text:
    George Earnest THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 39241.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Ronald Waldie, Dallas, Counsel by Appointment, Ralph L. McDowell, Dallas, Counsel by Appointment, Emmett Colvin, Jr., Dallas, Appeal Counsel by Appointment, for appellant. .
    Henry Wade, Dist. Atty., Charles L. Cap-erton, John H. Stauffer and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 535d, Vernon’s Ann.P.C., for fondling; the punishment, twenty years.

The prosecutrix, seven years of age, testified that on the day in question she lived with her mother and stepfather, the appellant; that in the early morning appellant came into the room where she was sleeping with her younger sister and took her into another room, where he put a towel under her and took off her panties; that appellant then proceeded to put some vaseline on her privates with his hands; that appellant tickled her, and hit her when she began to cry; that she went into the next room and told her mother that appellant had called her a crybaby. The prosecutrix further related that appellant had committed similar acts upon her before but that she had not reported them to her mother because he had threatened to whip her if she did.

It was further shown by the state’s testimony that later in the day after the prose-cutrix had returned home from school she reported appellant’s act to her mother and was taken to the office of Dr. Robert Machen for an examination. Dr. Machen testified that he examined the prosecutrix to determine if she had been raped and he found no evidence of penetration, but the examination did reveal evidence of manipulation and redness of the private parts. The prosecutrix later in the evening reported appellant’s acts to her stepmother, who took her to Parkland Hospital, where she was examined by Dr. Hal J. Dewlett. Dr. Dew-lett testified that his examination of the prosecutrix revealed a very diffused redness of the area of the vulva.

Testifying as a witness in his own behalf, appellant denied that he placed his hands on the prosecutrix’s private parts on the day in question or that he had ever molested her in any way. He stated that he came home late that night, went to bed, and when he woke up the prosecutrix was in bed with him. He related that he told her he was not feeling well, for her to go back to her bed, and then slapped her on the buttocks and told her to go to her room.

We overrule appellant’s contention that the evidence is insufficient to sustain the conviction.

The testimony of the prosecutrix that appellant placed vaseline on her privates with his hands is sufficient to sustain the allegation in the indictment that he placed his hand against her “sexual part, to wit; the vulva * * Ball v. State, 163 Tex.Cr.R. 214, 289 S.W.2d 926. The evidence as a whole is sufficient to sustain the conviction.

In permitting the prosecutrix to testify that on prior occasions appellant had committed other acts of fondling upon her, the court did not err. The proof of such prior acts was admissible to show appellant’s unnatural attitude toward the prose-cutrix, his disposition and intent as to the particular act charged, and the probability that the act charged occurred as testified to by the prosecutrix. Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147; Hensley v. State, Tex.Cr.App., 388 S.W.2d 424.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Noel Fern SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 39406.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order revoking probation.

On June 18, 1965, appellant was convicted, upon a plea of guilty, of breaking and entering a motor vehicle and was assessed punishment at confinement in the penitentiary for three years.

Execution of sentence was ordered deferred by the court and appellant was placed on probation upon certain terms and conditions.

On August 10, 1965, a motion was filed by the state alleging that appellant had violated certain terms and conditions of the probation, and praying that the same be revoked.

On September 24, 1965, an order was entered by the court finding that appellant had violated the terms of his probation and directing that the sentence become operative. In such order the court further found that a reduction of the penalty from three years to two years should be made and ordered that the judgment be reformed and the sentence reduced to two years, to begin July 25, 1965.

From such order appellant gave notice of appeal.

No statement of facts of the evidence adduced upon the hearing accompanies the record, and there are no bills of exception.

The proceedings appear to be regular except the court’s order reducing the punishment from three to two years in the penitentiary.

Under the provisions of Sec. 7 of the Adult Probation and Parole Law, Art. 781d, Vernon’s Ann.C.C.P., in force at the time of appellant’s trial and conviction, the trial court was authorized to reduce or terminate the period of probation at any time after the probationer had satisfactorily completed two years or one-third of the original probationary period, whichever was the lesser. See: Beshear v. State, 169 Tex.Cr.R. 131, 332 S.W.2d 724.

