author: POPE, Justice.

text:
    The TEXAS STATE BOARD OF HEALTH et al., Petitioners, v. HARRISON CLINIC HOSPITAL, Respondent.
    No. A-11423.
    Supreme Court of Texas.
    Nov. 16, 1966.

      Doug Crouch, Dist. Atty., John H. Chambers, Asst. Dist. Atty., Fort Worth, Wag-goner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for petitioners.
    McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, J. Carroll McConnell, Fort Worth, for respondent.
   POPE, Justice.

The State Board of Health after a hearing, ordered the revocation of the temporary hospital license which it had issued to Harrison Clinic Hospital. Harrison Clinic appealed to the district court and there insisted that Section 9, Article 4437f, Vernon’s Ann.Civ.St. expressly authorized a trial de novo on appeal from such an administrative order. The trial court denied Harrison Clinic’s contention and ruled that the appeal was governed by the substantial evidence rule, and the burden of proof was on Harrison Clinic. After trial the court reinstated the Board’s order which revoked the temporary license. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a trial de novo. 400 S.W.2d 840. The Board is before this court with three points: (1) Harrison Clinic was operating under a temporary license only, and its order of revocation was actually a denial of a license, (2) an appeal from such an order of revocation is governed by the substantial evidence rule, and (3) the one appealing had the burden of proof. We affirm the judgment of the Court of Civil Appeals.

The Legislature enacted the Texas Hospital Licensing Law in 1959, Article 4437f, V.A.C.S., and it became effective on August 11, 1959. Section 4 of the act prohibited the maintenance of a hospital without a license after January 1, 1960. The Licensing Law does not define the term “license” and does not mention “temporary” or “permanent” licenses. Section 5 empowered the Board to promulgate and enforce regulations and minimum hospital standards. Section 6 required existing hospitals to comply with such regulations and standards within a period of six months unless the Board extended the time. Section 7 required hospitals to make application for licenses, and Section 8 authorized the issuance of a license upon compliance with the regulations and standards promulgated by the Board. Section 16 imposed criminal penalties for operation of a hospital without a license. By Section 9 the Legislature made provision for a trial de novo on appeal from an order which revoked a hospital license. The relevant portions of the Section are:

“The Licensing Agency shall have the authority to deny, cancel, revoke, or suspend a license in any case where it finds there has been a substantial failure to comply with the provisions of this Act or the rules, regulations, or standards promulgated under this Act, or for the aiding, abetting, or permitting the commission of any illegal act, or for conduct detrimental to the public health, morals, welfare and safety of the people of the State of Texas.
“Any hospital whose license has been cancelled, revoked, or suspended by the Licensing Agent may, within twenty (20) days after the making and entering of such order, take an appeal to any of the District Courts in the county that the hospital is so located in, but the decision of the Licensing Agency shall not be enjoined or stayed except on application to such District Court after notice to the Licensing Agency.
“The proceedings on appeal shall be a trial de novo as such term is commonly used and intended in an appeal from the Justice Court to a County Court, and which appeal shall be taken in any District Court of the county where the license has been issued.”

The Board’s argument is that it has never issued a permanent license to Harrison Clinic, and its administrative order was actually a denial of a permanent license. It argues that an administrative agency’s initial issuance of a license is a public policy decision which is legislative in nature and is governed by such decisions as Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.1963); Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959); Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); and Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949). Those cases hold that administrative decisions on public policy matters are ruled by the substantial evidence rule on appeal.

The Board explained the reasons for its issuance of the “temporary” license. Section 4 of the Licensing Law required all hospitals to be licensed by January 1, 1960, and Section 6 required existing hospitals to comply with the Board’s regulations and standards within six months after the Board promulgated them unless that time was extended. When the law became operative, there were more than six hundred existing hospitals in Texas, and the Board was unable to make inspections of so large a number by January 1, 1960. It was also unable to promulgate rules and standards until November of 1961. The Board decided to issue all existing hospitals a temporary license when they filed their applications for licenses. The Director of the Board’s licensing division said the issuance of the temporary licenses avoided widespread violations of Section 4 and also the penal provisions of Section 16. The Board concludes that its order was a denial of Harrison Clinic’s application for a permanent license, and such an order is one of public policy.

Harrison Clinic, on the other hand, urges that it was lawfully operating under a license that the Board issued to it, the Board brought a number of charges against it for the violation of specified hospital regulations and standards, all proceedings leading up to the order were for the purpose of revoking an existing license and not for the hearing on its application, the order was one of revocation, and the Licensing Law expressly authorized a de novo appeal from such administrative proceedings. Neither the constitutionality of the statutory appeal provisions nor the validity of the Board’s regulations and standards is questioned by either party to this action. The Court of Civil Appeals sustained Harrison Clinic’s position and relied primarily upon our recent decision in Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.1964).

In Scott, we were concerned with an appeal from an administrative order which revoked a physician’s license after the Medical Board heard a complaint that charged Dr. Scott with improper administration of drugs. The court held that Dr. Scott’s appeal was ruled by the de novo provisions of Article 4506. Those provisions are indistinguishable from Section 9, Article 4437f, supra. We deem it unnecessary to repeat at length what was said in Scott since the court there rather fully analyzed the cases which have held that the administrative agency was making a legislative determination as well as those that have held certain proceedings were judicial in nature. The court made its determination as to whether the proceedings against Scott were legislative or judicial by an examination of the nature of the very proceedings instituted against him. In holding that the charges against Scott presented a judicial matter, appealable by a de novo trial, the court said:

“ * * * The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers. An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected. Here, the question of whether a particular medical practitioner has performed acts and engaged in conduct requiring revocation of his license under the standards prescribed by the Legislature involves the professional activities of only one person. In resolving this matter the Board was not engaged in promulgating rules of general application or in deciding questions of broad public policy. The fact questions inherent in the decision of the Board are typical of those which can on appeal be decided by a judge or a jury on evidence introduced in court.”

The Board’s pleadings reveal the nature of the proceedings it instituted against Harrison Clinic. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957). The Board asserted that Harrison Clinic had violated a number of its regulations and standards, and such violations were the basis for a revocation of its license. It charged that Harrison Clinic failed to provide hand-washing facilities for the scrub area of the operating room and for the kitchen staff, failed to store oxygen and nitrous oxide separately from other gases, did not provide ducts which would carry explosive gases from the operating and delivery rooms, maintained an open flame sterilizer in the operating room, did not dispose of surgical and contaminated wastes by incineration, and stored ice for human consumption .with that used for therapeutic uses. It made other charges concerning fire hazards and inadequacy of steps, stairways, lights, and hardware. All of these charges were pleaded on appeal as a basis for the revocation of the hospital license.

The Board alleged in its pleadings, " * * on account of such violations they were entitled to file said complaints and were then entitled, and now are entitled to a revocation and cancellation of said temporary license Number 91.” The Board denominated the order as the “order of revocation of July 15, 1963” and pleaded that the “Board entered its official order and judgment revoking and cancelling said temporary license Number 91.” Its prayer for relief was for “cancelling and revoking said temporary license Number 91 * * The trial court’s judgment was “that the order of the Texas State Board of Health which was duly entered on the 15th day of July, A.D. 1963 he reinstated, which order cancels and revokes Temporary License No. 91 to operate the Harrison Clinic Hospital * *

The Board’s pleadings, contrary to its present contention, did not assert, as one of its many complaints, that Harrison Clinic was operating in violation of Section 4 of the licensing act which required hospitals to have a license. It did not assert, nor does the record anywhere show, that the administrative proceedings were based upon an unlicensed status of the hospital, or that the Board has denied the pending application for a license. If, as the Board urges, the issuance of a temporary license was an interim step in the licensing process, Harrison Clinic’s application is still before the Board without action either approving or refusing it. Whether the Board could have achieved its objective by a denial of the pending application is not the question now before us. What is before us is a record which shows that the Board did not make an order refusing the application; it made an order revoking a license. The Board’s contention that its order was in effect a denial of an application was first urged in November of 1964 after this court delivered its opinion in Scott in October of the same year.

We conclude, therefore, that the proceedings before the Board were of a judicial nature very similar to those in Scott. The proceedings were also similar to those in Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961). In Key Western, the Insurance Board had approved an insurance policy form, but it later initiated hearings which resulted in its withdrawal of approval because the policy encouraged misrepresentations. The Legislature had authorized a de novo appeal. Insurance Code, Arts. 3.42(g) and 21.44, V.A.T.S. After examining the doctrine of separation of powers, the court held that the issue for decision was one which should be decided on appeal by trial de novo since the complaint about the policy was particular and immediate, not prospective or general in effect, and lent itself to decision by the judicial process.

The Board relies upon Beall Medical Surgical Clinic & Hospital, Inc. v. Texas State Board of Health, 364 S.W.2d 755 (Tex.Civ.App.1963, no writ). That case was decided before Scott. As held by the Court of Civil Appeals, the Scott case is indistinguishable from and rules this case. Hospital Clinic was entitled to a trial de novo.

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN, J., dissenting.

      . “Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board. The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides. * *


source: Caselaw Access Project

author: WALKER, Justice.

license: Public Domain

text:
    ROYAL INDEMNITY COMPANY, Petitioner, v. R. G. DENNIS, Respondent.
    No. A-11664.
    Supreme Court of Texas.
    Dec. 31, 1966.

      Stone, Parker, Snakard & Brown, Law-ton G. Gambill, Fort Worth, for petitioner.
    Harris & Ball, Chester G. Ball and Joseph W. Stewart, Arlington, for respondent.
   WALKER, Justice.

