author: WOODLEY,' Presiding Judge.

text:
    Raul VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37261.
    Court of Criminal Appeals of Texas.
    Nov. 18, 1964.
    Rehearing Denied Jan. 6, 1965.
    Fidencio G. Garza, Jr., Falfurrias, for appellant.
    R. L. Lattimore, Dist. Atty., John S. Snedeker, Asst Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY,' Presiding Judge.

The offense is felony theft of an automobile; the punishment, 2 years.

The evidence reveals that a 1955 Plymouth automobile of the value of more than $5(Lwas taken from the place in Weslaco where it had been parked by its owner, without his knowledge or consent. It was found during the same night in a canal some mile and a half away, water soaked and with the windshield, back glass and all of the side glasses broken out.

Appellant, age 21, Alfonso Abeldano, age 19, and David Yarrito, age 16, were apprehended and charged with theft of the automobile.

Alfonso, who had been convicted upon his plea of guilty, testified as an accomplice witness for the state. Appellant’s confession was introduced but he did not testify.

According to Alfonso and to appellant’s confession, David suggested that they look for a car with keys in it so they could take a ride. David found such a car and they got in, after he said: “What’s the matter, are you scared? ” David drove the car and David put it in the canal. According to appellant’s confession, David and Alfonso broke the glass,

The court charged the jury on the law of principals and accomplice testimony. We find the evidence sufficient to sustain the jury’s finding that the appellant acted as a principal in the theft of the automobile.

Appellant complains that during the testimony of its witness Perez the state injected into the trial testimony concerning another indictment against him.

Appellant filed motion for suspended sentence, thereby placing in issue his general reputation. Art. 778 C.C.P.

The state called the witness Perez, a deputy sheriff, who testified that appellant’s general reputation as a law abiding and honest man was “no good.” In connection with his testimony, the witness Perez added: “Prior to this I had him charged in other cases.” There was no objection to such testimony on direct examination.

On cross-examination Perez was asked and answered:

“Q. * * * We are talking about this particular case?
“A. I am talking about another case.
“Q. Now, I would like to know, have you had occasion to have charged him with other offenses?
“A. Yes, sir. I had him charged with, robbery by assault, where they assaulted Mr. Ralph Reed at home and broke his arm doing so.
“Q. I am asking you about this particular case.
“THE COURT: He is talking-about the general reputation.
"MR. GARZA: If it please the-Court, I move that his testimony be stricken. It is biased and prejudicial. He brought that in. purposely.
“THE COURT: The jury will-disregard any specific instances, and ask him about his general reputation.”

On redirect examination the witness was; asked and answered:

“Q. Mr. Perez, you have been talking about — You said cases. Is. there more than one case against, this man?
“A. Yes, there is.”

Appellant moved for mistrial “on the-grounds that the district attorney had no-basis to ask the last question he asked * * The trial judge instructed the-jury “to disregard any specific instances-in reference to the application for suspended sentence,” but the record does not reflect a ruling on the motion for mistrial.

We are in accord with appellant’s contention that it was error for the state’s-witness or the district attorney to refer,, in the presence of the jury, to an extraneous-criminal charge against the appellant. However, in view of the cross-examination by appellant’s counsel shown above, and the court’s instruction to the jury, the error is not such as to warrant reversal.

Appellant’s remaining complaint relates to the cross-examination of appellant’s character witness Adolfo de la Pena wherein he was asked: “Q. Sir, have you heard that the defendant has been charged with' assault with intent to rob against a 70 year old man and broke his arm?

“A. No sir, nothing except here in court.”

It appears that counsel for the state was attempting to test the knowledge of the witness as to the general reputation of the defendant in the manner upheld in Adams v. State, 255 S.W.2d 513. Also, the jury had been made aware of the assault charge referred to in the question by the cross-examination of state’s witness Perez, and appellant is in no position to complain.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Roy MARSHALL, Appellant, v. The STATE of Texas, Appellee.
    No. 37167.
    Court of Criminal Appeals of Texas.
    Oct 28, 1964.
    Rehearing Denied Dec. 16, 1964.

      H. R. Rolston, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, life.

Appellant’s prior conviction for this offense was reversed because of the admission of hearsay testimony. Marshall v. State, Tex.Cr.App., 366 S.W.2d 572.

Though much more voluminous than at the former trial, the record reflects substam-tially the same evidence as was summarized in our prior opinion. Since appellant’s able counsel did not in the prior appeal and does not here question the sufficiency of the evidence to support the conviction, the facts will not be set forth again.

In his brief appellant urges the following bills of exception. Constable Jesse Ray testified that he was the first officer to arrive upon the scene of the homicide, that the ambulance was just leaving and that when he approached appellant and asked him, “What’s going on, Roy?”, appellant replied that he had shot the S.O.B. and he was glad he did. Appellant’s objection to such conversation was that he was under constructive arrest. We do not agree because the evidence does not show that appellant was under arrest at this juncture, but be that as it may, it does show that during such conversation appellant led the officer to the murder weapon, thus making the entire conversation admissible under Article 727, Vernon’s Ann.C.C.P. Jones v. State, 167 Tex.Cr.R. 72, 318 S.W.2d 444 and cases there cited.

Deceased’s widow was permitted to testify over objection that such would constitute a conclusion of the witness that when her husband left the tourist cabin just before the shooting, “He went to help her” (Mrs. Renfro, the owner of the tourist courts). In Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201, this Court held statements made by deceased as she prepared to leave admissible as res gestae and explanatory of her acts.

In Williams v. State, 112 Tex.Cr.R. 482, 17 S.W.2d 1057, this Court reversed a conviction because the trial court did not permit appellant’s father and brother to testify that when appellant left home on the morning of his arrest he said he was going to the Lewis home.

In English v. State, 124 Tex.Cr.R. 459, 63 S.W.2d 547, we reversed the conviction because the court refused to permit the witness Williams to testify that as the appellant left his home he said he was going to San Angelo to get work.

In Liberty Mutual Insurance Company v. Nelson, 142 Tex. 370, 178 S.W.2d 514, 517, the Supreme Court of this State said:

“It appears that Mr. Nelson’s purpose in going to Houston was proved by statements made by him to th~ witness C. G. Reynolds just before he started on the trip. The Court of Civil Appeals (174 S.W.2d 103) held that such evidence was admissible under the res gestae rule. We think such holding is correct and is supported by the authorities cited in the opinion of the Court of Civil Appeals, to which we here refer.”

As we noted in Pennye v. State, 160 Tex.Cr.R. 299, 269 S.W.2d 375, in each of the cases cited the statements were made immediately prior to the occurrence about which the trial arose.

Appellant’s last complaint is addressed to the cross examination of Mrs. Renfro, who did not testify at the prior trial hut who testified favorably for appellant in this case. She was asked if she had not told Constable Ray at the time of his arrival the following:

“I wish you all would do something with that man. He is crazy, and he keeps on hanging around here, and I have asked him to leave and he won’t leave, and I have called the City Police to ask them two or three times, and they have condemned me here and said nasty things about me. * * * He just shot that boy in cold blood.”

The prosecutor made it known to the court that the question was asked in order to lay a predicate for impeachment. The witness answered, “If I said it, I don’t know it.” Later in the record Ray gave the impeaching testimony that the witness had made the statement set forth above at the scene and in the presence of appellant. Mrs. Renfro was asked if she did not tell Sheriff Jones some of the matters which we condemned in our prior opinion and the witness gave an unresponsive negative answer. For impeachment the Sheriff was permitted to testify only as to the statement made by the witness which was directly connected with the shooting and tended to explain the transaction which was by this Court held to be a part of the res gestae.

Appellant’s objection to the question relating to pass keys and appellant’s efforts to enter women’s apartments at the motel, which we held were inadmissible in our prior opinion, were sustained and the jury was instructed not to consider the questions as evidence. While we do not commend the prosecutor for attempting to circumvent the holding of this Court, we have concluded that no reversible error is reflected by this last contention.

The judgment is affirmed.


author: NYE, Justice.

text:
    John E. HAYES, Appellant, v. Mrs. Joe R. WHITE, Appellee.
    No. 91.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 25, 1964.
    Rehearing Denied Dec. 17, 1964.

      W. G. Perkin, of Alamia, Perkin & Le-men, Pharr, for appellant.
    Neal King, of Hill, King & McKeithan, Mission, for appellee.
   NYE, Justice.

This is a suit for the balance due on a note, interest and attorney fees brought by the appellee Mrs. Joe R. White against the appellant John E. Hayes. The trial was held before the court without a jury up on stipulated facts.

A 1962 Cadillac automobile was purchased by Hayes from the Yoder Motor Company of McAllen, Texas. Hayes traded in a 1959 Cadillac owned by his then wife Loula M. Hayes. He executed a conditional sales contract, embodying the subject note for approximately $3200.00, secured by a lien against the Cadillac automobile. He then made a gift of the vehicle to Loula M. Hayes. In a subsequent divorce between appellant Hayes and his wife, the court awarded the Cadillac automobile to Loula M. Hayes as her separate property and required appellant Hayes to discharge the indebtedness and the lien against the vehicle. From the divorce judgment Hayes appealed to this Court which affirmed the judgment of the trial court. See Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App.1964).

The conditional sales contract was subsequently transferred from the Yoder Motor Company to General Motors Acceptance Corporation and prior to its due date the contract was sold and assigned, without recourse, to Mrs. Joe R. White, the appellee. The appellee released the lien against the vehicle and, after the note became due and was not paid, brought suit against Hayes for the balance due, interest and attorney fees. Judgment for this amount was entered by the trial court. Hayes, in perfecting his appeal, contends in two points that: (1) the trial court erred in failing to hold that the appellee was required to sell the collateral (the Cadillac automobile), apply the proceeds of such sale to the indebtedness, and pay the surplus over to the appellant; and (2) the trial court erred in failing to hold that the acts of the appellee in exercising control over the automobile constituted a conversion of the property.

