author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Susie SALSER et al., Appellants, v. Melba Faye VICK, Appellee.
    No. 11150.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1964.
    Rehearing Denied March 4, 1964.

      Musslewhite & Musslewhite, Lufkin, for appellants.
    Lott & Willbern, Houston, for appellee.
   ARCHER, Chief Justice.

This is a will contest. Appellee is the proponent of the last will and testament of A. L. Vick, deceased. Appellants are Susie Salser, John Vick, W. H. Vick, Mary Vick Richardson and husband, C. H. Richardson, Evie Vick Harris and husband, H. C. Harris, Clint Vick, Clayton Vick, Ginger Ann Vick, a Minor, by and through Doxie Vick, her Guardian and Next Friend and Doxie Vick for herself individually and as Next Friend and Guardian for Ginger Ann Vick and Lonie Mae Goetzman and husband, Wayne Goetzman, and Lawrence Clifford Roach and James Neal Roach and Littie Sue Roach are the Contestants.

A. L. Vick and Melba Faye Davenport were married on October 28, 1954, and instrument offered and admitted to probate as the last will and testament of A. L. Vick was executed on November 22, 1954. Mr. Vick died on August 5, 1957.

The will was offered, for and admitted to probate by the County Court, and the contestants perfected their appeal to the District Court of Trinity County, and a trial was had to a jury and based on the jury’s answer to a Special Issue, judgment was rendered admitting the instrument to probate as the last will and testament of A. L. Vick. Motion for new trial was presented and overruled, and an appeal has been perfected.

The appeal is predicated on nine points assigned as error and are that the Court erred in overruling contestants’ motion for instructed verdict at the close of proponent’s evidence, because there was no evidence of probative value raising the issue of the testamentary capacity of A. L, Vick, in refusing to grant judgment non obstante veredicto and to disregard the answer of the jury, that the jury finding is so against the overwhelming great weight and preponderance of the evidence so as to be manifestly unjust, wrong and contrary to law, and that there is no evidence or the evidence is insufficient to support the submission of Issue No. 1 to the jury.

Special Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that Arlen Vick had testamentary capacity on November 22, 1954, at the time he executed the purported will offered for probate within this case:
“Answer ‘Yes’ or ‘No.’
“Answer: -
“In connection with the foregoing Special Issue, you are instructed that TESTAMENTARY CAPACITY, as. that term is used in connection with the execution of wills, and for your guidance in this case, is meant that such person at the time of the execution of the will, must have had sufficient mental ability to understand the business in which he was engaged, the effect of his act in making the will, and the nature and extent of his property, he must be able to know his next of kin and the natural objects of his bounty and their claims upon him; he must have memory sufficient to collect in his mind the elements of the business about to be transacted and to hold them long enough to perceive at least their obvious relation to each other and be able to form a reasonable judgment as to them.”

The jury answered this issue “Yes.”

We believe the evidence reasonably supports the jury’s answer.

The Court did not err in permitting the witness Wiley B. Thomas, the attorney who drew the will for Mr. Vick, to testify that in his opinion A. L. Vick had sufficient mental ability to have memory sufficient to collect in his mind the elements of business in which he was engaged, and to perform a reasonable judgment; that he was personally acquainted with A. L. Vick and had been for 15 to 20 years, and knew the general nature of Vick’s business, that Vick executed the will in the presence of Lois Suggs, a secretary in Mr. Thomas’ office and the witness, at the testator’s request; that Mr. Vick’s mind appeared to be normal, and for one engaged in the business of trading cattle and hauling pulp wood, Vick’s mind was quick.

Mrs. Lois Suggs, called as a witness by the proponent, testified that she was employed as a secretary by Mr. Thomas and was an experienced stenographer, and had typed many wills including the will for Mr. Vick, and at the request of Mr. Vick, witnessed the will with Mr. Thomas, and identified the instrument as the will of Mr. Vick.

Henry Harvel testified that he was acquainted with Arlen Vick and bought some property from Vick in 1954 and lived in the house with Mr. and Mrs. Vick for a few weeks, and detailed the circumstances of the purchase and the obtaining of a loan and that the transaction was finally closed with Mr. and Mrs. Vick signing the papers.

There was testimony by a witness for contestants on cross-examination identifying 14 exhibits showing various loans secured by A. L. Vick from 1947 to July 3, 1957 from banks, individuals and the United States Government.

Edwin McClain, called by the proponent, testified that he was employed at a bank in Groveton, Texas and had been for 16 years; that he had known Arlen Vick for 10 years and had conversations with him from time to time, mostly in the bank, concerning a loan or to make a deposit; that he had made Vick loans periodically from 1947 to 1957 and Vick was able to give description of property he wanted to borrow money on, and detailed such loans and described the securities; that all loans were paid and that the witness saw nothing unusual about Vick and, in his opinion, Vick was of sound mind.

The contestants tendered a number of witnesses all of whom testified as to actions and conduct of A. L. Vick, and were of the opinion that A. L. Vick was of unsound mind. Their testimony is lengthy but to the same tenor and effect. Many of these witnesses were related to A. L. Vick.

The evidence was in sharp conflict. The jury saw and heard the testimony of all who testified and resolved the fact issue in favor of the proponent of the will, and we believe correctly so by a preponderance of the evidence. 44 Texas Jurisprudence, p. 573, Section 32. Johnson v. Poe, Tex.Civ.App., 210 S.W.2d 264, er. ref., n. r. e.

In Green et al. v. Dickson et al., Tex.Civ.App., 208 S.W.2d 119, er. ref., n. r. e., the tests to determine testamentary wills are set forth.

The judgment of the Trial Court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

I believe that the finding of testamentary capacity of the testator, A. L. Vick, by the jury is so against the great weight and preponderance of the evidence as to he clearly wrong and manifestly unjust. I, therefore, respectfully, but futilely, dissent.

Testator’s will was executed about a month after he was married to appellee. Such will left all of his property to his widow and provided that in the event she predeceased him, “then I will, give, devise and bequeath unto my beloved stepchildren,” naming three children, in equal shares all of such property.

Testator had no children but he did have numerous blood relatives, inchiding brothers and sisters and their children.

There were only two witnesses who testified that testator was mentally competent, Mr. Wiley B. Thomas, Jr., a lawyer, and Mr. Edwin McClain, a banker.

Mr. Thomas was a very casual- acquaintance of testator. He had seen him about the streets and over the County for many years. He could not recall any conversations with him except on the occasion when he drew the will in suit. He talked with him then about fifteen minutes. Shortly thereafter he took his acknowledgment to a -deed.

Mr. McClain, an employee of the First National Bank of Groveton, testified that he had known testator for about ten years. Most of this acquaintance was confined to business transactions at the bank. I quote from his testimony:

“Q. You made several loans?
“A. Yes sir.
“Q. When he would come in for a loan did you require some security on the loans, Mr. McClain?
“A. I sure did.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜:
“Q. Based on your conversations and him .describing property to you and the loans that you made him, were you able to form an opinion as to whether or not he was of sound mind or unsound mind?
■“A. I think he was of sound mind.
“Q. AH right, Sir?
“A. I wouldn’t have loaned him the money otherwise.”

Mr. McClain bought a mineral interest from testator in 1957, when Mrs. Vick was not present although she was in a car outside the bank.

Contestants offered nine witnesses who testified that testator was of unsound mind. Five of these witnesses were related to him, four were not.

I quote from the testimony of Mrs. W. H. Vick who had married testator’s brother in 1945. Her home was within 250 yards of the house where testator lived.

“A. Well, he was quick tempered and we had to do kind of as he said to get along with him. He would think those Japs and stuff were after him.
“Q. Did you ever, at any time, Mrs. Vick, see him or observe him holding his head?
“A. Yes, sir, he did that very often.
“Q. Tell the jury whether or not he complained of severe headaches often ?
“A. Yes sir, he did, often.
* * * * * *
“Q. With reference to conversations you had with him on subjects, whether. or not he would follow a conversation or if he would change the subject when you would try to talk to him?
“A. He would change the subject.
“Q. What was his demeanor with reference to repeating himself about statements he had made from time to time?
“A. He did.
“Q. Mrs. Vick, did you ever observe him having any kind or character of spells?
‘A. Yes sir.
“Q. Describe those spells to the jury?
“A, Well, he would just get weak and nervous and just didn’t seem to know then at all.
“Q. Would you observe any emission from his mouth at that time?
“A. Sometimes we would.
“Q. What was his condition when those spells would leave him, with reference to whether he would shake or he would be stable ?
“A. He would just be nervous and shake around.
“Q. Were you ever with him when he tried to hide himself because he thought he was being bombed or anything of that sort?
“A. Yes sir.
“Q. About when was that, Mrs. Vick?
“A. Not too long after he come out of the service.
“Q. And what was his complaint at that time?
“A. That the Japs were after him.
“Q. What did he do?
“A. He went under a bush as we was carrying him home.
* * * * * *
“Q. As to whether or not he made statements to you or in your presence, from the time he came out of the service up until the time of his death, that he might commit suicide, what are the facts?
“A. He made the statement that he would commit suicide time after time.
“Q. When he would go off to make any kind of deal, who did he usually have with him?
“A. He carried Arlen or Phil or W. H., here.
“Q. Arlen? You mean * * * ?
“A. John. Or Bill or Nell or I would go with him, one of us.
“Q. And how did the family treat him with reference to whether he was a grown man, mature man, or a child?
“A. As a child.
* * ‡ * * *
“Q. I’ll ask you, Mrs. Vick, if you observed him at any time when he tried to do violence to your husband, what are the facts?
“A. I’ve taken a gun away from him several times.”