This is a workmen’s compensation case. R. G. Dennis, respondent, suffered a com-pensable inguinal hernia. He underwent an operation, which the jury found was not successful. The jury also found that he sustained temporary total disability for six weeks followed by permanent partial disability, but that his wage earning capacity was not diminished during such period of partial disability. The trial court rendered judgment in respondent’s favor for his hospital and medical expenses plus compensation for 26 weeks at $35.00 per week, and the. Court, of Civil Appeals affirmed. 404 S.W.2d 951. We hold that respondent is entitled to compensation for only the six weeks of total disability found by the jury.

Subject to certain limitations not material here, Section 12b of Article 8306 by its terms requires that a compensable hernia be regarded as a general injury in three situations: (1) where the claimant refuses an operation and it appears to the Board that surgery would be more than ordinarily unsafe; (2) where the claimant refuses to submit to surgery after the Board unanimously concludes that there has been no showing that his condition renders an operation more than ordinarily unsafe; and (3) where the claimant submits to an operation which is not successful and does not result in death. The provisions of the statute with which we are now concerned read as follows:

“If the employe submits to the operation and the same is successful, which shall be determined by the board, he shall in addition to the surgical benefits herein provided for be entitled to compensation for twenty-six weeks from the date of the operation. If such operation is not successful and does not result in death, he shall be paid compensation under the general provisions of this law the same as if such operation had not been had; other than in determining the compensation to be paid to the employe, the board may take into consideration any minor benefits that accrued to the employé by reason thereof or any aggravation or increased injury which accrued to him by reason thereof.”

Respondent argues that the 26 weeks of compensation which must he paid in the event of a successful operation is the minimum that may he awarded when the operation is not successful. We agree with the Court of Civil Appeals that it is somewhat anomalous for a claimant who has a successful hernia operation to receive more compensation than one whose operation is unsuccessful. The statute is quite plain, however, and in our opinion it is not subject to the construction urged by respondent. If the operation is not successful and does not result in death, the claimant is to be paid under the general provisions of the law as if no operation was had, except that consideration may be given to benefits or aggravation resulting from the operation. No provision is made for specific or minimum compensation in the event of an unsuccessful operation. Respondent sought to recover for a general injury in the trial court, and under the jury findings that is the only basis upon which he is entitled to compensation. In view of the findings that he suffered only six weeks of compensable disability, the courts below erred in holding that he should be compensated for 26 weeks of total incapacity as for a specific injury.

Although the charge in the present case contains the definition of “partial disability” that was used in Indemnity Ins. Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830, respondent filed a motion for mistrial on the ground that the findings of permanent partial disability were in fatal conflict with the finding that he would suffer no diminution of earning capacity during the existence of such partial disability. By cross-point in the Court of Civil Appeals, he insisted that the trial court erred in overruling this motion. His reply to the application for writ of error .contains two cross-points which assert, in effect, that the Court of Civil Appeals erred in failing to consider and sustain his cross-point there. This contention, if sustained, would lead to a modification of the judgment of the Court of Civil Appeals, and the same cannot be considered because it was not brought forward by an application for writ of error. See Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238; Calvert, Some Problems of Supreme Court Review, 21 Tex.Bar Jour. 75.

The judgments of the courts below are reversed, and the cause is remanded to the district court with instructions to enter judgment in respondent’s favor for his hospital and medical expenses plus compensation for six weeks at $35.00 per week plus interest and costs of suit in the trial court. Costs of appeal are adjudged against respondent.


author: PER CURIAM.

text:
    SHELL OIL COMPANY, Petitioner, v. George STANSBURY et ux., Respondents.
    No. A-11477.
    Supreme Court of Texas.
    Dec. 31, 1966.
    Rehearing Denied Jan. 25, 1967.

      Thomas A. Wheat, Liberty, R. H. Whil-den and C. E. Nadeau, Houston, for petitioner.
    Fred W. Moore, Houston, Chap B. Cain, Liberty, for respondents.
   PER CURIAM.

George Stansbury and wife leased their lands to Shell Oil Company for oil, gas and other minerals. The lease expressly imposed a duty upon shell to drill an offset well in the event a draining well was located within a specified distance of the Stansbury property lines. Shell also owned an oil and gas lease upon adjacent lands leased by Bill Daniel. It drilled some producing wells upon the Daniel tract which substantially drained oil and gas from the Stansbury lands. The wells on the Daniel tract were located beyond the offset distance specified in the Stansbury lease. The Court of Civil Appeals correctly held that the express provision in the Stansbury lease which obligated Shell to drill an offset well if a draining well was within a specified distance from the Stansbury property line did not limit Shell’s obligation to drill when Shell was the one causing the drainage to the Stansbury land. We approve the holding that Stansbury was entitled to recover damages from Shell upon proof that Shell caused substantial drainage of the lessor’s lands, and that a reasonably prudent operator would have drilled a well on the Stans-bury land to protect it from drainage. Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 73 P.2d 1163 (1937); Meyers and Williams, Implied Covenants in Oil and Gas Leases: Drainage Caused by the Lessee, 40 Texas L.Rev. 923, 939-940 (1962). We disapprove any language in the opinion of Hutchins v. Humble Oil & Refining Co., 161 S.W.2d 571 (Tex.Civ.App.1942, writ ref. w. o. m.) which conflicts with the principle that a lessee is under a duty to protect his lessor against depletion of the lessor’s minerals by the affirmative act of the lessee upon adjacent land.

The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: MURRAY, Chief Justice.

text:
    Carmen JACAMAN, Co-Executrix of the Estate of M. S. Jacaman, Deceased, Appellant, v. FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., and Western Fire Insurance Company, Appellees.
    No. 14504.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 9, 1966.
    Rehearing Denied Dec. 7, 1966.
    Second Rehearing Denied Dec. 30, 1966.
    Mann, Castillon, Freen & Kazen, R. J. Goodman, Laredo, for appellant.
    Richard C. Keene, Beckmann, Stanard, Wood & Vance, San Antonio, Jacob G. Hornberger, Laredo, Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for ap-pellees.
   MURRAY, Chief Justice.

This is a suit by Carmen Jacaman, Co-Executrix of the Estate of M. S. Jacaman, Deceased, upon two fire insurance policies executed respectively by Fidelity and Guaranty Insurance Underwriters, Inc., and Western Fire Insurance Company, covering the “contents” of La Popular Store, while located in a two-story metal-roof building located at 415^-17 Convent Avenue, Laredo, Texas. One of the policies was in the sum of $5,000 and the other in the sum of $10,000.

The “contents” of the La Popular Store were removed to another building, some three or four blocks away, known as the Frontier Shop. Both stores were owned and operated by the Jacaman family. After the contents were removed, the La Popular Store was completely closed. The contents of the Frontier Shop were destroyed by fire, including the merchandise which had been moved there from the La Popular Store. The insurance companies refused to pay for the damage and this suit followed.

Both policies contained the following provision: “Unless otherwise provided, insurance on personal property shall cover only while in the described building.” The property had been removed from the described building and under the provisions of the policies there was no coverage.

To overcome this situation, it was contended by the Jacamans that R. E. Laurel, alleged recording agent for the two insurance companies, had been informed, and otherwise knew, of the fact that the La Popular Store had been vacated and its contents moved to the Frontier Shop, owned and operated by the Jacamans, and that Laurel did not tell the Jacaman family that they had breached the terms of the fire insurance policies, and never advised them that there was no longer any coverage under these policies. Further, that neither Laurel nor the insurance companies made any offer to return the unearned premiums on these policies to the Jacamans before the fire.

The trial was to a jury and resulted in an instructed verdict in favor of the insurance companies and Carmen Jacaman, Co-Executrix of the Estate of M. S. Jacaman, Deceased, has prosecuted this appeal.

Appellant’s first point is as follows:

“THE TRIAL COURT ERRED IN INSTRUCTING A VERDICT FOR THE APPELLEE INSURANCE COMPANIES BECAUSE THERE WAS EVIDENCE OF PROBATIVE FORCE IN THE RECORD TO RAISE THE ISSUE OF WAIVER AS TO THE CHANGE OF LOCATION OF THE INSURED PROPERTY.”

The exact contention is that R. E. Laurel as local agent for the insurance companies had, by his words and conduct, waived the removal of the dry goods from the La Popular Store to the Frontier Shop. There is nothing in the record to show that at the time the goods were removed from the La Popular Store, or at the time the Frontier Shop was destroyed by fire, that Laurel was the agent of appellees. The burden of proof was upon appellant to show the agency of Laurel, which burden she has not met.

The record does show that there was some testimony heard, in the absence of the jury, on a question of whether or not Laurel as a third party defendant was to be given six peremptory challenges in addition to the challenge given to the insurance companies, but this testimony was never presented to the jury and could not have been considered by them. Neither could this evidence be considered by the court in passing on the motion for an instructed verdict. This evidence tended to show the agency of Laurel for the insurance companies, but as this evidence could not be considered by the trial court, it cannot be considered by this Court.

These policies were issued through the Laurel Insurance Agency of Laredo, Texas, in October, 1958, but this does not establish the fact that five years later, at the time of the fire, Laurel was the agent of appellees.

It matters not what Laurel may or may not have said to the Jacaman family in 1963, unless he was at that time the agent of appellees with authority to waive a provision in the insurance policies that there would be no coverage unless the dry goods were in the building occupied by the La Popular Store.

The appellant having rested without offering evidence sufficient to establish that Laurel was the agent of appellees in 1963, with authority to change the terms of the policies, there is no possible waiver shown. The trial court properly instructed a verdict for appellees.

