author: McDowell, judge.

text:
    Annie Chloe WILSON, Plaintiff-Respondent, v. Warren W. WILSON, Defendant-Appellant.
    No. 7990.
    Springfield Court of Appeals. Missouri.
    Feb. 10, 1962.

      Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for appellant.
    Tucker & Gleason, Willard S. Tucker, E. Andrew Carr, Springfield, for respondent.
   McDowell, judge.

Plaintiff instituted this action for divorce alleging indignities on the part of defendant which rendered her condition intolerable. Defendant filed answer and cross-bill. At the conclusion of the trial the court found plaintiff was the innocent and injured party and entered a decree granting her a divorce, care and custody of the minor child, Jennifer, and dismissed defendant’s cross-bill; that plaintiff have and recover from defendant the sum of $100 per month child support, $10,000 alimony in gross- and attorneys’ fee of $750. From this judgment defendant appealed.

Plaintiff’s amended petition alleged the following indignities as grounds for divorce, to-wit:

That defendant became cold, distant and aloof in his attitude toward and treatment .of plaintiff.

That defendant continually nagged and berated plaintiff, belittled and ridiculed her, and continually belittled and spoke profanely of plaintiff’s sons by a previous marriage.

That defendant, throughout the marriage, has attempted by various- and devious manner and means to .alienate plaintiff from her children,, ;and'that defendant’s, actions in this respect have been particularly marked and vicious since the birth of their daughter.

That defendant throughout his marriage to plaintiff has subjected plaintiff and her sons, by a previous marriage, to sadistic, harsh, cruel, inhuman, irrational and unreasonable treatment and discipline.

That defendant accused one of plaintiff’s sons of an improper act toward their daughter, refused plaintiff the right to question the child about it, wrote a long rambling, incoherent and fictitious account of the alleged offense, forced plaintiff to sign the same with defendant, mailed it to the boy’s commanding officer in the Navy in an attempt to have the boy punished by naval authorities; that defendant circulated copies of the account to the boy’s aunts, uncles, grandparents and other relatives in an attempt to alienate the child’s relatives.

That defendant insisted upon plaintiff accepting a teaching position in the school system of Sparta, and at the same time insisted she sign a written agreement, prepared by him, agreeing to turn over her entire salary to him and that he in turn was to pay her $50 per month; that during the past four years defendant has retained plaintiff’s earnings except $50 per month and has forced her to spend that amount for family groceries.

That defendant during his last three years of marriage to plaintiff has refused to provide plaintiff with help in caring for their fourteen room home, although insisting that she teach.

That defendant has improperly associated with another woman.

That defendant has a violent and ungovernable temper, has interfered with her teaching and caused so much trouble in the school that she was unable to renew her contract.

It alleged that one child was born of the marriage, Jennifer Chloe, age 9, September 29, 1950; that she is now in the custody of defendant; that plaintiff is a proper person to have the care and custody of. said child.

That defendant is a practicing physician at Sparta, has substantial real estate holdings and yearly income; that he is able to provide for the support of plaintiff and said minor child and for plaintiff’s support pending the termination of this action.

The prayer for relief is that the court grant plaintiff a divorce, custody of minor child, alimony in gross, temporary alimony during the pendency of the suit and attorney fees.

Defendant’s answer to plaintiff’s first amended petition admits the marriage, as alleged, and the date of separation, but denies all other allegations. It affirmatively pleads a marriage contract entered into between the parties as a defense to plaintiff’s right to recover alimony in gross.

Defendant’s cross-bill alleged indignities on the part of plaintiff as follows: That she has continually nagged at defendant on account of money matters, falsely accused him of being stingy; stated she did not wish to live with defendant longer, became cold, distant and aloof in her treatment of defendant, failed and refused to cooperate with him in the building of an estate for their later years and insisted upon spending money because the estate would not go to her sons by a previous marriage; that plaintiff insisted on teaching, over defendant’s protest, saying she would leave him rather than stop teaching; that plaintiff, over protest of the defendant, incurred bills at various stores which the family could not afford and demonstrated her extravagance and disregard of defendant’s efforts to run the home and financial affairs on a sound and economic basis; that plaintiff belittled and ridiculed defendant’s attitude toward actions of her son, Bill, with relation to their daughter when such actions were deserving of blame and censure ; that plaintiff has interfered with defendant’s proper disciplining of their said daughter; that plaintiff without cause left the family home, refused to return upon defendant’s request; that plaintiff falsely accused defendant of associating with other women, including patients of the defendant; that she falsely and without reason accused defendant of telling falsehoods with respect to plaintiff’s older son; that she nagged and fussed at defendant without just cause, accusing him of not giving her older son more money; that she falsely accused defendant of being sadistic in disciplining plaintiff’s two boys and became violently angry when defendant attempted to correct bad habits of the boys; that she falsely accused defendant and their daughter, Jennifer, with falsehoods with respect to immoral conduct of plaintiff’s elder son with said daughter; that she falsely accused defendant of being an atheist; that she, on numerous occasions, called defendant profane and degrading names.

The prayer is for decree of divorce, care and custody of Jennifer, their minor child, and such other relief as the court may deem proper.

Plaintiff’s reply to the cross-bill amounts to a general denial of the alleged indignities and an affirmative plea that defendant procured her signature to the alleged marriage contract after the vows between plaintiff and defendant had been solemnized; that her signature was procured by duress, fraud, deceit, imposition and overreaching on the part of defendant; that the conditions and terms of said contract are unconscionable upon their face, unfair, unjust, unreasonable and inequitable; that defendant did not act in good faith or fairness and did not present the document when plaintiff had reasonable time or opportunity to study the terms and conditions and reach an intelligent conclusion as to whether or not signing it would be to her best interest; that the document was not supported by consideration, which is inadequate on its-face. It pleads that by reason of the above facts the alleged marriage contract is void ab initio and asks that the court declare the same void and of no effect; that since the marriage defendant has stated many times he did not regard the contract binding; . that by subsequent acts and conduct in dealing with the separate property of plaintiff, defendant has rescinded and abandoned the same; that he has accepted some $12,000 money earned by plaintiff teaching.

The record in this case consists of some 400 pages of testimony. We will make a summation of facts therein stated necessary for a determination of the issues involved.

The parties were married August 7, 1949, and separated August 13, 1960. It was plaintiff’s second marriage and defendant’s seventh. Plaintiff had two sons by her former marriage, Jerry, age 5½ years and Bill, just short of 9. Defendant had two children by a former marriage, John Pit-man, age 4, and Deborah, age 12, who were, at that time, in the custody of their mother.

Prior to the marriage both plaintiff and defendant were residents of Sparta. He was an osteopathic physician and surgeon with offices in Sparta, where he had been practicing since 1939. Plaintiff had no property except some household goods and an automobile and she testified defendant told her that he had property of the value of $50,000, and was indebted in the sum of $20,000. She stated this was the only discussion about property matters prior to the marriage; that nothing was ever said about a marriage contract.

Plaintiff’s testimony was that she had known defendant for ten years; that he had been their family doctor but their actual courtship was only two or three weeks. At the time of marriage she was 39 and defendant 49. A daughter, Jennifer, was born to the marriage September 29, 1950.

She stated that she and the defendant discussed the matter of her children making their home with them prior to the marriage and that he stated he would not permit anyone to live in his home unless he had charge of their discipline, to which arrangement she agreed. She testified that soon after the marriage defendant took complete control of her children, said she was too lax in their discipline and called her a “doting mother”. She stated: “He immediately set about, just, — well, reorganizing our lives, completely.”

Plaintiff testified she had no voice in the disciplining of her children; that if she protested it only made him more bitter toward them; that if she tried to correct them he would say she was either too lax or too harsh, she was never right.

Defendant stated the home was his and he would run it as he saw fit; he had been in the military service and she testified that the operation of the home was sort of a military regime, run on military lines; that the boys would have to stand inspection of their bathroom, clothes, etc.; that he would go through their dresser drawers, check to see if the towels were straight on the racks and if they had complied with all other rules he had laid down for the family.

Her evidence was that these minor boys were required to get up at 5 :00 or 5:30 in the morning and do chores on the farm; that they were first required to take care of 3,000 chickens and grade the eggs. Later, defendant required the older boy to take charge of a dairy and milk the cows. Defendant had a rule that plaintiff could not call the boys in the morning but they must get up on their own accord and, when they failed to do so, he would go up and use a strap on them. Under his military rules the boys had to have their chores done, their shoes blacked and ready for school by 7:15. Immediately after school they had to change clothes and do their farm chores, sometimes working until dark. On Sundays they had to help defendant in whatever jobs he had laid out. Plaintiff testified the boys were always polite and obedient to defendant but that he used the same military attitude toward them at all times expecting them to do their work exactly without variation. If they violated his rules they were spanked or had privileges of attending school parties, etc., taken from them. She said his conduct toward the boys was a mental harassment.