It has heretofore been determined-by final judgment that the appellant is responsible for the indebtedness occasioned by the purchase of the 1962 automobile. It has further been heretofore determined by final judgment that the automobile is the sole and separate property of the appellant’s former wife, Loula M. Hayes. Hayes v. Hayes, supra. She has had title to and possession of the vehicle in question since the date of its purchase. Appellant’s contention that upon his default, of his obligation, that he is entitled to have the property of another, in which he has no property right, sold, and the proceeds applied to his debt, and the surplus turned over to him, is untenable. Appellant has no right to re-litigate the question of responsibility of the indebtedness nor to require that upon his default of the obligation that the property of his former wife be sold in satisfaction of the indebtedness owed by him. Where a gift is made that is subject to a lien or has been pledged to secure an indebtedness of the donor, upon the discharge of the indebtedness and the release of the security by the mortgagee the donor would have no right to exercise control over it or to rescind the gift. Foley v. Allen, 5 Cir., 170 F.2d 434 (1948).

A conditional sales contract is in effect a chattel mortgage. Art. 5489, Vernon’s Ann.Civ.St.; Minnehoma Financial Co. v. Johnson, 152 Tex. 386, 258 S.W.2d 78 (1953). The law in this State does not require a mortgagee to first sell the collateral and apply the proceeds to the indebtedness prior to bringing suit against the obligor in absence of a provision in the instrument requiring such procedure. There was no such provision in this contract. Maupin v. Chaney, 139 Tex. 426, 163 S.W. 2d 380 (1942); Weatherby v. Townes, 42 Tex. 83 (1875); Sinclair v. Weekes, 41 S. W. 107 (Tex.Civ.App.1897); Head v. Wollmann, 5 Cir., 272 F.2d 298 (1959); Harper v. First State Bank, 3 S.W.2d 552 (Tex.Civ.App.1928, wr. ref.) ; Banks v. Mixon, 179 S.W. 690 (Tex.Civ.App.1915); Loughney v. Texas City Nat. Bank, 252 S.W.2d 954 (Tex.Civ.App.1952); 9 Tex.Jur.2d 249, § 228.

Appellant’s second point raises the question as to whether the appellee was guilty of a conversion in procuring a release of the collateral before the note was due. Appellant contends that the acts of the appellee constituted an unlawful conversion of the property by depriving the appellant of his interest therein. As heretofore stated, the appellant has no interest in the Cadillac automobile and, therefore, as to him, there can be no conversion. Appellant’s points one and two are overruled.

Judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Walter GRAHAM, Appellant, v. Fred McCORD, Appellee.
    No. 14289.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1964.
    Rehearing Denied Dec. 16, 1964.

      Brown, Sparks & Erwin, Austin, for appellant.
    W. Pat Camp, A. R. Sohn, San Antonio, for appellee.
   POPE, Justice.

Fred McCord, while repairing an automobile in the service department of Goad Motor Company in San Antonio, was injured when Mrs. Walter Graham drove her car into the rear of the vehicle upon which he was working. McCord brought suit in Bexar County against both Mrs. Graham and her husband, Walter Graham, who reside in Randall County, Texas. After suit was filed but before service upon her, Mrs. Graham passed away. The venue hearing proceeded against Walter Graham as sole defendant, and the court overruled his plea to be sued in Randall County. The only issue raised by the briefs is whether, under Section 9a, Article 1995, Vernon’s Ann.Civ. Stats., plaintiff proved a tort action against Mr. Graham. There is no evidence that his wife’s tort was his tort, and the case must be reversed and ordered transferred to Randall County.

To hold defendant, Graham, in Bexar County, plaintiff had to prove, under Sec. 9a, Art. 1995, three things. One of them is “That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.” With Graham left in the case as the sole defendant, plaintiff had to prove that Mrs. Graham’s tort was in law Mr. Graham’s tort. This means that plaintiff had to prove that Graham was liable under principles of respondeat superior.

While a wife is not a general agent of her husband, Rankin v. Kerrville Bus Co., Tex.Civ.App., 115 S.W.2d 997, 999, a husband can make his wife his agent. Trice v. Bridgewater, 125 Tex. 75, 81 S.W. 2d 63, 100 A.L.R. 1014; Graham v. Howard, Tex.Civ.App., 249 S.W.2d 639, 641; Henderson v. Jimmerson, Tex.Civ.App., 234 S.W.2d 710, 715, 717; Hamill v. Samuels, Tex.Civ.App., 135 S.W. 746; 30 Tex.Jur. 2d Husband and Wife, § 19. It is not mere agency, however, which fixes tort liability upon a principal. Only an agent whose principal has the right of control over the agent’s physical movements in the performance of the thing authorized can hold his principal liable for torts. Principals are liable for the torts of only those agents who are subject to that kind of control which also establishes the master-servant relationship. This was the rule stated by American National Insurance Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409, wherein the Court quoted from Section 250 of the Restatement of the Law of Agency: “It is only when to the relationship of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relationship of master and servant, that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor.” The agent in Denke had unquestioned authority from his principal to solicit and write insurance, and the principal held detailed control over those activities. That control, however, was not the kind of physical control which was essential to bind the principal for the agent’s torts.

This was the state of the law in 1953 when Sec. 9a, Art. 1995, was added to the venue statutes. The wording of Sec. 9a shows that it was plainly intended that only those agents who fall within a master-servant relationship can bind their principals for torts. This is so because of the requirement that the servant, agent or representative must be shown to be “acting within the scope of his employment.” The phrase, “scope of his employment” carries with it the requirement of control inherent ■ in the master-servant relationship which will invoke the respondeat superior doctrine. The plaintiff, therefore, had the burden to prove that the husband had the right to control the physical conduct of his wife at the time and in respect to the very thing which caused the injury.

The evidence is that defendant, Graham, came to San Antonio from Happy, Texas, in Randall County, for the purpose of buying some cattle. His wife came with him so she could shop. She did all the driving. About nine o’clock on the morning of the accident, she drove Mr. Graham from the San Antonio hotel to the cattle sale several miles away. She told her husband to page her at Frost Brothers, where she planned to shop, if he wanted her to return and pick him up earlier than expected. He did not page her during the day and she went back for him about five in the afternoon. In the meantime, after she left him in the morning, she drove to Goad Motor Company to have some minor repairs made to the Cadillac car she was driving. When she drove in, she rammed the rear of the car that plaintiff was working on. Goad Motor checked the door hinges on the Cadillac, corrected a door vent, removed a rattle in the dash and adjusted the automatic dimmer. Mr. Graham did not know his wife was going to have any repairs made to the car and, from the record, there is nothing to show that he knew any repairs were needed. He had given her no instructions and had never heard of Goad Motor Company. He had asked her to do nothing for him except pick him up. There is no evidence of such measure of control over the wife’s actions as inheres in a master-servant relationship unless we can find it supplied in some way from the marriage relationship.

The marriage relationship did not make defendant’s wife his agent in the sense that he controlled her physical conduct. Marriage confers upon the wife an agency to purchase and contract for necessities. Walling v. Hannig, 73 Tex. 580, 11 S.W. 547. That, however, is not the test in the case of torts. Authority to make binding contracts does not supply the tort test for respondeat superior. In the case of torts one must have the right of control over another’s physical conduct.

If these facts supply the necessary proof of control in-the case of husband and wife, we have returned to the rejected family-purpose doctrine. Trice v. Bridgewater, supra. In Ener v. Gandy, 138 Tex. 295, 158 S.W.2d 989, a mother was actually riding in the car with her son who was driving to a neighboring city to play on a football team. Though sitting beside her son, the family relationship was not enough to supply the necessary element of control. It was held from the facts that she was not exercising authority over her son in such a manner as would hold either her or the child’s father as principal or master in a tort action.

In our opinion, there is no evidence that the wife’s tort was her husband’s tort so that the husband can be held in an action which names him as the sole defendant. The judgment must be reversed and the cause remanded to the trial court with instructions to transfer this cause to Randall County.


author: SHARPE, Justice.

text:
    Francisca R. PEREZ, a feme sole, Appellant, v. H. G. GEORGE et al., Appellees.
    No. 118.
    Court of Civil Appeals of Texas. Corpus Christi.

      Nov. 25, 1964.

    M. F. Armstrong, Jr., Weslaco, Raymond E. Ehrlich, Pharr, for appellant.
    J. D. Vollmer, Mercedes, for appellees.
   SHARPE, Justice.

This cause is before the Court on ap-pellees’ motion to affirm on certificate. The judgment involved was rendered in Cause Number B-21615, District Court, Hidalgo County, Texas, in which Francisca R. Perez, a feme sole was plaintiff and H. G. George, Eli Rios, E. E. Vickers, sheriff of Hidalgo County, Texas, R. G. Perez, Truett Jordan, each a deputy sheriff of Hidalgo County, Texas, were defendants. Said judgment entered on April 22, 1964, provided that the plaintiff take nothing by her suit against the defendants H. G. George and Eli Rios. The case as to R. G. Perez and Truett Jordan in their individual capacities was dismissed with prejudice. Notice of appeal by appellant was included in the judgment and on May 21, 1964, appellant filed a proper appeal bond in the Court below. Since then the appellant has taken no steps to proceed with the appeal and has not filed the record or a motion for extension herein in connection with the same. The time for appeal by writ of error has also expired.

Appellees’ motion to affirm on certificate is accompanied by proper instruments in accordance with Rule 387, Texas Rules of Civil Procedure. Notice, as provided in said rule, has been given of the setting of this cause for hearing and appellant has failed to appear. Appellees are entitled to have their motion granted and the judgment of the trial court affirmed. Rule 387, T.R.C.P.; Edwards v. Hughes, 377 S.W. 2d 235 (Tex.Civ.App.1964, n.w.h.).

The judgment of the trial court is affirmed and the costs of this appeal are adjudged against appellant and the sureties on her appeal bond.


author: BARROW, Justice.

text:
    H. L. METZGER et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 14302.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1964.
    Rivera & Ritter, San Antonio, for appellant.

      Sam S. Wolf, City, Atty., William R. Ward, Asst. City Atty., San Antonio, for appellee.