Reverend Cline Lewis had known testator intimately from 1953 to 1956. He testified t

“Q. I’ll ask you, when you had conversations with him, what was his attitude with reference to whether or not he could follow or keep a train of thought or if he went from one subject to another often?
“A. He could not maintain a single-thought for sustained periods.
“Q. I’ll ask you whether or not he would repeat himself often in the conversation with reference-to a certain statement made?
“A. He would repeat himself quite-often, most always he would. And then he suffered considerably. I could tell he was in. much physical and mental anguish.
* * * * * *
“Q. Fll ask you if you were around him, Brother Lewis, when he had any character of spells and would more or less lose consciousness ?
“A. Yes. Arlen did have spells that I considered to be very severe quite often.
“Q. Would you describe those to the jury?
“A. Well, I’m sure gentlemen and ladies of the jury you have observed people during your life time that suffered complete out of this world conditions with headaches and pain, and have observed them to secrete some foam in their mouth and shake, you know, of body, when this pain would be most severe. That is the best that I could describe how he acted.
“Q. Did he ever converse with you, Brother Lewis — With reference to whether or not he ever conversed with you about threatening to take his life, what are the facts ?
“A. He never conversed with me with respect to taking his life as such, hut he was living in constant fear that his life would either be taken by someone else or he would have to take it himself.
⅜ ⅜ ⅜ ⅝ ⅜ ⅜
“Q. The man, the way you have described him, wouldn’t know how many cattle he owned or anything else, would he, Reverend?
“A. It’s doubtful whether he would know how many he owned or not.
“Q. Or how they were branded or anything else, would he, Reverend, if he did own any cattle?
“A. It’s doubtful.
* * * * * *
“Q. Do you know whether or not his brother John was with him when he was dealing with cattle and so forth ?
“A. He was on occasions and then other people were with him on occasions. As a matter of fact, Arlen had the values so confused, he didn’t realize true values.
“Q. Do you know whether or not when he would go to sell a cow or buy a cow if he would take his brother John with him or some member of the family?
“A. He would. He wouldn’t trust his own decision.”

Mr. Knode Lee was a cousin of testator and had known him all of his life. He testified regarding him:

“Q. I’ll ask you, Mr. Lee, as to whether or not he was able to follow a train of thought and keep on the subject of a conversation, what are the facts ?
“A. Well, he was just off and on.
“Q. I’ll ask you as to whether or not he would repeat himself on some statement he had made several times during the conversation, what are the facts ?
“A. He’d repeat it a lot of times, the same thing.
“Q. Did you ever see him have any character of spells, after he came out of the service?
“A. Nothing only one night I’d been with him to buy a fur and we got in a ditch and he went to sleep and I did too, and he woke me up saying that the Germans were after him.
“Q. What was his condition after he had that spell, whether or not he was shaking or otherwise?
“A. Well, he appeared to be kind of unnerved.
* * * * * *
“Q. Do you know whether or not his brother John was with him most of the time when he was trying to trade ?
“A. John was with him a whole lot. He come around me with him. He’s been around me with Arlen several times in the truck.
“Q. That was up until the time he married ?
“A. Yes.
“Q. After that time who was with him most of the time?
“A. His wife there, Faye.”

Mrs. Rose Ringo was not related to testator. She knew testator before he went into the service in 1941 or 1942 and after-wards. She had lived in Trinity County all of her life. She testified regarding testator:

“Q. I’ll ask you whether or not he could follow a thought and keep on the subject of the conversation, what are the facts ?
“A. No sir, he couldn’t. He would be' off.
“Q. I’ll ask you whether or not he would repeat himself in a conversation on some fact, he would state it several times, what are the facts ?
“A. Some things he would, yes sir.
“Q. Were you ever around him when he had any kind of spells?
“A. Yes sir.
“Q. What kind of spells did he have, Mrs. Ringo?
“A. Well, he’d just go to pieces and climb up on the doors and say that they was after him and not to let them catch him, as they was trying to kill him. He would get under the beds and couldn’t get him out.
“Q. Was that many times when you were around him?
Several times. “A.
* * * * * *
“Q. Do you know whether or not he was drawing compensation from the Government after he came out of the service ?
“A. Yes, he drawed compensation after he come out of the service.
“Q. Did you ever see one of his checks ?
“A. Yes sir.
“Q. Do you know how much the check was for?
“A. $101.00.
“Q. Do you know while he was in the service he was in the hospital some?
“A. Yes sir. He was in the hospital for treatment of his mind.
* * * * * *
“Q. Mrs. Ringo, was his mind such that if he owned any cattle or property or anything that he would know what he owned or the value of it?
“A. I wasn’t with him then. What I tell you and that was what I’ve just said and that’s all I know. I never was around him with his cattle, but I know of his working. Whatever thing he did there was always some of the family with him.
“Q. Let’s say if he owned any cattle, do you think from the way you have described him that his mind was such that he would know what the value of a cow was or how much to sell it for?
“A. I don’t think so. I really don’t think so.
“Q. He probably wouldn’t be able to describe — Say, if he wanted to make a loan, he wouldn’t be able to describe or tell how many cattle he owned and a description of them, would he?
“A. I don’t think he could keep it in his mind long enough.
* * * * * *
“Q. Mrs. Ringo, you say that some of the family stayed with him ' most of the time?
“A. Yes sir. Wherever he was at work there was some of his. family around. I never knowed him doing anything and being alone. There was always some of them with him.
“Q. Did they treat him as a child, would you say?
“A. Yes sir.”

Mrs. Melva Weeks was a cousin of testator and had known him all of his life. Regarding him, she testified:

“Q. Mrs. Weeks with reference to-whether or not he was able, after he came out of the service, to carry on a conversation, stay on one subject while he was conversing with you, what are the facts ?
“A. Well, he talked at' random. He would say things over and over.
* * * * * *
“Q. With reference to whether or not he would try to transact business by himself or if he had someone with him, some member of the family, after he came out of the service, what are the facts ?
“A. I never knew of him trying to transact any business by himself. Usually Uncle John was with him.
“Q. Did he keep his Uncle John with him most of the time when he would be trying to transact business ?
“A. Yes sir, he was with him at all • ■ times.
“Q. Did they stay together a great deal?
“A. Yes sir, they were together all the time.
“Q. That was up until the time he began living with Mrs. Melba Faye Vick, is that right?
“A. That’s right. Usually when you saw one, you saw the other. ******
“Q. Did you ever see him have a spell when he would kind of pass out?
“A. Well, he would just act like he was hurting so bad until he would ■ almost pass out.
“Q. Were you ever around him when he would get under the bed and that sort of thing?
“A. Well, he would just kind of roll around on the floor and under the bed.
“Q. Were you ever around him when he imagined he was being bombed?
“A. Yes, he talked quite a bit, he acted like he was still in service. Sometimes he acted like he didn’t know exactly where he was.
* * * * * *
“Q. Do you know what kind of work Arlen was doing?
“A. So far as I know he wasn’t working. I don’t believe he held a job after he came out of service. I’m not sure about his work.
“Q. All right. From the description that you gave this jury, do you think he would have been able to know the value, say of cattle or pulpwood ?
“A. I don’t believe he would. I believe he would ask someone’s opinion.”

Mr. Wayne Gaston was not related to testator. He lived on land adjoining testator’s property. He knew testator before and after he was in the service. Regarding him, he testified:

“Q. In conversations • you had with him, Mr. Gaston, tell the jury whether or not he was able to follow through a conversation, one subject, without changing the subject or not?
“A. No. The biggest part of the time he would start a conversation and then he would just switch. it around. Maybe he wouldn’t finish one until he’d start something else.
“Q. In conversing with him, tell the jury whether or not he would repeat himself in a conversation on some fact and state it several times ?
“A. Oh, yeah, he’d repeat hisself.
⅝ ⅝ ⅝ ⅜⅞ ‡ ⅜
“Q. Do you remember the time that his house burned ?
“A. Yeah.
******
“Q. What was the condition of the house at that time with reference to whether it was all aflame or just some of it?
“A. Well, the top of it — The biggest part of the top of it was aflame. It taken it some bit to burn down after I got there.
“Q. Was it burning on the inside?
“A. Yeah.
“Q. Tell the jury whether or not Arlen Vick wanted to go back in that house and they had to hold him to keep him from going back in?
“A. Yeah, he wanted to go back in and they had to hold him to keep him from it.
******
“Q. Well, I’ll ask it this way: I’ll ask you whether or not he said there, ‘Dear John’?
“A. Dear John, yeah.
“Q. I’ve brought your saddle home ?
“A. I’ve brought your saddle home.
“Q. Had you heard him say that before?
“A. Oh, yeah, I heard him say that might near every time I was with him.
“Q. Do you know whether or not he had imagined that he was being bombed or something of that sort ?
“A. Well, I’ve heard him say that, but I never did see him. I’ve heard him say he was afraid he was going to be bombed.
“Q. I’ll ask you if he imagined that some varment was going to attack him ?
“A. He was all time hearing varments. I know he said they scared him out of the woods right around his house there.
******
“Q. You don’t feel like that Arlen would be able to trade and know the value of his property?
“A. No, not the way he was going since he got out of service. I’ll put it that way.
“Q. That’s from 1945 up until the time of his death ?
“A. Time of his death.
“Q. Well, let me ask you this, Mr. Gaston: If he had come to you and wanted to borrow money from you, would you have loaned it to him after the way you described his mind ?
“A. Well, that question I couldn’t — .
“Q. You would have been leery of it, wouldn’t you?
“A. I shore would.”

