author: WILLIAMS, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. TEXAS BANK & TRUST COMPANY OF DALLAS, Guardian, et al., Appellees.
    No. 16361.
    Court of Civil Appeals of Texas. Dallas.
    June 26, 1964.
    Rehearing Denied July 17, 1964.
    Johnson, Guthrie, White & Stanfield, Dallas, for appellant.
    William I. Lofland, Rockwall, and Brun-didge, Fountain, Elliott & Churchill, Dallas, for appellees.
   WILLIAMS, Justice.

This action was instituted by Texas Bank & Trust Company of Dallas, as Guardian of the Estates of Janet Marie Miller, Ella Sue Miller, Teresa D. Miller, and Joyce Diane Miller, the minor children of Walter Miller, deceased, and Blanche Miller. Named as defendants were Blanche Miller Lindley, individually and as Administratrix of the Estate of Walter Miller, deceased, J. P. Lindley, the present husband of Blanche Miller Lindley, United States Fidelity & Guaranty Company, being surety upon a $5,000 bond for Blanche Miller Lindley as administratrix of the Miller estate, and The First State Bank, Rockwall, Texas. Plaintiff sought to recover $2,500 claimed to have belonged to the guardianship estate and allegedly misappropriated by the Lindleys with the claimed knowledge of the Rockwall bank. United States Fidelity & Guaranty Company sought judgment over and against the Lindleys and the Rockwall bank in the event it was held liable on its bond to the plaintiff. Trial was had to the court, without a jury, and a judgment was rendered in favor of Texas Bank & Trust Company against Blanche Miller Lindley, individually and as Ad-ministratrix of the Estate of Walter Miller, deceased, J. P. Lindley, and United States Fidelity & Guaranty Company in the sum of $2,500, with interest and costs. United States Fidelity & Guaranty Company was given judgment over and against the Lind-leys but the court denied to Texas Bank & Trust Company and United States Fidelity & Guaranty Company any right to recover over and against The First State Bank, Rockwall, Texas. United States Fidelity & Guaranty Company, alone, has perfected this appeal complaining of that part of the judgment denying it recovery over against The First State Bank of Rockwall. Affirmed.

FACTS

The facts were stipulated. Walter Miller died July 19, 1955 and left surviving his wife, Blanche Miller, and the four minor children. Thereafter Blanche Miller married J. P. Lindley. On November 8, 1955, Blanche Miller Lindley was appointed executrix of the estate of Walter Miller, deceased, in the Probate Court of Dallas County, Texas and qualified by taking the oath and providing a $5,000 bond executed by United States Fidelity & Guaranty Company, as surety. In her application to be appointed administratrix, Blanche Miller Lindley recited that administration was necessary only to allow the collection of the proceeds of a national service life insurance policy from the Veterans Administration in the sum of $5,000, such policy not designating a beneficiary, and the government requiring the appointment of an administratrix in order to collect the proceeds of such policy. On or about August 27, 1957 the Veterans Administration delivered to Blanche Miller Lindley a check in the sum of $5,000 payable to “Blanche Miller Lindley, ADMIN OF THE ESTATE OF WALTER MILLER.” On August 27, 1957 Texas Bank & Trust Company of Dallas was appointed guardian of the estates of the four children, such order being from the County Court of Collin County, Texas. As guardian of the estates of said children, the Texas Bank & Trust Company of Dallas did not at any time receive any money from Blanche Miller Lindley, as administratrix of the estate of Walter Miller, deceased. One-half, or the sum of $2,500, of the proceeds of the check from the Veterans Administration belonged to the minor children. On August 29, 1957 Blanche Miller Lindley took the $5,000 check from the Veterans Administration to The First State Bank, Rockwall, Texas, where she received $100 in cash and placed the balance of $4,900 in her personal account in the name of Blanche C. Lindley. The check was endorsed “Blanche Miller Lindley.” The Rockwall bank made out a signature card authorizing both Blanche C. Lindley and J. P. Lindley to draw checks on the account. No other funds were ever deposited in this account. Thereafter, J. P. Lindley withdrew $2,933.40 from the account, evidenced by a large number of checks given to different payees; $650 was drawn out by both Blanche C. Lindley and J. P. Lindley, and Blanche C. Lindley withdrew $1,202.53. None of the proceeds of the $5,000 check was ever used for the benefit of the minor children and none was ever paid to the guardian. At the time Blanche Miller Lindley opened the account at the Rockwall bank she was waited on by Odis A. Lowe, Jr., President of the bank, who testified that he had only met Mrs. Lindley a few days prior to August 29, 1957. He did not know at that time that Mrs. Lindley had minor children. He said he asked Mrs. Lindley whether or not anyone else had an interest in the check tendered for deposit and she replied that it was her personal check and that she wanted it deposited in her name. He further testified that it was customary, in accounts dealing • with administrators, for surety companies making bonds for such administrators to present the bank with a copy of letters of administration from the court, along with a joint control agreement from the bonding company showing how the account is to be entitled and the authorized signatures on checks drawn against the account. However, in this case neither he nor the bank had any notice from any bonding company or anyone else with reference to a joint control agreement from a surety company.

OPINION

By its two points on appeal, briefed together, appellant contends that the trial court erred in refusing to grant to it a judgment over against The First State Bank, Rockwall, Texas, because the bank had knowledge that the $5,000 check made payable to Blanche Miller Lindley, as ad-ministratrix of the estate of Walter Miller, deceased, which it deposited to Blanche Miller Lindley’s private account, was trust money and it knowingly' assisted the fiduciary of such trust to breach it'by permitting J. P. Lindley, whom it knew to be a complete stranger to the trust, to check out a portion of such trust funds which he used for his own benefit.

Appellee, The First State Bank, Rock-wall, Texas, counters by contending: (1) That the bank was entitled to rely on the statement of its depositor that no one other than herself had any interest in the funds, and hence was not chargeable with knowledge that the fund in question was, in part, trust funds; and (2) that assuming, ar-guendo, that the account was partially trust funds, the fact that the husband of the depositor was authorized to check on the account does not constitute actual notice of misappropriation of the fund.

We cannot agree with appellant’s basic argument which is to the effect that because the check was payable to Mrs. Lindley as administratrix such fact placed the Rockwall bank on notice, as a matter of law, that the funds were trust funds, and that others had an interest in said trust fund, regardless of Mrs. Lindley’s statement to the contrary and that, possessed with such knowledge, the bank was obligated to make further inquiry as to the legal limitation placed upon the funds evidenced by the check. The fact that an instrument is payable to one as administrator or administratrix does not necessarily imply that someone other than the person named is interested in the funds evidenced by the instrument. A person may be an administrator or administratrix of an estate wherein the only person interested is such administrator or administratrix. This is illustrated by Mrs. Lindley’s application for appointment as executrix. Such is not the case in a guardianship where the very existence of such necessarily implies wards. The designation of one as “trustee” also carries with it the legal implication of others who are beneficiaries of the trust. In this case the Rockwall bank had every legal right to believe that Mrs. Lindley was the only beneficiary of the estate of Walter Miller, deceased.

Neither can we agree with appellant’s contention that the mere fact that Mrs. Lindley was made administratrix of the estate carries with it the implication of the necessity of administration and that she was appointed as a fiduciary by the probate court. It is a matter of common knowledge that the Federal Government will not issue a check for the proceeds of veterans’ life insurance to one not named as beneficiary in such policy without the appointment of an administrator or administratrix to receive same.

Even if it may be assumed that the Rockwall bank had knowledge, either actual or constructive, of any trust relationship existing by virtue of the appointment of Mrs. Lindley as administratrix of the estate of Walter Miller, deceased, yet such fact, alone, would not cast liability upon the bank by virtue of the action of Mrs. Lindley in withdrawing the funds for her own benefit. It is the law of this state that there is a presumption that a trustee or fiduciary will legally perform their functions.

