text:
    Corbit L. JONES, Appellant, v. UNDERWOOD & WELD COMPANY, Inc., et al., Appellees.
    No. 6849.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.

      Barber & Seale, Jasper, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   PARKER, Justice.

This is a common law damage suit arising out of the collision between a Rambler automobile driven by the plaintiff’s wife and a truck owned by Underwood & Weld, Inc., driven by Delmer Willis Wilson. A jury was empaneled. After both sides had rested, the trial court instructed a verdict for the defendants, Wilson and Underwood & Weld, Inc. Judgment was rendered and entered that the plaintiff, Corbit L. Jones, recover nothing against the defendants. Plaintiff has appealed. The parties here will be designated as in the trial court.

Plaintiff Jones went to trial on his amended petition, alleging negligence on the part of Wilson in the following respects: (1) failing to keep a proper lookout; (2) failing to have the truck under proper control; (3) operating at an excessive rate of speed; and (4) discovered peril. Defendants answered by a general denial and a plea of contributory negligence, in connection with which it was alleged that plaintiff’s wife was traveling on State Highway 105, approaching a through highway upon which defendant’s truck was traveling; that there was a stop sign facing plaintiff’s wife at the intersection; that Art. 6701d, § 67, Vernon’s Ann.Civ.St., provided that no person should start a vehicle which is stopped until such movement can be made in safety, and § 73 provided that a driver of a vehicle shall stop as required by law at the intersection of a through highway and yield the right-of-way. Plaintiff’s sole point of error is:

“The Trial Court erred in instructing a verdict for the defendants, because the evidence raised issues of fact as to whether or not the defendant truck driver Delmer Wilmer Willis was negligent, and as to whether or not the plaintiff’s wife Claudie Mae Jones was contributorily negligent.”

In passing upon this point of error we honor the rule that it is in the province of the jury to resolve conflicts and inconsistencies in the testimony of a witness or between witnesses. This court may consider only that evidence, if any, which, viewed in its most favorable light, would support jury findings in favor of the plaintiff, disregarding all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957). At the same time, this court is bound by the principle that where a litigant admits positive facts which, if true, would defeat his right to recover and such admissions are not subsequently modified by the litigant that he or she is conclusively bound by such admissions and cannot successfully complain if the trial court directs a verdict against the litigant. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569 (S.Ct. 1940).

It is undisputed that the collision took place within State Highway 69, sometimes called Eleventh Street, where Highway 105 intersects it. Highway 69 is a through highway with a speed limit of 50 m.p.h. It runs north and south. The truck was traveling in a southerly direction on Highway 69. At that point, the southbound traffic has two lanes, separated from the northbound traffic by an esplanade. At the intersection of Highway 69 with Highway 105 there is no stop sign for Highway 69 traffic but there is a stop sign for Highway 105 traffic traveling east. The speed of the truck was 45 m.p.h. The speed limit was 50 m.p.h. on both highways.

Plaintiff offered in evidence answers to his request for admissions of fact from the driver of the truck, Delmer Wilson, as follows :

“A. The highway I was driving on is a cement highway. Two lanes for traffic. I don’t recall that any of the lanes were closed. There was other traffic besides the Rambler on the intersecting street that I noticed on my left stopping at the intersection.”
“A. When I first noticed the Rambler it was some distance from the stop sign approaching the intersection. Since the Rambler and also my truck were both moving, it is impossible to make an accurate estimate as to the distance between them at the time, but I would estimate the distance at something between 100 and 200 feet between the two vehicles when I first noticed the Rambler.”
“I was traveling at a speed of approximately 45 miles an hour when I let up on my accelerator. This estimate is based on my driving experience.”

Other admissions so offered are summarized: On or about May 11, 1964, Claudie Mae Jones, wife of plaintiff, was operating an automobile in the City of Beaumont, Texas. On the same day, Delmer Willis Wilson was operating a truck in the City of Beaumont, Texas. On the same date, an automobile operated by Claudie Mae Jones and a truck operated by Delmer Willis Wilson were involved in a collision, which occurred at the intersection of Highway 105 and Eleventh Street in the City of Beaumont, Texas, where the front end of the truck being operated by Delmer Willis Wilson came into contact with the left side of the automobile being operated by Claudie Mae Jones. The foregoing was offered under the adverse party rule. There is no evidence to the contrary.

Plaintiff’s evidence is limited to two witnesses, namely, Corbit Jones and his wife. Corbit Jones, the plaintiff, did not see the accident. He testified he arrived at the scene after his car had been moved off the highway. He talked to the driver of the truck, who told him, “I thought she was going to stop, but she didn’t.” He testified as to a curve on Highway 69 some distance to the left of any automobile stopped on Highway 105 traveling in an eastwardly direction. He said he did not know how far the curve was or where the trees were located. He said that at the place where a car would come to a stop at the stop sign on Highway 105 he didn’t know whether there was anything which would obscure a driver’s vision. He testified that he had never had any trouble seeing cars coming from his left and that the truck involved was a pretty good sized truck.

Plaintiff’s wife was the driver of the Rambler automobile involved in the collision and testified as follows: She was familiar with the road. There was and is a stop sign on the Sour Lake Highway (Highway 105) for traffic traveling east on the west side of Eleventh Street. On frequent trips she had made she noticed the stop sign. It was there on the date of the collision. She drove up to the stop sign and stopped and looked down Highway 69 to the north where traffic is supposed to come from and didn’t see anything. “I started — I pulled out and changed gear from low to second, and that’s all I know.” She looked down the highway to her left which was the direction from which traffic was coming, that is to the north. She came to a complete stop, went into low gear, saw no traffic to her left approaching, started across and shifted into second gear. The next thing she remembered there was a man in the car with her and the car was stopped. She testified, “I don’t know just how it happened, but I know where it happened.” She was intending to cross the southbound lanes of Eleventh Street. She admitted there were no stop signs on Highway 69 at that intersection. Having traveled that route before, she knew traffic coming from the left would come straight through the intersection and with no traffic signs requiring it to stop, but there was one that required her to stop. She also gave the following testimony:

“Q. Were there any — looking to the left in the direction traffic would come from Eleventh Street, are there any houses or trees or shrubs there at that intersection ?
A. I don’t remember.
Q. Is there anything in the world that would obscure your vision to your left, if you had looked?
A. There were two curves farther down that way.
Q. About how far away are the curves ?
A. I don’t know. I am not a judge of distance like that.
Q. The highway is level there; isn’t it?
A. As far as I know.
Q. Were those sharp curves or gradual curves?
A. One is kind of an ‘S’ curve, I believe.
Q. Are those curves as much as a block or two blocks away?
A. I just don’t know if they are.
Q. You can’t give us any idea?
A. No, sir. I could carry you and show you. Otherwise, I don’t know about distance.
Q. Is there anything from the place you stopped to your left even on past the curves that would block your vision, any trees, shrubs, or any signs are [or] anything?
A. I don’t believe.
Q. At the time you started up, did you see the truck coming?
A. No, sir.
Q. Did you know where it was?
A. No, sir.
Q. Do you know whether or not it was ten, fifteen, twenty, feet away ?
A. I don’t know where it was.
Q. Is there anything that kept you from seeing it, if you looked?
A. No.
Q. Do you have any explanation as to why you couldn’t see it?
A. No, sir.
Q. Did you start up fast or did you start up slow?
A. I started like I always did. I never start off fast, not what I call fast.
Q. After you started up, did you look to your left?
A. I don’t remember.
Q. After you started up, if you had seen the truck coming, is there anything that would have kept you from stopping and giving him the right-of-way?
A. No, not to keep me from stopping; I could have got on the brakes is all.
Q. Do you know how fast you were going at the time—
A. No, sir.
Q. * * * this collision took place?
A. No sir. I don’t.
Q. From the time you started up, did you continue to move forward or did you slow down at any time after you started up?
A. I just changed to second gear, like I normally do.
Q. This was a car in which you shifted gears manually?
A. Yes.
Q. It wasn’t automatic; was it?
A. No.
Q. Did you give any kind of signal that you were going to start up there ?
A. No.
Q. Did you give the driver of the truck any warning after you stopped there, that you were going to start up and go across the highway?
A. I didn’t see no truck.
Q. I assume, since you didn’t give him any warning, you were going to start up—
A. No, not necessarily, if I didn’t see him.
Q. How far did you move before this accident occurred?
A. I don’t know.
Q. You don’t know whether you moved five feet or ten feet?
A. No, sir. I don’t.
Q. Fifteen feet?
A. No, sir. I don’t.
Q. How about the car stopped on your right; did that car move forward, or do you know?
A. I don’t know. I just sorta stopped, and that’s all I know.
Q. So you don’t know whether the car on your right, whether it ever started forward or not?
A. I think I do. I think it started up when I did. I’m not sure, now, about it, but I think I do—
Q. Was that car struck in any way?
A. Not that I know of.
Q. That car that was on your right; that wouldn’t have obstructed your vision for the truck on your left; did it?
A. Not at all.
Q. This accident happened when it was still daylight?
A. Yes, sir.
Q. Now that Eleventh Street, that is a pretty-heavily-traveled highway; isn’t it?
A. I would think so.
Q. In other words, all the traffic coming in from Silsbee on Highway 69 as well as Kountze, all of it has to come through there into Beaumont on this through street in front of you?
A. As far as I know. I don’t know too much about the traffic through there, because—
Q. You never did see the truck until after the collision had already taken place ?
A. No, I didn’t. I certainly wouldn’t have pulled out in front — out from that stop sign had I seen that truck coming.
Q. But there wasn’t anything to keep you from seeing it; was there?
A. I don’t know what prevented it, but I didn’t see it.”