Appellant’s second point is that the trial court erred in granting six peremptory challenges to the third-party defendant, Agent Laurel. As the trial resulted in an instructed verdict and was never submitted to the jury, this point is moot and is overruled.

The judgment is affirmed.

On Motion for Rehearing.

Appellant in her motion for a rehearing contends that appellees have judicially admitted that R. E. Laurel was their agent in their motion to consolidate Causes No. 22,661 and No. 22,662. This was a motion directed to the discretion of the trial judge and was not a live pleading to be read to the jury. If appellant wanted this motion considered by the jury she should have introduced it in evidence. In W. Scott & Co. v. Woodard, 39 Tex.Civ.App. 498, 88 S.W. 406, a case strongly relied upon by appellant, the Court had this to say:

“There was no error in allowing ap-pellee to introduce in evidence the application for continuance made by the appellants through their attorney, since it contained an admission which contradicted the testimony of each of them on the trial.”

Here the motion to consolidate the two causes was not offered in evidence.

The evidence does not show that R. E. Laurel was an agent of appellees with authority to orally waive a provision of the insurance policy.

Appellant’s motion for a rehearing is in all things overruled.


author: DENTON, Chief Justice.

text:
    Charles G. CLARK, Appellant, v. BANK OF the SOUTHWEST, AMARILLO, Texas, Appellee.
    No. 7665.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1966.
    Rehearing Denied Jan. 3, 1967.

      Lockhart & Wilds, Amarillo, for appellant.
    Lumpkin, Watson & Smith, Amarillo, for appellee.
   DENTON, Chief Justice.

This is an appeal from a summary judgment in favor of the appellee, Bank of the Southwest, Amarillo, Texas, against appellant Charles G. Clark on a promissory note.

On April 1, 1964 Albert B. Martin and appellant Clark executed a note payable to appellee in the amount of $18,000.00 providing for monthly payments with interest from date at the rate of 7% and 10% after maturity. A renewal note was executed by Martin on May 18, 1965 in the principal sum of $14,066.15 providing for monthly payments with interest after maturity of 10%. Appellee sued both Martin and Clark for the balance due on the note which was renewed and extended by the May 1965 note. An interlocutory judgment was granted against Martin. Summary judgment was granted appellee against appellant and the interlocutory judgment was made final. Martin did not appeal.

In the one point of error appellant attacks the trial court’s judgment on the ground the pleadings and affidavits show there are material fact issues. It is contended the record presents a question of fact as to whether Clark was a surety or maker of the note; and whether he had been released from liability by the renewal of the original note. In his affidavit appellant stated he sold an auto parts business to Martin. Martin had no cash to pay, but obtained a loan from appellee to purchase the business, and executed the original note for the purchase price. Appellant signed the note along with Martin. Appellant stated “I signed same as surety”. In addition Martin executed a Chattel Mortgage on the store fixtures and merchandise. Appellant further stated by affidavit that the bank “did on May 18, 1965, without my knowledge, renew the note that I was surety on and let Mr. Albert Martin make a new note, using the same security that had been on the first note”.

Appellant’s statement that he signed the note as a surety is a legal conclusion and is insufficient to raise a material fact issue. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557. Duffard v. City of Corpus Christi (Tex.Civ.App.), 332 S.W.2d 447. The original note contained no statement or wording to indicate appellant signed the note in any capacity other than as a maker. The signatures of both Martin and appellant were entirely unrestricted. Appellant’s pleadings did not raise the defense he was not liable as a maker of the note. A denial of liability in the capacity in which one is sued must be pleaded by verified pleadings. Rule 93(c) Texas Rules of Civil Procedure.

The original note executed by Martin and appellant contained the provision: “The makers, sureties, guarantors and owners of the note, and all other parties thereto, severally waive demand, presentment for payment, notice of dishonor * * * diligence in collecting or bringing suit * * * and agree to all extensions and partial payments, in the event of default in the payment of any installment, the holder may without notice or demand declare the remaining balance legally collectable due and payable.” It is well settled that a person primarily liable on a note is not discharged by an extension of the note without his consent where the note provides that it may be extended without notice. Commercial Inv. Co. of Uvalde v. Graves (Tex.Civ.App.), 132 S.W.2d 439 (Writ Ref.). Welch v. Beall (Tex.Civ.App.), 153 S.W.2d 338 (W.O.N.). It is also settled a surety is not relieved of liability on a note when it is extended if in signing the original note, he has agreed in advance to an extension of time subsequently granted for payment of the original obligation. Hays v. First State Bank of Dell City (Tex.Civ.App.), 377 S.W.2d 210 (Ref. N.R.E.).

Appellant takes the position the original note was “altered” or changed in that the renewal note contained no provisions for the payment of interest except after maturity. The argument is that appellant, as surety, must give his consent to such change or alteration. It is true an extension of payment between the creditor and original debtor, without a surety’s consent operates as a release to the surety. However, under the undisputed facts of this record appellant was not a surety and he gave his written consent to the extension. Where renewal notes are involved the holder may sue either on the original note or on the renewal note. Smith v. First Pasadena State Bank (Tex.Civ.App.), 401 S.W.2d 123. Hays v. First State Bank of Dell City (supra). Appellee chose to sue on the original note. The new note simply operates as an extension of the time of payment of the original indebtedness. Borden v. Arnold (Tex.Civ.App.), 94 S.W.2d 216 (Writ Ref.). Brinker v. First National Bank (Comm.App.), 37 S.W.2d 136.

A review of the record clearly shows there is no genuine issue of material fact to be tried in this case. In so doing, we review the record in the light most favorable to the appellant, indulging in his favor every intendment reasonably deducible from the evidence and resolving all doubts as to the existence of a genuine issue of material fact against appellee. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. We conclude that the action of the trial court in entering the summary judgment was proper.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    The KROGER COMPANY et al., Appellants, v. Margie WARREN et vir., Appellees.
    No. 252.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Daugherty, Bruner & Lastelick, Dallas, for appellants Hopper & Hawkins, Inc. and Delbert Clymer.
    Bracewell & Patterson, Houston, for appellants Kroger Co. and Sam G. Morrow.
    Kenneth Bing, Freeport, John C. Werner, Miller & Gann, Houston, for appellees.
   SELLERS, Justice.

The appellees, in their brief, make the following statement of the case:

“Plaintiff, MRS. MARGIE WARREN, was an employee of Appellant THE KROGER COMPANY and worked in its Henke & Pillot store located in Freeport, Brazoria County, Texas. Appellant SAM G. MORROW is Kroger’s security officer. Appellant HOPPER & HAWKINS, INC. is a ‘sales survey’ company employed by KROGER to survey and audit various retail stores owned by KROGER to determine the courtesy, efficiency, honesty, attitude and conduct of the store employees. Appellant DELBERT CLYMER is an employee of HOPPER & HAWKINS, INC.
“This suit was brought by MARGIE WARREN, and husband, RALPH WARREN, against said Appellants for damages for false imprisonment, assault and battery and defamation of character. The alleged torts arose out of a three hour interrogation of MRS. WARREN by SAM G. MORROW and DELBERT CLYMER in a small room in a remote portion of the Henke & Pillot store, where MRS. WARREN was employed, concerning an alleged theft by MRS. WARREN of property belonging to her employer. Appellees contend that: (1) the wrongful detainment of MRS. WARREN constitutes false imprisonment; (2) the forcible prevention of MRS. WARREN from leaving the said room constitutes an assault and battery; and (3) the subsequent publication of a false statement impugning the veracity of MRS. WARREN constitutes libel and slander.”

The defendants each filed separate pleas of privilege to be sued in the county of their residence. The plaintiffs filed controverting pleas to each of the pleas of privilege in which they set up venue under several subdivisions of the venue statute. The venue issues were set down for hearing before the Court without the aid of a jury. On the hearing of the pleas, the following proceedings were had:

“MR. BING: I will now read to the Court the Plaintiffs’ First Amended Original Petition.
“MR. WILDE: In the interest of time, we will be glad to waive the reading of the petition, and let it come in.
“MR. WERNER: I introduce it in evidence.
“THE COURT: You can introduce it in evidence without reading it.
“(The instrument was received in evidence by the Court. For copy see Index.)
“THE COURT: All right, you can go ahead.
“MR. WERNER: I would like to call Mrs. Margie Warren to the stand at this time, Your Honor.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“MARGIE WARREN, called as a wit ness, being first duly sworn, testified as follows:
“DIRECT EXAMINATION
“Questions by Mr. Werner:
“Q Would you state your full name, please?
“A Margie Mae Warren.
“Q Are you familiar with the pleadings that have been read, referred to as Plaintiffs’ First Amended Original Petition ?
“A Yes, sir.
“Q Have you read it?
“A Yes, sir.
“Q Do you understand what is alleged in it?
“A Yes, sir.
“Q Do you have personal knowledge of the facts that are stated therein?
“A Yes, sir.
“Q And, to your best knowledge and belief, are the facts stated therein true and correct?
“A Yes, sir.
“Q Do you at this time adopt the facts as stated therein as your testimony in this proceeding ?
“A Yes, sir.”

While there was some other evidence introduced on the hearing by both parties, the view taken of the appeal makes it unnecessary to refer to such other evidence. The attorneys for both plaintiffs and defendants on the submission of this case admitted that if the petition of plaintiffs was not admissible in evidence, then there would not be evidence by plaintiffs of a prima facie case in support of the controverting pleas of privilege. The trial court admitted plaintiffs’ petition in evidence and overruled the defendants’ pleas of privilege from which ruling the defendants have duly prosecuted this appeal.

The plaintiffs’ First Amended Original Petition admitted in evidence was not verified, and we doubt that the proceedings above set out would be sufficient to render it a verified petition since Mrs. Warren stated: “To your best knowledge and belief, are the facts stated therein true and correct? Answer: Yes.”