      . “See. 42-28.7 POWER TO MAKE EXCEPTIONS
      The board may make special exceptions to the terms of this chapter only as provided in section 42.28.8 of this Code; however, the board shall not grant a special exception unless it makes specific findings that:
      (a) The exceptions will be in harmony with the spirit and purposes of this chapter.
      (b) The public welfare and convenience will be substantially served.
      (c) The neighboring property will not he substantially injured by such proposed use.
      (d) The exception will not alter the essential character of the district and location in which the property for which the exception is sought.
      (e) The exception will not weaken the general purposes of this chapter of the regulations herein established for the specific district.
      These findings of the board shall be incorporated into the official minutes of the hoard meeting in which the special exception is authorized.”

   BARROW, Justice.

H. L. Metzger and twelve other residential property owners brought this writ of certiorari pursuant to Art. lOllg, Vernon's Ann.Civ.Stats., complaining of the City of San Antonio and the Board of Adjustment of the City of San Antonio, seeking to set aside and hold illegal the decision of the Board on June 28, 1962, granting Knowlton’s Creamery a permit to use four lots near appellants’ properties for noncommercial parking as a special exception in a “B” residential zone.

The questions presented by this appeal are whether the action of the Board is void because of its failure to make specific findings of fact in support of this special exception as required by the ordinance of the City, and if so whether this failure was corrected by findings made by the Board while the case was pending in the trial court. The court upheld the Board’s action and denied appellants any relief. In our opinion the Board’s action was illegal for failure to comply with the specific requisites of the City Code.

The official minutes of the Board meeting of June 28, 1962, do not include the specific findings required by Sec. 42-28.7 of the City Code. It is seen that the ordinance granting the Board power to grant special exceptions limits this power by requiring the Board to make certain findings to be incorporated in the official minutes of the Board meeting at which the special exception is authorized.

The failure to make the required findings rendered, the action of the Board illegal and void. In Skates v. City of Paris, 363 S.W.2d 425 (Tex.1963), the Supreme Court held that a decision of a Civil Service Commission sustaining suspension of a member of the Paris police department was void for the failure of the commission to make a finding of the truth of the specific charges against Skates as required by Art. 1269m, Sec. 16, Vernon’s Ann.Civ.Stats. The requirement of this statute is substantially similar to that required by the San Antonio City Code.

In Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951), the Supreme Court set aside an order of the Railroad Commission because of its failure to set forth “full and complete findings of fact” as required by Art. 911b, § 5a(d), Vernon’s Ann.Civ.Stats. The review under this statute is not essentially different from that under 101 lg, supra; Board of Adjustment of Fort Worth v. Stovall, 216 S.W.2d 171 (Tex.1949). See also, City of Houston v. Melton, 354 S.W.2d 387 (Tex.1962); McQuillin, Municipal Corporations, § 25.272.

Appellees assert that, in any event, this failure was corrected prior to the entry of the judgment by the trial court by amendment of the original minutes. After the issue was joined in the district court by perfection of appellants’ appeal, appellants filed their motion for summary judgment wherein they argued that the Board’s action was illegal and void because the ordinance was not followed. This motion was heard on February 6, 1963, and at this time the trial court entered an order requiring the Board within twenty days to amend its minutes in the original cause, so as to contain the specific findings required by Sec. 42-28.7 of the City Code. On February 7, 1963, the Board met, re-opened this application and passed a motion in the original cause containing the required findings of fact. Appellants were not given notice of this hearing and did not attend.

It is our opinion that this action was without legal authority and of no force and effect. Art. 101 lg, supra, authorizes the trial court to hear additional evidence if it deems necessary for proper disposition of the matter or to appoint a referee to hear same. The court is given the power to “reverse or affirm wholly or partly, or may modify the decision brought up for review.” This does not authorize the trial court to “suspend” the judicial review and reinstate the administrative proceedings for the purpose of making the specific findings as directed by the trial court.

In Skates v. City of Paris, supra, the Supreme Court held that the failure of the Commission to make required findings was not cured by a subsequently filed affidavit purporting to show findings of the Commission. It was there said: “We cannot sustain the contention that the subsequently filed affidavit that the Commission found the truth of all the charges except No. 1, contained in the order of suspension is sufficient to cure its defects. To hold that the statute permits the filing of findings at a later date would defeat the purpose of the statute, and would be contrary to our holding in the Melton case.”

The primary jurisdiction of the Board to act on this matter was terminated when their action was duly appealed to the district court Railroad Commission v. McClain, Tex.Civ.App., 356 S.W.2d 330, no writ hist.; Red Arrow Freight Lines v. Railroad Commission, Tex.Civ.App., 161 S.W.2d 881, writ ref.; Smith v. Wald Transfer & Storage Co., Tex.Civ.App., 97 S.W.2d 991, writ dism.

The trial court was authorized to annul the action of the Board and remand the entire proceedings back to the Board for further action. Noyes v. Zoning Board of Review of Providence, Sup.Ct. of Rhode Island, 177 A.2d 529; Calloway v. Liberman, Sup., 206 N.Y.S.2d 724; Application of Furlong, Sup., 111 N.Y.S.2d 398; 101 C.J.S. Zoning § 372. However, in this event, the Board is required to give notice to appellants before holding another hearing. Art. 101 lg, supra; § 42-28.2, City Code of San Antonio. The failure to do so nullifies any action taken at a hearing held without proper notice. City of San Antonio v. Pope, Tex.Civ.App., 351 S.W.2d 269, no writ hist.; 1 Tex.Jur.2d 666.

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

      . Motion passed at meeting of June 28, 1962:
      “MOTION made by Mr. Jones and seconded by Mr. Smith to grant the exceptions requested by Knowlton’s Creamery in Case 4385 to allow the applicant to use Lots 1, 2, 3 and 4, Elk. 3, NOB 3245, San Antonio, Bexar County, Texas, for non-commercial parking as permitted by and under the conditions, restrictions and limitations of the City Code because the granting of this exception is in the public interest, but with the stipulation that this property must not be used for any other than passenger parking and there must be chains provided which are to be locked at night and opened in the mornings. All present voting in the affirmative. MOTION CARRIED.”


author: DIXON, Chief Justice.

text:
    George W. GRAHAM, Appellant, v. J. P. HUFF et ux., Appellees.
    No. 16423.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 6, 1964.
    Rehearing Denied Dec. 4, 1964.

      Sanders, Masters & Watson, Wichita Falls, for appellant.
    Nance & Caston and Robert G. Bush, III, Sherman, for appellees.
   DIXON, Chief Justice.

George W. Graham has appealed from an order overruling his plea of privilege, by which plea he sought to have a suit against him transferred to Wichita County, Texas, his county of residence.

The suit was filed in Grayson County by appellees J. P. Huff and wife, Bobbie Rae Huff. They seek damages in the amount of $17,257.50 and attorneys’ fees of $1,000.00 for alleged breach of an oral oil pooling contract.

On October 28, 1963 appellant filed his plea of privilege.

On November 4, 1963 appellees filed their controverting plea in which they allege that venue properly lies in Grayson County under the terms of Article 1995, Vernon’s Ann.Civ.St., especially Subdivisions 3, 14, and 29a of said article.

Appellees’ original petition is not included in the record except that a copy of it is set out in the controverting plea. In their petition appellees name only three defendants: George W. Graham, Clyde Railsback and David Gee. The original petition fails to comply with Rule 79, Texas Rules of Civil Procedure in that it makes no reference whatever to the places of residence of the defendants. It neither states their places of residence nor that their residences are unknown. The record does not disclose the’ date of the filing of the original petition.

On November 14, 1963 appellees filed their amended petition in which they named as additional defendants certain persons who held royalty interests in the two tracts of land which appellees claim should have been pooled. In their amended petition appellees expressly alleged that appellant Graham and Railsback and Gee, the other two defendants named in the original petition, were residents of Wichita County, Texas. The residence of several of the newly joined defendants was stated to be Grayson County.

The allegations in appellees’ petition may be summarized as follows: On June 1, 1963, June 14, 1963 and June 22, 1963 Clyde Railsback, individually and as agent for appellant Graham, conducted negotiations with appellee J. P. Huff for an oil lease on 10 acres of land owned by Huff; on June 24, 1963 a lease was executed for a cash consideration of $500.00; part of the consideration of the written lease was the oral promise of Railsback that the Huff 10 acres would be pooled with an adjacent 30 acres out of an 80-acre tract known as the Pearl Morris land and that appellees would own one-fourth of the royalty under the pooling arrangement; thereafter appellant Graham completed a producing well on the 30 acres out of the Pearl Morris tract and on July 19, 1963, appellant, through his agent, E. W. Moran, filed with the Railroad Commission a unitization report which showed that appellees had not been included in the pooling arrangement, but that the 40-acre pool had been made up of 38.48 acres of land out of the Pearl Morris tract and 1.52 acres out of land owned by the Texas & Pacific Railroad Company; by appellant’s breach of his agreement to include their 10 acres in the pool, appellees had suffered damages measured as follows: during the eighteen-month discovery allowable period appellees would have received 2,081}/á barrels of oil of a reasonable value of $5,411.25 and that during the next thirteen and one-half years the well would probably produce oil of the valúe of $11,-846.25 — making a total of damages of $17,-257.50; appellees prayed judgment for the said $17,257.50 and attorneys’ fees of $1,-000.00, plus interest at six per cent; ap-pellees also prayed for the appointment of a receiver to take possession of the well and royalties so that funds would be available for satisfaction of their damages.

OPINION

The substance of appellant’s first eleven points on appeal is that Subdivision 3 of Art. 1995, V.A.C.S., taken by itself or in connection with Subdivision 29a, will not suffice to retain venue of the suit in Gray-son County, Texas. We agree with appellant.

Subdivision 3 provides that if one or all of several defendants reside without the state or if their residence is unknown suit may be brought in the county in which the plaintiff resides.

It is not clear whether service of citation was obtained on appellant Graham in person or by publication. One of the attorneys for appellees testified that he prepared affidavits for citation by publication. These affidavits are not included in the record. The attorney, testified that one of the affidavits was dated November 7, 1963, the other September 19, 1963. The contents of these affidavits are not shown in the record before us.

There may be some Question as to whether the residence of Railsback and Gee was outside the state. Though they mailed their answer to appellees’ suit from Wichita County, Texas, at the time of the trial Graham testified that their residences were in Wichita County, but that they were only temporarily in Canada for an eighteen-month period doing oil exploration work in a venture in which Graham was interested.