Plaintiff produced no probative evidence raising issues of negligence and proximate cause or discovered peril relied upon by him for recovery. Appellant’s point of error is overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    In the Matter of the GUARDIANSHIP OF the ESTATE of Elizabeth M. NEAL, a person of unsound mind, Appellant.
    No. 14933.
    Court of Civil Appeals of Texas. Houston.
    Sept. 22, 1966.
    Rehearing Denied Sept. 27, 1966.

      M. W. Parse, Jr., Paul E. Martin, Thomas J. Brorby, Houston, attorneys; Fulbright, Crooker, Freeman, Bates & Ja-worski, Houston, of counsel, for appellant.
   WERLEIN, Justice.

Appellant, Bank of the Southwest National Association, Houston, in its capacity as Guardian of the Estate of Elizabeth M. Neal, a Person of Unsound Mind, hereinafter referred to as the Ward, made application to the Probate Court of Harris County, Texas, on April 20, 1966 for authorization to make a gift of $1,500,000.00 from the estate of the Ward to the residuary legatees under her will in order to minimize estate taxes that would become due upon her death. There was no opposition to the application of appellant at any stage of the proceedings. The application of appellant was denied by the Probate Court and on appeal to the District Court judgment was entered denying the same. This case is one of novel impression in Texas.

Pursuant to the request of appellant, the trial court made the following findings of fact and conclusions of law, which clearly set out the facts and the reasons which prompted the filing of appellant’s application and the conclusion of the trial court.

FINDINGS OF FACT

“1. The Ward is a ninety-six year old widow who has been adjudicated a person of unsound mind. The Ward is presently of unsound mind and body and in all probability will never regain sufficient mental or physical capacity to manage her property and financial affairs, and in all probability will never again be able to understand the nature and effect of making a disposition of her property, including the making of a new will or codicil.

“2. The present value of the estate of the Ward subject to the guardianship is approximately $2,400,000 with an annual income of more'than $90,000. Additionally, the Ward has an interest in two trusts, both managed by the Guardian as trustee, one created by the Ward’s husband and the other created by the Ward herself. Properties in the first trust are valued at approximately $5,467,000 with an annual average taxable income for the past several years of $146,000. The second trust includes properties valued in excess of $1,-395,000. The annual average taxable income from the properties in this trust is approximately $38,000. Accordingly, properties valued in excess of $9,260,000 with a yearly income of approximately $274,000 are available for the Ward’s care and maintenance.

“3. Expenses for the Ward’s care and maintenance for the year beginning May 4,1965 and ending May 4,1966 totalled $62,-000.

“4. Should the gift proposed by the Guardian be made, the needs of the Ward would still be adequately provided for and the Ward would continue to enjoy the standard of living to' which she is accustomed.

“5. The Ward’s heirs at law are her three grandchildren, James Robert Neal, Nina Neal Cullinan and Marion Neal Ru-bey. All of such heirs are in favor of the making of the gift proposed by the Guardian.

“6. Under the Ward’s Will and Codicils thereto, the residue of her estate is left to James Robert Neal, Nina Neal Cullinan and in trust for the children of Marion Neal Rubey.

“7. The gift proposed by the Guardian would be made in trust for the benefit of James Robert Neal, Nina Neal Cullinan and the children of Marion Neal Rubey in the same manner as the Ward provided for the disposition of the residue of her estate in such Will and Codicils. The proposed trust agreement provides that no distribution of principal could be made from the trust until five years after the death of the Ward or until all litigation with respect to her estate has been concluded, whichever is later.

“8. During a period of almost thirty years prior to her disability due to advanced age, the Ward made outright gifts totaling $912,174.15 to James Robert Neal, totaling $762,458.84 to Nina Neal Cullinan and totaling $852,397.38 to Marion Neal Rubey or her children. The Ward was cognizant and appreciative of the tax advantages of decreasing the size of her estate, and made gifts to her grandchildren not only for the purpose of enabling them to have the present enjoyment of her estate, but also to reduce her estate so that upon her death, estate taxes would in turn be minimized.

“9. In 1956 the Ward gave to her three grandchildren equal undivided interests in one-half of a certain tract of land situated in the Memorial section of the City of Houston, Texas (the “Memorial property”). At the time this gift was made, the Ward informed her tax advisor, Jay Phillips and her grandchildren that she intended to make an inter-vivos gift of the remaining Memorial property to her grandchildren within the next few years. However, because of her disability due to advanced age, the Ward was unable to carry out this intention. The remaining Memorial property constituted the principal asset in her guardianship estate at the time of the Guardian’s appointment and has since been sold. The proceeds of sale exceed the amount of the proposed gift.

“10. On all of the evidence in this proceeding and on the preponderance of the evidence, the Court finds that the Ward, if of sound mind, would make the gift of $1,500,000 as requested by the Guardian in this proceeding. In further support of this finding, the Court makes the following special and detailed findings, that is, the Court finds as facts that if the Ward were competent:

“A. Jay Phillips, a senior tax accountant and advisor and partner of the accounting firm of Haskins & Sells, who has been the Ward’s principal estate planning advisor for many years, would have made known to her the facts disclosed by the record in this proceeding.
“B. Jay Phillips and each of the Ward’s grandchildren would recommend to the Ward that she make the proposed gift for her own benefit and for the benefit of the natural objects of her bounty.
“C. The Ward would know and would consider (among other things) the facts that:
“(1) She is nintey-six years of age, is seriously ill, and that her life might end suddenly at any time;
“(2) She could not in all probability need or intelligently spend any substantial part of her annual income or any part of the principal of her estate and that the making of the proposed gift would not endanger or jeopardize the provisions for her care and upkeep and would not endanger or jeopardize the carrying out of the bequests set forth in her Will and Codicils thereto;
“(3) Taking the action recommended to her would decrease the value of her residuary estate at her death and materially benefit the objects of her bounty;
“(4) Her three grandchildren, the natural objects of her bounty over a period of many years and the testamentary residuary takers of her estate, had recommended that the proposed gift be made;
“(5) That the other legatees named in her Will and Codicils thereto would not be adversely affected by the recommended action.

“D. The Ward would believe what was said to her by the persons advising her and would accept their opinions and recommendations as sincere, wise and proper and would rely upon the soundness of the advice so given to her, and the Ward would make the proposed gift as recommended to her.

“11. The primary purpose of the proposed gift is to preserve the estate of the Ward- by reducing the amount of estate taxes due upon her death. Even though the Ward dies within three years after the gift is made and the amount of the gift is included in her gross estate for Federal estate tax purposes as a ‘gift in contemplation of death,’ a Federal estate tax savings of approximately $240,000 will result because the ‘gross estate’ of the Ward for Federal estate tax purposes will be reduced by the amount of the Federal gift tax paid, and the gift tax paid will be allowed as a credit against the estate tax. Should the Ward survive for at least three years after the date of the gift, the estate tax savings would be almost double that amount.

“12. Jay Phillips and Ken Studdard, tax accountants with the accounting firm of Haskins & Sells, who have had years of experience as estate planning advisors, both testified and the Court finds as a fact that considering all of the facts and circumstances, a prudent man owning and managing the Ward’s estate would make the proposed gift.

“13. The Guardian in presenting this application to the Probate Court and to this Court has incurred attorneys’ fees in the amount of $15,<000.00, accountants’ fees in the amount of %2,000.00, witness fees in the amount of §500.00, all of which fees and expenses are reasonable. Should the application of the Guardian be approved, a Guardian’s fee of §3,000.00 in lieu of the statutory fee of 5% would be reasonable.

“CONCLUSIONS OF LAW

“1. If express statutory authority existed for a Guardian to make a gift of the Ward’s property for the primary purpose of minimizing estate taxes, this Court would authorize that the proposed gift be made on the facts and evidence presented in this case.

“2. It is the Court’s conclusion, however, that there is no such authority granted by statute. Since this is a case of first impression in this State, this Court should not determine that such authority exists by implication. Accordingly, the Guardian’s application will be denied.

“3. In view of the holding that the Court should not approve the Guardian’s application, the Court cannot authorize the Guardian to pay reasonable accountant’s fees, attorneys’ fees and other expenses incurred in this proceeding.”

The question presented for determination by this Court is whether under the foregoing facts as set out in the trial court’s findings of fact, the guardian has the power and authority to make the proposed gift from the Ward’s estate, where the Ward would make such gift, if competent, as recommended by her advisors.