However, this Court is of the opinion that the petition of plaintiffs was not admissible in evidence to prove the alleged facts contained in the petition even if it had been properly verified. The rule announced in 23 T.J.2d, page 219, Section 146, is as follows:

“As a general rule, pleadings in a pending cause, even though they are verified, are not admissible in evidence to prove the facts alleged therein. * * * ”

Cited in support of this rule is Reo Motor Car Co. v. Barnes, 9 S.W.2d 374, where the Court said:

“For some reason not shown by the record the appellee was permitted to introduce in evidence his abandoned amended original answer and cross-action, and also his second amended original answer and cross-action upon which he went to trial. The pending pleadings were before the court and the jury, not as evidence, but as a statement of facts to be proved by evidence, and they could not legally be used for other purpose. Abandoned pleadings of the opposite party are sometimes introduced in evidence as admissions against interest, but that rule does not permit a party to use his own abandoned pleadings for the purpose of proving his own alleged facts. * * * ”

On a venue hearing, the Dallas Court of Civil Appeals at an early date held:

“Appellee, Sigmond Rothschild Company, Inc., introduced and read in evidence its original petition. However, the allegations therein contained cannot be considered as evidence for any purpose in behalf of said appellee in discharging the burden of proof resting on said ap-pellee to establish the existence of the exception to exclusive venue in the county of appellants’ residence. Such a rule governing the production of testimony would be to substitute self-serving declarations for the production of evidence from original source to establish a controverted issue.” Waxahachie Nat. Bank et al. v. Sigmond Rothschild Co., Inc. et al., 235 S.W. 633.

Mrs. Warren’s testimony that she adopted the allegations of fact in her petition as her evidence just could not give life to the instrument as evidence which was otherwise inadmissible to prove her case.

The judgment of the trial court is reversed and the cause remanded.


author: MOORE, Justice.

text:
    Mrs. Tempie HUMPHRIES et al., Appellants, v. Mrs. Lucy KIRKLEY et al., Appellees.
    No. 240.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Rehearing Denied Jan. 5, 1967.

      Marion G. Holt, Nacogdoches, for appellants.
    Robert G. Reeves, Reeves & Reeves, Tyler, for appellees.
   MOORE, Justice.

This suit was brought by Tempie Hum-phries, joined by her husband, D. D. Hum-phries; Charlie Nabors; Lizzie Day, joined by her husband, Vollie Day, and J. E. Cooper, seeking to set aside a deed executed by their mother, Mrs. Beil Nabors, conveying approximately 58 acres of land to appellees, Lucy Kirkley and Dorothy Rowe. The appellants and the appellees are the surviving children of Bell Nabors, deceased.

Appellants allege in their petition that the deed was procured by an undue influence exercised by Lucy Kirkley and Dorothy Rowe over their mother, Mrs. Bell Nabors, and further that at the time of the execution of the deed, Mrs. Nabors was not of sound mind and not possessed of sufficient mental capacity to execute the deed.

Prior to trial appellee, Dorothy Rowe, disclaimed any interest in the land and was accordingly dismissed from the case. Ap-pellees Lucy Kirkley and her husband, Shirley Kirkley, answered appellants’ suit with a general denial.

Trial was before a jury and after appellants had introduced their testimony and rested their case, appellees made a motion for an instructed verdict on the ground that the evidence was insufficient to raise the issue of insanity and was also insufficient to raise the issue of undue influence. The trial court granted the motion and instructed the jury to return a verdict for appel-lees, Lucy Kirkley and husband, Shirley Kirkley. A take-nothing judgment was accordingly entered against appellants from which they duly perfected this appeal.

Appellants have brought forward two points of error in which they assert that the trial court erred in instructing a verdict against them because (1) there was evidence of probative force raising the issue of undue influence and (2) there was evidence of probative force raising the issue of the lack of sufficient mental capacity of Mrs. Bell Nabors to execute the deed.

In determining whether it was proper for the court to take the case from the jury and render judgment, we must view the evidence in the light most favorable to appellants, the losing parties. White v. White, 1943, 141 Tex. 328, 172 S.W.2d 295. We must indulge against the action of the court every inference that may properly be drawn from the evidence, and if the record reflects any testimony of probative force in favor of the losing parties, we must hold the court’s action improper. Nieto v. United States National Bank of Galveston, (Tex.Civ.App.) 384 S.W.2d 395.

The judgment does not recite upon what ground the case was withdrawn from the jury and judgment rendered, therefore we must assume that by granting appellees’ motion, the court found that there was no evidence of probative force to sustain either the undue influence issue or the issue of lack of mental capacity to execute the deed. If there was any evidence of probative force upon either issue, the action of the trial court in directing the verdict was improper.

In passing upon the question of grantor’s mental capacity to execute the deed, a brief review of the facts will be necessary. The undisputed facts show that at the time Mrs. Nabors signed the deed on October 13, 1965, she was 80 years of age and was confined to a nursing home. Because of her poor physical condition, she was confined to her bed and was so confined on the date she executed the deed in question. For several years prior to the time of the execution of the deed, Mrs. Nabors had been under the constant and regular care of Dr. Marjorie F. Roper, a practicing physician of Bullard, Texas. The evidence shows that she suffered from diabetes, hypertension and high blood pressure and had been treated for these diseases for many years. She died on October 23, 1965, ten days following the date of the execution of the deed in question.

For proof of the mental condition of Mrs. Nabors, appellants offered the deposition testimony of Dr. Marjorie F. Roper. Dr. Roper testified that she had treated Mrs. Nabors since 1952; that from 1957 to 1965 she had treated her regularly, and according to her records she had last seen her sometime between June the 1st and August 20th of 1965; that during the course of her treatment, she had continuously treated her for diabetes, hypertension and high blood pressure; that on the day of her last treatment, she found that her blood pressure was way up and she was in poor physical condition. That upon her last visit, she did not believe that Mrs. Na-bors recognized her. As to whether or not her condition would be likely to get better or worse, Dr. Roper testified that in her opinion her condition both physically and mentally was calculated to grow worse as she became older, and that in her opinion her physical and mental condition was worse on October 13, 1965, the day she signed the deed, than it was the last time she saw her. She testified that in her opinion she was not able to transact business on October 13, 1965.

Upon cross examination, the attorneys for the appellees elicited the following testimony from Dr. Roper:

“Q. Are you now testifying in answer to the questions asked you by Mr. Holt that in your judgment that on October 13, 1965, Mrs. Bell Nabors was of unsound mind?
“A. I would certainly assume she was. I wasn’t there. I couldn’t swear anything because I wasn’t there. « * * *
“Q. Are you expressing an opinion that she was of unsound mind on that date?
“A. Yes, if that is what you are asking.
“Q. That is what I am asking. Are you testifying that on October 13th, 1965, Mrs. Nabors lacked the mental capacity to understand the nature and effect of making a conveyance of her property?
“A. Knowing what I did know in the past and knowing the outcome of the thing, I would say she was not capable of making up her mind for anything.
* * *
“Q. Would it be your testimony that just knowing a person is old and feeble, that it would follow from that, that he or she would not know how to transact their business affairs ?
“A. I don’t deal in generalities. In this particular case, I don’t think she was capable of transacting her affairs, from what I knew about her is all I can say.”

When viewed in a light most favorable to the appellants against whom the verdict was directed, we believe the testimony of Dr. Roper constitutes ample evidence of probative force sufficient to raise the issue of Mrs. Nabors’ mental capacity to execute the deed on October 13, 1965. Self v. Becker, (Tex.Civ.App.) 195 S.W.2d 701. It is well settled that it is reversible error to instruct a verdict when the evidence raises any material issue. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422. Accordingly, the judgment of the trial court must be reversed and the cause remanded for another trial, unless the judgment can be sustained under appellees’ counter points of error.

In their first counter point, ap-pellees seek to uphold the judgment of the trial court because appellants did not offer to restore the consideration paid by appel-lees. They contend that the plaintiffs were obliged to do equity before being entitled to a cancellation of the deed and since they did not offer to do equity, the instructed verdict was proper. We think the point must be overruled. While there is some evidence in the record showing that the appellees paid Mrs. Nabors the sum of $2,-000.00 in consideration for the deed, appel-lees did not plead or prove that the consideration was paid in good faith, nor did they pray for an equitable restoration. It appears that the appellees have overlooked the provisions of Article 5561a, Sec. 7, Vernon’s Ann.Tex.Civ.St. Under the provisions of this statute, the burden of proof was not upon the appellants as heirs of Mrs. Bell Nabors to negative the good faith of the appellees, but the burden lay with the appellees to establish by a preponderance of the evidence that (1) they acted in good faith; (2) without fraud or imposition; (3) paid a valuable consideration; and (4) without notice of Mrs. Nabors’ infirmity. Pryor v. Awbrey, (Tex.Civ.App.) 165 S.W.2d 214; Gomez v. De Gonzales, (Tex.Civ.App.) 248 S.W.2d 268. A favorable finding to these issues would not prevent the setting aside of the deed from Mrs. Nabors to Mrs. Kirkley, but would have only required that Mrs. Kirkley be first equitably restored to her original position. Wright v. Matthews, (Tex.Civ.App.) 144 S.W.2d 367.

By their second counter point, ap-pellees contend that the record conclusively shows that the court below, as well as this, court, is without jurisdiction. They contend that the evidence conclusively shows that debts were due and owing by the estate of Mrs. Nabors and therefore there was a necessity for administration. Consequently, they argue that since neither this court nor the lower court acquired jurisdiction, fundamental error is presented and that we should enter a judgment of dismissal. We do not agree with this contention.

