author: RENFRO, Justice.

text:
    William B. WARD, Jr., Appellant, v. FIRST-WICHITA NATIONAL BANK OF WICHITA FALLS, Texas, Appellee.
    No. 16606.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 19, 1965.
    Rehearing Denied March 19, 1965.
    David J. Dixon, Warrenburg, Mo., Spence, Martin & Richie, Wichita Falls, and Michael J. McCloud, Jr., Dallas, for appellant.
    Thelbert Martin, Wichita Falls, for ap-pellee.
   RENFRO, Justice.

This is a will contest. First-Wichita National Bank filed application for probate of alleged holographic will of William B. Ward. The application was contested by William B. Ward, Jr. From an order of the county court admitting the will to probate, Ward, Jr., appealed to the district court. After both parties rested, the court discharged the jury and rendered judgment admitting the will to probate.

The will, in full, reads as follows:

“Wichita Falls Texas
March — 19—1960.
Know all Men by these Presents.
That I, William B. Ward, of Wichita Falls, Texas, realizing the certainty of death — make and declair this to be my last will and testament, hereby expressly revoking all others wills by me heretofore made.
I hereby declare that immediately upon death my Estate shall become a trust and I áppoint the 1st Wichita Nat Bank of Wichita Falls Texas, as the Independent Excutor and Trustee of my estate.
I further direct that no proceeding be had in any court or courts in relation to the settlement or administration of my Estate other than the probate of this my last will.
00 1. I want to leave $1000=? to my Son — William Bryan Ward, Jr.
2-The income from my Estate to my wife Ellene Collins Ward.
3-Also my Stocks and Bonds — ”

The appellant contends: (1) it must appear from the instrument as a whole that there is positive and satisfactory inference from the instrument itself that the signature was so placed (in first sentence) with the intent that it should serve as a token of execution; (2) a fact question was presented as to whether the instrument was wholly in the handwriting of decedent; (3) fact question was presented as to whether decedent intended the instrument to be his last will; (4) the evidence conclusively established as a matter of law that decedent did not intend the instrument to be his last will; (5) the court erred in curtailing appellant’s cross-examination of witness Joe Ward.

Decedent and Ellene Collins Ward were married in 1946 and were still married at the time of Ward’s death, December 21, 1962. They had no children. Appellant was Ward’s son by a previous marriage which ended by divorce in 1931. Ward last saw appellant when he was two years of age. Appellant adopted the name “Peter W. Nichols.”

After the death of Ward, both his brother Joe and Ward’s widow searched for a will. Joe Ward’s secretary found the instrument in question in a filing cabinet where decedent kept athletic papers, income tax papers, canceled checks, bank statements, etc., in a room where decedent kept his sports museum. It was found within ninety days of decedent’s death. Continued search failed to disclose any subsequent will. The instrument itself revoked all prior wills.

Prior to his death decedent had discussed making a will with Joe and told his tax adviser that he had made a will.

Joe and Mrs. William B. Ward both testified unequivocally that the instrument was wholly in the handwriting of William B. Ward, deceased. Ward’s tax adviser testified, “I can’t truthfully say” whether the instrument was in decedent’s handwriting.

Appellant introduced a 1920 handwritten will by decedent, but introduced no evidence to show the handwriting therein differed in any respect from the 1960 instrument. Decedent was forty years older when he wrote the 1960 instrument. Our examination and comparison of the two instruments reveal nothing to cast doubt that they were written by one and the same person. The record discloses no evidence that the instrument was not wholly in decedent’s handwriting.

The evidence introduced, in the absence of any contradictory evidence, oral or physical, was sufficient to meet the requirements of the statute as to quantum of proof necessary that the instrument was wholly written in the handwriting of decedent. Sanders v. Maxwell, 265 S.W.2d 683 (Fort Worth Civ.App., 1954, no writ hist.); Crockett v. Dorman, 296 S.W. 907 (Texarkana Civ.App., 1927, ref.); Thomason v. Gwinn, 184 S.W.2d 542 (Amarillo Civ.App., 1944, ref., w. m.); Price v. Taliaferro, 254 S.W.2d 157 (Fort Worth Civ.App., 1952, ref., n. r. e.).

Under the provisions of Section 60, Probate Code, V.A.T.S., when a will is written wholly in the handwriting of the testator the attestation of subscribing witnesses may be dispensed with.

The place where the testator affixes his signature . is of secondary consequence if it sufficiently appears that the intent to execute was present at the time. Lawson v. Dawson’s Estate, 21 Tex.Civ.App. 361, 53 S.W. 64 (1899, ref.). In Burton v. Bell, 380 S.W.2d 561 (Tex.Sup., 1964), the court held that the first part of the sentence, “That I, Roy W. Bell, etc.”, being in Mr. Bell’s handwriting, was a sufficient signature for a holographic will, citing Lawson v. Dawson’s Estate.

We think the very words of the instrument make plain that the intent of decedent was to execute a will. Certainly this conclusion is sound when the extrinsic evidence is considered. He realized the certainty of death. He declared the instrument to be his last will and testament. He provided that immediately upon his death his estate should become a trust. He named an independent executor, towit, the Bank, which also was named trustee of his estate. He made clear his desire that his son receive $1,000, that his wife receive his stocks and bonds and the income from his estate.

An instrument is testamentary in character when it makes a disposition of a testator’s property or portion thereof, to take effect at his death. Barnes v. Horne, 233 S.W. 859 (Austin Civ.App., 1921, no writ hist.); Huffman v. Huffman, 339 S.W.2d 885 (Tex.Sup., 1960); Fain v. Fain, 335 S.W.2d 663 (Fort Worth Civ.App., 1960, ref.).

Clearly the language and words used show that decedent disposed of his estate, or a portion thereof, to take effect “immediately upon death”; hence the instrument is testamentary in character.

The Supreme Court stated in Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935: “This being a proceeding for the probate of a writing alleged to be a will, it is not the province of the Court to construe it further than to decide whether it is or is not testamentary in character.”

Having determined that the trial court was correct in holding the instrument to be wholly in the handwriting of the decedent, we further hold that the language of the instrument itself shows it to be testamentary in character; that it shows the intent of decedent that it was his last will and testament, and in the absence of any evidence that it was not his last will and testament, it is our opinion the instrument is testamentary in character and the court did not err in so holding.

Appellant was allowed to cross-examine Joe Ward fully except as to a matter not material to the issues on trial. No reversible error is shown. Rule 434, Texas Rules of Civil Procedure.

All points of error are overruled and the judgment affirmed.

Affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Mrs. O. H. ROSKEY et al., Appellants, v. GULF OIL CORPORATION et al., Appellees.
    No. 14501.
    Court of Civil Appeals of Texas. Houston.
    Feb. 25, 1965.
    Rehearing Denied March 18, 1965.

      Charles C. Smith, Jr., Cameron, and Walter M. Hilliard, Caldwell, for appellants.
    Murray G. Smyth, Houston, and James A. Gray, Caldwell, for appellee Taylor Exploration Co., Inc.
    W. B. Edwards, John E. Bailey and D. D. Dent, Houston, for appellee Gulf Oil Corp.
   WERLEIN, Justice.

Appellants brought this suit against Gulf Oil Corporation and Taylor Exploration Company, Inc., for damages to appellants’ 54 acres of land situated in Burleson County alleged to have been caused by blasting operations conducted by appellees on adjoining lands in connection with seismograph operations conducted by appellees. Appellants alleged that by reason of such operations, their water well was damaged and the water was rendered unfit for household and domestic purposes. When appellants rested their case appellees moved the court to withdraw the case from the jury and render judgment for them. This appeal is from the order of the court granting such motion.

Appellants alleged in substance that ap-pellees entered upon land adjacent to appellants’ land, drilled holes into the ground to a depth of approximately 75 feet, and inserted therein charges of dynamite or other explosives in quantities unknown to appellants, but well known to appellees, and that the location of the test holes and exploding of the charges were wholly under the control and management of appellees. Appellants further alleged that their water well was injured and damaged as a proximate result of such explosions and consequent vibrations, and that the appellees committed such acts when they knew, or by the exercise of reasonable diligence should have known, that their operations in all reasonable probability would injure or destroy appellants’ water well and fixtures, and that all of such acts constituted negligence and a proximate cause of such damage. Appellants did not plead any specific acts of negligence but in the alternative to their general allegation of negligence they pleaded res ipsa loquitur.

In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellants, and indulge against the action of the court every inference that may properly be drawn from the evidence, and if the record reflects any testimony of probative force in favor of the losing party we must hold the court’s action improper. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295; Texas Employers Insurance Ass’n v. Boecker, Tex.Civ.App., 53 S.W.2d 327, error ref.; Hoover v. General Crude Oil Co., 1948, 147 Tex. 89, 212 S.W.2d 140.

We shall briefly set out the evidence ■which appears to be most favorable to appellants. Mrs. Budnik, who lived on a tract •of land adjacent to appellants’ property, ■testified in substance that about the middle of December, 1962, a man came to her ■saying he represented Gulf Oil Corporation and Taylor Exploration Company, and asked her consent to drill holes on her land, and agreed to pay $10.00 for each hole and any damage resulting therefrom. She was not home when the seismograph operations ■occurred, but when she got home she found at her door a check for $20.00 which she said appellees paid her.

Mr. Budnik’s testimony was substantially the same, except that he testified the check they found was a $30.00 check from Gulf. He also testified that he found one hole about 20 feet and another hole about 5 feet from the boundary line between his land and appellants’ land and that he saw a lot of mud and muddy water on the ground and all over the trees where there had been drilling. He further testified that "he had not given permission to anyone except Gulf and Taylor to conduct seismo-. graphic operations on his land. He estimated the distance between the common boundary line and the Roskey home at 1000 yards. There is evidence that the well in question was located some 600 feet from the Roskey home, but there is nothing to show whether it was nearer or farther than 1000 yards from the holes drilled on the Budnik property.

Mrs. Roskey testified that she heard a terrible noise which came from the direction of the Budnik property and it shook her whole house and rattled her windows. The next morning she found that the water from her well had changed, and was dirty and not fit to use. She also testified as to the fine quality and quantity of the water before the blasting and that afterwards the water was and remained contaminated. . She further testified as to the cost of the well and certain fixtures which she claimed had been ruined by the water.

