author: TIREY, Justice.

text:
    GLENS FALLS INSURANCE COMPANY, Appellant, v. Goldie Mae YARBROUGH et vir, Appellees.
    No. 4150.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1963.
    Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellant.
    McLaughtlin, Clark, Fisher, Gorin & McDonald, George Clark, Waco, for ap-pellees.
   TIREY, Justice.

Mrs. Yarbrough, joined by her husband, brought this action against Glens Falls Insurance Company to set aside a workmen’s compromise settlement agreement. Pertinent to this discussion plaintiffs alleged that Mrs. Yarbrough was a married woman at the time she executed such agreement without the joinder of her husband and that the instrument was, therefore, voidable as a matter of law. They further alleged that the agreement had been secured by certain misrepresentations made to Mrs. Yarbrough by a representative of the insurance carrier, which were fraudulent, and she relied upon them and executed such agreement and was injured thereby. After the verdict was received the Court overruled the carrier’s motion to disregard the jury’s answers to Issues 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 33 and 34, and to render judgment against plaintiffs for defendant, notwithstanding the verdict of the jury, on the ground that the evidence showed as a matter of law that Mrs. Yarbrough signed the agreement with her husband’s consent and authority, and that she knew and understood the nature and effect of the agreement at the time she signed it, and that her husband ratified the execution of the agreement and she cashed the $300.00 check and they spent the proceeds; that she and her husband understood the nature and effect of the agreement when the $300.00 check was cashed and the proceeds spent, and that Mrs. Yarbrough’s compensation claim did not have a value in excess of $300.00. This motion was overruled and the Court granted plaintiff’s motion for judgment on the verdict. In the judgment we find this recital:

“And it appearing to the Court from the evidence, the admissions and the findings of the jury that the compromise settlement agreement dated March 31, 1961 was executed by the plaintiff Mrs. Goldie Mae Yarbrough without the joinder of her husband Starkey Yarbrough and that no facts existed which authorized her to enter into such agreement without the join-der of her husband * *

and decreed that plaintiffs are entitled to have such compromise settlement agreement dated March 31, 1961 set aside and cancelled. The Court further found that since plaintiffs had cashed and received the $300.00 paid to Mrs. Yarbrough and had used said funds and are unable to return the same, and that they have offered to do equity, and since under the findings of the jury that plaintiffs were entitled to a sum in excess of $300.00 that they received in the compromise settlement agreement, and that plaintiffs have offered in their pleadings that the amount of $300.00 paid by defendant to Mrs. Yarbrough be credited against their right of recovery of any amount because of the injuries suffered by Mrs. Yarbrough, and decreed accordingly.

Appellant, in its motion non obstante veredicto, alleged substantially (among other things) that the evidence showed as a matter of law that Mrs. Yarbrough signed the compromise and settlement agreement with her husband’s consent and authority.

Appellant’s Point 28 is to the effect that the Court erred in concluding as a matter of law that the settlement papers were voidable because of the failure of Yar-brough to join in the execution. In appellant’s brief we find this statement: “ * * * appellant’s point of error is that the evidence shows, as a matter of law, that Mrs. Yarbrough executed the compromise and settlement agreement with the consent and authority of her husband.” In oral argument one member of the Court asked appellant’s counsel that if the record failed to show as a matter of law that the husband had constituted or authorized his wife as his agent to execute the agreement that such view would sustain the Trial Court’s judgment in setting aside and canceling the compromise settlement agreement? To which he answered: “Yes.” We agree.

In Texas, compensation benefits for injuries sustained by either husband or wife are community property. See Art. 16, Sec. IS, Texas Constitution, Vernon’s Ann. St.; Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, point 1; Texas Employers’ Ins. Ass’n v. Boudreaux, 231 S.W. 756, points (4, 5), Com.App.; Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d 951, point 1, opinion adopted; Garrett v. Reno Oil Co., 271 S.W.2d 764, Tex.Civ.App., points (3, 5), refused, n. r. e.

Going back to appellant’s motion for judgment non obstante veredicto and its Point 28, the first major question that presents itself to us is: Did the Trial Court err in concluding as a matter of law that the settlement papers were voidable because of the failure of the husband to join in the execution? It is our view that it did not. It is the settled law in Texas that the management and control of the community property is given by statute exclusively to the husband unless the husband has abandoned the wife or has become insane. This view has been held to give to the husband the exclusive right to sue for or release a cause of action for injuries to the wife, without her joinder. See Article 4619, Part 1, Vernon’s Ann.Tex.Civ.St.; Moody v. Smoot, 78 Tex. 119, 14 S.W. 285; Texas Employers’ Ins. v. Boudreaux, supra. In Krueger v. Williams, Tex., 359 S.W.2d 48, we find this statement: “ * * * in the absence of fraud upon the wife the husband has the sole right of control and disposition of the community property as he sees fit.” In this case it is without dispute that appellant knew that Mrs. Yar-brough was married, and that her husband was ill and in the hospital at Temple at the time the settlement agreement was executed, and that appellant did not at any time contact the husband in order to ascertain if his wife had his consent and authority to execute the settlement agreement, nor did the husband make any representations of any nature whatsoever to appellant or its agents concerning the execution of the settlement agreement, or otherwise. We are of the further view that the evidence wholly fails to show that Mr. Yarbrough authorized Mrs. Yarbrough, as his agent to execute the settlement agreement for him, and she did not purport to do so. But appellant contends that all the facts and circumstances surrounding the husband after the settlement agreement was executed shows, as a matter of law, that he ratified the execution of the settlement agreement. We are not in accord with this view. The check was made payable to Mrs. Yar-brough. It is true that her husband was in the car with her when she went to the office of appellant’s agent to receive the check, but her husband did not get out of the car and did not accompany her into the office, and the check was delivered by the agent to Mrs. Yarbrough; that Mrs. Yar-brough and her husband then went to the bank where Mrs. Yarbrough cashed thé check and thereafter used the proceeds for the payment of various bills, including rents, utilities and other expenses, and that-the funds were used for the benefit of the family. The Court submitted appellant’s defense of ratification in Issues 33, 34 and 35. Issue 33 is: “Do you find from a preponderance of the evidence that Mrs. Goldie Yarbrough signed the compromise and settlement papers with her husband’s consent and authority?” To which the jury answered: “No.” The foregoing issue is in the exact language of appellant’s requested Issue No. 1. Issue 34 is: “Do you find from a preponderance of the evidence that at the time the $300.00 check was cashed, Mr. and Mrs. Yarbrough knew the nature and effect of the compromise and settlement papers previously signed by Mrs. Yarbrough?” To which the jury answered “No.” The foregoing issue is in the exact language as appellant’s requested Issue No. 5. Under the Court’s instruction, if the jury answered Issue 34 “No”, they need not answer Issue 35, and it was not answered.

We have examined very carefully the testimony tendered on the issue of ratification, and we are of the view that the evidence is sufficient to sustain the jury’s answers to Issues 33 and 34, and we cannot honestly say that such answers are against the great weight and preponderance of the evidence.

Because of the views above expressed, we do not believe it would serve any useful purpose to state the evidence tendered on the issues of ratification, and that comment thereon would be of no precedential value, and would serve no useful purpose. Under our view each of appellant’s remaining points become immaterial and pass out of the case.

Accordingly, the judgment of the trial court is affirmed and all costs of appeal are taxed against appellant.


source: Caselaw Access Project

author: HIGHTOWER, Chief Justice. McNElLL, Justice.

license: Public Domain

text:
    Joseph N. ROSSER, Appellant, v. Jerry HANKS, Appellee.
    No. 6569.
    Court of Civil Appeals of Texas. Beaumont.
    May 9, 1963.
    Rehearing Denied June 26, 1963.
    Fred A. Carver, Beaumont, for appellant.
    A. A. DeLee, Port Arthur, and on motion for rehearing Stephenson, Stephenson & Thompson, Orange, for appellee.
   HIGHTOWER, Chief Justice.

This is an appeal from a judgment of the district court sustaining appellee’s petition for Bill of Review, setting aside a default judgment previously entered against him and entering judgment in appellee’s favor on his cross-action in the sum of $1,000.00 against appellant.

The default judgment was the result of a suit brought upon an oral contract for services rendered by appellant for ap-pellee. In that suit service of process was had upon appellee on April 24, 1961. The first Monday after the expiration of 20 days fell upon May 16, 1961. On May 25, 1961, no answer having been filed by appellee, a default judgment was taken by appellant in the amount of $14,400.00. On May 26, 1961, appellee belatedly filed his answer. Thereafter, on July 19, 1961, appellee filed his petition for Bill of Review to set aside the default judgment. On July 28, 1961, the court entertained a hearing on the petition for Bill of Review and on September 15th of said year said court entered its judgment setting aside the default judgment previously entered on May 25, 1961, as aforesaid. Trial on the merits was had February 20, 1962, and on March 1, 1962, the court reaffirmed its judgment of September 15th and rendered judgment in favor of appellee on its cross-action as aforesaid.