In regard to allegations in the petition that defendant subjected these boys to cruel, harsh and unusual treatment, plaintiff stated that the boys had nice singing voices, played in the school band; that the older boy was to enter a singing contest and defendant asked him how he was going to go and her son said one of the ladies there, whose daughter was going to accompany him, said she would take him and bring him home in time to do his chores. Defendant said the boy lied to him about the matter and made plaintiff telephone school authorities that he was unable to attend. The boy was a member of the school band and when he could not go it caused a shortage in the band. She testified: “He would just fuss at us at the table. He would always bring up these things at the table, and we would be sitting at the table, eating, and he would sit and just glare, and glare, and glare, at first one boy and the other, until we were almost paralyzed. And then he would start saying that — what that one had done, and what this one had done, and that he had to punish them. And he would say, ‘Tell your mother what you did’. And then he would act like it was just a terrible crime, and then he would use a Pi Phi paddle that Deborah had had when she was initiated into sorority, * * *

Plaintiff’s testimony was that defendant required the boys to wear the same shirts, underwear and blue jeans all week; that they hated to wear the same shirts for a week and she hated for them to do so. She stated defendant would not allow them to wear blue jeans to school like the other boys wore but purchased for them big-legged trousers and made them wear them; that Jerry purchased a pair of trousers, and, when he came downstairs, defendant made him take them off and he was never allowed to wear them. She testified she begged defendant to permit the boys to dress like the other boys but he refused. They were required to wash their own clothes in a tub on the outside and were not permitted to use the washing machine and he made them wash their socks every night.

In 1956, plaintiff was employed to teach in the Sparta schools. She testified that for the first two years defendant took her and their daughter to school but would not allow the boys to ride in the car; that he repaired some old bicycles, left on the farm by tenants, made them ride them to school and if they broke down they had to push them. Defendant believed they were breaking the bicycles purposely in order to get to ride in the car. Her evidence was that on one occasion defendant ordered Jerry to wear a cap to school and, when he failed to wear it, he saw him at school, made him go home and get it and gave him a whipping for breaking his rule.

Defendant would not let the boys change their clothes and shoes in the house after they had done their chores at the bam but made them change out in a smokehouse where there was no heat. One of the chores done by the younger boy was mowing the yard. The mower often broke down or parts would come off and defendant thought he was breaking it purposely and punished him. He said he was punishing him on general principles.

Plaintiff’s testimony was that when they were first married defendant did take some notice of the younger boy, Jerry, and played some with him but he never had anything to do with the older one. This evidence is corroborated by defendant’s testimony. Defendant said Bill was a thief and a confirmed liar; that he never could believe anything he said. Defendant had a rule that the boys could never play with their sister nor enter her room and he testified they were not allowed to come in the room where he and his wife slept. He nicknamed the boys, calling Bill “Pitchfork Pete” because he used his fork like a pitchfork, and Jerry, “Scoopshovel Sam” because he used his spoon like it was a scoopshovel.

As to defendant’s violent temper, plaintiff’s evidence was that they spent meal after meal listening to a long tirade of what the boys had done or hadn’t done and that plaintiff was a doting mother; that she was either too indulgent or too strict; that he would pound on the table until the dishes would dance across it. She testified the boys were not allowed to look at television except on weekends and that defendant had threatened to take a ball hat and knock their brains out if they did not do what he wanted; that he got mad if she tried to stand up for the boys and would stand with his face right up against hers, tap her on the chest, take his fist and hold it up against her, push her head back and say he would like to hit her and things like that; that he cursed and used profanity toward both her and the boys.

Plaintiff testified that she and defendant had many disagreements over his attitude toward the boys; that when she objected to his treatment he would tell her the boys were going to end up in a reform school or that he was going to send them to their father; that the home was his and he would do as he chose.

On an occasion in 1958, plaintiff testified that defendant gave her a written communication (in evidence as plaintiff’s exhibit 1). In this statement he said that if she didn’t like the way he was disciplining the boys she could send them away. This argument was over Jerry as Bill at the time was in the Navy. Plaintiff’s evidence is that defendant’s attitude toward her sons was more pronounced after the birth of their daughter; that when he punished the boys he would make them take down their trousers and used a strap or surcingle on them. He feared the Humane Society might do something about his punishment so when he whipped them he required them to count.

Her testimony is that defendant refused to give the boys an allowance but would give them money at times when they needed it. She said he always required them to account for how they spent it.

It seems the most serious disagreement, according to plaintiff’s testimony, was in relation to an affair between Bill and his half-sister, Jennifer. Plaintiff testified that defendant stated to her that the older boy had assaulted Jennifer, who was at the time eight years old. When defendant told plaintiff about the matter the boy was in the Navy and she was just finishing a course of study in Southwest Missouri State College. She stated that about a week before the school term was over she and the defendant had been out one night to eat, when they returned home defendant sent Jennifer to bed and he told her that Bill had attacked their daughter; that he did not know just when it happened; that Jennifer was very vague about it. Defendant said he tried to question her but she did not know whether it was Bill or not. Plaintiff said from what defendant had told her she had the impression that the boy had done the worst and she was grief stricken. She admitted writing defendant a note saying if Bill had done such a thing it would have been better he had never been born. Plaintiff testified that defendant refused to allow her to talk to Jennifer about what happened; that she asked him if he was going to cause trouble about this affair since Bill had gone to the Navy and he said he did not mean to do anything to cause trouble but he was going to write Bill and tell him never to come home again. Plaintiff testified she offered to write the letter, and did write one, which made defendant very angry because it wasn’t hard enough. She said that after she had her examinations in college defendant told her he was going to write to Bill’s commanding officer and send a copy of the letter to all of his aunts, uncles and grandparents to let them know all about it and she would have to sign it. Plaintiff testified she refused to sign the letter because she could not see that it would benefit anyone; that she told defendant Jennifer would have to testify if there was a trial and that he told her he would make her prefer charges against the boy. She stated she told him before she signed it she wanted to talk to a lawyer; ' that he stated she had to sign the letter or he would prefer charges himself ; that she told defendant she did not believe anyone who knew Bill would believe the story and he said he did not care whether they believed it or not but every time they heard his name they would think of it. Plaintiff testified that because of defendant’s threats she went to his office and signed the letter; that while there she realized for the first time the boy had not assaulted the girl, as defendant had stated, but had exposed himself to her. She testified defendant sent the letter to the commanding officer and a copy to the boy’s relatives and showed a copy to the sheriff. These facts are not disputed by defendant.

The record is replete with evidence of both plaintiff and defendant that long after the incident in which Bill was accused of exposing himself, defendant used the incident as an excuse to write these letters. We think the trial court would have been justified in finding that the defendant’s acts as to the affair revealed that he was not only trying to hurt the boy but as an excuse to hurt and humiliate plaintiff1. The inferences are clearly deducible from the evidence that defendant was blaming plaintiff for the whole affair.

Plaintiff’s evidence shows that a vacancy in the Sparta schools occurred in 1956; that she talked to defendant about applying for the position and he took her to see the superintendent about the matter and was instrumental in her securing the position; that on Sunday night, before school opened the following day, defendant demanded she sign a written agreement to turn her salary over to him; that they argued about the matter until 2:00 o’clock in the morning; that he stated “We’re going to have an understanding about this money”; that just because she earned it did not mean she could do with it whatever she wanted to. She testified defendant finally wrote out the document and she signed it because he said he would not permit her to go to school the next day unless she signed it. It provided, in part, that plaintiff turn over her school checks to defendant and he would deposit in the bank in her name $50 per month. This agreement is in evidence as plaintiff’s exhibit 2. She testified she was receiving $25 monthly payments from her former husband as support money for her sons; that up until this time she had been allowed to use this money but that after the agreement she turned this money over with her school checks to defendant; that her salary was something over $300 per month during the four years which amounted to something like $12,000. She stated most of the $50 per month was used in buying groceries for the family.

Her evidence was that defendant allowed her to have charge accounts at some of the stores in Springfield but he would get her cancelled checks from the bank and check each item prior to her receiving them; that she never had any cash on hand.

Her evidence was that at the end of the school year in 1960 she was informed by the school board that she would not be reemployed because of defendant’s controversies with the superintendent of school and the school board.

Defendant does not deny his controversies with school authorities. He helped circulate petitions to have the actions of the school board investigated.

As to the pre-nuptial contract, which defendant pleads as a defense, plaintiff testified that after the wedding ceremony was pronounced, she and her husband went out to the car to go on their honeymoon, and, while wedding guests were still standing around, he took from the glove compartment the contract and asked her to sign it. She said she looked through the contract; that he told her he had consulted an attorney and was advised because of previous marriage difficulties, he should have her sign it. She testified she had never seen the instrument before, but, because she did not want to create a scene before the guests, she signed it; that defendant took it over and delivered it to a Notary Public; that she never acknowledged the same and defendant had not signed it at that time. She testified that after the marriage defendant said the contract was no good when Jennifer was born. He asked plaintiff to sign her name as “Simpson” the name she bore before marriage. The contract provided that in case plaintiff survive defendant her interest in his estate would be limited to one-third in his real and personal property; that in the event the marriage relations were terminated, other than by death, plaintiff was to receive $50 per month for the time she lived with defendant in full satisfaction of her rights against his estate and that in no event the sum received should exceed $5,000. This instrument is in evidence as defendant’s exhibit “F”. It was notarized by Harry L. Jenkins, August 6, 1949. At the time plaintiff signed it she had no property of her own and defendant was possibly worth between $100,000 and $150,000. There was no discussion between the parties relative to such a property settlement and plaintiff was given no time to examine or determine just what the effect of signing the instrument was.