This provision of the statute was not applicable in the present case, in which appellant had not completed two years or one-third of the probationary period at the time his punishment was ordered reduced.

The order reducing appellant’s punishment from three to two years, not being authorized by statute, was of no force and effect; however, that portion of the order directing that the sentence begin on July 25, 1965, was authorized by statute, Art. 768, Vernon’s Ann.C.C.P., and is valid.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    James Elijah BASS, Appellant, v. The STATE of Texas, Appellee.
    No. 39349.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Roy C. Hughes, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Joe K. Hend-ley, Alvin Walvoord and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for speeding; the punishment, a fine of $100.

This conviction resulted from a trial de novo, before a jury, in the County Criminal Court of Appeals of Dallas County, after an appeal from a conviction in the Corporation Court of the City of Dallas.

The jurisdiction of this court in appeals in causes originating in the Corporation Court is limited to convictions where the fine assessed exceeds $100. Art. 53, Vernon’s Ann.C.C.P.; Butler v. State, Tex.Cr.App., 363 S.W.2d 469.

The appeal is dismissed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Larry Douglas TALLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39285.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 7 days in jail and a fine of $50.

The sufficiency of the evidence to sustain the conviction is not challenged.

The state’s evidence reflects that, after midnight, Ralph Byrd and Robert L. Campbell, Patrolmen of the Texas Department of Public Safety, were in a patrol car traveling east on Texas Highway 31 toward Kilgore when they met two cars, one of which was a 1957 Dodge being driven by appellant.

The officers noticed that this car was weaving in the lane of traffic. They immediately turned in pursuit and saw the 1957 Dodge weave and go completely across the center stripe. The officers turned on the red spotlight and blinking lights of the patrol car and appellant pulled onto the shoulder of the road and stopped.

Patrolman Byrd expressed the opinion that appellant was intoxicated and testified that he based his opinion upon the manner in which he was driving ~the automobile; the fact that he was unsteady on his feet and leaned on the back of his car for support; that there was “a very prevelent smell of alcohol on his breath”; his clothing were soiled and the front of his pants was wet and smelled of urine.

Patrolman Campbell gave similar testimony.

The state’s evidence further revealed that in the car appellant was driving there was a pitcher full of beer; a glass with some beer in it; an empty beer can and a pint bottle of Hiram Walker Whiskey, about half of it gone. Also there were twenty-one 12 ounce unopened cans of Hamm’s Beer on the back seat of the car, including three six packs.

There was also testimony to the effect that the passenger riding on the front seat beside appellant was intoxicated.

Testifying as a witness in his own behalf, appellant admitted having told the arresting officers that he had drunk about ten beers, but testified that he had drunk only three; that the beer belonged to the occupant of the other car; that his pants were not wet; that he did not know where the bottle of whiskey came from and that he was not intoxicated but was “perfectly sober”.

The jury chose to accept the testimony of the patrolmen and the evidence is sufficient to sustain their verdict.

Appellant’s first claim of error is that the court erred in overruling his motion to dismiss the case for the reason that the information was not based upon a complaint filed prior to the filing of the information. Baker v. State, 159 Tex.Cr.R. 491, 265 S.W.2d 600, cited by appellant, does not support this claim of error.

The statute does not require that the complaint be filed prior to the filing of the information.

Art. 415 Vernon’s Ann.C.C.P. (Now Art. 21.22) provides:

“No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.”

There is nothing in the record to show that this statute was not complied with.

Appellant relies upon the file marks of the county clerk on the back of the complaint, sworn to on July 20, 1964, and the information.

The clerk’s file mark on the information shows “Filed — 1964 July 20 AM 10:00.” The file mark on the complaint is identical except that the time shown is 10:01.

If the file marks may be considered as evidence as to the time the instruments were filed with the clerk, such evidence shows no failure to comply with the statute which provides that the affidavit shall be filed “with the information.”