The sole question posed is whether or not “accident or mistake” prevented appellee from timely filing answer prior to the default judgment. On such question, we quote the Supreme Court in Johnson et al. v. Templeton, Adm’r., 60 Tex. 238:

“This court has on more than one occasion laid down with considerable strictness the rules which should govern the action of the district court in cases where a new trial is sought after the expiration of the term.
“Where the final judgment of a court of competent jurisdiction has been once solemnly pronounced, it ought not to be lightly disturbed. It is alike the interest of individual suitors and of the public at large that there should be at some period an end put to litigation.
“For these, and many other good reasons, though the power of courts of equity to restrain final judgments and to entertain bills for new trial in such cases is well established, it never has at any time been regarded as a favorite one with chancellors.
“Such hills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds upon which interference will be allowed are, confessedly, narrow and restricted.
“It will not be sufficient to show that injustice has been done by the judgment sought to be enjoined. It must further distinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case. High on Inj. (2d ed.), secs. 112, 113; Duncan v. Lyon, 3 Johns.Ch., 356; Brown v. Hurd, 56 Ill., 317. * * * ” (Emphasis added.)

The following pertinent principles of law applicable to proceedings of this nature are from 4 McDonald, Tex.Civ.Prac. with references to a wealth of cases there collated supporting the same:

“ ‘Mistake’, as the term is here used, means a mutual error of the parties, or a mistake of the complaint coupled with an act of the opponent which brought it about, relating to matters of fact incident to the trial of the former action. ‘Accident’ implies a similar joint responsibility or freedom from fault, by both parties through which, by mischance, the complainant failed to urge his position in the former action, [pp. 1495, 1496, note 17.] * * * An injustice in the former decree is not enough, without more: the party’s failure to present his claim or defense must not have resulted from neglect of himself, his agent, or his counsel, [p. 1498, note 28.] The standard of care is ‘such as prudent and' careful men would ordinarily use in their own cases of equal importance’, [p. 1498, note 29.]” And see 34 Tex.Jur.2d, Judgments, Sec. 188.

The facts upon which appellee relies for establishing a mistake within the meaning of these principles of law are:

He was working as a pharmacist on the day of the service of citation. On that day, immediately after having been served the citation, he telephoned Mr. Thomas, an attorney at law and business associate of his, and informed him of the fact. Mr. Thomas advised him to bring the papers to his office as' soon as possible so that he might discuss the matter with him. He did not do this. He placed these papers on his prescription counter or desk where they remained for three days, after which he never saw them again. The substance of appellee’s testimony is that he simply misplaced them and thereafter forgot them. It is very doubtful from his testimony that he even read the citation. However, although he realized that he had only a limited time in which to file answer in the matter, he stated that he was of the opinion that he had more time than it turned out that he did have. On the 24th day of May, 1961, Mr. Carver, attorney for appellant, chanced to meet Mr. Thomas in the law offices of a fellow attorney and Mr. Carver advised Mr. Thomas that he was getting ready to take a default judgment against appellee. Whereupon Mr. Thomas advised Mr. Carver that he did not represent appellee but, nevertheless, Mr. Thomas advised appellee on the evening of the same day that a default judgment was about to be taken against him and that he had better employ an attorney to file an answer in the case. Whereupon Mr. DeLee entered the picture on the 25th day of May, 1961, as attorney for appellee for such purpose. Late in the afternoon of that day he consulted with appellee and phoned the district clerk’s office and was advised that no judgment had yet been taken in the matter. Upon appellee’s return to his office the next morning to sign the answer which Mr. DeLee had prepared, again via telephone these parties were advised by the district clerk’s office that no judgment had been taken. Upon delivery and filing of this answer in the district clerk’s office the same morning appellee was again advised that no judgment had been taken in the matter.

These latter facts relating to the information received by appellee from the district clerk’s office would perhaps be sufficient to establish that appellee had not failed to use due diligence in availing himself of all adequate remedies at law to prevent the judgment from becoming final. That is to say, that in reliance upon such information, he was justified in not having timely filed motion for new trial prior to his petition for Bill of Review. Nevertheless, such facts do not excuse his personal negligence of failing to timely file answer in the first instance. There is no way this court can distort his acts of negligence into that of “mistake or accident” within the meaning of the principles of law hereinabove stated.

Appellee has much to say in his brief about the fact that upon the very day he prepared appellee’s answer in the original proceedings that he also mailed appellant’s attorney, Mr. Carver, a copy of the same. It is stipulated in the record that Mr. Carver received said copy May 26th, which was the day following the taking of the default judgment on May 25th, as aforesaid. We infer from his brief that he is of the opinion that Mr. Carver, therefore, owed some duty to have informed appellee of the default judgment in order that appellee might have thereby timely filed a motion for new trial. Such contention is without merit. Banks v. Crawford, Tex.Civ.App., 330 S.W.2d 243.

Although the record unquestionably reflects .that a grave injustice will result to appellee should the judgment of the trial court setting aside the default judgment taken against him not be sustained by this court, we are of the opinion that the principles of law, as quoted herein-above, leave us no alternative.

Therefore, we reluctantly modify the judgment of the trial court wherein it sets aside the default judgment in favor of appellant. However, that portion of the trial court’s judgment allowing ap-pellee recovery of $1,000.00 on his cross-action against appellant is affirmed. As modified, the judgment of the trial court is affirmed.

Modified and affirmed.

ON MOTION FOR REHEARING

McNElLL, Justice.

I respectfully dissent. The facts show that the default judgment was neither the result of intentional failure to answer the suit nor the result of conscious indifference on the part of appellee. Our court held in Iley v. Reynolds, Tex.Civ.App., 319 S.W.2d 194, that if neither of these situations existed a motion for new trial should be granted the defaulting party. The opinion in the present case sets forth the facts. It is seen therefrom that appellee when served with citation promptly called an attorney who advised him to bring the papers to his office; but appellee misplaced the citation served on him. He explained the reason that he did not act more promptly was because he thought he had more time than he did to answer the suit. The trial court ruled in his favor. All inferences must, therefore, be indulged in his behalf. Lyons v. Paul, Tex.Civ.App., 321 S.W.2d 944. Thus the facts show some excuse, though not necessarily a good one, for failure to file answer. Under such circumstances a motion for new trial should be granted. On this subject the Supreme Court in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, quotes approvingly from Dowell v. Winters, 20 Tex. 793, as follows (133 S.W.2d p. 125):

"But where the trial has not been delayed, and there is an affidavit of merits, we think the default should be set aside and the answer received, upon some showing by way of excuse, for the failure to plead in time. * * ”

Commenting upon this quotation, the Court in Craddock said:

“Some excuse, but not necessarily a good excuse, was the test there prescribed. When the opinion in that case is analyzed, it seems clear that the absence of an intentional failure to answer rather than a real excuse for not answering was the controlling fact.”

The cases just quoted from each involved error in the trial court’s refusal to grant a defaulting defendant’s motion for new trial. While no motion for new trial was filed in the present case, there was just reason and legal excuse for failure to do so. Appellee was diligent in ascertaining from the district clerk whether default had been taken against him. He was entitled to rely upon the information furnished him. He was not given the correct information. Because of this, he did not learn of the judgment until too late to file motion for new trial. In equity he is, therefore, entitled to the presumption that had he been correctly informed, a motion for new trial would have been promptly filed and granted. Craddock v. Sunshine Bus Lines, supra; Iley v. Reynolds, supra.

A bill of review against a default judgment should be granted if the grounds therein would have required the granting of a motion for a new trial, had it been presented at the time and in the manner provided by law. Pearl Assur. Co. v. Williams, Tex.Civ.App., 167 S.W.2d 808 (812); 17 Tex.Jur. 27.

I would grant the motion for rehearing and affirm the judgment of the trial court.


author: FRASER, Justice.

text:
    In re ESTATE of Nora A. PRICE, Deceased.
    No. 5594
    Court of Civil Appeals of Texas. El Paso.
    June 19, 1963.
    Rehearing Denied July 17, 1963.
    Guinn & Guinn, Al Truex, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, James S. Moore, El Paso, for appellee.
   FRASER, Justice.

This is an appeal from a summary judgment. Some time prior to 1958 Mrs. Nora A. Price had been adjudged an incompetent, and a guardian of her property had been appointed. Shortly before February, 1958 she had been taken by her son to a rest home near Pasadena, Texas. The record reveals that she had not seen her son for thirty or thirty-five years due to the fact that, when he was a young baby, Mrs. Price’s husband had run off with her sister, taking the little boy with them. After Mrs. Price’s return to El Paso she evidenced a desire to her lawyers to change her will on the ground that she felt her son had misled and mistreated her, claiming among other things that she thought she was going to his home, and not a rest home, and that the son, his wife and the people at the rest home in Pasadena had not been kind to her. Therefore, on her return to El Paso it appears that she got in touch with her attorneys in order to make a new will. In pursuance of this request a restoration proceeding was initiated in the County Court of El Paso County, and on February 25, 1958 an Order of Restoration was entered by the said County Court of El Paso County. Shortly after, or — as it appears — immediately thereafter, on the same day and date, Mrs. Price executed the will herein contested. The record reveals that her attorney handed her a copy of the will in the presence of the county judge and other witnesses, and read it to her, and that she said it was exactly as she wished it to be. She then immediately signed and executed the will in the presence of her attorneys and other witnesses and the county judge, who himself appears to have been a witness to the will. The new will left her property to her brother, a disabled World War II veteran, with remainder after her brother’s death to a family friend named Dan King. She left the sum of $1.00 to her son, the contestant herein. Mrs. Nora A. Price passed away approximately two years after executing this will, to-wit, January 14, 1960, at the age of 79 years.