As we view the evidence, it shows that the debts of estate had been paid. Mrs. Kirkley testified that the reason she purchased the land from her mother was to assist her in paying her debts, and the debts owed by her mother’s estate had been paid.

Appellees’ third counter point is without merit and is likewise overruled.

For the reasons stated, the judgment is reversed and the cause is remanded for another trial.


author: RENFRO, Justice.

text:
    C. T. ROBERTSON, Appellant, v. REXALL DRUG & CHEMICAL COMPANY, Appellee.
    No. 16776.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 2, 1966.
    Arch Dawson, Wichita Falls, for appellant.
    Schaeffer & McClure, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

Appellee herein, Rexall Drug Company, a corporation sued appellant, C. T. Robertson, under a guaranty agreement executed by Robertson on October 12, 1962, in which Robertson “guaranties payment of any and all sums that may become due and payable ot Rexall Drug and Chemical Company from * * * Publix Stores, Inc., and I agree to promptly pay any and all said sums upon maturity and demand, whether evidenced by open account, notes or otherwise. This is intended to be and is a continuing guaranty and applies to any and all sums which may become due to Rexall Drug and Chemical Company from Publix Stores, Inc., six months from October 12, 1962.”

Exhibit “B”, sworn to as a verified account, was attached to the petition, and was later amended as Exhibit “D”.

Defendant did not deny the account under oath. Defendant filed an answer in which he plead that certain items were not “sums arising from the sale and delivery of goods to Publix Stores, Inc.,” and that such items should be stricken; he specially excepted to other items as being too indefinite to show whether they came within the warranty and pointed out that he was not a party to the sales and hence unable to make a verified denial of the account or any part thereof; in a supplemental pleading he plead that certain named items in Exhibit “D” were not within his guaranty contract; that certain items were sold by plaintiff to Publix Stores before the guaranty became effective.

At the trial plaintiff offered in evidence the verified account stating that the account showed plaintiff was entitled to the sum of $23,449.45, less the sum of $7,643.46 received back “as bankruptcy.”

Defendant attempted to offer evidence to prove that part of the indebtedness was incurred by Publix Stores before defendant signed the guaranty and was therefore not involved in the guaranty.

Plaintiff’s objections were sustained to the evidence on the ground defendant had not denied the justness of the account under oath. Defendant’s exceptions to the verified account were overruled and judgment rendered for plaintiff in the sum of $15,-805.99.

On appeal defendant contends there was no legal or competent evidence to support the judgment; the court erred in overruling his exceptions and in refusing to allow him to offer the evidence as above noted.

Plaintiff has not filed a reply brief.

The rule making a verified account prima facie evidence unless a written denial under oath is filed does not apply to or cover transactions between third parties or parties who were strangers to the transactions. Such accounts, though verified, are hearsay as to the stranger, who may controvert and disprove the account without having filed a written denial under oath. 1 Tex.Jur.2d 321, § 71.

The law applicable to the instant case is succinctly set out in Eng v. Wheeler, 302 S.W.2d 263 (Tex.Civ.App., 1957, writ dism.), wherein it was stated:

“As for appellant’s first point, Rule 185, Texas Rules of Civil Procedure (formerly Article 3736, Vernon’s Ann.Tex.Stats.), does not apply to nor cover transactions between third parties, or parties who are strangers to the transaction. Such accounts, though verified, are hearsay as to such parties, and in such case the stranger may controvert and disprove the account, although he does not file a written denial under oath. McCamant v. Batsell, 59 Tex. 363; Duree v. Aetna Ins. Co., Tex.Civ.App., 66 S.W.2d 764. Appellee, being a stranger to the transaction between appellant and the policyholders, could not be expected to have personal knowledge thereof. Hence, as said by Judge Stayton in McCamant v. Batsell, supra:
“ ‘It is not believed that a debt which is not the result of a transaction between the parties to it, and in reference to which they have equal means of knowledge, but which is the result of a transaction between one of them and some other person, can constitute such an account as the statute contemplates may be proved by the affidavit of a plaintiff, or as a defendant will be compelled to deny in whole or in part under oath, before he will be permitted to introduce evidence to disprove a prima facie case which the statute contemplates may be made by the affidavit. * * *
“ ‘The law does not permit, much less encourage, guesswork in swearing; * *.’
“We conclude that under the authorities the trial court correctly permitted appellee to controvert appellant’s account, notwithstanding his failure to answer under oath.”

The above rule is recognized in McCollum v. May, 396 S.W.2d 170 (Tex.Civ.App., 1965, no writ hist.); Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958); National Surety Corporation v. Dabney, 282 S.W.2d 70 (Tex.Civ.App., 1955, no writ hist.).

In Duree v. Aetna Ins. Co., 66 S.W.2d 764 (Tex.Civ.App., 1933, no writ hist.), it was held that the surety’s obligation arose from the bond sued upon and he could disprove items in the verified account though he did not file written denial under oath as to such items.

In view of the fact that the cause will have to be retried we hold that it is incumbent upon plaintiff to show that the items and services furnished to Publix Stores were such as were properly chargeable to defendant under the terms of the guaranty agreement, and that defendant’s proffered evidence heretofore mentioned should be admitted.

Reversed and remanded.


author: WERLEIN, Justice.

text:
    Jess B. GUNN et ux., Appellants, v. N. L. PHILLIPS, Appellee.
    No. 14929.
    Court of Civil Appeals of Texas. Houston.
    Dec. 8, 1966.
    Rehearing Denied Jan. 5, 1967.

      R. E. McDaniel, Winnie, Eugene T. Jen-son, Anahuac, for appellants.
    Joe F. Sandlin, Anahuac, for appellee.
   WERLEIN, Justice.

Appellants are the parents and sole heirs at law of George E. Gunn, Deceased, who died on August 8, 1965. On August 10, 1965 appellant, Jess B. Gunn, filed in the County Court of Chambers County, Texas, his application to be appointed administrator of the estate of the said George E. Gunn, Deceased, who he alleged died intestate. On the same day appellee, N. L. Phillips, filed in said court his application to have a purported holographic will of George E. Gunn probated and himself appointed administrator. The County Court consolidated the two cases, admitted the will to probate, and denied the application of Jess B. Gunn. Appellants appealed to the District Court of Chambers County. Based upon the jury finding that the purported will of George E. Gunn, adduced in evidence, is wholly in the handwriting of the said George E. Gunn, the court decreed that the instrument in question is the last will and testament of the deceased, and certified the same to the County Court for observance, and in all things denied the contest of appellants.

A photographic copy of said will is inserted herein for a clearer understanding of the evidence adduced at the trial. It will be noted that the will is undated and that it leaves all of the testator’s property to N. L. Phillips or family. The name of the devisee, N. L. Phillips, is not written in longhand but is printed by hand. That is, it is formed or written in letters like those of type.

PROPONENTS' EXHIBIT 1

The law is well settled in this State that the one offering a holographic instrument for probate must establish that it is wholly in the handwriting of the testator, and that this burden may be met by evidence of two witnesses to the handwriting of the testator. Ward v. First-Wichita Nat. Bank, Tex.Civ.App., 387 S.W.2d 913, writ ref., n. r. e.; Thomason v. Gwinn, Tex.Civ.App., 184 S.W.2d 542, error ref., w. o. m.; Sec. 84(b), Probate Code, V.A.T.S. The testimony of one witness is not sufficient. McClusky v. Owens, Tex.Civ.App., 255 S.W.2d 939, writ ref.; Dean v. Dickey, Tex.Civ.App., 225 S.W.2d 999, writ ref.; Maul v. Williams, Tex.Com.App., holding approved, 69 S.W.2d 1107.

We have carefully read the statement of facts, and have concluded that as a matter of law appellee has failed to establish by two witnesses that the purported will is wholly in the handwriting of the deceased, as required by the Probate Code and the authorities in this State. The finding of the jury that said purported will is wholly in the handwriting of the said George E. Gunn is not supported by sufficient evidence. Only two witnesses were called to testify with respect to the handwriting of the decedent. Mrs. Inez Banks, Executive Vice President and Cashier of Security State Bank at Anahuac, was shown to be qualified to testify as to the genuineness of the signature of the testator and also as to the writing in the body of the will with the exception of the printed words “N. L. Phillips”. She testified that the part of the will written out in longhand appeared to be the writing and signature of the deceased. When asked if she was testifying that it appeared to her that the printed name in the body of the will, to wit: “N. L. Phillips”, appeared to be in the testator’s handwriting, she testified, “That I would not know.” She also testified that she was not familiar with the printing of the deceased, and was not familiar as far as she knew with any printing that the deceased might have ever done.

Mrs. Faye Penick, a teller in Security State Bank of Anahuac, after looking at the handwriting and the signatures on the instrument, testified that the same appeared to be Mr. Gunn’s handwriting and signature. She further testified, however, that she did not recall seeing Mr. Gunn’s printing and was not familiar with any printing that he may have ever done. When asked, “And, then, you cannot testify that that in your opinion is his printing; can you?” she testified:

A You mean this right here?
Q The “N. L. Phillips”.
A No, but when I spoke before in general of this document I meant the “N” in “N. L. Phillips” resembles his writing.
Q How about the “L” ?
A I don’t see anything else in this that— any word that has an L in it that—
Q Then you can not testify that that is his printing; can you?
A No.

