author: BARROW, Justice.

text:
    Jarrett NORRIS, d/b/a Checker Motors, Appellant, v. FIRST CREDIT CORPORATION, Appellee.
    No. 14076.
    Court of Civil Appeals of Texas. San Antonio.
    March 13, 1963.
    Rehearing Denied April 10, 1963.

      Reid & Taylor, Robert P. Sims, San Antonio, for appellant.
    Earle Cobb, Jr., Norman S. Davis, San Antonio, for appellee.
   BARROW, Justice.

This suit was filed by appellant, a used car dealer, against appellee, a finance company, to recover damages of $1,000.00 suffered by appellant when appellee refused to complete an automobile loan on a car sold by appellant to George Robinson. After a jury verdict, the trial court entered a take-nothing judgment and appellant perfected this appeal.

The trial court submitted the case as follows:

“Question No. 1. Do you find from a preponderance of the evidence that on or about the 17th day of February 1962, R. A. Holloway, as the agent of the defendant, First Credit Corporation, agreed to advance the sum of one thousand dollars on the purchase price of said automobile and pay said sum to plaintiff, Jarrett Norris, upon approval of said loan and being furnished a registration receipt showing title to said automobile in George Robinson and a lien thereon in favor of the defendant, First Credit Corporation?
“Answer, ‘Yes’. * * *
“Question No. 2. Do you find from a preponderance of the evidence that said loan was approved and a registration receipt showing title to said automobile in George Robinson and a lien thereon in favor of the defendant, First Credit Corporation, was furnished to defendant? Answer, ‘No’.”

Question No. 3 was conditioned upon an affirmative answer to Question No. 2, and therefore was not answered by the jury.

“Question No. 4. Do you find from a preponderance of the evidence that it was the understanding of Jarrett Norris and R. A. Holloway that the $1,000.-00 loan was not to be paid until the automobile in question was insured ? Answer, ‘No’.”

Appellant attacks Question No. 2 as being duplicitous and multifarious and therefore improperly submitted. Appellant waived any defect in the form of this issue by his failure to object to the charge of the court, and therefore his assignment complaining of the form of this issue can not be considered. Rule 272, Texas Rules of Civil Procedure; A.A.A. Air Conditioning & Mfg. Corp. of Tex. v. Barr, Tex. Civ.App., 186 S.W.2d 825, wr.ref. This requirement is not met by an objection to this issue by appellee.

Appellant asserts that the answer of the jury to Question No. 2 is against the preponderance of the evidence. On the basis of the brief of this assignment, we have considered the point as one asserting that the finding of the jury is so contrary to the preponderance of the evidence as to be manifestly unjust. In considering this point, it is necessary to review all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. On February 17, 1962, Robinson contacted appellant and made a deal to purchase a 1960 Chevrolet automobile. Robinson agreed to trade in his 1954 Chevrolet and pay appellant $1,000.00 cash. It was necessary that he finance the cash payment and Robinson was given permission by appellant to take the 1960 Chevrolet for this purpose. Robinson, without any ■suggestion by appellant, went to the office of appellee and discussed a loan with R. A. Holloway, who was authorized to make loans on behalf of appellee. After checking Robinson’s credit, Holloway telephoned .appellant. The actual words used in this telephone conversation are in dispute. Holloway testified that he said he would make •the loan when the papers were received, including an insurance policy to be secured 'by Robinson. Appellant testified that Hol'loway said the loan was approved and that .appellant could pick up the money when he ■delivered the title papers. Robinson’s testimony, although not as specific, substantially agreed with that of appellant. Holloway then had Robinson sign a note and chattel mortgage payable to appellant at the office of appellee, for $1,181.88. This instrument had a form on the back for assignment of the note, but this transfer and assignment was never completed by appellant. Robinson kept the car and wrecked it before the title papers were delivered to ap-pellee. About two weeks after the original conversation, appellant delivered the title papers to Holloway, who refused to close the deal at this time. We believe that the above testimony is sufficient to support the jury’s findings that although Holloway agreed appellee would make the loan, the loan agreement was not completed in the initial conversation between appellant and Holloway.

Appellant also asserts that the finding of the jury to Question No. 2 is in irreconcilable conflict with the findings to Questions No. 1 and No. 4. It is our duty to reconcile and harmonize apparent conflicts in the jury’s findings, if this can be reasonably done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558. It is seen from a reading of the issues, that Questions Nos. 2 and 4 inquire about different matters and are not in conflict. The affirmative finding to Question No. 1, and the negative finding to Question No. 2 present more difficulty, largely due to the form of these issues. In considering the charge in the light of the pleadings and evidence, it is seen that the first three issues submit appellant’s basis of recovery. Question No. 1 inquires as to whether appellee agreed to make the loan upon certain requirements. Question No. 2 inquires if the requirements Were met, and Question No. 3 inquires if appellant relied upon the agreement in delivering possession of the automobile to Robinson. It is seen that the jury was concerned in Question No. 2 with whether or not the requirements to make the loan were furnished to appellee. We do not believe that the findings of the jury are in irreconcilable conflict.

Appellant assigns as error that there was material misconduct of the jury during their deliberations. Two matters are raised: an alleged statement by the foreman, Weissler, that the note was illegal since it was not notarized, and a statement by a juror that the terms “I will” and “I would” have no legal significance. Appellant asserts that these misstatements of law were made during the jury’s deliberations on Question No. 2, and that a reasonable probability of injury was shown. In passing upon these points, we are guided by the well-established rule that whether misconduct of the jury occurred is a question of fact to be proven by the complaining party on the hearing of the motion for a new trial, but after the misconduct has been established, then it is a question of law for the trial court, and on appeal for the reviewing court, as to whether injury probably resulted to the complaining party. Motley v. Mielsch, 145 Tex. 557, 200 S.W. 2d 622. The trial court did not file findings of fact, and in this situation it will be presumed that the trial court found that the misconduct did not occur, where there is evidence to support such a finding. Barrington v. Duncan, 140 Tex. 510, 169 S.W. 2d 462; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Greenwade v. Bledsoe, Tex.Civ.App., 282 S.W.2d 75, writ ref., n. r. e.

There is conflicting testimony on whether or not Weissler made a statement concerning notonzation of the note, jurors Mrs. Hickey and Mrs. Grandiean both testified that the foreman had stated that the note was illegal since not notarized. This was expressly denied by Weissler, Jasso and Keeler. The final juror, De Hoyos, testified that there was a statement made concerning notarization of the certificate of title. The note and chattel mortgage signed by Robinson did not provide a form for notarization, although it did have a form for assignment of the note. Several of the jurors testified there was a great deal of discussion concerning the failure of appellant to assign the note. There is substantial evidence to support the trial court’s implied finding that the foreman did not make a statement concerning notarization of the note.

It is undisputed that there was a great deal of discussion concerning the testimony of Holloway that “he would” approve the loan. The agreed record shows that the jury, during the deliberations, returned to the courtroom and had this testimony read to them. In our opinion, it was legitimate discussion for the jurors to discuss the meaning of the terms “I will” and “I would” in connection with their answer to Question No. 2. The transcript of the hearing on motion for new trial, at which all jurors testified, does not show material misconduct in their discussion of these words of ordinary usage. S. & D. Wolf Co. v. Atchison, Topeka & Santa Fe Ry. Co., Tex.Civ. App., 301 S.W.2d 272, writ ref., n. r. e.

The judgment is affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    DEPARTMENT OF PUBLIC SAFETY, Appellant, v. James Seewald GULEKE, Appellee.
    No. 7237.
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1963.

      Eli Willis, Dumas, for appellant.
    Lovell & Lyle, Dumas, for appellee.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted James Seewald Guleke, appel-lee, by the County Court of Moore County vacating and holding for naught an order of Justice Court Precinct 4, Moore County, which had suspended Guleke’s driver’s license for a period of four months on request of the Department of Public Safety for the State of Texas. Appeal from said Justice Court was perfected within the time and under the authority provided in Section 22(c) of Article 6687b Vernon’s Ann.Texas Civ.St. Motions for summary judgment were filed both by the Department of Public Safety and by appellee, Guleke. The motion of the Department was denied and that of appellee granted. It is from such judgment appeal is perfected to our court.

The Justice Court had rendered a finding that appellee was an “habitual violator” of the traffic laws in that he had been convicted of four or more violations of the traffic laws of the State of Texas within a period of twelve months.

When appeal was perfected to the county court in this case, appellee was entitled to a trial de novo and the burden of proof was upon appellant here to obtain a new judgment. Article 6687b, Section 22 (c) ; Knight v. Texas Department of Public Safety, Tex.Civ.App., 361 S.W.2d 620 and cases there cited.