Mr. Melvin Lee was a cousin of testator and had known him before and after he was in the service. Regarding him, he testified:

“Q. I’ll ask you, when you would have a conversation with him, if he would change the subject from time to time during the conversation?
“A. Yes sir, he sure would.
“Q. I’ll ask you whether or not he would state the same facts several times ?
“A. Some. Yes sir, he sure would.
⅝ * ⅜ ⅜ * ⅜
“Q. Were you ever around him when he would have any kind of a spell ?
“A. He’s been around me when he would dodge and he said something like a bomb was coming, something like that. Shells. Yes sir, he shore have.
“Q. Well, were there actually any bombs around?
“A. No sir. I didn’t hear anything myself.
‡ ⅜ ⅜ ⅜ ⅜ ⅜
“Q. Did you ever hear him saying anything about Dear John, I’ve brought your saddle home? Did you ever hear him make any such statement as that?
“A. I’ve heard him saying that, but I don’t know what it meant.
“Q. Would he be talking to anybody?
“A. Oh, yeah, he’d be talking, you know, just as usual.
“Q. He would just say that in the middle of a conversation ?
“A. Yes sir. Just start off, yes sir. He sure would.
* * ‡ * * *
“Q. Did he ever buy a cow from you?
“A. Yes sir.
“Q. Who was with him at that time ?
“A. His brother John.
“Q. Do you know whether or not John stayed with him most of the time?
“A. Most of the time, yes. He was at my house lots with him. He sure was. He was with him when I sold him the cow. He sure was.
“Q. Did the family treat him more like a child ?
“A. They treated him mighty nice. They sure did.
“Q. Some of them tried to stay with him all the time ?
“A. Well, they did. Most of them was around all the time.”

Mrs. Nell Steele was a niece of testator. She lived with him and his mother before he went into the service and after he was discharged. Regarding him she testified:

“Q. Do you know whether or not your Uncle Arlen was in the hospital while he was in the service ?
“A. Yes sir. He was in two of them.
“Q. Where was he in the hospital ?
“A. He was in two of them. One in England. And he stayed there around eight months.
* * * * * ⅜
"Q. Then after he got back to the states, was he confined to a hospital then ?
“A. Yes sir. That was in San Antonio, before he was discharged.
“Q. Did he have any wounds or was he in the hospital for — ?
"A. He was in the hospital for a mental break down, it was a nervous collapse.
⅜ ⅜ ⅜ ⅜ ⅜ i}C
"Q. Now, from that time, Mrs. Steele, were you around your Uncle Arlen a good bit of the time?
“A. Yes sir.
“Q. Did you continue to be around him up until the time of his death ?
“A. Yes sir. We all lived in Apple Springs. I married and lived there in hollering distance of them. And during the illness of my grandmother I was in the home most of the time.
* * * * * *
“Q. After your Uncle Arlen came back from service did you ever hear him complain of having severe headaches?
“A. Yes sir, he complained of severe headaches. And he would catch and hold in the back of his head at times. And at times he would break down and cry with them, they would be so severe in the back of his head. And we have even had to take him to the hospital to get shots more or less to ease his head and keep him from drawing. His hands and all would draw up and he would just be drawing all over, even his mouth and face would draw. We could take and get him a shot and it would quiet him down. Maybe he would sleep for a day or a day and a half after that and he would be quieted down.
“Q. Were you ever around him when he would hold his head; did you ever hear him say anything?
“A. He would just cry and take on and we would try to get him to go to the doctor and he would say no.
⅜ ⅝ ⅜ ijt ⅝ ⅝:
"Q. What kind of spells did he have ?
“A. You know, when he would have them you would never know when they was coming on him and all. Like for instance, we were trying to carry him home once. We were living right there close to him. We were trying to carry him home and he wouldn’t get in the truck with us. He thought evidently it was some- • thing different from what he had been in and we was going to walk him home. We had him going from my house down to my grandmother’s.
⅜ * * * * *
“A. And he would get mad at the rest of the family and Mrs. Fon-zie and myself and Mrs. Weeks was some of the bunch that he would never get mad at and we were trying to get him home. He jumped loose from us and run under a bush, hollering the enemy was after him. He could hear the bombs And then you would have to work with him to try to get him to go on and make him realize that it wasn’t anything.
“Q. Were you ever around him when he would have a spell and he would get under the bed, thinking he was being bombed?
“A. Yes sir. He would go to bed at night and he would wake up hollering and cutting up and you would go hunt him and he would be under the bed or something, and he would say the bombs are coming, he could hear them whistling. It was just different things like that. If there was the least little bit thing different in his bed, well, he would think somebody hid something in his bed that was going to hurt him or something. You would just have to work with him to even get him back in bed. Maybe you would even have to lay on the bed with - him before he would ever lay down on it.
“Q. Do you know whether or not he had any of those kind of’spells before he went into the service ?
“A. No sir, he didn’t.
⅜ • i}i ⅜? ⅝ ⅜ ⅜
“Q. As to whether or not'the family looked after him like he was a small child, what are the facts?
“A. We did look after him just like he was. And anything that was to be done at all, well, we looked after him and went with him. There was some of us with him to help him do anything. In fact, he wouldn’t do anything unless somebody else was with him, regardless of what job he had to do or anything about it.
* * * * * *
“A. Well, he worked with him and my Uncle John. He never got out of sight of the family, unless some of us was with him.
“Q. If he bought a cow or sold a cow, he would take your Uncle John?
“A. To my acknowledge, I never knowed him buying anything until he got the opinion or carried Uncle John and let him to the judgment of buying the cow and • all, or the swapping or anything that he bought or sold. If it was 'furniture or anything like that, well, I was always the one that had to go with him to make the deal and pick it out and so forth and on..
“Q. He didn’t risk his own judgment about any business transaction ?
“A. No sir, he sure didn’t. Even in fixing up the home just before his mother died, well, I had to do all of the picking and arrangement of having that done.
* * * * * *
“Q. I’ll ask you if he ever threatened to take his own life?
“A. Yes sir, he did.
******
“Q. Well, may I ask you to explain what you mean by him threatening the life of his brother and sister ?
“A. Well, we always kept the guns away from him. He took that one and was going to shoot my’ father and aunt and I took it away from him. And we always kept the guns apart.
* * * * * *
“Q. Now, he died about August Sth of ’57?
“A. Yes sir.
“Q. Do you know whether or not he took some poison at that time?
“A. I don’t know that he took it, I didn’t see him when he took it. But I know that’s what the doctor said that killed him.
“Q. Did- they bring a container of dog spray?
“A. Yes sir, they said it was dog spray and brought it to the doctors to examine to see if they could find an antibiotic to it. And it was from overseas or somewhere and they didn’t have the antibiotic here that would have done him any . good. In other words, his lungs was done cooked by it at that time. It wouldn’t have done him any good anyway by the time they got him to the hospital.
⅜ ⅝ ⅝ ‡ ⅝ ⅜
“Q. You don’t know actually whether he was, himself, trading in cattle, when he was away from the house buying and selling cattle?
“A. He never bought cattle by his-self. He always carried my Uncle John to get his approval or what he thought about it. As far as his cows, my Uncle John was with him. And as far as the home and all supplies, either fixing up or buying anything around the house, that was my part.”

Mr. Delton Holcomb was unrelated to testator. He lived in the Crecy community, about one half mile from the Vick place, from 1945 to 1960. He knew the testator well.

“Q. Did you ever see him have any other character of spell of any kind?
“A. Yes sir, I’ve seen him just fall of his horse and just roll.
“Q. What would be his condition at that time ?
“A. He would say he was hurting and he would go to talking and you couldn’t understand him because he was groaning so.
“Q. Were you ever around him when he would imagine that he was being bombed?
“A. Yes sir.
“Q. And what would happen on those occasions ?
“A. He would try to get under something and hide. If he was in the woods he would get off his horse and get down under brush, ducking from it.
"Q. Did you ever hear him say anything similar to this: Dear John, I’ve brought your saddle home?.
“A. Yes sir, I have. I’ve heard him: when he would be riding, come up on me in the woods, and he would be singing, Dear John, I’ve brought your saddle home. It was just over and over, the same thing..
“Q. Did you ever hear him talking to his horse, as if it was a person?
“A. Yes sir. And his dog also.
“Q. Was that many or few times?
“A. Many times.
“Q. Were you over at his house the night his house burned?
“A. Yes sir.
“Q. Was Melba Faye there that night ?
“A. No sir.
“Q. Do you know whether or not he tried to get back in the house while it was still on fire?
“A. Yes sir, he did.
“Q. Was it burning on the inside when he tried to get back in it?
“A. Yes sir, a complete flame all over.
“Q. Why didn’t he go back in the house ?
“A. I held him back.
“Q. Did he say anything about Dear John, I’ve brought your saddle home?
“A. Yes sir. He was constantly talking and we had to hold him down. I mean hold him to keep him from getting back in the house. We almost had to knock him out to keep him from getting back. He said he wanted to burn up, everything was burning up and he wanted to burn up with it.
******
“Q. In talking to him and carrying on conversations with him, tell the jury whether or not he would change the subject while you were talking to him, wouldn’t stay on the subject?
“A. Well, you couldn’t carry on a conversation with him because like if you was talking about cattle or something, he’d change the subject and go to talking about something else, he wouldn’t continue on the same subject.
Q. Tell the jury whether or not he would state over and over certain facts while he was talking to you ?
“A. Yes sir, he would. I mean, if you was talking about something he would go to talking about something else, and by the time you started talking about that he would be right back on the same thing that you started on.
“Q.. Were you around him enough to know whether or not his family treated him as a child or a grown person?
“A. It seem to me that they treated him as a child, for some of them was with him all of the time.
******
“Q. Do you know Mr. John Vick?
“A. Yes sir.
“Q. Was he with him most of the time? .
“A. Yes sir.
“Q. When he was out, away from home?
“A. Yes sir.
* * * * * *
“Q. Do you think in ’57 he would have been able to make an appraisal as far as the value of any property he had?
“A. No sir.
“Q. Do you think that he would have been able to make an appraisal, if he wanted to sell, say, some land or mineral interest or anything like that, that he would have been able to make an appraisal and know the value of it ?
“A. No sir, not unless he had some help.”