Defendant’s answer alleged that plaintiff wrongfully accused him of associating with other women. In regard to this allegation plaintiff testified that at the time of the marriage defendant told her that one, Mrs. Workman, was in love with him; that after the marriage this woman made frequent visits to his office and consulted with him with the doors locked; that on one such visit she left her little girl out in the office with plaintiff; that she stayed much longer than patients usually did and when she came out she looked embarrassed, hurried around the door and down the steps and the little girl had to run after her. Plaintiff testified that later defendant rented a part of his building, adjoining his office, to her for a beauty salon; that she talked to the defendant about the matter and he told her he would do with his property as he pleased; that he talked his business and family affairs over with this woman and when he went on calls would leave word with her when he was to return; that the people in the community talked to her about their relationship. Defendant offered in evidence a book account of the doctor bills wherein he had treated the Workman family, which amounted to a considerable amount. He testified that he often went down to her beauty shop and treated patients who were unable to come to his office. It was plaintiff’s testimony that Mrs. Workman had told her of conversations she had had with defendant relative to his business and family affairs.

Plaintiff’s evidence was to the effect that defendant’s attitude toward the boys and herself continued through the entire married life and was progressively worse toward the end; that the final break was due to defendant’s conduct relative to some hoodlums or young men who came up to their home about midnight and drove into the driveway. She said she was sleeping in an upstairs bedroom with the window up and her head right in the window; that defendant was sleeping in an adjoining room; that she heard loud talking and their dog ran out and was barking; that she heard defendant say something to the dog and she heard him yelp as if being run over. She testified she asked defendant what they were saying or doing and he said nothing; that the next morning at breakfast she again asked him what happened and he still did not answer; that he finally said “As far as I know, your own sons were out there with those hoodlums, that last night; Your sons were out with those hoodlums”. She testified she asked him what he meant because at that time her older son was in the Navy and the other one was with his father in California and he said, “Well, I just mean what I said, * * * You heard what they shouted”. She told him she had not heard and he said that they said “Anna Chloe, come out. We want to”. Plaintiff said she did not understand what four letter word he said they used; that it meant they wanted to have intercourse with her; that she told defendant she did not believe that; that if they had called her name she would have heard them but he kept insisting they had. She testified she felt that anyone who would hate her so much as to make those statements, there wasn’t any use for her to stay with him; that she packed her clothes and when defendant came back at noon and took up right where he left off she could not take any more.

Defendant refused to let plaintiff take their daughter, Jennifer. He allowed her to pack one suitcase, took her to the bus station to go to her mother’s. She testified that he had said before this if anyone ever undertook to take Jennifer from him he would kill them.

She testified she and the defendant, before she left, went to see his attorney, Mr. Keet; that defendant tried to pass off the trouble as a little flareup; that she told the attorney this conduct had been going on for eleven years and there wasn’t any hope of them ever getting along the way he was.

Plaintiff denied that she refused to cooperate with defendant in building his estate or insisted on spending his money because the estate would not go to her sons. She detailed how, during their married life, she had canned foods and filled the freezer with foods; that she made almost all her clothing and that of their daughter; that she sewed for the boys, the doctor and his children. She testified she was not wasteful.

She offered evidence as to her good reputation for morality. She stated her younger son had, prior to their separation, tried to get her to leave the defendant but she still tried to make her married life go. She said that while she was visiting her mother in Portageville, before the separation, Jerry ran away; that he called her and she consented that he go with his father to California ; that he is now living with her and she is teaching school at Chadwick. She testified that in the latter part of her married life, defendant refused to allow her to employ help in the home, a fourteen room house; that he had been making the boys do housework and help with the washing and ironing.

As to defendant’s property the evidence shows that he owns farms, city property and had bank accounts in the value of between $100,000, and $150,000. We will not set out all of the testimony relative to his property because we think there really is no issue as to this. His earnings amounted to some $14,000.00 annually.

Plaintiff testified that the daughter was still in the custody of defendant; that she was being cared for either by a housekeeper or defendant’s uncle who is 80 years of age. Defendant testified that the girl was always with someone or with him. Regardless of which party is granted custody the child will remain in the Elfindale School.

In our opinion we will designate the parties as they appeared in the lower court, appellant as defendant and respondent as plaintiff.

It is the duty of this court to review the record de novo, make its own findings of fact and own conclusions. However, should irreconcilable conflict appear in the testimony we will defer in a large measure to the findings of the trial court who had advantage of seeing the witnesses and observing their manner of answering questions. Greenbury v. Greenbury, Mo.App., 223 S.W.2d 153; Cavaness v. Cavaness, Mo.App., 348 S.W.2d 572, 575 [4]; Mayor v. Mayor, Mo.App., 351 S.W.2d 810, 813 [1-4]; Doll v. Doll, Mo.App., 327 S.W.2d 501, 504 [1].

The primary question involved on this appeal is contained in point II of defendant’s assignments of error wherein he claims the trial court erred in finding plaintiff the innocent and injured party; that plaintiff did not sustain the burden of proof that defendant committed indignities which rendered her condition intolerable.

Under Section 452.010 RSMo 1959, V. A.M.S., it is provided: “* * * or shall offer such, indignities to the other as shall render his or her condition intolerable; ⅜ * ⅜ it

The law is that each case in which a divorce is sought on the ground of indignities must necessarily be determined by its own facts. Mayor v. Mayor, Mo.App., 351 S.W.2d 810, 813 [1-4]; Kinder v. Kinder, Mo.App., 267 S.W.2d 356; Richardson v. Richardson, Mo.App., 270 S.W.2d 68.

In Mayor v. Mayor, supra, 351 S.W.2d page 813, the court stated:

“ * * * Broadly speaking, the acts relied on must amount to a species of mental or physical cruelty, and must evidence a course of conduct by one spouse towards the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relation. Ames v. Ames, Mo.App., 284 S.W.2d 888; * * *." Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426; Miskimen v. Miskimen, Mo.App., 344 S.W.2d 289, 292[1]; Moore v. Moore, Mo.App., 337 S.W.2d 781, 786[2-8]; Elliston v. Elliston, Mo.App., 215 S.W.2d 63.

The authorities cited by defendant are in accord with the law as above set out.

In contested, as well as uncontested divorce actions, a party seeking a divorce has the burden of showing himself or herself to be the innocent and injured party. Section 452.020 RSMo 1959, V.A.M.S.; Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, 18 [2].

Applying the general rule set out in the authorities herein stated we find there was a settled and continuous course of conduct on the part of defendant toward his wife and her sons which indicated hatred, contempt or estrangement, and that plaintiff suffered much pain and humiliation because of defendant’s conduct. The incidents which produced this condition, as shown by the record, are scattered throughout the entire period of the parties’ married life. This long record is one unbroken story of contradictions, one side offering one version of the happenings and the other side offering evidence to the contrary. In such case we should, and will, defer to the findings of the trial judge who saw and heard the witnesses. Schneider v. Schneider, Mo.App., 293 S.W.2d 157, 163; White v. White, Mo.App., 312 S.W.2d 167, 169[1].

If plaintiff’s testimony is to be accepted as true, she is the innocent and injured party. It is unnecessary to restate the many indignities offered by defendant to plaintiff, as shown by the record testimony. The evidence shows that defendant was a Czar in the home. He treated his wife and her boys as servants. He continually fussed and argued over trivial matters, cursed and threatened both plaintiff and the boys. He even said he would use a baseball bat on the boys and knock their brains out. Plaintiff testified he would stand with his face right up in her face, tap her on the chest with his fingers and tell her what he would like to do. We think the evidence shows that defendant used an affair between his stepson, Bill, and their daughter, Jennifer, as a means of punishing and humiliating his wife by writing letters, not only to Bill’s commanding officer in the Navy, but to the relatives of plaintiff.

Defendant testified:

“Q. Have most of your differences with Mrs. Wilson been mere wranglings, or have they actually been serious, or- — •? A. Oh, it appeared that they were serious, lots of times, yes, and it usually had to do with the boys.”

Defendant admitted that he continually raised fusses with plaintiff and the boys at the table and did not deny her testimony that he pounded on the table with his fists. He merely said that was about the only time he had to meet the family. The testimony further shows that if plaintiff objected to defendant’s harsh discipline of her boys he would threaten to have her send them away. She was not even allowed to leave the home without his consent.

In 1956 plaintiff obtained a position in the schools at Sparta. On the night before school started defendant insisted she turn over her salary to him and he said it was because he thought she might want to spend more money for herself or her children. Her evidence was that he argued with her until 2:00 o’clock in the morning and told her that unless she signed the written agreement he had prepared, turning over her salary to him, she would not be allowed to attend school the next day. Defendant admitted he told plaintiff if she ever tried to take Jennifer away from him he would kill her. He admitted that shortly after the marriage he developed gonorrhea and because of that condition became cold and indifferent toward plaintiff. While he accused plaintiff of giving him the disease, his evidence plainly shows that such was not the truth. His evidence was further that he had no marital relations with plaintiff after 1956. She testified that his quarreling and abuse of her and the boys grew continually worse until the separation. Plaintiff stated that at the time of the separation she could not live with a man who showed so much hatred toward her. The evidence is undisputed that defendant, from the very beginning, would have nothing to do with plaintiff’s older son, called him “Pitchfork Pete” and said he was a confirmed liar. Plaintiff’s evidence further was that because of the defendant’s conduct in disputes with the superintendent of the school and his fussing with the school board, the board refused to rehire her. Defendant admitted circulating a petition to have the school board investigated. All of this conduct was very humiliating to plaintiff and defendant admitted his trouble with the school board created many enemies for him.

Later, plaintiff secured a position to teach in the Chadwick School District and defendant, again, interfered with her work by demanding that she insist the board pay her on a basis of nine months rather than twelve.