Appellants’ witness Hughes, who lived near the Roskey and Budnik tracts of land, testified that he knew they were conducting seismograph testing in that area; that he heard an explosion and that the vibrations caused his house to shake and the windows in his house to rattle, and that the next day after the blasting his well got all sanded up. He said his residence was approximately three-fourths of a mile from the Budnik property, and that the blast came from the general direction of the Budnik property. He also testified that he had to expend $70.00 for two filtering units to filter the sand out of his well water. He didn’t know that the seismograph crew caused the blasting but he did know they were conducting seismograph operations in the general area, and that Taylor Exploration Company was doing the seismographing. He also testified that he knew the water piped in the Roskey home after the blasting was unfit for human consumption.

Mr. Nelson, who had drilled the Roskey well in May, 1961, testified the well was 277 feet deep and was equipped with a Gould’s pump, and that it had good water and a lot of it; that in September, 1963, which was approximately nine months after the blasting, at the request of Mrs. Roskey, he went to the well site and that the water was then the worst water he had ever seen. It was his opinion that the changed condition in the water was due to another water coming in and that an explosion could cause another water to come in the well; and that in his opinion the sand was fractured allowing some other water to come into the sand. He also testified as to a log made when he drilled the well, the different strata penetrated, the cost of making the well and what it would cost to drill another well.

Appellants rely both upon negligence which was pleaded generally and upon the doctrine of res ipsa loquitur. In their argument before this Court appellants in effect conceded that if the decision of the San Antonio Court of Civil Appeals, in Stanolind Oil & Gas Company v. Lambert, 222 S.W.2d 125, correctly enunciates the rule of law applicable to suits brought to recover damages growing out of seismograph operations, they have failed to establish liability. It is their contention, however, that the instant case falls within the holding of McKay v. Kelly, Tex.Civ.App., 229 S.W.2d 117, aff’d 149 Tex. 343, 233 S.W.2d 121, and similar cases. In the McKay case, the plaintiffs alleged negligence generally and also relied upon the doctrine of res ipsa loquitur. The Supreme Court held that there was some evidence which would sustain a finding of negligence on the defendant’s part without applying the doctrine of res ipsa loquitur. The Court of Civil Appeals had indicated that such doctrine was applicable. In the McKay case the defendant used explosives in mining caliche. It was shown that simultaneously with the explosions in the defendant’s caliche pit, which was between 700 and 1200 feet from the plaintiffs’ premises, the whole premises were shaken, cracks appeared in the walls, chimney and fireplace of their home, obj ects were shaken out of a cabinet to the floor, a wall “buckled out,” large “pieces of rock” fell off the rock walls of the home, and a fairly good-sized rock fell from the fireplace. Following the explosions, doors stuck, part of a wooden door was pulled apart, the floors sagged and were weakened, the garage was pulled away from the house, the corners of the downstairs rooms were pulled apart, a big crack appeared in the concrete porch, water in the wells became clouded, and the butane gas line burst.

It seems clear in the McKay case that since a tremendous amount of damage was done to the home simultaneously with the explosion some 700 to 1200 feet distant therefrom and the expert testimony was to the effect that an unnecessary amount of explosive had been used, there was some evidence which would have sustained a finding of negligence. The court held that one test of negligence in a case involving explosives is whether an excessive amount of explosives is used; that is, a quantity greater than was reasonably necessary in the blasting operations and greater than would be used by a person under the same or similar circumstances in the exercise of ordinary care in operating such a pit or quarry. Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636; Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., Tex.Com.App., 298 S.W. 554.

We agree that the doctrine of res ipsa loquitur may be applied to explosion cases under certain circumstances. McKay v. Kelly, Tex.Civ.App., 229 S.W.2d 117. In Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445, the rule is well stated as follows:

“Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.”

See also Yarbrough’s, Inc. v. McNabb, Tex.Civ.App., 222 S.W.2d 274, writ ref., n. r. e.; Weingarten, Inc. v. Gauthier, Tex.Civ.App., 305 S.W.2d 181; Coca Cola Bottling Company v. Thomas, Tex.Civ.App., 263 S.W.2d 644, writ ref., n. r. e.; Montgomery Ward & Co. v. Scharrenbeck, Tex.Civ.App., 199 S.W.2d 830, aff’d, 146 Tex. 153, 204 S.W.2d 508.

It is our view, however, that the trial court properly refused to apply the doctrine of res ipsa loquitur under the facts and circumstances of the instant case. In this case the most that can be said is that there was a loud noise or blast and simultaneously with it appellants’ house shook and the windows rattled. No damage resulted to the house, and, as far as the record shows, no damage resulted immediately to appellants’ well or fixtures. The next morning the water from the well was dirty. The evidence shows that the dirty water probably resulted from some other water getting into the water sand from which appellants had been pumping their water. There is no evidence as to where the sand was fractured, if it was in fact fractured. It might have been fractured near appellants’ well, or, as far as the record shows, some distance therefrom. There is no evidence as to the distance from the holes drilled on the Budnik property to the Roskey well, although Mr. Budnik estimated the distance from such holes to the Roskey home at 1000 yards. There is no evidence as to the depth of the holes drilled on the Budnik property, or of the quantity or nature of the explosives used, or the depth at which such explosives were detonated. There is no expert or other testimony relative to the customary or usual manner of conducting such seismograph operations in geological structures such as involved in the present case, or as to the standard used in connection therewith, or that there was any departure from such standard. There is no evidence showing that the seismograph operations in question and the blasting were not conducted in the customary and usual manner, or according to the usual and accepted standards, or that the amount of explosives used was unreasonable or unnecessary, or that the loads of explosives used or the blasts therefrom were greater than customary, or that the accident would not have occurred in the absence of negligence on the part of ap-pellees.

We have read the entire statement of facts and are of the opinion that the insufficiency of appellants’ proof brings the present case within the rule enunciated in Stanolind Oil & Gas Co. v. Lambert, supra, wherein the court, speaking through Justice Norvell, said:

“It is in the particular mentioned that appellee’s proof is deficient. We have carefully read the entire statement of facts in the case and find no evidence therein relating to the usual and ordinary course of operations in doing exploratory work with a seismograph in geological structures such as that here involved. There must be a standard shown before a departure from that standard may be inferred from occurrences which result in damage. In a case such as this, the matter is one for proof and can not be supplied by common knowledge, as it is in some res ipsa loquitur cases. We do not judicially know the details of exploratory operations by use of a seismograph, so that we can say that damage to ap-pellee’s wells indicates a departure from the norm and raises an inference of negligence. See, Comanche Duke Oil Co. v. Texas Pac. Coal & Oil Co., Tex.Com.App., 298 S.W. 554. Obviously, any attempt to do so upon the record before us would be to run counter to the holding of Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ.App., 140 S.W.2d 491, and, in effect, hold appellant liable as an insurer.”

In Klostermann v. Houston Geophysical Co., Tex.Civ.App., 315 S.W.2d 664, writ ref., the court, speaking through Justice Pope, concluded that Texas is committed to the rule that seismographic operations fall within the tort field of negligence law. The court cited Stanolind Oil & Gas Co. v. Lambert, supra; Seismic Explorations v. Dobray, Tex.Civ.App., 169 S.W.2d 739, and Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636. In the Lambert case the court said: “Under a proper set of fact circumstances, the doctrine (res ipsa loquitur) could undoubtedly be relied upon. 22 Am.Jur. 212, § 95, although in most cases it would afford a rather indirect approach to the fixing of liability.” See also Sinclair Oil & Gas Company v. Gordon, Tex.Civ.App., 319 S.W.2d 170; Dellinger v. Skelly Oil Co., Tex.Civ.App., 236 S.W.2d 675, writ ref., n. r. e.; Humble Oil & Refining Co. v. Grucholski, Tex.Civ.App., 376 S.W.2d 950, writ ref., n. r. e.

Although seismographic operations fall within the tort field of negligence, as concluded by the Court in Klostermann v. Houston Geophysical Co., supra, negligence in such cases might be established inferentially under a proper set of fact circumstances by invoking the application of the doctrine of res ipsa loquitur. In our opinion appellants’ proof failed to establish a set of fact circumstances which would warrant the application of and reliance upon such doctrine.

Judgment affirmed.


author: BELL, Chief Justice.

text:
    Erich N. ROSENTHAL, Appellant, v. J. S. GROVES, Appellee.
    No. 14509.
    Court of Civil Appeals of Texas. Houston.
    Feb. 25, 1965.
    Rehearing Denied March 18, 1965.

      Ellis F. Morris, Jack Rook, Houston, for appellant.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment dismissing with prejudice the appellant’s suit against appellee, the basis of the dismissal being that appellee had received his discharge in bankruptcy.

On February 5, 1962, appellant filed suit against appellee seeking to recover $6,250.-00. By an amended petition appellant alleged that beginning April 13, 1960, he and appellee entered into a series of business transactions shown on an attached ledger sheet. The sheet shows an account carried by appellant for appellee and gives seven debit entries from the beginning date to October 28, 1960 aggregating $12,750.00. It •shows two credits to the account and a balance due of $6,250.00, and appellant alleges as a result of the “loans” made by the appellant to appellee and the repayments made by appellee there was a balance due of $6,250.00. In the alternative appellant alleged appellee executed and delivered to him three negotiable checks drawn on the Houston Bank & Trust Company that aggregated $6,250.00 that had been returned by the Bank marked “Insufficient Funds.”

On trial of the case the trial court rendered judgment for appellant for $4,803.00. The case was appealed by appellee here, who was appellant there, and we reversed and remanded because the trial court, after proper request, had failed to file findings of fact and conclusions of law. Groves v. Rosenthal, Tex.Civ.App., 371 S.W.2d 792.

We should here note that we learn of the nature of the claim asserted by appellant by judicially noticing the pleadings contained in the transcript filed in the previous appeal. The transcript in this appeal does not include the plaintiff’s petition or defendant’s answer prior to his answer setting up his discharge. Appellant has, in argument before us, asked that we judicially notice our records. Appeal is here without a statement of facts.

While the case was pending on appeal, appellee, on July 12, 1963, filed his petition in the United States District Court praying that he be adjudged bankrupt. On his schedule he listed the judgment rendered against him in appellant’s favor noting it was an “action on alleged debt” and that it was on appeal. Appellee received his discharge in bankruptcy February 7, 1964. The Supreme Court of Texas, in the previous appeal, refused a writ of error, no reversible error on January 29, 1964. The mandate of this Court issued February 24, 1964.