I would reverse and remand this case.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    W. E. PLUNKETT and W. J. Massey, Appellants, v. T. D. YOUNG et al., Appellees.
    No. 3860.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1964.
    Rehearing Denied March 6, 1964.

      Ponder & Pearson, Sweetwater, for appellants.
    Mays, Leonard, Moore & Dickson, Sweetwater, David W. Stephens and Robert W. Fuller, Midland, for appellees.
   WALTER, Justice.

W. E. Plunkett and W. J. Massey filed suit against Dr. T. D. Young, Gulf Oil Corporation and The Equitable Life Assurance Society for a declaratory judgment and injunction to prevent the closing of the road in question. Based on a verdict, the court rendered judgment that the plaintiffs take nothing. They have appealed. They contend there was no evidence and insufficient evidence to support the jury’s answer . that the public had abandoned the road and that such answer is against the preponder-' anee of the evidence.

The jury found that the general public continuously used and traveled a roadway across the land in question now owned by the defendant, Dr. T. D. Young, openly and adversely, for a period of 10 consecutive years or longer prior to the filing of this suit and that the public had abandoned the road.

The road is approxiamtely 30 feet wide. It is near the farms of the appellants. It intersects the west boundary line of a paved Roscoe to Maryneal highway and extends west for approximately one half mile. Dr. Young leased the 121 acres north and 40 acres south of the road in 1946, and purchased the land, without the minerals, from Gulf Oil Corporation on January 9, 1962.

In considering this record to determine whether there is any evidence to support the jury’s answer that the public had abandoned the road, we must con-.-sider only the evidence favorable to the /finding. Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

The evidence - conclusively establishes ■that the road, since its early history, has ’been used very little and that the appellants have other roads available from their farms do the highway.

Charles Plunkett, son of appellant W. E. Plunkett, has been farming his father’s land since 1952. He didn’t use the road in 1962 or 1961 and didn’t know if he used it in 1960; he might have used it in 1959, and was not sure about 1958. He identified defendants’ exhibits 2 and 3 as pictures of the east end of the road. Exhibit 3 shows a culvert laying east and west, apparently under the Roscoe Maryneal highway, that appears to be in the center of the road where it intersects the highway. It also shows water in the borrow ditch. Exhibit number 3 is as follows:

Appellant, W. E. Plunkett, testified that the road had been used since 1910; that at was fenced on both sides until 1940, and that Dr. Young erected a fence and thereby , closed the west side of the road in early 1960. There was evidence to the contrary, but five of. appellees’ witnesses testified as to the non-use of the road.

%. E. Harkins, worked for the county as ..a “cat driver” for ten or twelve years beginning in 1938. When asked to describe the r.oad he answered:

“A-Well, it was just a short road there that I guess a half a mile, hardly that much, crossing that lake, and it wasn’t * * * never worked the road myself, when I was working for the county, but some people used it.”

He went to this vicinity one time with a gentleman who was pumping a well and road in a boat down the road. He further testified as follows:

“Q-4 Now, would you take it by the county’s failure to work this thing, that they didn’t work it as a road, that they weren’t crossing it anymore. * * *
“A-I never heard it discussed whether it was too expensive to build a fill there to make it usable for everybody.
“Q-5 Never did have a fill in there?
“A-As far as I know there was never any plan to build it above the water level.
“Q-6 Never was worked, and never had any ditches?
“A-I never worked it, and don’t know of a county hand that did work it.”

Walter Womack testified that he had worked for Dr. Young for about fifteen years operating the farm where the road is located; that from 1948 until “last winter a year ago” the place was fenced at all times; that Mr. Plunkett nor Mr. Massey nor anyone else ever complained to him about the fence; that Bill Renfro and Fred Reeves used the road while they were pumping sortie wells in that area but that he never did know of the public using it; that part of the road had been in cultivation for five or six years and that when he first started working the land, the water would stand in the area where the road is located after a heavy rain for a week or ten days.

Appellants rely on Adams v. Rowles, 149 Tex. 52, 228 S.W.2d page 849, and cases involving abandonment of roadways or other easements acquired by dedication. The rule followed in those cases is that abandonment occurs when the use for which the property is dedicated becomes impossible, or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated wholly fails. This line of cases holds that “mere non-user of an easement will not extinguish it.”

Appellees contend that non-user of a roadway acquired by prescription is evidence of an intention to abandon, subject to explanation by the owner that he had no such intention. He also contends that the object for which this property was acquired has failed because a culvert has been' erected by the county in the center of the east end of the road where it intersects the highway and that borrow ditches are maintained between the road and the highway which renders the use for which the land was acquired impossible. Appellees also contend that the county in the construction of the highway and the borrow ditches have effectively blocked and destroyed the 'use for which the land was acquired and that such act by the county is some evidence that the public had theretofore abandoned the road.

We have concluded that the facts and circumstances clearly indicate an intention on the part of the public to abandon the road. The evidence of dis-use and that the use of the land as a road has become practically impossible and that the purpose of the road as a public thoroughfare has wholly failed, constitute some evidence of probative force supporting the jury’s answer that the public has abandoned the road.

We have examined and considered all the evidence and find that the juryls answer that the public has abandoned the-road is not against the great weight and' preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellants have a point complaining about the action of the court in submitting issue 4 to the jury. It inquired whether Dr. Young was without actual notice of appellants’ claim of easement at the time he purchased the property in question. They also contend that there is no evidence, and insufficient evidence, to support the affirmative answer to this issue and that said answer is against the great weight and preponderance of the evidence. Any error in submitting issue 4 is harmless since the-jury found that the public had abandoned the road. The appellees would be entitled to a judgment on the finding of abandonment without regard to issue number 4.

Appellants also contend that there is no evidence to support the jury’s finding in response to issue number 2 that a roadway across the land in question was not dedicated as a public road by Dr. Young’s predecessors in title prior to his purchase of such land. In view of the jury’s answer to issue 1 that the general public continuously used and traveled a roadway across the land in question, openly and adversely, for ten consecutive years or longer, and their finding of abandonment the jury’s answer to said issue number 2 would be immaterial.

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    David L. JOHNSON et al., Appellants, v. PACKAGING CORPORATION OF AMERICA, Appellee.
    No. 16483.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1964.

      Horace G. Goodrich, Dallas, for appellants.
    Ethan B. Stroud and John R. Feather, Dallas, for appellee.
   LANGDON, Justice.

This is a suit tried before a jury upon a corporate note personally endorsed by the appellants and in the alternative upon a note which was executed by the appellants pursuant to an agreement in renewal and ■ extension of the original note. The appellants by way of answer alleged that prior to their endorsement of the original corporate note that an officer of the ap-pellee promised they would not be held individually liable as guarantors on said note. By further answer they claimed that the obligation on said note had been assumed by a third party. Two years after the institution of this suit by the appellee the appellants filed a separate action against the third party alleged to have assumed their obligation on the original corporate note involved in this suit and sought to join the defendant in the latter suit by way of cross-action as a third party defendant in this suit. The trial court dismissed the third party action on motion of the third party and overruled appellants’ plea in abatement based upon their suit against the third party. The execution of the corporate note by the appellants as corporate officers and their personal endorsements thereon were not denied nor was their execution of the note in renewal and extension of the original corporate note. Appellants’ default on both notes is undisputed. After all evidence had been presented by the parties to this suit the trial court upon motion instructed the jury to return a verdict for the appellee and it did. Judgment was accordingly entered for the appellee. We affirm.

The alleged assumption of the obligations, made the basis of this suit, by some third party is totally immaterial to appellee’s cause of action. There is no showing that the appellee was a party to the assumption agreement. It was based upon a separate transaction involving different parties and issues not material to the rights of appellee in the present suit. The court did not err in dismissing as to the third party or in overruling the appellants’ plea in abatement based upon pendency of their suit against the third party. Jones v. Hubbard, Tex.Civ.App., 302 S.W.2d 493. On the matter of estoppel see Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582, 587. The cases cited by appellants are not controlling.

The alleged fraud inducing the 'appellants to personally endorse the original note would not affect the validity of the second note signed by appellants to forestall appellee in proceeding with suit against them. Appellants expressly agreed that upon default of the note executed in' renewal and extension of the original note that appellee would be entitled to immediate judgment in this suit which was left pending in line with the agreement. Associated Employers Lloyds v. Howard, 156 Tex. 277, 294 S.W.2d 706, and authorities cited.

While in our opinion there is no valid or controlling pleadings or evidence concerning any fraud inducing the appellants to sign the original corporate note it is undisputed that there is no allegation or evidence of fraud concerning execution of the second note. The notes were clear, plain, and unambiguous. They were complete and regular upon their face and unconditional. By signing the notes the appellants became liable for the payment thereof. Obviously, the appellants were aware of the appellee’s intention to collect on the obligation when they signed the second note because of the appellee’s suit against them for collection of the original note. Thus, in signing the second note the appellants did not place any reliance upon the alleged fraud they claimed to have ■relied upon in signing the original note. It is fundamental that before fraud can be set up, either as the basis of a claim or defense, it must appear that the claimed representations were relied upon. 25 Tex.Jur.2d, Fraud and Deceit, pp. 651, 653, § 27. Page 653 of the text states, “Inasmuch as a representation that is known to be false cannot deceive, redress will not be awarded to a person who had knowl.edge of the falsity of the representations whén he entered into the transaction. It is imperative that the party claiming to have been defrauded believed the false representations when .he acted. * * * similarly, there can be no legal defense based on fraud if the facts concerning the fraud become fully known before the contract is executed.” It is obvious that the •appellants were- fully aware of all of the facts when they executed the second note. See also 25 Tex.Jur.2d, Fraud and Deceit, p. 682, § 44, and Associated Employers Lloyds v. Howard, supra.