The law was announced by our Supreme Court in Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., 127 Tex. 407, 93 S.W.2d 701, 106 A.L.R. 821, which involved a bill of exchange payable on its face to one in a trust capacity which was deposited in a bank in the individual account of the trustee and thereafter withdrawn. The question presented to the Supreme Court was whether the bank was liable for the loss of the funds to the true owner where the bank had received no part of the funds and had no actual knowledge that the funds were being checked to persons not entitled to receive them. In holding no liability on the part of the bank in that case Justice Critz said:

“In this connection, we think the great weight of and better authority is to the effect that it is not deemed a breach of trust, or such a suspicious circumstance, as to put a duty on the bank to investigate for a trustee to carry trust credits in his personal bank account, and this even though such fact is known to the bank. In this connection, it is generally held that the bank is entitled to believe that the trustee will check the trust credit out of his personal account for proper trust purposes. The main reasons for this rule are that to require the bank to investigate such transactions would put a burden on the bank for which it is not paid by the trust, and would clog the handling of commercial paper in a way that would be to the disadvantage generally of trust business, and also to business in general. 4 Bogert on Trusts and Trustees, § 908, p. 2632; American Law Institute, Restatement of the Law of Trusts, § 324d, pp. 966, 967; * *

In the case of Smith v. Commercial State Bank of Ranger, Tex.Civ.App., 157 S.W.2d 969, a guardianship was involved. There a guardian deposited proceeds of a check payable to the guardian in the guardian’s personal account and thereafter withdrew such funds. The court held that the fact that the checks were payable to a guardian constituted notice to the bank that the real ownership of the checks, and proceeds thereof, belonged to the wards. The court held, however, that such fact alone is not conclusive of the question of the bank’s liability for misappropriation of the funds by the guardian, citing Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., 127 Tex. 407, 93 S.W.2d 701, 106 A.L.R. 821.

We conclude from a review of the facts in this case, in the light of the above authorities, that the appellee Rockwall bank was not charged, as a matter of law, with knowledge that anyone else other than Mrs. Lindley had an interest in the proceeds of the check deposited in her individual name and account. Appellant in oral argument before this court, admits that the bank was under no legal duty to check the probate court records to determine the details of Mrs. Lindley’s appointment as administra-trix.

Appellant makes no attack on the implied findings of the trial court that the appellee Rockwall bank did not have knowledge of the trust character of a portion of the funds in controversy. Such implied finding of the trial court is amply supported by the evidence and must stand. Neither is there an attack on the implied finding of the trial court that the bank did not know that the portion of the deposit belonging to the minors was being misappropriated by either Mr. or Mrs. Lindley.

Inasmuch as this case was tried before the court without a jury, and no findings of fact or conclusions of law were requested and none were filed, the court’s judgment carries with it all implied findings of fact necessary to support the judgment. Upon our review of such judgment we are bound only to consider that evidence most favorable to the judgment and disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255. Having reviewed this record in the light of these authorities we find that the evidence supports the judgment in its implied findings that (1) Rockwall bank had no notice of any trust funds deposited in the personal account of Mrs. Lindley; (2) that if such funds were, in part, trust funds, the bank was entitled to rely upon the presumption that Mrs. Lindley, as administratrix, would properly account for disbursement of such funds; and (3) that the bank had no knowledge of any misappropriation or diversion of trust funds from the account, either as to Mrs. Lindley or Mr. Lindley. Appellant’s points are overruled.

The judgment of the trial court is affirmed.

Affirmed.

BATEMAN, J., not sitting.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    TEXGLASS, INC., Appellant, v. Paul D. SUHOVY, Individually and d/b/a Suhovy Machine Shop, Appellee.

      No. 16559.
    Court of Civil Appeals of Texas. Fort Worth.
    June 26, 1964.
    Rehearing Denied July 17, 1964.

      Allred & London, and Rene Allred, Jr., Bowie, for appellant.
    Anderson & Connell, and Jack Connell, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

The judgment below was in quantum meruit, entered for what would be the amount the defendant owed to plaintiff with credit given for the amount theretofore paid. The special issue answers, upon which judgment was rendered, were two in number. By the answer to the first was established a total amount the defendant was obligated to pay. By the answer to the second the amount already paid was found. No one complains of the second answer, nor of the manner by which the jury arrived thereat.

Complaint in two respects is made, however, to the first of the answers. The first premise of the complaint is that the jury deliberated upon the “remainder” owing to plaintiff (after it had arrived at the amount already paid) rather than upon the total amount owed plaintiff. The question asked was upon the matter of total amount owed. The second premise of complaint is that the “remainder” owing was improperly agreed upon, in that antecedent thereto the jury took a “straw vote” as to the consensus of their opinion of a proper amount, and then later agreed upon a figure which approximated the consensus of the “straw vote”. Eventually the jury added their finding of the “remainder” to the amount found in answer to the second of the special issues. The total sum resulting was then returned as the jury’s answer to the first special issue. Such answer conformed to the question.

That the foregoing is what occurred is either positively established by the record made on the motion for new trial on the ground of jury misconduct, or, alternatively, was what the trial court was entitled to and undoubtedly did conclude as having occurred.

There was no error in the trial court’s action overruling the defendant’s motion for new trial. The circumstances fall short of showing any misconduct on the part of the jury. The jury’s verdict was a correct one which was properly agreed upon and returned.

It was obvious to the jury that if they should first arrive at the figure which the plaintiff had been paid (it being undisputed that defendant had paid him some amount), as it did do in answer to the second special issue, the actual question it was required to decide was the amount, if any, the plaintiff should receive in addition thereto. This question it did decide, after which, in order to make the answer to the first special issue conform to the question presented, it added the additional amount found to be owing to the amount found to have been paid with the sum of the two figures entered as the answer.

If the ultimate answer may be arrived at in terms of numbers there is no impropriety in a “piecemeal” calculation, where individual sums are determined as to parcels or the value thereof, with the individual sums added together to determine the whole sum the jury is required to return as its answer. There being no showing that the jury designedly attempted to frame its answer so as to accomplish any improper result there was no error. There is no requirement that the jury answer issues in numerical order.

As to the matter of the jury’s having taken a “straw vote” to determine a “working basis” for discussion in the deliberations upon the question of the amount, if any, it desired to award plaintiff in addition to what he had already received, there was no agreement to be bound' beforehand by the result of such proceedings. That is the test to be applied in determining reversible error. Missouri K. & T. Ry. Co. of Texas v. Hawkins, 50 Tex.Civ.App. 128, 109 S.W. 221 (C.C.A., Texas, 1908, error refused). Where there is no such agreement there is no reversible error. Waggoman v. Fort Worth Well Machinery & Supply Co., 124 Tex. 325, 76 S.W.2d 1005 (1934); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932); Karotkin Furniture Co. v. Decker, 32 S.W.2d 703, 707 (San Antonio Civ.App., 1930), affirmed at 50 S.W.2d 795 (Tex.Com.App., 1932). There was no such agreement in this case.

Judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Alta Harris TISCHMACHER et vir, Appellants, v. L. C. DAUGHERTY, Appellee.
    No. 7568.
    Court of Civil Appeals of Texas. Texarkana.
    May 12, 1964.
    Leighton Cornett, Paris, for appellants.
    Thompson & Greer, Paris, for appellee.
   CHADICK, Chief Justice.

This is a suit to recover the unrefunded balance of a sum of money placed in escrow with a broker in a real estate transaction. The summary judgment rendered against the broker in the county court is reversed and the case is remanded for trial on its merits.

L. C. Daugherty, a resident of Garland, Dallas County, listed a 284 acre tract of land located in Lamar County with Mrs. Alta Harris Tischmacher, a licensed real estate broker. Thereafter Daugherty was advised that a buyer for his land had been secured and was requested to place $1,000-00 as earnest money in the hands of Mrs. Tischmacher. No sale was consummated. Still later after correspondence, telephone conversations and perhaps other exchanges between the parties to the listing, $502.00 of the escrow money was returned.

Mr. Daugherty filed suit against Mrs. Tischmacher in the County Court of Lamar County to recover the $500.00 balance, interest and attorney fees. He made no allegation of specific provisions of the contract binding the parties, but appears to have based his suit upon a money had and received theory. Mrs. Tischmacher included in her amended answer the following allegation:

“As a result of securing a purchaser for this property, plaintiff became indebted to defendant in the amount of One Thousand Two Hundred Twenty-Five and No/100 ($1,225.00) Dollars, the agreed amount of real estate fee for securing a purchaser. Defendant alleges that plaintiff owes her an additional amount of Seven Hundred Twenty-Five and No/100 ($725.00) Dollars, representing the balance due and owing to her as a result of this service.”

