text:
    J. K. PRIEM et al., Appellants, v. Emilie ADAMS, Appellee.
    No. 10901.
    Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1961.
    Rehearing Denied Jan. 3, 1962.

      Fox & Fondren, Taylor, Vernon M. Pfluger, Austin, for appellants.
    McClain & Stump, Georgetown, for ap-pellee.
   HUGHES, Justice.

This suit was brought to contest the will of John Priem who died in Williamson County, May 9, 1960, at the age of 91 years. The will was executed August 15, 1959.

The proponent and sole beneficiary of the will is Emilie Adams, a daughter of testator.

Those contesting probate of the will, also children of testator, were Mary Klatten-hoff, J. K. Priem, Paul Priem, Gottlieb Priem, Johanna Gunn, Richard Priem, Oscar Priem and Pete Priem.

The grounds of the contest were that testator lacked mental capacity to execute the will, and that he executed it as a result of undue influence exerted upon him by Emilie Adams.

These two issues were submitted to a jury which found that testator possessed mental capacity to execute the will, but that it was executed while acting under the undue influence of Emilie Adams.

All contestants except Oscar and Pete Priem moved for judgment on the verdict.

Proponent moved that the answer of the jury finding undue influence be disregarded for lack of evidence to support it, and that judgment be rendered sustaining the will.

The motion of contestants was overruled. The motion of proponent was granted.

Appellants are all of the original contestants except Oscar and Pete Priem. .

All of appellants’ points except number two relate to the lack or sufficiency of the evidence. They are that the finding of testamentary capacity of the testator was without any evidence to support it, and that it was against the great weight and preponderance of the evidence. Also, that there was sufficient evidence of probative force to sustain the jury finding of undue influence.

To avoid repetition, we will make one statement of the material evidence in disposing of these points.

Mr. W. K. McClain, the attorney who prepared the will for testator, testified that in August, 1959, Mrs. Emilie Adams and her daughter, Mrs. Otis Daniel, came to his Georgetown office with a note signed “John Priem:” reading: “I would like to talk to you sometime if you can come to Round Rock.”

Mr. Priem at that time .was living near Round Rock with Mrs. Emilie Adams and her husband.

This note was actually signed by John Priem, but the body of it was written by Mrs. Daniel.

Mr. McClain, being informed that Mr. Priem desired to discuss with him the making of his will and not being acquainted with Mr. Priem, suggested that Dr. H. R. Gaddy, a Georgetown physician, visit and examine Mr. Priem and advise him, Mr. McClain, if it would be proper for him to visit Mr. Priem and talk with him about his will. Dr. Gaddy did as requested, and reported to Mr. McClain that it would be proper for him to talk with John Priem, that “it was all right with him."

Within a day or so Mr. McClain visited Mr. Priem. We quote from his testimony regarding this visit:

“Q. Can you briefly describe Mr. Priem’s physical appearance and condition to the jurors? A. Well, now, I had already ascertained that he was 90 or 91 — 90, I believe, 90 years of age; and when he came in, he was a man that I would say was of that age; he came in; he walked rather briskly and he walked rather spry; he had a cane in his hand; he came right on in, and I got up out of my chair; he walked right up to me and shook hands with me and told me he was John Priem, and I told him who I was, and I suppose he was expecting me and—
“Q. Did he have a difficulty with reference to his hearing, Mr. McClain. A. John Priem had a difficulty and a physical defect in his hearing. One ear, apparently, he could hear out of, and the other one, he couldn’t hear out of, and you had to talk very loud to him. He sat in the chair, and I sat down on the sofa right by him, and I had to talk very loud for the old man to understand me.
“Q. State the substance of your conversation with Mr. Priem at that time, Mr. McClain. A. Mr. Priem stated to me that he wanted me to prepare a will for him, and I told Mr. Priem that I could prepare one for him, but that it was customary for the attorneys to talk to their client and find out all the information regarding this old gentleman, and we sat there and I asked Mr. John Priem who his children were and he told me — about, after about fifteen minutes of talking there, he told me. He named all of his children over to me. I asked, furthermore, asked Mr. Priem about his property, how much property did he have. He told me he owned a little farm over in Travis County, and I asked him how much it was, and he told me that it was about 130 acres of land that he owned, that he and his wife had bought this land during their lifetime, and that he owned a one-half interest in this farm, and I asked him if he had any other property, and he said no, this was the main property that he had; this was practically; — for all practical purposes, all that he had, was the one-half interest in this farm.
“Q. Did he tell you how he wanted to dispose of his property, Mr. McClain, in his will ? A. Yes, sir. Now, I, of course, as all attorneys will do, on occasions of this kind, we ask him who his children are, whether his wife was living, and she was dead, and I asked him what did he want to do with this property; what did he want to do with it; and he told me he wanted to give this property to Mrs. Adams, the woman he was living with, Mrs. Nils Adams, I believe her name is Emilie Adams.
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“A. Yes, sir; I asked him about his other children and those that he had mentioned to me and—
“Q. What did he tell you ? A. He said he loved those children; he loved all of his children, but he said this, that ‘This woman here has taken care of me, and she has built me a home here, a little room here for me to live in, and she has been good to me, in looking after me, and I think she is entitled to it;’ and that was the way lie left it with me.”

Mr. McClain prepared the will in accordance with the desires of the testator and on the day following the above visit, Mr. McClain took the will to the testator for execution. As to this visit, we quote Mr. McClain :

“A. Mrs. Adams was there, and I asked her if I could see Mr. John Priem. I sat down in the front room again, and she went back out to the back; this little house he was living in was out about 30 or 40 feet behind the house. A few minutes, Mr. Priem came in, and I told him that I had prepared the will in line with what we had discussed, and we sat down in the front room, and I read this will over to this old gentleman, just taking it word by word, and putting it in his ear, and when I got through with it, I would ask him, ‘Now, is this what you want; is this the type of will that you want?’ And the old gentleman told me that was the — that was what he wanted to do with his property; that was the kind of a will that he wanted. It was the same — it was drawn exactly as he had told me the day before. I tried my best to draw it just exactly the way the old gentleman wanted it.
“Q. What was the next thing you had done after you had read the will to Mr. Priem and explained it to him, and he told you it was what he wanted ? A. Now, I asked Mr. Priem and I told him that we would have to have two witnesses to this will, and did he have any preference as to who would be witnesses on this will. I told him I would go and get any witnesses he wanted. He said, well, he had known Judge Wayland, who was the Justice of the Peace at Round Rock, and that he knew Mr. Robinson, who ran a store across the street, and said those witnesses would be all right; if I would go out there and get them and bring them back, why, he would like for them to witness the will, and I did that.”

Mr. McClain testified that he went for and brought the persons named by testator to the Adams house to witness the will, and that testator, Mrs. Adams, the witnesses and he were the only persons present when the will was signed by the testator and the witnesses.

On this occasion, Mr. McClain told Mr. Priem in the presence of Mrs. Adams what his fee would be. Mrs. Adams left the room and returned and paid the fee in cash from her own funds. The will witness, Judge Wayland, testified that the testator knew him when he arrived at the Adams’ home to witness the will; that Mrs. Adams’ daughter, Mrs. Otis Daniel, in addition to the others mentioned by Mr. McClain, was also present when the will was signed. He testified that Mr. McClain read the will in the presence of all and that testator stated that the will was “the way he wanted it.”

The other will witness, John D. Robinson, testified much to the same effect as did Judge Wayland, except that Mr. Robinson did not name Mrs. Daniel as being present.

Dr. H. R. Gaddy testified that he had known John Priem for six or eight years prior to his death. He testified that Mr. Priem was quite deaf, that he had a large left inguinal hernia, and that he had a skin cancer affecting the left ear. Dr. Gaddy attributed the death of Mr. Priem to arteriosclerosis and coronary heart disease.

Each of the above witnesses to whose testimony we have referred testified to the mental soundness of John Priem at the time of the execution of the will.

Mr. Green Adams, a brother-in-law of Emilie Adams, testified that when Gus Priem who was living on the farm with his father, John Priem, was accidently shot and subsequently died, that John Priem wanted to move from the farm where he lived alone to his daughter Emilie’s place in Round Rock, providing they would fix him a house for himself. He testified that his brother Nils bought a house for this purpose and that several of the relatives helped move it to the Adams place near Round Rock. This was in January, 1958. In February following, Mr. John Priem moved to this house where he resided until his death. Mr. Green Adams testified that testator told him that he was going to give Emilie his half interest in the farm for taking care of him, and that Emilie took good care of him while he lived at the Adams place.

Mr. Green Adams testified at some length. He had known John Priem for forty years. His brother, Nils, was the husband of Emilie Adams. His sister was the wife of Paul Priem, one of the contestants here.

We will not further detail the testimony of Green Adams. He testified to the pertinent mental competence of John Priem.