The actual legal history of the controversy outlined above is as follows: The contestant, Herbert R. Stone, is appellant, and the proponent, The State National Bank of El Paso, Independent Executor Designate of the Estate of Nora A. Price, Deceased, is appellee. The case originated on January 18, 1960, in the County Court at Law No. Two of El Paso County, Texas on the application of proponent for the probate of the Last Will and Testament of Nora A. Price, dated February 25, 1958. A contest was filed by contestant, the decedent’s son, the contest alleging unsound mind (including insane delusions) and undue influence. The probate court admitted the will to probate on May 20, 1960 and contestant duly appealed to the 65th District Court of El Paso County, Texas, although the appeal bond is not of record. The proponent filed its motion for summary judgment and restricted the motion to the issue of the sound mind of the decedent (including the issue of insane delusions). No reply or affidavits opposing the motion were filed by contestant. On October 16, 1961, proponent’s motion for summary judgment was granted by the 65th District Court. The case was then transferred to the 120th District Court of El Paso County for a jury trial on the remaining issue of undue influence. On February 14, 1962 a judgment was entered on the jury verdict in favor of the proponent, the judgment incorporating the prior ruling on proponent’s motion for summary judgment. The contestant has restricted his appeal to the court’s action on proponent’s motion for summary judgment and he presents no points of error relative to the jury finding on undue influence.

Appellant has presented six points of error relative to this appeal, complaining that the trial court erred (1), in precluding him from offering evidence as to the testamentary capacity and soundness of mind of testatrix; (2), in precluding submission of issues as to the testamentary capacity or soundness of mind of testatrix; (3) and (4), in granting the motion for summary judgment and holding as a matter of law that testatrix possessed testamentary capacity and a sound mind and was not suffering from any insane delusion; and (5) and (6), that the court erred in precluding contestant from offering evidence or submitting issues relative to alleged insane delusions of testatrix. Because these points are inter-related we will dispose of all of them as one group, without specifically mentioning or separating them.

The record as presented to us reveals that when the proponent presented its motion for summary judgment, it attached to such motion a true copy of the judgment of restoration. This copy is certified as proven correct by the county clerk, and thereby assumes the dignity of a properly authenticated document or record. The appellant, or contestant, did not controvert the motion of proponent by affidavit or otherwise. Therefore, the district judge had before him a motion for summary judgment and a true copy of a judgment that removed the legal disability of guardianship of Mrs. Price and declared her sane and of testamentary capacity. The judgment of the County Court has never been attacked, and so the district judge had before him, in our opinion, a prima facie case or conclusion that Mrs. Price was sane and possessed of testamentary capacity when she executed her will. We believe that the matter of insane delusions is encompassed or included within the question of testamentary capacity. There was no evidence, according to the record, presented to the district judge by affidavit or otherwise indicating that the mental condition of testatrix had changed in any way from the time the judgment of restoration was entered until she executed her will. Included in the record before us is the testimony of one of the attorneys, who testified in that part of the lawsuit that was tried to a jury and dealt with the matter of undue influence. His testimony indicates that the will was executed in the same room, and with the same persons present, as when the judgment of restoration was handed down; and further, that only a matter of moments elapsed from the time of the rendition of the judgment or order of restoration and the execution of the will, in the presence of the same county judge who had rendered the judgment of restoration. This testimony, of course, apparently occurred after the rendition of the summary judgment, and it must be noted that a different judge rendered that decision from the one who heard the matter of undue influence. We include these matters, therefore, only to point up the situation and facts that were existent at the time the will was executed. We believe that the motion of the proponent, with its accompanying true copy of the judgment of restoration, presented a prima facie case of testamentary capacity at the time the will was executed, and that while possibly the contestant could have joined issue and created a fact situation, he did not do so, because the record shows no pleadings, affidavits or documents presented to the district judge in opposition to the motion for summary judgment. The judge, therefore, had before him what we believe was an uncontested and uncontroverted prima facie case of testamentary capacity. No substantial fact issue, therefore, was left to be determined. We repeat, no direct attack on the judgment of restoration has ever been made. For these reasons we believe, and hold, that the trial court was correct in granting proponent’s motion for summary judgment, as no fact dispute or issue material to the lawsuit had been created or presented to the trial judge.

It has been stated in McDonald Texas Civil Practice, Volume 4, section 17.26, page 1388 et seq., that where a motion is supported by affidavits, depositions, admissions or other extrinsic evidence, sufficient upon its face to establish facts which if proven at the trial, would entitle the movant to an instructed verdict, the opponent must specify opposing evidence which will raise an issue as to some material fact or justify his failure to do so-Further, this text says that the sound rule is that a genuine issue of material fact is not raised by allegations in the pleading when they are controverted by affidavits or other evidence (here, we have a certified copy of a judgment) in the absence of counter affidavits or evidence to sustain them. This text also points out that the court may decide that there is a material fact dispute and, of course, conversely he could decide that there was an absence of such. We have no evidence in the record here that contestant was prevented from filing any controverting affidavits, extrinsic evidence or documentary evidence.

Both parties to this controversy brief and discuss what they claim to be the only real issue in this appeal. The matters we have set forth above are, in our opinion, the real and decisive issues in the case. We will discuss, however, appellee’s argument, which he sets out as follows: “The sole issue in this appeal is whether or not a person who executes a Last Will and Testament on the same day her guardianship is removed and she is restored by court order to sound mind, is on that day, and no other, conclusively presumed to be of sound mind for purposes of making a will.” We do not believe this is, or ought to be, the law in Texas. Appellee cites two cases, to-wit, Tipton v. Tipton, 140 S.W.2d 865 (Tex.Civ.App.1940, writ dismissed, judgment correct), and Starnes v. Campbell, 119 S.W.2d 116 (Tex.Civ.App.1938, writ dismissed). These cases, of course, were decided before the procedure of Summary Judgment had become a part of Texas law. There was no such remedy at the time either of these cases was decided. Also, it will be noted from reading the cases that, in each case, the matter was submitted to a jury to determine the sanity or legal capacity of the individual involved. Therefore, we do not think they really support appellee’s position.

Further, it is clear that if the argument advanced by appellee is or should become the law of Texas, we would then be faced with a situation where a person who had his sanity restored, or a guardianship removed, could execute legal instruments during the remainder of the day that such judgment was rendered, without the possibility of attack on the mental or testamentary capacity of the maker of the instrument. We see no reason why this should be the law. It may not be likely, but it certainly is possible, that a person who had won a verdict of restoration at ten o’clock in the morning could conceivably, due to some strain or excitement or any cause whatever, again become incapacitated before the day was finished. The judgment of restoration does not, in our opinion, guarantee sanity or testamentary capacity. It merely removes a prior adjudication to the contrary. Sanity or insanity are rebuttable presumptions. Certainly if a person had once'been adjudged to be incompetent the possibility that the illness might recur ought not to be overlooked, as contrasted with a person who had never been adjudicated incompetent. Further, if this position of appellee be sustained, it could result in an unusual situation — to-wit, assuming that two people both executed wills at three o’clock on the afternoon of the same day, the will of the person whose sanity or testamentary capacity had never been questioned could be, without question, attacked on the ground of lack of testamentary capacity due to insanity or other mental derangement. But the will of a person who had been found to be incompetent and so adjudged, but who had been successful in obtaining an order of restoration earlier in the day — which order removed the judicial stigma of incompetency —could not, according to appellee’s arguments, be attacked or assailed on the ground of mental incompetency or lack of testamentary capacity. We cannot see why such condition should exist, or why the ■ possibility of such a strange or bizarre condition should be legally created or admitted to be the law. We therefore believe that the order of restoration is just what it says it is — the restoration of a person to mental normalcy, with no guarantee that that condition will exist for any period of time, including minutes or hours of the same day. We do not believe that such order of restoration gives the recipient thereof an unassailable and exalted legal immunity fof; the rest of that particular day. We think, that such order is merely a'matter of evidence, attesting to the sanity of the individual as of the time it was rendered, and does not preclude any attack on any legal instrument or activity executed by the individual later in the same day. We think this matter is well enunciated in the case of Johnson v. Pilot Life Insurance Company, decided by the Supreme Court of North Carolina in 1940, and cited as 217 N.C. 139, 7 S.E.2d 475, 128 A.L.R. 1375.

Therefore, we feel that we are constrained to reject appellee’s above described position as set forth in this opinion and in his brief. But because we do not feel that contestant created, by affidavit or otherwise, a fact situation, we hold that the trial judge was correct and within his authority in granting proponent’s motion for summary judgment.

Appellant’s points are therefore overruled, and the judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    James M. WARNER, Appellant, v. The FIRST NATIONAL BANK OF WACO, Texas, Appellee.
    No. 14132.
    Court of Civil Appeals of Texas. San Antonio.
    June 19, 1963.
    Rehearing Denied July 17, 1963.
    Richey, Sheehy, Teeling & Cureton, Waco, for appellant.
    Sleeper, Boynton, Burleson, Williams & Johnston, Waco, for appellee.
   POPE, Justice.

First National Bank of Waco recovered a $204,000 judgment against James M. Warner on two written guaranties, one of which Warner executed .in March, 1956,. and the other on December 19, 1960. Warner contends that the last guaranty was not cumulative but was a substitute for and in revocation of the earlier guaranty. The case was tried without a jury. We affirm the judgmént.

The Bank, at the time of judgment, was the holder of $204,000 worth of notes against Top O’ the World, a limited partnership engaged in agriculture. In March, 1956, Warner signed the first of four written guaranties to enable the partnership to obtain credit needed in its operations. That guaranty provided: “this guarantee is a continuing guarantee for the said sum, including accrued interest and attorney’s fees, and shall remain in force until duly revoked by us by notice in writing to said Bank or its assigns, and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument or extensions of time of payment thereof, and shall not be affected by any surrender or release by said Bank or its assigns of any other security held by it for any claims or demands hereby guaranteed.” The guaranty was limited in amount to $200,000, but was unlimited as to time or the number of transactions it covered.

