for an obstruction to an easement or public way may be joined as defendant in such a case as this “whether he has any interest in the premises on which the easement is located or not.” 28 C.J.S. Easements § 109, p. 802; 28 A.L.R.2d 412; Alabama Power Co. v. Ray, 260 Ala. 506, 71 So.2d 91; Harrison v. Knott, 219 Ark. 565, 243 S.W.2d 642, 643, 28 A.L.R.2d 405; Hardin v. Sin Claire, 115 Cal. 460, 47 P. 363. See Rule 683, Texas Rules of Civil Procedure. As vendor’s lien holders, also, appellants had such interest as made it proper that the relief be decreed against them. 28 A.L.R.2d 411.

It is said the present owners of the land were necessary parties to the action pertaining to the obstruction erected by appellants. Their non-joinder was not questioned by appellants’ pleading in the trial court, and may not here first be urged. Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165, 68 A.L.R.2d 1062; Broadway Plan v. Ravenstein, Tex.Civ.App., 364 S.W.2d 741, writ ref. n. r. e.

Reversal is asked because it is said the road has never been classified, but would have been classified as a third-class road. We assume the argument implied is that since Art. 6712 Vernon’s Ann.Civ.St. authorizes owners of land to erect gates across roads classified by the Commissioners Court under Art. 6704, V.A.C.S. as third-class, and since one of the Hill County commissioners testified he would classify the road as “class three,” the obstruction complained of was authorized.

The contention is untenable for these reasons:

(a) Art. 6704 prescribes as a classification requirement that third-class roads be not less than 20 feet wide, and the width of first-class and second-class roads be not less than 40 feet. We find no evidence in the record the Commissioners Court had not classified the road. The precinct commissioner testified on cross-examination that he was “at a loss as far as classification” was concerned; that “the only way we try to determine that is through” use— “the road that carries the most traffic”; that he “wouldn’t know how to bracket or how many classes or degrees that you would set up”; that if there were three classes, he would put the road’s north end near the obstruction “as class three,” the lowest class of roads the county maintains, but would not know how many classes to establish. He testified, “I am a little lost on classification. I wouldn’t classify.” .The witness was obviously not referring to the statutory numerical classes, and this testimony will not support the assumption that he would classify the road as being one of the third class contemplated by the statute.

(b) If it may be argued that the commissioner’s testimony justifies appellants’ premise, “the individual commissioners have no authority to bind the county by their separate action”. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455. The road classification must be done by the Court, which can act only as a body and speak only through its minutes. Gano v. Palo Pinto County, 71 Tex. 99, 8 S.W. 634, 635.

(c) The varied and inconsistent testimony of the several witnesses was that the road was from 25 to 70 feet wide. Appellant himself testified, however, that he had measured the road and it was from 40 to 60 feet wide, “some might run 70 feet.” He is bound by this testimony. United States Fidelity & Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224, writ ref.; McCormick & Ray, Texas Law of Evidence, Sec. 1127.

(d) There are no findings of fact and there is no request for findings. It is presumed the court found in support of the judgment that the gate was not erected across a third-class road. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562.

(e) Appellants pleaded that when they sold the land they retained a vendor’s lien and thereby had a real interest in maintenance of the road as a public road; and “to this end these defendants join the plaintiff, Hill County, in its efforts to keep the said road open”. They joined in the prayer that the present owners be prohibited from erecting or maintaining any obstruction on the road. The obstructions by the other owners sought to be enjoined likewise consisted of gates. The construction appellants placed on these pleadings in the trial court is that the gates were not authorized by the width of the road. They are required to adhere to that construction here. 3 Tex.Jur.2d, Secs. 370, p. 629; 373, p. 632; 374, p. 634.

It is insisted finally that the road lost the quality of a public road when a portion beyond the obstruction was abandoned by the public after its inundation by Lake Whitney and the construction of a substitute road. Appellants pleaded the road was “a public road” at the time of trial. An inconsistent ground of defense may not now be urged. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 908; 3 Tex.Jur.2d Sec. 371, p. 629.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    SEWER CONSTRUCTORS, INC., a Corporation, Appellant, v. EMPLOYERS CASUALTY COMPANY, a Corporation, Appellee.
    No. 14489.
    Court of Civil Appeals of Texas. Houston.
    Feb. 4, 1965.
    Rehearing Denied Feb. 25, 1965.
    Second Rehearing Denied March 18, 1965.

      Kirchheimer & Kirchheimer, Joseph K. Kirchheimer, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Charles D. Boston, Houston, Tex., for appellee.
   BELL, Chief Justice.

Appellant filed suit against appellee, seeking to recover the expenses it had incurred in defending a suit filed against appellant by George Clark in which Clark sought to recover damages for personal injuries. Ap-pellee, who was the insurer against certain risks in a policy of liability insurance issued appellant, refused to defend the suit because it contended the injuries did not grow out of a risk covered by the policy. In this suit by appellant to recover his expenses, the trial court granted appellee’s motion for summary judgment and rendered judgment that appellant take nothing. The court also denied appellant’s motion for summary judgment seeking judgment as to appellee’s liability but not seeking such as to the amount of recovery, the latter being a question of fact.

Appellant’s suit was not one to recover for any judgment rendered against it in favor of Clark. In fact appellant’s counsel successfully defended the Clark suit. Under the undisputed facts of this case as made by the record before us, appellee would not be liable for any judgment for damages because in fact, it seems to be conceded, the injuries to Clark did arise subsequent to the completion of work by appellant. However, we are of the view that appellee’s obligation to defend suit is not determined by whether such is in fact the case but whether the allegations in the petition filed against an assured, when fairly and reasonably construed, state a cause of action covered by the policy.

Clark sued the City of Houston and appellant for damages for personal injuries received August 7, 1959. The petition of Clark, insofar as material here, alleges as follows:

VI.
“Plaintiff would further show this Honorable Court that Defendant, Sewer Constructors, Inc., heretofore and at the time of the committing of the grievances herein alleged, was engaged in laying sewer lines from the main sewer to private homes on Weaver Street and that the Defendant, Sewer Constructors, Inc., dug and excavated and permitted to be dug and excavated deep ditches in and across the public street * * *; that while Defendant was thus engaged in digging and excavating said ditch or trench it became and was the duty of the Defendant * * * to use reasonable and ordinary care for the safety of the general public travelling the said street * * * as well as for the safety of this Plaintiff.
VII.
“The Defendant, Sewer Constructors, Inc., not regarding its duty, did not use due and proper care for the safety of Plaintiff while so engaged wrongfully and negligently permitted the ditch or trench to be covered over with dirt without proper packing and topping causing the ditch or trench to cave in and sink leaving large ruts, holes and depressions and leaving same to remain open, exposed and without guards, lights or other protection, or notice to travellers.
VIII.
“That on the date aforesaid, your Plaintiff was travelling in an automobile upon and along Weaver Street in an easterly direction, and while Plaintiff, both before and at the time of his injuries, was in the exercise of ordinary care for his own safety, solely by the carelessness and negligence of the Defendants as aforesaid, Plaintiff’s automobile then and there ran and sank and fell into said hole, rut and depression whereby Plaintiff lost control of his car and ran into a ditch and culvert throwing him upon and against the various portions of the car.”