On May 25, 1964, appellee filed his second amended original answer and pled his discharge in bankruptcy as a bar. At the same time he filed his motion to dismiss appellant’s suit because he had been so discharged. Certified copies of the petition in bankruptcy, the schedules and the order of discharge were attached. In reply appellant opposed the motion pleading that since an appeal from the judgment was pending at the time the petition was filed it was not a provable claim under Section 63, sub. a(l) of the Bankruptcy Act, 11 U.S.C.A. § 103, sub. a(l) and that a discharge in bankruptcy only operates to discharge provable claims. 11 U.S.C.A. § 35.

• The court rendered judgment dismissing the case with prejudice. Thereafter ap-' pellant filed a motion to vacate the judgment on the same grounds on which he had opposed dismissal and attached certified copies of the petition in bankruptcy, the schedules and the order of discharge. This was overruled.

Appellee does not dispute that the judgment was not a final one at the time of filing the petition in bankruptcy. He concedes it was not final, so that the judgment itself was not a provable claim within the meaning of 11 U.S.C.A. § 103, sub. a(l). His position is that the claim or cause of action asserted in the suit in which the judgment was rendered was itself a provable claim under either 11 U.S.C.A. § 103, sub. a(4, 8) or that part of (1) stating that a “fixed liability * * * evidenced by an instrument in writing, absolutely owing at the time of the filing of the petition by or against him, whether payable or not * * * ” is provable.

We are of the view that appellant’s claim was a provable one under the part of Subsection (1) of Sec. 103, sub. a above quoted or under Subsection (4) of Section 103, sub. a and the discharge operated to discharge appellant’s claim.

The claim of appellant was based, as evidenced by his pleading, on alternative theories of recovery. First, he contends there was a series of transactions extending from April 13, 1960 through October 28, 1960, in which appellant made seven different loans to appellee and appellee made two payments on the account. He thus sues in form on open account. Too, the pleadings. would sustain a recovery based on money had and received with the implied obligation by appellee to repay. This claim would be provable under Subsection (4) of Section 103, sub. a providing that debts may he proved and allowed if based on open account or contract, express or implied. Remington on Bankruptcy, Sec. 790-793.

The other theory of recovery was that appellee had executed three negotiable checks payable to appellant that had been returned by the bank because of insufficient funds. This theory sought recovery on a written contract evidencing a fixed liability. The provability of this type of debt is covered by that part of Subsection (1) of Sec. 103, sub. a above quoted.

The part of Subsection (1) of Sec. 103, sub. a relied on by appellant is not applicable. That part merely refers to a situation where the claim asserted is the judgment. In order to be a fixed liability the judgment must be final. If the judgment is final, the original claim is merged into the judgment and cannot itself be proved because it no longer exists. Where the judgment is not final, there is no merger and the obligation being sued upon would itself be the claim to be asserted. This conclusion is reinforced when we also notice Subsection (5) of Sec. 103, sub. a, 11 U.S.C.A., which provides that debts may be proved and allowed that are based on “provable debts reduced to judgments after the filing of the petition and before the consideration of the bankrupt’s application for a discharge * * * ”. Before this subsection was adopted there were cases holding that where there was a provable debt that was reduced to judgment after the filing of the petition in bankruptcy, the original debt was merged in the judgment so that at the time of discharge it did not exist as a provable claim and was not discharged. It did not come in as a provable claim under Subsection (1) be-, cause there was no final judgment at the date of filing of the petition and no provi-■ sion had been made in the Act for discharge. of a judgment subsequently obtained. Remington on Bankruptcy, Secs. 809-812. The intent of the Act, therefore, is to make all claims that at the time of filing the petition in bankruptcy have not been reduced to final judgment provable and thus subject to being discharged, if under some other subsection of Sec. 103, sub. a other than one relating to final judgments existing when the petition in bankruptcy is filed they are defined as provable claims. This must necessarily be the interpretation if the basic purpose of the Bankruptcy Act is to be accomplished, that is, that with very few exceptions, as specified in 11 U.S.C.A. § 35, a debtor is discharged of his obligations so he may start life anew.

The case of Fidelity Union Casualty Co. v. Hanson, 44 S.W.2d 985 (Tex.Com.App.), relied on by appellant, is not applicable. There some people named Haymann sued Hanson to recover damages suffered as a result of Hanson’s negligence. At the time Hanson filed his petition in bankruptcy a judgment had been rendered against him but an appeal had been perfected by giving notice of appeal and filing a cost bond.- This prevented the judgment from becoming final. The case was affirmed. Hanson then filed this suit against his insurer to recover the amount by which his policy of insurance indemnified him. The insurer pled that Hanson’s discharge in bankruptcy discharged the judgment. The Commission of Appeals held there was no discharge because Subsection (1) of 11 U.S.C.A. § 103, sub. a, required that the judgment be final when the application to be declared a bankrupt was filed. A claim based on negligence, the Court noted, was not a provable claim. We note the law has since been changed. A final judgment based on negligence would have merged the claim into the judgment and it would have become a fixed liability based on a judgment and thus provable. In the absence of a final judgment at the date •of bankruptcy the claim against Hanson was non-provable.

It is noticed the trial court here dismissed the suit with prejudice. A plea of discharge in bankruptcy is a plea in bar. Proper procedure here would have been to enter a take-nothing judgment either after a motion for summary judgment by appellee .or a trial on the merits. However, a dismissal with prejudice operates as a bar to further proceedings. Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App.). We, therefore, affirm the judgment of the trial court.

Affirmed.


author: McDONALD, Chief Justice.

text:
    E. Carl CARLSON et al., Appellants, v. Fred M. TRAWEEK et al., Appellees.
    No. 4263.
    Court of Civil Appeals of Texas. Waco.
    Feb. 11, 1965.
    Rehearing Denied March 4, 1965.

      Ragan & Russell, Houston, for appellants.
    Baggett, Kirk, Van Keuren & Baggett, Brigman, Lucas, Martin & Douglass, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal by plaintiffs from an instructed verdict for defendants.

Plaintiff Carlson, et al., brought this suit against defendants Traweek, Stefan, Med-Equip Co. Inc., Whittington and Garrison, “for damages under written contracts.” The suit against Stefan, Traweek and Med-Equip Co. Inc. is for damages for breach of a written contract to pay plaintiff a commission, for purchasing for them 51% of the stock of Med-Equip from its owner Whittington. The suit against Whitting-ton and Garrison is for “interfering with plaintiff’s contractual rights.”

Med-Equip Inc. was owned 49% by Stefan (who was its manager), and 51% by Whittington; (Garrison was Whittington’s nephew and trustee of his Med-Equip Co. stock). Med-Equip was insolvent; was obligated to Rotan Company for $60,000; and indebted to Whittington for $159,000. Whittington was an endorser on the Med-Equip obligation to Rotan. Whittington wanted to sell his interest in Med-Equip, if he could be relieved of his endorsement on the Rotan obligation; otherwise he wanted to liquidate the company. Stefan wanted the Med-Equip to stay in business, and interested Traweek, his brother-in-law, in purchasing Whittington’s stock.

Plaintiff Carlson was a promoter, and a man who puts projects together. He talked with Garrison about selling Whittington’s 51% interest in Med-Equip, and talked with Traweek about purchasing same. The following instruments in writing were entered into:

“April 13, 1962
“Mr. Robert L. Garrison Med-Equip Co., Inc Houston, Texas
Dear Mr. Garrison:
“This instrument is to reduce to-writing our mutual agreement of our several days of negotiations, of our commitment to purchase the 51% of the issued and outstanding common, stock of the above mentioned corporation * * *. We agree to pay the sum of $2641.00 for such shares-
“It is agreed that the holder of the above mentioned stock shall place his-certificate in a Bank which shall be mutually agreed upon under an escrow agreement along with our check to cover the purchase price until such time all the terms and conditions herein have been complied with. The owner of such stock being Mr. Harmon Whit-tington.
“Furthermore, we will agree to negotiate with the Rotan Company * * * and release the personal endorsement of the holder of the 51% of the stock of the corporation, from any further liability. * * *.
“Also Mr. Whittington agrees to-release the corporation from any further liability or indebtedness on any -and all funds which he has previously ■ advanced to the corporation to date, which the amount is some $159,000.
******
/S/ E. C. Carlson
“Accepted by ,/S/ Karl Stefan
“Approved by /S/ Robert L. Garrison
As Trustee for Mr. Harmon Whit-tington.”
“Houston, Texas
“April 17, 1962
“For and in consideration of acting as agent in the purchase of 51% of the issued stock of Med-Equip Co., Carlson shall receive the sum of $3000.
“For further consideration it is agreed that the majority stockholders will retain Carlson in a position of Manager for the Company for at least 1 year with a monthly income of $1000. plus expenses directly connected with the corporation’s business and shall be approved by the Board of Directors of Med-Equip Co., Inc.
******
/S/ E Carl Carlson
“Approved /S/ Karl Stefan
/S/ Fred M. Traweek.”

The record reflects that Traweek gave Carlson a Cashier’s check payable to bearer for $2641. with which to purchase the Whittington stock, but that Carlson was unable to relieve Whittington of liability on the obligation to Rotan, and Garrison (Trustee for Whittington), refused to sell Carlson the stock.

Sometime later Traweek, acting on his own and not through Carlson, secured an acceptable surety for the Rotan obligation, and bought the stock directly from Garrison.

At the conclusion of the evidence the Trial Court granted defendants’ motions for instructed verdict, and entered judgment that plaintiff take nothing. Plaintiff appeals on 10 points, contending the Trial Court erred:

1) In not entering judgment for plaintiff for $15,600. against Traweek and Stefan on the written contract.
2) In granting the instructed verdict and in not submitting the case to the jury.