Defendant’s allegations in his cross-bill alleging indignities on the part of plaintiff are wholly unsupported by the evidence. If plaintiff’s testimony is to be taken as true, there is no basis for the charges in his cross-bill. Defendant’s evidence fails to support most of the alleged indignities. For instance, he admits he assisted plaintiff in securing the position to teach; that plaintiff turned over her salary to him, which he used to defray his expenses and to create his estate. There was no evidence that plaintiff ever stated she would leave defendant if he refused to permit her to teach. He failed to show any evidence of her extravagance but admits trouble over the discipline of plaintiff’s children was serious and the trial court was justified in finding that these troubles were the direct result of the wrongful conduct of defendant.

Defendant alleged that plaintiff wrongfully accused him of associating with other women. The evidence supports plaintiff’s testimony that defendant told her that Mrs. Workman was in love with him just after their marriage and his conduct in associating with this woman, as set out in our statement of facts, justified plaintiff’s suspicion. The mere fact that the people in the community publicly discussed such relations, some of them in the presence of plaintiff, refutes defendant’s contention that such accusation on the part of plaintiff was an indignity.

There certainly was nothing in defendant’s contention that plaintiff left his home without just cause. The record fully justifies her actions. The record is replete with evidence that the trial court was justified in granting plaintiff a divorce and finding her the injured and innocent party; that he was also justified in finding against defendant on his cross-bill.

Under point I, defendant alleges that plaintiff nagged at him about numerous matters, including his civil work, money and treatment of her boys.

It is unnecessary to discuss this alleged error, having fully gone into the matter under allegation No. II.

Under point III error is assigned to the action of the trial court in awarding custody of the parties’ daughter to plaintiff for the reason that it was not in the best interest of the child.

Defendant cites no authority under this alleged error. The law is well settled that in passing upon the custody of a minor child the primary question involved is the best interest of the child.

In Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 223 [6-9] the law is stated:

“There is no absolute rule by which it can be determined which of the two contesting parents is entitled to the custody of a child upon their separation, but each case must be judged on its own facts ‘and in determining where the custody of a child shall go, the acts and attitude of the parents toward each other, the causes leading to the divorce, their treatment of each other, and similar matters, are all material and admissible in evidence as bearing upon the question of the fitness of the respective parents to have the custody of their child.’ * ⅜ *»

The law is well settled that “ ‘all things being equal’, a child of tender years should be given into the custody of the mother.” Keith v. Keith, Mo.App., 95 S.W.2d 669, 672; Tootle v. Tootle, supra, 329 S.W.2d page 224. The guiding star which the courts must follow in determining the question of custody is the welfare and best interest of the child.

The findings of the trial court involving the custody of a minor child are not binding upon an appellate court, which must review the record for itself, but such findings will not lightly be disturbed, and will be deferred to unless the court is firmly convinced that the welfare of the child requires some other disposition. Lutker v. Lutker, Mo.App., 230 S.W.2d 177, 179.

In the instant case the evidence establishes that both the mother and father have great affection for the child who is now eleven years of age. Under such circumstances we think that this court should, and will, defer to the judgment of the trial court.

Under point V, error is alleged as to the action of the court in allowing plaintiff gross alimony in the sum of $10,000. Two reasons are assigned; first, that plaintiff is not entitled to a divorce and, secondly, as to the court’s action in setting aside the antenuptial contract on the ground of duress ; that if there were duress the contract was only voidable and plaintiff by her unreasonable delay or acquiescence, has ratified it.

To support this contention defendant cites Deibel v. Jefferson Bank, 200 Mo.App. 541, 207 S.W. 869. This case holds that a contract procured by duress is not void, but voidable only; and, if a party elects to repudiate it, he must do so within a reasonable time after the duress has been removed.

Koenig v. Koenig, Mo.App., 191 S.W.2d 269, cited, lays down the same rule of law as in the Deibel case.

Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707 is cited by defendant. This is an opinion by the Supreme Court and we think lays down the proper rule governing a decision of the issue raised under this alleged error.

The validity of an antenuptial contract was the issue in that case. In some respects the facts are similar to the case at bar.

The action was based on the theory that plaintiff did not understand the legal effect of the contract; that she was overreached by the defendant; that the consideration was grossly inadequate; that defendant led plaintiff to believe he was a man of small means and did not make a full disclosure of his property. The court stated that for the purpose of the case it would be assumed that plaintiff was well versed in business matters. However, it was conceded that the defendant did not make full disclosure of his property Lut took the position that plaintiff assumed the attitude of not being concerned about the amount of the property. The evidence was that Mathis told his prospective wife he was worth $40,-000.00; that he actually was worth more than $200,000.00. Plaintiff was defendant’s private secretary, took care of the household duties and her husband when ill. She took care of much of the details of her husband’s business; that while working for him she learned more about his property and she testified that at the time of the agreement she trusted the defendant. This law was stated on page 712 [3-5] by the court:

“Appellant in the brief says that marriage settlements are not against public policy but are favored by the law and the courts, citing 41 C.J.S., Husband and Wife, § 76, page 552. That statement is correct but we also note that in § 75, on the same page, it is stated, ‘Marriage settlements ordinarily are intended for maintenance and support, and particularly to guard the wife against the changes of fortune likely to occur in the husband’s affairs.’ One of the principal elements to the validity of an antenuptial contract is that the prospective husband must be fair and make a full disclosure of the extent of his property. 41 C.J.S. Husband and Wife § 80, page 554; 26 Am.Jur. 894, Sec. 289; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, loc. cit. 894(1-4), 74 A.L.R. 550; Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 791, loc. cit. 797(10). In this case Mathis did not make a full disclosure of his property. Not only did he fail to make full disclosure to his prospective wife but he failed to make such disclosure to the court at the hearing for temporary maintenance. * ⅜ *

“We may also consider the provisions of the contract, particularly the benefits to be received thereunder by the parties, in determining whether the contract should be set aside. 26 Am.Jur. 895, Sec. 290; 41 C.J.S., Husband and Wife, § 97, page 567, and cases cited under note 98, p. 568.”

The court, likewise, held in this case that appellant’s contention that plaintiff was exposed to facts which she should have discovered and made accurate estimate of Mathis’ property could not be sustained.

In 41 C.J.S. Husband and Wife § 80, page 554, it is stated:

“An antenuptial contract is valid and will be upheld when, and only when, it is entered into freely, fairly, knowingly, understanding^, and in good faith by parties legally competent to contract, the consideration therefor is sufficient, * * * it is free from fraud, deceit, imposition, or overreaching, is not unconscionable, * * * and its provisions are fair, just, reasonable, and equitable. The validity of the contract depends on the circumstances of the particular case, * * *

It is defendant’s contention that the trial court rejected the defense of the antenup-tial contract on the ground that defendant used duress in securing it.

In 17 C.J.S. Contracts § 168, page 525, the law is stated:

“ ‘Duress’ may be defined as subjecting a person to a pressure which overcomes his will and coerces him to comply with demands to which he would not yield if acting as a free agent, or as the condition of mind produced by an improper external pressure destroying free agency so as to cause the victim to act or contract without use of his own volition.”

Defendant admits, in the instant case, that he had this so-called antenuptial contract prepared by his attorney some two or three days prior to the marriage; that he put it in the glove compartment of his car and sometime the day before, he does not remember the exact time, while he and plaintiff were in the car, had her sign the original and two copies. He stated he told her he hated to ask her to sign it but, because of troubles with former wives, his attorney had advised him to have it done. He does not contend that he fully discussed the terms of the contracf with plaintiff; that she had ample time to read and note its contents or that it was fair and equitable. It must be remembered the parties were at that time engaged to be married and there existed between them a confidential relationship which required the utmost good faith and a high degree of fairness. 41 C.J.S. Husband and Wife § 80, page 554. Defendant does not remember whether he signed the contract when plaintiff did or when it was delivered to the notary public, whose acknowledgment appears on the same, but he does state that plaintiff did not appear before the notary for the purpose of acknowledging the instrument. We are of the opinion that this evidence, considered with plaintiff's testimony that the alleged contract was not signed until after the marriage and without her having been given the opportunity to examine the same or to understand its contents, the trial court was justified in finding the contract unenforceable because of duress.

However, under the law, Section 512.160 RSMo 1959, V.A.M.S., it is provided that the appellate court shall examine the transcript on appeal, award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such trial court ought to have given, as to the appellate court shall seem agreeable to law.

Under this provision of the law we find that the judgment of the trial court in setting aside this antenuptial contract was proper for the reason that it was not entered into freely, fairly, knowingly, understandingly, and in good faith. Defendant was not fair in that he did not make a full disclosure of the extent of his property.

We think plaintiff’s evidence, if believed, clearly shows she did not understand the legal effect of the contract when it was executed; she was overreached by the defendant and the consideration was grossly inadequate and in reaching our conclusion we have followed the law as declared in Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707.

We also find against defendant in his contention that by plaintiff’s unreasonable delay or acquiescence, she ratified it.

The evidence is that during the married life, and after the birth of their daughter, defendant led plaintiff to believe that the contract was no longer valid and the further fact that she contributed to the defendant’s estate some $12,000.00 in itself is a denial of this contention on the part of defendant.

The judgment is affirmed.

RUARK, P. J., concurs.

STONE, J., concurs in result.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    Emil KNUTSON, Petitioner, v. Sheldon RIPSON et al., Respondents.
    No. A-8485.
    Supreme Court of Texas.
    Jan. 17, 1962.
    Rehearing Denied March 21, 1962.
    Allen, Allen & Reavis, Perryton, for petitioner.
    Lemon, Close & Atkinson, Perryton, William Norton, Lowden, Iowa, for respondents.
   CULVER, Justice.