During May of 1956, unsolicited by the bank, Warner delivered another guaranty to the Bank. This second guaranty was signed by Warner and many other persons, but his liability was limited to $46,875. It also was limited as to time, since it guaranteed the payment of funds which the bank might advance the partnership up to April 30, 1957. The total of the guaranties by those signing the second guaranty was $300,000. The second provided that each of the multiple guarantors was liable for the “maximum amount set opposite their individual name and signature, and no more.” It is this clause which Warner claims was a revocation of his first guaranty. A third guaranty was executed February 18, 1958, with multiple guarantors. It was expressly in renewal of the second and extended to loans made the partnership up to December 31, 1959. Warner’s liability on this third guaranty was limited to $47,224.08. It contained the same clause, quoted above from the second guaranty. A fourth guaranty was executed December 19, 1960, with multiple guarantors. It. was expressly in renewal of the third guaranty. Warner’s liability was limited to $47,224.08, and it too contained the same clause as that quoted from the second guaranty.

The Bank brought suit upon the first continuing guaranty, and also on the fourth one, which was in renewal of the second and third guaranties. The Bank is entitled to recover under the first continuing guaranty as well as the fourth guaranty, unless the wording of any of the last three guaranties constituted notice in writing to the Bank of the revocation of Warner’s first guaranty of any future loans.

The clause in the second, third and fourth guaranties, which stated that the guarantors were liable for the maximum amount set opposite the individual name and signature and no more, was not intended nor accepted as a revocation of the first guaranty. When we lay the first and second guaranties side by side, we see that they were intended to accomplish different purposes. The first was to secure the Bank in its loans to the partnership, up to $200,000, through Warner’s continuing guaranty without limit as to purpose of the expenditures. It was operative from March, 1956. The second was to secure the Bank up to $300,000, but only for the crop years 1956 and 1957, and then only for loans for designated purposes. Those stated purposes were for operating funds, investments in farm machinery, pumps and fixtures. The second guaranty was not to secure any loans for land investments by the partnership. The first and second guaranties were for different purposes and different limits, both as to time and amount. The trial court apparently considered the first guaranty as general and continuing in nature, while the second, which was renewed by the third and fourth guaranties, was for a special and somewhat more limited purpose with a limitation of time. It appears that the second and subsequent guaranties were intended and accepted as additional ones. 24 Am.Jur., Guaranty, § 79.

“For a guarantor to be released from liability by a subsequent guaranty, it must appear that the later guaranty was intended and accepted as a substitute for the former; otherwise the creditor may resort to both guaranties.” 38 C.J.S. Guaranty § 80. The fact alone that additional guaranties are provided does not prove that the original continuing guaranty was destroyed. Bryan v. Food Machinery and Chemical Corporation, Niagara Chemical Div., (La.) 130 So.2d 132; First National Bank of Waterloo v. Story, 200 N.Y. 346, 93 N.E. 940, 34 L.R.A.,N.S., 154; Sciaballa v. Illinois Surety Co., 166 App.Div. 677, 152 N.Y.S. 760; Barnes v. Cushing, 168 N.Y. 542, 61 N.E. 902; 81 A.L.R. 793.

Since the first guaranty was not revoked in writing, as required by its terms, the judgment upon both the first and fourth guaranties is affirmed.


author: WILSON, Justice.

text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. Edward L. JARRETT, Sr., Appellee.
    No. 4142.
    Court of Civil Appeals of Texas. Waco.
    July 11, 1963.
    Louis Muldrow, Waco, for appellant.
    Minor L. Helm, Jr., Waco, for appellee.
   WILSON, Justice.

Cause of loss is the chief issue in this suit on a Texas Standard Homeowner’s insurance policy. The insurer says there is no evidence to support the jury findings to the effect that plaintiff’s electric refrigerator was damaged as a result of lightning having cut off its electrical supply.

The policy insured against “loss by lightning.” It excluded, as material here, “loss caused by inherent vice, wear and tear, deterioration; rust, rot, mould or other fungi”, and contamination. We test appellant’s no evidence points, as we are required to do, by considering the record under the rule summarized in Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126.

Insured’s residence was equipped with 10 separate electrical circuits, each of which was controlled by a separate magnetic circuit breaker. An excessive surge of current in any of the circuits would automatically actuate a corresponding switch in a breaker panel so as to open the circuit, as would a fuse. If the source of such surge of current was from without the house, all 10 switches would be thrown, and the circuit would remain incomplete until the switches were manually returned to an “on” position so as to close the circuit and restore the flow of current. Insured left his home unoccupied for 12 days, all electrical appliances but the refrigerator being disconnected. When he returned he found the freezing mechanism of the refrigerator was stopped; that all 10 circuit breaker switches were thrown to the “off” or neutral position, and a large quantity of food in the refrigerator had putrefied, damaging the refrigerator.

Plaintiff, an electrical engineer, testified that an interior “short” in any circuit would result in disengaging only the circuit breaker for that single circuit; that there had never been an interruption of electric power in the residence before or since this occassion; that a sudden surge of excess electricity from an exterior source would be required to throw 10 switches and break all circuits; that lightning was the only thing he could think of that would have this effect; that lightning striking a power line would create tremendous heat, increasing voltage and amperage, activating the service line transformer circuit breaker so as to disrupt the service and shunt the current into the path of least resistance; that other suggested causes “probably wouldn’t come to the house.”

A power company employee’s testimony was that there were one or more severe electrical storms in the area during insured’s absence; that the breaker on the company’s transformer from its transmission line to the feeder line serving insured’s section of the city was tripped and closed one time during the electrical storm; that there was a transformer lightning arrester failure which appeared to be from lightning damage. The company’s power interruption report showed 3 line failures during the storm, including a conductor which “burned in two” due to lightning. The court restricted insured's evidence concerning other electrical damage from lightning to that in the area of his residence. The interruption report does not show whether fuses or circuit breakers of consumers were affected by the line damage, but the employee testified the only cause of interruption shown was lightning. Although his testimony was equivocal, he attributed the power interruption to such cause.

Another witness, insured’s son who lived in the vicinity of plaintiff's residence, testified that concurrently with a severe lightning bolt during the storm, fuses in his home were blown out and his central heating system and air conditioning units were damaged.

Against this record we overrule appellant’s points that there was no evidence to support the factual findings concerning lightning as constituting the cause of loss.

Insurer also contends the evidence and a jury finding that the damage to the refrigerator resulted from “contamination, deterioration, rust, rot, mould or other fungi,” establish as a matter of law that the loss was not caused by a peril insured against, since the policy excluded loss caused by these; and the loss resulted from “deterioration” of food. It contends the lightning was a remote, and not a proximate cause. The policy did not exclude all loss by deterioration; it excluded only that by “inherent” deterioration of the property insured. The damage did not result from a fixed attribute of the refrigerator. The policy may be said to exclude damage to the food from deterioration, contamination, rot, mould, etc., but food is not the insured property for which recovery was had.

The court overruled insured s motion to disregard the jury finding last quoted, but obviously ignored it as immaterial. It was undisputed that if the refrigerator had been empty no loss would have occurred, and that liquids and other content of the spoiled and decomposing food was the damaging factor. It also appears that lightning did not actually strike any part of the house or refrigerator. Where insurance against property damage is only against “direct” loss by lightning it has been said the quoted term means “immediate” or “proximate,” as distinguished from remote or incidental causes. But a provision insuring against “loss or damage caused by lightning” renders the insurer liable for all known effects of lightning, “and includes all loss or damage which results as a direct and natural consequence of the lightning, notwithstanding other incidental agencies may be instrumental in adding to the loss or damage.” 11 Couch, Insurance 2d, Secs. 42.355, 42.357; 15 A.L.R.2d Sec. 3, p. 1024.

Even if we apply insurer’s criterion, however, we determine there was evidence of probative force that lightning was the dominant, efficient and moving cause which set incidental, resulting, and consequential agencies in operation (though the latter may be nearer in point of time and space to the ultimate result) in a natural and continuous sequence. Foreseeability is not an element. Federal Life Ins. Co. v. Raley, 130 Tex. 408, 109 S.W.2d 972, 974. The resulting condition of the food is not an intervening cause; it is merely an intermediate link in the chain of causation. The lightning was not merely a remote cause; and we are unable to say the policy did not insure the loss.

We overrule appellee’s cross point.

The judgment is affirmed.


text:
    W. J. RICKEL et al., Appellants, v. J. D. MANNING, Appellee.
    No. 4148.
    Court of Civil Appeals of Texas. Waco.
    June 20, 1963.
    Rehearing Denied July 18, 1963.

      Andrew Campbell, John F. O’Neal, Hamilton, for appellants.
    H. A. Leaverton, Hamilton, for appellee.
   WILSON, Justice.

Adverse possession is the principal issue in this trespass to try title case, in which judgment non obstante veredicto was rendered for defendant-appellee.

Plaintiffs contend that the court- erred in sustaining defendant’s motion to disregard the jury finding that plaintiffs and their predecessors in title held continuous adverse possession of the land in controversy for ten years or longer from 1909 to May 7, 1962. In determining the question we follow the test summarized in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199.

Defendant holds the record title to the Beatty Survey 20-acre tract in controversy, which was conveyed to him with two larger surveys, adjacent to the east, known as the Bowman land. Plaintiffs have no deed or other memorandum of title to the 20-acre tract.