There is no evidence that the residence of Graham was unknown. The undisputed evidence is that he had been a resident of Wichita County for forty-one years. The evidénce 'indicates that appellees knew where he resided. Neville Huff, brother of appellee J. P. Huff, testified in behalf of appellees. It was he who discovered that appellees had been left out of the pool. He notified appellees and immediately called appellant Graham by telephone to protest. Next day Graham came to see Huff about the matter and was informed that suit would be filed against him. The Huff family,1 according to the evidence, all had interests in the oil activities in question, though only J. P. Huff and his wife were plaintiffs in the present lawsuit. Appellant in times past had drilled other oil wells on leases he had obtained from the Huffs, two of which were producing wells at the time of the trial and the Huffs were receiving royalty payments on them.

Subdivision 3 does not mean that a defendant whose address is known may be denied his privilege to be sued in his home county merely because one or more other defendants may reside outside the state or their residences may be unknown. Graham v. Ozuna, Tex.Civ.App., 275 S.W.2d 735; Thomason v. Sparkman, Tex.Civ.App., 55 S.W.2d 871; United States Gas & Oil Co. v. Duffy, Tex.Civ.App., 8 S.W.2d 278, 280. Appellees have failed to show that appellant Graham resided outside the state, or that his residence was unknown.

Since Subdivision 3 is not applicable it follows that Subdivision 29a cannot be considered in connection with Subdivision 3. Subdivision 29a is never considered alone. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 761-762. Appellant’s first eleven points are sustained.

In his Points Nos. 12 to 15 inclusive appellant asserts that venue as to him may not be retained in Grayson County under the terms of Subdivision 14 of Art. 1995, V.A. C.S. Again we agree with appellant.

Subdivision 14 provides that suits for the recovery of lands or damages thereto, or to remove encumbrances upon title, or to quiet title to land or to prevent or stay waste on lands must be brought in the county in which the land, or a part thereof, may lie. Both tracts of land which appellees claim should have been included in the pool lie in Grayson County.

Appellees were paid $500.00 to execute a written oil lease to appellant covering 10 acres of their land. They allege that during negotiations prior to and at the time of the signing of the written lease, Clyde Railsback, agent for appellant, orally promised them that their 10-acre lease would be pooled with 30 acres out of the adjacent Pearl Morris tract. They allege that this oral promise, to which they agreed, was part of the consideration for their execution of the written lease, and but for the promise they would not have executed the written lease. Therefore, argue appellees, the oral agreement comes within the terms of Subdivision 14.

Appellant takes the position that such oral promise, if it was made, violates the Statute of Frauds and under the parol evidence rule cannot be considered even for venue purposes.

It is well established that the parol evidence rule is a substantive rule of law, not merely a rule of evidence. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32. It is also established that the Statute of Frauds does not require that the consideration in a contract for the sale of realty be expressed in writing. Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, 257. However, the latter rule is subject to some qualifications. In Hubacek v. Ennis State Bank, supra, our Supreme Court, though it declined to apply the parol evidence rule to the particular facts of that case, did approve the test laid down in the Restatement of the Law of Contracts, Vol. 1, Sec. 240:

“(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
“(a) is made for separate consideration, or
“(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.”

In the case now before us there was not a separate consideration for the oral agreement. Appellees themselves say that the oral promise was a part of the consideration for the written lease.

Further, the oral agreement was not such an agreement as might naturally be made as a separate agreement by parties situated as were appellees and appellant. This is so because, if we accept appellees’ present viewpoint, the effect of the oral agreement was to convey to appellees an interest in real estate, namely, an oil well lease, the Pearl Morris lease, and a royalty interest in oil produced from said lease.

The oral agreement relied on by appellees is inconsistent with and contradictory of the provisions of the written lease executed by appellees. We quote from the written lease:

“5. Lessee is hereby granted the right to pool or unitize this lease, the land covered by it or any part thereof with any other'land, lease, leases, mineral estates or parts thereof for the production of oil, gas, or any other minerals. Units pooled for oil hereunder shall not exceed forty (40) acres plus a tolerance of ten per cent (10%) thereof, * * *. Lessee shall file written unit designations in the county in which the premises are located. Such units may he designated either before or after the completion of the wells, * * (Emphasis ours.)

It will be noted from the above quotation that appellant was given the right to pool the 10-acre lease with “any other land., leases,” etc. Appellant was not required to pool appellees’ 10 acres with 30 acres out of the Pearl Morris tract. Appellant was not even required to designate the units constituting the pool until after completion of the well. We think the oral agreement wholly fails to meet the test stated in the Restatement of the Law above quoted.

But we need not rest our decision on the Statute of Frauds or the parol evidence rule. A study of appellees’ petition as a whole convinces us that appellees have not alleged a suit involving land as contemplated by Subdivision 14, Art. 1995, V.A. C.S. In our opinion they have alleged a suit for money damages for breach of contract.

The only allegation in appellees’ petition which lends any support at all to appellees’ present contention that this is a suit for the recovery of lands is this: “* * * the undersigned own an interest in said well or the royalties produced therefrom * * But nowhere in the petition do appellees ask the court to award them any title or interest in the well on the Pearl Morris tract nor do they ask that one-fourth of the royalty produced in the future from the well, whatever it may be in volume of oil or value, be allocated to them. They do not sue in trespass to try title or ask judgment for recovery of title, or to remove encumbrances, or to quiet title, or to prevent or stay waste on lands.

- What they sue for is a present judgment for a definite sum of money — $17,257.50— which they allege is the probable value of future oil royalties which they would probably receive over a period of the next fifteen years if appellant had not breached his oral agreement to pool their 10 acres with the 30 acres out of the Pearl Morris tract on which the well is located. They pray for the appointment of a receiver ■“whereby there will be funds available for satisfaction of the Plaintiff’s damages.” Appellant’s. Points 12 to 15 inclusive are sustained.

Since the pleadings and the evidence in this case do not bring it within any of the exceptions of Article 1995, V.A.C.S. relied on by appellees the judgment is reversed and remanded to the trial court with instructions to the trial court to transfer appellees’ cause of action as to appellant Graham to Wichita County, Texas, for trial.

Reversed and remanded.


author: MURRAY, Chief Justice.

text:
    Charles H. SMITH, Jr., Appellant, v. ANNA-MANNA, INC., Appellee.
    No. 14299.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 9, 1964.

      Evans & Egger, San Antonio, for appellant.
    Lagerquist, Shaw & Davis, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the County Court at Law No. 2 of Bexar County, Texas, by Charles H. Smith, Jr., against Anna-Manna, Inc., seeking to recover the possession of a freezer or, in the alternative, the value of same, alleging wrongful possession by defendant. Defendant alleged it held possession of the freezer by virtue ■of having exercised its right of re-possession and foreclosure under a chattel mortgage executed by plaintiff’s wife without his joinder. Defendant claimed the mortgage to be binding upon the plaintiff on the ground that the mortgage was given to secure an indebtedness for necessities of the wife and family and, in the alternative, of .agency or ratification by plaintiff. The case was tried to the court without a jury and judgment rendered that plaintiff take nothing, and that defendant have judgment on its counterclaim in the sum of $139.26, .against which plaintiff should be credited with the proceeds of the sale of the freezer. The court further found that the defendant Rad foreclosed its lien and was entitled to ■sell the freezer at public or private sale. From that judgment Charles H. Smith, Jr., lias prosecuted this appeal.

Plaintiff’s first contention is that the court ■erred in concluding as a matter of law that the wife could execute a valid mortgage upon the freezer and bind the community estate of herself and husband, without the joinder of her husband.

The law covering the marital rights of the wife was materially changed by the Acts of 1963, 58th Leg. p. 1188, Chap. 472, Vernon’s Ann.Civ.St. arts. 4614, 4618, 4621, 4624, 4626. But as the transaction here involved took place prior to these amendments we need not consider them. Art. 4619, Vernon’s Ann.Civ.Stats., provides in effect that only the husband can dispose of the community property of himself and wife, unless the husband has abandoned the wife and his whereabouts are unknown. There is no intimation here that the wife, Blanche L. Smith had been abandoned by her husband, or that he was not in a position to exercise supervision over and act as head of the family. Speer’s Marital Rights in Texas, Vol. 2, § 568, p. 254, § 569, p. 256. It is only where the husband has abandoned his wife, is confined in the penitentiary, has become insane or otherwise lacks legal capacity, that the wife can dispose of the community property.

Appellee contends that inasmuch as the chattel mortgage here involved was given to secure the purchase of food for the family, the wife was authorized to execute it without the joinder of her husband, and in this connection cites the case of Oliver H. Ross Piano Co. v. Walker, Tex.Civ.App., 111 S.W.2d 1165. This case goes no further than to hold that where a piano was a necessity for the wife and she purchased the piano and executed a mortgage for the purchase price thereof, she was within her authority. That case is distinguishable from the case at bar in that the chattel mortgage was given to secure the payment of the purchase price of the piano. When the piano became community property of the husband and wife, it was already under mortgage executed by the wife. The effect of this was that the superior title to the piano was never conveyed to the husband and wife. But here we have the case where the freezer was fully paid for and a part of the community property of appellant and wife, and where the wife gave a chattel mortgage not for the purchase price of the freezer, but to secure the purchase price of food. The freezer being the community property of appellant and his wife, he alone could place a mortgage upon it to secure the purchase price of other commodities, with certain exceptions which do not exist here. The mortgage did not relate in any way to the purchase price of the freezer. Speer’s Marital Rights in Texas, Vol. 2, 4th Ed., § 572, p. 259; 30 Tex. Jur.2d § 10, p. 20, § 11, p. 21. “During coverture the common property of the husband and wife may be disposed of by the husband only; * * Art. 4619, Vernon’s Ann.Civ.Stats. The mortgaging of personal property is a disposition in part of the title thereof. Glens Falls Insurance Co. v. Yarbrough, Tex.Civ.App., 369 S.W.2d 640; Murchison v. Caruth Building Service, Tex.Civ.App., 369 S.W.2d 380, Ellis v. City of San Antonio, Tex.Civ.App., 341 S.W.2d 508.