Petitioner, Knutson, brought this suit seeking damages for the breach of a contract whereby Knutson agreed to sell, and the respondents, Ripson, Norton and House, agreed to buy approximately 1200 head of cattle. To the following Special Issue “Do you find from a preponderance of the evidence that the liability, if any, of the defendants under the contract in question,, was not settled and discharged by Emil Knutson by his acceptance of the checks delivered to him by defendants on November 11, 1959?”, the jury answered: “It was settled and discharged.”

The trial court thereupon entered a judgment for defendant that plaintiff take nothing. On appeal, 346 S.W.2d 424, this judgment was reversed and the cause remanded for a new trial. Both Knutson and Ripson et al. bring applications for writs of error praying that the judgment of the Court of Civil Appeals be reversed and rendered in their favor.

Knutson contends that there is no evidence to support the finding of the jury in answer to the foregoing special issue.

The written contract between the parties provided for the purchase and sale of some 1200 cattle at a stipulated price per pound. The cattle were to be delivered at the option of the purchasers between August 1 and November 15, 1959. The contract further provided that Ripson and his associates would deposit with Knutson the sum of $18,000.00 “as escrow” or “forfeit money,” which figured $15.00 per head. Three separate lots were delivered on different occasions and settlement made on each delivery. On those occasions Knutson allowed to the purchasers credit for $15.00 per head and deducted those sums from the forfeit money.

Purchasers had requested that half of the steers totalling 700 be delivered on September 23rd., but Knutson delivered only 232 steers giving as his reason that he thought Ripson was unreasonable in making that request and “they were not fat enough for me”. At the time of the last delivery on November 11th. Ripson refused to take more of the steers than had been delivered to him on the last occasion. Whereupon Knutson offered to sell the remainder to him at a reduced price, which offer was re-j ected.

Thereafter the parties proceeded to the bank where checks were given to Knutson for the 233 head so delivered. In this transaction Knutson gave Ripson credit for some $800.00 that had been paid to him in error on a former delivery and also credited Ripson with the entire balance of the forfeit money. Admittedly the check given by Rip-son did not contain any notation to the effect that it was in full settlement, nor was anything said to that effect by any of the parties. However, under all the facts and circumstances we cannot say that the Court of Civil Appeals was in error in holding that there was some evidence to warrant a finding of fact that the parties had intended to make a settlement of the matter in their last transaction, or that Knutson led Ripson to believe that by the acceptance of the checks the matters in controversy would be settled.

The Court of Civil Appeals further held in its remand of the case that the issue as submitted called for the jury to make a finding upon a question of law rather than on a question of fact and on that point we are also of the opinion that the Court of 'Civil Appeals did not err. See Burgess et al. v. Sylvester, 143 Tex. 25, 182 S.W.2d 358; Kemper v. Police & Firemen’s Ins. Ass’n, 48 S.W.2d 254, Tex.Ccm.App.; Hough v. Grapotte, 127 Tex. 144, 90 S.W.2d 1090.

Ripson, in support of his contention that the issue properly submits a fact question and not one of law, cites Root & Fehl v. Murray Tool Co., 26 S.W.2d 189, Tex.Com.App., where the issue was submitted as follows:

“On October 14th, 1926, when the defendants delivered a check of $254.71, was it agreed between the parties that this would be in full satisfaction of all claims and controversies, if any, theretofore existing between the parties?”

That issue asked for a finding as to whether or not the parties made an agreement, which is an issue of fact; while the one in the case before us inquires as to the effect of the acceptance of the checks upon the contract liability of the defendants,, which is a question of law. Therein lies the distinction.

The judgment of the Court of Civil Appeals is affirmed.


author: NORVELL, Justice.

text:
    The STATE OF CALIFORNIA DEPARTMENT OF MENTAL HYGIENE, Petitioner, v. BANK OF the SOUTHWEST NATIONAL ASSOCIATION et al., Respondents.
    No. A-8640.
    Supreme Court of Texas.
    Feb. 21, 1962.
    Rehearing Denied March 21, 1962.

      Stanley Mosk, Atty. Gen., Sacramento, Cal., Elizabeth Palmer, Deputy Atty. Gen., Dillingham, Schleider & Lewis (Ben H. Schleider, Jr., and John S. Brunson, Houston, with firm), Sam L. Sterrett, Jr., Houston, for petitioner.
    Baker, Botts, Andrews & Shepherd, Houston (Wm. R. Choate, Houston, with firm), for respondents.
   NORVELL, Justice.

This is a suit to recover moneys expended in caring for the beneficiary of a support trust. The case turns upon the construction of the trust instrument. The State of California Department of Mental Hygiene sued the Bank of the Southwest, as trustee, and the heirs of Henrietta Cargill Adkins, a beneficiary of the trust, claiming some $5,000 was due the department under the terms of a testamentary trust established by Ennis Cargill. The trial court rendered a summary judgment that plaintiff take nothing and the Court of Civil Appeals has affirmed. 348 S.W.2d 731.

Ennis Cargill died testate on November 26, 1938. His will created a testamentary trust for the benefit of his two daughters, Ruby Tennie Cargill and Henrietta Cargill Adkins. Pertinent portions of the trust instrument are set forth in the opinion of the Court of Civil Appeals. The provisions having a particular bearing upon our holdings are as follows:

“(b) My daughter Ruby Tennie Cargill (born 4 Dec. 1898) is at the time of the execution of this will confined in a state hospital of the State of California; * * * having been committed to said institution on December 22, 1932. I have been catted upon to make payments in amounts not exceeding $25. per month for the purpose of maintaining her in said institution and defraying additional incidental expenses. So long as my said daughter is confined in said institution, or in any other institution, I direct the Trustee to pay to the proper authorities of such institution for the use and benefit of my said daughter and to defray the expense of her maintenance therein a like sum of money each month, unless a greater or lesser amount is required, in which event the Trustee shall pay the amount so required, provided, however, that in no event shall the amounts so paid exceed the maximum amount required by such institution from time to time for persons confined under such circumstances and for reasons similar to those which brought about the commitment of my said daughter. In any event the amounts so to be paid and expended by the Trustee shall be determined in its unlimited judgment and discretion taking into consideration all facts and circumstances attendant upon my said daughter’s condition and requirements. In lieu of payments to said institution the Trustee may make payments in like amounts to the mother of my said daughter in reimbursement of sums paid out by her for such purposes.
“In the event that my said daughter has been released from said institution prior to my death, or should she be released by due, proper and legal proceedings after my death, by reason of the cessation of the cause of her commitment thereto, then and in either of such events, I direct that the Trustee shall pay to her out of the net income $150. per month for and during the term of her natural life, or until such time as she may again be committed to the same or a similar institution, in which event the provisions set forth in the next preceding paragraph of this sub-paragraph (b) shall become applicable. * * *
“(d) When my daughter Henrietta Cargill reaches the age of 40 years, or upon her death prior thereto, if my daughter Ruby Tennie Cargill, be then living, the Trustee shall, subject to the further provisions hereof, set apart and hold under the further provisions hereof such portion of the Trust Estate as shall at time thereof yield at the then reasonable rate of return on •nvestments the sum of $1800. per annum net over and above the then reasonable expenses of administering said fund hereunder, including the compensation of the Trustee. Such fund so set apart shall be held during the natural life of my daughter, Ruby Tennie Cargill, and the net income therefrom shall be utilized, expended and paid to or for her as provided in sub-paragraph (b) above. The balance of the Trust Estate then remaining, or if my daughter Ruby Tennie Cargill be then dead, the entire Trust Estate shall be paid and delivered, free of the Trust, to my daughter Henrietta Cargill, and the Trust shall terminate with respect thereto. Upon the death of my daughter, Ruby Tennie Cargill, the portion of the Trust Estate set apart and held for her as above provided shall be paid and delivered, free of the Trust, to my daughter, Henrietta Cargill, and the Trust shall terminate with respect thereto. * * *
“(g) * * * During the time that my dartghter Ruby Tennie Cargill is confined in an institution, or thereafter, the Trustee may make from time to time disbursements from the excess net income and/or principal of the Trust Estate, or from the portion set apart for her, as above provided, to meet any emergency or necessity arising, in like manner and for like purposes as specified in the next preceding paragraph, the amount, time, and desirability of and the necessity for such disbursements to be determined wholly in the discretion of the Trustee.” (Italics added)

Henrietta Cargill Adkins became forty years of age in 1952, whereupon the trustee partitioned the estate in accordance with the provisions of the trust instrument. A portion calculated to yield a net sum of $1800 per year was retained for the benefit ■ of Ruby Tennie Cargill, and the balance distributed to Henrietta Cargill Adkins free of trust. The latter died in 1956, and her surviving husband and children are respondents here.

Ruby Tennie Cargill is incurably insane and has been a patient in the state hospitals of California at all times material to this suit. Upon the testator’s death in 1938, the trustee made payments of $25.00 monthly to Mrs. Ruby Cargill, mother of Ruby Tennie Cargill, as reimbursement for payments made by her to the California agency. When Mrs. Cargill died in 1952, the trustee sent the $25.00 payment directly to petitioner. These monthly payments continued through 1956.

In February, 1957, petitioner wrote the trustee that the current charge for care and treatment of Ruby Tennie Cargill was $134.00 per month. Petitioner also demanded $5100.00 as reimbursement for past support, claiming that this sum, together with the $25.00 per month which had been paid represented the reasonable and actual expense of maintaining Ruby Tennie Car-gill from 1952 to 1957. This letter was the first advice which the trustee received that a charge in excess of $25.00 per month was due and payable for the support of Ruby Tennie Cargill.