As proof of its case appellant of-1 fered as part of its summary judgment motion six instruments purporting to be abstracts from the administrative hearings of justice and corporation courts. Among those was Cause No. 14511 in Justice Court of Dumas, Texas, against James Seewald Guleke for speeding. Appellee in his motion for summary judgment included a verifax copy of the judge’s docket showing Cause No. 14511 against James Seewald Guleke for speeding. The docket sheet on which the judgment of the justice court is written reflects that Cause No. 14511 had not been tried, no bond was ever made, no conviction was ever had and no forfeiture was ever made. Therefore, the abstract or notice purportedly based on a conviction in Cause No. 14511 in Justice Court in Dumas could not, in our opinion, be considered. That reduces to five the abstracts of conviction that could be considered for any purpose in the suspension of the license.

One of the purported convictions was for “no brake lights”, so it could not be considered in the convictions necessary for suspension of license because it was not a moving violation as required under Section 22(b) 4 of Article 6687b V.T.C.S. That left only four. One of those was for violation of a stop sign on 8-14-60, while another of the four left was for a negligent collision on 8-28-61, more than a year later. Therefore, even if it could be said that the summary judgment evidence in the motion of appellant showed four convictions for moving violations, they still were not within the consecutive period of twelve months required under Section 22(b) 4 of Article 6687b V.T.C.S.

Appellant was dependent upon the abstracts of convictions in its motion for summary judgment either to prevail on its motion or to prevent appellee’s motion. Notices of conviction constituting the abstracts of convictions above referred to have-been held to be admissible and when incorporated in a motion for summary judgment to constitute prima facie evidence of the matter stated therein. Whittington v. Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374 (NRE). However, the notices in the instant case failed to show appellee as the person convicted.

All emphases shown herein are ours.

Article 6701d, Section 152(c)-V.T.C.S. provides the abstract of the record' shall include, among other requirements, the registration number of the vehicle; the plea, or whether bail was forfeited and the amount of forfeiture; and the number of his operator’s, commercial operator’s, or chauffeur’s license. None of the notices. contained the plea or the registration number of the vehicle and all of them contained an operator’s license number different to his own. Therefore, we believe they were not proper to be considered as part of the summary judgment evidence absent a showing by some other component of the summary judgment record that the operator’s license number shown was a mistake and that the convictions were actually against the person whose license had been suspended. Under the record made they did not show convictions against James Seewald Guleke here involved because his license number was 0590541. The convictions, if they were such, show to be against James Seewald Guleke with license number 590541. We do not believe a prima facie case for suspension was made but if it was it was rebutted by appellee’s motion. The burden of proof was upon appellant and the substantial evidence rule is not applicable. Whittington v. Department of Public Safety, supra, and cases there cited.

If the abstracts of purported convictions were incorrect, appellant could have corrected them by affidavits, depositions or some other component of the summary judgment record to show that they were against the James Seewald Guleke being proceeded against. This it did not do nor in any manner justify its inability to do so and seek appropriate relief under Subdivision (f) of Rule 166-A Vernon’s Ann.Texas Rules.

Under this state of the record a motion for instructed verdict had the cause been before a jury, would have been good. Under such a situation then, the motion for summary judgment made by appellee was proper. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442. 322 S.W. 2d 492.

Accordingly, the judgment of the County Court of Moore County is in all things affirmed.


author: NORTHCUTT, Justice.

text:
    E. H. MARTINDALE et al., Appellants, v. L. E. MARTINDALE et al., Appellees.
    No. 7238.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1963.
    Rehearing Denied April 15, 1963.

      T. R. Odell and C. L. Harris, Lubbock, for appellants.
    Hackney & Crawford, Brownfield, for appellees.
   NORTHCUTT, Justice.

L. E. Martindale, Lee A. Martindale and Willie Mae Hedgpeth, as plaintiffs, brought this suit against E. H. Martindale, Minnie Frederickson, Lottie Johnston and Maggie Lambert, as defendants. The plaintiffs and defendants were the surviving children of Mrs. M. H. Martindale. W. I. Martindale and Lee Simpson Martindale were grandsons of Mrs. M. H. Martindale but were not parties to this suit but were shown to be heirs entitled to receive their portion of the M. H. Martindale estate if plaintiffs were successful in this suit. Plaintiffs, defendants, and the two grandsons were the sole surviving heirs of Mrs. M. H. Martindale. It was alleged by the plaintiffs that Mrs. M. H. Martindale died intestate on February 28, 1959, and that no administration was had on her estate and that none was necessary and that on her death she was seized and possessed of certain real estate (which is the property here involved) and various money and assets the exact nature and extent being unknown to the plaintiffs but well known to the defendants, especially E. H. Martindale.

Mrs. M. H. Martindale and her husband, J. A. Martindale, were the mother and father of plaintiffs and defendants and the grandparents of W. I. Martindale and Lee Simpson Martindale. J. A. Martindale and wife, Mrs. M. H. Martindale executed their joint will leaving all their property to the survivor. J. A. Martindale died in 1932 and his will was probated giving all the property to Mrs. M. H. Martindale. It was the contention of plaintiffs that during the life of J. A. Martindale he made an agreement with Mrs. Martindale that they would, on the death of both, leave their property and estate to all the children equally.

In 1934 Mrs. M. H. Martindale deeded 80 acres of land to her son E. H. Martindale, and the trial court instructed the jury to return a verdict for E. H. Martindale as to this 80 acres because of the statutes of limitation, no objections were made to such instructions, and no point here raised as to this 80 acres, therefore this deed will not be considered further herein. On July 9, 1940, Mrs. M. H. Martindale executed deeds to all of her real estate to the defendants, being the property here involved, and did not give the plaintiffs anything. One of the deeds was recorded January 25, 1945, and the others in 1957.

It was the contention of the plaintiffs that Mrs. M. H. Martindale on July 9, 1940, at the time she executed the deeds in question, did not have sufficient mental capacity to know and understand the nature and effect of her act in executing the deeds in question, and this was known to the defendants; that the defendants knowing the condition of Mrs. M. H. Martindale immediately after a family tragedy, and her mental and physical infirmities, and by use of such knowledge and by fraudulent schemes between them and by over-reaching, misrepresentations and undue influence exerted by them over Mrs. M. H. Martindale and completely overcoming any free agency or will of Mrs. Martindale, and substituting the free agency and will of defendants therefor, that defendants acting individually and together induced and caused her to execute the deeds of conveyance of all the property here in question. Plaintiffs further contend in the alternative that the property in question was under both a resulting and constructive trust and for the benefit of the children of M. H. and J. A. Martindale because of an agreement made by M. H. Martindale and J. A. Martindale to divide the property equally between all their children.

The case was submitted to a jury upon seven special issues. In answer to these issues the jury found that on July 9, 1940, the time the deeds in question were executed, that Mrs. M. H. Martindale did not have sufficient mental capacity to know and understand the nature and effect of her act in executing the deeds in question; that the defendants, at the time the deeds were executed, knew Mrs. Martindale did not have sufficient capacity to know and understand the nature and effect of her act in executing the deeds in question; that the making and execution of the deeds by Mrs. Martindale on July 9, 1940, were procured by undue influence on the part of the defendants acting in concert together or by one of them; that the joint will of J. A. and M. H. Martindale introduced in evidence was executed by them pursuant to an agreement between them that the survivor of them would divide or will their estate equally among their children and that neither J. A. Martindale nor Mrs. Martindale revoked or changed such agreement prior to the death of J. A. Martindale in 1932. The last two issues concern the value of the crop rentals for the years 1959, 1960, and 1961, being the crops gathered after the death of Mrs. M. H. Martindale.

Judgment was rendered upon the verdict of the jury decreeing the deeds purportedly executed by Mrs. M. H. Martindale on July 9, 1940, purportedly conveying the lands to the respective defendants were null and void and cancelled, annulled, and set aside and held for naught; then decreed that the three plaintiffs and four defendants each were adjudged the owner of an undivided ⅛ interest in and to each of the tracts of land in question and that the remaining ⅛ interest therein belonged to and adjudged in the two grandsons being an undivided ¾6 interest each. The judgment further decreed as to the interest in the rents for the years 1959, 1960, and 1961. From that judgment the defendants perfected this appeal.

Appellants first present this appeal upon eighteen assignments of error and then present what is termed a fundamental error. Since all of their eighteen assignments of error except points six, seven, and twelve concern no evidence, the insufficiency of the evidence, and against the great weight and preponderance of the evidence as to he manifestly wrong, we will consider all fifteen points together. If the evidence was sufficient to sustain the findings of the jury that Mrs. Martindale did not have sufficient mental capacity to execute the deeds on July 9, 1940, or that the deeds were procured by undue influence on the part of the defendants acting in concert together or either of them or that the joint will of J. A. Martindale and Mrs. M. H. Martindale was executed by them pursuant to an agreement between them that the survivor of them would divide or will the combined estate equally among their children and that neither J. A. Martindale or Mrs. M. H. Martindale revoked or changed such agreement prior to the death of J. A. Martindale in 1932, then either of such findings would justify the holding of the court in setting aside the deeds.