The April 17, 1962 contract upon which plaintiff sues, requires that plaintiff purchase Whittington’s stock in Med-Equip for Traweek and Stefan, before he should be entitled to his commission. The April 13, 1962 instrument requires that plaintiff secure release of Whittington’s personal liability on the Rotan note, as a condition of Whittington’s obligation to sell his Med-Equip stock to plaintiff. The record is undisputed that plaintiff was unable to relieve Whittington of his suretyship obligation to Rotan. Whittington was therefore under no obligation to sell his stock to plaintiff, and refused to do so. Plaintiff did not purchase the stock for Traweek and Stefan, and was not entitled to his commission. Stefan and Traweek did not breach the written contract with plaintiff. There is no evidence that Whittington or Garrison caused or encouraged a breach of such contract; and counsel for plaintiff stated in oral argument that plaintiff had not made out a case against Whittington and Garrison.

The Trial Court did not err in instructing verdict for defendants and in rendering judgment that plaintiff take nothing. Plaintiffs’ points and contentions are overruled.

Affirmed.


author: HUGHES, Justice.

text:
    F. A. WHITT, Individually and as Executor of the Estate of Viva I. Whitt, Deceased, Appellant and Appellee, v. John L. BUSSEY et al., Appellees and Appellants.
    No. 11268.
    Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1965.
    Rehearing Denied March 17, 1965.

      Runge, Marschall & Hall, San Angelo, for appellant and appellee.
    Snodgrass, Smith, Rose & Finley, San. Angelo, Frank C. Dickey, Sr., Robert Lee, Lewis, Blanks, Thigpin, Logan & Steib, San Angelo, for appellees and appellants.'
   HUGHES, Justice.

F. A. Whitt is the surviving husband of Viva I. Whitt, who died testate on February 2, 1961. Mr. Whitt brings this suit individually and as Executor of the will of Viva I. Whitt, to construe such will. He also sues to cancel two deeds executed by him on December 12, 1961, conveying certain real property in Ector and Coke Counties, Texas, to John L. Bussey, Everett E. Bussey, Frank Henry Bussey and Ima Jefferson Flanigan, children of Viva I. Whitt by a previous marriage, and Alta Iolee Kennemer Caswell, Jack Shelby Kennemer, Gerald Frank Kennemer, Darwin Bussey Kennemer and Glenn Curtis Kennemer, children of Mrs. Ida Kennemer, a deceased daughter of Mrs. Whitt.

The persons above named as grantees in the two deeds sought to be cancelled and Frank Bryson Bussey, son of Frank Henry Bussey, were beneficiaries under the will of Mrs. Whitt and all are parties to this suit.

The ground upon which cancellation of the two deeds is sought was the undue influence exerted by the four children of Mrs. Whitt, above named, to procure their execution. Trial to a jury resulted in a verdict finding that undue influence was exercised by some or all of such children, and judgment cancelling such deeds was rendered.

We will determine the points relating to this phase of the case before construing the will of Mrs. Whitt.

The first point is that the court erred in including the name of Ima J. Flanigan as one of the persons named in the issue submitted to the jury as one who may have exercised undue influence upon Mr. Whitt.

This issue was timely objected to by the defendants on the ground that there was no evidence, or that the evidence was insufficient, to raise the issue that Mrs. Flani-gan exercised or participated in the exercise of undue influence upon Mr. Whitt and that if the jury should answer such issue in the affirmative it could not be determined whether the answer of the jury, or one of the jurors, applied to her alone, and if so it would be a faulty finding.

The issue and answer read:

“SPECIAL ISSUE NO. 1. Do you find from a preponderance of the evidence that the making and execution of the deeds by F. A. Whitt on December 12, 1961, were procured by the exercise of undue influence on the part of John L. Bussey, Frank Henry Bussey, Everett E. Bussey and Ima J. Flani-gan, or any of them? Answer yes or no.
“Answer: Yes”

It is our opinion that there was some evidence of probative force to the effect that Mrs. Flanigan exercised undue influence upon Mr. Whitt to procure the execution of the deeds by him, and that defendants’ objections upon this- score are untenable.

The deeds in suit were not executed for a consideration deemed' valuable in law. When they were executed Mr. Whitt was 68 years of age. He never attended school. He could only write his name and could read a little. He herded sheep, worked on a ranch, in an oil field, farmed and did other physical work for a living. Mr. and Mrs. Whitt married in 1914. Mrs. Whitt had been previously married and when she and Mr. Whitt married she had six children, all under the age of fourteen years, one dying at the age of six. Mr. and Mrs. Whitt also reared the five children of Mrs. Ida Kennemer who died in 1931. These children were then under nine years of age. Mr. and Mrs. Whitt also took one of Mr. John Bussey’s children from an orphanage because he had kidney trouble, and they reared him. They also took in a needy unrelated boy and kept him while he went to high school.

Dr. W. Irby Fox, M. D., testified regarding the physical and mental condition of Mr. Whitt. Dr. Fox treated Mr. Whitt for heart trouble and palsy. We quote his testimony :

“Q Doctor, what is your opinion then as to the psychiatric or the emotional makeup of this man?
“A Well, from the psychiatric emotional makeup, I’d say he is, or rather has been a rather independent man most of his time, and of course it is obvious right now that he is in the late phases of his declining years and emotionally he is just like any of us, he will take the path of least resistance, it is going to cost him his life if he doesn’t or if he is under pressure or if he is under tension he can’t stand, his reserve is very low.
"Q Would you consider a man of his caliber then normal or abnormal so far as this problem is concerned?
"A I think he is normal, he is mentally clear, he exhausts easily and when you get him exhausted, why, of course, he is confused and would get confused and does.
“Q Is he readily susceptible to any influence that may be exerted upon him?
“A Yes, I think he is very susceptible because he is dependent now, he is not able to take care of himself, he has no fight left in him and he he is dependent on whoever promises to take care of him.
“Q And knowing his medical history and knowing his condition now would you surmise that he has been in this same condition for at least several years in the past?
“A I think so; this is not sudden.”

The above evidentiary facts are relevant to the issue of undue influence as to the four persons named in the issue. We will not here detail the evidence of undue influence as it relates to any of the four Bus-sey children except as to Mrs. Flanigan, its sufficiency as to them not being challenged, and except as may be required to explain the testimony regarding Mrs. Flanigan.

Mrs. Whitt had made two wills, one in 1957 and one in 1959. After her death Mr. WThitt offered the 1959 will for probate but its probate could not be accomplished because Mrs. Flanigan had taken the will after her mother signed it to witnesses who lived elsewhere and had it witnessed in the absence of Mrs. Whitt. This will was much more beneficial to Mrs. Flanigan and the other Bussey and Kennemer children than the 1957 will which was probated. Regarding this 1959 will, Mr. Whitt testified:

“Q Did Mrs. Whitt ever discuss this 1959 will with you?
“A Yes, sir.
“Q What did she say about it ?
“A Well, she told me that it wasn’t any good.
“Q Did she say why she thought it was no good?
“A Yes, sir. She said that those people that signed, they didn’t hear her testimony of that being her first and last will.
“Q Did she say why she had that will prepared?
“A Well, she had this will prepared, she said, because Ima Flanigan kept on her to make a new will, and change the old will, the way she had the old will made out she wanted it different.
“Q Did Ima ever tell you and Mrs. Whitt that she felt like she ought to have all that Odessa property?
“A Yes, sir.
“Q Did she say why she felt like she was entitled to all the Odessa property ?
“A Well, she said that she lived with us and taken care of us as long as we lived she’d like to have that Odessa property made over in her name.
“Q All right. Mr. Whitt, did Ima Flanigan take care of you from there on out?
“A No, sir.
“Q And you have already testified that she had not contributed to your support. Did she begin to contribute to your support then?
"A No, sir.
“Q Did she and her husband continue to live with you and Mrs. Whitt in that house?
"A Well, for a while she stayed up there with us. I don’t remember just how long.”

Mr. Whitt was not permitted to remain in the room with his wife, the attorney and Mrs. Flanigan when the 1959 will was drawn. He was excused by the attorney who stated that when the time came to probate the will someone might say he, Mr. Whitt “caused her to make it this way.”

Mr. Whitt received nothing under this will. All of Mrs. Whitt’s property, except certain personal property which was bequeathed to Mrs. Flanigan, was left to the children and certain grandchildren of Mrs. Whitt. Mrs. Flanigan was named Executrix.

Under the 1957 will the children of Mrs. Whitt and the children of a deceased daughter received 206 acres of land in Coke County subject to the provision that all mineral royalties from such land should go to Mr. Whitt for life. Mrs. Flanigan in addition to receiving a ]/$ interest in! the 206 acres was bequeathed certain household effects. All the remaining property of Mrs. Whitt was left to her husband and he was named Independent Executor of her will.

When Mrs. Whitt died she and her husband, either separately or jointly, owned a house and lot in Odessa, Texas, for which they had paid $12,000.00, a note representing the sale of their farm in Missouri (Dombrowsky note) on which $10,000.00 was owing, and 532.87 acres of land lying principally in Coke but partly in Mitchell County, less some of the minerals on part of the land, and certain mineral interests in New Mexico of nominal value.

The deeds which were set aside by the Court on the jury verdict conveyed, one, a one-half interest in the house and lot in Odessa to the defendants, except Frank Bryson Bussey, and the other, to the same parties, the 532.87 acres of land in Coke and Mitchell Counties. This latter deed contained no reservation of oil royalties to the grantor, Mr. Whitt.

With this background, we now recite the evidence directly connecting Mrs. Flanigan with the undue influence found by the jury to have been practiced on Mr. Whitt

In the fall of 1961, Mr. Whitt was in Texas visiting with his granddaughter, Mrs. Dorothy Rannefeld, the daughter of John Bussey, when John and Frank Bussey came to see him and tried to persuade him to return to Missouri. Mr. Whitt at first refused, but the next day changed his mind, giving the following reasons:

“Q What made you change your mind and go on up to Missouri ?
“A Well, I had the place down here leased, you know; and my lawyer up there at Neosho said — he had a contract made that I hadn’t signed, and on leasing the place—
“Q Was there any other reason that you wanted to go back up there?
“A Well, yes sir.
"Q What?
“A I thought if I’d go back up there I wouldn’t have so much depression on me, being depressed. I was trying to get out from under it
“Q Well, what was depressing you down there at Roscoe?
\A Well, John and Judge [Frank] and Mrs. Flanigan wanting me to go back to Missouri and have that will fixed up, and they wanted me to deed it all over to them, and John said if I’d go up there with him, well, he had a truck that he could haul all of my things back, and he had a way of getting along with Everett and he knew that he’d get the things.
“Q ■ Well, were John and Frank angry or were they pleased with you when you refused to go back with them?
“A Well, they wasn’t pleased,
“Q Well, were you concerned about what John and Frank might do?
“A Yes, sir.
“Q What were you concerned with?
“A Well, I was afraid if I didn’t sign these here deeds—
******
“Q Were you worried about what John and Frank might do?
“A Yes, sir.
“Q What did you think they might do?
“A Well, I thought they might strike me, you know, if I didn’t carry on things like they wanted me to.
"Q Well, had you known the Bussey boys to be of such character that they were apt to do this sort of thing?
“A Yes, sir.”