Other witnesses who testified to the menial competence of John Priem were George Mabry, a life insurance salesman who lived in Austin, Texas, and Williamson County Commissioner Sebern Barker. Mr. Barker, however, last saw Mr. John Priem in March or April 1958.

Mr. J. K. Priem, a son of John Priem, and one of the contestants, testified that he first learned of his father's will March 6, 1960, and that on March 8 he and his brothers Richard and Paul went to the Adams' house where his father was living and was shown the will by Mrs. Adams. We quote from his testimony:

“Q. Did you see Mrs. Adams on that occasion? A. Yes, sir.
“Q. You did. Tell us how you happened to meet her on that occasion. A. Well, at the time we went into my daddy’s little room he had there, well she come on up right away wherever she come from, from her house or wherever she come from — I don’t know where; she could come from back of the house; but anyway, she come up there and asked us to come in the kitchen. I said, ‘No;’ we all said, ‘No,’ see.
“Q. All right, sir. A. And—
“Q. What did she say? A. Then she said, ‘Wait a minute. I got something to show you.’
“Q. All right, sir. A. And she brought it out, this piece of paper, you see, this instrument, and gave it to my brother Paul. He read it.
“Q. All right, sir. A. And then after that I read it and Richard read it.
“Q. All right, sir; all three of you there at the place read this instrument; is that correct? A. Yes, sir.
“Q. All right, sir. Then did -you have any further conversations with Mrs. Adams after you had read this instrument; did you talk to her any more? A. Well, she just said we shouldn’t talk so much, that was the doctor’s orders, shouldn’t talk too' much.
“Q. All right, sir. A. And then finally she says, T can order you off the place through my attorney.’ ”

Contestants Paul Priem and Richard Priem testified in substance to the same matters about which their brother J. K. Priem testified.

Mrs. Paul Priem had known John Priem for more than forty years. She visited him frequently, even after he moved to the Adams place. We quote her:

“Q. Now, you have testified that you visited Mr. Priem very frequently, saw him on many occasions, even after he moved to the Adams house, if he was up and wasn’t in bed. Did you always make some attempt to visit with him and converse with him? A. I did when I could, but most of the time he didn’t recognize who I was.
“Q. He had difficulty recognizing you? A. Yes, he did; for the last two to three years, I would have to tell him who I was. Sometimes he would get me confused with my sister and call me Barnes; he had called me Barnes on a number of occasions, and I would tell him who I was, and the minute I would tell him, he would recognize me as Paul’s wife, and another time I would meet him and he would ask me about my husband, Barnes; he would confuse me with my sister.
“Q. Let’s see if we understand your testimony correctly. You have a sister who married a man by the name of Barnes? A. That’s right.
“Q. And Mr. Priem would call you Barnes ? A. Call me Barnes. He got me confused the last two — over two years, he always got me confused with my sister.
“Q. Did he ask you any questions about Barnes? A. Yes, he would ask me about what Barnes was doing, and I would have to tell him that my brother-in-law had passed away, my brother-in-law was dead, that I was Paul’s wife, and not my sister.
“Q. When did Barnes die? A. In September, about maybe three or four years ago.
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“Q. All right. Did you have any other difficulties, other than the fact that he failed to recognize you; did you have any other difficulties in conversing with Mr. Priem? A. Well, for the last year before he left the farm, I would have to go up and tell him who I was, and I got to where I couldn’t carry on very much of a conversation with him, because he was so hard of hearing. I could just maybe repeat one word at a time to him to make him understand what I was trying to get across to him; but for the last two years, three years, we never could visit with one another like we did before, because he could not understand what I was trying to say.
“Q. You attributed it, at least partly, to the fact that he was quite deaf; is that right ? A. He was quite deaf, and I got to where that I couldn’t talk to him at all, practically.
“Q. Did you have any other difficulty in communicating with him. A. No, because whenever he would try to talk German back to me, I understand a little German, and when he would get confused and say a few German words along with English to me, I nearly always grasped the meaning of what he was trying to tell me, because I understood a few words, because I had been in the family long enough that I knew the expressions he would use when he wanted to express himself.
“Q. And he would express himself in German too? A. Sometimes he would mix his German in with his English when he was talking to me.
“Q. Do you actually speak German ? A. No, I don’t; I speak just a few words, but I can understand a little more than I can speak.”

Mrs. Priem also testified that John Priem read German, but not English, and that in the last few years of his life he gave up reading. She testified that while John Pri-em lived on his farm, about the year 1955 or 1956, she heard John Priem comment about making a will. She testified:

“A. Well, we were visiting in a home that afternoon, that Sunday afternoon — my husband had took off from' work. We went over after lunch; and we were discussing an old friend of the family that had passed away, and one of the members of the family asked— this party that we were discussing had made a will and each child had inherited so much property; so one of the members of the family asked him, he says, ‘Daddy, had you ever thought about making a will?’ Well, he was sitting * * * back in his chair smoking his pipe, and he hit the floor with his chair. He says, ‘Nein, I make no will.’ He says, ‘I don’t claim part of my children. I claim all of my children, and all I ask is to live on this farm till I die. Then everything is to be divided equally.’ He said, ‘In the first place, I don’t have any money to pay a lawyer. Whatever money I have got, I had to work the farm to buy food.’ Now, that is exactly what my father-in-law said.” ,.

Mrs. Paul Priem expressed no opinion as to John Priem’s mental capacity.

Mrs. Richard Priem, age 46, testified that she had known John Priem all of her life. She related a conversation with him after the injury to his son Gus in which Mr. Priem stated he would not move to Mrs. Emilie Adams house. She also testified that during the last two years of his life he 'had difficulty in recognizing her “until I could get him to recognize my voice.” She had short conversations with him hut “he wasn’t concentrating on what I was trying to say to him or something, or he was mumbling.” She also testified that Mr. Priem always asked her about his dog which had been left at his farm, and that he spoke of his deceased son Gus as if he were living. She also related that John Priem had given her husband Richard a little red cap, “just like a child.” She quoted him as saying he should never have left his farm. She testified that Mr. Priem did not keep his person clean in his latter years.

Mrs. Richard Priem expressed no opinion as to the mental soundness of John Priem.

Mrs. Marion Priem whose husband was a grandson of John Priem testified that she had known John Priem for about nine years. She described his poor physical condition, and the difficulty of communicating with him. She had seen - him reading German books and papers. We quote the witness :

“A. Well, when we would go visiting Pop Priem, he didn’t ever know me, but someone would come to him and explain to him in German and English, talking both half-way, and say to him that ‘That is Marion’s wife,’ and they would say, ‘Well, that is Paul’s son,’ and they would explain to him in that manner, and finally he would. say, ‘Oh, ja, ja, das ist Marion’s frau,’ and that is how they would get to him. Otherwise, he would have never known me if I would have walked up to him and — I would have been a ghost to him.
* * * * * *
, “Q. Did you have any extensive conversations with him? A. Well, I sit and talked to him, and he would answer me of things that — I just said— I would agree most of the time. You couldn’t talk to him, because — I .couldn’t talk to him; I couldn’t make him understand me, because I couldn’t talk German, and he understood very little English.
' “Q. Did you ever ask him any questions during the course of this conversation? A. No, sir; I would just agree with him, and he would talk to me and tell me things that happened, a.nd I would agree with him, and I would try to tell him who lived out where he used to live, and all things of that sort.”

The witness'saw John Priem for the last time in January 1960. Regarding this visit she testified:

“Q. What was Mr. Priem’s appearance? A. Well, he was very hard of hearing. I don’t believe to this day he ever knew who we were. He just laid there and looked at us, and he would always say, ‘Well, all I want you to do is dig me a hole; that is all I want; just dig me a hole.’
“Q. This was in January of 1960? A. Yes, sir; when we tried to explain who we were, he never even looked up and looked at us at all.”

The witness testified to the mental con-.ition of John Priem as follows:

“Q. During your observations of him did you form any opinion as to his mental condition ? A. Well, just that he couldn’t hear well and he just didn’t —I mean he really didn’t seem — -he just walked around and, well, it was all of his own — I mean he was just taking care of himself; he didn’t walk around and try to- have anything to do with anybody else.
“Q. Well, do you have an opinion as to the state of his mind during the year 1959?
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“Q. Was Mr. Priem of sound or unsound mind in 1959? A. I definitely say he was not of sound mind.
“Q. That he wasn’t of sound mind? A. No, sir, I wouldn’t think that he was. I couldn’t say that he was of sound mind.
UQ. That is your opinion? A. That was my opinion, yes, sir.”