When asked if she had an opinion as to whether or not “N. L. Phillips” in the middle of the page was the printing of George Gunn, she testified that, “To me the N and the L, since I have looked at this up here where he wrote out in longhand the Phillips, look like his writing.” She repeated that she did not recall ever seeing any of the printing of the testator. She was then asked, “But as to the actual printing in the middle there, now, looking at that alone, if you saw that anywhere else besides in that instrument, would you have an opinion that it was printing of George Gunn?” to which she answered, “No”.

The handwriting witnesses were not qualified to testify, and did not testify, that the printing in the body of the instrument was the printing or even appeared to be the printing of the testator because they simply had not seen any of his printing and did not know. In view of the fact that the case must be reversed and remanded because of the insufficiency of the proof, and the possibility of another trial, we quote the following statement from McCormick and Ray’s Texas Law of Evidence, Vol. 2, Sec. 1434, pp. 289-290:

“It should be mentioned, however, that during recent years the science of investigating the genuineness of documents has progressed far beyond the realization by most lawyers of its possibilities. Techniques of testing not only handwriting and typewriting, but ink, paper, watermarks, etc., has reached a degree of precision which makes the detection and demonstration of forgery practically infallible if resort is had to professional scientific assistance.”

Appellants also contend that since the alleged will purports to leave the property to “N. L. Phillips or his family” it is void for uncertainty. They assert that a bequest to A or B is void, and cite Longmore v. Broom, 7 Ves.Jun. 124, 128, English Reports, Vol. 32, p. 51. It is true that the word “or” is a disjunctive conjunction that indicates a choice between two alternatives generally corresponding to “either” or “either this or that”. Morrison v. Swaim, Tex.Civ.App., 220 S.W.2d 493, writ ref., n. r. e. We are of the opinion, however, that the words “or his family” as used in the instrument in question, are words of substitution, wherein the family of N. L. Phillips would be substituted for N. L. Phillips if he were not living at the time of the testator’s death. Since N. L. Phillips was living at such time, it is our view that the will is not void for uncertainty because of the use of the disjunctive word “or”.

It has been held that in determining the sense in which a word is used, the court should look to the context and the circumstances of the case. H. & B. American Mach. Co. v. United States, 11 F.Supp. 48, 53. In Rolf’s and Leising’s Guardian Ad Litem v. Frischholz’ Ex’r, 251 Ky. 450, 65 S.W.2d 473, the court held the words “or her children” to be words of substitution. The word “or” was held to be generally a word of substitution or purchase in In Re Boyle’s Estate, 121 Colo. 599, 221 P.2d 357, 36 A.L.R.2d 1106. See also Hopkins v. Nichols, Tex.Sup., 22 Tex. 206, 207; Arizpe v. Hart Furniture Co., Tex.Civ.App., 72 S.W.2d 376; Coleman v. Hallum, Tex.Com.App., 232 S.W. 296; Robinson v. Brinson, 20 Tex. 438. It is also our view that N. L. Phillips does have a priority over his family, since the general rule is “ * * * that the law favors the first taker; that the first taker in a will is presumed to be the favorite of the testator * * * ” 57 Amer. Jur. 873, Wills, Sec. 1320.

The burden of proof was on ap-pellee to prove testamentary capacity on the part of the testator at the time the will was written. The will is not dated. A number of witnesses, however, testified that during the years they had known the testator they had never known him to be irrational or intoxicated to the point he didn’t know what he was doing, or known him to be incapable of understanding what a will was, and the nature and extent of his property. There was no evidence to the contrary. It is our view that there was sufficient circumstantial evidence with respect to testamentary capacity from which a jury might have found that the same existed when the will was written and signed. The Texas Probate Code does not require that a holographic will be dated, although in a number of states it is required by statute that such will be dated in the handwriting of the testator. Re Irvine, 1943, 114 Mont. 577, 139 P.2d 489, 147 A.L.R. 882, and annotation thereunder at p. 898. It has been held in Texas that a holographic will need not be dated. 61 Tex.Jur. 225, Wills, Sec. 107; Price v. Taliaferro, Tex.Civ.App., 254 S.W.2d 157, writ ref., n. r. e.; Kramer v. Crout, 1955, Tex.Civ.App., 279 S.W.2d 932, writ ref., n. r. e. In the instant case it is a logical assumption that the will was made at some time after the deceased met and became acquainted with N. L. Phillips and his family. Phillips testified that he had known the testator for approximately six years. There is testimony that Mr. Gunn had testamentary capacity during a period greater than six years prior to his death. Furthermore, the testator states in the purported will that his signature may be verified at the bank. He does not state at what bank, and there is nothing in the record to show what bank he had in mind. On a new trial it might be established that he did business with only one bank and also the date when he began such business. It could be assumed quite logically that the will was executed after he had begun doing business with such bank.

It is our view there was no error on the part of the court in permitting Clifford Phillips, who was not a party to the suit, to testify as to transactions with the deceased and statements made by the deceased, over the objection that his testimony was within the inhibition of the so-called “Dead Man’s Statute”, Article 3716, Vernon’s Ann.Tex.Civ.St.

It will not be necessary to discuss appellants’ other assignments of error since they relate to matters that may not occur on another trial.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    Robert Ray GUNN, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7673.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.

      Cade & Bowlin, Lubbock, David A. Mac-laughlin, Lubbock, of counsel, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. City Attys., Lubbock, for appellee.
   CHAPMAN, Justice.

This is a driver’s license suspension case. The Lubbock Corporation Court made an affirmative finding that appellant, Robert Ray Gunn, was an habitual violator of the traffic law as defined in Article 6687b, Section 22(b) 4, Vernon’s Ann. Texas Revised Civil Statutes. Appellee, Texas Department of Public Safety, then suspended Gunn’s license for a period of six months. Gunn appealed to the Lubbock County Court at Law No. 1 in accordance with Article 6687b, Section 22(c).

Motion for summary judgment was filed by the Department based upon the pleadings on file, the affidavit of the Deputy Custodian of Driver Records of the Driver and Vehicle Records Division, Texas Department of Public Safety, and four abstracts of convictions showing on the face of each the name of the violator, the number of each cause, the ticket number, the license number, the vehicle registration number, the offense of speeding, the date of each conviction, the plea to the charge, and the signature of the magistrate certifying the correctness thereof.

The affidavit of the Deputy Custodian swore that upon his personal knowledge:

“ * * * that the operating record of ROBERT RAY GUNN the holder of Texas Commercial Operator’s License No. 3892700 shows convictions for the following moving violations, of the traffic laws of the State of Texas "or its political subdivisions, said moving violations having occurred on or about the dates indicated:
6-01-65 Speeding Lubbock, Texas
7-30-65 Speeding Lubbock, Texas
8-10-65 Speeding Lubbock, Texas
10-27-65 Speeding Lubbock, Texas
“That Judgments of conviction have been entered against the said ROBERT RAY GUNN for the aforementioned moving violations, all of which are evidenced by Notices of Conviction certified to the Department of Public Safety by the convicting courts in accordance with the law.
“That each of the Notices of Conviction reflect that the said ROBERT RAY GUNN was assessed and paid a fine and/or costs for the moving violation shown therein.
“That the said four (4) moving violations arose out of different transactions in a consecutive period of twelve (12) months.”

The motion for summary judgment was filed on March 23, 1966, and on the next day the judge of the County Court at Law No. 1 set the hearing on the motion for April 11, 1966. The record before us shows no summary judgment component filed in response to the Department’s motion, affidavit, and attachments thereto showing four convictions for moving violations “ * * * arising out of different transactions within a consecutive period of twelve (12) months.” The only instrument shown in the record to have been filed by appellant is his suit in the County Court asserting his unwillingness to abide by the suspension, filed by the attorney of record for appellant. No summary judgment component is shown in the record in reply to the motion and summary judgment components filed by the Department, nor any instrument justifying his inability to do so. Evidentiary data of some kind is required. Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).

A summary judgment is proper in a case of this nature when no material issues have been raised in the summary judgment proceeding. Cooley v. Texas Department of Public Safety, 348 S.W.2d 267 (Tex.Civ.App.-Forth Worth, 1961).

The notices or abstracts of judgments are evidence of the matters stated therein. Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.1964).

Such notices or abstracts of judgment being in proper form, attached to the affidavit of the Deputy Custodian and showing four moving traffic violations of appellant within the period above stated under Article 6687b, Section 22(b) 4, they will support a motion for summary judgment in the absence of proper summary judgment evidence raising a fact issue. Smith v. Texas Department of Public Safety, 352 S.W.2d 958. (Tex.Civ.App.-Fort Worth, 1962).

Accordingly, the judgment of the trial court is affirmed.


text:
    CARL COIFFURE, INC., Appellant, v. Rosendo MOURLOT, Appellee.
    No. 14937.
    Court of Civil Appeals of Texas. Houston.
    Dec. 22, 1966.
    Rehearing Denied Jan. 12, 1967.

      Alvin M. Owsley, Jr., R. Gordon Gooch, Sam G. Croom, Jr., Thad T. Hutcheson, Jr., Houston, attorneys; Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Joseph D. Jamail, John Gano, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from an order of the trial court denying appellant, Carl Coiffure, Inc., a temporary injunction in a suit brought by it to enjoin its former employee, Rosendo Mourlot, from violating the restrictive covenants in an employment contract that was entered into by the parties on April 21, 1964.