It appears that after the accident, but before suit was filed, Clark’s attorneys wrote appellant asserting a claim for damages. Mr. Steele, appellant’s president, on September 25, 1959, forwarded the correspondence from Clark’s attorneys to appellee. In this letter he stated as follows:

“In -connection with this claim, it is remotely possible that we might have some liability. However, we had no operations on this street at the time of the accident, August 7, 1959.
“We did, however, install sanitary sewer lines on Weaver Street !i! * * This project was completed on March 24, 1959, and formally accepted by the City of Houston on April 7, 1959.
“It is our opinion that the damages claimed * * * are probably due to operations of someone other than ourselves.
“We trust that you will investigate promptly and advise us if you need further assistance in the matter.”

Suit was filed by Clark September 13, .1960. Immediately after citation was served, ’appellant delivered it and a copy of the petition to appellee. Appellee returned the citation, and the letter making the return confained this language: “We are attaching your letter, along with the Citation on the above styled case. We advised you on November 17,1959 by letter, that it was our thinking that this accident was not covered under your policy.”

Appellant then told appellee it would, since appellee was refusing to defend, employ its own counsel but would hold appellee responsible for all expenses and attorneys fees incurred in defending suit.

It seems to be agreed, or at least appellant does not dispute, that as a matter of fact the work or operation had been completed at the time of Clark’s accident, according to the date set out in the petition. The policy excludes coverage where the accident occurs off of assured’s premises if the operation or work out of which the injuries grow has been completed or abandoned, that is, it excludes an obligation to pay any damages for the injuries. It is not contended that the policy would entitle appellant to be indemnified by appellee for any amount appellant paid by way of damages for injuries resulting from the accident. The contention of appellant is that an insurer’s obligation to defend is determined not by a resolution of whether in fact the policy covered the accident but whether under the allegations of a plaintiff’s petition against an assured it shows an accident covered by the policy.

Appellee apparently contends the trial court correctly sustained its motion for summary judgment for two reasons. First, because in fact the accident was not covered by the policy, and, second, the petition of Clark did not allege facts showing affirmatively an accident covered by the policy.

We need notice specifically only the provision of the policy creating the obligation to defend assured where suit is filed against him. It reads as follows:

“With respect to such insurance as is afforded by this policy, the company shall:
“(a) defend any suit against the insured alleging [emphasis ours unless otherwise stated] such injury, sickness, or disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * * ”

It seems to be well settled that under a provision using the language above quoted, creating the obligation of an insurer to defend suits, the duty of the insurer to defend a given suit is determined by the allegations of the petition filed by a claimant against the assured. If such petition alleges facts showing an occurrence that comes within the coverage of the policy, then the insurer must defend. If, to the contrary, the petition alleges facts showing that the occurrence is without the coverage, there is no duty to defend. This last statement should, perhaps, be qualified to the extent of saying that even though there be inconsistent theories alleged, one of which shows coverage and one shows no coverage, the insurer is still obligated to defend. These rules are applicable, we think, whether the facts alleged are true or not. The reason is the contract itself. The insurer’s undertaking to defend is not to defend those suits that in fact come within the coverage, but to defend those suits alleging liability within the coverage. In the policy here involved it is provided that: “With respect to such insurance as is afforded by this policy, the company shall: (a) defend any suit against the insured alleging such injury * * * even if such suit is groundless, false or fraudulent.'’ Maryland Casualty Company v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App.), writ ref.; United States F. and G. Co. v. Baldwin, 34 S.W.2d 815 (Tex.Com.App.); General Insurance Corp. v. Harris, 327 S.W.2d 651 (Tex.Civ.App.), no writ hist.; Travelers Insurance Co. v. Newsom, 352 S.W.2d 888 (Tex.Civ.App.), ref., n. r. e.; Liberty Mutual Ins. Co. of Texas v. Rawls, 358 S.W.2d 920 (Tex.Civ.App.), no writ hist.; Maryland Casualty Co. v. Knorpp, 370 S.W.2d 898 (Tex.Civ.App.), ref., n. r. e.; Maryland Casualty Co. v. Mitchell, 322 F.2d 37 (5th Cir.); Boutwell v. Employers Liability Assur. Corp., 175 F.2d 597 (5th Cir.); Hardware Mutual Casualty v. Shantz, 186 F.2d 868 (5th Cir.); 50 A.L.R.2d 461.

As we stated above, appellant apparently contends that since as a matter of fact the accident happened after the work had been completed as shown by the letter of Mr. Steele, the president of appellant, and as not disputed here, the appellee was not obligated to defend. The letter was written before suit was filed. It stated there was a remote possibility of liability on the part of appellant. On what this statement was based we do not know. It also stated the work of laying the sewer lines had been completed in March, 1959 and accepted by the City of Houston on April 7, 1959. Appellee pled no coverage because the work had been completed. We are of the view that the obligation to defend suit, however, is based, as above stated, on the allegations of the petition. We mention this specifically despite our discussion and citation of authorities above because there were two cases from Courts of Civil Appeals in Texas that held in case of inconsistency between the allegations of the petition and the determined facts the insurer had no obligation to defend. We refer to Trinity Universal Insurance Co. v. Bethancourt, 331 S.W.2d 943, no writ hist., by the Amarillo Court of Civil Appeals, and Massachusetts Bonding and Ins. Co. v. Roessler, 112 S.W.2d 275, application for writ of error dismissed, by the Ft. Worth Court of Civil Appeals. The Amarillo Court had expressly followed the decision by the Ft. Worth Court. However, in the case of Traveler’s Insurance Co. v. Newsom, supra, writ of error refused, no reversible error, a majority of the justices of the Amarillo Court of Civil Appeals refused to follow the previous decision and followed the prevailing weight of authority which is that the duty to defend is measured by the allegations of the claimant’s petition filed against the assured. The Newsom case contains an exhaustive citation and discussion of the cases and it is unnecessary for us to repeat them here. It suffices that we say we hold that where the insurance policy contains the provision above quoted with regard to the insurer’s obligation to defend, the obligation to defend is measured by the allegations in the claimant’s petition even though those allegations are inconsistent with known or ascertainable facts.

We must now analyze Clark’s petition filed against appellant to ascertain where it states a cause of action within the coverage. We should here note that the policy excludes coverage if the accident occurs away from the insured’s premises if the operation has been completed or abandoned and it is specifically provided that the “operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement.”