This 20 acres juts westward into lands surrounding it on three sides owned by plaintiffs, who also own a tract of similar shape and size constituting the western residue of the elongated Beatty Survey. A mountain bisects the Beatty Sitrvey, its brow separating the eastern 20 acres in question conveyed to defendant from the western residue owned by plaintiffs. The perimeter of plaintiffs’ lands north, south and west of the 20-acre disputed tract has been fenced for over 50 years, but this 20 acres has never been fenced (viewing the evidence as plaintiffs say favors them) except on its east end. This diagonal fence on the east end of the disputed tract is a part of the western boundary fence of defendant’s Bowman land, separating the latter from plaintiffs’ lands which lie north and south of the 20-acre tract in controversy. It was erected over 40 years ago by defendant’s predecessor in title. Over 50 years ago claimants’ ancestor erected a fence from the mountain eastward, “tying on” to the Bowman fence, but this fence was located south of the Beatty Survey line, and was for the purpose of enclosing the larger Chew Survey south of the Beatty. The north and west fences of plaintiffs’ lands were built by unknown persons before memory of witnesses. The record makes it undisputed that none of the fences on plaintiffs’ lands were designedly erected to enclose the 20 acres in controversy, although it is within the fenced perimeter of over 750 acres owned by them.

The 20 acres in controversy constitutes the eastern slope of the mountain. It is rough, mountainous terrain covered with thick brush, shinnery, timber and rocks. It contains no water supply and is not tillable. Such use as it was adapted to appears to have been goat grazing and timber supply.

Plaintiffs’ evidence to show a limitation title matured by adverse possession, when considered most favorably in support of the verdict, comes squarely within rules relating to fencing and grazing stated in Orsborn v. Deep Rock Oil Co., 153 Tex. 281, 267 S.W.2d 781 which would preclude recovery. We do not predicate decision entirely on that case, however.

We have made a chronological analysis of the evidence which can be mar-tialed to support plaintiffs’ claim. There is clearly no evidence of continuous, exclusive and adverse possession or use by plaintiffs’ predecessor in title from 1909 to 1937. During that period plaintiffs’ lands in the Chew Survey south of the Beatty were fenced off from the disputed tract. His wife’s mother, Mrs. Brooking, then owned and operated the lands north and west of the 20 acres as a separate unit, known as the Brooking land. There is evidence that livestock was intermittently pastured on her land for short periods until she died in 1937, and that some of these animals may have entered the disputed tract, but an analysis shows no continuity of use for periods of more than three years, and these broken by longer intervals. From 1936 to 1938 Mrs. Brooking’s tenant tended sheep, two horses and a cow and ran this livestock “over the entire Brooking land enclosed in a fence, down to the Rickel property.” An occupant of the Bowman property from 1936 to 1941 saw cows on the Brooking property, but not “every year from 1936.” He recalled some stock on the Brooking property “about 1939”. In 1944 or 1945 a Rickel tenant “ran livestock over that entire pasture; in the Brooking- pasture, on both sides of the mountain.”

The only other evidence on the issue, as to use after 1937, was that of plaintiff: “Q. Now I’ll ask you to state whether or not you know of your own knowledge that you, for the period of time you have been using it, have run livestock freely across that, or let them graze there, if you wanted to ? A. Yes sir, ever since we heired it before my wife died”; and “Q. I’ll ask you to state to the jury whether or not you, yourself, know of your own knowledge that you personally had livestock over all of the Brooking place, using it generally for raising livestock, including this tract of land in dispute? A. Yes sir. Q. From around 1937 until the present date? A. That’s right.” No witness testified to ever seeing domestic animals on the tract in question, although there was no fence to prevent their entry from the Brooking land, and any claim of continuous adverse use must rest on the evidence last quoted.

The evidence is undisputed that from 1926 to 1943 defendant’s antecedents in title entered various portions of the tract in controversy, cut a wood road for hauling timber, and cut and removed wood two to three times each year without protest by appellants. In 1948, and again in 1952, previous owners of defendant’s lands cut timber and brush for survey lines and had the disputed tract surveyed with the knowledge or assistance of plaintiff, Rickel, and without protest or objection from him. In 1953 defendant’s predecessor bulldozed the eastern portion of the 20-acre tract and knocked brush off of it, preparatory to seeding it with grass and erecting a fence. Because of lack of labor this fence was not constructed. Plaintiffs’ petition was filed May 7, 1962, after defendant began preparation for fencing.

Plaintiff Rickel had attempted to purchase the disputed tract from previous owners, or to trade his land for it. He testified that after May 12, 1952, another former owner of defendant’s land began clearing a fence right-of-way and notified him he was “going to fence” the disputed tract. “I knew that was just going to ruin me if I couldn’t get back there, and I asked him in case he did, if I could have some gates through there. Q. You asked him not to cut you off, is that correct? A. That’s it.” Rickel was told he would be permitted to construct gates in the proposed fence if he would agree to keep them up. This former owner testified that he then declined Rickel’s offer to trade him one acre of pasture land for each five acres of the 20-acre tract, and that previously Rickel had told him he did not claim any interest in the disputed tract. Rickel denied making the latter statement. The jury found, in answer to Issue IV, that Rickel told this former owner he “did not claim any interest in the land in suit”; but also found in answer to Issue V that the former owner did not believe and rely on such statement. The finding in answer to Issue IV was not set aside, and is not here under attack. Although there is evidence they acted under a claim of right, we find no evidence that appellants ever actually or directly communicated such claim to the record owners.

The evidence, viewed by the appropriate rules, negatives existence of the requisite element of exclusiveness in appellants’ possession for any continuous statutory period. Rick v. Grubbs, 147 Tex. 267, 215 S.W.2d 925, 927; Evans v. Houston Oil Co., Tex.Com.App., 231 S.W. 731, 733; Word v. Drouthett, 44 Tex. 365, 369; South Texas Development Co. v. Manning, Tex. Civ.App., 177 S.W. 998, 999-1000, writ refused; 2 Tex.Jur.2d p. 142; and see Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912, 913; Houston Oil Co. of Texas v. Moss, 155 Tex. 157, 284 S.W.2d 131, 133; Black v. Goolsbee, Tex.Civ.App., 226 S.W. 463, writ dis.

The appeal involves an alternative claim to an easement by prescription across the disputed tract. There is adequate evidence to show a roadway existed for the required period adjacent to the Bowman land west fence, and that appellants used it during such time. The jury found plaintiffs used the passageway for more than 10 years and that their use was adverse to defendant and his predecessors. The evidence establishes without dispute, however, that it was jointly used permissibly by them, other members of the public, and by the record owners during the same periods. There is no evidence to show a right, or claim of right, to use of the way to the exclusion of the right of appellee or his predecessors in title. The court disregarded the findings, rendering judgment for defendant. In the case of private easements, the use is permissive and not adverse, as a matter of law, if the way is also used by the owner contemporaneously with such use by the adverse claimant. O’Connor v. Gregg, 161 Tex. 273, 339 S.W.2d 878; Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622; and see note, Rust v. Engledow, Tex.Civ.App., Waco, 368 S.W.2d 635.

In our opinion the trial court correctly rendered judgment for appellee, notwithstanding the jury findings. Affirmed.


author: COLLINGS, Justice.

text:
    The STATE of Texas, Appellant, v. YOUNG’S MARKET COMPANY et al., Appellees.
    No. 3826.
    Court of Civil Appeals of Texas. Eastland.
    July 12, 1963.
    Rehearing Denied Aug. 2, 1963.
    Frank Ginzel, County Atty., Colorado City, Norman V. Suarez, Asst. Atty. Gen., Austin, for appellant.
    Nunn & Griggs, Sweetwater, Michael McCloud, Jr., Dallas, for appellees.
   COLLINGS, Justice.

This is a forfeiture suit brought by the State of Texas against a 1960 International truck tractor and 950 cases of whiskey under the provisions of the Texas Liquor Control Act, Article 666-1 et seq., Vernon’s Texas Penal Code. Young’s Market Company, alleging that it was owner of the whiskey, and South West Shippers, Inc., alleging that it was owner of the vehicles seized, intervened seeking the return of such vehicles and merchandise. International Harvester Company and International Harvester Credit Corporation also intervened claiming a valid lien on the truck tractor involved. Trial was before the court without a jury and judgment was rendered for the intervenors and against the State of Texas. The State has appealed.

The facts as alleged in appellant’s brief are undisputed and additional undisputed facts are shown in the record. Such facts are in substance as follows: On May 1, 1962, a patrolman of the license and weight section of the Texas Department of Public Safety stopped the vehicle involved on U. S. Highway 80 in Mitchell County for a routine investigation. The patrolman, as a result of his investigation, took the driver in custody and filed a complaint against him for violating a provision of the Texas statutes not material hereto and the driver entered a plea of guilty and paid a fine. When the patrolman first stopped the truck the driver told him that the cargo was “red wood furniture”. After the driver had paid his fine and the truck was returned to him the patrolman asked the driver for a bill of lading, or manifest, showing the origin and destination of the cargo. The driver failed to produce a bill of lading or any writing giving the required information. Thereupon the patrolman, having acquired permission to inspect the cargo, proceeded to break the seal on the door of the trailer and make an inspection. It was found that the cargo was the 950 cases of whiskey here involved. The patrolman then called the Texas Liquor Control Board and retained in custody the driver, truck and cargo until the Board supervisor for that area arrived. The supervisor also requested the driver to produce a manifest showing the consignor, consignee, and the origin and destination of the whiskey but the driver did not then or at any other time produce a manifest or bill of lading. The supervisor ordered the truck and its cargo seized and impounded. The drivers of the truck were arrested for violating the Texas Liquor Control Act and eventually entered pleas of guilty, served a jail sentence and paid fines for violation of Article 666-27, Vernon’s Texas Penal Code.