In support of his motion for summary judgment Mr. Daugherty’s affidavit states that he listed his land with Mrs. Tisch-macher and signed a document authorizing her to sell it, but that he did not receive a copy of the written document, and did not know its exact contents. After detailing his version of the transaction between them, the last paragraph of his affidavit recognizes by implication that an issue between them is whether or not the broker secured a ready, able and willing buyer for his land, when he says:

“The defendant has never at any time produced any contract signed by a purchaser for my 284 acres of land and has never at any time produced anyone ready, willing, and able to purchase my property for the sum of $26,500.00, which was my asking price.”

Mrs. Tischmacher’s affidavit filed in opposition to the Daugherty motion for summary judgment states:

“After plaintiff listed this property with me for sale, * * * Mr. and Mrs. J. G. Hogue, of Ralls, Texas, looked at this property several times and then informed me that they were ready, able and willing to buy this property at the price quoted by plaintiff. At the time that I notified plaintiff of this purchaser, he informed me that he no longer desired to sell this property.
“ * * * I did secure a purchaser who was ready, able and willing to buy this land at a price of Twenty-five Thousand Seven Hundred Twenty and No/100 (25,720.00) Dollars, which was the price Mr. Daugherty was asking, I am entitled to a commission for this service in the amount of One Thousand Two Hundred Twenty-Five ($1,225.00) Dollars. I now have in my possession Five Hundred and No/100 ($500.00) Dollars paid by plaintiff, leaving a balance due and owing me of Seven Hundred Twenty-Five and No/100 ($725.-00) Dollars as a result of my services rendered to him in this matter.”

The pleadings of the parties raised two issues of fact. The first is whether or not the broker secured a ready, able and willing buyer. And second, whether or not the seller contracted to pay the broker a commission upon production of a ready, able and willing buyer. The evidence in the parties’ affidavits quoted above shows that the testimony bearing upon these issues is contradictory. When there is disagreement in the evidence establishing the factual basis of controlling issues, as here, a summary judgment should not be entered. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233; Neigut v. McFadden, Tex.Civ.App., 257 S.W.2d 864, Rule 166-A, V.A.T.R. The case will be remanded to the trial court for determination upon its merits.


author: MOORE, Justice.

text:
    W. E. GRAY et al., Appellants, v. Jimmy BIRD et al., Appellees.
    No. 38.
    Court of Civil Appeals of Texas. Tyler.
    June 18, 1964.
    Rehearing Denied July 16, 1964.

      A. J. Thompson, Thompson & Stripling, Nacogdoches, Luther C. Johnston, Palestine, for appellants.
    Swaim & Swaim, Eden, B. R. Reeves, John B. McDonald, Palestine, Thomas Black, Black & Stayton, Austin, for appel-lees.
   MOORE, Justice.

This is a plenary or independent suit originally brought in the County Court of Anderson County to set aside a judgment of that court theretofore entered probating the will of Cora E. Strong. Under the terms of the will, Cora E. Strong, bequeathed all of her property to her six living brothers and sisters, to-wit: Flora Gray Day, Emma Gray Rhodes, W. E. Gray, Pearl Elliott, Iva May Bishop and B. F. Gray, share and share alike, and further provided that should either of her brothers or sisters predecease her that their share would not lapse but would pass to their descendants. Testatrix had two other sisters, who died many years before the execution of the will. The surviving children of these two sisters are the plaintiffs in this suit. Plaintiffs, Jimmy Bird and Mary K. Beach, are the surviving children of testatrix’s sister, Henrietta Gray Bird, who died in 1939, and plaintiff, Emsy Lorinne Long, is the surviving child of testatrix’s sister, Lorinne Gray Swain, who died in 1921. Defendants are the six living brothers and sisters of testatrix, named above. Plaintiffs allege lack of testamentary capacity and undue influence as grounds for contesting the validity of the will. After a hearing, the County Court entered judgment upholding the validity of the will. Thereupon, plaintiffs duly perfected their appeal to the District Court of Anderson County, Texas, and, after a hearing the court sitting without a jury entered judgment setting aside the probate of the will because of the lack of testamentary capacity. The defendants duly excepted to the judgment of the court and have perfected this appeal.

The records show that the will was executed on the 19th day of February, 1953, and that Cora E. Strong died on the 21st day of March, 1959, approximately six years after the execution of the will, at the age of 76 years.

The record in this case is voluminous. The statement of facts, consisting of 672 pages, contains the testimony of eight lay witnesses and two medical witnesses called by plaintiffs, as well as the testimony of sixteen lay witnesses called by the defendants. Practically all of the testimony relates to the testamentary capacity of the testatrix. No useful purpose would be served in reviewing the testimony of each witness individually. A cumulative summary of the testimony of the lay witnesses introduced by the plaintiffs shows that prior to the year 1945 Mrs. Strong was a very active woman in both business and social affairs and was in every respect a brilliant lady; that commencing in about 1945 she began to suffer with lapses of memory; was at times unable to recognize or call the names of some of her closest neighbors and friends; was unable to remember her deceased husband or to remember his name. In conducting her insurance business she attempted to collect premiums from those who had not purchased a policy; she was unable to remember the directions to her home; and was, in the opinion of the witnesses, mentally confused, unable to transact business, and was of unsound mind. Although none of these witnesses purported to have seen testatrix on the day of the execution of the will, the cumulative effect of their testimony shows that such condition existed between the years 1945 until 1954. The testimony of Doctor Fred Felder, a physician in Palestine, Texas called by the plaintiffs, shows that he commenced treating Mrs. Strong in 1945, treating her several times a year thereafter. That she came to him with numerous ailments and complaints of fatigue and nervous tension; that by March, 1950, she had begun to worry about her health to such an extent that he classified her as a hypochondriac. That in March, 1951, she complained of her head; of having a poor memory and not having any mind; that she continued to visit him periodically, complaining of fatigue, mental confusion, and loss of memory; that later that month he sent her to Doctor Titus Harris, a psychiatrist in Galveston, because he had come to suspect arteriolosclerosis, which was affecting her mental condition. That after her return, and after having received a report from Doctor Harris, he concluded that she was affected with an arteriolosclerotic degeneration of the brain which, in his opinion, commenced in 1950; that the effects of such a disease had caused a wasting away of the brain, resulting in a loss of memory; and that the disease was such that it could not be arrested or controlled but progressively grows worse; that in his opinion she was of unsound mind in March, 1951, at the time he sent her to Doctor Harris, and that although he had not seen her since June 18, 1952, he was of the opinion that she continued to be a person of unsound mind until on or about February 19, 1953, the date on which she executed her last will.

The testimony of Doctor Harris was introduced by plaintiffs by way of a deposition, it being the same deposition used in the hearing' theretofore conducted before the County Court. He testified that he was a psychiatrist, having practiced such profession since 1919, during which time he had been associated with the University of Texas Medical Branch Hospital in Galveston; that after treating Mrs. Strong from March 28, 1951, to April 4, 1951, he diagnosed her case as cerebral arterio-losclerosis, which is a hardening of the arteries of the brain, causing mental deterioration which, as a general rule, progressively becomes worse; that he found her to be absent minded and to have lapses of memory; that her judgment for the transaction of business had become affected and that in his opinion she was unable to transact any business at that time and he would not expect her to be able to do so in the future and he recommended custodial care.

Plaintiffs introduced the deposition testimony of Doctor B. W. Cochran, it being the same deposition used by the plaintiffs in the hearing before the County Court. He testified that he was a neurosurgeon and psychiatrist in Beaumont, Texas; that he examined and prescribed medication for Mrs. Strong on the 21st of February, 1952, at the request of Doctor Sam Barnes, her physician in Trinity, Texas. He testified that he saw her only one time and diagnosed her case as cerebral arteriolosclerosis; that at that time her judgment and memory was definitely impaired; that she had lapses of memory, difficulty in evaluating time and remembering dates; that her case was advanced and that her ability to transact business was impaired and that “in lay terms” she could be described as having an unsound mind. He recommended a legal guardian be appointed and that she have custodial care and assistance in handling her business.

A cumulative summary of the testimony of the fifteen lay witnesses introduced by the defendants shows all of them to have been friends and neighbors of Mrs. Strong of many years’ Standing, some of whom were related to her by blood or marriage; they all testified that they were of the opinion that Mrs. Strong was of sound mind throughout her life. Many of these witnesses testified that they had had business dealings with her through the year 1954 and she seemed to be normal in every respect, driving her automobile, issuing checks upon her bank account to cover her purchases for newspapers, cosmetics, hair dressing, and making donations to the school and church.