Clark’s petition alleged facts showing it occurred away from appellant’s premises. It did not contain an express allegation that the work of appellant was continuing. Appellee says it “indicates” the work had been completed. We do not think it is essential to expressly allege the work was continuing or had not been completed or abandoned though in some of the decided cases there was some such language used. We think if there are allegations from which the reasonable reader would conclude that a continuing and unabandoned operation is being asserted there is an affirmative assertion of a claim within the coverage. To state it otherwise, if the allegations would admit of the introduction of evidence that would show a continuing operation there is an affirmative allegation of coverage. In case of doubt the pleading is to be construed most strongly against the insurer. We have found no '""exas case precisely in point but the following authorities we think support the above principles: Boutwell v. Employers Liability Assur. Corp., 175 F.2d 597 (5th Cir.); Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 (2nd Cir.); Saragan v. Bousquet, 322 Mass. 14, 75 N.E.2d 649; London Guarantee & Accident Co. v. White & Bros., 188 Va. 195, 49 S.E.2d 254; and Pow-Well Plumbing & Heat. v. Merchants Mut. Cas. Co., 195 Misc. 251, 89 N.Y.S.2d 469 (N.Y.City Court).

We do not know what the contract between the City of Houston and appellant provided except that under it appellant was laying sewer service lines from a main sewer line on Weaver Street to the individual houses. The language of paragraph VI of Clark’s petition states in part that appellant, “at the time of committing the grievances herein alleged, was engaged in laying sewer lines from the main sewer to private homes.” This language certainly can in reason be understood to mean at the time the wrongful acts were committed the operation was continuing. Immediately following this and as a, part of the same sentence it is stated the defendant dug and excavated deep ditches across the street and that while thus digging such it was appellant’s duty to provide for the safety of the public. Then paragraph VII alleges that appellant, not regarding such duty toward Clark, “while so engaged wrongfully and negligently permitted the ditch or trench to be covered over with dirt without proper packing and topping causing the ditch or trench to cave in and sink leaving large ruts, holes and depressions and leaving same to remain open * * * without guards or lights * * * ” This language does not allege facts showing the operation of laying lines on the street had been completed because by the words “while so engaged” can only refer back to the description of the appellant’s operation stated in the preceding paragraph that appellant “at the time of committing the grievances herein alleged, was engaged in laying sewer lines ^ * * ” This can in reason be read to mean the operation was continuing. There is language saying appellant permitted the ditch or trench to be covered over causing the trench to cave in and leave holes, depressions and ruts. This might indicate a particular ditch was filled in. However, the same sentence also says “and leaving same open * * * ” This could mean leaving the holes, ruts and depressions open, but it could just as reasonably be read to mean leaving the ditch or a part thereof open. Too, when we read that it was engaged in laying sewer lines and it dug ditches, and then read that appellant permitted an inadequate filling in “the ditch” one can easily gather that the operation included numerous, or certainly more than one, ditches, and that one ditch included in the operation had beer, inadequately filled. From this, in the light of common knowledge and experience, an undertaking to lay sewer lines includes the digging of ditches and then adequately filling all of them, covered by the operation, before the operation will be considered to be completed. There is nothing indicating abandonment of the job. Too, even if we consider only the one ditch the language “leaving same open” can be understood to mean a. part of the ditch was left open, but from the allegations that appellant “was engaged in laying sewer lines” one would get the impression it was left open while the work was continuing and in the light of experience one would conclude it was to be filled before the operation was completed. Then it is alleged Clark’s automobile ran into said hole, rut and depression and Clark lost control and ran it into a ditch and culvert, causing his injury.

Considering the whole petition, we hold it contains allegations showing an uncompleted and unabandoned operation. The trial court was, therefore, in error in sustaining appellee’s motion for summary judgment and overruling appellant’s motion for judgment establishing liability.

The judgment of the trial court is reversed with directions to grant appellant’s motion and render judgment that appellant is entitled to recover such reasonable expenses, including attorney’s fees as were incurred in defending Clark’s suit. What are the reasonable expenses is a question of fact.

We note appellant also sued for an attorney’s fee for the bringing of this suit. The motion for summary judgment, did not involve it and we express no opinion here as to whether it is recoverable.

Reversed and remanded, with instructions.

On Motion for Rehearing

Since we handed down our original opin= ion, it has come to our attention that on January 27 our Supreme Court handed down its opinion in the case of Heyden Newport Chemical Corporation et al. v. Southern General Insurance Co., Tex., 22 S.W.2d 387. This case, we feel, supports our decision in all respects.

The motion for rehearing is overruled.


text:
    Mordecal M. CLAY et vir, Appellants, v. Ruth Kelly SIERCOVICH, Independent Executrix, et al., Appellees.
    No. 4355.
    Court of Civil Appeals of Texas. Waco.
    Feb. 18, 1965.

      Ira P. & Elliot W. Jones, Houston, for appellants.
    John Shirley, Texas City, for appellees.
   WILSON, Justice.

Summary judgment was rendered against plaintiff on her two alternative causes of action attempting to recover from the estate of her deceased husband child-support payments ordered by a Texas divorce decree sixteen years before.

On the first ground of recovery it was alleged that plaintiff’s deceased husband had failed to make any payments ordered by the divorce decree for support of the child, who was 17 years of age when the husband died 14 years after the divorce. By this count judgment was sought for the aggregate of the sums unpaid, as an alleged indebtedness. The alternate count was for recovery of sums expended by the wife for necessaries in support of the child to the date of the husband’s death, based on the implied obligation of the latter to pay therefor. Defendant filed a special exception asserting any cause of action alleged was barred by the two-year statute of limitation. There is no order on the exception.

The only power of a Texas court to order child support payments in connection with divorce is that provided by Art. 4639a, Vernon’s Ann.Civ.St. The periodical payments so ordered do not constitute a debt; they may be enforced only by contempt in the divorce proceeding. If the order is not complied with, plaintiff “could not maintain an action in any other court in this state to enforce the payment”. Execution and garnishment are not authorized. Ex parte Davis, 101 Tex. 607, 608, 111 S.W. 394, 396, 17 L.R.A.,N.S., 1140; Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 49, 75 A.L.R. 1305; Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953, 955. “The wife has no pecuniary interest in the award”. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 121. The husband’s death did not, as appellant contends, create a right of action which did not exist before. The couic’s action as to this count was proper. Rule 166-A(a) Texas Rules of Civil Procedure. See Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100, 15 A.L.R. 564; Bowyer v. Bowyer, 130 Tex. 257, 109 S.W.2d 741, 744.

The alternative count for recovery of sums the wife had spent for the child’s support is not grounded upon or governed by the statute; it alleges a common-law obligation. Gully v. Gully, above. Appellee defends the summary judgment as to this claim for recovery on the contention it is barred by limitation. It is in the nature of an ordinary action for debt and is governed by the two-year statute of limitation, Art. 5526, V.A.C.S. Maxwell v. Maxwell, Tex.Civ.App., 204 S.W.2d 32, 39, writ ref. n. r. e.; Ramsey v. Oliver, Tex.Civ.App., 246 S.W.2d 332, 334, n. w. h.; Dilger v. Dilger, Tex.Civ.App., 271 S.W.2d 169, 170; Hartman v. Hartman, Tex.Civ.App., 32 S.W.2d 233, 234; 21 Tex.Jur.2d Sec. 393, p. 14.