Also, though the writer did not and does not agree with such holding, this Court held in Urban v. State, Tex.Cr.App., 387 S.W.2d 396, 397, that the file mark on an indictment is hearsay and constitutes no proof.

Appellant next complains of the testimony of Patrolman Byrd to the effect that another thing he noticed about appellant at the time of the arrest was that his clothing were soiled. “It looked like maybe he had slept in ’em.”

There was no motion to have this testimony withdrawn from the jury. We see no error.

The remaining claim of error relates to the admission in evidence of the partially filled bottle of whiskey found under the seat of the car and the 21 unopened cans of beer.

The court did not err in admitting in evidence the whiskey and beer found in the car which appellant was driving, at the time of his arrest. Bedwell v. State, 165 Tex.Cr.R. 143, 305 S.W.2d 372, and cases cited.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    William Joseph BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 38853.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied March 2, 1966.
    Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

The evidence offered by the state shows that appellant was driving a motor vehicle upon a public street in the City of Mule-shoe when he was stopped by Deputy Sheriff Henderson whose attention had been attracted by the noise of squealing tires and the marks being left on the pavement.

Deputy Henderson and State Highway Patrolman Freeman, who joined him at the scene, testified that appellant was not steady in his walking and had a very strong odor of intoxicants on his breath. They each expressed the opinion that he was intoxicated.

A sample of appellant’s blood taken at a hospital with his consent was shown to contain “eighteen hundredths percent alcohol.”

Chemist and Toxicologist Eldon Straug-han expressed the opinion that the person from whom the specimen was taken was intoxicated at the time it was taken.

Appellant testified that he worked as an engineer for a television station which required him to travel from Lubbock to Clovis, New Mexico, and Muleshoe and to San Angelo; that during the afternoon he stopped in Post and drank two glasses of tap beer; that he had been traveling since about six o’clock that morning; that when he got into Bailey County, with his loaded station wagon, the right front tire blew out; that he was trying to hold his car on the road and hit a sign post; that it damaged the car, caused the tie rod to bend, and made the wheel squeak.

Appellant also admitted having had a beer in the afternoon at Fluvanna, but testified that he was not intoxicated; did not think his speech was slurred; believed that the nurse used alcohol, not acetone as she testified, to cleanse his arm for the blood taking; and that if he staggered it was because of a leg injury he received when he was a child.

Appellant’s first ground for reversal relates to the court’s charge wherein the jury was admonished: “You are not to reach a verdict by any species of lot or chance, or any sort of agreement other than your fair consideration of the evidence admitted before you, to the end that your findings may truly represent your deliberate conclusions based upon a fair consideration of the evidence under these instructions.”

Appellant objected to said charge as being upon the weight of the evidence; that it assumed that the court was of the opinion he had been proved guilty and that he would be found guilty and said instruction should be preceded by a statement: “If you should find the defendant guilty *

Appellant cites Hart v. State, 47 Tex.Cr.R. 156, 82 S.W. 652; Noe v. State, 162 Tex.Cr.R. 483, 286 S.W.2d 942; and Winfrey v. State, 84 Tex.Cr.R. 579, 209 S.W. 151.

The cited cases are authority for the proposition that an admonition to the jury in regard to the fixing of punishment must be prefaced by the statement “If you should find the defendant guilty * * * or words of like import.

The distinguishment is that the court’s instruction related to the jury’s verdict and was not directed to any particular verdict. The admonition did not apply only to the punishment to be assessed should the defendant be found guilty, but to the jury’s finding on the question of his guilt or innocence.

We do not follow the reasoning that a verdict is reached only when the defendant is found guilty.

“A verdict is a written declaration by a jury of their decision of the issues submitted to them in the case.” Art. 686 C.C.P.

Art. 693 C.C.P. provides that if the plea is not guilty the jury must find that the defendant is either “guilty” or “not guilty,” as well as to assess the punishment.