We quote again from the testimony of Mr. Whitt:

“Q What prompted you to sign those deeds, Mr. Whitt?
“A. Well, this nagging that was going on, and the depression by them, and I didn’t have anyone up there with me. I was by myself. There was four of them there, you know, and I couldn’t argue against four, and I was the only one. I didn’t have anyone to help me and I was so depressed on losing my wife and her brother and my brother and her sister-in-law, and then this coming up on me' too. ■ I didn’t know what to do, and I decided to get them off my back and get away from them, and I just signed it over to them.
“Q Was there any other reason why you signed them?
“A No, sir.
"Q Were you concerned about your property?
“A Yes, sir, I was.
“Q In what way?
“A Well, I felt like I needed that property, and it was mine and that’s the only thing I had in the way of getting any money.
. “Q Are you referring to this Dom-browsky note?
“A No, sir, I’m referring to the Silver, Texas property.
“Q Well, this is the property you deeded, but were you concerned with losing all of your property?
“A Oh, yes, sir; that’s right.”

There is also testimony that after the deeds were executed by Mr. Whitt, Mrs. Flanigan helped her brothers John and Frank in trying to persuade Mr. Whitt to sell the Odessa house for $2500.00 less than was paid for it. They went to Roscoe, Texas where Mr. Whitt was staying with Mrs. Dorothy Rannefeld who testified to this conversation between Mr. Whitt and Mrs. Flanigan:

“Q During the course of this conversation was there anything said about the minerals on the Coke County land ?
"“A Well, yes, sir. Mrs. Flanigan made the remark, she asked Mr. Whitt if he wasn’t satisfied, and said they was glad for him to have the minerals in Coke County as long as he lived, and I told Mrs. Flanigan that they had all the minerals the way it stood at that time, and she got pretty unhappy about what I said; and we went on to Sweetwater then.”
Mr. Whitt testified similarly:
“Q Was there any discussion there in regard to the minerals?
■“A Yes, sir, there was.
“Q What?
“A Well, Ima Flanigan said they were willing for me to have the oil checks, but it wasn’t on the contract and it wasn’t on the deed.
“Q Well, was this said as a matter of getting you to sign the contract to sell the house?
“A I imagine that’s right.”

It is our opinion that this evidence is more than a mere scintilla of evidence tending to show that Mrs. Flanigan participated with her brothers in overcoming the will of her stepfather and in procuring his execution of the deeds in suit. Mr. Whitt testified that he executed the deeds because of his depressed condition and to “get them off my back.” By “them” he referred to the “four” who were against him. By the “four” he meant the three Bussey boys and Mrs. Flanigan.

The point under consideration is overruled.

The second point is that the trial court erred in not instructing the jury, as requested by defendants, that it could not consider as undue influence any declaration by any defendant that he would, or intended, to contest the will of Mrs. Whitt, and that “It is not wrongful or improper to institute or threaten to institute a civil suit or take proceedings in court or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights.”

There is evidence that some of the defendants told Mr. Whitt that if he did not execute the deeds in suit that they would contest the 1957 will of Mrs. Whitt. This testimony went in without objection.

The court, in its charge, defined “undue influence” as follows:

“The term 'undue influence’ as used in this charge means such influence or dominion of one over the mind of another created by excessive persuasion, importunity, imposition or threats exercised at the time of signing the instrument or theretofore exercised arid still operating on the signer’s mind to such an extent that it destroys the free agency of the person signing the instrument and substitutes therefor the will of another.”

This charge, or instruction, was not objected to on the ground that it contained the word “threats.”

We quite agree with defendants that a threat to do what one has a legal right to do is not wrongful. We do not agree, however, that there was error in refusing the requested instructions.

The threats to sue were harmless threats. The threats which were calculated to destroy the free agency of Mr. Whitt to exercise his own will in giving or not giving this property to defendants were of an entirely different character. We quote the testimony of Mr. Elgin Rannefeld regarding a visit made to his home in Roscoe, Texas, by John and Frank Bussey and John’s son, in the fall of 1961, at a time when Mr. Whitt was staying with the Rannefelds:

“A Yes, sir — I mean Frank and John.
“Q Go ahead.
“A And John’s son came by the house, or came to the house, they had been there on several occasions. They wanted him at that present time to go to Missouri with them to settle all this estate up there, and I believe that’s the particular timel They came about a half a dozen times there.
“Q And were they inside your house with you and who all was in the house at the time they were there ?
“A Well, Charles and my wife, and I • . believe one of my sons was there.
“Q And were Frank and John in the house all at the same time?
“A Yes.
“Q Do you recall the course of the conversation that took place then ?
“A Well, they told him if he didn’t get out to Missouri — they told him they thought they deserved all the Texas property, or they wanted all the Texas property is what they said, and they wanted him to go to Missouri and get all that settled up, all the estate settled, and they said if he didn’t go that he’d lose everything he had.
******
“Q Mr. Rannefeld, aside from what you thought, and I don’t think you were testifying as to what you thought, just state very clearly what was said by John Bussey and Frank Bussey there in the living room.
“A Well, they said that if he didn’t get up to Missouri and get this settled up that he was going to lose everything he had including the notes he held on the Missouri place up there.
“Q Did John and Frank Bussey appear to be angry?
“A Well, they were most domineering about it.
“Q And how did this impress Mr. Whitt? What were Mr. Whitt’s apparent reactions to this discussion?
“A Well, it was a while before Thanksgiving and we tried to get him to stay, but he felt he had to get up there right then or he would lose it.
“Q And did he leave the next day ?
“A Yes, sir, he did.
“Q To go back up to Missouri?
“A Yes, sir.”

Just a few weeks before Thanksgiving in 1961, John and Frank Bussey made another trip to Roscoe to see Mr. Whitt who was there. Mrs. Rannefeld testified regarding this visit as follows:

“Q What was the condition of Mr. Whitt when he arrived at your place in Roscoe?
“A Well, he seemed very depressed and just nervous and unhappy; he just seemed like in a mental state of depression.
“Q And did you have a visit thereafter by Mr. John Bussey and Frank Bussey at your home while Mr. Whitt was still there ?
“A Yes, sir.
******
“Q That was the time that Mr. Whitt and Elgin and Mr. Charles Blair were there and you?
“A Yes.
"Q And then Frank Bussey and John Bussey came there?
“A Yes.
“Q What happened in the course of that visit?
“A Well, they came by I understood to take him to Missouri to finish up some — this will, whatever they needed to finish up the probate or something of the will, and come by and wanted him to go with them that day.
“Q Did he accept or reject that—
“A No, he told them he didn’t want to go with them.
“Q And what happened after he said that?
“A Well, John Bussey became extremely angry, and he just put his hands in his pocket and got up and began to walk back and forth across the floor, and he told Mr. Whitt if he didn’t go and finish up this process that there was going to be some trouble, they were unhappy over some land, they thought they should have had all this land in Texas; and Mr. Whitt told them that he couldn’t give them this land, and they were quite unhappy over it and told him that if he didn’t give them this land in Texas that they were going to see to it that he would lose everything that he had, including some notes that he was getting from Missouri, that was the sole income that Mr. Whitt had, and they told him also that they would also see that he lost these notes in Missouri.
“Q And did Mr. Whitt go at that time with them to Missouri?
“A No, he didn’t go with them but, I’m not sure whether it was the next day, Mr. Hall, just the next day or two we put him on the bus and sent him to Missouri.”

There is also testimony that Mr. Whitt was cursed by Everett Bussey and invited by him to engage in physical combat in an argument over the deeds and just prior to their execution. Everett Bussey was 6'1" high, weighing 180 pounds and was S3 years old. Mr. Whitt weighed 120 pounds. Everett Bussey testified in person on the trial and did not deny any of this testimony.

If defendants were entitled to an instruction that the mere bringing of. a suit cannot be considered as undue influence, then Mr. Whitt would have been entitled to an instruction that the above testimony could be considered as undue influence. The result of this would be that each scrap of evidence could be singled out for a ¡negative or affirmative instruction on this •issue. See Johnson v. Zurich General Accident and Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353, where the Court stated: “A holding that a trial court must give a 'charge on that question of law [circumstantial evidence] would logically be followed by holdings that charges of similar character with respect to many other questions of law should also be given. Such practice would be out of harmony with the purposes of trials on special issues.”

Rule 277, Texas Rules of Civil Procedure, provides, in part, that in submitting special issues the Court shall submit such “explanatory instructions * * * as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues * *

Rule 273, T.R.C.P., provides, in part, that, “Each party may present to the judge and request such written instructions * * or explanatory instructions, as he desires to be given to the jury; and the judge may give them or a part thereof, or he may refuse to give them, as he may see proper.”

Regarding Rule 277, Mr. McDonald in Sec. 12.14 of his work on Texas Civil Practice states:

“The rule perhaps may be generalized: that when the special issue involves any unusual fact situation which brings into operation rules of law which the jurors must understand to act intelligently upon the question submitted, but which can not be covered adequately in a formal definition, the court may give an explanatory instruction correctly stating the rules of law, provided he does not thereby comment on the weight of the evidence or inform the jurors as to the effect of their finding upon the judgment.”

Regarding Rule 277, Mr. Hodges in Sec. 8 of his work on Special Issue Submission in Texas states, in speaking of giving “explanatory instructions” in a charge, that, "The Trial Court has considerably more discretion in this area than it has in connection with the special issues.”

It is our opinion that the explanatory instructions requested here were not “necessary” under Rule 277, and that the trial court properly exercised the discretion given him under Rule 273 in declining to give such instructions.

To have given these requested instructions would have bordered on violating the rule that a court should not comment on the weight of the evidence, a question we need not decide because the evidence that some of the defendants threatened to contest the will of Mrs. Whitt is so intermingled with their threats to pauperize this illiterate man that the jury could easily have been confused by such instructions.