Appellant asserts that the trial court erred in denying its application because a guardian has the common law power under Section 32 of the Probate Code of Texas, V.A.T.S., to make a gift from the ward’s estate where the ward, if competent, would do so, when the exercise of such power would not conflict with the provisions of the statutes of this State. Section 32 of the Probate Code reads as follows: “The rights, powers and duties of executors, administrators, and guardians shall be governed by the principles of the common law, when the same do not conflict with the provisions of the statutes of this State.”

It will be noted that this section of the Probate Code by its silence denies be implication the exercise by the Probate Court of equitable powers. But even if the words, “principles of the common law,” are construed to include equitable powers, this section of the code does not grant to the court common law powers, but merely provides that the rights, powers and duties of executors, administrators, and guardians shall be governed by the principles of the common law, when the same do not conflict with the provisions of the statutes of this State.

Under the common law, if construed to include equitable powers, a guardian has the power and authority to make a gift from the ward’s estate where the evidence shows that the ward, if sane, would make the gift. In Ex parte Whitbread, 2 Mer. 99, 35 Eng.Rep. 878 (Ch. 1816), the lord chancellor authorized certain payments out of the ward’s estate for the benefit of his brothers and sisters who were found to be in need. The court said: “ * * * and if we get to the principle we find it is not because the parties are next of kin of the Lunatic, or, as such, have any right to an allowance, but because the Court will not refuse to do, for the benefit of the Lunatic, that which it is probable the Lunatic himself would have done.” Appellant has cited certain later English cases following the doctrine announced in the Whitbread decision, and asserts that such doctrine has also been followed in a number of American jurisdictions, including New York, Delaware, North Carolina, Iowa, Missouri, Kansas, Michigan, New Jersey, Pennsylvania and Washington, but has been rejected in other jurisdictions, namely: Rhode Island, Tennessee and Maryland. See Annotations in 34 L.R.A. 297, 59 A.L.R. 653, and 160 A.L.R. 1435.

Appellant cites City Bank Farmers Trust Company v. McGowan (1945), 323 U.S. 594, 65 S.Ct. 496, 89 L.Ed. 483, an internal revenue case. In that case the ward was over seventy years of age and had an average annual income of $300,000.00 with expenses not exceeding $50,000.00 per year. Prior to the death of the ward, the Supreme Court of New York had authorized the guardian to make gifts to the ward’s daughter and grandsons out of her income in the total amount of almost $1,400,000.00, although neither the daughter nor the grandchildren of the ward were in need of the funds for support and maintenance. The Supreme Court of the United States said: “We hold, therefore, that where, as in New York, the court is to substitute itself as nearly as may be for the incompetent, and to act upon the same motives and considerations as would have moved her, the transfer is, in legal effect, her act and the motive is hers.”

In Frank J. Trau v. Frank Scofield, 47-2 U.S. Tax Cas., par. 10579 (W.D.Tex. 1947), the Federal District Court approved the authorization of gifts from a guardianship by a Texas Probate Court. The court concluded as follows:

“The motives for these payments were the sons’ need of the funds and the guardian’s view that Mrs. Percy (the ward) would have made such gifts if sane. None of such payments was made in contemplation of Mrs. Percy’s death. Such payments were validly made under State Law.”

It will be noted in such case that the sons were in need of funds, whereas in the instant case no need exists on the part of the proposed donees.

Appellant also cites several cases from other jurisdictions which have discussed the power and authority of guardians to make gifts for the primary purpose of minimizing taxes, including In re DuPont, Del.Ct. of Chancery 1963, 194 A.2d 309; In re Carson, 1962, 39 Misc.2d 544, 241 N.Y.S.2d 288; and In re Trusteeship of Kenan, 1964, 262 N.C. 627, 138 S.E.2d 547. We are of the opinion that it would unduly lengthen this opinion and serve no useful purpose to discuss these cases, especially since it is our view that the present case must be decided in consonance with the statutes of this State. There is no specific authorization in the Probate Code for gifts such as those proposed by appellant. Section 230 (b) of the Probate Code provides: “The guardian of the estate of a ward is entitled to the possession and management of all properties belonging to the ward, to collect all debts, rentals, or claims due such ward, to enforce all obligations in his favor, and to bring and defend suits by or against him; but, in the management of the estate, the guardian shall be governed by the provisions of this Code. It is the duty of the guardian of the estate to take care of and manage such estate as a prudent man would manage his own property. He shall account for all rents, profits, and revenues that the estate would have produced by such prudent management.”

Appellant forcefully argues that under said Section 230 (b) the guardian must manage the ward’s estate as a prudent man would manage his own property and that the trial court, therefore, erred in denying its application since the court found that a prudent man would make the proposed gift. This section of the Probate Code must be construed in conjunction with other statutory provisions which set out more specifically what a guardian may do and by implication what a guardian may not do in the management of the ward’s estate. We are of the opinion that in construing the general provision in Section 230 (b) with respect to the management of the ward’s estate the following pertinent sections of the Probate Code should be considered:

“Section 398. Contributions
“(a) Application. The guardian may at any time file his sworn application in writing with the county clerk, requesting the court in which the guardianship is pending to enter an order authorizing the guardian to contribute from the income of the ward’s estate a specific amount of money, stated in said application, to one or more designated corporations, trusts, or community chests, funds, or foundations, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to some one or more designated non-profit federal, state, county, or municipal projects operated exclusively for public health or welfare.”
“(c) Action of the Court. Upon the conclusion of such hearing, if the court is satisfied and finds from the evidence that the amount of the proposed contribution stated in the application will probably not exceed twenty per cent of the net income of the ward’s estate for the current calendar year, and that the net income of the ward’s estate for such year exceeds, or probably will exceed, Twenty-five Thousand Dollars, and that the full amount of such contribution, if made, will probably be deductible from the ward’s gross income, in determining the net income of the ward under the applicable income tax laws, rules, and regulations of the United States of America, and that the condition of the ward’s estate is such as to justify a contribution in said amount, and that the proposed contribution is reasonable in amount and is for a worthy cause, the court in its discretion may enter an order authorizing the guardian to make such contribution from income of the ward’s estate to the particular donee designated in said application and order. When such order has been entered and filed with the county clerk, the guardian shall be entitled to make such contribution, but he shall not be entitled to any commission or compensation by reason thereof or in connection therewith”; and,
“Section 421. Support of Ward’s Family
“The court by which any incompetent is committed to guardianship may make orders for the support of his family and the education of his children, when necessary.”

In Seley v. Howell, Tex.Com.App. 1926, 115 Tex. 583, 285 S.W. 815, the court construed the word “family” as used in Article 4275 of Vernon’s Annotated Civil Statutes, now Section 421 of the Probate Code, to include the ward’s destitute mother, although the ward was under no legal obligation to support her. It should be noted, however, that the authority included in Section 421 is limited by the words “when necessary.” The court said:

“Indeed, the only authority which the guardian of such person has or which the probate court itself, as to that, has, if it exists, must be found in the statute quoted. The court is given authority to make orders for the support of the ‘family’ of the person of unsound mind and the education of his children when necessary, but the statute nowhere defines the word ‘family’ in this connection. * *

It seems clear that Seley v. Howell does not adopt the doctrine of substitution of judgment through the broad general provision of Section 230 (b) of the Code with respect to management of the Ward’s estate as urged by appellant. The express provision with respect to the court making orders for the support of the Ward’s family and the education of his children, when necessary, negates any legislative intent to permit the making of such orders when not necessary for the support of the family (Emphasis supplied.) The applicable rule of law here is so ancient that it has come down to us in the form of a Latin Maxim: Expressio unius est exclusio alterius.

Section 398 (a) has no direct bearing on the case at bar as it relates to contributions from the income of the Ward’s estate to certain organizations operated exclusively for religious, charitable or educational purposes or certain projects operated exclusively for public health or welfare. But it will be noted that such contributions are strictly limited by the provisions of Section 398 (c). The court must be satisfied that the amount of the contributions will probably not exceed twenty per cent of the net income of the Ward’s estate for the current year, and that the net income of the Ward’s estate for such year exceeds or probably will exceed $25,000.00, and that the full amount of such contribution will probably be deductible from the Ward’s gross income in determining the net income of the Ward under applicable income tax laws, etc., all as provided in said Section of the Code.

The enactment of Section 398 of the Probate Code would not have been necessary if the Probate Court could have exercised the power granted therein without such enactment. Moreover, such section sets out in detail the conditions under which the charitable gift may be made, and would seem to negative the doctrine of substitution of judgment. It is our view that this section of the Probate Code strongly indicates the legislative intent to confer upon the court a power and authority, which it was believed the court did not have prior to such enactment, namely, to make gifts out of the income from the Ward’s estate.

We have found nothing in the Probate Code or the Statutes of this State expressly or impliedly conferring upon the court the power and authority to make a gift such as that proposed by appellant. The Texas cases relied upon by appellant involving the application of the “prudent man” provision in Section 230 (b) of the Code, are all distinguishable. They do not stand for the proposition that the court may authorize the giving away or depleting the Ward’s estate, but rather that the court may in a proper case enter an order which would result in protecting or preserving the estate. For example, in Stillwell v. Standard Savings & Loan Ass’n, Tex.Civ.App., 30 S.W.2d 690, err. dism’d, relied upon by appellants, the court authorized the guardian to borrow money and fix a lien on the interest of the minor as well as that of the guardian in the property in question in order to preserve the property of the minor and make it tenable.