The common law duty of, and liability for support extends over the entire period of the child’s minority, Gully v. Gully, above, and is not governed by the age limitation in Art. 4639a. The child for whose support it is alleged plaintiff in the present case furnished necessaries has not attained his majority, according to her pleading. Plaintiff first asserted the common-law cause of action in June, 1964. The recovery sought was limited by the petition to expenditures made before the husband’s death December 31, 1962.

A portion at least of the recovery sought under the common-law cause of action, therefore, was not barred by limitation under facts apparent on the face of plaintiff’s pleadings, and the summary judgment that plaintiff take nothing was consequently not authorized.

Reversed and remanded.

      . See Uniform Reciprocal Enforcement of Support Act, Art. 2328b-3, Y.A.O.S.


author: FANNING, Justice.

text:
    Margie Rea MARTIN et vir, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 7612.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 23, 1965.
    Rehearing Denied March 16, 1965.

      Ralph R. Rash, Austin, for appellants.
    Jack G. Neal, Sulphur Springs, for ap-pellee.
   FANNING, Justice.

The opinion of January 12, 1965, is withdrawn and the following opinion is rendered.

A workmen’s compensation case. Margie Rea Martin joined by her husband sued appellee insurance company, seeking compensation for total and permanent disability by reason, of back injuries on January 10, 1963, while employed by Pratt Packing Company in Hopkins County, Texas, and also seeking certain medical expenses. Trial before a jury upon special issues resulted in a judgment for plaintiffs for total disability for 14 weeks, plus 10 weeks’ partial disability, plus interest, and a part of the medical expenses sued for, to-wit, a $40.25 drug bill which had been stipulated. Plaintiffs’ amended motion for new trial was overruled and they have appealed.

Appellants on appeal contend to the effect that there was “no evidence” and “insufficient evidence” to support the jury’s findings with respect to plaintiff Margie Rea Martin’s disabilities or any findings less than total and permanent disability, and take the position that the evidence conclusively shows that Mrs. Martin was totally and permanently disabled. Appellants also contend that such jury findings were so contrary to the great weight and preponderr anee of the evidence as to be clearly wrong and manifestly unjust.

For a comprehensive discussion of the law applicable to the determination of such character of points see Chief Justice Calvert’s article “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex. Law Rev., No. 4, p. 361.

It appears from the record that this cause was once tried in September, 1963, and was again tried in February, 1964. This appeal results from the last trial.

Mrs. Martin testified concerning her injuries and disabilities, contending that she injured her back while pulling a tub of water on or about January 10, 1963, during the course of her employment with her said employer.

If her testimony had been fully believed by the jury it would have authorized a verdict for total and permanent disability.

Plaintiffs offered the testimony of one doctor, Dr. DeCharles. He first saw Mrs. Martin on October 1, 1963. He next saw her on October 8, 1963, -then October 22 or 23, 1963, December 5, 1963, and on December 10 and 11, 1963. From Dr. DeCharles’ examinations, tests, x-rays and myleograms made of Mrs. Martin, he was of the opinion that Mrs. Martin had a ruptured disc and was totally and permanently disabled. If Dr. DeCharles’ testimony had been fully believed by the jury it would have authorized a verdict for total and permanent disability.

Plaintiffs also offered certain hospital records with respect to Mrs. Martin, and also offered the testimony of a neighbor, a lay witness, whose testimony indicated that Mrs. Martin was suffering from disability.

Dr. Hanna, a witness called by defendant, testified that he first saw Mrs. Martin on January 18 or 19, 1963. He testified that on that date he examined Mrs. Martin and gave her various tests, which were negative in that they did not indicate Mrs. Martin had any damage to her lumbar nerves or any nerve damage, that he diagnosed her condition as a low back strain, that he gave her diathermy treatments in his office almost daily for sixty to eighty days. Dr. Hanna further testified that he hospitalized plaintiff from March 23, 1963, to April 8, 1963, in Sulphur Springs, Texas, where Mrs. Martin was placed in traction, and where he last examined her on March 29, 1963, and gave her various tests, and still found negative results as to anything that would indicate that Mrs. Martin had a ruptured disc or nerve damages. Dr. Hanna also testified as to x-rays made of Mrs. Martin’s back and found nothing in the x-rays to indicate that Mrs. Martin had a ruptured disc. Dr. Hanna last saw Mrs. Martin on May 6, 1963, and it was his opinion that she was then still suffering from a low back strain, which in his opinion she would fully recover from in 90 days. He further testified that on May 6, 1963, the last time he saw Mrs. Martin, it was his opinion that she was suffering about a 30% disability, which would last about two or three months.

Dr. McConnell, a witness offered by defendant, testified he first examined Mrs. Martin on April 6, 1963, while she was in the hospital. He testified as to the various tests he gave Mrs. Martin and he found nothing to indicate any nerve root damage, and it was his opinion that she presented the symptoms of a chronic low back strain, and he prescribed a back brace for her to wear. He later examined her on April 26, 1963, and it was his opinion then that she was still suffering from a low back strain. Based upon his examinations of April 6, and April 26, 1963, it was Dr. McConnell’s opinion that she then had (on April 26, 1963), a disability of something under 50% which would last two or three months.

The testimony of Drs. Hanna and McConnell supports the verdict of the jury with respect to Mrs. Martin’s disability and the duration thereof. The jury undoubtedly gave more credence and more weight to the testimony of Drs. Hanna and McConnell than to the testimony of Dr. DeCharles and Mrs. Martin.

We hold that there was evidence of probative force to support the jury’s findings with respect to the extent and duration of plaintiff’s disabilities (Issues 6, 7, 8, 9, 10, 11 and 16). Appellants’ points 1 through 6, inch, and point 8 are overruled.

The burden of proof is on a compensation claimant to prove his case in all parts by a preponderance of the evidence. Traders’ & General Insurance Company v. Stubbs, Tex.Civ.App., 91 S.W.2d 407, writ refused (1936).

In á jury case, it is the function of the jury to determine the credibility of the witnesses and the weight to be given their testimony, subject to proper judicial review.

There were some contradictions between the testimony of Mrs. Martin and Dr. Hanna. There were also some differences in Mrs. Martin’s testimony in the first trial and in the second trial with respect to pains radiating down her legs. There were also some contradictions on a matter between Dr. DeCharles and Dr. Hodges with respect to whether Dr. DeCharles had talked to Dr. Hodges about Mrs. Martin’s condition. Mrs. Martin was placed in a Sulphur Springs hospital in November, 1963, by Dr. Hodges, apparently upon the recommendation of Dr. DeCharles. • Dr. Hodges was called as a witness by the defendant and the testimony elicited from him was mainly with reference to whether Dr. DeCharles had talked to him as testified to by Dr. De-Charles. Dr. Hodges was not asked by either party to express an opinion and did not express any opinion as to whether Mrs. Martin had a ruptured disc. On cross-examination Dr. Hodges testified to the effect that it was his feeling that Mrs. Martin had some nerve root irritation in November, 1963; however, on redirect examination he testified to the effect that this feeling was based on subjective complaints of Mrs. Martin and not upon anything he objectively found himself.