John Priem’s grandson, Marion Priem, testified to the inability of his grandfather to recognize him in his latter years. In May 19S8 the witness testified that he asked Mr. Priem about the purchase of the 133 acre farm, but that John Priem gave his no answer. We quote from the testimony of Marion Priem:

“Q. Of course, you were conversing with him there. Did you form an opinion on that specific occasion as to whether or not he understood what you were trying to convey to him ? A. Well, I could not get the point over to him, what I wanted to do, because I can’t speak no German, and for him to understand, he has to be told some parts of it in German. I couldn’t get the parts over to him, what I was trying to do, and from then, I didn’t bother him no more about the farm, because I knew he didn’t have no business-like mind, that I couldn’t deal with him alone.”

This witness testified that the mental condition of John Priem in 1959 was that “his mind was weak, because he could not remember who you were after a little period of time elapsed.”

Reverend Wilson V. Hill, pastor of the Emanuel Lutheran Church of Pflugerville, Texas, testified for contestants that John Priem was a member of his church and that he made a pastoral call on him in 1957; also that he visited him twice in 1958 and in 1959, and a few days before his death in 1960. Reverend Hill spoke German. We quote from Reverend Hill’s testimony:

“Q. How was he or how would you describe his mental condition on those dates, ’57 and ’58? A. I didn’t find— I couldn’t find anything wrong with his mental condition, except that in the hearing ability, seemed to have been such that I couldn’t reach him that particular time.
* ⅜ * * * *
“Q. All right, sir. When you visited him in 1959 did you note any change in his condition? A. I did. I felt that I couldn’t reach him at all, communicate with him. His hearing was such that even though I put my mouth almost up to his ear, he was unable to understand me. His comprehension seemed to have been such that I felt I wasn’t reaching him at all.
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“Q. And your testimony is that in 1959 you were unable to communicate with him at all? A. Yes, sir; I had had — well, in my own opinion, he was senile, and I stayed a few minutes, and having had experience with this, and knowing that I couldn’t reach him, I cut the visit short.
* ⅝ * * * *
“Q. The answer to my question would be whether or not you have an opinion as to whether or not Mr. John Priem was a person of strong mind or weak mind as of August, 1959. A. I wouldn’t be able to testify to that, to whether it was weak or strong, because I was convinced that he was senile, and I imagine there are measures of senility — I wouldn’t know — but I know a senile person, and my own experience, that would probably increase in intensity of senility, rather than decrease, with the passing of time.”

On rebuttal, proponent offered the testimony of Mrs. Frances Atkinson who is unrelated to the parties. Mrs. Atkinson operated a small store near Round Rock. She knew John Priem. He had traded with her before and during 1959. She testified Mr, Priem was of sound mind.

Also testifying to the mental competency of John Priem, on rebuttal, were Joe D. Adams, a brother of Nils Adams, Otis Daniel, the son-in-law of Mrs. Emilie Adams, Mrs. Otis Daniel and Mrs. D. I. Parker of Round Rock. Mrs. Parker was unrelated to the parties. Mrs. Otis Daniel kept her children during the day. She became well acquainted with John Priem talking with him several times a week. This was in 1958 and 1959. We quote from her testimony :

“Q. Do you speak any other language but the English language? A. Well, I don’t, no; but he (Mr. Priem) used to have a lot of fun; he would speak to me in German and tell me about my little girl, and then he would tell me in English, because he knew I had lived around German people and understood a few words of it, but he spoke to me mostly in English, because he knew I didn’t understand enough of the German.”

The proponent Mrs. Emilie Adams was called as an adverse witness by contestants. Prior to her interrogation, she was cautioned by counsel for contestants:

“Q. Now, Mrs. Adams, you were called here as an adverse witness, and I want to make an explanation to you that I am not asking you in any way to testify about any transactions which you may have had with Mr. John Priem, the deceased; and so I want you to understand my questions clearly and know that I am not calling for any answer which would involve any transaction you had with him. A. All right.
“Q. Do you understand that? A. Yes, sir.”

The probated will of John Priem contained this language:

“I have made this gift to my daughter Emilie Adams for the reason that she has provided a home for me in my old age and she has cared for all of my needs in my old age and I have been a burden to her in my last years. I make this gift, not because I love her more than any other child that I have, but because she has provided a home for me as stated above.”

We have stated fully the substance of all the testimony bearing on the issues of mental capacity and undue influence.

We overrule the points relating to the want and sufficiency of the evidence to sustain the finding of the jury that the testator possessed testamentary capacity when he executed his will. We specifically hold that, considering all the evidence, such finding was not so against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.

It would be pure surplusage for us to restate or reiterate the volume of evidence supporting this conclusion or the dearth or inadequacy of the contrary evidence. The evidence is self demonstrative of both matters.

We also sustain the action of the Trial Court in disregarding the jury finding of undue influence, and we overrule the points complaining of it. This we do after consideration of all the evidence in a light most favorable to the jury finding.

There is no question but that John Priem was in a state of health and mind that he was a fit subject for imposition and the exercise of undue influence in worldly affairs, including the making of a will. Nor is there any doubt but that an opportunity for the exercise of undue influence by Emilie Adams upon her father was created and possessed by Emilie Adams.

We go further and say that there is no doubt but that Emilie Adams by caring for her father in his last and helpless years influenced her father in leaving his property to her, rather than to all his children. The will itself is proof positive of this.

Influence is one thing. Undue influence is, in law, an entirely different matter.

A strikingly similar situation was before this Court in Bass v. Bass, Tex.Civ.App., 207 S.W.2d 103, 107, writ ref. N.R.E. There the principal beneficiary under the will of her father was a daughter. Contestants, alleging undue influence, were the widow, five daughters and two grandchil■dren. It was shown that the preferred daughter had lived with her parents eight years prior to her father’s death, and had worked and cared for them for no compensation except her keep. As to this the Court stated:

“Appellants allege that this was all for the purpose of procuring her father’s estate. If this were appellee’s motive, and if it be assumed that such motive be evil, the lawfulness of her design must still be measured by the means employed to carry it out. There ■can be no doubt but that appellee in bestowing care, love and affection up■on her parents in their declining years •influenced her father in leaving her his ■estate. No one would say, however, that this is undue influence sufficient to -void the will.
******
“Appellee is shown to have had the •opportunity to exercise undue influence and she was preferred by the will. That she ever said or did anything to ■.unduly influence or even suggest the .making of any will is not shown. Ap-pellee should not be condemned for taking care of her aged and ill parents "by accusations based entirely upon surmise and suspicion.”

There, as here, the will was prepared by ;an attorney after consulting with and receiving instructions from the testator who was 88 years of age when the will was executed and “was then practically deaf, almost, if not, totally blind, confined to his 'bed and suffering with a cancerous condition of his sinuses or nose, which caused hemorrhages, leaving him in a weakened .and stuped condition, with severe head pains and aches.”

We there held there was no evidence of ■undue influence.

The will here was planned, drawn and ■executed under circumstances exuding with unusual precaution, care, prudence, deliberation, openness and honesty. Most unusual also is that the making of the will was disclosed to some of the contestants about two months before the death of Mr. Priem.

We have carefully searched for some evidence of undue influence exercised by or for Emilie Adams upon her father, and that he was acting under such influence when he executed the will. We have failed to find any such evidence.

Appellants have one remaining point that the Court erred in not admitting in evidence the proffered testimony of J. K. Priem the substance of which was that the children of John Priem, including Mrs. Emilie Adams, had met and agreed that the 133 acre farm, owned one-half by them and one-half by their father, should be leased and the proceeds used to compensate Mrs. Emilie Adams for caring for Mr. Priem. The amount of such compensation was to be $50.00 per month. John Priem took no part in this conference and it is not shown he knew of the agreement.

Whether or not the lease money all belonged to John Priem since the farm was, or at least had been, his homestead is a collateral question' we need not determine.

While Mr. J. K. Priem was not permitted to testify to the agreement over the objection that it violated Art. 3716, Vernon’s Ann.Civ.St., regulating admission of testimony relating to transactions with decedents, the checks, 14 of them, showing monthly payments to Mrs. Emilie Adams, of $50.00 each for “Father’s Care” were admitted in evidence. These checks were signed “John Priem by J. K. Priem” or by “J. K. Priem and Emilie Adams.”

It is our opinion that if error was committed in excluding the proffered testimony it is not reversible error under Rule 434, Texas Rules Civ. Procedure.

The substance of the excluded testimony was admitted through the medium of the checks and deposit slips. They showed that Mrs. Adams received $50.00 a month for caring for her father from funds deposited to his account. The source of this money was shown by the testimony of Green Adams to be from leasing the farm.

The immaterial nature of the error committed, if there was error, is further demonstrated by considering its bearing upon the only two controverted issues made by the pleadings, testamentary capacity and undue influence.

If such testimony had been admitted it would have added nothing of substance to the proof or disproof of either issue.

Certainly it was impotent on the issue of mental capacity.

As to undue influence, the excluded evidence, considered objectively, was admissible as tending to prove one of the elements of undue influence, towit, that the will made an unnatural disposition of the testator’s property.