Appellant’s second claim for reversal is that the court erred in failing to instruct the jury to disregard the testimony of state’s witness Eldon Straughan for the reason that there was no evidence to show that the specimen upon which he conducted a test and the results which he reported were pertinent to the appellant, and because the witness was not shown by evidence to be qualified to render an opinion relative to the intoxication of the subject from whom the specimen was taken.

It is contended in this regard that there is no evidence to identify the specimen tested as being a specimen of blood taken from appellant. We do not agree.

Patrolman Freeman testified that he was present when the blood sample was taken and that he filled out the forms and mailed the specimen. He identified State’s Exhibit No. 2 as the container holding the blood test taken from appellant.

The Chemist and Toxicologist, Eldon Straughan, identified State’s Exhibit No. 2 as a specimen of blood which he received through the mail, “purportedly” from Patrolman Freeman, and testified:

“O. * * * In what condition was it at the time that you received it?
“A. When I received this specimen both the inner and the — the inner being, I am speaking here of the glass vial .with the screw cap as well as the outer gum paper label were both sealed, they were in a sealed condition when I received it and I broke both of these to conduct the analysis on the specimen therein.
“Q. Did you perform a blood test upon the sample of blood?
“A. Yes, sir, I did.
“Q. Was this particular sample, while in your possession, at all times in your custody ?
“A. Yes, sir, it was.
“Q. And did you make that test?
“A. Yes, sir.”

As to the contention that the witness Straughan was not shown to be qualified to render an opinion that the person from whom the specimen was taken was intoxicated at the time it was taken, the witness testified that he held a Bachelors Degree in Chemistry from Texas Tech; that the test he conducted was an accepted test according to the American Medical Association and the National Safety Council, and testified:

“Q. From your experience and training from testing this particular sample of blood, did you draw any conclusions as to whether or not the person from whom this sample was drawn was or was not intoxicated?
MR. BROWN: Excuse me, Your Honor, I object. The witness has not been shown to be qualified to give such a conclusion and we object for that reason.
THE COURT: Overruled.
MR. BROWN: Note my exception, please.
“A. Yes, sir, I did.
“Q. What was that conclusion, sir?
MR. BROWN: And my objection, of course, goes to all of this, Your Honor, if you please.
“A. It is my opinion that the person from whom this specimen was taken was intoxicated at the time the specimen was taken.”
Thereafter he testified:
“Q. You said a while ago that your training in this field was as a result of your chemistry in college, did you not?
“A. That plus the research I have conducted in this particular phase of scientific endeavors.
“Q. All right.
“A. Since my employment.”

The trial court did not err in failing to instruct the jury to disregard the testimony of the state’s witness Straughan.

Appellant next contends that the court erred in permitting hearsay testimony to go before the jury.

This claim of error also relates to the testimony of Eldon Straughan, the Chemist and Toxicologist, who was asked and, over objection that it was hearsay, was permitted to answer:

“Q. Will you describe briefly the type of blood test which is performed in your laboratory on blood samples which are sent to you for testing?
“A. Yes, sir. This is a direct distillation of the alcohol from the blood specimen and the oxidation of the alcohol to determine the amount present in terms of percentage.
“Q. Is this an accepted blood test according to the American Medical Association ?
* * * * * *
“A. Yes, sir, it is recommended by the American Medical Association * * *.
******
“Q. Is this an accepted blood test according to any other standards? * *
“A. Yes, it is.
“Q. And would you tell what they are?
“A. Well, the main one being other than the American Medical Association, is—
******
“A. Would be the National Safety Council.”

A similar contention was overruled by this Court in the recent case of Hoffman v. State, Tex.Civ.App., 397 S.W.2d 461. See also Jones v. State, 159 Tex.Cr.R. 29, 261 S.W.2d 161; Piester v. State, 161 Tex.Cr.R. 436, 277 S.W.2d 723.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant contends that we did not distinguish this case from our relatively recent case of Noe v. State, 162 Tex.Cr.R. 483, 286 S.W.2d 942. In that case the charge read in part as follows: “In your deliberations you should not attempt to arrive at a verdict by lot or chance or by ballots as to the particular punishment each juror is in favor of assessing * *

In the case at bar the portion of the charge quoted in our original opinion relating to the jury’s verdict does not mention punishment.