The record also indicates that Dr. Gaf-ford (who had treated Mrs. Martin from May 7, 1963, to Sept. 14, 1963, and prior to her going to Dr. DeCharles) testified in the first trial, but did not testify in the second trial. (Mrs. Martin did not go to Dr. De-Charles until after the first trial). This circumstance was also before the jury for whatever weight, if any, it might be given by the jury.

We hold that the evidence is sufficient to support the jury’s findings to special issues Nos. 6, 7, 8, 9, 10, 11 and 16. Also, after carefully considering the entire record in this cause in the light of the rules enunciated in the case of In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our further view that the jury’s findings to special issues 6, 7, 8, 9, 10, 11 and 16 are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points 9 through 16, inclusive, are overruled.

Appellants also sought recovery of Dr. DeCharles’ medical bill, the hospital bill at Tyler where Dr. DeCharles gave the myleogram test to Mrs. Martin, and the bill of Hopkins County Memorial Hospital on the last admission on November 21st, 1963, and these bills were submitted in special issue No. 17 to the jury and the jury by its answer to special issue 17 awarded nothing to plaintiffs for these bills. These are the only bills in controversy here.

The jury having found that Mrs. Martin’s total disability was fourteen weeks and her partial disability was ten weeks, evidently concluded that her disability had ended twenty-four weeks from January 10, 1963, and that Dr. DeCharles’ bill, beginning with first treatment in October, 1963, and the later in time bill of the Tyler hospital, and the November, 1963, bill of Hopkins County Memorial Hospital, were unnecessary bills, as Mrs. Martin had already recovered, and that Dr. DeCharles’ services, the myleogram and the following hospitalization periods were not needed. It was evidently the jury’s view that Drs. Hanna and McConnell were correct in their diagnosis and estimate of Mrs. Martin’s disability. Dr. Hanna testified that he did not think Mrs. Martin’s injury was severe enough to justify a myleogram test. The fact that Dr. DeCharles gave Mrs. Martin a myleogram test does not compel the jury to find that it was necessary, as the jury undoubtedly discounted the testimony of Dr. DeCharles and gave greater credence and greater weight to the testimony of Drs. Hanna and McConnell.

We hold that there was evidence of probative force to support the jury’s finding to special issue 17, that the evidence is sufficient to support same, and that such finding is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points 8 and 16 are overruled.

Appellants by their 17th point contend that the trial court erred in refusing to permit the cross-examination of Dr. McConnell concerning his testimony for insurance companies in previous cases. Counsel for plaintiffs asked the following two questions on cross-examination of Dr. McConnell :

“Q. You examine patients .for insurance companies quite often don’t you doctor?
“Q. Do you testify for a lot of insurance companies, doctor?”

The trial court sustained objections to these questions and they were never answered and the matter was not pursued any further.

It is our view that the trial court erred in sustaining the objections to the two above quoted cross-examination questions. But was it reversible error under the record as a whole? (Rule 434, Texas Rules of Civil Procedure.)

To obtain a reversal of the judgment, appellant has the burden of showing that the action of the trial court in not permitting the witness to answer the two questions on cross-examination was (under the record as a whole) reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.

The reversal of the trial court’s judgment is not justified unless an examination of the record as a whole leads to the conviction that the error was calculated to cause and probably did cause the jury to give the answer it did to all issues which will support the judgment. See State v. Parrish, 159 Tex. 306, 320 S.W.2d 330 (1959) and authorities cited therein.

The Supreme Court of Texas in Parrish (supra) reversed the holding of the Court of Civil Appeals (310 S.W.2d 709) that the trial court reversibly erred in limiting the cross-examination of a witness, and the Supreme Court concluded that the error, if any, was not harmful and reversible under the whole record under Rule 434, T.R. C.P.

In Maddox v. Gulf, Colorado & Santa Fe Railway Co., Tex.Civ.App., 293 S.W.2d 499, wr. ref., n. r. e. (1956), a condemnation case, it was held that upon an examination of the record as a whole, the action of the trial court in refusing to permit a landowner to cross-examine a railroad witness as to the fact that he had testified for the railroad in numerous other condemnation proceedings, was not shown to he reversible error under Rule 434, T.R. C.P. There was a strong dissent in the case, with the dissenting Justice strongly contending that Rules 434 and 503, T.R. C.P., were extending the doctrine of harmless error too far. The majority holding in the cause however was not disturbed by the Supreme Court, with the application for writ of error being refused with the notation, “No reversible error”.

After carefully reviewing the record as a whole in this cause it is our best judgment that the action of the trial court in sustaining objections to the two cross-examination questions above related, while error, was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment in this cause. Rule 434, T.R.C.P.; Maddox v. Gulf, Colorado & Santa Fe Railway Co., supra; State v. Parrish, supra. Also in this connection see the recent case of City of Dallas v. Holcomb, Tex.Civ.App., 381 S.W.2d 347 (1964), wr. ref., n. r. e. in 383 S.W.2d 585 (Tex.). Appellants’ 17th point is deemed as not presenting reversible error under the record as a whole and is overruled.

Appellants by their 18th point contend that the trial court erred in refusing to grant plaintiffs’ motion for new trial for the purpose of adducing newly discovered evidence. The alleged newly discovered evidence was that of Dr. Selman, who was present when Mrs. Martin had her myleogram test in Tyler and who made a fluorcscope test of the patient during that time, and Dr. Selman would have testified to the effect that in his opinion Mrs. Martin had a ruptured disc.

Appellee by its 17th counterpoint contends that the trial court did not err in refusing to grant plaintiffs’ motion for new trial for the purpose of adducing newly discovered evidence because: “(1) that such evidence was known to exist during the trial and with diligence on part of appellants could have been introduced during the trial; (2) appellants and their counsel did know or should have known in the ordinary course of diligence that such evidence did exist; and (3) it was cumulative of that of another of appellants’ doctor-witness and would not likely produce a different verdict if used at another trial.”

On direct examination plaintiffs’ witness Dr. DeCharles testified that at the time x-rays of Mrs. Martin were made at the Tyler Hospital, that three persons were present, himself, a radiologist and a technician. After this testimony was developed during the trial no attempt was then made to secure the testimony of the radiologist, and plaintiffs did not request a recess of the court to attempt to secure the testimony of the radiologist. Dr. Selman was the radiologist who was present; the deposition testimony of Dr. Selman is cumulative to that of Dr. DeCharles, as he is also of the opinion that Mrs. Martin had a ruptured disc.

After carefully reviewing the record we conclude that the trial judge did not abuse his discretion in overruling plaintiffs-appellants’ motion for new trial on the ground of allegedly newly discovered evidence. In this connection see Amsterdam Casualty Company v. Jordan, Tex., 359 S.W.2d 864 (1962) and authorities cited therein. Appellants’ 18th point is overruled.

The judgment of the trial court is affirmed.


author: STORCKMAN, Presiding Judge.

text:
    James P. RADFORD, Respondent, v. Robert RADFORD and Mary Catherine Radford, D. E. Black and State Bank of Poplar Bluff, Missouri, Appellants.
    No. 50694.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.
    Motion to Retax Costs Denied April 12, 1965.