The appellants’ contention that an officer • of the appellee advised them that they would not be held personally liable on the note would as a general rule be inadmissible since it contradicts their written promise to pay. 9 Tex.Jur.2d, p. 323, § 294 and authorities cited; Dean v. Allied Oil Co., Tex.Civ.App., 261 S.W.2d 900; Bowden v. Partners’ Finance, Tex.Civ.App., 278 S.W.2d 866; Steve Lynn Motor Company, Inc. v. Pavelka, Tex.Civ.App., 371 S.W.2d 928; IX Wigmore, Evidence (3rd Ed.), p. 144, § 2444.

The appellee was within its right to sue on either the original of the subsequent note as appellants were in default on both of them and thus under Rule 48, Texas Rules of Civil Procedure, it was proper for appellee to sue for recovery on one or the other in the alternative. Recovery was alr lowed on only one. There was no double recovery.

The appellants’ contention that the agreement for the extension and renewal of the original corporate note amounted to negotiations for compromise and settlement and thus should not have been before the jury is untenable. There was no compromise. The appellants signed the second obligation in consideration of the appellee holding up further action on his suit against them and with the understanding that upon default on their part the appellee would be free to take judgment. We believe the agreement and the note executed in connection with it were clearly admissible. Assuming however for the moment that it was error for the court to permit the introduction of the agreement on the alleged grounds it prejudiced appellants in the eyes of the jury, the error, if any, was cured or rendered harmless by the instructed verdict which in effect removed the case from consideration by the jury.

The appellants claimed a credit of $500.-00 which the appellee conceded. No further credits were placed in issue. Thus the matter of credits is not involved. Rules 94, 95, T.R.C.P.

The testimony in this case reflects that the extension agreement was prepared for the signature of the appellants at their request. It was handed to them. They were requested to read it carefully and thereafter asked if they understood it. The appellants advised that they understood the agreement and were willing to sign it in their individual capacities and did so. The agreement provided that upon default by either of them, “the Plaintiff shall have the right to immediate judgment for the full amount of the original note sued on plus costs,- interest and attorney’s fees claimed in the above referenced litigation, less any amounts which shall have been paid on account thereof as provided in this agreement.”

The agreement concerning- the second note and its execution was fully supported by the pleadings and the evidence and unaffected by the fraud alleged in connection with the execution of the original corporate note. The appellants did not allege any affirmative defenses which would defeat the appellee’s suit on the subsequent note. Rules 94, 95, T.R.C.P.; 9 Tex.Jur.2d, p. 315, 316, § 288. In view of what we have said in relation to the various points raised by the appellants we do not deem it necessary or advisable to discuss all of the points in detail as to do so will unduly lengthen this opinion and serve no useful purpose in the disposition of this case. Suffice it to say that in our opinion under all of the facts the appellee was entitled to an instructed verdict and judgment based thereon. Accordingly all points of error brought forward by the appellants are overruled and judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Arno LACHMANN, Appellant, v. HOUSTON CHRONICLE PUBLISHING COMPANY, Appellee.
    No. 11158.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1964.
    Rehearing Denied March 4, 1964.
    Harold Kahn, Houston, for appellant.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Larry M. Lesh, Houston, for appellee.
   ARCHER, Chief Justice.

On August 19, 1954, the Houston Chronicle Publishing Company, as publisher, entered into a written contract with Artcraft Mattress Company, as advertiser, the acceptance by Artcraft Mattress Company reflecting the following signature: “Company: Artcraft Mattress Company, By: Albert Bentch.” The contract provided that during the year beginning August 26, 1954, and ending August 25, 1955, advertiser agreed to order and use not less than 5,000 lines of advertising in the Houston Chronicle, the newspaper published by the Houston Chronicle Publishing Company, at 34⅜ per line, and publisher agreed to publish such advertising. Pursuant to this contract, the Houston Chronicle Publishing Company published display advertising during the period from March 2, 1955 to July 31, 1955.

On August 4, 1955, the Houston Chronicle Publishing Company, as publisher, entered into a similar written contract with Artcraft Mattress Company and House of Unpainted Furniture, as advertiser, the contract bearing the following signature: “Company: Artcraft Mattress Company and House of Unpainted Furniture, By: Arno Lachmann.” The provisions of the contract were identical with those of the contract dated August 19, 1954, with the exception that advertiser agreed to order and use not less than 5,000 lines of advertising in the Houston Chronicle at 35 1/3⅞⅞ per line for the period beginning August 26, 1955, and ending August 25, 1956. The Houston Chronicle Publishing Company published in its newspaper display advertising from August 5, 1955 to June 21, 1956 and classified advertising from September 2, 1955 to February 14, 1956, pursuant to the contract.

On April 6, 1959, the Houston Chronicle Publishing Company instituted suit against Lillian Bentch Wagman and Arno Lach-mann for the unpaid balance due on both contracts. On February 5, 1963, trial was held without a jury. The parties stipulated at the trial that neither Artcraft Mattress Company nor House of Unpainted Furniture was a corporate entity at any time material to the controversy. On February 11, 1963, appellant, Arno Lachmann, filed with the trial court his Motion for Judgment which was denied. On April 2, 1963, the trial court rendered judgment for plaintiff in accordance with its findings at the trial of the cause.

The appeal is predicated on four points, and are to the effect that the Court erred in holding appellant personally liable, because there was no evidence that the contract was signed as a personal and individual obligation, but the evidence showed that appellant signed the contract as an agent for Household Manufacturing Company, Inc., a corporation, and in failing to file findings of fact and conclusions of law.

Appellee’s Counterpoint No. 1 is that because appellant failed to disclose to appel-lee at any time the fact that he was signing in the capacity of an agent or the identity of his true principal, he became personally liable.

It was stipulated that Artcraft Mattress Company and House of Unpainted Furniture were not corporate entities, but were trade names under which a corporation known as Household Manufacturing Company, Inc., did business, which corporate name does not appear in the contracts or in the advertising.

Appellant takes the position that since there is no evidence that he signed the contract as a personal obligation, he was not personally liable and cites Martin v. Hemphill, Com.App., 237 S.W. 550 as authority. In the Hemphill case the Court held that parol evidence was admissible to prove the composition of a firm doing business under the trade name of “McDonald Brothers” in order to ascertain whether Martin, who had signed a written contract “McDonald Brothers, by: T. W. Martin,” had standing to institute suit on the contract.

It is appellee’s position that irrespective of the capacity in which appellant signed the contract, he failed to disclose to appel-lee sufficient information with respect either to the fact of agency or the identity of appellant’s principal to relieve him of personal liability on the contract, and cites Mahoney v. Pitman, Tex.Civ.App., 43 S.W.2d 143, er. ref.

“It is the duty of the agent, if he would avoid personal liability on a contract entered into by him on behalf of the principal, to disclose not only the fact that he is acting in a representative capacity, but also the identity of his principal, as the person dealt with is not bound to inquire whether or not the agent is acting as such for another.” See also 2 Tex.Jur.2d, Agency, § 210 and authorities there cited.

We believe that the above is the correct rule and that it was the duty of appellant to disclose to appellee not only that he was acting in a representative capacity, but also the identity of his principal.

The contract, as signed did not disclose to appellee that the contract was signed in a representative capacity. Dorman v. Boehringer, Tex.Civ.App., 195 S.W. 669.

In Boyles v. McClure et al., Tex.Com.App., 243 S.W. 1080, the Court stated:

“It is true he purported to act only as agent in contracting for transportation * * * but the rule is well settled in this state that an agent makes himself liable if he contracts in his own name without disclosing the name of his principal, although the person contracting with him knew at the time that he was acting as agent only.” Express Publishing Company v. Levenson, Tex.Civ.App., 292 S.W.2d 357, writ dism.

Appellant cites Rabinowitz v. Zell, Sup., 191 N.Y.S. 720 as authority that in so signing the contract involved herein that there was a sufficient disclosure of agency or principal to protect appellant against personal liability.

This case stands alone, and according to the annotation in 150 A.L.R. 1303, the majority of cases hold that the use of a trade name is not a sufficient disclosure of the identity of the principal and of the fact of agency.

Alsco Iowa, Inc. v. Jackson, 254 Iowa 837, 118 N.W.2d 565 is the most recent case in point.

The law does not presume agency. Tarver, Steele & Co., Inc. v. Pendleton Gin Co., Tex.Civ.App., 25 S.W.2d 156. 2 Tex.Jur.2d Agency, Sec. 248.

The Court did not err in refusing to file findings of fact and conclusions of law because appellant’s request was not timely filed, and appellant has not shown any prejudicial harm.

Final judgment was rendered on April 2, 1963. On April 17, 1963, 15 days after rendition of judgment, the request was filed.

Rule 296, Texas Rules of Civil Procedure, amended effective September 1, 1957, now reads in part:

“Upon a trial by the court, the judge shall, at the request of either party, which request shall be filed within ten days from rendition of final judgment or order overruling motion for new trial, state in writing the conclusions of fact found by him separately from the conclusions of law. Notice of the filing of the request shall be served on the opposite party as provided in Rules 21a or 21b.”