We have concluded that any order authorizing the gift proposed by appellant in this case would be in excess of the power delegated by the Statutes of this State and would be invalid. We therefore affirm the judgment of the trial court in so far as it denies the application to make the gift in question. See Commander v. Bryan, Tex.Civ.App. 1938, 123 S.W.2d 1008 n. w. h.; Glasgow v. McKinnon, 1890, 79 Tex. 116, 14 S.W. 1050.

We sustain appellant’s assignment that the trial court erred in holding that it could not allow the reasonable expenses incurred in connection with this proceeding unless it approved the guardian’s application. Section 242 of the Texas Probate Code provides that personal representatives of estates shall be entitled to all necessary and reasonable expenses incurred in the management of the estate and all reasonable attorney’s fees necessarily incurred. The court found that the guardian has incurred attorney’s fees in the amount of $15,000.00, accountant’s fees in the amount of $2,000.00 and witness fees in the amount of $500.00, and that all of such fees and expenses are reasonable. The court further found that a prudent man owning and managing the ward’s estate would make the proposed gift.

In view of the trial court’s findings, the evidence, and the duty imposed upon appellant by Section 230 (b) of the Probate Code to manage the ward’s estate as a prudent man would manage his own property, we are of the opinion that a bona fide effort by appellant to determine whether it should make the proposed gift and obtain a judicial decision as to such matter, was warranted, and that appellant in filing its application acted as a prudent person would have done.

In the early case of Caldwell v. Young & Morgan, 21 Tex. 800 (1858) our Supreme Court set forth the test to be applied in determining whether expenses of a guardian incurred in a law suit should be allowed. The Court said: “ * * *. The true test is, would a prudent man, under all the circumstances, as they existed at the time, judge it to be proper and necessary to bring and prosecute the suit to protect the interest of the minors, and would he judge it necessary and proper to make the employment of counsel to prosecute the suit. If so, then such employment would be a necessary and reasonable expense, which should be allowed to the guardian.”

This test has been approved and applied in Gibson v. Gray, 1897, 17 Tex.Civ.App. 646, 43 S.W. 922; Huff v. Huff, 132 Tex. 540, 124 S.W.2d 327 (1939); and American National Bank of Beaumont v. Biggs, Tex. Civ.App., 274 S.W.2d 209, writ ref., n. r. e. In Huff v. Huff, the Court said:

“The alleged will offered for probate named J. H. Huff independent executor of the estate of Mrs. Huff. This gave him the right to offer the will for probate; and if it appeared that he, as such executor, was acting in good faith to probate such will, and employed an attorney, or attorneys, for that purpose, the estate is properly chargeable with a reasonable fee for such services. See 14 Tex.Jur., sec. 652, p. 476; see also Note, 69 A.L.R. 1052. The fact that the attorney was unsuccessful in the suit, and that the probate of the will was denied, would not prevent an allowance for a reasonable fee. * * * ”

Judgment of the trial court insofar as it denies recovery by appellant of the fees hereinabove set out is reversed and rendered, otherwise affirmed.

Affirmed in part and in part reversed and rendered.


author: WILSON, Justice.

text:
    James T. DOSS et ux., Appellants, v. M. I. HONEYCUTT, Appellee.
    No. 4513.
    Court of Civil Appeals of Texas. Waco.
    July 28, 1966.
    Rehearing Denied Sept. 22, 1966.
    Luna & Vaughan, Kenneth Vaughan, Dallas, for appellants.

      Harless, Bailey & Youngblood, Bill W. Bailey, Dallas, for appellee.
   OPINION

WILSON, Justice.

This action is in trespass to try title by Honeycutt against Doss, who answered by the statutory plea of not guilty, and a prayer for cancellation of a contract of sale note and deed of trust on the ground plaintiff had represented the land described was not encumbered by a vendor’s lien. There was also a cross-action in trespass to try title and a count seeking cancellation, alleging Doss had paid more than the amount required by the contract of sale, and that Honeycutt had attempted foreclosure of the deed of trust on six lots before the note was due. The jury returned a negative answer to an issue inquiring whether Honeycutt had represented the title was unencumbered. This finding is not attacked. The remainder of the verdict concerned damages for rental values. Honeycutt obtained judgment for title and possession of the property. We affirm in part, and in part reverse and render judgment.

Doss, in the conclusion to his brief, summarizes his contentions: (1) Honeycutt’s foreclosure under the deed of trust was premature, and (2) a $6000 note he executed should be cancelled.

The initial points are that appellants’ motion for instructed verdict should have been granted because the deed of trust lien was foreclosed before the note was due, and when there was no default; because no demand for payment or notice of acceleration was given; and that pendente lite there had been foreclosure of a lien on apartment property securing a previous indebtedness.

By the contract of sale Doss agreed to purchase the apartment property for $44,-500, of which $3000 was paid in cash. The balance of $41,500 was payable in monthly installments of $297.33 beginning August 1, 1961. It was agreed further that when Doss had paid to Honeycutt “$5,500 principal on the balance owing, which said sum would make a balance owing seller in the sum of $36,000”, the apartment property would be conveyed by deed and a title policy furnished. Doss also agreed to “assign” to Honeycutt a note “secured by” six lots, “not as a sale of the note, but as ‘Additional Collateral’ put up by the purchaser to secure the indebtedness owed the seller.” (There was no “assignment”, and the parties offer no explanation of the provision).

Doss executed at the same time a $6000 note payable on or before June 21, 1967, secured by deed of trust on the six lots providing for accelerated maturity at holder’s option, in case of default in payment of the indebtedness, without demand, presentment or notice. It required Doss to pay taxes on the six lots.

Doss also agreed to pay “the total sum of at least $6,000 on the unpaid indebtedness on or before six years from” July 1, 1961, at which time it was stipulated Honeycutt would “release the note on the six lots”. The latter agreement, it was recited, “does not operate against the usual monthly payments”.

The six lots were conveyed to Honeycutt by trustee’s deed reciting sale under power in the deed of trust held on January 5, 1965. It was stipulated Doss was the common source of title to the apartment property and the six lots.

On December 15, 1964 Honeycutt notified Doss by letter that since he was in default of monthly payments under the contract of sale the contract would be declared forfeited in ten days. On February 1, 1965 Doss was notified by Honeycutt that the contract was “declared forfeited.” It was established without controversy that Doss defaulted in the monthly payments required by the contract of sale after October, 1964. This evidence, prima facie, established Honeycutt’s right to judgment for title to the apartment property.

Because there is testimony in the record indicating that the holder of a prior deed of trust on the apartment property executed by Honeycutt had been foreclosed after this suit was instituted, Doss argues that he established an outstanding title precluding recovery by Honeycutt in trespass to try title. The rule is otherwise; plaintiff’s judgment here inures to the benefit of his grantee if title was transferred pendente lite. Heard v. Vineyard, Tex.Com.App., 212 S.W. 489; Tex.Jur.2d Sec. 8, p. 75.

In our opinion the judgment for appellee as to the apartment property should be affirmed.

Honeycutt’s answers to the contention that his trustee’s deed to the six lots was by virtue of foreclosure of a lien securing a debt not due, are: (1) The note recites it is “additional security in connection with the contract of sale,” and the note was “intended to represent the deferred down payment” of $5500 under the contract of sale; and since there was a default in payment under that contract, acceleration of maturity was authorized under the deed of trust; and (2) Doss failed to pay taxes on the lots.

As to the first answer, when the note is considered in connection with the contract of sale and the deed of trust, acceleration was not authorized. The deed of trust did not secure payment of the monthly installments, nor authorize foreclosure under the power of sale in case of default in such payments. It secured payment of the $6000 note. The note was not in default.

The deed of trust required Doss to keep the taxes paid. The only evidence as to non-payment of taxes is the testimony of Mrs. Doss that she did not pay the taxes for 1964 because Honeycutt had taken possession before they were due. Honeycutt testified that he paid the taxes on February 20, 1965. The deed of trust provided that recitals in the trustee’s deed should evidence the truth thereof, and it should be presumed that all prerequisites of sale were performed. The trustee’s deed recited a default in the payment of “indebtedness” set out in the deed of trust. It contains no recital as to non-payment of taxes, and the sale does not purport to be authorized on this ground.

In our opinion the judgment awarding to Honeycutt title to the six lots is not authorized because the sale on which Honeycutt’s title rests was not authorized. That portion of the judgment is severed, and judgment is rendered that plaintiff take nothing as to lots 7, 8, 9, 18, 19 and 20, Block E/7590 of Beckley Gardens Addition, City of Dallas, Dallas County, Texas. The judgment is affirmed as to the apartment property, lot 6, Block 23/3276, Winnetka Heights Addition to said City of Dallas.