In determining whether there was undue influence each case depends largely on its own facts and circumstances. The trial court gave a proper definition of undue influence. It is stated in the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 as follows:

“Generally speaking, undue influence is such influence or dominion as exercised at the time, under the facts and circumstances of the case, which destroys the free agency of the testator, and substitutes in the place thereof the will of another. Undue influence has also been defined as that dominion acquired by one person over the mind of another which prevents the latter from exercising his discretion, and which destroys his free agency. Also, undue influence has been defined as ‘that which compels the testator to do that which is against his will from fear, the desire of peace, or some feeling which he is unable to resist.’ 42' Tex.Jur., p. 792, sec. 2, and authorities there cited.”

It is further stated in the Long case as follows:

“It is rarely possible to prove undue influence by what is generally known as direct testimony. Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances. Usually a person charging undue influence must substantiate such charges by circumstances extending over a considerable length of time. It is therefore the settled rule that undue influence can be established by what is-known as circumstantial, as well as direct, evidence. Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Bergstedt v. Bender, Tex.Com.App., 222 S. W. 547.”

After J. A. Martindale died, E. H. Martindale, one of the defendants herein, moved in the home with his mother and immediately took over full control of his mother’s affairs, then in 1934 secured a deed from his mother for 80 acres of land without a reservation of a life estate and had the same recorded. He testified that he had authority to do anything with her business that he wanted to, even giving checks on her bank account without conferring with her. There was undisputed testimony that E. H. Martindale had boasted that whatever he wanted from his mother he could get and that all he had to do was to tell his mother what he wanted, that he was managing the place, that he was boss of the place and that was what he was going to do or he would leave her alone and that was something she could not stand and that was what was always said until he had his own way.

On July 2, 1940, a daughter of Mrs. M. H. Martindale committed suicide by hanging herself and she was buried on July 5, 1940. On July 9, 1940, the deeds here in question were executed. The deeds wére not delivered but were placed in the bank lock box used by E. H. Martindale and his mother. Under this record that was the last time Mrs. M. H. Martindale had anything to do with the deeds. It is to be noticed the deed for 30 acres of land deeded to E. H. Martindale July 9, 1940, was recorded January 25, 1945, but the other deeds dated July 9, 1940 were not recorded until 1957. There is also evidence that E. H. Martindale delivered the other deeds dated July 9, 1940 after one of his sisters, one of the defendants herein, threatened to tell what she knew if E. H. Martin-dale did not deliver the deeds. There is nothing in this record to show that Mrs. M. H. Martindale ever delivered the deeds personally.

Before the trial of this case, the deposition of E. H. Martindale was taken and he testified he was present when his mother executed the deeds on July 9, 1940, and that the deeds were explained to her. On the trial one of his sisters testified that E. H. asked her to take his mother to town and she did so and was the only one with her mother at the time the deeds were executed. Then on the trial, E. H. testified he was not with his mother when she signed the deeds and could not say why he testified as he did by deposition.

On July 21, 1950, ten years after the deeds in question were executed and were still in Mrs. Martindale’s lock box, except the one removed and filed for record deeding 30 acres of land in Haskell County to E. H. Martindale, Mrs. Martindale gave an oil and gas lease upon the Terry County land. Taxes upon the land were also paid after 1940 from Mrs. M. H. Martindale’s bank account. There is other testimony to show Mrs. Martindale feared her son. All the evidence shows the mother loved all of her children equally and naturally she was upset and grieved by the fact her daughter had committed suicide and was buried only three or four days before their mother was taken to town to execute the deeds.

We have mentioned only a portion of the evidence we think would justify the jury’s verdict as to undue influence and deem it unnecessary to pass upon the question of the mental capacity of Mrs. Martin-dale at the time she executed the deeds. The jury having found undrte influence we are required to indulge the presumption that the jury believed all of the probative evidence tending to sustain its finding and must view the evidence most favorable to the verdict. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034; Griffin v. Camp, Tex. Civ.App., 272 S.W.2d 129 (NRE). We are of the opinion and so hold that the evidence was sufficient to uphold the finding of the jury as to undue influence. The rules as to undue influence imply substantially alike to wills, deeds, and other instruments. Self v. Thornton, Tex.Civ. App., 343 S.W.2d 485 (NRE); Guedry v. Jordan, Tex.Civ.App., 268 S.W. 191 (NWH) ; Shelton v. Shelton, Tex.Civ.App., 281 S.W. 331 (NWH).

Defendants objected to the court’s charge in the submission of issues six and seven for the reason that the plaintiffs were not entitled to any rents or revenues off of the land in question because the land was held by defendants under deeds duly recorded and the title was at all times in 1959, 1960, and 1961 in their possession under a deed and that the title to said property was vested in the defendants at all times during that period. Then appellants’ assignments of error six and seven state the court erred in submitting those issues over the timely objections of the defendants. These assignments are to the effect that because of the deeds even if they were executed under undue influence the defendants would be entitled to the rents and revenues on the land. We cannot agree with this contention. We think the rents and revenues would be due to the ones entitled to the land in proportion to their interest in the land.

By appellants’ assignments of error 12 they contend the court erred in admitting the evidence of Doctor Edwards concerning a conversation he had with Mrs. Martindale on March 31, 1953. The essence of his testimony was that Mrs. Martindale stated to him she was worried over the children fussing about the division of the property and that she and her husband had agreed the property was to be divided equally between all of their children and she thought that was what she had done. All of the evidence shows how close the doctor and Mrs. Martindale were and the witnesses thought that whatever Dr. Edwards said was a fact. We think this evidence was admissible to show that she thought she was dividing the property equally between all of her children as she and her husband had agreed to do. Her mental condition prior to or subsequent to the time the deeds were executed was admissible and the doctor thought her mental condition was all right when she told him what she did. In other words, she had been misled. It is stated in the case of Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 as follows:

Of course, the state of mind alleged by respondents had to be shown to exist when Mrs. Waite executed the deed on Oct. 1, 1949, but it does not follow that relevant evidence bearing on mental competency is restricted to the time a given act is done; that issue may be determined upon testimony as to the actor’s mental condition either prior or subsequent to the time the act in question is done. Self v. Becker, Tex.Civ. App., 195 S.W.2d 701, er. ref. N.R.E. And as already indicated, we think there is a wealth of testimony in the record, which, as accepted by the jury, established Mrs. Waite’s mental incapacity on Oct. 1, 1949.”

See also Gaston v. Bruton, Tex.Civ.App., 358 S.W.2d 207 (writ dismissed).

Evidence of the declaration of Mrs. M. H. Martindale is admissible to prove the joint will made by her and J. A. Martin-dale was executed pursuant to an agreement to divide the property equally between all the children. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Pullen v. Russ, Tex.Civ.App., 226 S.W.2d 876.

The appellants contend it was fundamental error for the court to enter judgment for the two minor grandsons because they were not parties to the suit and also urged other matters as being fundamental, but we have disposed of those matters here above. The pleadings and the evidence showed they were heirs of Mrs. Martindale and they were the sons of Simpson Martindale, a deceased son of Mr. and Mrs. Martindale. If it should be said that such decree was erroneous, it would be harmless error since they were entitled to inherit a portion of the land only if said deed should be set aside.

We are of the opinion there was an abundance of evidence to show undue influence as found by the jury. All of appellants’ assignments of error are overruled. Judgment of the trial court is affirmed.

CHAPMAN, T., not participating.


author: DENTON, Chief Justice.

text:
    Jack McQUEEN and Key-Western Investment Corporation, Appellants, v. Alton BELCHER et al., Appellees.
    No. 7223.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 4, 1963.
    Rehearing Denied March 4, 1963.

      McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellants.
    Fred E. West, Lubbock, for appellees.
   DENTON, Chief Justice.

This is an appeal from an order of the District Court of Crosby County overruling appellants’ plea of privilege. Appellees, Alton Belcher and Ruth Belcher, filed suit against Key-Western Investment Corporation and its president, Jack McQueen, alleging the sale of securities was voidable at their election, and tendered the stock to the appellants as provided for in Section 33 of Article 581, V.A.T.S. In reply to appellants’ plea of privilege to be sued in Taylor County, the county of their residence, ap-pellees seek to maintain venue in Crosby County under Article 1995, Subsection 9.

Appellees alleged that between December, 1958, and January, 1960, they purchased several blocks of stock of appellant corporation from Jack McQueen and another representative or agent of the company. It was further alleged the stock was purchased as a result of personal solicitation of McQueen in Ralls, Crosby County, Texas, and a total sum of $16,120.00 was paid to the corporation for such stock. These allegations were proved by the undisputed testimony of the appellees. Appellees further pleaded that the stock was not registered by notification or coordination with the Securities Commission of the State; and that appellants acted in violation of the Securities Act; and that such violations constitute a crime or offense committed in Crosby County so as to bring venue in Crosby County under Subsection 9 of Article 1995.