Appellee contends further that appellant had authorized the mortgage of the freezer, or had ratified his wife’s action in doing so. We do not agree. There is no evidence of probative force to show that the husband had either authorized or ratified the action of his wife in placing a chattel mortgage upon the freezer.

The chattel mortgage being void because executed only by the wife without the j oin-der of the husband, the action of appellee in repossessing the freezer was illegal, and the trial court committed reversible error in not so holding.

The judgment of the trial court is reversed and the cause remanded for further action not inconsistent with this opinion. The costs of this appeal are taxed against ap-pellee.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    WALLACE INVESTMENTS, INC., Appellant, v. H. W. BLACKSTOCK et al., Appellees.
    No. 14409.
    Court of Civil Appeals of Texas. Houston.
    Dec. 10, 1964.

      McLeod, Mills, Shirley & Alexander, and Preston Shirley, Galveston, for appellant.
    Nowlin Randolph, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment of a district court of Harris County, Texas, denying a plea of privilege.

This litigation originated as a trespass-to-try title suit. An amended petition was thereafter filed by. which, the nature of the suit was changed into one seeking damages for infringement of the plaintiff’s asserted riparian rights in Taylor’s Lake and Taylor Bayou and for injunction to prevent further damage. By a second amended petition North Clear Lake Development Corporation and Wallace Investments, Inc. were made parties defendant. In the third amended petition other parties plaintiff appeared and, in addition to the cause of action for damages and injunction for the alleged injury to riparian rights previously pled, a fuller statement of the facts relied on to establish their riparian rights in Taylor Lake and Taylor Bayou was set out, as well as the nature of appellee’s adverse claim, and an entirely new set of facts was alleged for the purpose of pleading a cause of action for damages for abuse of civil process.

. All parties defendant are domiciled in Harris County/ Texas, except Wallace Investments, Inc., which filed a plea of privilege to be sued' in Dallas County, Texas.

By the third amended petition plaintiffs have combined into one suit two separate and distinct causes, of action, which might be severed, in the discretion of the trial court, on proper motion. There is no one “primary and ultimate purpose” or “ultimate or dominant purpose” of the suit, the prime consideration in determining venue under Subdivision 14, Art. 1995, Vernon’s Ann.Tex.Civ.St. Phillips Petroleum Co. v. Mecom, Tex.Civ.App., 375 S.W.2d 335; Texaco, Inc. v. Gideon, Tex.Civ.App., 366 S.W.2d 628.

This suit must be considered as having two counts. One is for the dominant purpose of establishing in the plaintiffs riparian rights in Taylor Lake and Taylor Bayou and, incidentally, for injunctive relief and damages. The other is for the purpose of securing damages for the alleged abuse of civil process.

Riparian rights are incidental to the ownership of riparian lands. Humphreys-Mexia Oil Co. v. Arsenaux, Tex.Civ.App., 244 S.W. 280, aff’d 116 Tex. 603, 297 S.W. 225, 53 A.L.R. 1147; Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284, L.R.A.1916A, 504.

To maintain venue in the county of suit under Subdivision 14 of Art. 1995, V.A. T.S., the plaintiff must show that the nature of the suit concerns land in one or more of the five particulars set out therein, and that the land, or part thereof, is in the county of suit. It is not necessary to show by proof that a cause of action in fact exists. The nature of the suit is a question of law to be determined from the allegations of the petition. Lake v. Reid, Tex.Civ.App., 252 S.W.2d 978.

To establish these rights under the facts of this case, appellees must remove the cloud cast upon their claim of ownership of lands adjacent to Taylor Lake created by the “correction deed” into Clear Lake Development Corporation. Blair v. Archer County, 145 Tex. 102, 195 S.W.2d 348; Texaco, Inc. v. Gideon, Tex.Civ.App., 366 S.W.2d 628. They have sufficiently alleged a cause of action to quiet title. Venue of such an action lies in the county in which the land is located. Mecom v. Gallagher, Tex.Civ.App., 192 S.W.2d 804, error ref., n. r. e.

The location of these waters in Harris County is established by evidence. It might well be argued that the ultimate purpose of this count in the petition was to obtain injunctive relief against future damage to plaintiffs’ riparian rights, in which event venue would also lie in Harris County by virtue of Art. 4656, V.A.T.S. However, -since the case relates to lands or rights, appurtenant to lands, it cannot be classified as a suit purely for injunctive relief and is not governed by Art. 4656. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417.

Since the District Court of Harris County properly acquired venue of this suit as to one count, it has venue of the other count, in order to avoid a multiplicity of suits, in the absence of any contention that there was an improper joinder of causes of action, and that the suit for damages was joined with the suit over riparian rights fraudulently to deprive appellant of its personal privilege to litigate it in the county of its domicile. Parkhill Produce Co. v. Pecos Valley Southern Ry. Co., Tex. Civ.App., 348 S.W.2d 208; Pecos Valley Southern Railway Company v. Parkhill Produce Company, 163 Tex. 88, 352 S.W.2d 723.

The judgment of the trial court is affirmed.


text:
    Donald CHERRY, Appellant, v. Leatha CHERRY, Appellee.
    No. 14387.
    Court of Civil Appeals of Texas. Houston.
    Dec. 3, 1964.

      John P. Spiller, Houston, for appellant.
    James J. Shown, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment entered in a divorce suit. No complaint is made of that portion of the decree awarding a divorce to appellant.

It is appellant’s contention that the trial court abused its discretion by awarding custody of the minor children of the parties to appellee, “subject to the right of cross-plaintiff (appellant) to have said children with him and in his home each week from Friday afternoon after 5:00 p. m. until 7:00 p. m. Sunday evening,” because (1) the preponderance of the evidence shows appellee to be morally unfit and mentally unstable, and (2) the effect of the order is to divide the custody of the children between the parents.

The case was tried to the court without a jury and no findings of fact were requested or filed. The parties were parents of three children, a girl nine years of age, and boys five and three years of age. The trial court is properly vested with broad discretion in determining where the custody of minor children should be placed, and in exercising this discretion his principal objective is to promote the welfare and best interests of the children. Vol. 20, Tex.Jur.2d, Divorce and Separation, § 312 et seq. Nothing would be added to the jurisprudence of this State by summarizing the testimony, but from our study of the record as a whole we are unable to say that the trial court abused his discretion in awarding custody of these children to their mother. Swift v. Swift, Tex.Civ.App., 37 S.W.2d 241; Rousseau v. Rousseau, Tex.Civ.App., 268 S.W.2d 556; Moore v. Moore, Tex.Civ.App., 213 S.W. 949; Redwine v. Redwine, Tex.Civ.App., 198 S.W.2d 472.

In numerous cases the courts have condemned dividing the custody of children between the parents as being contrary to the best interests of the children. Tedder v. Bloyd, Tex.Civ.App., 283 S.W.2d 409; Bronner v. Bronner, Tex.Civ.App., 278 S.W.2d 530. However, where one parent is granted custody, the other parent, except in unusual circumstances, is granted visitation rights. It has been suggested that ordinarily when a divorce is granted the custody of children of tender years should be granted to the mother, if she be a fit and proper person, who should have full authority, subject to the court’s order, over the children and “who should he held responsible for their best interest, with suitable visiting privileges allowed at reasonable times for others.” Bronner v. Bronner, Tex.Civ.App., 267 S.W.2d 577.

There are decisions to the effect that reasonable access by a parent to his children is a right given by law and exists even though not specifically granted by the divorce decree. Hays v. Hays, Tex.Civ.App., 123 S.W.2d 968; Dickinson v. Dickinson, Tex.Civ.App., 173 S.W.2d 549; Bantuelle v. Bantuelle, Tex.Civ.App., 195 S.W.2d 686. Ordinarily a parent has a right to see his child at all reasonable times and in a reasonable manner. Hays v. Hays, Tex.Civ.App., 123 S.W.2d 968; Penn v. Abell, Tex.Civ.App., 173 S.W.2d 483.

The practice of defining visitation rights in the decree is to be commended since it reduces a possible cause of conflict between the parents after divorce. Appellant is not complaining that his right of visitation is unduly restricted. General custody was clearly granted to appellee.

Appellant is not required to take and support the children during the visitation times permitted. We are not disposed to hold as a matter of law that liberal visitation periods constitute divided custody, nor do we hold that under no circumstances can a trial court divide the custody of children between their parents. In making the order in question the trial court did not abuse his discretion.

Appellant complains of that portion of the decree requiring all of the community property, including real property, to be sold and the proceeds placed in a trust fund for the use and benefit of the minor children. It has been held that such a provision violates the statute providing that neither party to a divorce action can be compelled to divest himself of title to realty. Mayo v. Mayo, Tex.Civ.App., 268 S.W.2d 495; Phillips v. Phillips, Tex.Civ.App., 203 S.W. 77. In this case, however, this provision of the judgment was suggested hy appellant and agreed to by ap-pellee. A supplement to the statement of facts in narrative form, approved by the trial court after counsel for appellant refused- to approve it, reflects that this suggestion was made to the court in chambers in the presence of all parties, their attorneys, and the court, and that judgment was entered by the court pursuant to this suggestion and agreement. Appellant is estop-ped to complain of this provision of the judgment. Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Overton v. Ragland, Tex.Civ.App., 54 S.W.2d 240, err. dism.; Whitehead v. Traders & General Ins. Co., Tex.Civ.App., 128 S.W.2d 429.

The judgment is affirmed.


text:
    N. A. ZALTA et ux., Appellants, v. HOUSTON TRANSIT COMPANY et al., Appellees.
    No. 14423.
    Court of Civil Appeals of Texas. Houston.
    Dec. 10, 1964.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Blake Tartt and Tom Connally, Houston, for appellants.
    Wyatt H. Heard and Michael S. Moehl-man, Houston, and Baker, Botts, Shepherd & Coates, Houston, of counsel.
   COLEMAN, Justice.

This is a suit for damages for injuries sustained in an automobile-bus collision. Based on jury findings of primary negligence and contributory negligence, a judgment was rendered for the defendant.