However, as above shown, the substance of the transaction about which the excluded testimony was concerned, was admitted. We are also of the opinion that had this excluded testimony been admitted there still would have been absent any evidence from which the finding of undue influence could be sustained.

It is to be observed that appellants called Mrs. Emilie Adams as an adverse witness, but they did not attempt to prove by her the agreement made by the children. This they could have done without any tenable objection on behalf of the witness and without giving her the unrestricted right to testify to transactions with the decedent not relevant to the matter of the agreement. Texas Law of Evidence, McCormick and Ray, 2d Ed., Vol. 1, Sec. 332.

Finding no reversible error, the judgment of the Trial Court is affirmed.

Affirmed.

      . Except for $1.00 bequests to tbe other children.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Heinrich DANKOWSKI et ux., Appellants, v. A. C. CREMONA, Jr., Appellee.
    No. 3670.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 8, 1961.
    Rehearing Denied Jan. 5, 1962.

      Edward S. Atkinson, Houston, for appellants.
    Gerald P. Coley, Houston, for appellee.
   COLLINGS, Justice.

This suit was brought by A. C. Cremona, Jr., doing business as Ace Building Company, against Heinrich Dankowski and wife, Marty Dankowski, for breach of a building contract. Plaintiff alleged that 'the parties had entered into a contract for 'the partial construction of a house for the •agreed amount of $5,060.00; that a down payment of $2,500.00 was made by defend•ants at the beginning of the construction; that plaintiff had substantially performed .and completed more than eighty percent of the work to be performed under the contract and never received any further payments ; that although plaintiff was, at all •times, ready, willing and able to carry out all the terms of the contract, defendants refused to permit plaintiff to continue the •completion of the house; that they renounced the contract and unconditionally refused to allow him to return to the prem■ises. Plaintiff alleged that such conduct ■on the part of defendants constituted a breach of the contract and sought to recover the entire balance provided by the contract in the sum of $2,560.00. In the alternative plaintiffs sought to recover on the alleged implied promise of the defendants to pay to plaintiff the reasonable value of the work done and material furnished, and under that theory sought to recover the said sum of $2,560.00.

The case was tried before a jury and, based upon the verdict, judgment was entered for the plaintiff in the sum of $1,167.-25. Heinrich Dankowski and his wife have appealed.

No statement of facts has been filed. In lieu of' a statement of facts, the parties filed an agreed statement which is in substance as follows: (1) that plaintiff had a written contract with defendants to construct a house, and that in consideration therefor defendants agreed to pay to plaintiff $5,060.00; (2) that defendants paid the sum of $2,500.00 to plaintiff on said contract; (3) that the defendants prevented the completion of the work according to the terms of the contract and that this constituted a breach of the contract; (4) that the answers of the jury to special issues submitted were as follows: that $4,167.26 was expended or incurred by A. C. Cre-mona, Jr., in the performance of the contract; that the reasonable value of the work performed and the materials furnished to defendants under the contract was $2,739.00; that plaintiff failed to perform the work under his contract with the defendants in a good and workmanlike manner; that there existed omissions and defects in the work performed by plaintiff, A. C. Cremona, Jr., subject to being remedied ; and that the reasonable cost of remedying the defects and omissions was $500.00.

The judgment for appellee in the sum of $1,167.25 was based upon the $4,167.26 found to have been expended by appellee in performance of the contract, less $500.00 for the cost of remedying defects and omissions, and less the $2,500.00 already paid by appellants.

Appellants present one point of error in which it is urged that the court erred in using an improper measure of damages in arriving at a judgment, that is, that the court erred in measuring damages on the basis of what appellee spent or incurred in the way of expenses when the proper measure of damages should have been the reasonable value of the work done and the material furnished to the appellants. Ap-pellee contends that the court properly computed the damages sustained by him on the basis of the jury finding concerning the amount he had expended in the performance of the contract. We cannot agree with the appellee’s contention.

Appellee had performed part of the contract and was wrongfully prevented from performing the remaining part thereof. This constituted a breach by appellant and appellee was entitled to recover the damages suffered because of the breach. Appellee sought to recover both on the contract and on quantum meruit for the reasonable value of the work and materials furnished. Where there has been a partial performance by one of the parties to a contract and further performance is wrongfully prevented by the other party, and the rights of the parties in such circumstances can be determined from the contract, the injured party may recover either on the contract or in quantum meruit, at his election. Live Oak Dairy Corporation v. Kaase, Tex.Civ.App., 45 S.W.2d 657 (Writ Ref.); 13 Tex.Jur.2d 552.

The jury found that $4,167.26 was expended and incurred by appellee in the performance of the contract. The court granted appellee judgment for $1,167.26, which amount was ascertained by deducting from the $4,167.26 expended by appellee the reasonable cost of remedying defects and omissions in the work and the amount already paid by appellants. Contrary to appellee’s contention, this is not the correct measure of damages in a suit on the contract.

Generally speaking, a plaintiff seeking to recover on the contract under circumstances such as here presented is entitled to recover an amount which would place him in a position equivalent to that which he would have occupied if there had been no breach, and the contract had been fully performed. This would compensate him for the damages suffered by reason of the breach of the contract. 13 Tex.Jur.2d 129, 267, 268; Horn v. Matagorda County, Tex.Com.App., 213 S.W. 934. He is entitled to recover the contract price for the work done under and according to the contract if this can be established, and to damages sustained or profit lost by being prevented from completing the contract. 25 C.J.S. Damages § 78, pp. 578, 579. He is not entitled to recover his expenses.

Appellee particularly relies upon the case of Osage Oil & Refining Company v. Lee Farm Oil Company, Tex.Civ.App., 230 S.W. 518 (Writ Ref.), as authority in support of his contention that he is entitled to recover for the expenses incurred in the performance of the contract up to the time of the breach. That case is distinguishable from the instant case and does not support appellee’s contention. The Osage Company had agreed in the contract to furnish fuel and water necessary to drill the well and to pay $3.00 per lineal foot for the drilling. The contractor was by the terms of the contract entitled to expenses incurred for fuel and water in addition to the profits which he would have made out of the contract. There is no such provision in the instant contract case.

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


author: NORTHCUTT, Justice. DENTON, Chief Justice

text:
    Elizabeth Bush ROBERTS et al. v. Gaye Hailey BUSH.
    No. 7131.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1961.
    Rehearing Denied Jan. 3, 1962.
    Baker, Jordan, Davey & Shaw, Dallas, T. D. Wells, Paris, Harvey L. Davis, Dallas, for appellants.
    Abernathy & Orr, R. R. Hendricks, McKinney, for appellee.
   NORTHCUTT, Justice.

This is a suit brought in the District Court of Collin County by Mrs. Elizabeth Bush Roberts and Mrs. Lubelle Bush Byrd, as plaintiffs, (joined by their respective husbands) against Gaye Hailey Bush, as defendant, to set aside a will admitted to probate by the County Court of Collin County, Texas. The plaintiffs were the daughters of W. N. (Bill) Bush and Mrs. Roberta Bush. W. N. (Bill) Bush and Mrs. Roberta Bush were married in 1905 and divorced in 1949. W. N. (Bill) Bush and this defendant were married in 1951. It was the contention of the plaintiffs that the execution of the will here involved was procured by undue influence on the part of the defendant and that W. N. (Bill) Bush, the deceased, did not have testamentary capacity at the time he executed this will. The jury found that Bush did have testamentary capacity at the time of the execution of the will, and that the execution of the instrument was not procured by undue influence on the part of Gaye Hailey Bush. Judgment on the jury verdict was rendered for the defendant and the plaintiffs perfected their appeal to the Court of Civil Appeals in Dallas County, Texas and transferred to this court by order of the Supreme Court of Texas. The parties will hereinafter be referred to as plaintiff and defendant as they were in the Trial Court.

By plaintiffs’ first two points of error it is contended the court erred in applying the “Dead Man’s Statute”, Art. 3716 Vernon’s Ann.Civ. Texas Statutes to prevent the jury fro.m hearing certain evidence of the plaintiffs. The defendant testified that the plaintiffs took their mother’s side during the hearings in the divorce proceedings between their father and mother; that the daughters never visited their father since she had known him; that she knew of, and that they certainly didn’t visit their father after she and Mr. Bush were married; that they never sent him a Father’s Day card, Birthday card, or Christmas card and said; “I think they’ll tell you that I am telling the truth.” Then she testified that they did not visit him in the hospital. Defendant was asked if she had the book that was signed by the visitors at the funeral and if either of the plaintiff’s names were in the book and she stated, “No”, but, “that Lubelle had sent flowers.”