In an effort to prove the allegations of the violation of the Securities Act, appellees introduced into evidence a Certificate of the Securities Commissioner as authorized by Article 581, Section 30, V.A.T.S. After reciting that the records had been carefully examined, the Certificate reads as follows: “ * * * and from such examination, I do further certify:

“That such records reflect that KEY WESTERN CORPORATION was issued a permit by the office of The Secretary of State to sell 250,000 shares of common stock in the State of Texas at a price not to exceed $1.50 per share, from February 17, 1956 to June 6, 1957.
“That such records fail to reflect that KEY WESTERN CORPORATION has been issued a permit to sell securities in the State of Texas from June 7, 1957, to the date of this certificate.
“IN TESTIMONY WHEREOF, I have hereunto signed my name officially and caused to be impressed hereon the Seal of the State Securities Board at my office in the City of Austin, this 10th day of October A.D., 1961.
“(S) William M. King
“Securities Commissioner”

It is appellants’ contention that there was no evidence that an offense was committed by either the corporation or McQueen in Crosby County; nor was there any evidence the stock sold had not been registered under the provisions of the Securities Act. In effect, appellants argue there are three methods which render securities legally salable, to-wit: (1) By obtaining a permit; (2) To register securities by ratification; and (3) To register securities by coordination. They contend that by complying with either (2) or (3) above a permit is not required; and that appellees were therefore required to prove that all three requirements had not been complied with. This position is based on the language of Section 29, Subdivision B of the Securities Act which is a part of the penal provisions of the Act. Subdivision B makes it a felony for any person to sell, offer for sale, and so forth “any security or securities issued after September 6, 1955, unless said security or securities have been registered or granted a permit as provided in Section 7 of this Act * * Appellants seem to concede that the Certificate of the Securities Commissioner is proof that no permit was in effect at the time the stocks were sold, but contend that proof of nonregistration of the stocks was also required. We are unable to agree with this conclusion.

Subsection 7, subd. A provides that no dealer, agent or salesman shall sell or offer for sale any securities after September 6, 1955, except those which have been registered by notification or coordination, and until the issuer of such securities shall have been granted a permit by the Securities Commissioner. The section further sets out the procedure by which a permit may be obtained. This section requires not only that the securities be registered, but the issuer of such securities must also obtain a permit from the Commissioner. Proof of the failure to meet either of these requirements constitutes a violation of the Securities Act.

Although appellees’ controverting affidavit did not specifically adopt or refer to their original petition, it quoted a material paragraph of the petition. This allegation charged appellants with issuing the securities when they were not “registered with the Securities Commission,, as provided by law in such cases”, and that such securities were not registered either by ratification or “certification” (evidently meaning coordination). We are of the opinion these allegations are sufficient to allege a crime or offense under Subsection 9 of Article 1995. Section 12 of Article 581, V.A.T.S., reads as follows:

“Registration of persons selling
“Except as provided in Section 5 of this Act, no person, firm, corporation or dealer shall, directly or through agents or salesmen, offer for sale, sell or make a sale of any securities in this state without first being registered as in this Act provided. No salesman or agent shall, in behalf of any dealer, sell, offer for sale, or make sale of any securities within the state unless registered as a salesman or agent of a registered dealer under the provisions of this Act.”

Section 13 provides the method of registration required of each dealer, agent or salesman of each dealer.

It is not contended the transactions here involved come under any exception set out in Section 5; and under Section 37 of the Securities Act it is not necessary for appellees to negative any of the exceptions of this Act. Article 581, Sections 29, subds. A through H are the penal provisions of the Act. Subdivision A of that section reads:

“Any person who shall:
“A. Sell, offer for sale or delivery, solicit subscriptions or orders for, dispose of, invite offers for, or who shall deal in any other manner in any security or securities without being a registered dealer or salesman or agent as in this Act provided shall be deemed guilty of a felony, and upon conviction thereof shall be sentenced to pay a fine of not more than Five Thousand Dollars ($5,000) or imprisonment in the penitentiary for not more than ten (10) years, or by both such fine and imprisonment.”

When Sections 7, 29, subd. A and Section 12 are considered along with appellees’ pleadings and proof, we are convinced they are sufficient to sustain the trial court’s finding that appellants committed an offense in Crosby County.

It is well settled that under Subdivision 9 of Article 1995 a plaintiff has the burden to both allege and prove that a crime, offense or trespass was committed by defendants or their agents in the county where venue was laid. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. Wiederkehr v. Coker, (Tex.Civ.App.), 304 S.W.2d 185. Johnson Drilling Company v. Lacy, (Tex. Civ.App.), 336 S.W.2d 230. We are convinced that under this record appellees have sustained the burden placed upon them.

The judgment of the trial court overruling appellants’ plea of privilege is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    Charlie Howard BROWN, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 16114.
    Court of Civil Appeals of Texas. Dallas.
    March 8, 1963.
    Rehearing Denied April 5, 1963.

      Don M. Hayter and Bruce L. Graham, Greenville, for appellant.
    Allen Clark, Greenville, for appellee.
   BATEMAN, Justice.

In this workmen’s compensation case the employee appeals from a summary judgment rendered in favor of the insurer on its contention that, the employee having been injured while repairing his own automobile, as a matter of law he was not in the scope of his employment at the time of the injury. By his two points of error on appeal the appellant presents (1) that affidavits before the court raised a fact issue as to whether he was repairing his automobile so he could use it in his work for his employer, and (2) that since affidavits, depositions and pleadings showed that his contract of employment required him to be at the place where the accident occurred, and the accident occurred during working hours, the court erred in holding as a matter of law that appellant was not in the scope of his employment.

Appellant was employed as the caretaker of a cemetery near Greenville, Texas. His duties consisted of digging graves, mowing and trimming the lawn and general care of the property, including watch over the premises at night to keep unauthorized persons away. Appellant testified by deposition that he and his family lived in a house on the cemetery grounds furnished by his employer, and that his “duties called for twenty-four hours a day” and that quite often people would drive on the premises in the middle of the night and “he would get up and drive them out, ask them to leave.” He also testified that his employer furnished him a pick-up truck, but that he furnished the oil and gas for it; that it frequently would not run and after he had been there about three months he bought a second-hand car, for which he also furnished the oil and gas.

Appellee attached to its motion for summary judgment the affidavits of the president and the manager of the corporate owner of the cemetery to the effect that the corporation furnished appellant a pickup truck to be used whenever his duties required it, and that he was not required to use his own car in performing his duties.

On the day of the hearing appellant filed his answer to the motion for summary judgment and attached thereto his and other affidavits to the effect that his work on his own automobile was done in the furtherance of his employer’s business in that it was necessary to run an errand for the employer and the pick-up truck was not in operating condition and could not be repaired by appellant, that appellant’s car could be shortly repaired and used to run the errand; that he was repairing his own automobile at about 9:45 o’clock on the morning of a week day when he was injured ; that since about 7:00 o’clock A.M. of that date he had been at work raising markers and needed some tools which had to be moved in his car, which it was necessary for him to use because the pick-up truck which had been furnished to him would not run; that he found the clutch on his own car to be “out” and he and his brother were in the process of repairing it when he was injured; that Mr. Young-blood, the president of the corporate owner of the cemetery, was aware of the fact that the pick-up truck would not run and had said he would soon have it hauled into town for the necessary repairs, as they were unable to repair the truck at the cemetery.

It seems clear to us that if it was proper for the trial court to consider appellant’s said affidavits, they demonstrated a substantial controversy as to material facts, making the summary judgment improper. Appellee contends that the trial court should not have considered appellant’s said affidavits because they were not filed “prior to the date of hearing” as required by subdivision (c) of Rule 166-A, Vernon’s Texas R.C.P. Appellee with leave of court filed a motion to strike appellant’s answer and opposing affidavits on that ground, and on that ground alone. The court overruled this motion, and the order sustaining the motion for summary judgment recites that the answer and opposing affidavits were considered by the court in passing upon the motion.

The record before us indicates that the hearing on the motion for summary judgment was set for February 23, 1962, that on that date appellant’s answer to the motion and the opposing affidavits were filed, and upon being served with copies thereof appellee’s counsel stated in the presence of appellant’s attorneys and the court that he would file a motion to strike the answer and opposing affidavits “because there had been no compliance with the provisions of Rule 166-A”; that on February 27, 1962 appellee filed its motion that the court enter an order nunc pro tunc allowing appellee’s counsel to file its motion to strike the answer and opposing affidavits as of the date they were filed, February 23, 1962; that on February 27, 1962 appellant filed a written opposition to appellee’s said motion; that on March 8, 1962 the court entered an order granting appellee’s motion for leave to file its motion to strike the answer and opposing affidavits and for the court to enter an order wunc pro tunc and to allow said motion to be filed as of February 23, 1962, but on the same 8th day of March, 1962 the court also entered an order overruling appellee’s motion to strike the answer and opposing affidavits; and that on the same 8th day of March, 1962 the court entered the order sustaining appellee’s motion for summary judgment and rendered judgment that the appellant take nothing. This order recites that after hearing the motion for summary judgment on February 23, 1962 the matter was taken under advisement until the 8th day of March, 1962.

We overrule appellee’s contention that the court below erred in overruling its motion to strike and considering appellant’s affidavits opposing the motion for summary judgment. We hold that this was a matter within the court’s discretion, and that no abuse of that discretion is shown. King v. Rubinsky, Tex.Civ.App., 241 S.W.2d 220, no wr. hist.