On October 15, 1960, at about 5:00 p. m. during the evening rush hour, appellant was driving her automobile in a westerly direction in the curb lane on the four-lane Capitol Avenue bridge in downtown Houston. The street was 44 feet in width and was dry. There was a line of vehicles in the inner west-bound lane extending back from a traffic light where Capitol Avenue turns into Memorial Drive. The cars near the light were stopped. There were no cars ahead of appellant’s car in the curb lane. Appellee’s bus was following appellant’s car at a distance variously estimated as 20 to 50 feet. The car and the bus were traveling at about the same speed, estimated as between 10 and 30 miles per hour. The curb lane of Capitol Avenue turns in the direction of a police station and is not controlled by the traffic light.

As appellant neared the center of the bridge, she veered toward the center lane for the purpose of changing lanes at which time a truck ahead of her, but in the lane next to the centerline, stopped, and appellant then made an abrupt stop. Appellee bus driver applied his brakes, but failed to stop before hitting appellant’s car with enough force to propel it into the truck ahead of her. After the collision the bus was about one foot from the right curb of Capitol Avenue.

In making this summary of the evidence only that testimony supporting the judgment is considered where conflicts occur.

The jury found that the bus driver was negligent “in failing to properly retard his forward motion,” and that such negligence was a proximate cause of the collision. The jury also found that appellant failed to keep a proper lookout and that such negligence was a proximate cause of the collision. The jury found that appellant brought her car to a sudden stop, but failed to find this action constituted negligence. In answer to other issues, the jury failed to find that the bus driver was following too closely, or that appellant drove her car from the curb lane into the lane next to the center line without first ascertaining whether such movement could be made with safety. The jury also answered, “We do not” to an issue inquiring whether appellant brought her automobile to a stop partly in the center lane and partly in the curb lane.

The trial court refused to sustain appellant’s motion to disregard the answers of the jury to the “look-out” issues. In this motion appellant pointed up her contentions that there was no duty to maintain a lookout to the rear under the circumstances and that there was no evidence to sustain the finding that the failure to keep a proper look-out was a proximate cause of the collision. These points are also found in the amended motion for new trial. In the amended motion appellant also presented her contention that the evidence was insufficient to sustain the jury’s answers to the two look-out issues and that those answers were contrary to the great weight and preponderance of the evidence. These points are properly preserved under the tests set out by Chief Justice Robert W. Calvert in his article, “No Evidence and Insufficient Evidence Points of Error,” 38 Texas Law Review, p. 361 et seq.

Appellant testified that she did not look in her rear-view mirror and did not see the bus prior to the collision. There was evidence that she swerved to her left to enter the line of traffic nearest the center line of the street, and that at the time of this maneuver the first few cars in that line of traffic had already stopped for the traffic light and the other cars were pulling to a stop. Because there was not sufficient room for her to enter the line of traffic, she was forced to make an abrupt stop without being able to clear the curb lane.

The jury could have concluded from the evidence in the record that had appellant been keeping a proper look-out to the front, she would have realized that she would not be able to enter the lane of traffic next to the center line and that had she not attempted this change of course, it would not have been necessary for her to make the abrupt stop. It might, also, have reasoned that, Raving turned to the left, at the time the truck stopped, appellant was in a position such that she necessarily had to stop abruptly to avoid a collision with the truck, and, therefore, was not negligent in stopping. If her non-negligent stop was a cause in fact of the collision and the stop was made necessary by her negligent failure to maintain a proper look-out, that negligence was a proximate cause of the collision. Edwards v. Houston Transit Co., Tex.Civ.App., 342 S.W.2d 787, error ref., n. r. e.

Before appellant attempted to turn her automobile to the left, she was under the duty to look to the rear to ascertain whether the movement could be made safely. Langham v. Talbott, Tex.Civ.App., 211 S.W.2d 987, writ ref., n. r. e.; Beasley v. Baker, Tex.Civ.App., 333 S.W.2d 212; Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116, writ ref., n. r. e.; Scott v. McElroy, Tex.Civ.App., 361 S.W.2d 432, writ ref., n. r. e. The answer made by the jury that appellant’s failure to keep a proper look-out to the rear was negligence is supported by evidence having probative force. A more difficult question arises when determining whether such negligence was a proximate cause of the collision. The jury found that the bus was not following too closely and, under the testimony of the bus driver, the bus was about 50 feet behind appellant. The jury also found that the bus driver’s failure to properly retard the forward progress of the bus was a proximate cause of the colisión. While there may be more than one proximate cause of an event, this finding must mean that there would have been no collision had the bus been stopped properly. The term “proximate cause” was defined by the trial court in his charge:

“By the term ‘proximate cause’, as used in this charge, is meant a cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary care, and prudence, in the exercise of ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.”

From the jury verdict and the evidence, it is evident that once appellant had begun her turn to the left she was in a position where she had to stop suddenly. There is no reasonable connection between the stop and her failure to look to the rear unless the jury believed that she had looked to the front and realized that she might not be able to break into the line of traffic to her left, but, nevertheless, drove in that direction, knowing that she might be required to stop suddenly. Under such circumstances it reasonably might have been anticipated that one following at a safe distance would fail to stop in time to avoid a collision. It would be reasonable to assume that a person of ordinary prudence, in the exercise of ordinary care would not have pursued such a course had he known that a bus followed him at a distance of some 20 to SO feet.

One driving during the peak hours of metropolitan traffic may well find it necessary to change traffic lanes quickly, and sudden stops in the relatively slow moving lines of traffic are commonplace, but these matters only point up the necessity for extra vigilance while driving under such conditions. The jury has found both parties to this collision negligent. Our examination of the evidence convinces us that such findings were fully supported by competent evidence.

In view of our disposition of this case, it is not necessary to discuss appellee’s cross-point of error.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Isaac Delma FLUITT, Appellant, v. VALLEY STOCKYARDS COMPANY, Appellee.
    No. 14300.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1964.
    Rehearing Denied Dec. 16, 1964.

      Oliver & Oliver, San Antonio, for appellant.
    Foster, Lewis, Langley & Onion, San Antonio, Martin P. Ferrero, Greenwood & Russell, Harlingen, for appellee.
   BARROW, Justice.

Valley Stockyards Company recovered a. judgment for the value of sixty-five head of cattle converted by Isaac Delma Fluitt,, d/b/a Union Livestock Commission Company, San Antonio, Texas. On November 7, 1960, Will Ed Wiley purchased the cattle from Valley Stockyards Company at its. livestock yard in Mercedes, Texas, and' gave his personal check as payment. The-following day Wiley consigned the cattle to Fluitt in San Antonio, and Fluitt resold' them a few days thereafter to persons not involved herein. Wiley’s check was not paid by the bank on which it was drawn and Valley Stockyards asserted that therefore-title to the cattle never passed to Wiley under the terms of the sale.

The primary question presented by this-appeal is whether a fact issue was raised as-to whether title in the cattle had passed to Wiley. If not, Fluitt converted the cattle when he resold them. The trial court, after a full trial on the merits, refused to submit: an issue to the jury on this proposition although several issues were requested by Fluitt.

The applicable rule was recently-restated by the Supreme Court in another case involving Wiley and Valley Stockyards. In Valley Stockyards Company v. Kinsel, 369 S.W.2d 19, Tex.1963, it was said:

“Respondent relies upon the general rule that where a cash sale is involved and personal property is delivered in exchange for a check, there is a presumption that the parties did not intend that title to the property should pass until the check was honored by the drawee bank. (Citing cases.) This presumption, however, is not conclusive but may be rebutted. If a jury could conclude from the evidence now in the affidavit and deposition form that the delivery of the cattle was made with the intention of passing title to Wiley at that time, it would necessarily follow that Valley Stockyards could not be held liable as a converter by purchasing the cattle from Wiley.”

The factual background of this case is somewhat similar to that in Kinsel, supra, although Valley Stockyards here occupies the position of Kinsel in the first case. The evidence in this case relative to the actual sale is significantly different, in that, contrary to the verbal sale by Kinsel to Wiley, a written invoice or bill of sale was given by Valley Stockyards to Wiley, which contains the following recitation:

“Customers purchasing and paying for livestock through this company by check or draft, expressly agree that title does not pass to said purchaser, but is retained by owner until the fund is actually received on the check or draft. Such check or draft is accepted only to the rules and practices of any bank in which it may be deposited for collection, and is accepted for collection only as an accommodation to the maker and does not constitute a payment for animals until remittance received thereon. The property purchased on condition stated above.”

It is seen that under this written agreement, Valley Stockyards retained title in the cattle until the check was paid. There is no allegation or proof of fraud, accident or mistake and therefore this unambiguous recitation is controlling. Aero-Gas Refining Co. v. Fisk Tire Co., Tex.Civ.App., 137 S.W.2d 191, writ ref.; Alamo Lumber Co. v. Fahrenthold, Tex.Civ.App., 58 S.W. 2d 1085, writ ref.; 23 Tex.Jur.2d, Evidence, § 353. Further, there is no allegation to estop Valley Stockyards from relying on this provision of the memorandum of sale.

A similar situation was presented in John Clay & Co. Livestock Commission v. Clements, Fifth Circuit, 214 F.2d 803, where the invoice evidencing the sale contained substantially the same recitation. It was there said: “It would seem that, under Texas law, the sales were conditioned on payment of the drafts and did not pass title until the drafts were paid, unless there were waivers of that condition.” See also, Berlowitz v. Standley, 117 Tex. 362, 5 S.W.2d 963, 1963. The distinction made by the recitation was also recognized in Valley Stockyards Co. v. Kinsel, supra.

Although the invoice contains the marked out notation “Chgd.” in addition to the remaining notation “Pd ck.” the evidence is undisputed that Wiley paid Valley Stockyards for the cattle with his personal check drawn on the Security State Bank of Pharr, Texas. Wiley’s check was not paid and therefore title did not pass to Wiley. The trial court did not err in refusing to submit Fluitt’s requested issues on this proposition.