In said employment contract appellant agreed to employ appellee for a period of one year from and after the date of such contract, subject to prior termination or extension of employment as provided therein. The contract sets out the duties of appellee as a hair stylist trainee, hair stylist and cosmetician and the compensation that he would receive. On or about May 25, 1966, appellee ceased to work for appellant and let it be known that he was in the process of opening up a competing ladies’ hair dressing establishment. The employment contract contains the following restrictive covenants:

“4. Restrictive Covenants: Employee agrees that during the period of Employee’s employment with Company and for one year thereafter (a) Employee will not directly or indirectly engage in, or become associated with or employed by any individual, firm, corporation or other organization engaged in any business operations within a radius of ten (10) miles from any Beauty Salon of Company in Harris County, Texas, in competition with or substantially similar to those of the Company, (b) Employee will not communicate or divulge, to or for the benefit of any competitor or rival of the Company, any of the trade secrets or processes of beauty culture used by the Company, and (c) Employee will not solicit or divert, or attempt to solicit or divert, any business or patronage from the Company to a competitor or rival of the Company.”

The contract provides for injunctive relief in the event the employee should violate any of the restrictive covenants and also provides:

“6. Term: This Agreement shall continue for a term of one year and indefinitely thereafter, provided, however, that if during such period Employee shall fail to perform the duties described in paragraph 2 or shall breach or violate any covenant contained in paragraph 4, the employment of Employee shall immediately terminate upon notice thereof by the Company, and provided further that this Agreement may be terminated by either party hereto without cause upon giving ten (10) days notice to the other party.”

On the temporary injunction hearing appellant called as a witness one Calvin E. Hubert, but was not permitted to interrogate him, since the court upon examining the employment contract stated: “We don’t need to hear any evidence, this contract provides that it may be terminated by either party hereto without any cause upon giving ten days’ notice to the other party. This is also a unilateral contract, and it is without consideration, and the temporary injunction is denied.”

Thus, the court entered judgment against appellant on the grounds stated by him without any evidence being adduced during the hearing other than the employment agreement, although appellant in its sworn pleading, to which no answer was filed, had alleged violations by appellee of the negative restrictive covenants contained in paragraph 4 of said contract, and was apparently prepared to introduce evidence in support of the allegations of its petition.

It is appellee’s contention that the court properly refused the temporary injunction because appellee would be unable to show a probable right of recovery or irreparable injury since the agreement provided that it may be terminated by either party without cause upon giving ten days’ notice to the other party. Appellee further asserts that in the cases relied upon by appellant in which an injunction was granted the contract of employment did not provide that it might be terminated by either party upon giving the required notice, but instead provided that the employment could be terminated by either party upon giving notice. Thus appellee undertakes to distinguish between a contract permitting termination of the employment and a contract permitting termination of the employment agreement entered into upon the giving of notice by either party to the other. It will be noted that in paragraph 1 of the agreement the contract provides for the employment of appellee for one year “subject to prior termination or extension of employment as hereinafter set forth.” (Emphasis added.) It will also be noted that in paragraph 6 of the agreement upon which appellee relies, it is provided that if the employee breached or violated “any covenant contained in paragraph 4, the employment of Employee shall immediately terminate * * *.” It seems probable that the provisions with respect to ten days’ notice contained in the same sentence of the agreement had reference to the termination of the employee’s employment since the termination of the agreement would manifestly result in termination of the employment.

We are of the view that the trial court erred in denying the temporary injunction based upon the grounds stated by the court. In our opinion, the contract in question is a bilateral contract. In any event, the agreement is supported by a sufficient consideration in that the giving of employment was a valid consideration for the restrictive covenants not to compete. The right given to terminate the employment or the employment agreement by either party upon ten days’ notice to the other party did not destroy or contribute to a failure of consideration under the circumstances of this case. Incidentally, there is nothing in the record to show that appellee gave appellant ten days’ notice of his intention to terminate the employment contract or to terminate the employment.

The' courts of this State have in numerous cases enforced negative restrictive covenants not to compete when ancillary to employment involving trades or professions although such covenants may be in limited restraint of trade, provided they are reasonably limited as to duration and area. Patterson v. Crabb, Tex.Civ.App.1889, 51 S.W. 870, error dism.; John L. Bramlet & Co. v. Hunt (1963), Tex.Civ.App., 371, S.W.2d 787, writ ref., n. r. e.; McAnally v. Person (1933), Tex.Civ.App., 57 S.W.2d 945, writ ref.; Bettinger v. North Fort Worth Ice Co., Tex.Civ.App., 278 S.W. 466; Lewis v. Krueger, Hutchinson & Overton Clinic, 1954, 153 Tex. 363, 269 S.W.2d 798; Traweek v. Shields, Tex.Civ.App.1964, 380 S.W.2d 131; Wilson v. Century Papers, Inc., Tex.Civ.App.1965, 397 S.W.2d 314; Jennings v. Shepherd Laundries Co., Tex.Civ.App.1925, 276 S.W. 726, error dism.; Randolph v. Graham, Tex.Civ.App., 254 S.W. 402; 58 A.L.R. 168. There is no contention made in this case that the duration or area limitation is unreasonable.

In John L. Bramlet & Co. v. Hunt, supra, the restrictive covenant in the employment contract was enforceable although the contract provided in effect that the employment could be terminated for. any reason. In McAnally v. Person, supra, the court quoted from the opinion in Bettinger v. North Fort Worth Ice Co., supra, as follows: “One cannot successfully plead a want of consideration, or unilateralness, in a contract which he has performed in whole or in part.”

In Wilson v. Century Papers, Inc., supra, this Court held that a restrictive covenant was enforceable although the contract provided in effect that the employee would not for a period of two years after the date of such termination of his employment, however such termination might occur, engage in selling the products which during the course of his employment he had sold or distributed for the employer.

We have not found nor been cited to any Texas case in connection with the enforcement of negative restrictive covenants contained in an employment contract which undertakes to distinguish between enforceability of such covenants when the contract provides that the employment may be terminated at any time or upon a given notice, and where the employment agreement may be terminated upon one party giving notice to the other party. We see no reason why any such distinction should be made since the parties were contracting with respect to the employment and were concerned with the provisions relating to its termination. The provisions in the contract permitting termination by either party did not invalidate the contract. In 17 Am. Jur.2d, p. 972, Contracts, Section 498, it is stated:

“A provision frequently employed is one stating that the contract may be terminated after notice is given of intention to terminate and the lapse of a certain time thereafter. Such a provision is valid, and it is not necessary that a provision giving one party an option to terminate on substantial notice be supported by a consideration different from that supporting the entire agreement.”

In McAnally v. Person, supra, in which our Supreme Court refused a writ, the contract provided: “ * * * or should this agreement terminate, * * * then said employee hereby specially agrees that he will not for a period of three years after the severance — for any cause — of said employment ; [here follow the restrictive cove-ants] * * In Traweek v. Shields, supra, the pertinent provision of the employment contract reads in part: “6. As a part of the consideration for the execution hereof by Employer, the Employee agrees that he will not for a period of one year from the termination hereof (whether this agreement is terminated by Employer or Employee) engage or work in the selling [here follow the restrictive covenants] * * *.” It is thus seen that the courts in this State have not drawn the distinction which appellee seeks to make. The same thing is true in cases in other jurisdictions which our research has disclosed.

In Shain v. Washington Nat. Ins. Co., 8th Cir., 308 F.2d 611, 96 A.L.R.2d 265, it was held that a provision in an otherwise valid contract that either party may terminate it upon a specified days’ notice is valid. In Jewel Tea Co. v. Petersen (1916), 200 Ill.App. 157, the bill to enjoin the defendant from engaging in the same kind of business in violation of an employment contract, which did not allege rescission of the contract but alleged that in consideration of a certain sum paid by the claimant to the employee, and accepted by him, the contract of employment was terminated by agreement, was held by the court to mean that the defendant’s employment was mutually terminated but that the written agreement was not abrogated. The court affirmed the trial court’s order granting the injunction.

In Jennings v. Shepherd Laundries Co., supra, a restrictive covenant was enforced although the contract provided: “The term of service may be terminated on any day of any month by either party hereto giving the other not less than one week’s notice.” In Cantor v. Berkshire Life Ins. Co., 171 Ohio St. 405, 171 N.E.2d 518, the contract provided: “This agreement * * * may also be terminated by mutual consent, or by either party hereto upon giving the other party 30 days’ written notice of intention so to do.” The court held that although a contract may be terminated vested rights which have arisen under such contract are not, and cannot be destroyed by such termination.

In the instant case, appellee had worked for appellant for more than two years. It will be presumed that during this time he became acquainted with appellant’s methods of doing business, and gained important information concerning the operation of a beauty parlor and hair dressing establishment. It is our view that under these circumstances appellant was entitled to enforce the restrictive covenants for the period of one year after the employment terminated. The right to terminate the employment agreement upon ten days’ notice did not terminate the enforceability of the restrictive covenants, which had become a vested right in appellant.

The case of Granger v. Craven, 1924, 159 Minn. 296, 199 N.W. 10, is both pertinent and persuasive in that in such case the employment contract provided that the plaintiff had the right to terminate the contract on thirty days’ notice. The Court said:

“A secondary objection to the enforcement of the contract here in question is the claim that it is so inequitable that equity should not aid its enforcement. The main thing urged is that plaintiff had the right to terminate the contract on 30 days’ notice. It is a fairly complete answer to say that defendant had the same right. In this there was complete mutuality of privilege and right. But the controlling consideration against the argument of inequity, and alleged lack of consideration, is that, for over two years, defendant was employed by plaintiff under the contract. Each of them seems to have performed to the satisfaction of the other, at least until notice of termination was served.
“If plaintiff had taken undue advantage of his right to terminate the contract, it might very well be that he would have been refused an injunction to prevent defendant’s breach of the covenant here considered. But after performance of the contract for two years, under such circumstances as' we have here, it is too late to urge want of equity in plaintiff’s case merely because he had a power of arbitrary termination which he did not abuse.”