Appellee also contends that the affidavits filed by appellant in opposition to the summary judgment are deficient and fail to comply with the requirements of Rule 166-A, in that they do not show that they were made on personal knowledge, nor that the affiants were competent to testify to the facts stated therein. Appellee made no such criticism of these affidavits in the trial court; its motion to strike them was bottomed wholly on their late filing. The complaint, being now made for the first time, in this court, comes too late and must therefore be overruled. Lobit v. Crouch, Tex.Civ.App., 293 S.W.2d 110, err. ref. n. r. e.; Farmers & Merchants Compress & Warehouse Co. v. City of Dallas, Tex.Civ.App., 335 S.W.2d 854, err. ref. n. r. e.

We hold, therefore, that the trial court did not err in permitting appellant’s opposing affidavits to be filed, or in refusing to sustain appellee’s motion to strike the same, but that the trial court did err in granting the summary judgment in the face of the controversy raised by such affidavits as to material facts.

For this error, the judgment must be reversed.

In view of our disposition of appellant’s first contention, the case must be remanded for trial. It is therefore unnecessary for us to pass upon the second point.

Reversed and remanded.

ON MOTION FOR REHEARING

Appellee urges that our opinion is in conflict with Superior Ins. Co. v. Jackson, 156 Tex. 61, 291 S.W.2d 689; Kimbrough v. Indemnity Ins. Co. of North America, Tex.Civ.App., 168 S.W.2d 708, err. ref., and Employers Reinsurance Corp. v. Brooks, Tex.Civ.App., 165 S.W.2d 785, err. ref. We have carefully reviewed those opinions, because if the facts in any of them were analogous to the facts shown by the record before us we would feel constrained to sustain the motion for rehearing and. affirm the judgment of the court below. However, we do not consider that such analogy exists.

In the Jackson case the claimant was employed as a mechanic to repair trucks and other machinery used in road construction. He used his own light truck to carry his and his employer’s tools to various points along the highway in the performance of his duties. A truck of his employer was available for this purpose, but he preferred to use his own. He was injured while working on his own truck at his own home on a Sunday, and the Supreme Court very properly held that he was not in the course of his employment. The several differences between that case and this are readily discernible, (1) Jackson preferred to use his own vehicle, although one owned by his employer was available; but the only reason Brown intended to use his car was that the employer’s would not run and could not be repaired on the premises, (2) Jackson’s work was being done on a Sunday and on his own time, for which he was not being paid, when he was not on duty nor subject to call; but Brown’s work was being done on a work day, during working hours, and at a time when he was on duty as caretaker or at least subject to call, (3) Jackson was working on his own premises, while Brown’s work was being done on his employer’s premises where he was required to be by the terms of his employment.

In Kimbrough, the employee used his own car to drive to and from work. One morning, while on the employer’s premises and awaiting the arrival of his foreman, he was injured while trying to locate the cause of a certain noise in his car. On previous occasions, when there had been a breakdown in the plant, Kimbrough had used his car to go to town for replacement parts, but he had no intention of making such use of it on the morning in question. It was properly held that he was not injured while in the course of his employment.

The Brooks case was one in which the employee, whose job was to tie bundles of flooring behind a flooring machine, turned aside from his employment when the machine broke down and, there being no duty for him to perform for his employer while the machine was being repaired, was attempting to make a hammer handle for his own use. He was using another of his employer’s machines, on the employer’s premises. It was held that Brooks “was not engaged in the master’s business, but in an enterprise of his own without his employer’s knowledge or consent.”

We think the inapplicability of the Kim-brough and Brooks cases will be readily seen. Kimbrough and Brown were both on their employer’s premises when injured, and both were repairing their private cars, but Brown was also simultaneously performing a duty for his employer (of watching over the cemetery and being available for any other duty his employer might call on him to perform), and says he was repairing his own car so it could be used in the employer’s business, while Kimbrough was wholly on his own time, not subject to call by his employer, and was doing his work wholly for his own benefit. It is obvious that Brooks would not have received the injury complained of had he not turned aside from his master’s work and commenced other work in which his master had no interest whatsoever.

This case is controlled by such decisions as Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76; United East & West Oil Co. v. Dyer, 139 Tex. 318, 162 S.W .2d 680; Texas Employers’ Ins. Ass’n v. Lawrence, Tex.Civ.App., 14 S.W.2d 949, err. ref.; and Federal Surety Co. v. Ragle, (Tex.Com.App.) 40 S.W.2d 63.

We think we should make clear that wherever in the foregoing discussion we state that appellant Brown did or was doing certain things these are not findings of facts by this Court, but are merely recitations of certain statements contained m affidavits filed by appellant in opposition to the motion for summary judgment, which we must accept as true for the purpose of testing the propriety of sustaining the said motion.

The motion for rehearing is overruled.


author: COLEMAN, Justice.

text:
    Sallie Carroll HENDERSON, Appellant, v. Jack HERRINGTON, Appellee.
    No. 14048.
    Court of Civil Appeals of Texas. Houston.
    March 21, 1963.
    Rehearing Denied April 18, 1963.

      Paul Maynard, Dave Fretz, Houston, for appellant.
    R. W. Lawrence, Palestine, for appel-lee.
   COLEMAN, Justice.

This is a suit in trespass-to-try title. The principal question on appeal is whether the evidence establishes that the co-tenants of Sallie Carroll Henderson had notice of her adverse claim as a matter of law.

The 116 acres of land in controversy were the homestead of Abner M. Carroll and his wife, Jane Robertson Carroll. Abner M. Carroll died in 1905 without leaving a will and Jane Robertson Carroll died in 1915 without leaving a will. Jack Her-rington acquired the interests owned by all of the heirs at law of Abner and Jane Carroll in the surface of the 116 acre tract, except the ⅜⅛ interest of appellant, by conveyances executed after the year 1958.

The case was tried to the court without a jury on appellant’s cross-action in trespass-to-try title. The trial court filed findings of fact and appellant contends that he erred in making certain of the findings.

Appellant urges that the trial court erred in finding that she never gave her co-tenants notice that she was claiming title to the land adversely to them. Appellant’s mother lived with appellant and her family for eleven years immediately prior to her death on a farm owned by appellant and her husband. About three years after the death of appellant’s mother, appellant and her husband, John Henderson, sold their farm and moved onto the land in controversy. They lived there from 1918 to 1939 and thereafter the land was occupied by one of their children or by a tenant until this suit was filed. Appellant contends that her exclusive occupancy of the premises for such a long period of time raises an inference of notice to the cotenants out of possession, citing as authority the cases of Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926; Mauritz v. Thatcher, Tex. Civ.App., 140 S.W.2d 303, writ ref.; Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; and Mills v. Vinson, Tex.Civ.App., 342 S.W.2d 33, ref., n. r. e.

The general rule of law established by these cases is that “constructive notice will be presumed where the facts show * * * that the adverse occupancy and claim of title to the land * * * has been long continued, open, notorious, exclusive and inconsistent with the existence of title in the respondent.” Vasquez v. Meaders, supra.

The only evidence of actual notice is certain testimony that appellant’s brothers and sisters made an oral gift of the land to appellant. This testimony was controverted and the issue was resolved against appellant by the trial court. Appellant, therefore, cannot recover on her theory of parol gift followed by occupancy and valuable improvements.

The trial court found as a fact that appellant wrote William Chesley Carroll, one of the heirs, about twenty years ago asking him for a deed to the land; that in 1930 she asked her sister, Emma Carroll Elrod, to give her the land; that at the insistence of Judson Dennis, another of the heirs, appellant’s son made a partial payment on delinquent taxes in 1939; that in 1960 she asked J. A. Bell, another heir, to help her pay delinquent taxes and recover the interest of Frank O. Carroll. Appellant and her cotenants remained on friendly terms during all the time she occupied the land and members of the family visited appellant on the land from time to time. None of appellant’s brothers or her sisters were living at the time suit was filed. Appellee testified that he offered to buy the land from appellant and that she told him she couldn’t sell because the land belonged to all the heirs. These facts support the conclusion of the trial court that the possession of appellant was not adverse and that she had never repudiated the title of her cotenants. The cases cited by appellant are not applicable to the facts of this case. Before a presumption of notice will arise from long continued possession there must be evidence sufficient to show that the one in possession was claiming title to the land as against the record title holder. The question of fact raised by the evidence in this case was found against the contention of appellant

Appellant contends that a common source of title was not proved and that the parties to the suit are not cotenants. This contention avails her nothing because of the finding that appellant has not claimed title to the land against the other descendants of Abner and Jane Carroll.