      Byron Kearby, Poplar Bluff, for respondent.
    Henson & Henson, Poplar Bluff, for appellants.
   STORCKMAN, Presiding Judge.

This is a suit for an accounting and for cancellation of a deed to 70 acres of farm land conveyed by the plaintiff to his son. The trial court held the deed to be “void for the reason of a total failure of consideration”, set it aside and vested the title in the plaintiff. On appeal the defendants’ principal contention is that the decree is not supported by the evidence.

Prior to the conveyance in question, the plaintiff James P. Radford was the owner of 140 acres of land in Butler County on which he lived with his wife Belle Rad-ford. They had two sons, Robert and Denver Andrew. For convenient distinction, the plaintiff James P. Radford will sometimes be referred to as Mr. Radford and his sons as Robert and Denver. The appellants, Robert and his wife Mary Catherine, were the only active defendants at the time of the trial. The defendants D. E. Black and State Bank of Ppplar Bluff, Missouri, were joined by reason of their interests in a note secured by a deed of trust on the land in dispute. The note was paid off pri- or to trial and the defendants Black and State Bank did not participate further in the proceedings.

Mr. Radford acquired 100 acres of the land probably about 1936. Robert entered the United States Naval Service on October 21, 1942. He became 21 years of age on December 8, 1942, about two and a half months after he entered the service. Denver, who was about two and a half years older than Robert, went into the Military Service in the spring of 1942. While they were in the service, both boys made allotments of about $35 per month for the support of their parents. Robert was in the service three years, three weeks and one day. He was discharged about November 12, 1945. He married his wife Mary Catherine in 1944. While Robert was in the service, probably in 1945, his father purchased a 40-acre tract adjoining the farm, bringing the total to 140 acres. Robert testified that before he went into the Navy he talked to his father about the 40-acre tract saying that if the owner ever wanted to sell it and his father could buy it he hoped his father would because he, Robert would like to own it some day. Mr. Rad-ford testified he could not remember any such conversation. When Robert got out of the service, he came back to the farm and at least intermittently lived there helping his father with the farm work.

In 1953, however, both Robert and Denver were working away from home. Robert was driving a bus for the St. Louis Public Service Company in St. Louis. Pursuant to a call from their parents, both sons came to Poplar Bluff with their wives on April 8, 1953. On that day all of the parties and their wives went to the office of John C. Corrigan, Jr., where deeds were prepared and were executed by Mr. and Mrs. Radford conveying 70 acres of the farm to Robert and 70 acres to Denver. Robert’s 70 acres included the 40 acres acquired in 1945. Mr. Radford testified he made a “division” of the land saying, “I give Robert the north, forty, signed a deed to the north forty and thirty acres off of the hundred acres.” The remaining 70 acres he deeded to Denver.

The general warranty deed to Robert, in evidence as plaintiffs Exhibit 14, recites a consideration of $2,000 paid to the grantors, Mr. and Mrs. Radford, by their son Robert, “the receipt of which is hereby acknowledged”. Following the description of the real estate, the deed as shown by Exhibit 14 states: “Subject to a note and deed of trust given to State Bank of Poplar Bluff which the said Party of the Second Part assumes and agrees to pay. All taxes and assessments due and payable in the year 1953 and following years are to be paid by the said Party of the Second Part”

Mr. Radford was 74 at the time of the trial on February 11, 1964, and it would appear that he was 63 or 64 years of age in 1953 when the deed was executed. He could neither read nor write and signed the deed with his mark. There is no contention, however, that he did not know the contents of the deed or that its execution by him and his wife was the result of any importuning, persuasion, or undue influence on the part of either of his sons or anyone else. The dominant issue in the case is what the consideration of the deed was and whether it was performed. It is agreed that neither the recited consideration nor any other sum of money was paid at the time the 70 acres was conveyed. The deed was recorded on April 9, 1953, the day following its execution.

There is a house on the 70-acre tract, but it is not clear how long and when Robert and his family lived there after the deed was executed. It does appear that he and his family moved to Bossier City, Louisiana, in March 1960 where they were living at the time of the trial. He was working there as a truck driver. Mr. Radford and his wife Belle were living in a house on Denver’s farm when the deeds were made and they continued to live there probably until the latter part of 1959 or early part of 1960 when they moved to Poplar Bluff in order to be close to medical services for Mrs. Radford who was in ill health. She was six and a half years older than Mr. Radford. She died in Poplar Bluff on January 15, 1961. Mr. Radford did not return to his home on the farm but boarded in Poplar Bluff until about June 1961 when he remarried and moved with his new wife to Dent County near Salem. In August 1961 Robert and his family visited his father and his wife in Dent County and learned that his old age assistance benefits were likely to be terminated because he had moved from Butler County. Later they learned through Denver that the benefits had been discontinued. Beginning about November, Robert and his wife sent Mr. Radford a series of five checks of $20 each which were cashed. The last one was dated April 24, 1962, and shortly thereafter this suit was instituted. The facts stated thus far are without substantial dispute

The evidence in the case consisted of the testimony of Mr. James P. Radford, Robert Radford and his wife Mary Catherine, and letters and copies of checks written by Mary Catherine. Denver Radford whose name was frequently mentioned was not called as a witness by either party. The value of Robert’s 70 acres was variously estimated. Mr. Radford testified it was worth $100 per acre. Robert’s opinion was that the tract would not sell for more than $3500 which would be at the rate of $50 per acre. According to Mr. Radford the cost of the 40 acres was $1500 when it was purchased about 1945 which would be an average cost of $37.50 per acre. About 50 acres of Robert’s tract is in cultivation; the “place has got 5.6 acres of cotton base on it.” The crop rent from Robert’s farm was about $300 per year payable in the fall which was said to be a reasonable rent. Taxes were about $60 or $62 per year. The rentals and taxes were considered to be the same over the years in question. The value of the 70 acres calculated on the basis of capitalized earnings would be much closer to Robert’s notion of its worth than that of his father. The value of the tract, however, is not important except as it bears on the reasonableness of the contentions of the parties.

Contrary to the recitals in the warranty deed with respect to consideration, the petition alleges that the conveyance was made “on the condition and for the consideration that the said Robert Radford would pay off and discharge a deed of trust and note against said property in favor of the Bank of Poplar Bluff, Poplar Bluff, Missouri, for the approximate sum of Sixteen Hundred Dollars ($1600.00) and that the defendant Robert Radford would pay to plaintiff for and during the rest of his natural life the yearly rent from said premises, however, in any event, not less than the sum of Twenty Dollars ($20.00) per month.” There was no evidence to support the allegation that a minimum of $20 per month was to be paid. Further, the evidence disclosed that the note of $1600 was secured by a deed of trust on the entire 140 acres and it was paid off equally by the rents from the two 70-acre tracts.