Fluitt also complains of the trial court’s refusal to submit an issue as to whether Valley Stockyards failed to present Wiley’s check to the bank within a reasonable time. It is our opinion that this issue was properly refused. There was no evidence that Valley Stockyards did anything with Wiley’s check other than to handle it in due course of its business. It was deposited for collection with Valley Stockyard’s bank at Mercedes, along with other business checks, on November 9. Valley Stockyards had no information to cause it to treat this check in any other way than in due course. Further, there is no evidence that the check would have been paid if received any sooner. The bookkeeper for Fluitt testified that about noon on November 8, Wiley called her and requested her to wire him an advance on the sales price of the cattle. She wired $6,980.00 to Wiley’s bank. Wiley absconded to British Honduras with all the money.

Fluitt asserts that the documents reflecting the transaction between Wiley and Valley Stockyards were hearsay as to him and were improperly admitted into evidence. We overrule this point. The invoices reflecting this sale by Valley Stockyards to Wiley constitute a necessary part of the cause of action and the hearsay rule is inapplicable. McCormick & Ray, Texas Law of Evidence, § 795. Furthermore, these records were shown to be a part of the business records regularly kept by Valley Stockyards and were therefore admissible. Art. 3737e, Vernon’s Ann.Civ. Stats.

Mr. Phil Hoge, manager of Valley-Stockyards, was qualified to testify as to-the market value of the cattle in Mercedes-There was other evidence which showed that the San Antonio market was stronger than that at Mercedes. Furthermore, the-admission of this testimony is harmless in-, that this same evidence was introduced without objection from an employee of Fluitt. Error is not shown in the examination of Hoge relative to the ownership-of the cattle. This issue was raised by Fluitt and he cannot now complain of same..

The judgment of the trial court is affirmed.

      . Issues requested by Fluitt:
      “Do you find from a preponderance of the evidence that the Valley Stockyards Company charged the account of Will Ed Wiley for the value of the 65 head of cattle delivered by it to him? * * *
      “Do you find from a preponderance of the evidence that the Valley Stockyard Company sold 65 head of cattle to Will Ed Wiley on his credit and charged him for same and thereby passed title to said cattle to him? * * *
      “Do you find from a preponderance of the evidence that the Valley Stockyards Company accepted Will Ed Wiley’s check on Security State Bank of Pharr, Texas, in payment for the 65 head of cattle, being the cattle. alleged to have been converted by the defendant herein?”


author: BELL, Chief Justice.

text:
    Isaac DILLINGHAM, Appellant, v. AMERICAN SECURITY LIFE INSURANCE COMPANY, Appellee.
    No. 14465.
    Court of Civil Appeals of Texas. Houston.
    Dec. 10, 1964.

      Levy, Levy, Levy & Schwab, Ed Schwab, III, Galveston, for appellant.
    John B. Henderson, Jr., Marshall, Joe Bailey Humphreys, Dallas, for appellee.
   BELL, Chief Justice.

Appellant was the owner of a policy of insurance covering loss occasioned by expenses incurred if he was hospitalized because of illness or injury. The policy also covered doctors’ bills for certain specified operations and for minor injuries where there was not confinement in a hospital.

Appellant was severely burned in September, 1962, and was taken to John Sealy Hospital in Galveston. He was confined to the hospital for about 90 days. Extensive skin grafts were made during his confinement. The cost of hospitalization, including the skin grafts, was $1,664.10. Appellant’s claim under the policy was denied by appellee because, it contended, the policy did not cover indemnity for loss occasioned by hospitalization where the hospital facilities were furnished by the State.

The trial court, after trial without a jury, denied appellant recovery on the theory that the policy did not cover loss where hospital facilities were furnished by the State and the hospital facilities were furnished by John Sealy Hospital, which is a State of Texas agency.

The limitation and exclusion contained in the policy which is relied on by appellee is Part 8, Paragraph 1 of the policy and reads as follows:

“Limitations and Exclusions
“1. This policy does not cover hospitalization for nervous or mental disorders, rest cure, diagnosis, syphilis or venereal disease, dental treatment, loss when hospital facilities are furnished by the City, the state, the Federal government or Veterans Administration * *

There is no dispute in the evidence and if the loss comes within the terms of the policy, appellant is entitled to recover $750.-00.

The court found the services were not furnished by John Sealy Hospital gratuitously but appellant had been billed for the services and had made some payments to the hospital. We construe this to mean he was obligated to pay for the services.

Appellant’s position that the loss for hospital expenses is covered even though the limitation or exclusion provides it does not cover “loss when hospital facilities are furnished by * * * the state * * * ” is based upon three contentions:

1. He says the provision only applies if the facilities are furnished without charge.

2. He would limit the exclusion from coverage where a state agency furnishes the facilities only if they were furnished in treatment of nervous or mental disorders, syphilis, a venereal disease, or in connection with rest cure, dental services or diagnosis.

3. In any event he says the policy is ambiguous and it should be construed most favorably to the insured and when this is done it means only that if the State furnishes the hospital facilities and makes no charge there will be no compensation.

It is settled law that in construing an insurance contract the intent of the parties is to be ascertained from the contract itself if it is unambiguous. Too, it will be construed most favorably to the insured if there is doubt about its meaning. However, we cannot make a contract for the parties. We must, however, consider the contract from its four corners in ascertaining the intent.

There was no pleading in the trial court that the contract was ambiguous and no evidence, other than the contract itself, introduced as to its meaning. What appellant is really contending is not that the contract is ambiguous in the usual sense of that term, but that where the contract on its face is susceptible of more than one construction that one will be adopted that favors the insured.

On the face of the policy in bold type at a place above the insuring clause is this statement:

“This policy provides indemnity for loss due to hospital confinement and for other specified losses resulting from accidental bodily injury, sickness or childbirth, to the extent herein limited and provided.1’ (emphasis ours unless otherwise stated)

Then follows the insuring clause, which reads as follows:

“AMERICAN SECURITY Life Insurance Company Marshall, Texas Herein Called Company
“HEARBY INSURES each of the persons named as Insured in the Schedule below, subject to all provisions and limitations hereinafter contained, and will pay the indemnities provided herein, for loss caused by hospital and other specified expense, resulting (a) from accidental bodily injury * *

Following the listing of appellant and his wife as named assureds is Part 1, covering specifically enumerated indemnities for certain hospital services and it, except for enumeration of the hospital services and the indemnities therefor, reads as follows:

“If the Insured shall be necessarily confined within a recognized Hospital as a resident patient on account of such injury or such sickness, the Company will pay the Insured * * * for the following items of hospital expense actually incurred but not to exceed the amounts stated below.”

It will be seen that the very first part of the policy in bold face type states the policy provides for indemnity for loss due to hospital confinement “ * * * to the extent herein limited and provided.” It gives notice that it is not an indemnity as to the ■cost of all hospital confinement. It does not at this point state specifically the nature of the limitations but it shows there are limitations. ‘ ■

Immediately following is the insuring -clause that insures appellant against certain loss, subject to the provisions and limit tations contained in the policy. Again, there is not an unqualified undertaking, but it is specifically stated that the indemnities provided for are subject to limitations and provisions contained in the policy.

There follows Part 1 covering “Hospital Expense Indemnity-.” It provides the Company will pay insured specified amounts for enumerated hospital services rendered when the insured is “necessarily confined within a recognized hospital.” While the statements “subject to the provisions and limitations hereinafter contained” or “to the extent herein limited and provided” do not appear in Part 1, the term “recognized Hospital” is a term of limitation. It at least shows the expenses of just any hospital are not contemplated. We are unable to find any definition in the policy of the term. The question arises then, What is meant by the term? By whose determination is it to be decided .a particular hospital is a recognized one? The only provision of the policy that will give definite meaning to the term is the limitation or exclusion above quoted. It excludes hospitals operated by the State, City, or Federal governments or the Veterans Administration. When this is read with Part 1, the term “recognized Hospital” means any hospital recognized by the policy and all hospitals are necessarily recognized except those specifically excluded.

We analyze these various provisions to demonstrate there is nothing in any of them that purports to be an unqualified indemnity for all hospital expenses no matter by what hospital the services are rendered. There is nothing inconsistent between the provisions and the exclusions.

The limitation itself clearly does not cover indemnity for loss where the hospital facilities are “furnished” by the State. The controversy concerning the meaning of the limitation itself arises over the meaning of the term “furnished.” Appellant says it means furnished or made available without charge. Appellee contends it means where the facilities for which the expense was incurred were made available by the State, without regard to a charge for their use. Both parties concede there are no cases defining the term “furnished” that are helpful and we have found none.

We think the term is generally used to mean supply, provide or make available. While the term is used variously as applied to particular situations, in none of the definitions given is the term used to mean make available, provide, or supply without charge or compensation. In fact, the definitions in no way relate the meaning of the term to compensation or not.

. Here the policy is clearly one of indemnity against loss suffered by the assured by reason of hospital expenses he pays or is obligated to pay in certain hospitals. If the hospital facilities are furnished without charge, then there is no loss to the insured by reason of any hospital expense. To give the meaning to the term “furnished” contended for by appellant would render meaningless the term “loss” as used in the quoted exclusion.

We are also of the view that the limitation against indemnity when the facilities are furnished by the State is not confined to the situation where the assured was hospitalized for treatment of the diseases and disorders enumerated in the first part of the limitation.

We do not think indemnity for doctors’ bills is in anywise dependent on the fact of hospitalization or in case of hospitalization upon the type of hospital serving the facilities. However, here it is admitted that the doctors’ bill that could be recovered is insignificant in amount,

The judgment of the trial court is affirmed.


text:
    Carolina S. MARTINEZ, Appellant, v. Jose MARTINEZ, Appellee.
    No. 94.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 25, 1964.

      O. B. Garcia of Garcia & Warburton, Brownsville, for appellant.
    L. G. Mathews of Mathews & Walsh, Brownsville, for appellee.
   NYE, Justice.

Jose Martinez sued his wife Carolina S. Martinez for a divorce upon the ground of cruel treatment. The trial was before the court without the intervention of a jury and judgment was rendered granting the plaintiff-appellee a divorce. The wife, Carolina S. Martinez, has appealed. The appellant’s three points on appeal attack the sufficiency of the evidence. The ap-pellee failed to file a brief and neither party orally argued their case before the Court of Civil Appeals.