It is well settled that the plaintiff in a trespass-to-try title action must recover on the strength of his own title and not on the weakness of that of the defendant. Humble Oil & Refining Co. v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218, writ ref. The trial court rendered judgment in favor of appellant for a ½⅛ undivided interest in the land as an heir of Abner and Jane Carroll. Appellee proved conveyances into him of the remaining %th of the land from the other heirs of Abner and Jane Carroll. The proof of heirship was sufficient to support the judgment and to show a common source of title. While appellant contends that a sufficient chain of conveyances from the sovereignty into the Carrolls was not proven, still in the absence of sufficient proof of adverse possession to require a favorable finding by the trial court appellant could not recover anything except as an heir of Abner and Jane Carroll, since appellant did not introduce evidence to establish a prima facie case establishing her title to the property by a chain of conveyances from the sovereignty or by presumption of title based on prior possession of the land. Humble Oil & Refining Co. v. Wilcoxon, supra; Lindley v. Mowell, Tex.Civ. App., 232 S.W.2d 256, ref., n. r. e.

The judgment of the trial court is affirmed.


text:
    Agatha Lyons FOSTER, Appellant, v. Johney Buel FOSTER, Appellee.
    No. 7227.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1963.
    Rehearing Denied March 25, 1963.
    Alton M. Reeder, Amarillo, for appellant.
    Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellee.
   NORTHCUTT, Justice.

Agatha Lyons Foster and Johney Buel Foster were husband and wife. Agatha Foster filed suit against Johney Foster for divorce and secured an order from the trial court requiring Mr. Foster to file an inventory of their community property. Sometime in June 1960 Mr. Foster filed an inventory and appraisement of the community estate. After the inventory had been filed for approximately thirty days, Mr. and Mrs. Foster on July 27, 1960, made and entered into a written property Settlemfent agreement stating that in the opinion of the parties it was fair, reasonable, just, and satisfactory. Foster did not appear at the divorce hearing and Mrs. Foster secured a divorce. In the judgment granting Mrs. Foster a divorce on July 28,1960, the court held the property settlement agreement was fail and equitable and affirmed such agreement,

Omitting the formal parts, the property settlement agreement reads as follows:

“WHEREAS, differences have arisen between the parties hereto and they have separated and are now living apart. As it appears to be impossible for the parties ever to become reconciled, and ever to hereafter live together as husband and wife, and as both parties desire to fix their existing rights as to the property of the parties, as set forth in this agreement, which in the opinion of the parties is fair, just, reasonable and satisfactory, it is here now agreed as follows:
“I.
“Defendant agrees that Plaintiff shall have, subject to the orders of this Court, a divorce.
“II.
“Plaintiff shall execute to Defendant all required special warranty deeds and bills of sale covering all separate or community real or personal property owned by the Defendant or by Plaintiff and Defendant jointly wheresoever located.
“III.
“Plaintiff shall pay to Defendant the sum of FIVE THOUSAND THREE HUNDRED FIFTY AND NO/lOO ($5,350.00) DOLLARS, payable $3,-350.00 in cash and the execution of a note in the sum of $2,000.00 bearing interest at the rate of six (6%) per cent per annum dated July 27, 1960, and the delivery to the said Plaintiff of the 1954 Lincoln automobile; and out of this sum the Plaintiff shall pay her own attorney’s fees.
“IV.
“Defendant agrees to assume any and all community indebtedness due to date.
“V.
“Upon granting of the divorce, the parties shall execute the necessary deeds, acquittances, bills of sale and title papers to effectuate this settlement agreement; and the parties do further agree that should there be any other papers, acquittances or releases necessary for this settlement, same will be executed forthwith.
“EXECUTED this 27th day of July, A.D. 1960.”

This agreement says Plaintiff is to pay the Defendant $5,350, but we consider this as an error as Mr. Foster was the Defendant in the divorce suit and paid Mrs. Foster.

When the divorce was granted, Mr. Foster paid Mrs. Foster $3,350 and executed and delivered the $2,000 note to her. After the divorce was granted, Mrs. Foster refused to execute the instruments she had agreed, the day before the divorce was granted, to execute in the property settlement agreement contending there was community, property not reported by Mr. Foster in the inventory that she did not know of when she made the settlement agreement. Yet, she testified she knew about some property not listed in the inventory before she secured the divorce. Mr. Foster brought this suit to require Mrs. Foster to execute the instruments as required in their agreement. Mrs. Foster, keeping the $3,350, answered seeking to recover one-half of the community property not listed in the inventory and by cross action sought judgment against Mr. Foster upon the $2,000 note including principle, interest and attorney’s fees. Judgment was entered requiring Mrs. Foster to execute the instruments provided for in the property settlement agreement and requiring Mr. Foster to pay the $2,000 as represented by the note. From this judgment Mrs. Foster perfected this appeal. Hereafter Mrs. Foster will be referred to as appellant and Mr. Foster as appellee.

The case was submitted to a jury upon special issues. The appellant contended there were several items of community property that were not listed in the inventory. The jury found that appellant relied upon the inventory; that she was reasonable in relying upon the inventory; that she exercised reasonable diligence to ascertain the correctness of the inventory; that appellee did not purchase the Cadillac, Ford, and boat with a separate fund and found all other property was his separate property ■except $1,926 which was community property. The jury also found that appellant at the time appellant filed suit on a $2,000 note, and thereafter, she recognized the property settlement agreement was subsisting and binding.

Appellant testified she knew before the divorce was granted about some of the things not being listed in the inventory that she is now claiming were community property. It is to be noticed no action was ever taken in the Court of Domestic Relations where the divorce was granted approving the settlement agreement to set aside the judgment approving the settlement.

The appellant testified as follows:

“Q. (By Mr. Dunlap) You are the Agatha Lyons Foster who testified earlier in this case, are you not?
“‘A. Yes, sir.
■“Q. You heard all of the testimony here that was brought out by Johney Foster on the witness stand, did you not ?
"“A. Yes, sir.
“Q. At this time, are you still asking that he deliver to you the title of the Lincoln automobile?
“A. Yes.
“Q. Are you still asking that he go ahead and carry out his agreement and pay you the $2,000 in the property settlement agreement?
“A. Yes, sir.
“Q. And you are still wanting to keep the cash that you received in connection with the property settlement agreement?
“A. Yes.”

Since appellant knew before she proceeded to have the divorce granted affirming the settlement agreement that there was other property she contends there was community property not listed in the inventory she should not be heard to complain that she was misled by the appellee. If appellant was induced by fraud to enter into the settlement agreement and yet continues to receive benefits under the contract after she learned of the fraud and since she tries to enforce the contract in part and recognized the contract as subsisting and binding, we think she has thereby affirmed the settlement agreement. Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506 (Sup. Ct).

Appellant was the party in the divorce suit asking the trial court to grant a divorce and asking that the agreement be approved when she knew there were some items of community property not listed in the inventory. Consequently, she cannot accept a part of the partition and thereafter attempt to reject the balance by bringing suit to recover a portion of that awarding to the appellee. Jetton v. Jetton, Tex.Civ. App., 257 S.W.2d 146 (NRE).

Judgment of the trial court is affirmed.


text:
    In re ESTATE of Gus BURRIS, Appellant, v. ASSOCIATED EMPLOYERS INSURANCE COMPANY, Appellee.
    No. 7245.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1963.
    Rehearing Denied April 15, 1963.
    Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
   CHAPMAN, Justice.

On January 26, 1959, our court in Associated Employers Insurance Company v. Burris, 321 S.W.2d 112, affirmed a lower court judgment decreeing a recovery for the claimant against the appellee here, the insurance company just named, under the workmen’s compensation law of Texas for 401 weeks at the rate of $24 per week. A lump sum was not awarded and Gus Burris departed this life with 176 weeks of the 401 weeks not yet matured. The record does not show if his death resulted from unrelated and independent causes to that of the injury upon which the judgment was rendered that furnished the subject of our January 26, 1959 opinion above mentioned. In view of the lapse of time between the compensable injury and his death, and the fact that the record is silent on that question, we shall assume there was no relation between his death and the compensable injury. Thus, the question to be decided is whether a final, non-appealable judgment awarding weekly workmen’s compensation benefits for a general injury survives to the estate of the injured workman for the un-accrued installments. All due installments had been paid to the date of his death.

The subject generally of the survival right to compensation under our workmen’s compensation act and kindred acts of other jurisdictions is one upon which there has been no particular unanimity. The varying views are subjects of a number of A.L.R. annotations and are, we believe, principally attributable to the differences in the language of the controlling statutes. We have not been cited to nor have we found a Texas case directly in point on the exact question here to be decided; that is, survival right where a general injury has been reduced to final, non-appealable judgment and a portion of the installments are unac-crued. However, there are phases of the survival rights that are settled in Texas and the clear distinctions made and reasoning applied to the cases decided upon good authority in our state convince' us that the rights here claimed do not survive.

Where an employee has suffered a specific injury for which a definite recovery is prescribed by Section 12 of Article 8306 Vernon’s Ann.Tex.Civ.St. recovery right will survive because the employee had a vested right from the date of the accident to recover the number of weeks of compensation prescribed by statute for the particular loss. Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046.