This judgment leaves appellants’ cross-action for cancellation of the $6000 note and deed of trust on the ground of payment undisposed of. The contract of sale provides Doss is to pay $6000 “on the unpaid indebtedness” on or before July 1, 1967, whereupon “seller agrees to release the note on the six lots”. The provision is qualified: “This clause does not operate against the usual monthly payments”. Appellant paid to Honeycutt a total of $11,-595.87 while collecting and retaining rents from the apartment. From the ambiguous quoted provision the record presented does not enable us to ascertain the intent of the parties or whether the note has been paid so as to authorize cancellation on that ground. Since appellant has rescinded or declared “forfeited” the contract, however, the note and deed of trust which were admittedly parts of the single, unified and entire contract, are without further effect. Roberts v. Lovejoy, 25 Tex. (Supp.) 437; O’Con v. Hightower, Tex.Civ.App., 268 S.W.2d 321, writ ref. Judgment is here rendered declaring the note and deed of trust on the six lots to be without further force or effect. Other points are overruled. The remainder of the judgment is affirmed. Costs on appeal are adjudged one-half against appellants, one-half against appellee.


author: STEPHENSON, Justice.

text:
    Lavada KENNBREW, Appellant, v. O. M. LEVIAS, Jr., et al., Appellees.
    No. 6844.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    Rehearing Denied Oct. 5, 1966.
    Barber & Seale, Jasper, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellees.
   STEPHENSON, Justice.

This is an action for damages arising out of an automobile-truck collision.

Judgment was rendered that plaintiff take nothing based upon the answers of the jury to special issues submitted to them. Plaintiff was the driver of the automobile. Defendant Couch was the driver of the truck and was employed by defendant Levias, who was the owner of the truck. The parties will be referred to here as they were in the trial court.

The pleadings and evidence showed that both the automobile and' the truck were being driven in a southerly direction on Highway 96 in Kirbyville, Texas, at the time of the collision. It is undisputed that the automobile was struck from the rear by the truck.

The jury reported to the court that it was hopelessly deadlocked, but that it had answered some of the special issues. The jury found: That defendant Couch was not driving at an excessive rate of speed. That defendant Couch failed to keep a proper lookout which was a proximate cause of the collision. That plaintiff failed to give a signal of her intention to stop her car which was negligence and a proximate cause of the collision. That plaintiff failed to give a signal of her intention to turn left which was negligence but not a proximate cause of the collision. That plaintiff stopped suddenly in defendant’s path but that such act was not negligence. That plaintiff failed to keep a proper lookout but such failure was not a proximate cause of the collision. That defendant Couch was not confronted with a sudden emergency. That the collision was not the result of an unavoidable accident. That plaintiff did sustain personal injuries.

Plaintiff’s first point is that there was an irreconcilable conflict in the findings of the jury that plaintiff’s negligence in failing to give a signal of her intention to stop was a proximate cause of the collision with the findings of the jury that plaintiff’s negligence in failing to give a signal of her intention to turn left was not a proximate cause of the collision.

The evidence is conflicting as to whether plaintiff gave any signal. Plaintiff testified that she signaled a left turn by using the directional signal, or “blinkers” as plaintiff described them. Defendant Couch testified that plaintiff gave no signal.Plaintiff admitted that she did not hold out her hand to indicate she was stopping and did not give any hand signal. Plaintiff testified she had stopped waiting to make a left turn for a sufficient length of time for three cars to pass her coming from the opposite direction, before the collision. Defendant Couch testified he was following plaintiff’s car at about a car’s length distance and was driving about 20 miles per hour when plaintiff suddenly stopped her car in front of him causing the truck to skid into the car. Plaintiff further testified that she did not see the truck before it hit her car.

We have been cited no cases directly in point. Apparently it has not been contended before that there was a conflict in two findings as to proximate cause of separate contributory negligence issues. Plaintiff argues that each of these issues involved the giving of a signal, and that the jury could not properly find the negligent failure to give a signal of an intention to stop was a proximate cause, and that the negligent failure to give a signal of an intention to turn left was not a proximate cause. We do not follow this reasoning nor conclusion. The two acts 'of negligence are not so closely related as to be in conflict even though both involve the giving of a signal. The jury may have concluded that the plaintiff gave no signal, and that even though plaintiff was negligent in not giving a signal of an intention to turn left that such failure was not a proximate cause of the collision. The jury may have also concluded that even though plaintiff was negligent in not giving such signal of an intention to turn left that if plaintiff had proceeded to turn left without stopping the accident would not have occurred. We are required to reconcile issues if there is any reasonable basis. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

Plaintiff’s second point is that there was an irreconcilable conflict in the answers of the jury that plaintiff’s failure to give a signal of an intention to stop was negligence and that plaintiff’s stopping suddenly in the path of defendant’s truck was not negligence. Applying the same reasoning to this point as set forth above, the jury may have concluded that even though a person of ordinary prudence under the same or similar circumstances would have stopped the car suddenly, at the same time such person would have given a signal of the intention to stop. A person could give a signal of an intention to stop for a long distance and still make a sudden stop. We find no fatal conflict in these issues.

Plaintiff next contends the trial court should have granted a motion for new trial on the ground that one juror concealed his prejudice on the voir dire examination. Attorney for plaintiff asked the jury panel as a whole if any juror had a feeling against a plaintiff in a lawsuit so that they could not be fair and impartial, and received no reply. Plaintiff’s attorney asked the juror Ratcliff if he knew of any reason why he couldn’t be fair and impartial to both sides and the juror replied, “No sir.” On the hearing of the motion for new trial the foreman of the jury, Claud Graves, testified as follows:

“Q Mr. Graves, when you went into the jury room, did Mr. Ratcliff express his opinion about how he felt about this case?
A Will you * * * You mean during * * *
Q No, I mean when you went into the jury room.
A I wouldn’t know just how quick, we hadn’t been in there too long and he said that he’d love to have his say about it, said as far as he was concerned he was tired of these people coming up there and jumping up and suing people and trying to get a lot of money out of it and said as far as he was concerned anything we wanted to give * * * I believe he said if we gave her $500.00 that would be $200.00 too much — in the way he put it.”

The juror Ratcliff was called as a witness on the motion for new trial, and testified that he did not recall making any such statement.

No findings of fact nor conclusions of law were requested or made. The trial court by overruling the motion for new trial impliedly found that the prejudice did not exist and that the juror was not disqualified. Swap Shop v. Fortune, (Tex.) 365 S.W.2d 151. In view of this implied finding we must consider the evidence in the light most favorable to upholding that ruling. Compton v. Henrie, (Tex.) 364 S.W.2d 179. The evidence shown in the Henrie Case was much stronger than that in the present case, and the trial court in the Henrie Case found the juror not to be disqualified. We hold, as it was held in the Henrie Case, that even if the prejudice is presumed to have been established as a matter of law, that the statement attributed to the juror Ratcliff did not indicate prejudgment nor lead to the inference that he did not act with impartiality. An examination of the entire record demonstrates the juror Ratcliff did act in good faith and with impartiality. The point is overruled.

By supplemental brief, plaintiff raised two evidentiary points. It is contended that there was no evidence to support the finding by the jury that plaintiff’s negligence in failing to give a signal of her intention to stop was a proximate cause of the collision, and that such finding was against the weight and preponderance of the evidence. Plaintiff’s argument is that defendant Couch admitted that he was driving so close behind plaintiff’s car that even if he had been going slower he could not have avoided hitting the car. From this, it is deduced that the brake lights on plaintiff’s car not coming on could not have been a proximate cause of the collision. The statement is made in plaintiff’s supplemental brief that since it is undisputed that plaintiff did not give a hand signal of her intention to stop that the only question was whether the brake lights on her car had come on. We do not agree with this reasoning and consider the absence of a hand signal to be material to this issue. Viewing the evidence in its most favorable light as supporting the finding of the jury in passing upon the “no evidence” point, such evidence supported a finding by the jury that plaintiff’s negligent failure to give a signal of her intention to stop was a proximate cause.

In reviewing the entire record, we do not find that the jury’s answer to this issue was clearly wrong or unjust. Both points are overruled.

Affirmed.


author: GREEN, Chief Justice.

text:
    Adelina Mayorga de CUELLAR, Appellant, v. Luis L. CUELLAR, Appellee.
    No. 219.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 15, 1966.

      Thomas G. Sharpe, Jr., of Hardy, Ga-lindo & Sharpe, Brownsville, for appellant.
    No briefs were filed in behalf of appel-lee.
   OPINION

GREEN, Chief Justice.

As the appellee has filed no brief, we accept as correct the statements contained in appellant’s brief relating to the facts and the record. Rule 419, Texas Rules of Civil Procedure; Gonzales v. Gonzales, Tex.Civ.App., 224 S.W.2d 520, writ ref.; Washington v. Clements, Tex. Civ.App., 399 S.W.2d 890, n. w. h., and cases there cited.