The court found, as shown by the evidence, that when the truck was stopped the driver or person accompanying and in charge of the shipment failed to exhibit a written statement furnished and signed by the shipper showing the name and address of the consignor and the consignee, the origin and destination of the shipment, after proper demand for exhibition of same was made by a peace officer acting in the course of his duty.

It is urged in points presented by appellant that the court erred in granting judgment against the State and ordering the return of the confiscated whiskey to the intervenors, erred in failing to find that the 950 cases of whiskey confiscated was illicit beverage as defined by the Texas Liquor Control Act, erred in ordering the return of the confiscated whiskey because the evidence shows and the court found that the person accompanying the shipment failed to exhibit a written statement furnished by the shipper showing the name and address of the consignor and consignee, and the origin and destination of the shipment, as required by Article 666-27, V.T.P.C., and erred in concluding that failure of the drivers of South West Shippers, Inc., to produce and display the written statement required by Article 666-27(a), constituted a mere technical violation, and that such failure to produce and display the written statement was not such a violation of the Texas Liquor Control Act as to constitute the cargo “illicit beverage” and that nothing in the nature of the cargo itself or its use violated any provision of the laws of this state.

Article 666-27, V.T.P.C., provides:

“(a) It shall be unlawful for any person to transport into this State or upon any public highway, street, or alley, in this State any liquor unless the person accompanying or in charge of such shipment shall have present and available for exhibition and inspection, a written statement furnished and signed by the shipper, showing the name and address of the consignor and the consignee, the origin and destination of such shipment, and such other information as may be required by rule and regulation of the Board. It shall be the duty of the person in charge of such shipment while the same is being transported, to exhibit such written statement to the Board or any of its authorized representatives or to any peace ■officer making demand therefor, and it shall be unlawful for any person to fail or refuse to exhibit the same upon such demand. Such written statement shall be accepted by such representative or officer as prima facie evidence of the lawful right to transport such liquor.
«(b) * * * Any alcoholic beverage so unlawfully transported or imported into this State is hereby declared to be an illicit beverage.”

Article 666-3a(4), V.T.P.C. provides:

■“ ‘Illicit Beverage’ shall mean and refer to any alcoholic beverage manufactured, distributed * * * or transported in violation of this Act *

Article 666-4, V.T.P.C., further provides:

“ * * * It is further expressly provided that any rights or privileges granted by the provisions of this Section, as exceptions to the prohibited acts and other sections shall be enjoyed and exercised only in the manner as provided. Any act done by any person which is not granted in this Act is hereby declared to be unlawful.”

Article 666-4(a), V.T.P.C., provides.

“It shall be unlawful for any person to * * * transport * * * any liquor in any wet area without first having procured a permit of the class required for such privilege.”

Article 666-4(b), V.T.P.C.:

“It shall be unlawful for any person in any dry area to * * * transport * * *• whiskey * * *.”

Article 666-42, V.T.P.C., provides:

“(a) All illicit beverages as defined by this Act together with the containers and any device in which the beverage is packaged, and any wagon, buggy, automobile, water or aircraft, or any other vehicle, used for the transportation of any illicit beverage * * * may be seized with or without a warrant by an agent or employee of the Texas Liquor Control Board, or by any peace officer, and any person found in possession or in charge thereof may be arrested without a warrant. * *
“(b) It shall be the duty of the Attorney General, the District Attorney, and the County Attorney, or any of them, when notified by the officer making the seizure, or by the Texas Liquor Control Board, that such seizure has been made, to institute a suit for forfeiture of such alcoholic beverage and property * * *.”

It is the State’s contention that the whiskey is “illicit beverage” and as such is subject to forfeiture under the above provisions of the Texas Liquor Control Act; that the whiskey was transported contrary to the provisions of Article 666-27, in that, the driver accompanying the cargo failed to exhibit on demand a written statement furnished by the shipper showing the name and address of the consignor and the consignee, and the origin and destination of the shipment; that the whiskey therefore was and is by the terms of the statute “illicit beverage” and that such liquor and the motor vehicle and trailer used in the transportation thereof are under Article 666-42 subject to forfeiture.

Article 666-42 does provide for the forfeiture of “all illicit beverages” and any vehicle used for transportation thereof. Appellees contend, however, that the construction of statutes so as to impose forfeiture is not favored and that forfeiture provisions in statutes will be interpreted so as to prevent rather than to cause forfeiture; that the confiscation of their property under the facts and circumstances shown would deprive them of their property without due course and process of law in violation of the constitutions of the State of Texas and of the United States. Appellee Young’s Market Company urges that even if there has been a violation of the Texas Liquor Control Act it is of a technical nature and forfeiture of $44,991.00 worth of legitimate personal property belonging to an innocent stranger to the violation can have no beneficial effect in carrying out the purpose of and promoting the enforcement of the laws of this State. In this connection it is stated in 37 C.J.S. Forfeitures § 4 at page 8, as follows:

“Forfeitures are not favored; they are considered harsh exactions, odious, and to be avoided when possible. * * * a statute imposing a forfeiture should be construed strictly and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation. The courts will usually give such a construction to statutes providing for forfeitures as will be consistent with justice and the dictates of natural reason, although contrary to the strict letter of the law; * * * Statutes must not be construed to forfeit an owner’s property, unless from the statutes itself, in the light of the object and existing conditions, it is manifest that the legislature so intended; and statutes shall not be held to forfeit property except for the fault of the owner or his agents, unless such a construction is unavoidable.”

In support of its contention that the power of the State to- confiscate under the facts and circumstances is a valid exercise of police power and not in violation of any constitutional provision, appellant relies upon State v. Richards, 157 Tex. 166, 301 S.W.2d 597. In that case Richards was the owner of an automobile and loaned it to a friend who, while operating the vehicle, was arrested and found to be in possession of unlawful narcotics. Richards had no knowledge that his friend possessed the narcotics or had ever been a user of narcotics, and the transportation of the narcotics was without his consent or knowledge. The forfeiture of Richards’ automobile was allowed under the provisions of Article 725d of the Texas Penal Code. In passing upon the question of the constitutionality of a statute providing for forfeiture of the property of an innocent owner of a vehicle used in violation of Article 725d, supra, our Supreme Court held that the guarantee of due process will not interfere with a State’s exercise of its police powers. However, the court specifically limited the extent of the holding with the following language:

“It is essential that the (police) power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists.”

In the instant case it is undisputed that the driver of the International truck tractor transporting the whiskey involved failed to-produce a bill of lading or any writing-showing the information required by the provisions of Article 666-27, supra. It is-also undisputed that Young’s Market Company was the lawful owner of such whiskey at all times material hereto and has paid the purchase price to Brown-Forman Distillers Corporation in the sum of $44,991.00. Young’s Market Company, the consignee,, was lawfully engaged in the wholesale liquor business in the State of California. and held necessary federal and California ■licenses and permits. Brown-Forman Distillers Corporation, the shipper, was lawfully engaged in manufacturing and distributing alcoholic liquors in the State of Kentucky and held necessary federal and local permits and licenses to engage in such business. The 950 cases of whiskey sold by Brown-Forman Distillers Corporation to Young’s Market Company was not destined for use or sale in the State of Texas, but was delivered to the common carrier in Kentucky for shipment to the consignee, Young’s Market Company, at San Diego, ‘California. Young’s Market Company had designated appellee, South West Shippers, Inc., as the common carrier but had no ■ownership or control over such carrier nor did it have any control over the operation of the transporting vehicle or the actions of the drivers thereof, or of the route to be ■selected in transporting the cargo. Young’s Market Company had no knowledge of the fact that the cargo was to be transported through the State of Texas. It had no knowledge that the laws of this state would be violated in the course of such transportation. The evidence is undisputed that when the cargo left Brown-Forman Distillers Corporation in Louisville, Kentucky, the person accompanying the cargo had in his possession a written statement furnished and signed by Brown-Forman Distillers Corporation showing the names and addresses of the consignor, the consignee, and the origin, destination and description of .the shipment. The evidence does not show any reason for the conduct on the part of South West Shippers’ employee in failing to exhibit such written statement when requested to do so. It is undisputed that after the seizure of the vehicle and cargo the Texas Liquor Control Board on May 4, 1962, made written demand on Young’s Market Company for production of a purchase order and invoice covering the cargo and on May 7, 1962, Young’s Market Company produced and exhibited the information requested, including a written statement furnished and signed by the shipper showing the name and address of the consignor and consignee, the origin and destination of the shipment, and all other information required by the Board. No fault is shown on the part of Young’s Market Company or of any agent of such company.