Shortly after receipt of this letter, the trustee commenced making payments of $134.00 per month. It refused however to pay the additional $5100.00 demanded for back support and that sum is the subject matter of this litigation.

In affirming the trial court’s summary judgment against petitioner, the Court of Civil Appeals held that under the trust instrument, it was necessary for petitioner to demand in advance an increase in support payments before the trustee would be liable therefor. Section (b) of the trust instrument, above quoted, directs the trustee to pay $25.00 per month to petitioner “unless a greater or lesser amount is required, in which event the Trustee shall pay the amount so required * *

Petitioner urges that the word “required”, as used by this testator, should be construed as synonymous with “needed”, rather than with “demanded”, as held by the courts below. It is said that the trust instrument requires the trustee to pay all reasonable and necessary support charges regardless of whether or not there was an advance demand therefor. In support of this contention, petitioner cites a number of cases in which the courts have defined “required” to mean “needed” under various factual situations. Boyce v. Stringfellow, 52 Tex.Civ.App. 504, 114 S.W. 652, no wr. hist., and cases cited therein; Hull v. Holloway, Sup.Ct. of Errors, 58 Conn. 210, 20 A. 445; In re Martin’s Will, 269 N.Y. 305, 199 N.E. 491.

There are also cases which announce the definition sought by respondents. See, Bain v. Coats, Tex.Com.App., 244 S.W. 130. Webster’s Third New International Dictionary gives definitions of the word “require” which support both positions. The only conclusion to be drawn from these authorities is the oft-repeated truism that words are simply implements of communication, and imperfect ones at that. Oftentimes they cannot be assigned a rigid meaning, inherent in themselves. Rather, their meaning turns upon use, adaptation and context as they are employed to fit various and varying situations.

Petitioner contends that to equate “required” with “demanded” would violate the manifest intentions of the testator in that it would eliminate all discretionary-authority of the trustee and reduce the trustee to a mere bookkeeper or disbursing agent. It is said that such a construction would relieve the trustee of its duty to look after the welfare and needs of the beneficiary, Ruby Tennie Cargill. This argument is based upon the proposition that the two possible definitions of “required” are mutually exclusive. Thus, petitioner says that if the trustee need not pay additional support money unless such is demanded, he is divested of all discretion in seeing that the beneficiary’s needs are met.

In the event of a demand for increased support payments, it would seem that under the provisions of the will the trustee would have the right to determine whether such increases were necessary to the well-being of the beneficiary before complying with the request. Indeed, the testator gave one guide to the trustee in making such a determination by stating in the trust instrument that “in no event shall the amounts so paid exceed the maximum amount required by such institution from time to time for persons confined under such circumstances and for reasons similar to those which brought about the commitment of my said daughter.” We might add that the testator’s use of the word “required” in the phrase, “maximum amount required by such institution”, is clearly used as being synonymous with “demanded” and is referable to a uniform charge set by the institution. To equate “required” with “needed” in this particular phrase would mean an instruction to the trustee to' see that the beneficiary, Ruby Tennie Cargill, needs no more than does any other patient similarly committed. We cannot ascribe such a highly unlikely intention to this testator.

Moreover, the trust instrument itself recites that the testator had been “called upon to make payments in amounts not exceeding $25.00 per month”, and then directs the trustee to pay “a like sum of money each month, unless a greater or lesser sum is required.” The testator obviously believed, and rightfully so, that his daughter was in the hands of a competent, efficient state hospital. In a normal, business-like manner he had been “called upon” to pay a stipulated monthly sum to this hospital and directed his trustee to do likewise unless more money was “required”. We do not believe that the testator intended for the trustee to make periodic inquiries into the administration of this public hospital to see if the latter should be charging higher fees for its services. It seems the testator, and thereafter the trustee, could reasonably assume that petitioner was taking care of the beneficiary to the best of its capabilities at all times and that if it needed additional funds it would make a request therefor as it eventually did. Clearly the payment of this retroactive demand would not have any effect on the care already received by the beneficiary prior to 1957.

When we examine the circumstances surrounding the execution of the trust instrument as evidenced by the recitations appearing in Mr. Cargill’s will, there are a number of matters that become reasonably clear. Mr. Cargill was not under the impression that the meager sum of $25.00 per month was sufficient to pay all of the actual expenses incident to his daughter’s residence in the California institution. As he was called upon to pay only $25.00 per month and directed that after his death such amount be paid unless more be required, he clearly contemplated that within prescribed limits the institution should set the amount to be charged. He plainly provided that the trust which he created should not pay more for his daughter’s care than was required of others similarly situated.

From these circumstances, it seems clear that the settlor contemplated that the amount to be paid by the trust should be determined by the uniform rate set by the institution and demanded of those under some legal obligation to support an unfortunate residing in the state institution.

A number of factors enter into the rates or charges made by state and tax-supported institutions of an eleemosynary nature. In some, all expenses essential to the keep of the inmates is borne by the state or other governmental organization. In others, such expenses, theoretically at least, are to be borne by those legally liable for the support of an inmate, such as the parent or husband of an unfortunate, provided of course the person so liable is financially able to bear such burden. In still others, the expense may be borne in part by the state or some public institution and part by the family. Cargill may have considered that $25.00 per month was the family’s share of the expense for keeping his daughter. In all events, even for depression times it would be incongruous to say, in view of the provisions of the will, that he considered that the $25.00 monthly payments covered all his daughter’s needs and that the trustee should, from time to time, make inquiry and determine if a greater sum was needed. It appears that prior to his death, he had been making the payments required of him by the California state department. He intended that the trust should continue to make these payments as he had done. The word “required” necessarily referred to some action in the form of a demand on the part of the California agency.

It is perhaps in order to point out some distinctions. This is not a case in which support payments pass directly from a trustee to a needy beneficiary, nor do we have a situation where the beneficiary is in the care of a friend or relative who recoups expenses periodically from the trustee. Admittedly in such cases the trustee would have a more direct responsibility in caring for the beneficiary, and it is probable that the support payments would be more variable in amount and perhaps more irregular in interval. In the present case, however, the only authority that could logically determine the amount of funds required for the beneficiary’s maintenance would be the officers of the mental hospital. Only they themselves could determine whether or not the petitioner was demanding enough money for the care of Miss Cargill in accordance with the policy of the State and the operational methods of the institution. The case of State v. Rubion, 158 Tex. 43, 308 S.W.2d 4, involved a suit by a state hospital for reimbursement for support of the beneficiary of a trust, but the rule of that case does not militate against the result we have reached here. The stated purpose of the trust instrument in Rubion was to “provide a means of support for my granddaughter and adopted daughter, Ella Hansley, in so far as such estate will permit, and to provide for her both in sickness and health, using 'therefor either the income or corpus of such estate, or both as the exigencies of the situation may require.” This Court held that the trustee abused his discretion in refusing to make any provision for the payment of the State’s claim, either in whole or in part. The ultimate issue in that case, however, as it is here, was the intent of the testator as reflected in the language of the trust instrument. In Rubion, the Court narrowed the question to whether the testator intended for the trust res to be used for present support and maintenance of the beneficiary or whether it was intended that none of it be used until the beneficiary was discharged from the state hospital. We do not regard this case as being in point upon the issue of the testator’s intent insofar as the present trust instrument is concerned.

Here, as in the Court of Civil Appeals, the petitioner contends that there is a fact issue of fraud in the case. It is contended that the opening sentence of a 1952 letter of information from the trustee to petitioner misled petitioner’s officers into believing that the trust instrument provided for a maximum support payment of $25.00 per month. An allegation raising this contention is not contained in petitioner’s pleadings and was not raised in the trial court. The issue cannot be raised for the first time on appeal.

Our construction of the trust instrument herein set forth makes it unnecessary to discuss other matters and contentions contained in the briefs.

The judgment of the Court of Civil Appeals is affirmed.

      . Since 1957, tlie expense of maintaining Ruby Tennie Cargill has increased from §134.00 monthly to $17S.OO and later to §183.00 per month. The trustee has made payments accordingly. There is no dispute as to expenses after. February of 1957, as the trustee has paid all sums requested by petitioner.

      . The well-known dictum of Mr. Justice Holmes seems particularly appropriate here:
      “Words do not always mean the same . thing. A ‘word’ is not a crystal, transparent and unchanged: it is the skin of a living thought and may very greatly in color and content according to the circumstances in which it is used. Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372.”


author: McDonald, judge.

text:
    John Wesley STATON, Appellant, v. The STATE of Texas, Appellee.
    No. 34350.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty, Samuel IT. Robertson, Jr., Carl E. F. Dally, I. D. Mc-Master, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the offense of unlawfully carrying a pistol and his punishment assessed at a fine of $200.

Trial was before the court without a jury.

Officer J. D. Liles testified that on the night in question, he stopped the appellant and issued him a ticket for speeding after he had observed appellant traveling at a “high rate of speed” and “exceeding” the speed limit on Telephone Road in the city of Houston. Officer Liles stated that appellant had been drinking, was belligerent and that he was carried to the police station by other officers. He further testified that he proceeded to search the appellant’s automobile and as a result of the search found a pistol in the front seat which had one shell in the chamber and eight in the slip.

Appellant did not testify or offer any evidence in his behalf and no brief has been filed in his behalf.

Appellant’s sole contention in the trial court was that his arrest by Officer Liles for speeding was unlawful and the subsequent search of his automobile without a warrant was illegal.