Appellee-defendant and appellant-plaintiff, formerly husband and wife, were divorced in the district court of Cameron County, Texas, in April, 1948. Plaintiff, the former wife, was granted custody of Lidia Cuellar, a child of this marriage, who at the time of the hearing in November, 1965, was 23 years of age. This suit involved a motion to amend the divorce judgment rendered in said cause to provide for custodial support payments for Lidia, pursuant to Article 4639a-l, Vernon’s Ann.Tex.Civ.St., as enacted in 1961. Defendant, a resident of Porter County, Indiana, was served with non-resident citation on October 11, 1965, giving him 20 days notice of the hearing on the motion which was set for November 1, 1965. On this latter date, defendant, thru his attorney, filed a written answer containing certain special exceptions to plaintiff’s pleading, and a general denial. None of these exceptions in any way attacked the Jurisdiction of the court over the person of the defendant. Counsel for both parties and the trial court agreed, in open court on November 1, 1965, that the plaintiff would proceed to put on her testimony at that time, and that counsel for the defendant would be given three weeks, until November 22, 1965, to study the law and prepare his case, and amend his pleadings if he considered that necessary, before proceeding further. Under such agreement, plaintiff did introduce her evidence, after which the court recessed the trial until November 22nd.

On November 22, 1965, defendant filed what he denominated “Defendant’s First Amended Answer”, in which he for the first time plead, under oath of his attorney, that he “objects to the jurisdiction of the Court over his person on the ground that he is not amenable to process issued by the Courts of this State.” The trial court considered this as a proper plea to the jurisdiction of the court, and since the plaintiff’s pleadings and the undisputed evidence showed that defendant was in fact a nonresident of Texas, and was served outside of the state, held that it had no jurisdiction of this case. This appeal is from such holding of no jurisdiction.

Art. 4639a-l, V.A.T.S., reads as follows:

“In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, born of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law. Added Acts 1961, 57th Leg., 1st C.S., p. 135, ch. 31, § 1.”

The evidence showed without dispute that Lidia was an unmarried child born of the marriage of plaintiff and defendant, that she was permanently physically unsound and required custodial care, that she cannot adequately take care of or provide for herself, and that she has no personal estate or income sufficient to provide for her reasonable and necessary care. In fact, during the hearing the attorney for defendant judicially admitted that she is a person who needs custodial care, and that she had been an invalid ever since she was six months old. We feel that such undisputed testimony, together with the judicial admission of defense counsel made in open court, distinguishes this case from Aversa v. Aversa, Tex.Civ.App., 405 S.W.2d 157. There it was held that due to the lack of evidence that the 19 year old boy in question required “custodial care”, Art. 4639a-l was not applicable to the fact situation presented. Plaintiff testified without contradiction that $100.00 per month is required for the custodial care of Lidia, and that plaintiff as her custodian now receives $32.00 per month from State Welfare. Plaintiff prayed that defendant be required to pay $68.00 per month for custodial care.

The trial court had jurisdiction of the subject matter of this motion, under the provisions of Art. 4639a-l, supra. The last sentence of said Article authorizes the trial court to alter, change, suspend or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law. The motion of plaintiff conformed to the provisions of the statute. Matters of child support and enforcement of divorce decree are within the continuing jurisdiction of the court which rendered the original divorce decree, and the motion was properly filed in the original divorce suit. Livingston v. Nealy, Tex. Civ. App., 382 S.W.2d 511, writ ref. n. r. e. The plea which the court passed on was directed to the point that the court had no jurisdiction over the person of the defendant on the ground that he is not amenable to process issued by the courts of this State, being a non-resident, and having been served by non-resident notice outside of the State.

Since plaintiff is seeking a money judgment from defendant, this plea would have been good had defendant timely filed his jurisdictional plea. York v. State, 73 Tex. 651, 11 S.W. 869, affd., 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604; August Kern Barber Shop v. Freeze, 96 Tex. 513, 74 S.W. 303; Bonanza Inc. v. Lee, Tex.Civ.App., 337 S.W.2d 437.

However, the defendant did not timely file his plea to the jurisdiction of the court over his person. He voluntarily submitted himself to the court’s jurisdiction when, on November 1, 1965, he filed a written answer to plaintiff’s motion which did not raise any jurisdictional point. Rule 120a, T.R.C.P.; York v. State, supra; State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550; 42 Tex.Law Review 279 at page 315 et seq., Article by Professor E. Wayne Thode of University of Texas Law School.

Prior to the adoption of Rule 120a, T.R.C.P., in 1962, special appearance was unknown to Texas practice, and the filing by a defendant of any defensive pleading, including one to challenge the court’s jurisdiction over the person of the defendant, constituted an appearance and submission to the jurisdiction of the forum. York' v. State, supra. See author’s comments to Rule 120a, Vernon’s Anno.Tex.Rules and authorities cited; Professor Thode’s article in 42 Tex.Law Review, page 279 et seq. Rule 120a was adopted and promulgated by our State Supreme Court, so that now a defendant may make a special appearance in the cause to attack the court’s jurisdiction over his person or property without subjecting himself to the jurisdiction of the court generally. However, such rule expressly provides that “Such special appearance shall he made by sworn motion filed prior to plea of privilege or any other plea, pleading or motion; * * *. Every appearance, prior to judgment, not in compliance with this rule is a general appearance.” See discussion of this portion of Rule 120a by Professor Thode in 42 Tex. Law Review on pages 315-317.

We hold that when the defendant filed his written answer in this cause on November 1, 1965, this constituted a general appearance, and he submitted himself to the jurisdiction of the court. The trial court erred in considering the subsequent plea attempting to raise the jurisdictional issue, filed three weeks later in an amended answer, and in holding that it has no jurisdiction in this cause.

Since the evidence shows without conflict that Lidia Cuellar, though over 18 years of age, is a person coming within the provisions of Art. 4639a-l, V.A.T.S., supra, and that a judicial admission of such fact was made by appellant’s counsel in the trial, the only issue remaining is the amount of the support payment which defendant Luis L. Cuellar, as the father of the totally and permanently invalid child Lidia Cuellar, should be required to make. We believe this is a matter which only the trial court should decide.

Accordingly, the judgment of the trial court is reversed. That court upon remand is directed to take jurisdiction of this cause, and to require and enforce support payments by defendant Luis L. Cuellar to plaintiff as custodian for the benefit of such child in such amount as the court, in its sound discretion, feels proper from the evidence, such order of the court to be subject to the power and authority of the court to alter, change, suspend, or otherwise revise its judgment as the facts and circumstances may require and in the manner required by law. Art. 4639a-l, V.A.T.S.

Reversed and remanded with instructions.


text:
    Valente MARTINEZ et al., Appellants, v. Bernard ARREDONDO et al., Appellees.
    No. 6848.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.

      Melvin Whitaker, Beaumont, for appellants.
    Lynn Walker, Beaumont, for appellees.
   STEPHENSON, Justice.

This is a will contest. Judgment was rendered by the District Court dismissing this cause on the ground that a prior will contest was res judicata of this action. The parties will be referred to here as they were in the District Court.

The will of Porfiria Martinez was admitted to probate October 28, 1963. A petition to set aside the order admitting such will to probate was filed July 23, 1964. The sole ground set out in such petition was that the testatrix was bound by a prior irrevocable will. Evidence was heard and such contest was denied by order dated November 4, 1964. No appeal was taken from that order.

June 17, 1965, pleadings designated as an amended petition to set aside the probate of a will was' filed by the same contestants. This petition alleged that the testatrix was not of sound mind and that there was undue influence. This petition was denied by the County Court June 17, 1965. This order was appealed to the District Court which entered the judgment holding the prior judgment of the County Court to be res judicata.

Contestants have two points of error. It is argued that this is a direct attack upon the will and that such action is provided for by Section 93 of the V.A.T.S. Probate Code. Neither party has cited this court a decision passing upon this precise situation. Section 93 provides for filing a will contest within two years after the will has been admitted to probate, except in instances of forgery or fraud. In our opinion this is merely a limitation statute and was not intended to create any new substantive rights for will contestants.

We hold that the general rules of law pertaining to the “res judicata” doctrine apply to a will contest. A final valid judgment of the County Court adjudicating the validity of a will, is conclusive of every matter that the parties might properly have litigated in such action. The same parties filed the first will contest as the one presently pending. The matters as to whether the testatrix was of sound mind, and as to whether undue influence was exerted, could properly have been raised in the original will contest. The first judgment of the County Court holding the will to be valid is res judicata as to the validity of such will and the District Court made the proper ruling when it dismissed the appeal. If this is not the law, there would be no limit to the number of contests that could be filed by the same parties testing the validity of a will.

Judgment affirmed.


author: McDONALD, Chief Justice.

text:
    Herbert THRASHER et ux., Appellants, v. J. L. HENSARLING et ux., Appellees.
    No. 4492.
    Court of Civil Appeals of Texas. Waco.
    July 7, 1966.
    Moore & McVey, Bryan, for appellants.
    A. H. Menefee, Madisonville, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment fixing the boundary line between lands of plaintiffs and defendants.

Plaintiffs Hensarling filed suit against defendants Thrasher in the nature of a trespass to try title action to a strip of land “30 feet wide and extending across the north side of the C. R. Hall Survey a distance of 1110 varas.” Plaintiffs prayed “they be awarded title and possession to said strip of land and that the boundary line between them and * * * (defendants’) tract of land be definitely established.”

Defendants answered by plea of not guilty; and plead the S and 10 year Statutes of Limitations.

Trial was before the court without a jury which, after hearing, rendered judgment fixing the boundary line as contended by plaintiffs.

Defendants appeal, contending:

1) There is no evidence, or insufficient evidence, to support the judgment.
2) The case was never fully developed.
3) The court erred in overruling defendants’ motion for judgment.