The instruction was unnecessary because, in our opinion, a Coke County jury does not need to be told that a person has a right to enforce or protect his rights in the courts of the land.

The point under consideration is overruled.

Defendants’ third through eleventh points of error are jointly briefed. They complain of the action of the trial court in overruling numerous exceptions to the pleading of Mr. Whitt.

The gist of these exceptions is that conclusions, not facts, were pleaded and that the allegation that the certain defendants “threatened to cause plaintiff to lose everything of value that he possessed if he did not make the conveyance” was subject to exception because, “It is not alleged that such threat, if made, was the producing cause of plaintiff’s execution of the deeds nor that defendants had it within their power to cause such a loss to plaintiff.”

We quote the following from the Triai Petition of Mr. Whitt:

“During the time Plaintiff resided with the said Everett E. Bussey, in Neosho, Missouri, Responsible Defendants commenced, continued and consummated a harsh and cruel course of conduct toward Plaintiff, involving' abuses, threats, cursings, intimidations and insults, interspersed with overtones of kindness and solicitation, in an attempt to compel Plaintiff to convey to Defendants all his rights, title and interest in that real property, including all oil, gas and other minerals, interest in and to certain tracts of land in Coke, Ector and Mitchell Counties, Texas, the full description of which is set forth in Exhibit A attached hereto for all purposes. In more specific terms, Responsible Defendants often treated Plaintiff like a child in issuing directives and mandates, Responsible Defendants insulted Plaintiff regularly by degrading him personally and by excluding him from social company, Responsible Defendants cursed Plaintiff with vile and vulgar language in connection with various conversations and remarks, and Responsible Defendants not only threatened Plaintiff physically by inviting him, an elderly and feeble man, to fight one of them, to-wit: Everett E. Bussey, a strong and healthy man considerably younger than Plaintiff, but Responsible Defendants also threatened Plaintiff with the loss of everything he owned and possessed if he did not convey the subject property to the Defendants. In addition to these positive and overt acts committed by the Responsible Defendants, they did further exert duress and undue influence by subtle innuendoes and implications to the same matters and to the same effect. These acts, both overt and implicated, were coupled with a constant course of nagging Plaintiff by the Responsible Defendants to convey to the Defendants the subject property, and these acts continued over an extended period of many months.
“(9) As a result of such harsh and cruel treatment, Responsible Defendants exerted such duress, undue influence and breach of their fiduciary relationship with and upon Plaintiff that Plaintiff, against his own free will and election, did in fact convey to Defendants all his rights, title and interest in said real property described in Exhibit A, including his own one-half community property interest therein,
******
Such duress and undue influence were exerted at the time the deeds were executed and were of such a nature as to subvert Plaintiff’s mind and will power so as to render him unable to resist it or to act upon his own free agency and election. The deeding by Plaintiff reflected, as a result of such duress and undue influence, the will of Responsible Defendants rather than the free will of Plaintiff. Immediately preceding and at the time of deeding by Plaintiff, the Responsible Defendants threatened to cause Plaintiff to-lose everything of value that he possessed if he did not make the conveyance to the Defendants.”

It is our opinion that the pleadings were sufficiently specific as against the exceptions taken to them and that they gave “fair notice” to defendants of the grounds for the suit. Rule 45, T.R.C.P. Most of the allegations were with reference to matters which, if true, were within the peculiar knowledge of one or more of the defendants, who make no contention that they were surprised by the introduction of any testimony. It thus appears that if there was any deficiency in the pleading as asserted, that no harm resulted from it; hence, reversal should not follow. Rule 434, T.R.C.P. See Rothermel v. Duncan, 365 S.W.2d 398, Beaumont C.C.A., reversed on other grounds, 369 S.W.2d 917.

With reference to the specific exception, above noted, it is our opinion that the pleading alleged all of the ingredients of undue influence required to be established in order to set these deeds aside. We do not find, from the decisions, that the words “producing cause” are used in defining undue influence. We will not disturb the definition used by the Court which has stood the test of time. We hold that Mr. Whitt was not required to plead that certain acts were the “producing cause” of the execution of the deeds by him.

We also hold that Mr. Whitt was not required to allege that defendants had the power to cause him the loss of everything he possessed. It is the effect of this threat, if any, upon the mind or will of-Mr. Whitt which is involved. This was fully pleaded.

We overrule points three through eleven.

Having disposed of all of the points presented by defendants seeking reversal of the judgment cancelling the deeds in suit adversely to them, we affirm the judgment of the trial court in this respect.

Mr. Whitt, as appellant, complains of the construction which the trial court placed upon the following provisions of the will of Viva I. Whitt, the probated 1957 will:

“SECOND: I own, as my separate property and estate, having inherited same from my mother, Louisa Mathers, approximately two hundred six (206) acres of land, situated in Coke County, Texas, and I hereby Devise and Bequeath same as follows:
“(a) An undivided one-fifth (l/sth) interest in same to my son, John L. Bussey.
“(b) An undivided one-fifth (i/£th) interest in same jointly to my son, Frank Henry Bussey, and his son (my grandson), Frank Bryson Bussey.
“(c) An undivided one-fifth (i/$th) interest in same to my son, Everet E. Bussey.
“(d) An undivided one-fifth (i/£th) interest in same to my daughter, Ima Jefferson Flanigan.
“(e) An undivided one-fifth (i/£th) interest in same jointly to my grandchildren (being the children of my deceased daughter, Ida Mae Kennemer), Alta Iolee Ken-nemer, Jack Shelby Kennemer, Gerald Frank Kennemer, Darwin Bussey Kennemer and Glenn Curtis Kennemer.
The records of said county are referred to for a proper description of said property, as I own in community with my husband other real property situated in said county.
“THIRD: The bequests next above made are subject, however, to the provision, here now made, that all royalties on account of oil, gas or other minerals from said lands shall go, and are hereby devised, to my husband, F. A. Whitt, so long as he shall live, and upon his death same shall cease as to him, and the title to same shall follow the devises next above. During his life my said husband, F. A. Whitt, shall have the sole and exclusive right and power to lease said lands for oil, gas and other minerals.
* * * * * jfc
FIFTH: All of the rest, remainder and residue of my property, whether real, personal or mixed, of whatsoever kind or character, or wherever located or situated, I Give, Devise and Bequeath to my husband, F. A. Whitt.”

The trial court made the following findings in his judgment and, based on such findings, construed such will as shown below:

“The Court finds that Louisa Math-ers was the mother of deceased, Viva I. Whitt; that the said Louisa Mathers died and that under her will the said Viva I. Whitt received an undivided Vio interest in 2065 acres of land in Coke County, Texas; that the said Viva I. Whitt and husband, F. A. Whitt considered same as being 206 acres of land inherited by the said Viva I. Whitt from her mother; that on January 13, 1932, Viva I. Whitt and Husband F. A. Whitt conveyed said undivided Vio interest in 2065 acres of land to S. B. Savage by deed recorded in Volume 53, Page 102, of the Deed Records of Coke County, Texas, as part payment for certain land in Coke County, Texas, that is, the Alex Barnhill Survey, Patent No. 203, Volume 26, dated January 6, 1894, Abstract 1215; 148% acres out of the West part of Survey No. 10, Isaac Reed, Patent No. 559, Volume 25, dated September 14, 1893, Abstract 1100; and 11% acres out of the Northwest part of Survey No. 11, Isaac Reed, Patent No. 456, volume 29, dated September 7, 1897, Abstract 1286; all described in the deed from S. B. Savage and wife, Letitia Savage, to Viva Whitt, dated January 13, 1932, recorded in Volume 53, Page 100, Deed Records of said County, to which reference is made for all the terms and conditions of said deed.
“The Court further finds that after said exchange of deeds dated January 13, 1932, the said Viva I. Whitt and husband, the said F. A. Whitt, considered an undivided 206 acres of the land so conveyed to Viva I. Whitt on January 13, 1932, as having been inherited from her mother; and, that the land referred to by Mrs. Whitt in paragraph ‘Second’ of her will dated August 21, 1957, was and is an undivided 206 acres in the three tracts described above (the Alex Barnhill Survey, 148% acres out of Survey 10, Isaac Reed, and 11% acres out of Survey 11, Isaac Reed).
íjí ‡ Ijt ‡ ‡ *
“That paragraph No. 2 of said will dated August 21, 1957, be and the same is construed to refer and pass the title to an undivided 206 acres of land in said three tracts of land specifically described above, that is, the Alex Barn-hill Survey, said 148% acre tract out of Survey 10, Isaac Reed, and the said 11% acre tract out of Survey 11, Isaac Reed, except as provided in paragraph 3 of said will, and subject to such oil, gas and other minerals therein as are outstanding in third parties.”

It is obvious from these findings that testatrix when she made her will did not own 206 acres of land in Coke County which she inherited from her mother. She owned the land or an interest in the land which she received in trade for the 206 acres inherited from her mother.

The pleadings upon which the parties went to trial, with respect to the construction of the will of Mrs. Whitt, show the following:

Mr. Whitt pleaded the history of the 206 acres of land (Mo of 2065 acres) inherited by his wife from her mother as shown in the findings of the Court, supra. He prayed for a declaratory judgment, “as to the lack of any right of Defendants, or any of Defendants, to receive any interest in the real property of the Estate of Viva I. Whitt, Deceased, by and under the last will and testament of the said Viva I. Whitt, deceased, dated August 21, 1957.”

In Defendants’ (except the son of Frank Bussey) pleading, they alleged the following:

“The deceased, Viva I. Whitt, wanted her heirs to have a substantial part of her estate. At the time she executed the will dated August 21, 1957, she did not own any 206 acres of land inherited from her mother, Louisa Mathers, and the recitation to that effect in said will was wholly in error. She had inherited an undivided one-tenth (Mo) interest in approximately 2065 acres of land in Coke County, Texas, but in the year 1932 had conveyed the same to S. B. Savage in part consideration for 320 acres, being Tracts One, Two and Three of the land described in Exhibit A attached to Plaintiffs Petition herein, and the will therefore was ineffective to pass title vto the 206 acres therein mentioned and ;probably was ineffective to pass title to any land whatsoever to her children and the five grandchildren named in her will.”