The testimony of Ernest Swift, the attorney who prepared the will, a witness called by defendants, shows that he had not known Mrs. Strong or any of her family prior to the time that she came to his office and requested him to prepare the will, that he talked to her about ten or fifteen minutes and she gave him the names of the devisees and instructed him with regard to the preparation of the will; that he did not remember as to whether or not she had the names of the devisees written on a piece of paper or whether he prepared the will while she was in the office or whether he prepared it and instructed her to return later for the execution thereof; that after the will was executed he never saw her thereafter except perhaps on the streets; that at the time she executed the will he was of the opinion that she was of sound mind. Mrs. Bina Bird, one of the witnesses to the will, and a witness introduced by defendants, testified that she did not know Mrs. Strong nor was she related to any member of the family; that when she witnessed the will she was with Mrs. Strong only briefly. In reply to a question propounded by defendants’ attorney, she stated that she was not able to say whether or not testatrix was capable of making a will.

For the purpose of showing testamentary capacity defendants introduced nine legal instruments in the nature of deeds and oil and gas leases which were shown to have been executed by testatrix on July 8, 1953, August 27, 1953, January 18, 1954, February 20, 1954, April 29, 1955, and August 26, 1955.

The record reflects that testatrix was declared to be a person of unsound mind by the County Court of Trinity County on April 2, 1956, and that her sister, Pearl Gray Elliott, one of the devisees under the will, was appointed as her guardian. -

The record is before us without findings of fact and conclusions of law, although the judgment does reflect that the court found that testatrix was of unsound mind and did not have testamentary capacity.

Appellants’ first point complains of the action of the trial court in admitting and considering as evidence the depositions of Doctors Harris and Cochran, contending that such depositions which were used in the trial in the County Court were not admissible in the trial on appeal in the District Court, because the trial in the District Court is by a trial de novo and hence the depositions taken and used in the County Court were in a different proceeding and were therefore not admissible. In other words, defendants claim that, although the depositions might have been perfectly good in the County Court, yet upon appeal to the District Court, Section 2S of the Probate Code, V.A.T.S., providing that all trials upon appeal shall be de novo, the depositions became of no effect and if plaintiffs desired the testimony of Doctors Harris and Cochran in the District Court they should have been called in person, or another deposition taken. The question raised will depend upon whether the trial de novo appeal is to be considered a new and independent suit or whether it is the same suit or proceeding as that in the lower court. We are of the opinion that upon appeal to the District Court, the case does not become a new suit, but is only a continuation of the original inquiry commenced in the County Court. Upon such appeal, only the issues involved in the lower court can be tried de novo, which is to say the case must remain in the District Court the same suit it was in the County Court. Pierce v. Foreign Mission Board, Tex.Com.App., 235 S.W. 552. Under the provisions of Rule 336, V.A.T.S., the appellant, upon written direction to the County Clerk, can require all “matters which he deems necessary to a review of the County Court ruling” to be included in the transcript to be sent up on appeal. The County Judge is authorized to order original papers or exhibits sent up either in lieu of the transcript or in connection therewith, and the District Court may by like order direct the Clerk to send it any original paper or exhibit deemed necessary for review. We think this rule though not specifically authorizing the use of depositions on the appeals, at least contemplates their use. We fail to see how it would serve any useful purpose to require the litigants to again take the same depositions covering the same subject matters in an appeal involving the same parties and issues as those involved in the County Court and therefore find no error in the ruling by the District Court permitting the use thereof on appeal. Although the precise question has never been before the courts of this state, the following authorities cited in appellees’ brief support this conclusion. Florence Oil & Refg. Co. v. Reeves, 13 Colo.App. 95, 56 P. 674; In re Arrowsmith’s Estate, 206 Ill. 352, 69 N.E. 77. Appellants’ first point is overruled.

By point two appellants contend the court was in error in admitting and considering the opinion testimony of Doctor Harris concerning testatrix’s mental capacity, because his opinion was based upon a history given to Doctor Sedbury by testatrix’s brother, W. E. Gray, and sister, Mrs. Pearl Elliott and that since the history was not given directly to Doctor Harris, his opinion based thereon would be hearsay. Appellants further contend that the opinion of Doctor Harris was not admissible because it is based upon statements made by two of devisees under the will and would therefore be testimony which would violate Article 3716, Vernon’s Ann.Texas St., known as the Dead Man’s Statute.

The history referred to as being recorded by Doctor Sedbury was not made a part of the record before us. Not being apprised of the contents of the alleged statements, we are in no position to determine that the statements so made amounted to hearsay or a violation of the Dead Man’s Statute. To hold that if such records had been offered, they would have tended to sustain the objection made to Doctor Harris’ testimony, would be a mere speculation. Norris v. Lancaster, Tex.Com.App., 280 S.W. 574. But even if we assume that such statements were hearsay and further assume the doctor based his opinion to some extent upon hearsay, the testimony shows that testatrix was under Doctor Harris’ observation and treatment for a period of seven days. His testimony further shows that he based his opinion upon his own personal knowledge, as well as the history which is said to be hearsay. Under these circumstances, we think the trial court was correct in overruling the objection to his opinion testimony, because it was clearly not based wholly upon hearsay. The rule undoubtedly is that, where it appears a witness’ testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible. On the other hand, if the testimony of the witness is based wholly upon hearsay it is not admissible. A consideration of all of the testimony of Doctor Harris clearly shows that he did not base his opinion wholly upon hearsay, therefore, we think it is a question of the weight to be given such testimony, rather than a question of its admissibility. Norris v. Lancaster, supra; Schooler v. State, Tex.Civ.App., 175 S.W.2d 664.

We overrule appellants’ contention that the opinion testimony of Doctor Harris was inadmissible because it violates Article 3716, V.A.T.S. As pointed out before, the statements made to Doctor Sedbury by the devisees are not to be found in the record. Therefore, even though we assume that Article 3716 might in some manner be applicable, not being apprised as to the contents or nature of the statements, we would be at a complete loss to say whether or not there was any error in the ruling of the court on this point.

By point three appellants contend that the trial court erred in allowing Doctor Fred E. Felder to give his opinion as to the mental condition of testatrix, because his opinion was based upon a letter he received from Doctor Harris on March 5, 1951, containing a diagnosis of a cerebral arteriolosclerosis, hence such opinion, appellant alleges, was founded upon hearsay. Although Doctor Felder testified that the letter which he received from Doctor Harris “had an effect upon my thinking,” he testified that it only corroborated his findings. He further testified that prior to the time he referred testatrix to Doctor Harris that he had already concluded that she was suffering with arteriolosclerosis which affected her mental processes. Considering all of his testimony, it is apparent that he meant to testify, and did testify, that he was basing his testimony upon his own personal knowledge. Even though it be conceded that Doctor Felder’s opinion was partly based upon Doctor Harris’ diagnosis, we hold that the trial court did not commit error in admitting this testimony, because opinion testimony based in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession is now recognized as being admissible. Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637; Schooler v. State, supra.

In point four appellants complain of the action of the court in admitting into evidence over their objection a letter written by Mrs. Pearl Elliott, one of the devisees, to Doctor Fred Felder, concerning testatrix’s general health and expressing some doubt as to the reliability of her memory, contending that the admission of such letter was prohibited by the provisions of Article 3716, V.A.T.S., and was hearsay.

The letter reads as follows:

“Trinity, Texas, April 16th, 1951. Dear Dr. Felder:
“Mrs. Strong is very eager to see you. She thinks you can take care of the situation, and whatever you advise her to do, she will do just that.
“Dr. Felder, I am sure that you have heard from Dr. Harris. They told me that when I went down to Mrs. Strong that she should not live alone, so that is why I thought she should stay here. Confidentially, the three families do not get along very well. Naturally, she wants to go home, and I told her I would take her up for a day, but at this time both families have the flu. Mrs. Strong isn’t well at all. She eats well enough, sleeps fair, I think, but has no interest in many things. Sits and reads most all the time and talks very little.
“Please don’t mention me writing you. However, I’d like for you to tell her in my presence what you want her to do, for she will probably not remember all you tell her. However, I want you to be fair to her, and I know you will do this.
“Very truly yours, Mrs. Elliott.”