The record in this case contains a Transcript and a Statement of Facts. Such. Statement of Facts affirmatively reflects that plaintiffs introduced an Abstract of Title, as well as a certified copy of a partition deed which have not been included in the Statement of Facts, or otherwise in the record on appeal.

In the absence of a Statement of Facts, it must be presumed on appeal that the evidence supports the findings and judgment of the Trial Court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; First Nat. Life Ins. Co. v. Herring, CCA (n. w. h.), 318 S.W.2d 119; Ehrhardt v. Ehrhardt, CCA, Er.Ref., 368 S.W.2d 37.

The same rule is applicable where only a partial Statement of Facts is submitted, or where the record on appeal is otherwise incomplete. Baker v. Rutherford, CCA, (n. r. e.) 293 S.W.2d 669.

In the absence of a complete record of the evidence before the Trial Court (which it is appellants’ duty to bring forward), we cannot say that the judgment of the Trial Court is not correct.

Defendants’ points and contentions are overruled..

Affirmed.


author: BELL, Chief Justice.

text:
    FIRENCE FOOTWEAR CO., Plaintiff in Error, v. Leonard CAMPBELL et ux., Defendants in Error.
    No. 14909.
    Court of Civil Appeals of Texas. Houston.
    Oct. 6, 1966.

      Stafford, Williams & Weitinger, Warren K. Williams, Houston, for plaintiff in error.
    Asbeery B. Butler, Jr., Houston, for defendants in error.
   On Motion for Rehearing

BELL, Chief Justice.

The opinion on Defendants in error’s motion to dismiss heretofore handed down is withdrawn and the following opinion is substituted.

A default judgment was rendered in favor of Leonard Campbell and his wife, Florence, against Firence Footwear Company. The defendant filed with the Clerk of the trial court his petition for writ of error.

The defendants in error have filed a motion to dismiss the appeal because, among other things, the petition fails to name all persons adversely affected.

The petition states: “The plaintiffs in said cause are the adverse parties to this petition * * * ” In the style of the case given in the petition this is given: “Leonard Campbell, et ux vs. Globe Discount City, et al”.

When the style of the case, as given in the petition for writ of error, is looked to we see that the plaintiffs are “Leonard Campbell, et ux”. The wife’s name does not appear in the petition for writ of error. However, when we look to the plaintiffs’ First Amended Original Petition filed in the 11th District Court under the same style and number as appear on the petition for writ of error, we find the name of the wife to be “Florence”. The thing that is of real significance is the petition on which trial was had in the 11th District Court shows that the damages sought resulted from personal injuries to the wife. The cause of action thus asserted belonged to the general community estate which is subject solely to the control of the husband. He, solely, in the absence of special circumstances not here present, has the right to maintain the action for recovery of such property. The wife is not even a proper party to the suit. Roberts et al. v. Magnolia Petroleum Co. et al., 142 S.W.2d 315 (Tex.Civ.App.), writ ref. 135 Tex. 289, 143 S.W.2d 79; Hill v. Kelsey, 89 S.W.2d 1017 (Tex.Civ.App.), writ dism.; Houston Gas and Fuel Co. v. Spradlin, 55 S.W.2d 1086 (Tex.Civ.App.), n. w. h. The result is that the only real party adversely interested is Leonard Campbell. We feel the petition for writ of error, by the language above quoted, sufficiently names the party adversely interested, as required by Rule 360, Texas Rules of Civil Procedure.

In the case of Weems et al. v. Watson et al., 91 Tex. 35, 40 S.W. 722, heavily relied on by Defendants in error, Gertrude Watson was not named in the petition for writ of error though she was named in the bond. The court noted:

“We are therefore of the opinion that the court of civil appeals did not err in holding that Gertrude Watson was not made defendant in the writ of error proceedings, and in dismissing the writ of error as to all of plaintiffs below, it not appearing from the record what interest in the land Gertrude Watson was entitled to, so that the judgment could be revised as between plaintiffs in error and the other plaintiffs below without prejudice to her rights.”

Here the real party adversely interested is Leonard Campbell.

Too, we feel that Florence Campbell was sufficiently named because the language above quoted states the plaintiffs in the specified styled and numbered cause in the 11th District Court, where the cause was filed and the judgment rendered, are the persons adversely interested.

All other cases cited by Defendants in error are factually distinguishable.

Another reason urged for dismissal is the alleged failure to state the residences of the parties adversely interested, as provided by Rule 360. The petition for writ of error stated the address of plaintiffs was Houston, Harris County, Texas. This is the only address stated in plaintiffs’ petition in the trial court. The petition for writ of error gives the address of plaintiffs’ attorney of record as “1013 Continental Bldg., 218 Main Street, Houston, Texas, 77002”. Defendants in error say the attorney’s address was incorrect. We find that this is the attorney’s address appearing on plaintiffs’ first amended petition upon which the judgment is based. Rule 362 provides for service of the copy of the petition for writ of error on the attorney of record. The attorney apparently was served because he makes no complaint that he was not. The purpose of giving addresses is to facilitate service. The petition for writ of error sufficiently complied with Rule 360 in this regard. Padgitt v. Ft. Worth & R. G. Ry. Co., 104 Tex. 249, 136 S.W. 442.

Finally, it is urged that the judgment appealed from is not sufficiently described in the petition for writ of error as it does not state the county where judgment was rendered. We are unable to agree.

The petition for writ of error is headed by the style of the case, the number is given and the District Court in Harris County in which it was pending is stated. In the body of the petition for writ of error this appears :

“The judgment of which complaint is made is in Cause No. 615,614 as styled above and was rendered October 20, 1965, and signed by the Honorable Ben Moor-head. Said judgment was by default and in the amount of $5,328.00.”

Plaintiff in error’s motion for rehearing on Defendants in error’s motion to dismiss is granted. Our judgment dismissing the appeal is set aside and the appeal is reinstated.


text:
    W. L. McADAMS, Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 14800.
    Court of Civil Appeals of Texas. Houston.
    Sept. 8, 1966.
    Rehearing Denied Oct. 6, 1966.

      Helm, Jones & Pletcher, David H. Burrow, Houston, Henry W. Flagg, Galveston, for appellant.
    McLeod, Alexander, Powel & Apfell, V. W. McLeod, Galveston, for appellee.
   WERLEIN, Justice.

Appellant, W. L. McAdams, sued appel-lee for workman’s compensation benefits for total and permanent disability as a result of an injury alleged to have occurred on August 9, 1962, while working within the course of his employment for Steve’s Construction Company in Galveston County, Texas. In his petition appellant alleged that as a result of the occurrence made the basis of his suit, he received injuries to his stomach and a hernia. Appellee in its answer alleged that appellant’s injury and disability were confined to a hernia, and that his disability was due to pre-existing injuries.

The jury found that appellant sustained an accidental injury to his body on or about August 9, 1962 in the course of his employment with Steve’s Construction Company; that said injury was a producing cause of total incapacity which began on August 9, 1962, and that such incapacity was permanent. The jury in answer to Special Issue No. 13 found that appellant had worked in the employment in which he was engaged at the time of his injury for the same or another employer for at least 210 days during the year next preceding August 9, 1962. Having so found, the jury did not answer Special Issues Nos. 14, 15, and 16 relating to Sub-sections 2 and 3 of Sec. 1, Article 8309, Vernon’s Annotated Texas Statutes. The jury found that the payment of compensation to appellant in weekly installments, instead of a lump sum, would result in manifest hardship and injury to him. To other issues the jury found that the injury received by appellant on August 9, 1962 was a hernia; that his incapacity was not caused solely by his hernia; that his incapacity was not caused solely by disease, impaired physical condition, age, injuries or a combination of such, which had no connection with the injury of August 9, 1962; and that prior on-the-job injuries occurring before August 9, 1962 had not contributed to appellant’s incapacity.

Appellant filed a motion for judgment on the jury verdict for permanent total disability in lump sum at the compensation rate of $35.00 per week, which motion was overruled. Instead, the trial court on appellee’s motion for judgment, or, in the alternative for judgment non obstante veredicto, entered judgment that appellant take nothing.

Appellant asserts that the trial court erred in failing to enter judgment on the jury verdict in his favor for compensation at the rate of $35.00 per week for total permanent disability in lump sum, and alternatively in failing to enter judgment on the jury verdict in his favor for compensation at the rate of $9.00 per week for total permanent disability in lump sum, and also erred in entering judgment for appellee or in the alternative judgment non obstante vere-dicto, for the reason that there is no evidence in support of the court’s judgment, and the same is so against the great weight and preponderance of the evidence as to-be clearly wrong and manifestly unjust.

These assignments of error require a careful reading and consideration of all the evidence adduced at the trial, both that in support of the court’s judgment and that militating against it. The evidence shows that appellant had sustained a leg injury and amputation of his right leg in 1920, and that he wore an artificial right leg; that he had hurt his kneecap in 1923, and had some injuries to his hand. These injuries did not keep him from engaging in heavy labor. In 1962 he started working for Steve’s Construction Company in Texas City. At the time of his accident he was driving a caterpillar tractor towing a sheep’s foot roller. He testified that they had about a 40 or SO foot top on a levee, and in rolling on top of it and making turns he had to go down and turn and come back. He further testified: “In order to make those turns you have got to lock your brake, make your swing, pull your clutch out, lock your brake to locate your tracks to spin around.”