This pleading was never amended. It was read to the jury. Obviously, it could have been the basis of an argument to the jury that if the deeds in suit were set aside these defendants would receive nothing from the estate of their mother.

We are of the opinion that the allegation that Mrs. Whitt “did not own any 206 acres of land inherited from her mother, Louisa Mathers,” was a statement of fact constituting a conclusive judicial admission against these defendants, the effect of which is that Mrs. Whitt did not own the land which she purported to devise to these defendants. The rule as to admissions of fact stated in a current pleading is that, “As long as the pleading remains unamended or the admission stands unretracted, the fact alleged or admitted, for the purposes of the case, is accepted as true by the court and jury and binding on the party making it, i. e. he cannot introduce evidence to contradict it.”

Under this rule, the parol evidence .admitted to identify other property as the •property which Mrs. Whitt referred to as •the 206 acres of land inherited from her mother was inadmissible and cannot form a proper basis for the Court’s construction •of the will.

There is another rule which precludes the admissibility of such parol evidence. This is the rule that if a will, in • clear and unambiguous language, evidences •.the intention of a testator to devise a particular tract of land, parol evidence is inadmissible to show that the testator intended to devise a different tract of land. This is the holding in Davis v. Douglas, 15 S.W.2d 232, Tex.Comm. of App.

The devise to these defendants of 206 acres of land in Coke County, inherited by Mrs. Whitt from her mother, Louisa Mathers, and referring to the County records of Coke County for a proper description of such lands is a specific devise of such lands. The records of Coke County show that the will of Louisa Mathers was recorded in Coke County December 10, 1917. This will shows that Mrs. Whitt was devised a one-tenth interest in all real estate which her mother owned at her death. Such records also show that in 1932 Mrs. Whitt conveyed to S. B. Savage her un-, divided one-tenth interest in 2066.2 acres in Coke County, specifically described, which was owned “by virtue of the said Viva Whitt, being one of the heirs of L. R. Mathers, and L. V. J. Mathers, deceased.”

There is no ambiguity in the wording of the will in regard to this devise and there is no latent ambiguity in such devise created by the records of Coke County, reference to which is made in the will.

It is our opinion that the trial court erred in his construction of the will of Viva I. Whitt. The devise of the 206 acres of land to these defendants was ineffective because the testatrix did not own such lands at the time of her death. Neither this Court nor any court, has the moral or legal right to re-write the will of any person. These defendants took no interest in the lands of testatrix under her will, and judgment to such effect is here rendered.

The judgment of the trial court is affirmed in part and in part reversed and rendered.

Affirmed in part and in part reversed and rendered.

      . The validity of this devise is the subject of the second phase of this appeal.


author: CHAPMAN, Justice.

text:
    Donald SCHWAB, Appellant, v. Bobby Glen STEWART, individually and on behalf of his wife, Zola Mae Stewart, Appellees.
    No. 7395.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 21, 1964.
    Rehearing Denied March 1, 1965.

      Morehead, Sharp, Boyd & Tisdel, Plain-view, for appellant.
    Splawn & Maner, Lubbock, for appellees.
   CHAPMAN, Justice.

The following opinion is in lieu of our opinion announced on September 21, 1964.

This is an appeal by Donald Schwab from a judgment based upon a jury verdict for Bobby Glen Stewart, individually and on behalf of his wife, Zola Mae Stewart, growing out of a collision between Mr. Schwab and Mrs. Stewart.

The first two points assert reversible error for the failure of the court to give appellant’s special requested Issue No. Nine tendered in the language of Article 6701d, Section 61(a), inquiring if Mrs. Stewart was following the pickup driven by appellant “more closely than was reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.” The other component part of the requested issue then inquired if such act was a proximate cause of the collision, requesting no issue on negligence.

The court asked the jury in Special Issue No. 14:

“Do you find from a preponderance of the evidence that Zola Mae Stewart, on the occasion in question, followed too closely to the vehicle driven by the Defendant, Schwab?”

He then asked in conditional issues if it was negligence and a proximate cause.

' The jury answered “Yes” to the 14th Issue but found it was not negligence. This required no answer to the proximate cause issue in the series. No objection was made to the three issues as submitted. Appellant insists he was not required to object to the issues as submitted because Issue 14, though inquiring if Mrs. Stewart was following too closely, was not worded in the exact language of Section 61(a) of Art. 6701d; that they were entitled to the issue of following too closely in the exact wording of the statute; that Section 61(a) constitutes contributory negligence as a matter of law and therefore did not require a negligence finding.

We do not believe the Supreme Court of Texas has passed on the particular question as to whether a violation of 61(a) of Article 6701d constitutes negligence as a matter of law. They have passed on Section 86 of Article 6701d included in the same article entitled “Uniform Act Regulating Traffic on Highways.” Many Courts of Civil Appeals have written on various sections of the named article. In the McFer-rin case just cited the Supreme Court listed many cases where intermediate appellate courts have written on the section of the article there in question. A reading of those cases will show the Courts of Civil Appeals have not been uniform in their holdings.

• A study of the two Supreme Court cases cited under Footnote One are convincing to the effect that the court has rejected the theory that a violation of any of the more than one hundred sections of Article 6701d constitutes negligence as a matter of law, regardless of the facts involved. In discussing the section there involved on the ■question of a violation constituting negligence as a matter of law the court in the .McFerrin case said:

“We reject the theory and hold that whether a train was 'in hazardous proximity’ to a crossing, so as to impose on an approaching motorist a duty to stop, must he determined by the ■ court from the evidence of the facts .and circumstances existing at the time ■the motorist was compelled to make a •decision, and should not be determined by or from the happening of subse■quent events. We would be loath, indeed, to hold that the legislature, by the enactment of Article 6701d, Sec. ■86(d), laid down a rule of evidence by ■which in this situation it has exacted • of the motorist perfect foresight of all ■ eventualities.”

Indiana has a statute which is in all material respects the same as the statute construed in McFerrin. That statute was construed by the Seventh Circuit of the Feder- ■ al Intermediate Appellate Court. That • court has said:

“In considering the issue thus presented, we are to be mindful of the In- • diana rule that, ordinarily, contribu.tory negligence is a question of fact for the jury. This is so, where the facts are such as to be subject to more 'than one reasonable inference. Dommer v. Pennsylvania R. Co., 7 Cir., 156 F.2d 716, 718; Lake Erie & Western R. Co. v. McFarren, 188 Ind. 113, 117-118, 122 N.E. 330. ‘It is only where ■the controlling facts are not in dispute .and are susceptible of but one conclusion upon the part of reasonable men, that the question becomes one of law for the court’ ”

We conclude that our Supreme Court in following the Indiana rule has adopted what has become to be known as the “Reasonably Prudent Man” doctrine. In Mc-Ferrin the court said:

“It seems to us that in determining whether the fact situation is such as to call the statutory duty into existence, we should not hold the motorist to greater wisdom or better judgment than a reasonably prudent person, similarly situated, would exercise. Accordingly, we apply the objective common-law test of the reasonably prudent man and hold that before it can be said in a given case that an approaching train was ‘plainly visible’ as a matter of law, it must appear, as a matter of law, that a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it.”

In the Texas & New Orleans Railroad Co. case cited in Footnote One the Supreme Court said:

“Conceding that the approaching train could have been seen by the operator had he looked to the right on a second occasion at an earlier time, his failure to do so should not be held to convict him of failure to keep a proper lookout, as a matter of law, unless we can say that under the same or similar circumstances no prudent man would have acted as he did.”

Now, to apply the law to the facts of our case.

With sufficient probative evidence' to support the issues, the jury found Mr. Schwab suddenly stopped his pickup in which he was driving ahead of Mrs. Stewart, which constituted negligence and a proximate cause of the collision; that he failed to keep a proper lookout, which was a proximate cause; and that he failed to keep his pickup under control which was negligence and a proximate cause.

The jury found in Special Issue 14 that Mrs. Stewart was driving too closely to the pickup but exonerated her of negligence. In doing so they, in effect, held that even though she violated Section 61(a) of Article 6701d she was not without excuse in doing so. We believe these facts would require an application of the “Prudent Man Doctrine,” thus requiring a submission of the question of negligence, which was not included in the requested and rejected Issue No. 9 complained about and its proximate cause component. Missouri-Kansas-Texas R. Co. of Texas v. McFerrin, supra; Texas & New Orleans Railroad Co. v. Day, supra; Pearson v. Baltimore & Ohio R. Co., supra; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892 (N.R.E.). Our finding in this regard is strengthened by the fact that the court submitted in Special Issue No. 32 the following question:

“Do you find from a preponderance ' of the evidence that on the occasion in question Zola Mae Stewart failed to exercise that degree of care as would have been used by an ordinary prudent person under the same or similar circumstances ?”

To this submission' the jury answered “No.”

Additionally, appellant made no objection to the form of submission of Issues 14, 15, and 16, thus waiving any error. Pacific Employers Ins. Co. v. Brasher, Tex.Civ.App., 234 S.W.2d 698 (N.R.E.); Southwestern Settlement & Develop. Corp. v. State, Tex.Civ.App, 282 S.W.2d 78 (N.R.E.); City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176. In the last cited case the Supreme Court said:

“Rule of Civil Procedure No. 274 provides: ‘A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.’ Assuming that the requested charges were more accurate than those given, a request to give them not coupled with any objection to the form used by the court will not be given effect as an objection to the issues as given.”

Accordingly, appellant’s first two points are overruled.

In his next series of points appellant alleges reversible error in permitting evidence of diminished capacity of Zola Mae Stewart to perform her household duties and in allowing recovery therefor because such damages were not pleaded.

Bobby Glen Stewart pleaded his wife was permanently disabled. The text writer in 17 T.J.2d, Damages, Sec. 194 at page 260, says:

“It is well established that all such damages as naturally and necessarily flow or result from the act complained of are considered general damages and need not be specially pleaded.”

Under the same title, Section 216 at page 281 and 282, it is textually stated as follows :

“If the injuries sustained by a wife are of such character as to imply destruction or diminution of her mental and physical qualities, the time and services thus lost are recoverable as general damages, and the amount thereof need not be specially alleged and may be ascertained under the general averment.”

Those textual statements find support in Missouri, K. & T. Ry. Co. v. Vance, Tex.Civ.App, 41 S.W. 167; Beaumont City Lines v. Williams, Tex.Civ.App, 221 S.W.2d 560 (NRE).