The plaintiffs attempted to show that Mrs. Lubelle Byrd did not attend her father’s funeral out of respect to him because there would have been a scene with Gaye Hailey Bush. The court sustained the objections to the testimony on the theory that it was in violation of Art. 3716. Plaintiffs attempted to show by Elizabeth Bush Roberts, daughter of W. N. (Bill) Bush, that she was not permitted to see her father while he was in the hospital and she would have gone to see him if she could have. The court sustained an objection to this testimony upon the theory that it also was in violation of Art. 3716. We think when it was shown by the defendant that the daughters did not visit their father while he was in the hospital with a cancerous condition and did not attend his funeral they should have been permitted to show why they did not. The daughters appeared on the witness stand but were not permitted to show why they did not visit him in the hospital or attend his funeral. The jury did not know why the plaintiffs did not in any manner offer any excuse for such failure. Those facts would have a great bearing upon the decision of the jury, and would be of great damage to the plaintiffs and cause the jury to wonder why the daughters did not care enough for their father to go see him or attend his funeral.

The test as to whether Art. 3716 would have prevented these plaintiffs from testifying as to why they did not visit their father in the hospital and did not attend his funeral, is; If the witnesses offered such testimony falsely, could Mr. Bush, the deceased father, if living, controvert it of his own personal knowledge. If the deceased could so controvert such facts constituting the transaction, then the introduction of such evidence would be barred by Art. 3716. We are unable to see where any of this testimony concerns a transaction with deceased or could be denied by the deceased if living. If living there would have been no funeral. No attempt was made to show Mr. Bush refused to permit either of his daughters from visiting him at the hospital, and if any one else prohibited them from visiting him in the hospital, all deceased, if living, could testify to would be hearsay. Dakoff et al. v. National Bank of Commerce, Tex.Civ.App., 254 S.W.2d 550, writ dismissed, and the cases there cited; Rothman v. Gillett et al., Tex.Civ.App., 315 S.W.2d 956, writ refused, N.R.E.

Plaintiffs’ 9th point of error is as follows :

“The Trial Court erred in instructing the Jury that a person who has testamentary capacity and who is not unduly influenced may dispose of his property at will as he so desires because it informed the Jury of the legal effect of their answers, and amounted to a comment on the weight of the evidence.”

In the court’s charges, and in this order, the court submitted the case to the jury in the following manner:

“5. You are instructed that a person who has testamentary capacity and who is not unduly influenced may dispose of his property by will as he so desires. Now, bearing in mind the foregoing instructions and definitions, you will answer the following Special Issues, to wit:
“Special Issue No. 1:
“Do you find from a preponderance of the evidence that W. N. Bush did not have testamentary capacity (as defined and explained herein) at the time of the execution of the instrument offered herein as his will?
“Answer, either, ‘He did not then have testamentary capacity’ or ‘He did then have testamentary capacity.’
“Answer: He did then have testamentary capacity.
“If you have answered the preceding issue ‘He did then have testamentary capacity’ then answer the following issue; otherwise, do not answer it.
“Special Issue No. 2:
“Do you find from a preponderance of the evidence that the making and execution of the instrument, here offered as W. N. Bush’s last will, was procured by undue influence (as defined and explained herein) on the part of Gaye Hailey Bush?
“Answer: ‘It was’ or ‘It was not’.
“Answer: It was not."

We cannot see any reason for the court telling the jury that a person who has testamentary capacity and who is not unduly influenced may dispose of his property by will as he so desires. The issues to be determined by the jury were if Mr. Bush had testamentary capacity and whether he was unduly influenced by the acts of Gaye Hailey Bush to make the will, in question. We think this instruction was a comment upon the weight of the evidence and told the jury not only the effect of their answers but instructed the jury in substance that if they answered either issue Number 1, that he did not have testamentary capacity, or issue Number 2, that the will was procured by undue influence that the jury would be finding for the plaintiffs; but on the other hand if they wanted to find for the defendant, to find Bush had testamentary capacity and also was not unduly influenced.

The duty of a trial court under Rule 277, Texas Rules of Civil Procedure, in submitting special issues is to submit such explanatory instructions and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. The Court had instructed the jury as to the terms testamentary capacity and undue influence, and those two matters were all the jury were asked about and should have been interested in. Instruction 5 above mentioned was not necessary to enable the jury to in any manner pass upon the testamentary capacity of the deceased or whether he was unduly influenced. It is almost saying to the jury that the court thought the jury should find that Mr. Bush had testamentary capacity and was not unduly influenced and had properly disposed of his property as he saw fit. Speaking of Rule 277, the Supreme Court in the case of Boaz v. White’s Auto Stores et al., 141 Tex. 366, 172 S.W.2d 481, 484, stated:

“Clearly the rule affords a greater latitude to the trial judge than did the statute, and instructions are now permissible which formerly would have been condemned. However, the rule does not authorize the giving of an instruction which is not ‘necessary to enable the jury to properly pass upon and render a verdict on such issues’; and which is calculated to prejudice one of the parties before the jury. As stated by Mr. J. D. Dooley, of the Amarillo Bar, in an article appearing in Vol. 20 of Texas Law Review on page 36, in discussing the language of the rule above quoted:
“ * * * This clause will permit explanatory instructions, even in the nature of general charges, whenever there is good need for same to properly aid the jury. In my opinion, however, this does not license an unlimited use of general charges in a special issue case.”

In the case of Dial Temp Air Conditioning Company v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82, 89, Writ refused N. R. E., and quoting the Boaz Case, stated:

“Rule 272 T.R.C.P. authorizes the trial court to instruct the jury as to the law arising on the facts, hut it forbids the court to comment on the weight of the evidence. Rule 277 does not authorize the giving of an instruction which is not necessary to enable the jury properly to pass upon the fact issue submitted, and which is calculated to prejudice one of the parties before the jury. Boaz v. White’s Auto Stores, et al., 141 Tex. 366, 172 S.W.2d 481. Further, the theory of our special issue practice, whether good or bad, is to have the jury pass on disputed fact issues without regard to the effect of their answers on the judgment to he rendered. McDonald, Texas Civil Practice, Secs. 12.02 (page 1050) and 12.04.”

From what has been said, we are of the opinion the trial court correctly sustained defendant’s exceptions to the testimony of Mrs. Roberts and Mrs. Byrd as to matters concerning which their father could have denied if he had been living, and accordingly overrule appellant’s points of error numbered three, four, five, six, seven and eight. However, we think they could testify as to why they did not visit their father during his last sickness since that transaction was not with the father but with the doctor. We also believe from this record they could testify why they did not attend the funeral of their father because defendant’s testimony was such as would certainly have been calculated to prejudice the jury against the daughters for failure to show such respect to their father.

We sustain appellant’s points of error numbers one, two and nine. The judgment of the trial court is therefore reversed and remanded for another trial.

DENTON, Chief Justice

(dissenting).

I respectfully dissent. I have no particular disagreement with the test to be applied under Article 3716 which was followed by the majority opinion, but I am convinced the test has been misapplied. In my opinion the trial court correctly ruled that the testimony offered by the two appellants was inadmissible under Art. 3716. Both were parties to this suit seeking to set aside the will of their deceased father. It was their purpose to establish that their father lacked testamentary capacity, and that his will was procured by undue influence on the part of appellee.

According to the statement of facts, Mrs. Roberts was not allowed to testify in response to three questions propounded by her attorney: (1) to tell the relationship that existed between the deceased and his granddaughter; (2) whether or not deceased was a heavy drinker; (3) whether deceased was a good father and husband. Mrs. Roberts’ sister, Lubelle Bush Byrd, also a party hereto, was not permitted to testify concerning a visit by deceased to Mrs. Byrd’s home in Port Arthur. Appel-lee’s objections to this testimony offered was sustained on the ground that it violated Art. 3716. In my opinion all of this testimony constituted transactions with the decedent within the meaning of the statute. Under the circumstances here, the trial ■court correctly excluded such testimony. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 299 (opinion adopted). The Commis•sion of Appeals in Holland v. Nimitz, supra, discussed the statute as follows:

“The object of the statute was to prohibit the interested heirs and legal representatives from testifying to any facts, or opinions, based upon observations, arising out of any transaction with the decedent which the decedent ■could, if living, contradict or explain. Death having sealed the lips of one of the parties, the law, for reasons founded upon public policy, seals the lips of the other.”

In developing their bills of exception aft■er the above proposed testimony was excluded, both witnesses proceeded to testify to other matters such as why they did not visit their father during his last illness; their failure to attend his funeral; and ■their failure to send him Christmas and Birthday cards. Although this testimony was offered only during the time the bills ■of exception were perfected, it was simply .a case of the witness justifying or explaining transactions with the deceased, and would not be subjects that could be testified to under the circumstances here. It is to be noted that the trial court instructed the jury in its charge relative to the law pertaining to interested parties testifying to any transactions or conversations with a ■deceased person. Jurors are presumed to follow the court’s instructions. This instruction properly explained the absence of ■testimony by the appellants pertaining to these matters.