Mr. Radford testified that after the deeds were made and recorded the rent checks were made payable to Robert and Denver; that the “understanding” was that they “was to pay off what was against it and give me the rent on it as long as * * * me and my wife lived”; that “I was to collect the rent and pay the taxes and that debt that I owed at the bank, why the banker wouldn’t take the boys, and said I am going to hold your dad and the land for the debt, and you can pay him the rent and he can pay this debt off.” Mr. Radford further testified that Robert quit giving him the rent checks after the note was paid off which was about three years after the land was deeded; that he did not at any time ask Robert to give him the rent money from the time the note was paid off until the suit was filed although he saw Robert during that period of time; that he, the plaintiff, drew an old age pension until it was cut off when he “got married to this last woman” and moved to Dent County. Mr. Rad-ford still had some of his furniture in the house on Denver’s place.

Robert testified that when Denver and he were called to Poplar Bluff for the making of the deed, “My mother was already drawing the Old Age Pension, and in order for my daddy to draw it too, he could not draw it and still own the farm, so therefore he deeded it to Denver and I, so that he would be able to draw the Old Age Pension.” Robert’s version of the agreement about the payment of rents was: “Daddy was to collect the rents until the money that he owed at the bank was paid. The rent was to come to Denver and I unless Denver and I had made an agreement between ourselves if daddy needed the rent, he could have it. It was never refused, the rent.” Mr. Radford knew about the agreement between Robert and Denver and may have been present when it was made. Robert further testified that he kept the rent checks from his farm “because my daddy said he didn’t need the rent on the farm, because if he could collect the rent they would take that amount away from his check.” Robert and his wife found out, apparently from Denver, that his father had lost his old age pension and that was the reason they started sending him monthly checks of $20 each. Robert further testified that he would be willing to give his father the rent from previous years if he was able to do so, and under interrogation by the court stated: “From the time he lost his pension and needed it, I say I owe him the rent. Before he lost his pension, he said he did not want the rent.” Robert also testified that his father was not drawing old age benefits on April 8, 1953, but he deeded the land so he would be eligible to do so. Robert did not know when his father’s pension was discontinued but it was sometime after he married his second wife. After the 70 acres was deeded to him, Robert built two more rooms onto the two-room house originally there; he cleared about five or six acres of land, put up fences, and put in an orchard. The cost of the improvements to the house was about $5G0, cost of the orchard $300, and he did not know what the fencing cost. Mr. Radford admitted that Robert made some improvements to the house and cleared some additional land.

Mary Catherine Radford testified that she and her husband lived on the farm for several years after it was deeded to them and prior to March 1960; that Robert and she visited Mr. Radford in August following his remarriage at which time there was talk that he might lose his pension, but thereafter they heard nothing from Mr. Radford directly. They had about three letters from Denver. Three letters written by Catherine Radford and signed “Robert & family” were identified and put in evidence by the plaintiff. They were addressed to Mr. and Mrs. J. P. Radford. The letter postmarked November 26, 1961, stated that this made five letters that she had written without an answer and that they learned from Denver and Doris that Mr. Radford had lost his pension. The letter further stated: “Dad, we can’t give you the rent from our farm because we had to borrow money on our farm for our two trips to Poplar Bluff, Mom’s funeral expenses & also money to make our payments here while he [Robert] was [out] of work. Our crop rent has to go on that debt.” The letter further asked if Mr. Radford would prefer that they send some money each month or borrow the money and send as much as the crop rent was, and that the equivalent of the crop rent would be about $20 per month.

Mary Catherine’s letter dated December 11, 1961, also complained about not receiving any reply to previous letters and not knowing if a box she sent had arrived; she again asked Mr. Radford how he wanted the money sent. In conclusion the letter stated: “Dad you may not care for us but one thing for sure we care for you and love you and want to help you. Regardless of what you have said about us & to us. God gives us a forgiving mind & loving in our hearts for you now & always.” The letter written April 24, 1962, among other things, contained this statement: “Dad I ask [sic] you once before if you needed the $20.00 a month we have been sending to you and you didn’t answer, I’ll ask again. Do you need the money we have been sending to you? I’ll send you a check this month but if we don’t hear from you this will be the last one we will send until we get some work done on our house. Robert isn’t working but 3 days a week and he thinks he can do the work himself while he is off from work so much. But if he can or can’t do it himself it has to be done before we fall through the porch and the windows fall out.” There was no answer to the letter and a short time later this suit was filed.

The decree entered on February 11, 1964, held that the general warranty deed dated April 8, 1953, “from the plaintiff to the defendant Robert Radford is void for the reason of a total failure of consideration and that said conveyance be, and the same is hereby vacated, set aside and annulled and declared of no force and effect”. The decree further found that the title to the real estate was vested in the plaintiff, that the defendants Robert and Mary Catherine Radford had no right, title or interest in it, ordered them to deliver immediate possession of the premises to the plaintiff and assessed the costs against them.

In support of the decree the respondent urges that the plaintiff proved a total failure of consideration and a lack of consideration ; that there is “sufficient evidence of a badge of fraud” because Robert immediately caused the title to be put in the joint names of him and his wife as an estate by the entirety and failed to pay the rents to his father; and that fraud and lack of consideration are interwoven.

The trial court made no finding of fraud and from our examination of the record we have concluded that the evidence does not prove or permit an inference of fraud. The date when the title was put in both names is not shown. It does appear that Robert and his wife made a loan with the property as security on December 7, 1960, but the loan was paid off prior to trial. Neither Robert nor his wife claimed any advantage or made any defense based on the fact that Robert and his wife held the property as tenants by the entirety. It is admitted that Robert turned over the rents to his father until his share of the $1600 loan was paid. Thereafter Mr. Rad-ford did not request that the rents be delivered to him and made no effort to collect them which is consistent with Robert’s testimony that his father did not need or want the crop rents as long as he was drawing old age assistance. Fraud may be established by circumstantial evidence but the showing must be such as to permit a reasonable inference of fraud and not a mere suspicion because where the facts comport as well with honesty as with fraud, the transaction will be deemed to be an honest one. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 302 [25-26]. The claim of fraud is denied.

The cancellation of a deed requires the exercise of the most extraordinary power of a court of equity and it ought not to be exercised except in a proper case; and to justify cancellation the evidence should be clear, cogent and convincing. Allan v. Allan, Mo., 364 S.W.2d 578, 582 [8, 9]; Herrold v. Hart, Mo., 290 S.W.2d 49, 55 [2]; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 466 [2, 3]. Instead of measuring up to this high standard, the evidence is “loose and inconclusive” in several material respects. Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, 92 [15].

The only explanation of the conveyances to Robert and Denver is Robert’s testimony that Mr. Radford wanted to make himself eligible for old age assistance when he attained the age of 65. See Sections 208.010, 208.030 and 208.150, RSMo 1959, V.A.M.S. No other motive or purpose is suggested. Robert concedes that he and Denver agreed between themselves to give their father the crop rents from the farm in case of need and that such need developed when Mr. Radford’s old age assistance was discontinued. Thereafter, and prior to the filing of this suit, Robert sent his father $100 in equal monthly checks. The chief factual dispute is whether Robert agreed to give his father the rents during the interval after the bank note was paid off and before the pension was stopped.