Mrs. Elliott did not testify in the case. As will be noted, the letter was written before the execution of the will and hence before Mrs. Elliott was possessed of any interest under it. We believe the letter was inadmissible for the same reasons as are set forth in the opinion in Agricultural and Mechanical College v. Guinn, Tex.Civ.App., 326 S.W.2d 609, 615, involving a similar fact situation, from which opinion we take- the following quotation:

“As a declaration against the interest of the declarant, Mrs. Guinn, it was inadmissible because it was made before the execution of the will and hence before Mrs. Guinn was possessed of any interest under it. Bass v. Bass, [Tex.Civ.App.] 207 S.W.2d 103, Austin Court of Civil Appeals, writ ref. N.R.E., and authorities there cited.
“Considered as an admission against a party to the suit we are also convinced that the letter “was not .admissible. As to the nature and admissibility of such admissions see McCormick and Ray, Texas Law of Evidence, Second ed., Secs.1121 et seq. •
“Generally it is stated that such an admission may be defined:
“ ‘ * * * as any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims.’ McCormick and Ray, supra, Sec. 1121.
“Such admissions are received as evidence of the truth of the matters asserted in them and constitute an exception to the hearsay rule. The justification for this exception is based, in a large part, upon the ground that the declarant may himself go upon- the stand and deny, qualify or explain the alleged admissions. Sec. 1121, note 9, McCormick and Ray, supra.
“The declarant in this case, Mrs-Guinn, did not testify and there is no assurance that she would ' have been permitted to testify in denial or explanation of the statements contained in her letter. See: Art. 3716, Vernon’s Ann.Civ.St.; McKibban v. Scott, 131 Tex. 182, 114 S.W.2d 213, 115 A.L.R. 1421. Thus one of the principal justifications for the exception is not shown to be present.
“To admit this letter in evidence for the purpose stated by appellants, i.e. to prove that Mrs. Guinn believed that her husband was then possessed of mental capacity to execute a will, would violate the rule against pyramiding, inferences. The jury in order to formulate this finding, would.have to infer first that the purported facts stated in the letter were evidence of the mental capacity of decedent and second to infer from such .-inference that Mrs. Guinn believed it. Inference must be based on and reasonably deduced from facts, not from other inferences. Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522; 17 Tex.Jur. p. 247.”

However, as has been pointed out in the■ beginning, the'record is before us without findings of fact and conclusions of law. Under these circumstances, it is now well established that where trial was to the court without a jury, the trial judge may receive evidence in order to determine its admissibility and, finding 'it inadmissible, he may disregard it. There being no findings of fact or conclusions of law indicating that the judgment was based upon inadmissible evidence, it is presumed, on appeal, that the trial court disregarded evidence which might have been improperly received,-and’in no manner considered it in arriving at judgment. Furthermore, in view' of all the other evidence before the court relating to the question of a lack of testamentary • capacity, we believe the admission of the letter was harmless. Evans v. Martin, 6 Tex.Civ.App. 331, 25 S.W. 688; Gordon v. Pledger, Tex.Civ.App., 271 S.W.2d 344; Simpson v. Vineyard, Tex.Civ.App., 324 S.W.2d 276; Rule 434, T.R.C.P.

By point five appellants contend that the judgment is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. This question requires this court to consider and weigh all the evidence. We have carefully considered the evidence which supports the judgment, as well as that which is contrary to the judgment, and have come to the conclusion that we cannot say as a matter of fact that the judgment rendered by the trial court is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant. v. CLUB GALAXIE, Appellee.
    No. 16398.
    Court of Civil Appeals of Texas. Dallas.
    June 19, 1964.
    Waggoner Carr, Atty. Gen., and Brady S. Coleman, Asst. Atty. Gen., Austin, for appellant
    No appearance for appellee.
   DIXON, Chief Justice.

Our former opinion in this case is withdrawn and is replaced with this opinion.

Texas Liquor Control Board has appealed from a judgment of a district court modifying an order of the Administrator of the Board, by which order the Administrator cancelled the Private Club Registration Permit of appellee Club Galaxie.

After this appeal had been perfected attorneys for appellee with our permission withdrew as counsel for appellee. No brief has been filed in behalf of appellee.

The trial court’s judgment agrees with the Liquor Board’s order to the extent that the court found appellee guilty of violating Sec. 1, Pars. 1(c) and 7(h) of Art. 666-15 (e) of Vernon’s Penal Code of the State of Texas in that appellee purchased liquor for a liquor pool without having assessed the membership in advance as provided by the statute. However, the court then modified the Administrator’s order by decreeing a ten-day suspension of appellee’s permit instead of a cancellation thereof.

Appellant’s first point on appeal charges that the court violated Art. 2, Sec. 1 of the 'Constitution of Texas, Vernon’s Ann.St., hy holding a de novo trial on appellee’s appeal from the Administrator’s order rather than a trial under the substantial evidence rule. We shall not pass on appellant’s first point because the question becomes immaterial in this case due to our sustaining .appellant’s second point.

In its second point appellant asserts that the cancellation or suspension of a permit is administrative in character, not judicial, therefore the court, after finding appellee guilty of violating the statute, was without power to modify the Administrator’s order by restoring appellee’s permit and assessing a ten-day suspension.

With appellant’s second point we agree. Sec. 1, Par. 7, of Art. 666-l5(e), Vernon’s Penal Code, gives the Board or its Administrator the authority to cancel or suspend for a period not to exceed sixty days any Private Club Registration Permit upon a finding that the club has violated the statute. The statute in this particular is similar to the provisions of Secs. 22(b) and (c) of Art. 6687b, Vernon’s Ann.Civ.St., pertaining to the cancellation or suspension of an automobile driver’s license. We cite the opinion of our Supreme Court in Texas Department of Public Safety v. King, Tex., 366 S.W.2d 215, as authority for holding here that Sec. 1, Par. 1(c) and Pars. 7 and 7(h) of Art. 666-15 (e), Vernon’s Penal Code, delegate to the Liquor Control Board or its Administrator the sole responsibility for determining whether a permit shall be ■cancelled or suspended when a permittee is guilty of violating the statute. If the guilt of the accused is sustained on the appeal to the district court the cancellation order of the Liquor Board becomes effective. The court does not have authority to modify the order of cancellation after finding the accused guilty of violating the statute. Appellant’s second point is sustained.

The judgment of the trial court is reversed and judgment is here rendered confirming the Administrator’s order cancelling ap-pellee’s Private Club Registration Permit.

Reversed and rendered.


author: POPE, Justice.

text:
    Chester R. MORRIS, Appellant, v. Paul WHITE et al., Appellees.
    No. 14295.
    Court of Civil Appeals of Texas. San Antonio.
    May 27, 1964.
    Chester R. Morris, in pro. per.
    Waggoner Carr, Atty. Gen., Pat Bailey, Q. C. Taylor, Asst. Attys. Gen., Austin, for appellees.
   POPE, Justice.

Plaintiff, Chester R. Morris, has appealed from a summary judgment. The basis for the judgment was res judicata, which may be presented by a motion for summary judgment. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. Defendants’ motion showed that the 53rd District Court of Travis County, on December 29, 1960, entered a summary judgment against Morris on the same action here asserted. The Supreme Court of Texas has declared that judgment a final one with respect to the University of Texas, the State of Texas, Arno Nowatny, Carl Bredt, deceased, and Paul White. University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947. Notwithstanding that final judgment, Morris filed this action, the same one against the same parties, in Bexar County. The plea was properly sustained. Morris v. Johnson, Tex.Civ.App., 348 S.W.2d 228.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    Leonard HOLMES et ux., Appellants, v. Edwin G. COX, Appellee.
    No. 7596.
    Court of Civil Appeals of Texas. Texarkana.
    June 23, 1964.
    H. S. Lattimore, Fort Worth, for appellants.
    Pat C. Beadle, Clarksville, for appellee.
   DAVIS, Justice.

A venue case. Plaintiff-appellee sued defendants-appellants, husband and wife, for a breach of a contract to purchase 599.30 acres of land and several head of cattle situated in Red River County. Appellants, in their statement of the nature and result of the suit, make the following statement:

“Appellee brought suit in the District Court of Red River County, Texas, against appellants, alleging a claim for liquidated damages for a breach of contract which Leonard Holmes signed to buy a farm from appellee.”