It is therefore apparent that appellant did not comply with Rule 296.

In Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, the Court stated:

“In spite of the above rules, a failure of a trial court to prepare and file findings of fact or conclusions of law under Rule 296, or additional or amended findings of fact or conclusions of law under Rule 298, will not call for a reversal of the trial court’s judgment, if the record before the appellate court affirmatively shows that the complaining party has suffered no injury in the premises.”

The judgment of the Trial Court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    GREAT WESTERN LOAN & TRUST COMPANY, Inc., Appellant, v. James B. BASS, Appellee. GREAT WESTERN LOAN & TRUST COMPANY, Inc., Appellant, v. Richard D. GUIDRY, Appellee. GREAT WESTERN LOAN & TRUST COMPANY, Inc., Appellant, v. Freddy RICHARDSON, Appellee.
    Nos. 11161, 11171, 11172.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1964.
    Rehearing Denied March 4, 1964.
    Leonard L. Franklin, Austin, for appellant.
    Frank O. Barnes, Houston, for J. Bass.
    Ernest L. Sample, Beaumont, for F. Richardson.
   PHILLIPS, Justice.

The facts in these cases are identical. The notes in question were made by the purchasers of appliances to Family Freeze who subsequently endorsed the notes to Great Western Loan and Trust Co., Inc. When the notes in question were made the Capital National Bank in Austin, Texas, was handling some of them and the note form used had printed thereon that they were payable at the Capital National Bank in Austin, Texas.

After the makers of the notes had signed them and left them with Family Freeze, Family Freeze, without the knowledge of the makers, added by typewriter immediately following the words payable at the Capital National Bank in Austin, Texas, “or at the place designated by the holder hereof.”

These notes were subsequently sold to and are presently held by the Great Western Loan & Trust Company, Inc., the plaintiff in the trial court and the appellant in this Court.

This case is before us on a plea of privilege. Appellant sued the makers in Austin, Travis County, Texas. The makers filed pleas of privilege alleging the right under Article 1995 Vernon’s Ann.Civ.St. to be sued in the county of their residence. The trial court held that the pleas were good and ordered the cases transferred as requested.

We reverse the judgment of the trial court and remand these cases for further development as hereinafter indicated.

Appellant contends that the venue in its suit on the notes lies in Travis County under Subdivision 5, of Article 1995, V. C.S. Subdivision 5 which states that if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant had his domicile. Appellant maintains that the notes were payable, or the contracts were to be performed, “at the Capital National Bank in Austin, Travis County, Texas.” That in doing this, the makers put themselves within the purview of the above quoted exception to the general rule as they had expressly agreed in writing to perform the obligations at the Capital National Bank in Austin, Travis County, Texas. That the “gratuitous and unilateral addition” after the execution and delivery of the promissory notes of the above-mentioned addition by the promisee did not make the place of performance of the obligations uncertain so far as the parties herein are concerned. That as to these parties such addition could amount to a mere spoliation of the instrument in that it was made without the privity of either and so had no effect upon their respective rights or obligations. That even considering the added phrase as a material alteration of the instrument, plaintiff would still be entitled to prosecute his suit in Travis County under the provisions of Art. 5939, Sec. 124, V.C.S., providing as follows:

“Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent endorsers.
“When an instrument has been ma: terially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.”

Appellees cite Dowd v. Dowd, Tex.Civ.App., 359 S.W.2d 287, writ dism., where the court held that venue lay in the residence of the promissor where the note recited that it was payable at “State Line Discount House at office of holder hereof as may be designated from time to time.” The Court held that the place of payment was uncertain and cited Yell v. Prock, Tex.Civ.App., 238 S.W.2d 238, writ dism. In this latter case the note was payable “to the order of the General Distributing Company, 2814 Main Street, Dallas, Texas, or at such other place as the holder hereof may from time to time in writing appoint.” Here the court held that the holder was not entitled to maintain venue in Dallas County. The contract did not, at the time of its execution, require performance in any particular county but left the matter open to be determined at some future time at the will and pleasure of the holder of the note.

Cases cited by appellees as to uncertainty in place of payment are cases involving controversies between the original parties to the note. Appellant claims to be a holder in due course under the provisions of Art. 5939, Sec.. 124 V.C.S. In order to be a holder in due course, appellee must have bought the note, in addition to other requirements, without knowledge that the note had been altered without the consent of the maker. The testimony in this regard is the testimony of the only witness called, a Mr. J. Kenneth Black, Vice President and General Manager of Family Freeze at the time the notes were sold to appellant,

“Q Did you ever tell Great Western Loan & Trust Company that this phrasing had been added to the note after it was signed?
“A I am sure that they knew that we added it after, because we sold paper to both organizations.
“Q You say you are sure they knew that it was added?
“A Oh, I say they would know on any note. they bought, that it had been added after, because they didn’t know whether we were going to sell the paper to the Capital National Bank or whether we were going to sell it to Great Western. If we sold it to Great Western, we added the phrase. They would see the note.
«⅜ * *
“Q Let me just say, did you tell Great Western that that had been added ?
“A No; I just sent it to them and they bought it.”

We hold that there is insufficient evidence here to show that the appellant 'had knowledge that the alteration had been made without the consent of the maker. Such knowledge would determine whether ■or not appellant is a holder in due course with a right to enforce the instrument as •originally drawn under Art. 5939, Sec. 124, V.C.S. ' or whether it had purchased the ■notes with knowledge of the alteration, in which event the alteration would be ^ratified by. appellant and become binding on it, thus creating the uncertainty alluded to above.

We reverse and remand this cause for a new trial.

Reversed and remanded.


text:
    John William MOTHERSHEAD, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16492.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1964.

      Charles R. Wheeler, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., and George McManus, Asst. Dist. Atty., Fort Worth, for appellee.
   LANGDON, Justice.

This is a summary judgment case. Following an administrative hearing a justice of the peace court found the appellant to be an habitual traffic violator. The Department of Public Safety thereafter entered an order suspending appellant’s commercial operators license for a period of six months pursuant to the provisions of Art. 6687b, § 22(b) 4, Vernon’s Ann.Tex.Civ.St. The appellant appealed to the county court at law where summary judgment was entered adjudging him to be an habitual traffic violator and ordering suspension of his license. This is an appeal from that judgment. We affirm.

There was attached to the appellee’s motion for summary judgment a photostat copy of the appellant’s public driving record properly authenticated by the supervisor of the records division of the Department of Public Safety. The record contained four notices of conviction reflecting that the appellant was guilty of four moving traffic violations arising out of different transactions within a consecutive period of twelve months and included the order of suspension dated September 16, 1962.

The appellant by way of pleading, replies, and admissions states that he was not validly convicted of any of the offenses because he did not enter a plea of guilty or a plea of nolo contendere in open court in person or by attorney. He states that he did appear at the corporation court building and paid the “fines” by money order, cash, or check to the clerk or the cashier at the “fine window”.

Art. 6687b, § 25(c), V.A.T.S. provides that a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.

The appellant was accorded ample opportunity and time to rebut the prima facie case against him in the county court at law involving the charges upon which the suspension of his commercial operators license was based. He was fully aware that the judgments of conviction were against him according to the notices attached to the motion for summary judgment. The record of the convictions was admissible. Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167; Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577; Whittington v. Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374. When incorporated in the motion for summary judgment they constituted prima facie evidence of the matters therein stated. Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114. It was thereafter incumbent upon the appellant to contradict or to rebut the validity of the convictions and the suspension order. This he failed to do.

While the appellant denied that he had been convicted of the four traffic violations, based solely upon the statement that he had not appeared in open court in person or by his attorney and entered a plea of guilty or nolo contendere, he otherwise made no showing that they were not legal convictions under this statute. He did state that he did not desire to take the time or spend the money required to prove his innocence. The appellant made no showing that the convictions did not result from a forfeiture of bail or collateral deposited to secure his appearance in court, and that if such forfeiture had occurred same had been vacated. The contentions of the appellant were But mere legal conclusions and as such raised no material issue of fact. According to his admissions the appellant personally appeared at the corporation court building and paid money by way of money order, cash or check to an officer of the court in connection with each of the offenses.

It has long been an established practice to appear before the clerk of the corporation court or other persons authorized by the judge thereof and enter a plea of not guilty and post a cash bond in the amount required for the ultimate payment of the fine. This is a convenience to the person so doing as. he avoids the necessity of being present for the trial and the issuance of a capias for his arrest. In failing to appear for trial the cash bond or collateral paid by him is-forfeited and devoted to payment of his fine. By handling the payment of the fine in this way the courts have held that the record of the traffic violation is inadmissible in a civil case arising out of the same transaction. Certainly, this arrangement is a convenience to the person charged. The action of the appellant in appearing and arranging with the appropriate person for payment in connection with each of the four traffic violations rather than mailing payment does no more than to raise the inference that he made arrangements to post a cash bond or collateral which was forfeited when he failed to appear for trial. Certainly, it does not rebut the prima facie case made on the appellee’s motion, nor establish the existence of fact issues.

Since the statute provides that a forfeiture of bail or collateral shall be equivalent to a conviction the appellant’s legal conclusion that he was not validly convicted is erroneous in so far as the suspension of his license is concerned. Whittington v. Department of Public Safety, Tex. Civ.App., 342 S.W.2d 374.

The appellant has raised some question as to notice of the administrative hearing in the justice of the peace court. The record however contains no information upon which we might base a determination of this point and same-is accordingly overruled.

The appellant did receive due notice of the suspension of his license and timely filed his appeal which had the effect of suspending- the suspension order of the Department of Public Safety and therefore invalidated any prior administrative order to the same effect as though there had been no prior hearing. Art. 6687b, § 22(c).