Appellants further complain of the action of the trial court in sustaining certain spe•cial exceptions to their pleadings. One allegation which was stricken was one which asserted the estate of the deceased consisted .almost entirely of separate property received by him by gift or devise. Even •though the pleading was stricken, appellants did offer evidence which established the fact that the land in controversy had been in deceased’s family for many years. Appellants are not now in a position to complain of the trial court’s action in sustaining the pleadings referred to when this evidence was before the jury.

Appellants further complain of the trial court’s action in sustaining special exceptions concerning allegations of previous marriages of appellee, and the contention her marriage just prior to the one to the deceased was void. I fail to see how these matters are material to the ultimate issues to be decided in the instant case. In addition, these matters were not before the county court in the original probate proceeding. It is well settled that on an appeal from the probate court to the district court only such issues as were presented in the probate court can be determined by the district court. Magee v. Magee, (Tex.Civ.App.) 272 S.W. 252 (writ dismissed); In the Matter of the Estate of Martin, Deceased (Tex.Civ.App.) 284 S.W.2d 279 (refused n. r. e.). The contention that appel-lee’s marriage to one W. W. Spears was void is a collateral attack on that judgment. We find nothing in this record to support such an attack.

I also disagree with the majority opinion in its holding that the trial court’s instruction complained of constituted reversible error. The instruction was a correct statement of the law. Even though it may have been better practice to have eliminated the instruction, I do not think it can be said that appellants were prejudiced thereby. It does not seem that the instruction would have informed the jury of the effect of their answers. As stated by Chief Justice Hickman in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 87:

“The spirit of our practice of submitting cases on special issues would be violated if jurors were informed either by the court or by counsel of the effect of their answers, but where the effect is so obvious that any juror with ordinary intelligence would know its effect, neither the letter nor the spirit of the rule is violated by a charge which assumes such knowledge.”

No juror would have been of the opinion that a person could dispose of his property by will without having the testamentary capacity to do so, and by one who was unduly influenced. See also Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759; Lloyds Casualty Co. of New York v. Grilliett (Tex.Civ.App.) 64 S.W.2d 1005 (error refused). In my opinion the instruction given should not cause a reversal of the trial court’s judgment.

I would therefore affirm the judgment of the trial court.


author: GRISSOM, Chief Justice.

text:
    PETROLEUM CASUALTY COMPANY, Appellant, v. Sandra HARLAN et al., Appellees.
    No. 3660.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1961.
    Rehearing Denied Jan. 5, 1962.

      Hinds & Meyer, Frank L. Heard, Jr., Houston, for appellant.
    Burl E. Eastup and Gordon J. ICroll, Houston, for appellee.
   GRISSOM, Chief Justice.

This is a workmen’s compensation case. George B. Harlan was employed by Humble Pipeline Company. Petroleum Casualty Company was said employer’s insurance carrier. A jury found that Mr. Harlan sustained an injury while he was in the course of his employment by Humble. Judgment was rendered for the plaintiffs, Harlan’s widow and daughter, for death benefits under the compensation law. The insurance carrier has appealed.

Appellant contends, among other things, that there was no evidence Harlan sustained the injury while he was in the course of his employment and, in the alternative, that a finding that he did is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Appellant also says that the court erred in permitting Harlan’s widow to testify that after Harlan returned home on June 11, he told her that he got a tick on him that day. Mrs. Harlan testified that when Harlan made that statement he was not sick; he was not excited; he was not in pain. Mrs. Harlan’s testimony was simply to the effect that “shortly after” he came home Harlan casually said that he got a tick on him “today” and he wanted her to remove it. The next day, June 12th, he became violently sick, was taken to a hospital, and his ailment was diagnosed as Rocky Mountain spotted fever, which can be transmitted by a tick. He died on June 17th. The expert testimony is to the effect that, the shortest period within which such a fever can develop is three days and that the usual incubation period is five days. The record shows that Harlan had been working for Humble about six miles from his residence on a cleared spot surrounded by a fence; that he had been repairing heavy machinery; that there was no vegetation on the yard where he worked; that it was kept sprayed and was covered with crushed shell. The evidence shows that ticks abhor such conditions but thrive where there is vegetation. Mr. Harlan had as his hobby the raising, caring for and fighting of gamecocks. Mrs. Harlan testified that on Sunday, June 7, her husband carried some young roosters from his home to the home of a partner in Luling where they kept gamecocks; that usually on Saturdays and Sundays he visited the chickens that he kept at various places, worked with them, cleaned out the yards, and the like.

After careful consideration of the record and considerable research we readily agree with appellant that the finding that the tick got on Harlan while he was at work for Humble is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. However, if appellant is correct in its contention that there is no evidence that the tick got on Harlan while he was at work for Humble appellant is entitled to have the judgment rendered. Before deciding the question of no evidence, we deem it advisable to decide whether the testimony of Mrs. Harlan that “shortly after” Harlan came home on June 11th he told her that he got a tick on him “today” was admissible.

As stated, Mrs. Harlan’s testimony is that when he made the statement he was not sick; he was not in pain; he was not excited. Apparently Harlan casually told her that he got the tick on him and wanted her to remove it. She said that when she removed the tick, in the afternoon of June 11th, it was filled with blood, the spot where the tick was removed was red and irritated and the flesh was hard. The evidence shows that such conditions do not normally exist when a tick has been on a person for so short a time; that a tick may be on a person several days before such conditions exist and before irritation would attract the attention of a man to the fact that a tick was on him. The question of the admissibility of Mrs. Harlan’s said testimony cannot be readily determined from general statements of exceptions to the hearsay rule applicable to res gestae statements. Appellee cites only Texas Employers Insurance Ass’n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787 (Writ Dis.), and Texas Employers Insurance Ass’n v, Wade, Tex.Civ.App., 236 S.W.2d 836 (Reversed and judgment of the trial court affirmed 150 Tex. 557, 244 S.W.2d 197, 201) as authorities sustaining the admission of Mrs. Harlan’s testimony that her husband said, “I got a tick on me today.” In the Shifflette case testimony of the widow of an employee as to what he said and did when he arrived home was admitted under the following circumstances. He was suffering from a heart disease known as myocarditis which prevents taking violent exercise. He climbed from the first floor of his place of employment to the fourth floor in the morning. He left the mill about 1:00 p. m. in his automobile and arrived at his home about 1:15 p. m. His custom was to park in front of his residence. This day he drove into the driveway and stopped just opposite the window where his wife was sitting. She immediately went to his car and found her husband, pale, his features drawn, gasping for breath and apparently suffering great pain. She asked him what was wrong and he replied “ ‘My heart,’ and he says, T had to rush up those steps and I fell and it hurt me.’ ” The wife assisted her husband out of the car, into the house and onto a bed, where he continued to gasp for breath and apparently to suffer great pain. This fact situation is not comparable to the instant case.

The decision in point in the Wade case is clearly shown from the following quotation from the Supreme Court’s opinion:

“We are still of the opinion reached on granting the writ of error, that the reversal cannot be supported on the ground, rejected below, that the trial court erred in admitting as part of the res gestae the declarations of Mr. Wade proved by the witnesses, Muesse and Gormey. Conceding that Mr. Wade was ‘ill’ at the plant during the morning of April 12th, such would not, under the peculiar facts of this case, necessarily make his declarations of that afternoon the narration of a past event occurring in the morning. See Texas Law of Evidence, McCormick and Ray, § 433. Whatever the cause of his being unwell in the morning, if he had at a given moment in the afternoon said that he was then and there being overcome by the inhalation of gas, surely such declaration would be admissible evidence of an injury received from gas at that time, and this is substantially the evidence admitted. The situation is accordingly quite different from those involved in Pacific Mutual Life Ins. Co. [of California] v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, and City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, in both of which there was no contention that the injury was received at or about the time of the declaration. Here the petitioners’ case was not pitched on an injury received in the morning but rather on one occurring at some undetermined time during the work day, probably about the very time Mr. Wade, giving signs of illness, said ‘This gas is about to get me.’ ”

We, of course, agree with the quoted statement. But, it has no application to the facts of this case. We think the following authorities compel the conclusion that Mrs. Harlan’s testimony as to what her husband said was not admissible. In Pacific Mutual Life Insurance Company of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712, the insured’s death was caused by an infection in his nose. The Court admitted evidence that after his nose had become swollen insured stated that on the evening of the preceding day he caused the injury by pulling a hair from his nose. In holding that such statement was not admissible the court said:

“We think it is equally as clear that the declarations made by the insured to Charlie Slater and Stella Phelps regarding how he received the injury to his nose can not be classed as res gestae under class (b), supra. This is evident because such testimony does not raise any reasonable presumption that such declarations were spontaneous utterances of thoughts created by or springing out of the transaction by which insured received his injury. Spontaniety [sic] is a necessary and controlling factor. At best the injury occurred on the evening of the preceding day. The operation of pulling the hair from the nose was a simple one, and we see nothing about it or its surroundings, as detailed by this record, that would justify a presumption that insured’s statements made the next day were spontaneous utterances within the meaning of the res gestae rule. Such statements amounted to nothing more than a mere recitation or statement by the insured as to how a past event had been brought about. The record does not justify a reasonable presumption that insured labored under any spontaneous influence regarding the event detailed except his memory thereof. If this insured had not died, and we had a case wherein it became material to prove how he received the wound in his nose, the statements here involved would not be admissible as res gestae. Certainly the decision of the question as to whether or not such statements were res gestae does not depend on the after event of insured’s death. They were either res gestae or not res gestae at the time they were uttered.”