We agree with the contention of appellee Young’s Market Company that the violation involved is a technical one and that under the circumstances it should not be deprived of its 950 cases of whiskey by confiscation. State v. Shapiro, Tex.Civ.App., 273 S.W.2d 93. Young’s Market Company was the lawful owner of the whiskey. Although it had designated the common carrier, it owned no interest in such carrier and had no control over the details of the manner of transportation. The delivery of the cargo to the carrier was in full compliance with the law and it was bound for a lawful destination. The cargo was properly halted and seized by the officers of the State of Texas because of the violation of the law on the part of the driver of the carrier’s vehicle. But Young’s Market Company had no control over the transportation, and no complicity in or knowledge of the law violation. Upon receipt of notification from the Texas Liquor Control Board that the driver of the carrier’s vehicle had failed to produce a bill of lading or other writing required by Article 666-27, supra, Young’s Market Company immediately sent to the Board a bill of lading covering the cargo, containing all the information required by the statute. Although a violation has been shown on the part of the driver of the vehicle of the common carrier, in our opinion it is not comtemplated by the Texas Liquor Control Act that under these circumstances a lawful and innocent owner of property should be deprived of the value thereof by confiscation. The record shows no law violation or fault on the part of Young’s Market Company, the lawful owner of the property, and no complicity in the dereliction of the truck driver. Although the facts of this case and the Shapiro case are not identical they are alike in that the only law violation was a technical one and the owner of the property was guilty of no wrong.

The Richards case, supra, is distinguished from the instant case in that in the Richards case the narcotics were contraband ab initio. The narcotics were found in the possession of the driver of the automobile and were unquestionably illicit. There was no contention that its possession or transportation was in any sense or at any time lawful. The only defense of Richards, the owner of the automobile, was that the transportation of the narcotics was without his knowledge or consent.

In the instant case the cargo was not contraband. The transportation of the liquor was lawful from its inception and the only violation shown was on the part of a truck driver who was the employee of a common carrier, over whom the owner of the cargo had no control. It is true that in these circumstances the cargo was properly halted and seized by the officers under the provisions of Article 666-27-42. The violation of the truck driver of the common carrier constituted the cargo “illicit beverage” subject to be seized as such. However, it is our opinion that the following language by the Texas Court of Criminal Appeals in Gordon v. State, 166 Tex.Cr.R. 24, 310 S.W.2d 328, indicates the proper and controlling consideration:

“Unless and until that tax was paid, the rum was an illicit beverage, and contraband subject to be seized as such.”

The possession and transportation of the cargo here involved was lawful until the violation by the truck driver of the common carrier. When the lawful owner, Young’s Market Company, immediately upon notification by the Texas Liquor Control Board of the violation by the truck driver, furnished the Board all information required by the Texas Liquor Control Act, fully complying with the provisions thereof and showing its innocence of any complicity in the unexplained violation by the truck driver, the cargo regained its lawful nature. It and the vehicles were no longer contraband subject to confiscation. The trial court did not err in returning the cargo and the vehicles to their respective owners. Appellant’s points are all overruled.

The judgment is affirmed.


text:
    FORD MOTOR COMPANY, Appellant, v. DAVIS BROTHERS, INC., Appellee.
    No. 3802.
    Court of Civil Appeals of Texas. Eastland.
    June 28, 1963.
    Rehearing Denied July 19, 1963.

      Leachman, Gardere, Akin & Porter, Edward E. Crowell, Jr., Dallas, for appellant.
    Leake, Henry, Golden, Burrow & Potts, Hawkins Golden, Dallas, for appellee.
   COLLINGS, Justice.

Davis Brothers, Inc., brought this suit against Ford Motor Company. Plaintiff alleged that it had a contract with defendant to do certain painting work for an agreed price of $27,000.00; that after plaintiff made preparations to do the entire job and had completed a portion of the work, the parties entered into a new agreement whereby plaintiff agreed to a termination of the original painting contract in consideration of which defendant agreed to pay plaintiff its cost incurred thereon and its anticipated profits; that defendant failed and refused to pay as agreed. Plaintiff asserted that by reason of the facts alleged it was entitled to recover upon its sworn account and for reasonable attorney’s fees pursuant to Art. 2226, Vernon’s Ann.Tex.Civ.St. or, in the alternative, the reasonable value of the services performed and labor and material furnished on the basis of quantum meruit.

The case was tried before a jury which found (1) that appellant’s employees agreed to pay plaintiff for the work done and expense incurred in connection with the paint job in consideration of plaintiff surrendering his rights under the original contract; (3) that appellant’s employees had apparent authority to make such agreement; (4) that $3,000.00 would reasonably and fairly compensate plaintiff for services performed and expense incurred in connection with the paint job up to the time of making the agreement, and (6) that $900.00 would be reasonable as attorney’s fees for services rendered by plaintiff’s attorney. Judgment was entered for plaintiff against the defendant on the verdict in the sum of $3,900.00. Ford Motor Company has appealed.

Appellant, Ford Motor Company, urges points contending that there was no evidence to support the submission of special issue No. 1 or the answer of the jury thereto; that the court erred in overruling appellant’s motion for an instructed verdict; that the answer to special issue No. 1 was against the great weight and preponderance of the evidence, and that the court erred in submitting special issue No. 1 because it did not restrict the jury’s consideration to a purported agreement with any particular employee but left the jury free to speculate. These points are overruled.

Appellee, Davis Brothers, Inc., is a paint contracting firm and it is undisputed that it entered into a contract with Ford Motor Company to do certain painting at its Dallas Assembly Plant. The contract contemplated some spray painting. It was shown that appellee began making arrangements for equipment, workmen and materials to do the job, including a special kind and texture of paint, drop cloths, the purchase of spraying equipment and the renting of scaffolding and other extra equipment. Appellee started the job and its employees worked one night spray painting the portion of appellant’s plant used as its Lincoln car garage. After the nights-work it was apparent that there had been a considerable amount of paint “fall out”'- and Mr. Guard of appellant’s Dallas plant contacted Mr. J. C. Davis, President of appellee company, and complained. He-requested Davis to visit the premises and' discuss the matter, and a discussion ensued between Mr. Davis for appellee and Mr. Guard, Mr. James F. Black, appellant’s-General Plant Engineer and Mr. Parker Howe, the Plant Engineer for Ford Motor Company. Davis admitted that there was-a considerable amount of paint “fall out”' and that it was one of the worst messes he had seen in a long time. He further testified, however, that the excessive paint fall out resulted because the spray guns-were new and not properly adjusted; that he advised appellant’s representatives that upon proper adjustment there would be no-reoccurrence of such fall out; that the spray guns were thereafter adjusted and successfully used on other jobs without excessive paint fall out; that the fall out was not of such a nature that it could not be cleaned up so that the final result would be a good and workmanlike job; that in fact appellee did satisfactorilly clean up the paint from appellant’s floor by washing it with naptha or benzene. Davis testified that he had not been unduly worried about what happened; that he informed appellant’s representatives that he would like to go ahead with the job; that he had been doing work like that for thirty years and occasionally somebody would get a gun out of adjustment but that such a situation could be remedied; that what happened was an accident and there was never any reason to be greatly concerned. Davis testified that he told appellant’s employees that the job could go ahead and be completed on time. Davis further testified that appellant’s representatives wouldn’t listen to him; that they wanted him to cease work and insistently requested that the contract he discontinued. In this connection appellant’s employee and representative, Howe, stated that Ford would not permit Davis to continue the spraying. Davis testified that because of the request of appellant’s representative Black that no more work be done on the contract, he, Davis agreed to give up the job if he were paid for all the expenses he had been out and the work that he had done up to that time; that Black agreed that he would pay appellee all such expenses and for such work and that Davis agreed to surrender the right of appellee to continue under the contract. Davis testified that Black instructed him to make out a bill and go to Mr. Fitz, who was appellant’s treasurer or comptroller at the plant, and said: “We will send you a check”; that as he understood it the bill to be prepared was to cover the amount of work he had done plus the expenses incurred in starting the job; that the bill prepared by him included items of $750.00 and $225.00 which represented the labor and material for the work done; that other items were for expense incurred. Davis testified that he relied on Black’s statement and took his equipment off of the job; that he then submitted his bill to Fitz as agreed but that appellant failed and refused to pay.

Appellant admits that the parties negotiated concerning a discontinuation of the painting contract and that appellee did leave the job, but contend that the negotiations did not result in the new contract claimed and relied upon by appellee; that there is no evidence that such a contract was entered into. As basis of, and authority for, its position appellant relies upon the principle of law set out in Restatement of the Law of Contracts, Section 32, that:

“An offer must be so definite in its terms, or require such definite terms in acceptance, that the promises and performances to be rendered by each party are to be reasonably certain.”

Appellant contends that there was no discussion by the parties of any specific amount to be paid by appellant or any standard for arriving at the amount of any such payment and, therefore, neither the offer nor the acceptance were definite and no contract could result from the negotiations. We cannot agree with this contention. In our opinion the evidence supports the conclusion that Davis agreed to surrender his right to continue the contract in consideration of appellant’s agreement through Black to pay for the work done and expenses incurred in connection with the paint job. The evidence also supports the finding that appellant’s employees had apparent authority to make the agreement. It is true that Davis admits there was no discussion of the specific amount of money to be paid but it is not true that the evidence fails to show an agreement concerning a standard for arriving at the amount to be paid, which was capable of being made certain. The testimony of Davis is that appellant’s representatives promised to pay appellee all expenses “incurred in connection with the paint job;” that the substance of the agreement was that he was to be pais his expenses in getting the job started and the work he had done up to that time. Appellee’s pleading of a new contract made no mention of an agreement to pay for work done, but special issue number one inquired concerning such an agreement and the issue was not objected to because of the lack of pleading. In such a case there may be a trial of the issue by consent. The question then is whether the evidence supports the submission of the issue. There was evidence that such an agreement was made and the evidence is not so uncertain concerning appellant’s obligation under the new contract as to prevent a meeting of the minds of the parties. The evidence shows a valid and enforcible contract. As stated in 17 C. J.S. Contracts § 36(2), p. 657, “[Ajbsolute certainty is not required. That is certain which may be rendered certain.” It is indicated that a contract “[is] sufficiently certain in that the acts which make up performance are expressed definitely enough to permit the court to tell whether or not the promisor has fulfilled them”, even though the damages for failure to perform may not he susceptible of measurement. Thus, if the provisions of the contract concerning appellant’s agreement to pay are capable of being made certain the general agreement to pay for services and expenses without naming any specific amount is certain and is enforcible. There is evidence to support a finding concerning the agreement to pay expenses incurred by appellee in connection with the paint job and that appellant agreed to pay appellee for the work done. Such finding is not against the great weight and preponderance of the evidence. In our opinion the provisions of the new contract were capable of being made certain in that the acts which were to constitute performance thereunder were expressed definitely enough to permit a determination of whether or not they were fulfilled according to the agreement. Ap-pellee still had the burden to show that appellant had not paid according to the agreement. 17 C.J.S. Contracts § 36(2), p. 653.