If death has resulted from a com-pensable injury and thereafter the statutory beneficiary dies, the recovery right of the statutory beneficiary will survive the beneficiary’s death because there exists in the statutory beneficiary a vested right to recover the 360 weeks of compensation prescribed by Section 8 of Article 8306 V.T. C.S. Texas Employers’ Ins. Ass’n. v. Lawrence, Tex.Civ.App., 14 S.W.2d 949 (error refused).

However, we believe the unaccrued workmen’s compensation benefits do not survive to the estate of the injured workman in a general injury case under Sections 10 and 11 of Article 8306 when the workman’s death is unrelated to the injury furnishing the basis of recovery of the compensation benefits. Texas Employers’ Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991; Swain v. Standard Accident Ins. Co., 130 Tex. 277, 279, 109 S.W.2d 750; Traders & General Ins. Co. v. Baldwin, 125 Tex. 577, 84 S.W.2d 439.

Unlike Section 12 of Article 8306, Sections 10 and, 11 of the article provide a recovery right only while the incapacity for work resulting from the injury is total or partial. Incapacity for work from the time of Gus Burris’ death did not result from his injury but from the fact of his death. (Emphasis added).

In the Phillips case just cited the workman recovered total and permanent compensation benefits and on appeal the judgment was reversed and remanded for a new trial. While the appeal was pending Phillips died of causes unrelated to the com-pensable injury. On the second trial the widow and children were substituted as plaintiffs and they then recovered the same benefits. On appeal the' cou'rt of civil appeals certified the following two questions:

1. “ ‘Did the claim of Jim Phillips for compensation survive to his widow and two minor children (a) as his heirs at law or (b) as his legal beneficiaries under the provisions of our Workmen’s Compensation Act?
2. ‘If the cause of action did not survive for the full compensation period, did it survive for the amount that accrued from the date of his injury to the date of his death ?’ ”

The reply of the court was as follows: '

“We answer questions Nos. 1 and 2 that the claim of Jim Phillips for compensation and any cause of action therefor, survived his death only for the amount of same accruing and unpaid from the date of his injury to the date of his death. All unaccrued and unmatured portions of said claim are extinguished at his death, so that liability exists only for the portion of same matured and unpaid at the time of his death, and hence only this portion passes to his heirs.”
The court went on to say:
“It is almost the universal rule that liability for unaccrued compensation terminates with the death of the injured employee, where his injury is general and death is from a cause other than the injury, which form the basis of a claim for compensation."

The court then quoted with approval from the Supreme Court of Oklahoma as follows :

“ ‘The average weekly wage of the employee is taken as a basis upon which to compute the compensation. Had there been no injury, the payment of wages would cease on the termination of the relation of master and servant. When the relation is terminated by death of the employee, the occasion for making compensation in lieu of wages comes to an end.’ ”

The Court of Civil Appeals in Swain v. Standard Ins. Co., 81 S.W.2d 258 held that our statute makes a distinction between a general injury and a specific injury and in discussing a general injury case said: “The right to compensation for disability other than death is exclusively in the employee * * The Supreme Court in writing on the case said in referring to the Court of Civil Appeals opinion: “That opinion correctly decided this case * * * and we write only because of an apparently new contention not pointedly discussed therein, and upon which writ was granted.”

We believe there are other good reasons that distinguish a specific injury from a general injury in Texas which causes the workmen’s compensation benefits to terminate in a general injury case such as ours upon the death of the workman. Payments such as we have in the instant case are in lieu of wages, are personal like the contract of employment, and are terminated by death, since death would have terminated the contract out of which it grew. Such payments are intended for the personal benefit of the beneficiary workman.

In view of the disposition we have made of the case it is unnecessary to write on the other points raised.

For all the reasons stated and under authority of the cases cited the judgment of the trial court is in all things affirmed.

      . 15 A.L.R. 821; 24 A.L.R. 441; 29 A.L.R. 1426; 51 A.L.R. 1446; 87 A.L.R. 864; and 95 A.L.R. 254


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Ben SEALE, Appellee.
    No. 7241.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1963.
    Rehearing Denied April 15, 1963.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant
    Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellee.
   DENTON, Chief Justice.

This is a workman’s compensation case. The suit was brought by appellee, Ben Seale, seeking to set aside an award of the Industrial Accident Board. Appellee alleged that during the time he was employed by Taylor-Evans Seed Company, Inc. of Tulia, Texas, he suffered an occupational disease by coming in contact with and being exposed to inhaling certain named chemicals ; that as a result of inhaling the named chemicals he injured his lungs and internal portions of his body, thereby causing a deterioration of those organs. Appellee further alleged in the alternative that he suffered an accidental injury on March 19, 1960, when he-inhaled a large quantity of one or more chemicals previously alleged. Appellant’s answer consisted of general and special denials.

The trial was to a jury, and in answer to the special issues submitted the jury found Seale sustained an accidental injury on the date alleged, and that such injury was total and permanent. No special issues were submitted on the question of occupational disease. At the conclusion of the evidence, the appellant insurer filed a motion for instructed verdict. This motion alleged the trial court was without jurisdiction to hear the case for the reason there was a material variance between the claim presented to the Industrial Accident Board and the claimant’s claim asserted in the trial and established by proof on the trial. This plea to the jurisdiction was again asserted in appellant’s objections to the court’s charge and in its motion for judgment non obstante veredicto. These motions and objections were overruled and the trial court entered judgment for the claimant in accordance with the jury verdict.

Appellant contends the trial court did not have jurisdiction to submit the issue of accidental injury; and the jury’s affirmative answer to this issue will not support the trial court’s judgment because of a fatal variance between the claim submitted to the Board and the cause of action submitted to the jury. Appellee takes the position that even should it be found there was a fatal variance between the two asserted claims, appellant waived its right to file its plea to the jurisdiction after the trial had progressed to the close of the testimony.

Appellee’s claim before the Board was obviously based on an occupational disease. It is clear all parties, including the Board, treated it as such. After a claim has been filed with and acted upon by the Industrial Accident Board another and different claim cannot be asserted in the district court. Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W. 2d 205, (Opinion Adopted.) Stratton v. Gulf Cas. Co., (Tex.Civ.App.), 53 S.W.2d 518. After proper notice and timely appeal from the Board’s award, appellee’s trial petition alleged an occupational disease, and in the alternative, an accidental injury. It is well settled an accidental injury is distinguished from an occupational disease. Under our workmen’s compensation law they are two separate and distinct injuries. Barron v. Texas Employers’ Ins. Ass’n., (Tex.Com.App.), 36 S.W.2d 464. Rudd v. Gulf Cas. Co., (Tex.Civ.App.), 257 S.W. 2d 809. American Surety Co. of New York v. Ritchie, (Tex.Civ.App.), 182 S.W.2d 501. Appellee violated the general rule above announced when he elected to submit the issue of accidental injury to the jury. Having concluded that there is an obvious material variance between the claim submitted to the Board and the claim asserted in the district court, we are confronted with the primary question of whether or not appellant’s insurance carrier waived its right to file its plea to the jurisdiction.

Appellee contends appellant waived the plea to the jurisdiction when it failed to deny appellee’s pleadings by verified pleadings as required by Article 8307b, Vernon’s Ann.Civ.St. See also Rule 93(n), Texas Rules of Civil Procedure. In our opinion this statute and rule do not support appel-lee’s position. This statute and rule provide that certain allegations of a claimant in a workmen’s compensation case is presumed to be true unless denied by verified pleadings. One of the matters included in the statute and rule pertains to the claimant’s pleading of his “claim for compensation”, but this pleading has to do with the time and manner of filing the claim with the Board. The purpose of this statute was explained by the late Chief Justice Alexander in Southern Underwriters v. Tullos, 136 Tex. 408, 151 S.W.2d 789, in the following language: “The purpose of the above statute (Article 8307(b) ) is a wholesome one. It is intended to avoid the necessity of consuming the time of the court in the trial of matters about which there is no good faith contest, so that the court may concentrate its efforts in the solution of the really contested issues.” The question of a material variance between the claim submitted to the Board and the claim asserted on appeal in the district court is not a matter that is governed by the statutes and rules relied on by appellee. Article 8307b and Rule 93 (n) pertain to certain procedural matters which must be taken in order to give the district court jurisdiction of the compensation claim upon its being appealed from an award of the Industrial Accident Board. A material variance such as appears in this case is not such a matter contemplated by this rule and statute

Having determined that the provisions of Article 8307b and Rule 93 (n) have no application to the case at bar, we conclude the insurance carrier did not waive its right to file its plea to the jurisdiction by its failure to deny the claimant’s allegations by verified pleadings. Although the question of waiver was not specifically raised on appeal in Solomon v. Mass. Bonding & Ins. Co., (Tex.Civ.App), 347 S.W.2d 17, (Writ Refused.), we think that case’s holding is controlling here. The facts of that case and the case at bar are very similar. The claim submitted to the Board there was for injuries sustained as a result of an accidental injury. On appeal the claimant sought to set aside an award of the Board alleging he suffered an accidental injury on January 1, 1954, while spraying exterminating chemicals under a house. The claimant further alleged in the alternative that during the period from 1953 until June of 1956 he sustained an occupational disease while performing the same type of work for the same company. At the close of the plaintiff’s evidence, the insurance carrier filed its plea to the jurisdiction of the court on the primary ground that there was a material fatal variance between the claim made before the Board and the cause of action sued on in the trial court. The trial court sustained this plea and the trial court’s action was affirmed on appeal. Instead of contending the insurance carrier should have complied with Article 8307b and Rule 93 (n) by filing verified pleadings, the claimant in the Solomon case contended the variance, if one existed, should have been pointed out by exceptions to the pleadings. This contention was rejected by the Court of Civil Appeals. We, therefore, conclude the trial court erred in overruling appellant’s plea to the jurisdiction for the reason there was a fatal variance between the claim made before the Board and the cause of action submitted in the trial court.