We have examined the record in Winfrey v. State, 84 Tex.Cr.R. 579, 209 S.W. 151, upon which appellant relies, and it is apparent that such case was reversed because the charge was an oral rather than a written one. Anything else in the opinion must be considered as dicta.

Remaining convinced that a proper disposition was made originally, the appellant’s motion for rehearing is overruled.


text:
    T. T. HARBIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39099.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 16, 1966.

      No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is unlawful possession of beer in a dry area for the purpose of sale; the punishment, 30 days in jail and a fine of $500.

Appellant was not represented by counsel at his trial.

In his motion for new trial, submitted by counsel, among the reasons assigned was that he was forced to trial without the aid and benefit of an attorney and that the court erred in failing to appoint counsel after it had been called to his attention that the defendant was destitute and without funds to employ counsel.

There is nothing in the record to support these unsworn allegations. On the other hand, the only “Statement of Facts” which accompanies the record is the certification of the trial judge of the following facts:

“When the above case was called for trial before the jury on March 12, 1965, the defendant, T. T. Harbin, did not have counsel to represent him at said trial. The Court, Hon. R. A. Simms, informed the defendant that he had the right to be represented by counsel and that he had the right to obtain a continuance of the same until he had had reasonable time to procure adequate counsel for his defense. The defendant, T. T. Harbin, stated in open court that he did not desire counsel for his defense and that he did not wish a continuance in order to seek counsel in his behalf, and that he wished to continue on with the trial of the cause acting as his own counsel.”

The record does not sustain the contention that a constitutional right of the appellant was violated.

The judgment is affirmed.


author: McDONALD, Presiding Judge. MORRISON, Judge.

text:
    Willie BIRDSONG, Appellant, v. The STATE of Texas, Appellee.
    No. 38886.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    Rehearing Denied March 2, 1966.

      Johns, Willard & Hannah, Beaumont, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is failure to stop and render aid; the punishment, five years.

The record reveals that appellant gave notice of appeal on March 22, 1965. On June 21, 1965, an order was filed extending the time for filing a statement of facts to 45 days after that date. The statement of facts was not filed until August 6, 1965, after the expiration of the 45-day extension granted by the trial court, and it is not approved by the trial judge. This Court therefore cannot consider the statement of facts. Article 759a, Vernon’s Ann.C.C.P.; Hill v. State, Tex.Cr.App., 375 S.W.2d 306.

There are no formal bills of exception.

As nothing is presented for review, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Counsel for appellant contend by brief that the statement of facts was in fact timely filed as of August 5, 1965, the last date for proper filing without the signature of the trial court, and that the file mark showing the date of filing as August 6, 1965, was defective due to an error on the appeals check list of the District Clerk.

Appended to appellant’s brief we find two instruments. The first, denominated “Appeal check list in felony convictions”, states in part:

“August 6, 1965 9. Date statement of facts filed.”

The second, a sworn affidavit of the District Clerk, states “ * * * I had noted upon the Appeal Check List that the date the Statement of Facts was due had been extended to August 6, 1965 thereby counting in error as said date should have been August 5, 1965.”

If we were to consider these instruments as properly before us, it is clear that the clerk was not in error in counting August 5, 1965, as the 45th day of the extension granted by the trial court.

Remaining convinced that a proper disposition was made originally, appellant’s motion for rehearing is overruled.


author: McDONALD, Presiding Judge.

text:
    Norris WARD, Appellant, v. The STATE of Texas, Appellee.
    No. 39162.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Rehearing Denied March 16, 1966.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Edward B. McDonough and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is felony theft; the punishment, two years confinement in the Texas Department of Corrections.

The evidence reflects that a house, located at 11118 Jutland, in Houston, Harris County, Texas, was broken into and entered on August IS, 1963, without permission of witness Cecil Cooper, who was in lawful custody of such property. A Tappan oven-stove combination, valued at about $150, was removed from these premises.