We therefore believe and so hold that the pleading was sufficient to warrant the evidence and recovery complained about. It would naturally follow that if a. housewife is permanently disabled she had diminished capacity to perform household duties. Especially would this be true if she had small children. The record shows Mrs. Stewart had five children, two small ones being with her on the occasion of the collision.

In points six and seven appellant contends the answer of the jury to Special Issue No. IS finding Mrs. Stewart was not negligent in following appellant’s pickup too closely was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust In considering this question we must weigh and consider all the evidence in the case and set aside the verdict and remand the cause for new trial if we conclude the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have studied the statement of facts carefully for the second time and we cannot say in applying the rule just announced that the jury’s answer absolving Mrs. Stewart of negligence in following too closely was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Mr. Schwab saw his wife approaching toward the pickup in her automobile. He decided she might want to talk to him and started slowing down. He admitted he had not looked back to see if anyone was behind him, even though he had a side-view mirror, until Mrs. Stewart was in a car-length of him. He testified in approaching his wife he thought at one time she was going to stop, that he started slowing down, but never pulled off the road. The testimony shows he then attempted to accelerate but pressed the accelerator so hard his pickup motor died, something else Mrs. Stewart, from her position, could not have foreseen would happen.

Mrs. Stewart testified she was about three hundred feet from the pickup when she saw Mr. Schwab slowing down, that she considered passing him but changed her mind because of the car approaching from the opposite direction; that within a hundred feet of him “I might have slowed down slightly, I don’t know.” Then when asked if she took any precaution she testified: “Well, I didn’t know at that time that he was stopping. * * * I wasn’t thinking about him stopping. I didn’t have that on my mind.” She then testified she had the impulse to lock her brakes when she was about one hundred feet from the pickup and that she made skid marks of about thirty-five or forty feet. She testified she thought she was a safe distance behind the pickup and continued to emphasize the fact that she never had any warning he was going to stop and didn’t have any thought of the machine in front of her suddenly stopping.

There is evidence both from Mr. Stewart and Mr. Green that Mr. Schwab, on several occasions, made the statement that the collision was his fault.

The jury as the exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony had the right to believe one witness and disbelieve another, or to believe part of the testimony of the witness and disbelieve any other part. Therefore, we cannot say the finding of no negligence in driving too closely was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

In his next complaint appellant raises the great weight and preponderance point on the finding of the jury that Mrs. Stewart did not fail to keep a proper lookout. We feel the facts have been sufficiently discussed concerning the events preceding the collision that we may say without further discussion that we believe the point is without merit.

The last issue raised is alleged error for refusal of the court to submit Special Requested Issue 4 inquiring if Mrs. Stewart failed to keep back a reasonable distance so as to provide for the contingency of the vehicle in front suddenly stopping. We believe this to be just another shade of other issues given with respect to driving too closely behind the pickup and we do not believe its refusal constituted reversible error.

“Where the court has fairly submitted the controlling issues raised by such pleading .and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.” Rule 279, Vernon’s Ann.Tex.Rules.

It is settled-law that trial courts are not required ,to- submit requested issues which are substantially and sufficiently covered by the main charge. Thomas v. Billingsley, Tex.Civ.App., 173 S.W.2d 199 (error refused); Smith & Conklin Bros. v. Griffith, 153 Tex. 341, 268 S.W.2d 124; Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

Accordingly, the judgment of the trial court is in all things' affirmed.

      . Missouri-Kansas-Texas R. Co. of Tex. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931; Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402.

      . Pearson v. Baltimore & Ohio R. Co., 200 F.2d 569.


author: ARCHER, Chief Justice.

text:
    William S. KASKA, Jr., Appellant, v. HOME OF HOLY INFANCY, Appellee.
    No. 11274.
    Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1965.
    Rehearing Denied March 17, 1965.
    Coffee, Ritter & Goldston, Austin, for appellant.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from an order of the District Court granting appellee’s motion for summary judgment.

The appeal is based on two points and are that the court erred in granting appel-lee’s motion for summary judgment because appellant was entitled to a hearing to determine if the child was, in fact, dependent and neglected when so adjudged, and that appellant was entitled to a hearing on the question of custody of the child.

The facts are not in dispute. Appellant filed his petition for habeas corpus seeking the custody of his unnamed minor child, alleging that he was the father of the child and that the mother of the child and appellant were married in June 1963 in the State of Oklahoma, at which time the mother of the child was pregnant; that the contracting parties lived together for about two weeks; that in September 1963 the marriage was annulled in a District Court of Dallas County, Texas, in which proceedings appellant was represented by counsel and did not contest the action, but did consent thereto.

It is our opinion that this case has not been sufficiently developed for the rendition of a summary judgment or any other species of judgment. The principal omission in the record is that it is not shown who has custody of the infant child of appellant, and where such custody is exercised.

Appellant alleged in his sworn pleading that the child was in the custody of appellee. He also alleged that he had been informed by Sister Martina, an official of appellee, that, “said child had been placed for adoption with a good Catholic family two days after birth” and that Sister Martina had declined to give him “any information which would enable him to identify said child by name or locate said child in any way.”

Appellee answered, this pleading by a general denial.

We construe the pleadings of appellant as failing to conclusively allege that appellee has custody of this child. In fact, it appears to us that he has alleged specifically to the contrary. In any event, until this question is settled the cause was not ripe for judgment of any character. If it develops that appellee does not have custody of this child, then no effective judgment could be rendered regarding its custody. The person or persons having such custody are, in our opinion, indispensable parties to a habeas corpus proceeding involving its custody.

Green v. Green, Tex.Civ.App., 247 S.W.2d 583, Dallas C.C.A., no writ sought, was a child custody case in which the child’s grandmother who had had possession of the child turned it over to “other parties” who could support it and were willing to take steps toward its adoption. The grandmother attempted to appeal from the judgment rendered in the case and her appeal was dismissed, the Court saying:

“Neither does appellant appear as an ‘interested’ party within contemplation of Art. 2337, Vernon’s Ann.Civ.St. She is not here asserting any right of custody, but merely seeking to defeat the claims of appellees. Her interest, in a legal sense, is no more than that possessed by the general public in the well-being of this child, — a matter committed by law to Juvenile authorities and being properly safeguarded under the record.”

Appellee appears to have the same legal status as the grandmother in Green.

Until the person or persons having custody of this child are brought before the court it cannot be determined whether the court below has jurisdiction of the parties or infant or whether venue is properly laid or what order as to its custody should be made.

The summary judgment is vacated, and this cause is reversed and remanded.

Reversed and remanded.


author: WILSON, Justice.

text:
    James D. FOY, Appellant, v. Sara Geraldine FOY, Appellee.
    No. 4313.
    Court of Civil Appeals of Texas. Waco.
    Feb. 18, 1965.
    Rehearing Denied March 11, 1965.
    Charles M. McDonald, Waco, for appellant.
    Raymond R. Mormino, Waco, for ap-pellee.
   WILSON, Justice.

This appeal is from an order denying appellant’s application for reduction in child support, fixed by divorce decree of the previous year at $500 per month.

Appellant’s argument is pointed chiefly at convincing that the trial court would have been warranted by the evidence in reducing the amount of payments. The burden, however, is to show an abuse of discretion. Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557, 560; Scott v. Fort Worth Nat. Bank, Tex.Civ.App., 170 S.W.2d 576; DeViney v. DeViney, Tex.Civ.App., 269 S.W.2d 936, writ ref., n. r. e.; Madden v. Madden, Tex.Civ.App., 365 S.W.2d 427.

The evidence emphasized by appellant is that his gross annual income of $37,000 for each of the two preceding years was several thousand dollars larger than it appeared that for the current year would be; and that his expenses after remarriage, including those for support of his present wife and her three children, are approximately $300 per month greater than at the time of divorce. The entire record, in-eluding other circumstances relied on by appellant, however, will not support the conclusion that there is an abuse of discretion. See Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564; Angel v. Todd, Tex.Civ.App., 368 S.W.2d 224, 227; Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133, 135, writ ref. n. r. e.

It is contended that the court erred in denying reduction because appellee’s monthly statutory reports of expenditures show she has been spending about $30 of the $500 monthly child support payment for life insurance premiums on a policy insuring her life, issued after the divorce decree. It is said failure to order reduction in view of this expenditure requires, in effect, the payment of alimony after divorce. No order approving or disapproving appellee’s monthly reports as required by Sec. la, Art. 4639a, Vernon’s Ann.Civ.St. appears in the record, and there is no indication they were presented or that the court’s action thereon has been invoked. The record shows the two children of appellant and appellee, aged 7 and 11 years, are the insurance beneficiaries. Whether the policy provides term, whole life or other form of insurance, whether it has a cash value, or what its other provisions are, is not reflected. A portion of the premium payment appears to be for hospitalization and burial insurance covering the children. Although appellee reported payment of insurance premiums from the $500 monthly payment, there is evidence to show funds in addition thereto in excess of insurance premiums were also spent by appellee in support of the children. There is thus no showing that the payment is of such nature as to require us to hold the trial court required payment of alimony, or that the court’s broad discretion was abused. We do not pass upon the question of whether a different judgment should follow if it had been established the payment was unauthorized, and was required by the court to be made.

Appellant’s points are overruled. Affirmed.


text:
    Stella EHRHARDT, Appellant, v. John M. ROBINSON et al., Appellees.
    No. 4347.
    Court of Civil Appeals of Texas. Waco.
    Feb. 11, 1965.
    Rehearing Denied March 11, 1965.
    Stella Ehrhardt, in pro. per.
    John M. Robinson, Vinson, Elkins, Weems &' Searls, M. C. Chiles, Houston, for appellees.
   McDONALD, Chief Justice.

Plaintiff filed this case to cancel and annul a deed, alleged to have been procured by fraud, deceit and undue influence of one of the defendants. At the conclusion of the evidence the Trial Court withdrew the case from the jury and rendered judgment that plaintiff take nothing. Plaintiff’s motion for new trial was overruled and plaintiff gave notice of appeal and caused transcript to be filed in the Court of Civil Appeals. No Statement of Facts has been filed. Plaintiff has filed no brief, and the time for filing same has expired. The appeal is dismissed.

Dismissed.