Q. This is a tractor?
A. Yes, tractor machine, and the brakes on that were exceptionally hard to work, push down, and I noticed that along in the middle of the day sometimes that leg pained a little bit and up in the groin.
Q. Did you get a sharp pain or dull pain or what ?
A. Later on, I did, yes.
Q. What type was it?
A. Well, I was making a turn, pushing hard on that brake and pulling my clutch, and I noticed a little sharp pain in there, but at the time I didn’t pay much attention to it. You strain yourself doing that kind of work once in awhile and in a day or two it is over, so I went on,
* * *
Q. That night did you notice anything unusual ?
A. Yes, sir, after I got off from work I went on in, and after I taken a shower and laid down I noticed it was sore up into the groin in here, and in rubbing my thumb over it there was a tender spot there and it felt like you rub yourself over an air pump or something like that where it was torn and the intestines were coming out through the tear in the lining of the stomach.

Appellant further testified that the next day he went out there and told Mr. Clayton (Foreman for Steve’s Construction Company) ; that he saw a Mrs. Connie Williams, a trained nurse, and as a result of that visit he went to see a doctor on about August 17, 1962, and went to Alvin and talked to Dr. Hayes; that he was operated on for a hernia and was in the hospital some 11 or 12 days; that about 2½ months after his operation the hernia “busted out again” and he had to go to the hospital for a second operation which was performed by Dr. Chambler in November, 1962; that Dr. Chambler cut out the scar from the other operation and inserted a screen of some kind, which he said was to reinforce the stomach; that he was in the hospital on this occasion some 17 days; that thereafter he went back to the doctor once a week for some five or six weeks, explaining to the doctor that he had a sharp pull in the lower part of the groin and pain which extended down into the groin and into his left leg and down about the area of his scrotum.

The trial court’s judgment does not state upon what findings or conclusions the court granted the defendant’s motion for judgment. We have read the statement of facts in an effort to determine whether there is any evidence in support of the jury findings of total and permanent incapacity as a result of injury sustained by appellant on August 9, 1962. It is our view that there is some evidence. The question arises, however, as to whether appellant has pleaded and proved a cause of action for an injury to his body generally or an injury consisting only of a hernia and the effects thereof. If appellant’s cause of action is one merely for a hernia and its effects, appellant has failed to plead and prove such cause since he did not comply with Article 8306, Sec. 12b, V.A.T.S., in that he neither pleaded nor proved definitely that the hernia appeared suddenly and immediately following the injury; that the hernia did not exist in any degree prior to the injury for which compensation is claimed; and that the injury was accompanied by pain. In any event, there were no jury findings with respect to such matters, although the burden was on appellant to prove the same definitely and to obtain such findings.

It is appellant’s contention, however, that he is not suing merely for hernia but for an injury to his groin and stomach, and for conditions which resulted from the hernia operations, especially the last one. It is undisputed that appellee paid for appellant’s operations and hospitalization and, according to appellant’s testimony, compensation benefits at the rate of $35.00 per week for 24 weeks. Where there is a successful hernia operation the compensation benefits are limited under Article 8306, Sec. 12b, to 26 weeks.

The evidence shows that although the hernia operation was successful, certain painful conditions have resulted therefrom. Dr. Parker testified that the hernia had been satisfactorily repaired so far as the defect in the abdominal wall was concerned, and that the hernia no longer existed, but that when he examined appellant on September 11 and 15, 1964, he was complaining of pain in his left inguinal area, that he found a scar about six inches long in the left groin, and that the area of the scar was hardened; that there were several enlarged veins in the cord that goes to the testicle, referred to as varicocele, and, that the cord was thickened and firm in contrast to the right side; that people can have varicoceles without ever having had an operation; that in this case Mr. McAdams had as much a thickening and fibrosis of the cord as he had a varicocele, the varicocele was only a part of it; that in his opinion based upon reasonable medical probability, this enlarged condition was probably due to the effect of the hernia repairs; that in his opinion appellant had some trouble in the spermatic cord following one or the other hernia repair.

Dr. Parker further testified that the vein enlargement in appellant was lesser than the fibrosis in the cord, and that he could feel the fibrosis of the cord after it entered the abdomen; that he thought appellant would have a heavy feeling in there and some actual pain; that vena enlargement would be most likely; that he felt appellant had had a wound infection following the operation; that his complaint of weightiness was in the left inguinal area or left groin; that appellant complained of it down into the left thigh and into the pubic area, and that the pain in the thigh was a referring pain site from the groin; that with respect to whether or not the thickening of the cord was disabling, it would depend on whether the patient had a dull ache and a weightiness, and those were the sensations of which the appellant complained; that assuming that appellant had nothing wrong with his groin, no hernia, no operation, and no thickening, he still would not pass appellant on pre-employment examination; and that, on the other hand, if appellant had been working 45 years with an artificial leg operating heavy equipment and was on the job and sent in for an annual employment physical examination, and had nothing wrong with his groin, no hernia, no operation, and no thickening, he would have passed him.

Dr. Chambler testified that he did a formal lattice repair in the second operation using nylon material to replace the muscles and tissues that are diffused in and around the bulge; that the second operation was a successful surgery; that he thought appellant had made a complete recovery from his operation with little or no disability, and that this would not now interfere with his employability; that both of the hernias were direct hernias, not into the scrotum itself, but around the cord as it comes through the abdominal wall; that in his opinion the accident on August 9, 1962 contributed directly to both hernias; that on February 1, 1963, it was his opinion that there would be some disability there; and that it was reasonable to think that appellant felt some discomfiture because of the nature of the lattice repair, but he thought it doubtful that the pain and discomfiture were disabling.

Appellant pleaded that he received injuries to his stomach and received a hernia. There is no evidence that appellant received any injury to his stomach. His cause of action is limited, therefore, to the hernia and disability growing out of the hernia and the operations therefor. The law is well settled that where an employee sustains a specific compensable injury, he is not limited to compensation allowed for that specific injury if such injury, or proper or necessary treatment therefor, causes other injuries which render the employee incapable of work. Zurich General Accident & Liability Insurance Co. v. Daffern, 81 F.2d 179, 5th Cir. 1936, cert. den. 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391, and cases there cited; 62 Tex.Jur.2d, Workmen’s Compensation, Sec. 162; 62 Tex.Jur.2d, Workmen’s Compensation, Sec. 68; 58 Am.Jur., Workmen’s Compensation, Sec. 279. In United Employers Casualty Co. v. Marr, Tex.Civ.App., 144 S.W.2d 973, writ dism., Judgment correct, the Court said:

“Our courts have uniformly held that a compensable injury under the Workmen’s Compensation Law includes and contemplates not only the immediate effects arising from the injury itself, but the effects of any aggravation of such injury resulting from medicinal or surgical treatment, when there is no intervening, independent cause to break the chain of causation between the new injury or aggravation and the original injury. 39 A.L.R. 1276; Kirby Lumber Co. v. Ellison, Tex.Civ.App., 270 S.W. 920; Aetna Life Ins. Co. v. Liles et al., 131 Tex. 383, 114 S.W.2d 534; Zurich General Accident & Liability Ins. Co. v. Daffern, 5 Cir., 81 F.2d 179.”

In order, however, for the employee to recover for any additional disability, it must first be established that his injury was a compensable injury. In the instant case appellant has failed to prove that his hernia was a compensable hernia under the provisions of Article 8306, Sec. 12b, V.A.T.S. He failed to prove and obtain a jury finding that the hernia appeared suddenly and immediately following the injury; that it did not exist in any degree prior to the injury; or that the initial injury was accompanied by pain. It is true he testified that he noticed along the middle of the day “sometimes that leg pained a little bit and up in the groin,” but he did not have a sharp pain or a dull pain until later on. He also testified that on “making a turn, pushing hard on that brake and pulling rmy clutch, and I noticed a little sharp pain in there, but at that time I didn’t pay much attention to it. You strain yourself doing that kind of work once in awhile and in a day or two it is over.” He did not know when the hernia actually occurred. He did not discover that there was any protrusion of any kind until after he had gotten off work, had taken a shower and had lain down. It was then that he noticed “it was sore up into the groin in here, and in rubbing my thumb over it there was a tender spot there and it felt like you rub yourself over an air pump or something like that where it was torn and the intestines were coming out through the tear in the lining of the stomach.”

He did not see a doctor until August 17, 1962 and he was not operated on until August 21, 1962. Although appellant testified that he noticed, “it was sore up into the groin in here,” he was never treated for any injury other than the hernia. The medical testimony shows that the fibrosis of the cord was due to the operations and perhaps some infection. The evidence shows that such conditions were not directly caused by the accident but that they were the effects of the hernia and the operations made necessary by the hernia. Having failed to obtain jury findings and to establish that the hernia in question was a compensable injury, appellant may not recover from the effects of such injury. A compensable injury is a sine qua non of any recovery.

Judgment affirmed.