Appellants filed pleas of privilege to be sued in Parker County, the county of their residence. The pleas were controverted. The case was tried before the court without a jury. The trial court overruled the pleas of privilege and the appellants have perfected their appeal. They bring forward four points of error.

By their points of error, appellants contend that the trial court erred in overruling their pleas of privilege; in holding that the appellee’s suit for damages could be maintained in Red River County; that a check drawn on a hank domiciled in Tarrant County could he laid in Red River County; and, there was no evidence of any written agreement to pay damages or to pay that portion of the contract in Red River County.

The contract was signed by all parties at Clarksville, in Red River County, Texas, with Leonard Holmes, as Purchaser, and Edwin G. Cox, as Seller; and, Red River Valley Realty Company, as Agent for the Seller. The contract provides that the total purchase price was to he $60,430.00, payable $15,000.00 in cash, and the balance by the execution and delivery of certain vendor’s lien notes at Clarksville, Texas, and payable to the appellee (Seller) at Clarksville, Texas. A check for the sum of $15,000.00, signed by appellant, Mrs. Lota Holmes, was given as the cash payment. Payment on the check was stopped, and a suit was filed against both the appellants.

The contract provides — in part — that:

“Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposit as liquidated damages for the breach of this contract, and shall pay to Agent therefrom the sum of $2,996.50, or Seller may enforce specific performance of this contract.” (Emphasis added).

The appellee alleged and proved the contract. He further alleged and proved that the abstract of title that was provided for in the contract had been furnished and had been refused. He alleged and proved that more than 10 days had elapsed since the abstract had been tendered, under the terms of said contract, and the appellants were deemed to have accepted the title as shown by said contract. He showed that the appellants had failed and refused to perform the obligations imposed upon them by the contract and had breached the same. In his prayer, the appellee prayed for judgment for the $15,000.00 liquidated damages, “and for such other and further relief, general and special, to which he may be entitled under the laws of the State of Texas.”

The contract must be considered from its four corners. In so considering the contract, the place of performance is Red River County. 13 T.J.2d 544, Sec. 298, and authorities therein cited. Cite 43b T.J. 156, Sec. 37. A suit on a sales contract may be brought in the county designated for performance. This is a contract to sell land and cattle, both situated in Red River County. The cash payment was supposed to be made there; the vendor’s lien notes were supposed to be executed in Clarksville in Red River County, and the vendor’s lien notes were supposed to be payable in Clarksville, in Red River County. 43 T.J. 177, Sec. 43. Malone v. Dawson, 117 Tex. 377, 5 S.W.2d 965; 60 A.L.R. 665; Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963; Fitzgerald v. Browning-Ferris Mach. Co. (Ct.Civ.App.) 49 S.W.2d 489, Err/Dism. Actually, there was an agreement that the contract was to be performed in Red River County. 43 T.J. 116, Sec. 7, and authorities therein cited. The contract seems regular on its face, and is not ambiguous to any degree. It shows that the $15,000.00 cash, by check has been deposited with the Agent. It further shows that the appellants failed to consummate the contract. According to the contract, the appellee can retain the cash deposit as liquidated damages, and sue for other damages for the breach of the contract.

Appellant takes the position that this is a suit for liquidated damages as the result of the contract. This is a venue matter. We must consider the contract as a whole. The only question we have to decide is whether or not the District Court of Red River County has venue. In construing the contract, the pleadings and the evidence, the appellants have breached the contract, and the District Court of Red River County has venue. 13 T.J.2d 306, Sec. 130, and authorities therein cited. 13 T.J.2d 545, Sec. 298, and authorities therein cited; Longhorn Trucks, Inc., v. Bailes (Ct.Civ.App.) 225 S.W.2d 642, N.W.H.; Whitley v. King (Ct.Civ.App.) 227 S.W.2d 241, N.W.H.

The points of error are overruled. The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Velton P. LANCE, Appellant, v. PEPSI-COLA BOTTLING COMPANY, Appellee.
    No. 3892.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1964.
    Rehearing Denied July 17, 1964.
    Mullinax, Wells, Morris & Mauzy, Fred Weldon, Jr., Dallas, for appellant.
    J. Manuel Iioppenstein, Dallas, for ap-pellee.
   WALTER, Justice.

Velton P. Lance sued Pepsi-Cola Bottling Company under the Fair Labor Standards Act. The court granted Pepsi-Cola’s motion for an instructed verdict. Lance has appealed.

Levit was the manager of Pepsi. Lance called Levit in 1957 from Denison and asked for a job. Lance was employed as a syrup man at $75.00 per week. He was later raised to $80.00 per week. His duties were to roll drums of Pepsi concentrate from the storeroom to the mixing room. He pumped their contents into a mixing vat and added sugar and water to make Pepsi-Cola syrup. Carbonated water was added and the product was bottled and the finished product was distributed by route salesmen in a twenty-one county area, all located in Texas.

On appeal from a judgment on an instructed verdict the appellate court must review the evidence in the light most favorable to the losing party. Under Rule 169, Texas Rules of Civil Procedure appellant requested Pepsi to admit: “During the period May 1, 1960 to November 28, 1960, syrups, flavorings, or other ingredients used by Velton P. Lance were shipped to Dallas from outside the State of Texas”, and Pepsi replied thereto as follows: “Some ingredients were shipped from outside of Texas, but came to rest in Defendant’s Warehouse before Lance used or touched any ingredient, or syrup.” The request for admissions and the reply thereto do not appear in the statement of facts. The record does not reveal that they were formally introduced into evidence. They appear in the transcript. We will consider the admissions as a part of the record. McCollum v. Red River Valley Publishing Company, Tex.Civ.App., 352 S.W.2d 144, (Writ Ref. N.R.E.).

Lance worked for the company for about three years. He left one time and came back and worked awhile and then severed his relationship on a friendly basis. He was asked the following question: “All right. But as far as your employment agreement, you felt that you were doing work according to agreement and you were being paid according to agreement ? That’s true, isn’t it?” And he answered: “Yes, sir.”

Some of the facts in Higgins v. Carr Brothers Company, 317 U.S. 572, 63 S.Ct. 337, 87 L.Ed. 468, are quoted from the opinion:

“For the period here in question the New Hampshire trade had been discontinued and all sales and deliveries were solely to retailers in Maine. The only additional facts which we know about respondent’s course of business are accurately summarized in the following excerpt from the opinion of the Supreme Judicial Court: ‘It buys its merchandise from local producers and from dealers in other states, has it delivered by truck and rail, unloaded into its store and warehouse and from there sells and distributes it to the retail trade. While some of the produce* and fruit is processed, much of it is sold in the condition in which it is received. The corporation owns all of its merchandise and makes its own deliveries. It makes no sales on commission nor on order with shipments direct from the dealer or producer to the retail purchaser.’ ”

Higgins worked at night loading trucks for delivery to retail dealers or as a truck driver distributing merchandise to the local trade. The Supreme Judicial Court of the State of Maine affirmed the judgment dismissing the action to recover minimum wages and overtime compensation under the Fair Labor Standards Act. Affirming the judgment, the United States Supreme Court, speaking through Mr. Justice Douglas said:

“Some effort is made to show that the court below applied an incorrect rule of law in the sense that it gave the Act too narrow a construction. In that connection it is argued that respondent is in competition with wholesalers doing an interstate business and that it can by underselling affect those businesses and their interstate activities. As we indicated in Walling v. Jacksonville Paper Co., that argument would be relevant if this Act had followed the pattern of other federal legislation such as the National Labor Relations Act (see 29 U.S.C. § 152(7), § 160(a), 29 U.S.C.A. §§ 152(7), 160 (a) and extended federal control to business ‘affecting commerce’. But as we pointed out in [A. B.] Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, this Act did not go so far but was more narrowly confined.”

We find no evidence that appellant was engaged in the production of goods for interstate commerce or engaged in interstate commerce. He was not covered by the act.

Based on the record and the Higgins decision, we are impelled to hold that the trial court properly instructed a verdict for Pepsi.

The judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, a Corporation, Appellant, v. Eugene C. REED, Appellee.
    No. 11215.
    Court of Civil Appeals of Texas. Austin.
    June 10, 1964.
    Rehearing Denied July 15, 1964.
    Skelton, Bowmer, Courtney & Burleson, Temple, for appellant.
    W. Lance Corsbie, Waco, Kacir, Lesikar & Kacir, Temple, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment awarding maximum benefits under the Workmen’s Compensation Law of this State for total and permanent incapacity from injuries received in an automobile collision on January 3, 1963.