Appellee urges that if the trial court’s judgment is found to be erroneous, the case should be remanded rather than rendered. We are convinced this is the disposition we should make of the case. The case was submitted to the jury upon an erroneous theory, to-wit: Issues were submitted on accidental injury rather than on occupational disease. It is also our opinion that justice demands another trial. It is not seriously questioned that Seale was injured in the course of his employment, and that his injury was diagnosed as pneumonitis or chest infection. The extent of such injury is not before us. It is undisputed he had worked for the same employer for a period of several years, and this employment required him to work in and around the dust and chemicals used in treating seed. Testimony concerning an accidental injury and an occupational disease may be very similar in many instances. There was medical testimony in the record that tends to support the occupational disease allegations. Since the case was submitted on an erroneous theory and in order that justice may be done, the judgment will be reversed and the cause remanded for a new trial. Rule 434, T.R. C.P. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792. Texas Employers’ Ins. Ass’n v. Mahlow, (Tex.Civ.App.), 304 S.W.2d 161.

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

Reversed and remanded.


text:
    Thomas DEVINEY and Ralph Sadler, Appellants, v. Bessie Lee HENNEMAN, Appellee.
    No. 7244.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1963.

      Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   NORTHCUTT, Justice.

This is an automobile collision case. The parties will be designated herein as they appeared in the trial court; that is, Thomas Deviney and Ralph Sadler as plaintiffs and Bessie Lee Henneman as defendant. This cause of action is based upon an automobile collision which occurred at the intersection of West Sixth Avenue and Tyler Street in the City of Amarillo on December 4, 1961. Mrs. Sadler and Mrs. Deviney were traveling north on Tyler Street and Mrs. Henneman was traveling east on Sixth Street. There were two cases originally filed; one for each of the above named plaintiffs but prior to the trial the same were consolidated by an order by the trial judge.

The jury found that the defendant ran a red light at the time and place in question; that said action was a proximate cause of the collision and found that the defendant failed to keep a proper lookout and that act was a proximate cause of the collision.

The jury found in answer to other special issues that the amount of damage sustained as a result of physical pain and suffering on the part of Mrs. Deviney was $25; that she would suffer no future pain; that her lost earnings to the date of the trial was $100; and that she would suffer no loss of earnings in the future.

The jury further found Mrs. Sadler had suffered pain and the amount of damage was $100; that she would suffer no pain in the future; that she had suffered no lost earnings; and that she would suffer no loss of earnings in the future; and found that the damage to the Sadler automobile was $225 and the jury found further that Mrs. Sadler, the driver of the car in which she and Mrs. Deviney were riding, failed to keep a proper lookout and that this was a proximate cause of the collision; that she failed to apply her brakes and same was a proximate cause of the collision.

The trial court entered judgment upon the verdict of the jury awarding $125 to the plaintiff, Thomas Deviney, and denied any recovery to the plaintiff, Ralph Sadler. From that judgment both plaintiffs perfected this appeal.

There is one thing concerning this appeal that we must consider. The judgment of the trial court recites as follows:

“It further appearing to the court that . the defendant has satisfied said judg-tnent simultaneously with the entry hereof by paying said amount to the plaintiff, THOMAS DEVINEY, and his attorney and further that defendant has paid the cost of court herein taxed against her in the Deviney action. Therefore, let no execution issue in this respect.”

The judgment does not state that the defendant paid into court the $125 as judged in favor of Deviney but showed was paid to Deviney and his attorney and was not objected to or denied in the record. So far as Deviney is concerned, the judgment has been satisfied and complied with by payment of the judgment and cost of suit and the questions involved become moot. Travis County v. Matthews, Tex.Civ.App., 221 S.W.2d 347; Hill v. James, Tex.Civ. App., 307 S.W.2d 619.

However, since Sadler is also a party to this appeal and the points of error concern both plaintiffs, we will consider the appeal as presented. The plaintiffs present this appeal upon two points of error contending the trial court erred in overruling plaintiffs’ motion for new trial when the verdict showed beyond question that the answers to the special issues submitted to the jury were based solely on bias and prejudice and not supported by any evidence or alternatively insufficient evidence and because the amount of damage awarded was so inadequate and small that an injustice was done to the wives; that it shows the jury acted solely on bias and prejudice. If the evidence was insufficient or there was no evidence to support the answers of the jury to the special issues and the entire verdict was based on prejudice as contended by the plaintiffs, then there would be nothing to show any negligence on the part of the defendant or plaintiffs. If there was no evidence to show negligence on the part of the defendant, the plaintiffs failed in their proof.

If there is sufficient evidence to show negligence and proximate cause on the part of Mrs. Sadler in failing to keep a proper lookout and in failing to apply her brakes as found by the jury, then the case as to Sadler would have to be affirmed. Mrs. Sadler testified as follows:

“Q. Well, as you came up to this intersection, were there cars in front of you in your lane of traffic?
“A. Not in front of me.
“Q. And there was nothing to block your vision now, as you go into this intersection?
“A. No.
“Q. The best you can tell us is that when you were a couple of car lengths, this light changed green for you; is that right?
"A. Yes.
“Q. Now you said also that there was another car up there somewhere. Where was this other car?
"A. He was parked at the left-hand side of Van Burén, waiting for the light to turn—
“Q. And that car would have been to your left?
“A. Yes.
“Q. In the other lane of traffic?
“A. Yes.
“Q. So that car necessarily had to turn in front of Mrs. Henneman, didn’t it?
“A. He made his left-hand turn.
“Q. I say, she wasn’t in the intersection then, was she?
“A. I didn’t see Mrs. Henneman until she hit me or just about.
“Q. Oh, I see. You never, then, saw the Henneman car until it hit you; is that correct?
“A. A short time before but not enough time to stop.
“Q. Well, you say a short time, how far was it from you; a foot or two?
“A. As I say, I tried to stop but the jar hit where I—
“Q. Well, as a matter of fact, Mrs. Sadler, Mrs. Henneman’s car entered this intersection prior to the time your car ever got to the intersection, did it not ?
“A. It was still a green light for me and a red light for her.
“Q. Listen to my question. I said, Mrs. Henneman’s car had entered this intersection before you ever got in the intersection; isn’t that true?
“A. No, not that I — I was well into the intersection before she entered it.
“Q. Isn’t it a fact that Mrs. Henne-man’s car traveled clear across this intersection, clear across and your car got into the intersection about 10 or 12 feet; it just barely got into it, with your car being driven next to the curb on Van Burén; isn’t that the way it happened ?
“A. No. Mrs. Henneman was coming at a pretty fast speed because she — I had already checked as the fellow had turned to the left, I had looked and followed him and then I checked to the right and I checked a second time to see that I had the green light and I proceeded.”

If the car that was to Mrs. Sadler’s left was parked waiting for the light to change and the light changed, as testified by Mrs. Sadler, when she was about two car lengths from the intersection and driving approximately 20 miles per hour, the jury could have reasoned she failed to keep a proper lookout and failed to apply her brakes under all of these circumstances.

It is stated in Arrington v. Paschall, Tex. Civ.App., 352 S.W.2d 866 (NRE) as follows :

“Ordinarily, proper lookout is a question for the jury. Texas & Pacific Ry. Co. v. Day, (Sup.) 145 Tex. 277, 197 S.W.2d 332.
“Our Supreme Court in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275, clearly established the rule applicable in cases of this kind. There the Supreme Court said:
“ ‘In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. * * * The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.’ ”

It is a well established rule of law that an appellate court cannot substitute its judgment for that of a jury on disputed issues of fact. Linney v. Wood, 66 Tex. 22, 17 S.W. 244; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Holmes v. American General Ins. Co., Tex.Civ.App., 263 S.W.2d 615; Roach v. Continental Casualty Company, Tex.Civ.App., 336 S.W.2d 811; Brewer v. Dallas Ry. & Terminal Co., Tex. Civ.App., 247 S.W.2d 435; Flack et al. v. First Nat. Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628.

It was in the province of the jury to disregard the testimony of Mrs. Sadler and Mrs. Deviney as interested parties. It is apparent the jury did so. After carefully reviewing the record and all of the evidence, we are of the opinion the verdict is supported by the evidence and overrule appellants’ assignments of error.

Judgment of the trial court is affirmed.