In our opinion the cases of Mooneyhan v. Benedict, Tex.Civ.App., 284 S.W.2d 741; Art. 518, Vernon’s Ann.C.C.P.; Texas Department of Public Safety v. Williams, Tex.Civ.App., 356 S.W.2d 848; Palmer v. Texas Department of Public Safety, Tex.Civ.App., 374 S.W.2d 347, and the recitations contained in 24 Tex.Jur.2d, pp. 210, 211, § 633, together with the authorities cited therein, have no application to the facts in this case.

Since summary judgment is proper in a drivers license suspension case in which no material issues of fact have been raised, Wood v. Department of Public Safety, Tex.Civ.App., 311 S.W.2d 274, we have concluded that the judgment of the trial court should be and same is accordingly affirmed.


author: PER CURIAM.

text:
    W. A. WEEMS, Appellant, v. Floyd Earl HENRY et al., Appellees.
    No. 16493.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1964.
    Robert Buntyn, Denton, for appellant.
    No brief filed in Court of Civil Appeals by appellees represented in trial court by Robert Weldon Knight, Denton.
   PER CURIAM.

Plaintiff W. A. Weems sued Floyd Earl Henry and Ethel F. Norman, defendants, for debt as exhibited by notes, and for foreclosure of chattel mortgages to secure the same. The defendants answered, under oath, denying plaintiff’s allegations and more specifically denying execution of the notes.

Trial was to a jury, and in reply to special issues the jury found that defendants were indebted to plaintiff (defendant Henry in the amount of $113.35 and defendant Norman in the amount of $53.35). In answer to issues posing the question of whether defendant Henry mortgaged to the plaintiff “the items of property shown upon plaintiff’s exhibits number 1 and 2”, and whether the defendant Norman mortgaged to the plaintiff “the items of property shown upon plaintiff’s exhibits number 2”, the jury found in the negative, or “No”.

Based upon the verdict of the jury, and upon all the testimony and evidence offered in the trial, decree was rendered for plaintiff and against the defendants in accord with the verdict. Foreclosure of the mortgages claimed by the plaintiff was denied in view of the jury’s finding that the defendants had not given such mortgages.

The plaintiff perfected an appeal to this court, but in connection therewith did not bring forward any statement of facts.

Plaintiff’s single point of error asserts that the trial court erred in permitting the jury to decide by special issues a question of law, to-wit: “the legal effect of the instruments designated appellant’s exhibits one and two”.

In the transcript we find the instruments to which plaintiff obviously refers, bearing what appear to be the reporter’s file marks, as “Plaintiff’s exhibit #1”, and “Plaintiff’s exhibit #2”. The first of these is a combination installment note and chattel mortgage on a Cadillac automobile, in the amount of $350.00, dated July 7, 1962, executed by Floyd Earl Henry. The second of these is a combination installment note and chattel mortgage on various personal items and furniture, in the amount of $166.-70, dated May 5, 1962, executed by Floyd Earl Henry, Lilly Mae Henry and Ethel F. Norman.

Neither of these instruments was attached to plaintiff’s petition. They might have been introduced in evidence during the trial, but this was not shown to have been the fact. Furthermore, for all we know by the record presented there was evidence by the defendants denying their execution of these instruments, that their signatures were forged, etc. Our view is that we may not consider either as having the dignity of legal evidence.

The case before us is one in which the appealing party, in support of the point of error presented, should have found it necessary to make a statement of facts a part of the record on appeal, for only by reference to such could a test be made to eliminate the possibility that the inquiries of the jury were actually upon questions of fact. Texas Rule of Civil Procedure 371, “Record on Appeal Defined”. Absence of any statement of facts inhibits determination of the merit of the point of error presented.

We have no alternative but to affirm the judgment of the trial court. It is therefore affirmed.


author: WILLIAMS, Judge.

text:
    COLUMBIA AMUSEMENT COMPANY, Appellant, v. Nat Ryan HUGHES and Peoples Bank of Murray, Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Rehearing Denied March 20, 1964.
    Earle T. Shoup, Paducah, for appellant.
    Hughes & Gregory, John Arna Gregory, Jr., Murray, for appellees.
   WILLIAMS, Judge.

This is an appeal from an order of the Calloway Circuit Court granting summary judgment against the appellant Columbia Amusement Company.

Columbia leased a building owned by appellee Nat Ryan Hughes which was totally destroyed by fire on December 12, 1962. Columbia maintained the lease provided that the property should be rebuilt and that the proceeds from insurance on the property should be applied to such purpose. .

At the time the lease was executed in 1938, Columbia’s president loaned Hughes’ mother $20,000.00 to remodel the building. Both Columbia and its president were named as insureds in the insurance policies covering the property. The money' was later repaid but Columbia was continued as an insured in the policies. Mrs. Hughes and Columbia’s president have since died. The lease has been renewed s.everal times and could have continued in force until 1973.

After his mother’s death Hughes borrowed $75,000.00 from appelleé Peoples Bank of Murray. The Bank was made a mortgage loss payee in the insurance policies taken on the property. The judgment of the circuit court allowed the Bank to recover the amount owed to it by Hughes out of the insurance proceeds, and directed that the remainder be paid over to Hughes.

A motion for summary judgment by the Bank was sufficient to authorize the judgment rendered by the circuit court. A similar motion by Hughes would have served no purpose because the motion by the Bank brought out the issues between each of the parties. See Collins v. Duff, Ky., 283 S.W.2d 179 (1955). Columbia had no conceivable claim against the insurance money unless a right somehow emanated from the fact it was leasing the property. Even though it was named as an insured in the policies the right to recover still depended on an insurable interest, if any, achieved by reason of the lease. Although summary judgment will not lie when there is a genuine issue of material fact to be determined, Petty v. Codell Construction Co., Ky., 346 S.W.2d 22 (1961), no material fact was at issue concerning the lease. The circuit court properly examined and interpreted the lease on the motion for summary judgment.

The restoration clause in the lease which has given rise to this controversy reads as follows:

“Should said premises be destroyed or rendered untenantable by fire or other casualty no rent shall be chargeable or collectible thereafter and from the date of such fire or casualty until the party of the first part shall have restored the same in as good condition as before said fire or in such condition as would be acceptable to the party of the second part; but in making such repairs the party of the first part agrees to use all diligence in repairing or rebuilding said theater.”

The circuit court was of the opinion that that clause did not create an obligation upon Hughes to rebuild the premises after total destruction by fire and that the purpose of that clause was to exonerate the lessee of payment of rent during the time the building was untenantable as a result of fire or casualty and until such time as the property was restored.

In Davis v. Parker, 200 Ky. 847, 255 S.W. 836 (1923), a somewhat similar clause was construed. It was held that the lessor was required to rebuild in case of damage rendering the building untenantable but not in case of total destruction. Here the plain intent of the language in the clause under consideration is that the building may be restored if damaged and no rent shall become due during the restoration period. Clearly there is no intent to mandatorily require construction of a new building upon total destruction of the old. The lessee is protected from unreasonable delay in restoration, but has no guarantee that it will be done at all.

The circuit court properly considered this case on motion for summary judgment and determined the appellant gained no interest in the insurance proceeds by the lease or the insurance policies.

The judgment is affirmed.


author: STEWART, Judge.

text:
    BANK OF MAYSVILLE, Appellant, v. Oscar U. BROCK, Security Bank and Trust Company et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.

      Philip Hargett, Maysville, .for appellant.
    John H. Clarke Jr., Maysville, John B. Breckinridge, Atty. Gen. Eastern District of Ky., Frankfort, B. T. Moynahan, U. S. Atty., Lexington, E. C. Royse, Houston L. Wood, Maysville, for appellee.
   STEWART, Judge.

On July 13, 1949, Oscar U. Brock and his brother, T. W. Brock, executed and delivered to the Security Bank and Trust Company of Maysville their joint note for $50,000, payable on demand, and gave simultaneously a mortgage for that amount as security on property they owned as tenants in common, which mortgage was promptly recorded. Shortly thereafter $10,000 of this indebtedness was repaid. On July 2, 1952, $10,000 was borrowed back by the Brocks from this bank, which raised their indebtedness to the original sum of $50,000 and which all of the parties contemplated was secured by the mortgage.

There were the customary provisions in the mortgage which allowed the mortgagee bank, upon default of the mortgagors, to insure the improvements on the property and pay the premiums that accrued, and also to pay all taxes that matured and all other legal charges that might become a lien against the property; and the sums so paid were to be secured automatically by the mortgage. The bank advanced $335.63 for the payment of insurance and taxes. The mortgage contained this clause: “It is further agreed that this mortgage shall secure all renewals or extensions of said loan in whole or in part, and no renewal or extension shall be deemed a payment so as to discharge this mortgage. This mortgage shall also secure any additional sums or sum of money advanced or loaned on any other indebtedness of first parties or either of them jointly or severally to second party contracted or made before or after this date, by notes, accounts or obligations of any kind whatever at any time not to exceed in the aggregate the sum of Fifty-two Thousand ($52,000.00) Dollars.”

On May 22, 1959, Oscar U. Brock executed and delivered to the Bank of Maysville a second mortgage on his undivided interest in the same property' to secure the payment of four notes of various dates aggregating $58,888. Soon thereafter Oscar U. Brock became hopelessly insolvent. Suit was instituted against the two Brocks by the two banks and the property covered by the mortgages was ordered sold.

The Security Bank and Trust Company collected from the sale of the property all its indebtedness of $50,000, together with the $335.63 it had paid for insurance and taxes under the terms of the mortgage. The proceeds from the judicial sale, remaining over after the satisfaction of the indebtedness of the first mortgagee bank, were insufficient to liquidate the debt of Oscar U. Brock to the Bank of Maysville, the second mortgagee.