Rule 419, Texas Rules of Civil Procedure, permits the appellate court to accept as correct any unchallenged statement made by the appellant in his original brief as to the facts or the record. Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App.1949, wr. ref.). However, where the appellant refers us to sufficient facts to support the judgment for a divorce we are not bound to accept as correct the conclusions of the appellant that such facts are not sufficient to support the judgment for divorce. The facts upon which the divorce was granted are taken from the appellant’s brief and the references made by the appellant to the Statement of Facts. We have, however, read the entire Statement of Facts.

The appellee-husband alleged as grounds for divorce that the appellant-wife was guilty of cruel, harsh' and inhuman conduct and treatment which rendered living with her insupportable. He accused her of refusing to cook or properly prepare his meals after he lost his eyesight, and of cursing, abusing, slapping and hitting him; telling him that he was worthless; and that she treated him with silence and contempt. The marriage was the second for both parties, each having children by a previous marriage. There were no children born as issue of the marriage, nor was there community property subject to division. The parties were married in June, 1957, and lived together as husband and wife until June, 1963. Shortly after their marriage the appellee was admitted to a hospital in Harlingen where he stayed for a year and eight months. After he was dismissed, he became blind. The husband testified that he and his wife fought all the time; that she cursed him, calling him a pimp and a son-of-a-bitch; that she never let him touch her; that his daughter prepared his meals because his wife had business elsewhere; and that he could not possibly live with .her. The daughter testified, without contradiction or objection,, that her father and the appellant fought and. that the appellant called him: “You stupid old man!”, “you animal!”, “You’re no-good !”. The appellee’s brother testified that he visited the appellee’s home two or three times a week; that the appellant and. the appellee were always fighting; that they quarrelled about the food and that the appellant cursed him. The appellee, his brother and his eighteen-year old daughter were the only parties to testify at the trial.

Appellant argues that the testimony consisted only of several isolated acts of" cruelty, supposedly consisting of fighting' between the parties; the fact that the wife-ran the husband off the home; and that the-husband finally left because she refused to-care for him. Appellant further argues that the appellee’s testimony and that of" his daughter and brother reflects on cross-examination that the quarrelling and bickering was mutual and as much the fault of’ one as the other. Appellant complains that, appellee did not testify that he did not provoke or participate in the alleged acts-of cruelty of the wife. The appellant-wife,, although present during the course of the-trial, did not testify or offer any evidence-in defense or rebuttal to the appellee’s testimony or his witnesses’ testimony. Where-one spouse hears the other testify and makes no objection nor offers any testimony on her own part or from other witnesses, there is an inference that she could not deny the testimony of her spouse. 20 Tex. Jur.2d, § 139 at 483.

Article 4632, Vernon’s Ann.Tex. Civ.St., directs that the decree of the court shall be rendered upon full and satisfactory evidence. Cruel treatment, within the meaning of Article 4629, V.A.T.S., is a relative term and may consist of innumerable acts or combinations of misconduct. Counts v. Counts, 358 S.W.2d 192 at 198 (Tex.Civ.App.1962, Dis.). The appellee was blind, his wife was away a good deal of the time, his daughter was required to look after him, and the wife used vulgar and vociferous language to him. Facts such as these would be cruelty against one person, whereas, similar facts might not be cruelty against another. Daughtry v. Daughtry, 312 S.W.2d 957 (Tex.Civ.App.1958). We are not unmindful of the rule, generally speaking, that profane and abusive language used occasionally, which does not attack the chastity of the spouse, standing alone, does not ordinarily justify a divorce. However, the reaction to various defamatory or vociferous language is strictly personal to the aggrieved spouse, and the reaction and feeling to constitute cruel treatment may be greater to one party under one set of circumstances than to another under a different set of facts. The nature, extent and the circumstances under which the acts of cruelty are committed, in order to be sufficient to constitute such cruelty as to entitle the husband to a divorce, must be determined by the peculiar facts in each case. Mobley v. Mobley, 263 S.W.2d 794 (Tex.Civ.App.1953); McAfee v. McAfee, 369 S.W.2d 669 (Tex.Civ.App.1963); Guerra v. Guerra, 327 S.W.2d 625 (Tex.Civ.App.1959). The determination as to the quantum and weight of the evidence necessary to meet the test of sufficient evidence to establish mental cruelty involves the sound exercise of broad discretionary powers of the trier of facts, subject to review by the appellate court. Alexander v. Alexander, 373 S.W. 2d 800 (Tex.Civ.App.1963).

The trial court was the judge of the credibility of the witnesses and of the weight to be given their testimony. The court had the parties before him, heard the testimony, observed their demeanor, and as a result, found appellee was entitled to a divorce. McAfee v. McAfee, supra.

We hold that the facts referred to us by the appellant, under the circumstances that existed between the parties, constitute ample evidence of probative force to entitle the appellee to a divorce from the appellant.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    The FIRST NATIONAL BANK OF CORSICANA, Texas, Appellant, v. Carrie Tatum DeFOE et al., Appellees.
    No. 4289.
    Court of Civil Appeals of Texas. Waco.
    Nov. 19, 1964.
    Rehearing Denied Dec. 10, 1964.

      Roe, Ralston & Brown, Corsicana, Wag-goner Carr, Atty. Gen., J. Gordon Zuber, Asst. Atty. Gen., Austin, for appellant.
    Mays, Jacobs & Pevehouse, Corsicana, for appellees.
   WILSON, Justice.

Appellees are the heirs of the deceased brothers and sisters of testator. Their action against appellant as trustee requires construction of a probated will, material portions of which, following specific bequests, are:

“Fourth: I give and bequeath unto sister Anna and brother Robert Tatum the remainder of my estate that I be possessed of at my death, real and personal and mixed remaining after payment of my debts, to be equally divided between the two.
“Fifth: It is my will and desire that on the decease of either of the said Robert Tatum or Anna Tatum that the one left surviving shall take all my property, real, personal and mixed.
“Sixth: And at their death, it is my desire and will for all my estate remaining at their death to be equally divided among my brothers and sisters living and the heirs of those that are dead.”

Anna Tatum predeceased her brother, Robert, who was the sole beneficiary of her duly probated will. During his lifetime Robert disposed of, sold, reinvested or otherwise changed the form of the property involved in this appeal devised by the quoted will to himself and Anna. The probated will of Robert Tatum bequeathed to appellant as trustee of a public charitable trust the proceeds and mutations of the property he disposed of during his life. Appellees sought judgment for title to the property so held by appellant.

Appellant contends the will created a conditional or defeasible fee in Robert Tatum (and his sister). Appellees’ position is that Robert and Anna Tatum were dev-isees of a life estate only, without power of disposition, and that upon the death of the survivor of them testator’s entire estate, in whatever form remaining, passed to the persons named in the sixth paragraph of the will with the right to trace the assets invested or reinvested by Robert Tatum. The trial court concluded and rendered judgment as appellees contend.

The fourth paragraph of the will, standing alone, devised a fee simple estate to Anna and Robert Tatum. Art. 1291, Vernon’s Ann.Civ.St.; McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 413.

The sixth paragraph (whether its effect be labeled as converting the estate created 'by the two preceding into a conditional or defeasible fee as in Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, 878, and Singer v. Singer, 150 Tex. 115, 124, 237 S.W.2d 600, 605, or as some other qualification of a fee simple estate such as in McMurray v. Stanley, above, where a trust was said to exist), constitutes a valid limitation as to the property undisposed of at the death of Robert Tatum.

At common law and in many American .jurisdictions the rule is that where there is a devise by language sufficient to pass the fee, a purported limitation over of so much of the property as is not disposed of by •the first taker is void as being repugnant to the grant of the fee simple estate in the first taker. See Thompson, Wills (3d ed. 1947) Sec. 355; Page, Wills (1961) Sec. 37.26, p. 640. Texas rejects this rule. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 415. After criticizing the rationale of the common law doctrine and noting that the modern tendency is to regard it as arbitrary and archaic, W. W. Allen’s exhaustive and scholarly analysis of the problems in 17 A.L.R.2d 7, 205 concludes, “Texas courts very distinctly uphold the executory limitation” over of property undisposed of by the first taker of the fee.

When the will is examined as a whole the first takers, Robert and Anna Tatum, as devisees of the fee, had complete power of disposition during their lives. Upon Anna’s death, her undisposed of property from testator’s estate was vested in fee in Robert. Robert, as survivor, there-upon likewise continued to have complete power of disposition during his life. Robert’s power of disposition was restricted, conditioned, qualified or limited to disposition effected before his death, however, by the provisions of the sixth paragraph to the effect that if at his death there was any of testator’s “estate remaining,” such remaining portion of the estate should vest as therein specified.

There was a devise to the survivor, Robert, of a fee simple title to testator’s property with a limitation over to the devisees named in the sixth paragraph of that which remained undisposed of at his death. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 414, 415; McClure v. Bailey, Tex.Civ.App., 209 S.W.2d 671, 677, writ ref. n. r. e.; Pool v. Sneed, Tex.Civ.App., 173 S.W.2d 768, 776, writ ref. w. m.; Cragin v. Frost Nat. Bank, Tex.Civ.App., 164 S.W.2d 24, 29, writ ref. w. m.; Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, 14, writ ref.; 17 A.L.R.2d 205. Cf. Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470. See Weidner v. Crowther, 157 Tex. 240, 249, 301 S.W.2d 621, 627; Singer v. Singer, 150 Tex. 115, 124, 237 S.W.2d 600, 605; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, 878; Killough v. Shafer, Tex.Civ.App., 358 S.W.2d 748; C. C. Young Memorial Home, etc. v. Nelms, Tex.Civ.App., 223 S.W.2d 302.

The first taker, Robert Tatum, was entitled to the proceeds of property disposed of by him, including those proceeds and mutations which were comprised in the assets devised in trust in his will. They were subject to his testamentary disposition, and appellees had no right to trace and recover them. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 417; Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, 15, writ ref.; Norton v. Smith, Tex.Civ.App., 227 S.W. 542, 548, writ dis.; McClure v. Bailey, Tex.Civ. App., 209 S.W.2d 671, 679, writ ref. n. r. e.; C. C. Young Memorial Home, etc. v. Nelms, Tex.Civ.App., 223 S.W.2d 302, writ ref. n. r. e.; 17 A.L.R.2d 226

The judgment is reversed and here rendered that appellees take nothing.