The appeal is predicated on five points and are to the effect that the Trial Court erred in not granting appellant’s motion to file a responsive pleading, after the Court had sustained appellee’s special exception to appellant’s pleading, and in overruling appellant’s first motion for a continuance, in overruling appellant’s objections to the submission of Special Issue No. 7, and in entering judgment based thereon because there is no evidence, or the evidence is insufficient to sustain the submission of, or the jury’s answer to Special Issue No. 7, that the Court erred in failing to submit appellant’s requested Instruction No. 2, raising the issue of a turning aside by appellee from the activities within the course of his employment to that of a personal nature.

On the day of the accident appellee, Eugene C. Reed and another employee were asked to go to the city dump and look for some advertising material that had been thrown away by mistake, and not being able to find such material left and appellee took the other employee home. En route to his home appellee struck a parked car on South Main Street, and from this collision appellee claims back injuries.

In its original answer and in its First Amended Original Answer appellant plead that if the appellee sustained any disability that it was the result of some condition or incident outside of his employment.

Appellee filed special exceptions to the appellant’s pleadings as being too general on June 21, 1963, which exceptions were not presented or acted on until October 21, 1963, the morning of the trial and were then sustained, to which action appellant excepted.

Appellant then moved for leave to file its First Supplemental Answer, which was denied, and appellants then made a motion for a continuance which was overruled, and the case went to trial before a jury on special issues, and based on such jury answers judgment was rendered for plaintiff, appellee herein.

The prime question to be considered by this Court is that of the refusal of the Trial Court to permit defendant, appellant herein, to file its First Supplemental Answer.

The pleading in the answer of appellant reads as follows:

“Defendant would show that if plaintiff sustained any incapacity or disability to labor, which is not admitted but is denied, that same was- wholly the result of some condition or incident arising outside the plaintiff’s employment with American Desk Manufacturing Company and not in any wise connected therewith.”
The exception reads as follows:
“Plaintiff specially excepts to Paragraph 2 of Defendant’s First Amended Original Answer for the reason that same is too vague, general and indefinite and fails to sufficiently apprise Plaintiff of what, if anything, Defendant is relying upon to enable Plaintiff to prepare his defenses, pleadings, issues or evidence thereto and same is inflammatory and prejudicial and should be striken and of this Plaintiff prays judgment of the Court.”

Appellant filed its motion requesting leave of the Court to file its First Supplemental Answer to meet the special exception, and alleged that the matters contained in the pleading could in no wise operate as a surprise to plaintiff since such matters were peculiarly within his knowledge.

We believe that since the exception was sustained, the defendant had the legal right to amend its pleadings and that the Trial Judge abused his discretion and erred in refusing to allow appellant to file its First Supplemental Answer, and that the case should be and is reversed.

Caperton v. Thorpe, Tex.Civ.App., 240 S.W.2d 329, no writ history.

Endres v. Hawkins, Tex.Civ.App., 348 S.W.2d 547, no writ history.

In Leonard v. Maxwell, Tex.Civ.App., 356 S.W.2d 335, reversed on other grounds, 365 S.W.2d 340, this Court stated:

“It is also the law that amendments of pleadings are mandatorily permissible when tendered to meet exceptions.”

Action herein renders unnecessary the determination of the other assignments, except as concerns the third point directed to “no evidence or insufficient evidence” to sustain either the submission or the answer of the jury to Special Issue No. 7 inquiring if the appellee’s total incapacity is permanent.

There was adduced evidence which if believed by a jury, which was done in the present trial, to support a finding of a jury. We do not restate this evidence since in view of the fact that there will probably be new pleadings and the evidence in a subsequent trial may vary in some degree from that offered in the former trial.

The question of “no evidence” and alternatively “insufficient evidence” is fully discussed in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

4 Tex.Jur.2d 395, Sec. 838.

The judgment of the Trial Court is reversed and the cause remanded.

Reversed and remanded.


author: GRISSOM, Chief Justice.

text:
    Mable RICHARDSON, Appellant, v. Lon E. ALSUP et al., Appellees.
    No. 3897.
    Court of Civil Appeals of Texas. Eastland.
    June 26, 1964.
    Rehearing Denied July 17, 1964.
    Abney, Howell, Abramson & Burleson, Charles B. Howell, Harrison, McKnight, Dean & Weston, Bill McKnight, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., Fred D. Ward, Asst. Atty. Gen., Austin, for appel-lees.
   GRISSOM, Chief Justice.

Mable Richardson sued The Texas State Commission for the Blind, Lon E. Alsup, its Executive Secretary-Director, and the members of said Commission. Mrs. Richardson sought to compel them to issue her a license and place her in charge of a vending stand for the blind which was under the control of said Commission. The court held it did not have jurisdiction and dismissed the case. Mrs. Richardson has appealed.

James A. Richardson, the husband of appellant, obtained a license from said Commission to operate the vending stand and was operating it when he died in 1961. Upon his death the Commission took charge •of the stand and the supplies therein, which were owned by the Commission, licensed another blind man to operate the stand and placed him in charge. Mrs. Richardson’s application for a license to operate the stand was denied.

Under Article 678d said Commission is authorized to issue licenses to blind people qualified to operate vending stands under control of the State Commission. The statute does not provide for judicial review of the action of the Commission in refusing to issue a license to appellant. When a statute does not authorize an appeal from the orders of an administrative agency the right of appeal does not exist unless the order violates some constitutional provision or adversely affects property rights of the person affected by the order. No property rights of Mrs. Richardson were involved. She did not inherit any property right in the operation of the stand from her husband and no constitutional provision was violated by said act of the Commission. Mrs. Richardson was never licensed. Neither she nor her husband owned any property involved in the case, therefore, she had no right to appeal from the order of the Commission refusing to license her and place her in charge of the stand. Appellant is in the same position as any other blind person in Texas who may apply to the Commission for a license to operate said vending stand.

Appellant relies upon the holding in Frost v. Corporation Commission, 278 U. S. 515, 73 L.Ed. 483, 49 S.Ct. 235, to support her contention that she has the right to appeal from said order. In that case the appellant had a permit to operate a gin and it was held that because his permit was a valuable property right he could enjoin the Commission from issuing a permit to a competing gin company which had not complied with statutory requirements. That decision is not applicable here because appellant never had a license. She had no property or property right in the stand. Appellant cites other decisions in support of her contention that she had a vested property right of which she was deprived by the decision of the Commission. Appellant had no property rights in the vending stand. She had no license to operate it. She had no right to appeal from the decision. See Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177; Davison v. State of Texas, 166 Tex.Cr.R. 376, 313 S.W.2d 883.

Appellant has presented a most able and interesting brief that contains other points, which become immaterial under our holding that she has no right to appeal from the order of the Commission.

The judgment is affirmed.


text:
    Elder JONES et al., Appellants, v. Riley HARVEY, Appellee.
    No. 7561.
    Court of Civil Appeals of Texas. Texarkana.
    June 23, 1964.

      T. D. Wells, Paris, Pat C. Beadle, Clarks-ville, for appellants.
    B. F. Edwards, Clarksville, for appellee.
   DAVIS, Justice.

Plaintiff-appellant, Elnora Bly, a person of unsound mind, acting by and through her guardian, Devalia Lewis, sued defendant-appellee, Riley Harvey, and defendant-appellant, Elder Jones, in trespass to try title to 74.7 acres of land situated in Red River County, Texas, and in the alternative, by Bill of Review seeking to set aside a judgment theretofore rendered in a case styled “Elnora Bly, Plaintiff, vs. Roy Jones, Defendant”. Appellant, Elder Jones, filed an answer to the petition and a cross-action to the suit. The appellee filed special exceptions to the petition of the plaintiff Elnora Bly, by her guardian, as well as special exceptions to the Cross-Action of the defendant, Elder Jones. A preliminary hearing was had and two separate judgments were entered sustaining the special exceptions. The first judgment — omitting caption and signature — reads as follows:

“BE IT REMEMBERED that on this the Sth day of September, 1963, came all the parties by their attorneys, and then came on to be heard the defendant Riley Harvey’s exceptions to the defendant Elder Jones’ answer and cross-action filed in this cause on the 3rd day of June, 1963; and the argument of counsel therein being heard, it is the opinion of the Court that the law is with the said defendant, Riley W. Harvey.
“IT IS THEREFORE CONSIDERED, ORDERED and ADJUDGED by the Court that the defendant, Riley W. Harvey, go hence without day and that he recover of and from the said defendant Elder Jones, his-costs in this behalf expended, for which he may have his execution.
“To which action of the Court the defendant Elder Jones in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas at Texarkana, Texas.”