The decision in Roth v. Travelers’ Protective Ass’n of America, 102 Tex. 241, 115 S.W. 31, 34, is clearly shown by the following quotation from the opinion:

“The plaintiff took the deposition of J. W. Sullens, who met White and Roth on the streets of Henryetta as the latter were returning from the pond where they had been skating. In answer to an interrogatory the witness detailed statements made by White and Roth with reference to the latter’s fall on the ice, all of which we hold to be inadmissible, because it was hearsay, except that which states the action of Roth in placing his hand to his head, which might be admitted, with the accompanying statement, ‘It hurt my head and made it ache,’ being limited to proof of the fact that his head ached at the time he was speaking, but not to be considered as evidence to establish the fact of the fall or of striking his head on the ice.”

In International Travelers’ Ass’n v. Branum, 109 Tex. 543, 212 S.W. 630, 632, the court said:

“The assignments of error must be sustained which complain of the admission in evidence of the statements of the insured to his wife and to his trained nurse about having seen the burning man and about having fallen, two or three days previously, over the objection that such statements were hearsay and self-serving. The testimony was just as plainly an effort to prove the cause of the death by a self-serving narrative long after the event, in no sense res gestae, as was that mentioned and held inadmissible in Galveston v. Barbour, 62 Tex. 175, 50 Am.Rep. 519 * *

In Texas Interurban Railway Co. v. Hughes, (Tex.Com.App.), 53 S.W.2d 448, 451, it was held that a statement after an event which is not a continuation of it cannot be res gestae, even, though it is made near the time of the occurrence; that to be res gestae the statement must be a part of the transaction or made under circumstances raising a presumption that they are spontaneous utterances arising out of the transaction itself. In Atlantic Insurance Company v. Boyette, Tex.Civ.App., 342 S.W.2d 379 (Ref. N.R.E., it was held that the testimony of an employee’s widow that when her husband returned home from work at the usual time he told her he fell and sustained an injury, three hours or more before he returned home, was hearsay and not admissible to prove that he was injured in the course of his employment. In American General Insurance Company v. Coleman, 157 Tex. 377, 303 S.W.2d 370, judgment was rendered for the widow and child of Coleman for death benefits under the workmen’s compensation law. Our Supreme Court reversed and rendered judgment for the insurance carrier on the ground that there was no evidence to sustain a finding that Coleman was injured while in the course of his employment. The employee’s beneficiaries sought to sustain a verdict on the ground that permissible inferences from the evidence supported the findings that at the time of his injury Coleman was being transferred by his employer to another job; that the employee was on his way to his employer’s office for reassignment, etc.. The Court of Civil Appeals had held that testimony of a doctor that an hour and fifteen minutes after the accident deceased told him that at the time of his injury he was on the road to his employer’s office, driving the employer’s jeep, and that he was then being transferred by his employer to another job was not admissible for the purpose of showing that the .employee was. in the course of his employment when he was injured. However, the precise point here involved was not passed upon. But, such statement was held not admissible because it did not tend to explain the exciting event and did not relate to happenings which were causative or descriptive of the accident and it was made after the accident. See also Highway Insurance Underwriters v. Spradlin, Tex.Civ.App., 190 S.W.2d 181, 183 (Ref. W.M.) and 32 C.J.S. Evidence § 419, pp. 51-53. Harlan’s statement was not a spontaneous exclamation. It was a mere narrative of a past transaction made when the condition of the declarant was such that it could not be concluded that it was the transaction or event itself speaking. We conclude it was inadmissible.

The improperly admitted statement of Mr. Harlan that the tick got on him that day is the nearest approach to evidence that he was injured while in the course of his employment that can be found in the record. However, if such statement were admissible, it does no more, when considered along with all other evidence in the record, or by itself, than to raise a mere surmise or suspicion that Harlan was injured while in the course of his employment. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. See also Federal Underwriters Exchange v. Hightower, Tex.Civ.App., 161 S.W.2d 338, (Writ Ref.) It was less reasonable to infer that the tick got on Harlan while he was at work than at some other time. Applying the rule laid down by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 and Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793, and in Judge Calvert’s discussion of the question in 38 Texas Law Review I, we conclude that, even if said statement by Harlan to his wife were ■admissible that, nevertheless, any possible ■evidence that Harlan was in the course of his employment when the tick got on him is so weak that, at best, it does no more than create a surmise or suspicion of such fact. Such evidence constitutes no more ‘than a mere scintilla and calls for the •application of the rule stated in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. We hold there was no evidence that Harlan was in the course of his employment at the "time he was injured. The judgment is reversed and judgment is rendered for appellant.


author: BARROW, Justice.

text:
    TEXAS RESERVE LIFE INSURANCE CO., Appellant, v. SECURITY TITLE COMPANY et al., Appellees.
    No. 13833.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1961.
    Rehearing Denied Dec. 12, 1961.

      Morriss, Morriss, Boatwright & Lewis,. San Antonio, for appellant.
    W. Pat Camp, Wm. C. Church, House,. Mercer, House & Brock, San Antonio, for appellees.
   BARROW, Justice.

This is an appeal from a judgment rendered in a consolidated action. The first suit is by Texas Reserve Life Insurance-Company against Security Title Company and Norman M. Lowery, to recover $40,-000.00 damages, and the sum of $24,000.00' deposited with Security Title Company in connection with a contract growing out of a real estate exchange contract between Texas Reserve Life Insurance Company and Norman M. Lowery. The second suit is by Arthur McKenzie, d/b./a Requa Realty Company, against Texas Reserve Life Insurance Company and Security Title Company, to recover a real estate commission in the sum of $18,650.00, growing out of the real estate exchange contract above-mentioned. The consolidated causes were-tried to a jury which rendered a verdict upon special issues. Texas Reserve Life Insurance Company thereafter moved for judgment against Lowery and Security Title Company upon the jury verdict. The court granted the motion as against Lowery, but denied it as against Security Title Company, and rendered judgment non obstante veredicto in favor of the Title Company. The court rendered judgment upon the jury verdict against Texas Reserve Life Insurance Company in favor of McKenzie for his commission, together with interest, and $1,000.00 attorney’s fees. Norman M. Lowery did not appeal, and that part of the judgment is final. Texas Reserve Life Insurance Company has appealed from the judgment against it in favor of Security Title Company and Arthur McKenzie. Texas Reserve Life Insurance Company will hereinafter be referred to as appellant, Security Title Company, as Title Company, and Arthur McKenzie, as McKenzie.

The factual background of this appeal is as follows:

On and prior to May 27, 1959, appellant was the owner of the property at 115 Broadway in San Antonio, Texas (hereinafter styled Broadway property), and Norman M. Lowery was the owner of certain property located on San Pedro Avenue in San Antonio, Texas (hereinafter styled San Pedro property), and on that date appellant and Lowery entered into an exchange contract, whereby they agreed to convey to each other their respective properties at agreed values. The value of the San Pedro property was agreed at $123,000.00, and the Broadway property at $373,000.00. The difference in value was to be evidenced by a vendor’s lien note secured by the Broadway property in favor of appellant in the sum of $250,000.00. Appellant agreed to pay McKenzie a real estate commission of $18,650.00, which, under the exchange contract signed by McKenzie as agent, was to be deposited with Security Title Company, and paid by that Title Company to Mr. McKenzie when the transaction was closed.

The-exchange contract provided that both pieces of property were free and clear of indebtedness and were to be conveyed free and clear of indebtedness, except that appellant was to own the $250,000.00 vendor’s lien note on the Broadway property.