Robert testified positively that his father did not want the rents during that period of time because it would have affected the amount that he was drawing for old age assistance. Mr. Radford testified without objection that Denver sent him the rent checks from his farm during that interval. If this did occur, it is of little or no value as evidence as to what the contract made on April 8, 1953, actually was. What a child does for his' parents usually depends on his disposition and financial ability rather than contract. Denver did not testify and Mr. Radford’s testimony, largely in answer to leading questions, was sometimes equivocal and is not convincing. His conduct is more consistent with Robert’s version of the agreement than his own. Mr. Radford admitted that he did not make any demand on Robert to pay him the rents during that period although it appears that for three or four years of that time Robert and his father lived on the adjoining farms. The undisputed evidence is that Mr. Rad-ford did not make a demand or assert his claim in any fashion for approximately six years after the time Robert was in default according to his present claim. In the meantime Mrs. Belle Radford died and she doubtlessly would have had some knowledge of the facts. This not only has evidentiary value but also savors of laches. See Rebmann v. Rebmann, Mo., 384 S.W.2d 663, 666 [4], The construction that the parties place on their contract as evidenced by their acts and conduct is strong evidence of their real intent.

The evidence is further indefinite and uncertain as to the time and manner in which the $1600 bank loan was paid off. The bank records would have been helpful in this regard; there is no explanation why they were not produced. Also the date when Mr. Radford lost his pension is left to conjecture. It appears that additional and better evidence was available than that brought into court. On the record before us, we are constrained to hold that the plaintiff did not establish a right to recover crop rents from Robert prior to the time that his old age assistance was discontinued. Robert admits an obligation from that time on. Whether it rests on a moral or legal consideration, we need not inquire because Robert assumes the liability by his own admission. Robert is therefore in default with respect to this obligation to his father, and the question remaining is whether Mr. Radford is entitled to cancellation of the deed for lack of consideration or failure of consideration arising out of that delinquency.

“Failure of consideration differs from lack of consideration in that it refers to something subsequent to the agreement, and not to something inherent in the agreement itself. Failure of consideration, like lack of consideration, is not generally considered a sufficient ground for equitable cancellation of an instrument in the absence of some additional circumstance independently justifying this relief, such as fraud, duress, or mistake. But, as in the case of lack of consideration, where there is a failure of consideration equity will seize upon the slightest circumstance of an inequitable nature for the purpose of administering justice in the particular case.” 13 Am.Jur.2d, Cancellation of Instruments § 22, pp. 515-516.

In cases where the consideration of a deed is the promise of the grantee to support the grantor, the courts have reached a variety of results depending on the facts in the particular case. See 50 Am.Jur., Support of Persons §§ 27-30, pp. 886-888; 26 C.J.S. Deeds § 19, p. 614. But this is not a true “support” case because the grantee’s liability is definite and limited to turning over or paying to the grantor the amount of the crop rents each year and furnishing him a dwelling place on one of the farms. All of the evidence indicates that Mr. Radford voluntarily chose not to return to his farm home after his first wife died and he remarried. No breach is claimed in this respect. The amount due in this case can be more readily and accurately determined than in the usual support case. See 92 C.J.S. Vendor and Purchaser § 382 d, p. 323.

A voluntary conveyance of land without consideration is valid as between the parties. Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771 [4]; Binnion v. Clark, 359 Mo. 202, 221 S.W.2d 214, 217 [3], Although it appears that the deed was entirely voluntary on the part of Mr. Radford, the theory of gift need not be relied on because the evidence shows that there was consideration for the deed. The promise of the grantee to support the grantor wholly or in part is sufficient consideration for a deed. Deer v. King, Mo., 30 S.W.2d 980, 982 [4]; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 467 [10]. Furthermore, Mr. Radford stood a chance to benefit from the conveyance in that the amount of old age assistance for which he could qualify equalled or exceeded the income from the farm although the amount he actually received is not shown. See Section 208.150, RSMo 1959, V.A.M.S. The claim of lack of consideration is denied. Even if the consideration for a deed is inadequate, the operative effect of the deed cannot be defeated in the absence of fraud, mistake, undue influence, or some other recognized equitable ground. Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 467 [11].

Generally a failure of consideration implies that a consideration, once existing and sufficient, has became worthless or has ceased to exist or has been extinguished, partially or entirely. Hargrove v. Lewis, Mo.App., 313 S.W.2d 594, 596 [2-4], Failure to perform an agreement as promised is ordinarily not a ground for cancellation of a deed in the absence of additional grounds or circumstances justifying equitable relief. 13 Am.Jur.2d, Cancellation of Instruments § 23, p. 516. There was no clause in the deed providing for a forfeiture, re-entry or reverter on failure to perform the agreement. But, whether we consider Robert’s failure to pay the crop rents to his father after need was established by loss of his old age assistance as a failure of consideration or a nonperformance of the agreement by Robert, the result is the same. We have concluded on the record before us that Mr. Radford has not proved by clear, cogent and convincing evidence any ground for the exercise of equity’s extraordinary power of cancellation. In this view we are supported by these cases among others: Bevins v. Harris, Mo., 380 S.W.2d 345, 350-351 [5]; Spaeth v. Larkin, Mo., 325 S.W.2d 767, 773 [12]; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 467 [11]; Ruff v. Young, 354 Mo. 506, 190 S.W.2d 208, 211 [3]; Long v. Long, Mo., 121 S.W.2d 800, 802 [3]; Deer v. King, Mo., 30 S.W.2d 980, 982 [4]; Shafer v. Shafer, Mo., 190 S.W. 323, 325 [1]; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, 93 [21]. The authorities cited by the respondent involve additional elements and are not controlling on the facts of this case.

The record suggests that there is more in this case than meets the eye. However, the court is not concerned with lack of family accord except as it affects the legal or equitable rights of the parties. Apparently the first and only demand made upon Robert and his wife was the suit to set aside the deed to which relief we have held Mr. Rad ford-was not entitled. A more reasonable and cooperative attitude might have avoided the litigation altogether.

Whether the plaintiff’s remedy at law is adequate or if he is entitled to the security of a lien in equity has not been briefed and we do not decide that question. Also such determination might involve additional facts not in evidence. In this regard, see Bevins v. Harris, Mo., 380 S.W.2d 345, 353-354 [10]; Bragg v. Ross, 349 Mo. 511, 162 S.W.2d 263, 267 [4-6]; Sturdy v. Smith, Mo.App., 132 S.W.2d 1033, 1039 [12]; and Mollett v. Beckman, Mo.App., 78 S.W.2d 886, 890 [5]. Where it appears that the parties may be entitled to equitable relief of a kind not fully developed by the pleadings and evidence, the cause will in the court’s discretion be remanded to afford an opportunity to seek other relief if the parties are so advised. Lucas v. Smith, Mo., 383 S.W.2d 513, 518 [8],

Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

EAGER, J., concurs.

FINCH, J., not participating because not a member of the court when cause was submitted.