The second Judgment — omitting caption and signature — reads as follows:

“BE IT REMEMBERED that on this the Sth day of September, 1963, came all the parties by their attorneys, and then came on to be heard the defendant Riley Harvey’s exceptions to the plaintiff’s First Amended Original Petition, both in the main and in the alternative, filed in this cause on the 11th day of June, 1963, and the argument of counsel thereon being heard, it is the opinion of this Court that the law is with the said defendant, Riley Harvey.
“IT IS THEREFORE CONSIDERED BY THE COURT that the defendant, Riley Harvey, go hence without day, and that he recover of the plaintiff Elnora Bly, his costs in this behalf expended, for which he may have his execution.
“To which action of the court the plaintiff in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas at Texar-kana, Texas.”

No evidence was offered in the trial court. The appellants excepted and have perfected their appeals.

Appellant Elnora Bly brings forward four points of error wherein she complains of the action of the trial court in sustaining the special exceptions and rendering judgment in favor of appellee, Riley Harvey. Her suit is based upon two causes of action: Trespass to try title; and, a Bill of Review.

Appellant, Elder Jones, brings forward three points of error in which he complains of the action of the trial court in sustaining the special exceptions and rendering judgment in favor of the appellee, Riley Harvey.

A special exception is a dilatory plea. The special exceptions are determined from the allegations of the petition which they challenge. It neither avers nor denies any fact proposition. It is not strictly a plea, but rather an excuse for not pleading. 2 McDonald Texas Civil Practice 615, Sec. 7.04, and authorities therein cited. If it was the intention of the trial court to sustain the special exceptions he should have done so and given the other side a chance to amend the pleadings. According to Rule 91, Vernon’s Ann.Tex.Rules Civil Procedure, special exceptions are to point out the particular pleading excepted to, and shall also point out intelligently and with particularity the defect, omission, obscurity, duplicity, generality or other insufficiency' in the allegations in the pleadings excepted to.

In the case of Lone Star Gas Company vs. Murchison (Ct.Civ.App.), 353 S.W.2d 870, 94 A.L.R.2d 529, W.R.,N.R.E., the court held: “There are no disputed facts presented for determination. Since the Court below disposed of this case by sustaining special exceptions, the facts alleged by Lone Star in its pleadings must be taken as true.” (citing authorities). Since there was no evidence offered in this case, we will have to consider the record as made by the pleadings.

It appears that appellant, Elnora Bly, had alleged two separate causes of action under which she could recover if the proof supports the allegations. The first one was in trespass to try Title, and the second one was' by Bill of Review. The trial court erred in sustaining the special exceptions and rendering judgment in favor of the appellee, Riley Harvey. The points of error are sustained.

The appellant, cross-plaintiff, Elder Jones, in view of the pleadings of the appellant, Elnora Bly, alleged a cause of action by his cross-action, and the trial court was in error in sustaining the special exceptions to the cross-action and in rendering judgment in favor of the appellee, Riley Harvey. The points of error are sustained.

In the case of Wiseman, et al, v. Zorn, et al., 309 S.W.2d 253, N.W.H., the trial court' entered a nunc pro tunc order correcting a previous order that would actually reflect the proceedings in the trial court. The appellee filed a motion to dismiss the appeal. The motion was overruled because the trial court was merely correcting a clerical error, or mistake, by adding to the judgment amending clauses necessary to give it effect. They held that a special exception was not something on which the trial court could render a judgment until the person against whom the special exceptions had been sustained had refused to replead. Citing Knox v. Long, 152 Tex. 291, 257 S.W.2d 289.

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


author: McDONALD, Chief Justice.

text:
    SOUTHWESTERN DRUG CORPORATION and Walter N. Kuntz, an individual, and Charles E. Major, an individual, Appellants, v. OFFICE EMPLOYEES INTERNATIONAL UNION LOCAL 277, AFL-CIO, and J. B. Moss, Appellees.
    No. 4209.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1964.
    Rehearing Denied July 16, 1964.
    Sam Houston Clinton, Jr., Austin, for appellants.
    Baker, Botts, Shepherd & Coates, V. R. Burch, Jr., Houston, Pannell, Dean, Panned & Kerry, Fort Worth, for appellees.
   McDONALD, Chief Justice.

This is an appeal from an order of the. District Court of Tarrant County authorizing appellees to take depositions of the individual appellants pursuant to Rule 187 Texas Rules Civil Procedure. The alleged purpose of such depositions is to perpetuate testimony to be used in an allegedly anticipated action against appellants for slander and defamation.

Appellees have filed motion to dismiss the appeal on the ground that the order appealed from “is interlocutory in nature,” and “therefore not appealable at this stage, but may be. reviewed after final judgment in the suit that depositions are intended to aid.”

Appellants contend that the order of the District Court is an appealable order. Appellant reasons that since Rule 187 was largely rewritten by the 1962 amendment, and is patterned after Federal Rule 27, proceedings under which the Federal Courts hold appealable; that a Texas Rule 187 proceeding, should likewise be appealable.

Prior to the 1962 amendment of TRCP 187, proceedings under such rule were held to be ancillary proceedings, and nonappealable. Lambert v. Tex. Emp. Ins. Ass’n., C.C.A. (n.w.h.), 121 S.W.2d 406; Lee v. Lee, C.C.A. (n.r.e.) 373 S.W.2d 108. Our Supreme Court in Ramsey v. Gardner, 154 Tex. 457, 279 S.W.2d 584 says that, “A proceeding to perpetuate testimony (under old Rule 187) does not constitute or involve a trial.”

TRCP 187 as amended effective September 1, 1962 is patterned after Federal Rule 27 (Title 28 Fed.Rules Civil Procedure) and is very similar to such Rule 27. (See pocket part Vol. 1, Vernon’s TRCP, Rule 187). Since the 1962 amendment to Rule 187, all the elements of a suit and trial have been put into the proceedings.

Federal courts hold that orders authorizing the taking of a deposition under Federal Rule 27, to be a final order for the purpose of appealability, because it grants all the relief sought in the petition, and disposes of the proceeding. Mosseller v. United States, 2 Cir., 158 F.2d 380; Martin v. Reynolds Metals Corp., 9 Cir., 297 F.2d 49.

We think an order in a proceeding to perpetuate testimony under TRCP 187 as amended on September 1, 1962, is an appealable order, and overrule appellees’ Motion to Dismiss the Appeal.

Appellants contend the District Court was without jurisdiction to enter the order authorizing appellees to take depositions of the individual appellees “because the subject matter is within the exclusive jurisdiction of the National Labor Relations Board.”

Appellees’ petition to take depositions to perpetuate testimony stated that the nature of anticipated suit is for slander and defamation, and asks to take deposition of Walter N. Kuntz and Charles E. Major.

Appellants contend that since the entire controversy arose out of an election to unionize employees of appellants, and that the NLRB has taken jurisdiction of the election controversy, that “Federal preemption” has taken away the jurisdiction of the State Courts and lodged such jurisdiction exclusively with the NLRB. We reject the foregoing contentions. The question of jurisdiction of the State Courts is prematurely asserted. It must be addressed to the suit which the depositions are intended to aid. Until such suit is filed it cannot be, determined just what will be the complaint, who will be the parties, and what relief will be sought. Moreover, a party injured by slander and defamatory statements has not been deprived of his common law right to seek redress by way of damages in a State court. Further, J. B. Moss, one of the appellees, an individual, who claims to have been slandered, cannot be precluded from suing for his damages by the preemption rule.

The judgment of the Trial Court is affirmed.

        . Decided in 1963, but necessarily decided under Rule 187 prior to its 1962 amendment, since the application to perpetuate testimony was filed on Sept. 8, 1961, (and prior to Sept. 1, 1962, the effective date of amended Rule 187).