Appellant’s contention in its point number 6 that the court erred in entering judgment for plaintiff for attorney’s fees is well taken. Plaintiff’s cause of action as shown by the evidence and as found by the jury was based upon a special contract and does not come under the provisions of Article 2226, V.A.T.C.S. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78; Guay v. Schneider, Bernet & Hickman, Inc., Tex.Civ.App., 341 S.W.2d 461, (Ref. N.R.E.), memorandum opinion by Supreme Court, 161 Tex. 560, 344 S.W. 2d 429.

Special issue number 4 was the damage issue and inquired what sum of money “will reasonably compensate plaintiff Davis for the services performed and the expense incurred in connection with the paint job involved herein up to the time of the making of the agreement, if any, inquired about in special issue number 1.” In appellant’s 7th point it is contended that the court erred in submitting special issue number 4 because it required “the jury to determine a figure which was allegedly the subject of an agreement.” In our opinion appellant’s point number 7 is well taken. Special issue number 1 inquired whether Ford Motor Company agreed to pay appellee “for the work done to date and the expense by him incurred.” Special issue number 4 was conditioned upon an affirmative answer to special issue number 1 and inquired concerning the amount of money which would “reasonably compensate” appellee for the services performed and the expense incurred. The effect of the affirmative finding of the jury to special issue number 1 was not that appellant Ford Motor Company agreed to pay appel-lee a sum of money which would reasonably compensate him for the expenses incurred, but that appellee would be paid the amount expended. The contract, as alleged and as testified to by Davis, so far as expenses were concerned was that Ford would pay the expenses incurred. There was no pleading, evidence or finding that appellant agreed to pay a sum of money which would “reasonably compensate” ap-pellee for the work done or expenses incurred. It is also noted that appellee did not allege that Ford Motor Company agreed in the new contract to pay “for the work done.” There was testimony by Davis that Ford agreed to pay for “the work done.” No objection was made by appellant to the submission of special issue number 1 on the ground that the inquiry concerning Ford’s agreement to pay “for work done” had no basis in the pleadings. Under such circumstances the issue was tried by consent. However, the meaning of the term “work done” as used in the testimony of plaintiff and as found by the jury in answer to special issue number 1 appears ambiguous in that it does not specify the basis of payment. In-17 C.J.S. Contracts § 36(2) at page 659 it is stated: “[A] contract need not specify price since, if no price is stated, it will be presumed that a reasonable price was intended * * Although this principle of law is well settled, it is also true that an agreement between parties may exclude the assumption that a reasonable price was intended as the basis of payment for work done and indicate a different price or basis. In the instant case the work was done under the original contract and that contract provided a method of payment. The new contract was that appellee was to be paid for the “work done”, which the undisputed evidence shows was done under the original contract. Under this evidence it is our opinion that the finding of the jury in answer to special issue number 1 contemplated that under the new contract Ford Motor Company would pay for the work done on the basis provided for in the original contract. Since special issue number 4 inquired about the reasonable value of services performed it was not in accord with the contract between the parties. Actually the evidence in respect to appellee’s damages is not fully developed. An examination of the ■itemized claim presented by appellee at the time does not clarify the matter but only adds to the confusion. In this claim ap-pellee listed as labor a total amount of $975.00, but it is not clear that such amount constituted the sum that appellee was entitled to receive under the original and the new contract for “work done.” Ap-pellee listed as expenses the items of anticipated profits and attorney’s fees. Neither anticipated profits nor attorney’s fees constitute expenses incurred or work done under the paint contract. The evidence in this connection as already indicated is not fully developed. There was evidence concerning the reasonable value of the services performed by appellee but no evidence that appellant agreed to pay according thereto. This evidence concerning reasonable value was admissible and material under appellee’s pleadings which sought, in the alternative, to recover upon the basis of quantum meruit. Special issue number 5 based upon quantum meruit was conditionally submitted to the jury but since it was found that the parties had contracted concerning payment for work done and expenses, the jury upon instruction of the court failed to answer that special issue.

For the reasons stated the judgment is reversed and the cause is remanded.


author: FANNING, Justice.

text:
    Leola McAFEE, Appellant, v. L. F. McAFEE, Appellee.
    No. 7499.
    Court of Civil Appeals of Texas. Texarkana.
    June 25, 1963.

      Harkness & Friedman, Texarkana, Robert F. Salmon, Linden, for appellant.
    Bun L. Hutchinson, Texarkana, for ap-pellee.
   FANNING, Justice.

L. F. McAfee sued his wife, Leola McAfee, for a divorce upon the ground of cruel treatment and sought a division of their community property. Trial was before the court without a jury, and judgment was rendered granting the plaintiff-appellee a divorce and the property rights of the parties were also adjudicated. Leola McAfee has appealed.

Appellant on appeal contends that the trial court erred in granting a divorce to appellee as there was “no evidence” and “insufficient evidence” to warrant the granting of the divorce to appellee.

Cruel treatment, within the meaning of Art. 4629, Vernon’s Ann.Civ.St, is a relative term of variable degrees, and may consist of innumerable acts or combinations of misconduct. The painful effect of such treatment, whether physical or mental, or both, as well as the degree of intensity thereof, depends upon the nature, extent, and duration of the overt acts of which it consists, and the circumstances under which such acts are committed, and every case of such character must be determined by its own peculiar facts. Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794. While the overt acts constituting legal cruelty must be established by full, clear and satisfactory evidence before a divorce can be granted upon the ground of cruel treatment, a determination as to the quantum and weight of the evidence necessary to meet this test involves the sound exercise of broad discretionary powers. Mobley v. Mobley, supra; Eatman v. Eatman, 75 Tex. 473, 12 S.W. 1107; Grisham v. Grisham, Tex.Civ.App., 255 S.W.2d 891.

Plaintiff and defendant were married in 1936, and lived together as husband and wife until December 17, 1960, at which time they were permanently separated, and have not since lived together as husband and wife. No children were born to their marriage.

Plaintiff was principal of a school, and his wife was also a teacher in said school until May, 1960, when she was released from this position because of the trouble she was causing plaintiff and other members of the faculty, according to plaintiff’s testimony. Since that time appellant has been a teacher in Chicago, Illinois.

There was testimony from plaintiff to the following effect: In October, 1958, plaintiff was informed by his doctor that he had a diabetic condition, and that defendant wrongfully accused plaintiff of being insane, further harassed plaintiff by telling him he was insane and wrongfully accused him of having illicit reationships with his female faculty members and with his female students, and that such false accusations of insanity and infidelity and various displays of jealousy by defendant interfered with plaintiff’s work as a principal in his school to such an extent that plaintiff almost lost his position with said school, and that such actions on the part of defendant made it necessary that both the plaintiff and defendant seek and receive care and treatment from a psychiatrist ; that during the period from October, 1958, to December, 1960, the date of separation, defendant refused to prepare plaintiff’s meals or to prepare the special dietetic food required by plaintiff by reason of his diabetic condition, and because of such failure plaintiff was forced to eat with his wife’s nephew and niece, paying them weekly for food and services in his behalf; that defendant failed to perform any and all other duties of a wife during said aforementioned time, and left plaintiff’s bed and board to live in Chicago, Illinois; that defendant cursed plaintiff; that in the fall of 1959 defendant falsely accused plaintiff of attempting to poison her; that on one occasion during said aforementioned period defendant called plaintiff’s employer and also a deputy sheriff to unjustifiably accuse the plaintiff of being drunk. Plaintiff further testified to the effect that by reason of the various testified to acts of harassment, unjustified accusations and displays of emotion, that he was, and is, unable to continue living with defendant because of severe physical and psychological disabilities caused by such acts.

The testimony of plaintiff was in the main disputed by the testimony of the defendant. Only one other witness testified — such witness was a nephew of Leola McAfee, being the son of her brother. His testimony was in some respects favorable to appellant and in some respects favorable to appellee.

The trial court was the judge of the credibility of the witnesses and of the weight to be given to their testimony. The trial court had the parties before him; heard their testimony and the testimony of defendant’s nephew; observed their demeanor; and as a result found appellee’s version credible and granted him the divorce.

After carefully considering the entire record in this cause, we hold that there was ample evidence of probative force and that the same was full, clear and satisfactory and was sufficient to authorize the trial judge, in the exercise of the sound judicial discretion vested in him, to grant appellee a divorce from appellant on the ground of cruel treatment. In this connection see the following authorities: Lindsey v. Lindsey, Tex.Civ.App., 228 S.W.2d 878; Turner v. Turner, Tex.Civ.App., 289 S.W.2d 836; Larson v. Larson, Tex.Civ.App., 292 S.W.2d 685.

The judgment of the trial court is affirmed.