The exchange contract was delivered to Security Title Company for the purpose of examining the title to each piece of property, and to issue its title guaranty upon each piece of property in favor of the respective grantees. Security Title Company began its title search and ascertained that the Broadway property was free and clear of indebtedness. It prepared the deed to be executed by appellant in favor of Lowery, and the note and deed of trust to be signed by Lowery in favor of appellant, being the ordinary sale with reservation of vendor’s lien, but upon examination of the San Pedro property, the Title Company learned that such property was encumbered by a $40,000.00 deed of trust mortgage. Whereupon, Title Company inquired of Mr. Lowery as to the fact of such mortgage existing, and Mr. Lowery advised the Title Company that such mortgage had been paid, and that he had a release which he would bring to the Title Company. The Security Title Company, with full notice of such outstanding $40,000.00 mortgage indebtedness on the Lowery property, caused the deeds to be signed by both appellant and Lowery, and the note and deed of trust by Lowery, and then caused the two deeds and the deed of trust to be filed for record in the appropriate records of the County Clerk’s office of Bexar County, Texas. It developed, in truth and in fact, that Mr. Lowery had not paid the $40,000.00 mortgage and did not have a release, and that such $40,000.00 note became due and payable on November 6, 1959, at which time the holder of such $40,-000.00 mortgage (Mr. T. J. Goad) caused the trustee in his deed of trust to post trustee’s notices of sale to foreclose his deed of trust lien on the San Pedro property, and appellant, in order to protect its title to the San Pedro property and not to lose the property by foreclosure to Mr. Goad, paid to Mr. Goad the sum of $44,163.01, constituting principal, interest, and attorney’s fees.

On June 11, 1959, appellant paid to Security Title Company the sum of $24,980.53, which amount represented the $18,650.00 commission in favor of McKenzie, plus tax prorations and closing expenses.

About the same time appellant and Lowery entered into an agreement that appellant was to lease from Lowery the Broadway property for a rental of $2,750.00 per month, said lease to be for a term of two-years, and appellant had an option to continue the lease for an additional three years. That contract was also reduced to writing and duly executed by the parties.

After the two deeds were recorded, the deed to the San Pedro property, from Lowery to appellant, was mailed and delivered to appellant. However, the deed from appellant to Lowery, covering the Broadway property, was returned to the Title Company and was retained by it. Appellant did not know, at the time it received the deed that there was a lien against the San Pedro property, but within a few days thereafter appellant had full knowledge thereof. After appellant had such knowledge, it refused to agree to a reconveyance of the properties or cancellation of the deeds, but, on the contrary, elected to treat the recorded deeds as a complete conveyance of the respective properties, and at the same time called upon the Title Company to pay off the Goad lien on the San Pedro property. In that connection, appellant called upon the Title Company to deliver to it the Lowery $250,000.00 note, and thereafter appellant treated itself as the tenant of Lowery and credited him with each monthly payment on the note in the sum of $1,461.50, and retained the balance of rent due to Lowery. The record shows that, according to appellant’s accounting, Lowery is entitled to credit for the difference between the amount of rent due him in the sum of $2,750.00 per month, and the monthly payment on the note, making a total credit due Lowery of the sum of $19,327.00, less charges for insurance, taxes and supplies paid by appellant under the rent contract. The judgment in this cause shows that the amount due from Lowery to appellant by reason of appellant’s payment of the Goad lien, which appellant paid off in November following the exchange, was by these payments reduced to $30,225.57, and that appellant was awarded judgment against Lowery establishing and foreclosing a lien against the Broadway property on account of appellant’s payment of the Goad note.

Appellant’s main contention is that the Title Company having negligently caused the deeds to be recorded without the Goad lien having been released, became liable to appellant in damages for the amount it was required to pay in order to secure title to the San Pedro property free and clear of liens. We do not agree. As between appellant and the Title Company the facts are not in dispute. Undoubtedly, the Title Company was negligent in recording the deeds before a release of the lien was received, and was liable to appellant for such damages as appellant suffered by reason thereof, had appellant elected to pursue such remedy.

The rule of law controlling in this case is stated in 48 A.L.R. 405, as follows:

“It may be stated as a general rule, that where an instrument placed in escrow is delivered by the escrow holder in violation of, or without compliance with, the terms or conditions of the escrow agreement, no title or rights pass by virtue of the second delivery, for the reason that in legal contemplation there has been no effectual delivery.”
And on page 424, it is further stated that
“Generally, although an unauthorized second delivery of an escrow is ineffectual, an express ratification by the grantor or maker will render it a good delivery, at least from the date of ratification. Coe v. Turner (1823) 5 Conn. 86; Mays v. Shields (1903) 117 Ga. 814, 45 S.E. 68; Eichlor v. Holroyd (1885) 15 Ill.App. 657. Thus in the case last cited, wherein it appeared that the grantee by some means had obtained a deed delivered in escrow without performing the condition on which his right to receive it depended, the court said: ‘The appellee had his election either to repudiate the action of appellant and reinvest himself with the record title to the land, in which event he could have recovered the necessary expense from appellant, or to affirm the act of his agent and recover the purchase money from the grantee by action, or enforce a vendor’s lien upon the land.’ ”

The rule is also stated in 19 Am.Jur. 439, Escrow, § 21. These rules have been followed in Texas. Davis v. Lyons, Tex.Civ.App., 274 S.W. 288; Blue v. Conner, Tex.Civ.App., 219 S.W. 533; Dowdy v. Furtner, Tex.Civ.App., 198 S.W. 647; Sheldon v. Stagg, Tex.Civ.App., 169 S.W. 550; Spotts v. Whitaker, Tex.Civ.App., 157 S.W. 422. Thus, it is clear that when appellant discovered that the deed had been recorded without the release of the lien against the San Pedro property, it was put to an election either to repudiate the act of the Title Company in recording the deed, in which event it could have recovered from the Title Company the necessary expense of clearing the record of any cloud upon its title to the Broadway property, or to accept the deed and recover from Lowery, under the contract, the amount necessary to pay ofT and secure a release of the lien against the property it received from Lowery, but appellant could not pursue both remedies. The remedies are inconsistent. Mosher Mfg. Co. v. Eastland, W. F. & G. R. Co., Tex.Civ.App., 259 S.W. 253; 15-B Tex. Jur. 329, Election of Remedies, § 2. Under the undisputed facts established in this case, appellant made the election to accept its deed to the San Pedro property, thus encumbered, and proceed against Lowery to make good on his contract. By so doing it elected to ratify the act of the Title Company in recording the deeds and waived any right it had to recover damages against the Title Company. Moreover, we are of the opinion that even if appellant had elected to repudiate the act of the Title Company in recording the deeds, it would not have been liable to appellant for the amount of the Goad lien. The Title Company did not become a guarantor or insurer of the title. Its duty was only to exercise due care to carry out the terms of the escrow agreement, and its full liability was to bear the expense of restoring the status quo.

Appellant further contends that the Title Company did not plead either ratification or waiver, and that it cannot rely thereon. We overrule that contention. The evidence establishing ratification and waiver was introduced without objection or limitation. And particularly appellant made no objection thereto on the ground of lack of pleading, therefore, appellant waived such lack of pleading, and the issues were tried by consent. Rule 90, Texas Rules of Civil Procedure. The evidence establishing ratification and waiver was undisputed, therefore, no issues were required to be submitted to the jury, and the provisions of Rule 279, T.R.C.P., are inapplicable. The trial court correctly granted judgment non obstante veredicto in favor of Security Title Company.

In the suit by Arthur McKenzie against appellant, it is contended by appellant that the court erred in rendering judgment in favor of McKenzie for interest on the $18,500.00 due to McKenzie, as well as attorney’s fees. Appellant admits that McKenzie is entitled to the commission on the real estate exchange, but says that it deposited the money with the Title Company and McKenzie had no cause of action against appellant and is therefore not entitled to interest and attorney’s fees. We overrule that contention. It is undisputed that appellant, shortly after the controversy arose between the appellant and the Title Company, demanded the return of the money it had deposited, including the $18,-500.00 commission due to McKenzie, and that appellant sued the Title Company therefor. Thus appellant’s action prevented the payment of the money to McKenzie. As a consequence thereof, McKenzie was forced to file suit to recover the same. After the two suits were filed the Title Company paid the funds into the registry of the court. Undoubtedly, McKenzie is entitled to interest at the legal rate during the period payment was delayed by appellant’s demand and suit. Settegast v. Timmins, Tex.Civ.App., 6 S.W.2d 425. Appellant contends that attorney’s fees are not recoverable in this case under the statute. Article 2226, Vernon’s Tex.Civ.Stats., expressly provides:

“Any person having a valid claim against a person or corporation for personal services rendered, * * * and if, * * * he should finally obtain judgment * * *, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

It has been repeatedly held by the courts of this State that the services of a real estate broker in effecting a sale of real estate are personal services within the meaning of Article 2226, supra, and in suits by such brokers for commission on such sales, attorney’s fees are properly allowed. Bradshaw v. Marcum, Tex.Civ.App., 321 S.W.2d 352; Reinke v. West, Tex.Civ.App., 303 S.W.2d 419; Craft v. Netherton, Tex.Civ.App., 276 S.W.2d 855. There is no question about McKenzie’s making timely demands for payment prior to the filing of suit for such commission. The jury found the amount of a reasonable fee in the case. The trial court properly allowed interest from the date the commission should have been paid, and attorney’s fees as found by the jury.

The judgment of the trial court is in all things affirmed.