The testimony of Officer Liles that he observed appellant violating a traffic law by speeding authorized his arrest without a warrant and the incidental search of his automobile. Art. 803 Vernon’s Ann.P.C. Scott v. State, 134 Tex.Cr.R. 193, 114 S.W.2d 565; Linthicum v. State, 134 Tex.Cr.R. 608, 116 S.W.2d 714; Minor v. State, Tex.Cr.App., 219 S.W.2d 467, and Douglas v. State, Tex.Cr.App., 318 S.W.2d 643.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Lonnie Marchel TISDALE, Appellant, v. The STATE of Texas, Appellee.
    No. 33888.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Allen, Allen & Reavis, by Don H. Reavis, Perryton, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public road while intoxicated; the punishment, 3 days in jail and a fine of $50.

The evidence shows that appellant was intoxicated and was driving an automobile. The arresting officers so testified and it was shown that a sample of his blood showed that it contained .32 percent alcohol, .10 percent or more indicating intoxication.

After the state had introduced its evidence, appellant moved for a directed verdict upon the ground that the state had failed to prove that the offense alleged was committed in Ochiltree County.

Patrolman Harvey Deharde testified in part:

“Q. When did you last see Mr. Tisdale, before today?
“A. December 30th of this past year * * * it was on a Friday night.
“Q. Of 1960? A. Yes, sir.
“Q. In what county? A. Ochil-tree County.
“Q. Whereabouts in Ochiltree County ?
“A. The first time I saw Mr. Tis-dale that evening was after stopping him approximately ten miles south of Perryton on State Highway 70. * *
“A. I first observed Mr. Tisdale at the intersection of U. S. 83 and State Highway 70. * * *
“Q. Seven miles south of town? A. Yes. We were heading north, my pardner and I. * * *
“A. * * * We were coming north approaching the 'Stop’ sign there, had slowed to make a stop when we first observed Mr. Tisdale coming off of U. S. 83, coming from the direction of Perryton, and he was turning right onto State Highway 70 going toward Pampa.”

In view of this evidence, the trial court did not err in declining to instruct a verdict of not guilty.

Appellant’s remaining ground for reversal is his Bill of Exception No. 3, relating to the oath administered to the jury.

The bill certifies that the clerk read the oath to the jury which we note is in the form provided in Texas Rule of Civil Procedure 236, and appropriate to be administered to a jury panel. It further certifies that after the state had closed, motion for directed verdict for the reason that the jury had not been properly sworn as required by law was overruled, to which appellant excepted.

The contention is advanced that reversal should be ordered because the oath provided by Art. 639, C.C.P. was not administered to the jury selected.

The bill of exception does not present this question for review.

It certifies that the appropriate oath for the panel of jurors was administered. It does not certify that the jury selected was not also sworn as provided in Art. 639, C.C.P., “in the case of the State of Texas against the defendant.”

The judgment is affirmed.


text:
    Jack Harold TRUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34340.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.
    Joe Burkett, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 25 days in jail and a fine of $100.

Staff Sergeant R. L. Grissett, called out of the Ali-Hafe bar about 10:30 P.M., found that his parked automobile had been struck from the rear by another automobile. The appellant, who was standing in front of the second car which was damaged in the front, told Sergeant Grissett that he was driving said car, and said: “I hit your car, I had too many, I just had too many drinks this evening, and I just got too close to your car.”

Sergeant Grissett, Patrolman Robert Fleming and detective-investigator Barney Sams expressed the opinion that appellant was intoxicated. They described appellant’s speech as being slurred and incoherent, testified that he was staggering and had a strong smell of intoxicants on his breath.

Appellant called Joseph Panelli as a witness. He testified that appellant was in his place of business until about 9 P.M. on the night in question, and he was sober. On cross-examination he testified that he served beer at his place of business and that appellant “was drinking a few beers”; that he did not pay much attention to appellant because he was playing dominoes and appellant was playing pool, and testified: “I don’t think he drank over five as far as I know, when I was there.”

The grounds upon which reversal is sought relate to the testimony of Police Officers Barney Sams and Harold Fiske regarding a drunkometer test taken with appellant’s consent, Officer Sams having run the test and Officer Fiske, assigned to the Police Laboratory, having weighed the as-carite tube used in the test and calculated the blood alcohol content of the person who took the test to be “decimal one seventy-six or decimal one seven”, which indicated intoxication.

We see no error in the admission in evidence of a photograph of the appellant which Officer Fleming testified was “a true and fair and accurate representation of the defendant as he appeared on the night you arrested him”, over objection that it was not shown when the photograph was. taken and how it was taken and by whom..

The picture which the witness testified was a- fair and accurate representation of the Harger drunkometer he used' in running the test on appellant is not: found in the record. The court’s ruling ins admitting this picture in evidence does not appear to be erroneous.

Appellant contends that Officers Sams and Fiske were not competent to run a proper drunkometer test, and that the court erred in allowing them to testify with reference to such test.

We overruled such contention as to Officer Fiske’s qualifications in McGee v. State, No. 34,276, Tex.Cr.App., 355 S.W.2d 187.

Officer Sams was shown to have had training in the police laboratory under Lieutenant Morales, whose qualifications were before us in Fluitt v. State, Tex.Cr.App., 333 S.W.2d 144, and under Officer Harold Fiske in running the test and sealing the ascarite tube, and the evidence shows that Officer Fiske checked the drunkometer and ascarite tube on April 21st and again on April 24th.

Officer Sams appears to have been qualified in the use of the drunkometer. He testified that he was not a chemist and had nothing to do with the results of the test, but knew how to operate the drunkometer. He testified that he sealed the ascarite tube and placed it in a glass vial, and Officer Fiske testified that he received the tube and took it to the laboratory.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed,


author: BELCHER, Commissioner.

text:
    John G. LEHMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34294.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Kenneth B. Kramer, Wichita .Falls, for appellant.
    Stanley Kirk, Dist. Atty., Timothy D. Eyssen, James H. Doores, Asst. Dist. Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

• The offense of statutory rape was alleged to have been committed on or about May 17, 1961; the punishment, 40 years.

The testimony shows that the appellant and his wife slept in the house and their four children slept in a house-trailer adjacent to the house. The prosecutrix and her two younger brothers slept in the same room, with her bed nearest to the house, and her older sister slept in a separate room in the trailer.

The prosecutrix, age 15 when the trial began July 28, 1961, testified that about 18 months before the trial the appellant first came to her bed in the trailer, sat on :the bed, pulled the cover back, removed the bottoms of her pajamas and placed his hands on her private parts. She asked him to quit and pushed him away, but he told her to be quiet which she did because she Was afraid of him. After lowering his pants' and removing his privates, he got on top of her and placed his private parts into her private parts. She told him that he was hurting her and after a short time he left. She further testified that after the first time he would come to her 'bed about' once a week, although sometimes it would be less frequently, and everytime he came he did the same thing. The last time that he came was about the middle of May, 1961, when he did the same thing to her that he had done before. On further examination about what occurred on the night in the middle of May, she testified as follows:

“Q. Did he have his private parts in you then?
“A. Yes.
“Q. Did he keep his private parts in yours very long that time?
“A. No.
“Q. How long would you say?
“A. Oh, it was two or three minutes.”

She further testified that she would cry during these times, but that she did not try to wake up her brothers or sister because she was afraid of the appellant; that she never told her mother because she was afraid the appellant would hurt her.

On cross-examination, the prosecutrix testified that on the night in May when the appellant put something inside her privates that it could have been his hand, but she did not know for sure.

On redirect-examination, she testified as follows:

“Q. Now when you say that — now you are talking about in May when he tried to put his private parts in your private parts again, is that right?
“A. Yes.
“Q. And when you say he tried to, do you mean that he was not able to put his private parts in your private parts at all?
“A. No.
“Q. Do you think that he only put his private parts into you just a little way?
“A. Yes.
“Q. But he did do that the last time he came in there, in the middle of May?
“A. Yes.”

On recross-examination, she testified that when the appellant last came into the trailer in May she could not be sure what he put between her legs.

A physician testified that his examination of the prosecutrix about four weeks before the trial showed that the orifice of her sexual parts was large enough to receive the private parts of a male. On cross-examination, he testified that such enlarged condition could have been caused by the repeated use of the hand.

The appellant’s written statement made May 22, 1961, and introduced in evidence by the state, recites in part: “For the last year I have been going out to the trailer * * *. I would take her (prosecutrix’) pajama bottoms off and play with her sexual parts * * *. Within the last week I was out in the trailer with (prosecutrix) and I played with her sexual parts * * *. ■ I knew this is wrong and I knew it was wrong when I did it * * *.”

The appellant did not testify, but he called a physician who testified that he had examined the appellant. From his examination, he stated that the appellant had an inadequate personality and a certain-degree of emotional instability, but that he knew right from wrong as to the act with which he is charged.

The evidence is sufficient to support the conviction.

Appellant contends that the trial court erred in denying him the right to question every venireman as to whether he had conscientious scruples regarding the giving of the death penalty in a proper case.

There is no showing in the record what the answer of any venireman would have been, and there is nothing to show that any objectionable juror served on the jury, or that appellant exhausted his peremptory challenges, or that appellant was prejudiced because any juror had or did not have conscientious scruples against the infliction of death as a- punishment for the crime of rape.

Williams v. State, 147 Tex.Cr.R. 178, 179 S.W.2d 297, sustains our conclusion that reversible error is not shown. It is observed that no motion for a new trial was filed, and the court in its charge to the jury did not mention the death penalty.