The Bank of Maysville then instituted this action against the Security Bank and Trust Company, Oscar U. Brock, his wife, Geneva Brock, and T. W. Brock, to recover from them $4167.81, alleging that KRS 382.-520, which became effective June 17, 1948, prohibited the mortgage executed by the Brocks from constituting a valid security for any future credit that might be extended under it in excess of $2000.

It is appellant’s contention that, although $10,000 of the $50,000 had been repaid by the Brocks, any additional loans made thereafter to the Brocks by the Security Bank and Trust Company of more than $2000 in amount would in no event be covered by the original mortgage. In this action a recovery of one half of $8335.63 was sought, this latter sum representing $10,000 for money thereafter loaned and $335.63 for taxes and insurance premiums paid, less the $2000 it is claimed was the maximum protection allowed under the statute.

KRS 382.520, so far as it is pertinent here, was to the effect that the original mortgage should secure, if such was so provided by its terms and conditions, the payment of the note evidencing the loan made, all renewals and extensions thereof, but the aggregate indebtedness should in no event “exceed Two Thousand Dollars ($2,000) in addition to the original amount loaned.” (This statute was amended during the regular session of the 1960 General Assembly, but we are not concerned with it as amended.) (Emphasis added.)

We have no doubt but that the meaning of the language of the statute is that, if the mortgage states the limit of indebtedness, security of $2000 is allowed in addition to the original face amount of the mortgage.

Under the common law and under the decisions of this Court, the rule is that a mortgage may be drafted, if given in good faith, so as to secure future extensions and renewals as well as a present debt. It is sufficient if the mortgage clearly shows it is to stand as security for both an original loan and for such additional indebtedness as may arise from future dealings between the parties. See Taulbee v. First National Bank of Jackson, 279 Ky. 153, 130 S.W.2d 48, 49, 54. See also an article on “The Flexible Mortgage Contract,” Part II, Vol. 19-20, pp. 146 through 153, Kentucky State Bar Journal.

The matter is thus stated in Jones on Mortgages, Vol. 1, sec. 450 (8th ed.): “Future liabilities intended to be secured should be described with reasonable certainty. If the nature and amount of the encumbrance is so described that it may be ascertained by the exercise of ordinary discretion and diligence, that is all that is required.”

KRS 382.520, as enacted in 1948, provided that the mortgage should remain as a valid lien to the extent of the indebtedness therein described, plus any other indebtedness of the mortgagor to the mortgagee not to exceed $2000 beyond the actual amount loaned.

In the case at bar it will be seen from the pertinent clause of the mortgage, quoted above, that it complies fully with the governing statute. More than that, it adequately described the ultimate extent of the indebtedness to be secured, $52,000 in this instance, and such a limit was not reached, much less exceeded. It follows that the trial court correctly held that the $10,000 loaned under the mortgage and the $335.63 advanced for taxes and insurance were covered by it.

Wherefore, the judgment is affirmed.


author: PALMORE, Judge.

text:
    AMERICAN RADIATOR & STANDARD SANITARY CORPORATION, Appellant, v. Beatrice C. GERTH et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    S. L. Greenebaum, Kenneth B. Kusch, Charles F. Wood, Greenebaum, Barnett, Wood & Doll, Louisville, for appellant.
    W. C. Edrington, Deerfield Beach, Fla., for Beatrice Gerth.
    John B. Breckinridge, Atty. Gen., for Workmen’s Compensation Bd.
   PALMORE, Judge.

Joseph Gerth worked for the appellant company from 1921 until the day of his death, October 15, 1959. He died while at work. The immediate cause of death was a coronary occlusion, and the evidence is amply sufficient to support the conclusion that his coronary ailment was an outgrowth of and resulted from the occupational disease of silicosis arising out of and in the course of fiis employment. The existence of his silicotic condition had been known both to him and the employer for many years prior to his death. For a continuous period of well over three years immediately preceding his death he was assigned to duties in which, according to the employer, there was no injurious exposure as defined by KRS 342.316(1) (b). He had never filed a claim for disability by reason of silicosis. The instant claim was filed by his widow within one year after his death. Cf. KRS 342.316(3).

Both the Workmen’s Compensation Board and the circuit court found from the evidence that the decedent had in fact been injuriously exposed until the time of his death. The principal issue between the parties has been whether the evidence was sufficient to support such a finding. If not, it is contended that when Gerth died the claim was already barred by the 1-year limitation of KRS 342.316(3) and the 3-year limitation which until 1960 was a part of KRS 342.185 and read as follows:

“In cases of the disease of silicosis, caused by the inhalation of silica dust, no application for compensation shall be considered unless notice is given and claim is made within three years after the last injurious exposure to silica dust.”

While the case has been in litigation this court has decided a series of other silicosis cases which render immaterial the question of when Joseph Gerth was last injuriously exposed. In Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167 (1961), it was held that one of the conditions that must exist before notice under KRS 342.-316(2) is required is that the employe have “a disability from an occupational disease •which impairs his capacity to perform his •work.” (Emphasis added.) This means that “so long as a man is able to carry on his duties, though he may suffer while doing it, he is not yet disabled within the meaning of KRS 342.316(2).” Bethlehem Mines Corporation v. Davis, Ky., 368 S.W.2d 176, 177 (1963). In Stephens Elkhorn Coal Company v. Tibbs, Ky., 374 S.W.2d 504 (rehearing denied Feb. 7, 1964), it was said that “in our opinion practical realities require the conclusion that so long as the employe, after first acquiring knowledge that he has the disease, continues to be employed in full-time employment by the same employer, he cannot be considered to be disabled within the meaning of the notice statute. If * * * the workman has sufficient capacity to be continued in full-time employment, it would seem that in practicality he is not disabled.” See also Alva Coal Corporation v. Trosper, Ky., 375 S.W.2d 406 (1964).

The course set by Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167 (1961), under KRS 342.316(2), the notice provision, inexorably led to the same result under KRS 342.316(3), the limitations section:

“Although the commencement of the running of limitations is by statute related to knowledge of or exposure to the disease, it is obvious that limitations could not commence to run in any event unless the employe has a disability, because the claim is for ‘disability resulting from an occupational disease,’ and certainly the statute does not contemplate that an employe must file a claim before he has a claim.” Brock v. International Harvester Company, Ky., 374 S.W.2d 507 (rehearing denied Feb. 7, 1964).

The situation would be no different, of course, under the limitations provision of KRS 342.185.' The net effect of our decisions on this subject is that so long as a person who has contracted an occupational disease remains in the full-time service of the same employer he does not have a disability and therefore does not have a claim. His disability occurs and his claim arises when his full-time employment ends. Gerth’s full-time employment was terminated by his death. Before that time he had no claim against which limitations could run. His death arose out of and in the course of his employment, and the widow filed her claim within one year thereafter. Hence the maximum award allowed by the board and confirmed by the circuit court was proper.

The judgment is affirmed.

      . It was deleted by e. 147, § 13, Acts of 1960.

      . At that time, “notice of disability.” The statutory phraseology was later amended to “notice of claim,” but as pointed out in Brock v. International Harvester Company, Ky., 374 S.W.2d 507 (1963), there can be no claim without a' disability.


author: MILLIKEN, Chief Justice.

text:
    Billy SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    John Rose, Columbia, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for appellee.
   MILLIKEN, Chief Justice.

The appellant, Billy Smith, was sentenced to life imprisonment for assaulting with intent to rob, on March 30, 1963, an 86-year old woman who lived alone in an isolated section of Adair County. The elderly woman was tortured in an attempt to force her to disclose the location of about $5,000 in cash which she supposedly had stashed away in her home, part of the proceeds from old age pension payments which she saved because she “did not know what time the old age would stop on me * * * and I didn’t dress it out and I didn’t run around on the strength of it * * *. I lived on half rations to save it, you know.” With her hands pinned to her side by one of her three assailants and the knife of another painstakingly cutting her throat, the old lady kept her secret. Found on her front porch the next morning by a neighbor who usually cashed her pension checks for her, she was rushed to the hospital where faithful care and her own rugged resistance managed to overcome the effects of the multiple bruises and lacerations, the basal skull fracture and shock which she had suffered.

At the trial she described one of her assailants as being tall, another as being not so tall but with long hair, and the third as being “chunky looking” — descriptions which covered the appellant and his companions. All three of the alleged assailants had prior convictions and one of them was married to ■one of her granddaughters. The kinsman pleaded guilty and Smith and the other ■defendant were tried jointly and both were convicted.

The appellant and the other two men had been seen together late that day and the ■evidence disclosed that they had drunk an indeterminate amount of wine, beer and whisky. The appellant’s companions said he had nothing to do with the crime, but his footprints were found leading to and from the old lady’s home and for several hundred feet to the place where his automobile had been parked, leaving tire marks which were :also identified.

We think it clear from this resume -of the prosecution’s case that there was enough evidence offered to sustain a conviction and to show clearly that the trial court properly refused to direct a verdict for the .appellant.

The appellant claims that the trial court erred in not affording him a separate ■trial. This issue is covered specifically by RCr '9.16 which permits the trial court discretion as to when to order separate trials of persons jointly accused of a crime, and in the present case we conclude that the trial court did not abuse its discretion when it refused to grant the appellant a separate trial. Similar latitude is afforded the trial court in deciding whether to allow persons tried jointly more than -the fifteen peremptory challenges, the number allowed an individual accused in a criminal 'trial, RCr 9.40(1) and (3), and we find no abuse of the trial court’s discretion here. The instruction giv.en on the defense of drunkenness was adequate.

The judgment is affirmed.