The law is well settled that the granting or refusing of a temporary injunction is within the sound discretion of the trial court and the court’s action will not be disturbed on appeal unless it clearly appears that the court has abused its discretion. Harding v. W. L. Pearson & Co., Tex.Com.App.1932, 48 S.W.2d 964; Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 1952, 151 Tex. 239, 248 S.W.2d 460; Transport Co. of Texas v. Robertson Transports, Inc., 1953, 152 Tex. 551, 261 S.W.2d 549; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, error ref., n. r. e.

The law is equally well settled that if the facts are undisputed and only questions of law are presented, the trial court is required to correctly apply the law to such conceded or undisputed facts. If the court fails to do so, it would be an abuse of the court’s discretion. 31 Tex.Jur.2d, § 224, p. 349; Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; Dallas General Drivers, etc. v. Wamix, Inc., of Dallas, 156 Tex. 408, 295 S.W.2d 873; John L. Bramlet & Company v. Hunt, Tex.Civ.App., 371 S.W.2d 787, writ ref., n. r. e.; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Denny v. Roth, 1956, Tex.Civ.App., 296 S.W.2d 944, writ ref. In the instant case there is a valid contract, and a verified pleading alleging violations of the restrictive covenants therein. Under these circumstances it is our view that the court abused its discretion in refusing to permit appellant to adduce evidence showing violations of the restrictive covenants, and in denying the temporary injunction on the grounds stated by the court.

Judgment reversed and remanded.


author: DIXON, Chief Justice.

text:
    Jack O’BENAR, Appellant, v. Juanita O’BENAR, Appellee.
    No. 16828.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1966.
    Rehearing Denied Dec. 23, 1966.

      Yale B. Griffis, Dallas, for appellant.
    Palmer, Green, Palmer & Burke, Philip I. Palmer, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Juanita O’Benar brought suit to dissolve a common law marriage and for division of property. Appellant Jack O’Benar has appealed from a judgment in appellee’s favor.

The trial began before a jury, but before the cross-examination of appellee had been concluded the parties informed the court that they had agreed on a property settlement, that appellant desired to withdraw his objections to the divorce and that they desired to waive trial by jury so that the court might pass on the facts as well as the law.

The court thereafter rendered judgment for divorce and for a division of property; pursuant to an agreement entered into by the parties themselves in open court.

In his first point on appeal appellant complains that the court erred in overruling his exception to that portion of appellee’s petition wherein appellee sued for $15,000 damages in tort because of fraud. There is nothing in the record to show that such exception was ever acted on by the court, or even brought to the attention of the court. Therefore under Rule 90, Vernon’s Texas Rules of Civil Procedure, the exception was waived. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Marshall v. Huron, Tex.Civ.App., 274 S.W.2d 572 (no writ hist.); Webb v. Mitchell, Tex.Civ.App., 371 S.W.2d 754, 761 (no writ hist.); Smith v. Pulliam, Inc., Tex.Civ.App., 388 S.W.2d 329 (ref. n. r. e., 394 S.W.2d 791). Anyway, the court’s judgment made no award of any such damages so the tort allegations, even if we were to say that they were improper, must be regarded as harmless under Rule 434, T.R.C.P. Appellant’s first point is overruled.

In his second to ninth points inclusive and his twelfth and thirteenth points appellant attacks the divorce judgment on a number of grounds which in substance are as follows : (1) the court undertook to dissolve a common law marriage which began in the State of Illinois, where by statute it was void; (2) after coming to Texas there was never any agreement between the parties to live together as husband and wife, or any holding out by them as such; (3) it was error to introduce various letters, bills, invoices, contracts, etc.; (4) the evidence showed appellant had continued to reside in Illinois, therefore he could not have agreed to a common law marriage in Texas; (5) there was not full and satisfactory evidence to prove cruel treatment as required by Art. 4629, Vernon’s Ann.Civ.St.; and (6) the court failed to find expressly as a fact that the parties held themselves out as husband and wife.

There is no merit in any of the above points. There is evidence in the record that the parties did live together in Illinois beginning in 1947 purportedly as common law spouses; and common law marriages are not recognized in Illinois. However, in 1951 appellee broke off that relationship, returned to Texas, resumed her maiden name, bought a home and obtained employment. Some months later appellant followed her to Texas. The parties discussed their status and on April 15, 1952 in Texas entered into a new common law marriage agreement. Since common law marriages are recognized in Texas their new agreement was valid and the burden was on appellant to prove otherwise. Texas Employers’ Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371; Texas Employers’ Ins. Ass’n v. Gomez, Tex.Civ.App., 313 S.W.2d 956 (ref. n. r. e.).

There is also ample evidence that the parties cohabited as husband and wife and held themselves out as such from 1952 until 1964 when they separated. Numerous letters, contracts, bills, statements, joint bank accounts — more than fifty such documents — were introduced in evidence for the very purpose of showing that appellant and appellee did hold themselves out as husband and wife to social friends and business acquaintances. These documents were in the name' of “Mrs. Juanita O’Benar”, or “Mr. and Mrs. Jack O’Benar”, or “Jack O’Benar and wife”, and showed their residence at 330 Embrey Drive in Dallas, Texas.

There was also evidence of cruel treatment. Appellee testified that appellant falsely accused her of infidelity, spoke to her in an ugly way at times and at other times would not speak to her. She testified that on one occasion when she was critically ill in a hospital under heavy sedation, appellant caused her to sign deeds to him of her interest in their property under the false representations that the deeds were merely papers necessary to enable him to borrow $10,000 for a business project. We agree with the trial court that there was satisfactory evidence of cruel treatment. Alexander v. Alexander, Tex.Civ.App., 373 S.W.2d 800 (no writ hist.); Grimes v. Grimes, Tex.Civ.App., 365 S.W.2d 228 (no writ hist.) ; Fomby v. Fomby, Tex.Civ.App., 329 S.W.2d 111 (no writ hist.).

The court expressly found that the parties entered into a common law marriage agreement in Texas in 1952 and thereafter cohabited as husband and wife. The court failed to include the third element of a common law marriage: that the parties held themselves out as husband and wife. As we view the record the evidence was undisputed that the parties did hold themselves out as husband and wife, so it was unnecessary for the court to make such a finding. Smith v. Brown Express, Tex.Civ.App., 343 S.W.2d 550 (ref. n. r. e.); Donalson v. Horton, Tex.Civ.App., 256 S.W.2d 693, 697 (no writ hist.). Certainly we think that the record shows no prejudicial injury to appellant. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117; Wade v. Taylor, Tex.Civ.App., 228 S.W.2d 922 (no writ hist.); Wentz v. Hancock, Tex.Civ.App., 236 S.W.2d 175 (writ ref.). Furthermore, the court concluded that as a matter of law the common law marriage had been consummated in Texas. Since two of the elements of a common law marriage were expressly found by the court favorably to appellee we must presume that the third element was found by the court in such a way as to support the judgment. Rule 299, T.R.C.P.

The evidence supports a finding that appellant was a resident of Texas from 1952 until 1964. It is true that he made trips to Chicago where he still had a number of business interests which required his attention from time to time. But in 1955 he leased a business he owned in Chicago and thereafter spent most of his time in Texas, living with appellee in their home.

Appellee was the only witness and of course she was an interested witness. But appellant was present in court and chose not to testify. Under such circumstances appellee’s uncontradicted testimony as to the facts must be accepted as true. 56 Tex.Jur.2d 551. And the facts so established were held by the court to constitute cruel treatment.

In his tenth point on appeal appellant contends that the property settlement agreement on which the judgment is partially based was one in which the minds of the parties never met. Specifically appellant says that appellee’s attorney did not agree that the settlement agreement should contain these words, “ * * * that each party take nothing against the other except as herein provided.”

There is no merit to appellant’s tenth point. In oral argument before this court appellee’s attorney stated that at one time he did object to inclusion of the words above quoted. But on checking the court reporter’s notes of the agreement entered into by the parties themselves in open court he found that he had been mistaken, and thereupon consented for the transcribed agreement and the judgment to be signed by the court to contain the said words.

In any event the transcribed property settlement agreement and the judgment signed by the court both include the very words which appellant says they should include. The statement of facts shows that the court carefully questioned the appellant himself and the appellee herself to make sure that they fully understood the agreement and that they were asking the court to approve it. It is obvious that there was a complete meeting of the minds of the parties in reaching their property settlement agreement. Appellant’s tenth point is overruled.

In his eleventh point appellant asserts that the court erred in dividing the property because it was his separate property. This contention cannot be sustained. In the first place as above stated appellant and appellee in open court agreed to the property settlement and the court divided the property pursuant to their agreement and request. Their agreement and the court’s judgment were binding on them. Alexander v. Alexander, Tex.Civ.App., 373 S.W.2d 800, 804 (no writ hist.); DeLee v. Allied Finance Co. of Dallas, Tex.Civ.App., 408 S.W.2d 245. Furthermore, by entering into a consent judgment appellant waived all errors committed before the rendition of the judgment with reference to the property settlement. Toplitsky v. Toplitsky, Tex.Civ.App., 282 S.W.2d 254 (ref. n. r. e.). In. the second place the undisputed facts disclosed by the record bring this case within the holdings with reference to community property of Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405; Carter v. Grabeel, Tex.Civ.App., 341 S.W.2d 458 (no writ hist.); Dillard v. Dillard, Tex.Civ.App., 341 S.W.2d 668 (ref. n. r. e.); and Miller v. Pierce, Tex.Civ.App., 361 S.W.2d 623 (no writ hist.).

Appellant’s eleventh point is overruled.

The judgment of the trial court is

Affirmed.