The judgment is affirmed.

Opinion approved by the Court.


author: WALTER, Justice.

text:
    Mrs. Norah McCAIN et al., Appellants, v. W. S. SWILLEY et al., Appellees.
    No. 3671.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1962.
    Rehearing Denied March 2, 1962.
    Able & Graham, P. Harvey, John Randolph and Taylor J. Hughes, Houston, for appellants.
    Hamblen & Hamblen, Houston, Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, for appellees.
   WALTER, Justice.

Appealed from the 125th District Court of Harris County.

This trespass to try title suit was filed by George Grozier, a person of unsound mind, acting by his next friend, R. F. Grozier, against W. S. Swilley. The original parties died. George Grozier died in the Austin State Hospital for the insane. The plaintiffs, appellants herein, claim under the original plaintiff, and the defendants, appellees herein, claim under the original defendants. The property in controversy is an undivided ¾sth interest in Lot number 3 and an undivided %rihs interest in Lot 5 of the subdivision of the Georg'e Young land in the southwest part of the Victor Blanco grant in Harris County, Texas.

The defendants pleaded a general denial, not guilty and the three, five, ten and twenty-five year statutes of limitation. The only issues submitted to the jury were defendants’ issues on limitations. All of defendants’ limitation issues were found against them. However, the court rendered judgment for the defendants on their motion for judgment non obstante vere-dicto.

The parties will be referred to as they were designated in the trial court. The plaintiffs have appealed contending the court erred (1) in granting defendants’ motion for judgment, (2) in refusing to admit in evidence the petition in the case of Wagers v. Swilley, 220 S.W.2d 673, and the judgment and opinion of the Court of Civil Appeals in said case, (3) in failing to overrule the third and fourth grounds contained in defendants’ motion for judgment, and (4) in concluding that the plaintiffs had failed to prove title to the property in controversy.

One of the controlling questions was presented in the defendants’ motion for an instructed verdict and is as follows: “Plaintiff, relying upon record title has wholly failed to show any title out of Lorenzo de Zavalla, Jr., and into Emily Hand, and that plaintiff’s chain of title and proof out of Emily Hand is therefore not connected with the title of Lorenzo de Zavalla, Jr., and by reason of this omission to make such proof plaintiff has wholly failed to show record title.” The motion for an instructed verdict was overruled.

It was stipulated that record title to the land in controversy was vested in Lorenzo de Zavalla, Jr., on or about April 30, 1839.

Defendants contend that plaintiffs failed to show, either as a matter of fact or law, that title passed from Zavalla to Hand. They also contend it was a fact issue which was not submitted by the court or requested by the plaintiffs. The defendants contend it was therefore waived under Texas Rules of Civil Procedure 279.

Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626, (Writ Ref.), decided March 7, 1912, is the first case involving the subject matter of the present litigation. In order to understand the basic facts and the background of the present litigation, it is deemed advisable to copy the following portions from the opinion:

“Appellant filed suit in the district court of Harris County against ap-pellees in trespass to try title, seeking to recover certain land out of the Victor Blanco five-league grant in said county.
“In 1835 title to three leagues in the lower part of the Victor Blanco grant was vested in Lorenzo De Zavalla, Jr.; the premises in controversy herein being a part thereof. Appellant claims title by regular chain from De Zavalla, and defendants claim title under numerous duly recorded conveyances originally emanating from Emily Hand. Appellees contend that the premises in controversy were, in fact, conveyed by De Zavalla to Emily Hand by deed conveying 2,000 acres of land. There is no direct evidence of such a deed; but appellees rely upon facts and circumstances to evidence the presumption that such a conveyance was, in fact, executed.
“The case was tried before a jury, and the sole question submitted to the jury for their determination was whether or not, from all the facts and circumstances in evidence, there was at some time such a deed executed by De Zavalla to Emily Hand, which issue the jury answered by stating, ‘We find that there was a deed made to 2,000 acres of the Victor Blanco grant by Lorenzo De Zavalla, Jr., to Emily Hand,’ upon which verdict judgment was accordingly rendered by the court in favor of appellees.
“The gist of the various propositions urged by appellant under the first assignment of error is that the evidence was insufficient to warrant the court in submitting such an issue to the jury, and that the evidence is insufficient to support the jury’s finding that there was such a deed.
“The majority of the court is of the opinion that the finding of the jury in - support of the presumption of a conveyance to Emily Hand by De Zavalla of the 2,000 acres of land is supported by the long-continued use and possession of the land, as above stated, by the Youngs and those claiming under them, under numerous recorded deeds, accompanied by the payment of taxes by them, and no assertion of claim of title thereto upon part of De Zavalla up until the time of the filing of this suit.” ;

Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673 (Writ Ref. N.R.E.), decided May 5, 1949, is the second case involving the subject matter of the present litigation. The Swilleys were plaintiffs and Wagers was the defendant in this case' and we will refer to them as they were designated in the trial court. In addition • to pleading trespass to try title in statutory form, plaintiffs also pleaded the 3, S, 10 and 25 year statutes of. limitation. The defendant pleaded not guilty and the 10 year statute of limitation.. The Swilleys contended there was a presumption of a deed from Lorenzo de Zavalla, Jr., to Emily Hand and .relied on the case of Masterson v. Harrington. The court said:

“As stated above, the abstract of title filed by plaintiffs contained the proceedings in the Masterson-Harring-ton case. The judgment in that case established that Emily Hand was, with respect to the 2000 acres which were partitioned among the Young heirs, the vendee of Lorenzo De Zavalla, Jr. In that suit it was decided that Lorenzo De Zavalla, Jr.; had conveyed the title to the 2000 acres to his mother, who ■had’conveyed to George Young, before he conveyed his title to the lower three .leagues to- H.’ Masterson in 1903. Hence there is no break in the chain of title from the sovereignty of the soil to the Young heirs. * * *
“And while the judgment in the Masterson-Harrington case is not res adjudicata as to defendant, the doctrine of stare decisis renders the judgment binding with respect to what was there determined.”

One of the matters determined by the Masterson-Harrington case was the conveyance of the land from Zavalla to Hand. We hold that under the doctrine of stare decisis the plaintiffs were entitled to rely upon this presumption of a deed in establishing their title. We hold that the judgments in Masterson v. Harrington and Wagers v. Swilley were available to plaintiffs in this case as a muniment of title as effectually as a recorded conveyance from Zavalla to Hand. “The doctrine of stare decisis has been applied to decisions of courts in respect to boundaries; breaks in titles and the legal effect of written instruments and property rights.” 15 Tex. Jur.2d, page 592, paragraph 132.

The Swilleys contended in the Wagers case that there was a presumption of a deed from Zavalla to Hand and were successful in maintaining that contention. After successfully maintaining such position, we hold they are now estopped to take a contrary position to the prejudice of the plaintiffs. See Mayfield Company v. Rushing et al., 133 Tex. 120, 127 S.W.2d 185, 124 A.L.R. 1210; Long v. Knox, 155 Tex. 581, 291 S.W.2d 292.

Defendants claim title to Lot number 5 under a final judgment dated February 16, 1911, in a trespass to try title case. The plaintiffs claim under George Grozier, described in the judgment as a lunatic. The judgment recites: that the lunatic had been served as the law directs; that A. R. Hamblen had theretofore been appointed by the court to represent him; :that the plaintiff had offered in settlement of the lunatic’s interest the sum of $150.-00; that the lunatic’s attorney informed the court said compromise was a fair, just and proper consideration for the lunatic’s interest ; that it so appeared to the court and the court confirmed same; that the plaintiff recover the lunatic’s title and that all title be divested out of the lunatic and vested in the plaintiff.

Plaintiffs attacked this judgment collaterally and asserted it was void. “Since, as already considered in subdivision b of this section, a judgment against an insane person is not void but merely voidable, it is well settled that such a judgment cannot, on such reason alone, be collaterally attacked by such insane person or by any person claiming from, through, or under such insane person, or in privity with him, and stands as a valid adjudication until annulled or reversed in some direct proceeding for that purpose.” 44 C.J.S. Insane Persons § 151, p. 329. “The general rule is well settled that, ‘where a court of general jurisdiction, in the exercise of its ordinary judicial functions (as is clearly apparent here), renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear, from the face of the record or otherwise, to be.’ Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876, 877.” Dallas Joint Stock Land Bank v. Street et al., Tex.Civ.App., 76 S.W.2d 780, (Writ Ref.).

A lunatic has capacity to appear in court by an attorney. “In Brown v. Rentfro, 57 Tex. 327, a decree, entered upon the agreement of,the parties, was attacked in a direct proceeding upon the ground that one of the parties was a lunatic at the time the agreement was made and the decree entered. The decree was there considered as only voidable, and subject to confirmation by the party.” Jacob Denni, Guardian, v. J. T. Elliott et al., 60 Tex. 337, at page 339. “From what has been said above, it is apparent that the chief distinction between a void judgment and a valid one is the absence of jurisdiction in the court that rendered the judgment. If the court lacked jurisdiction the judgment is void, and if it had jurisdiction the judgment may be voidable, but it cannot be void.” 25 Tex.Jur. 698.

We hold the court had jurisdiction over the parties and subject matter and that the judgment is not void and therefore not subject to collateral attack.

The part of the judgment awarding defendants an interest in Lot 3 is reversed and judgment is rendered for plaintiffs. In all other respects the judgment is affirmed.

Judgment reversed and rendered in part and affirmed in part.