The written statement of appellant was introduced into evidence, in which he admitted his participation in the theft. He also admitted receiving a portion of the proceeds from the subsequent sale of the stolen property.

Appellant did not testify or present any evidence in his behalf.

We find the evidence sufficient to sustain the jury’s verdict. We overrule appellant’s contention that his voluntary statement was not sufficiently corroborated. Bennett v. State, Tex.Cr.App., 396 S.W.2d 402; Lyles v. State, 171 Tex.Cr.R. 468, 351 S.W.2d 886; Smith v. State, Tex.Cr.App., 361 S.W.2d 390, cited by appellant, does not support his position, as the conviction in that case was reversed because no corpus delicti was established.

Appellant urges that the trial court erred in admitting into evidence his written statement. It is his contention that the statement was taken when he was without counsel; that he had not been taken before a magistrate prior to making the statement; and that his arrest, prior to the taking of the statement, was unlawful.

When the statement was offered into evidence, the trial court retired the jury and conducted a hearing on the admissibility of this document in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; and Lopez v. State, Tex. Cr.App., 384 S.W.2d 345. The findings of fact made by the trial judge at the conclusion of this hearing reveal that appellant at no time requested counsel or stated that he was represented by counsel. We find no infringement of appellant’s constitutional rights. Ex parte Newell, Tex.Cr.App., 394 S.W.2d 175.

The trial court further found that the statement was freely and voluntarily given “without threats, compulsion, persuasion, duress, coercion, improper influence, promises or any deals.” Appellant did not develop facts which would show a causal connection between his arrest and alleged failure to take him before a magistrate and the making of the statement. Under these circumstances, the failure to take appellant before a magistrate would not render his written statement inadmissible under the statutory law then in effect. Ferrell v. State, No. 38,660, December 15, 1965, Tex.Cr.App., 397 S.W.2d 86, and cases cited. We need not pass on the legality of appellant’s arrest in determining the question of the admissibility of the confession. It is the illegal detention and not an illegal arrest which, under certain circumstances, will vitiate a confession. Benitez v. State, Tex.Cr.App., 377 S.W.2d 651 and cases there cited. We find no error in the trial court’s careful determination that appellant’s written statement was admissible.

Appellant further contends that the trial court reversibly erred in its failure to instruct that the jury should “not regard as binding on the appellant Ward any testimony or evidence as to the acts of or statements made by Harvey Barnes out of the presence of the appellant.” We find no testimony or evidence in the record which would require, or justify, such a charge.

Finding no reversible error, the judgment is affirmed.


author: LANGDON, Justice.

text:
    STATE of Texas, Appellant, v. WILLIAMSON-DICKIE MANUFACTURING COMPANY, Appellee.
    No. 16699.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 4, 1966.
    Rehearing Denied March 4, 1966.

      Waggoner Carr, Atty. Gen. of Texas, and Hawthorne Phillips, T. B. Wright, J. C. Davis, and W. O. Shultz, and Owen Wade Anderson, Austin, for appellant.
    Brown, Herman, Scott, Young & Dean, and A. M. Herman, Fort Worth, for appel-lee.
   LANGDON, Justice.

Suit was filed by the Attorney General of Texas in the name of the State upon the relation of Jesse James, State Treasurer, pursuant to Article 3272a, Vernon’s Ann. Tex.Civ.St., to escheat certain personal property held by six holders, one of which was Williamson-Dickie Manufacturing Company, hereinafter referred to as appellee. The State of Texas has appealed only as to that portion of the judgment which denied recovery against appellee. The property in question consists of unclaimed wages. The case was tried to the court without a jury. Appellee plead that causes of action of its former employees were barred by the two and four year statutes of limitation. The trial court sustained this plea in spite of the fact that appellee, through its treasurer, admitted the justness of the indebtedness at the time it occurred and the current ledger sheets showing these wages as liabilities were introduced into evidence. Judgment was entered sustaining the plea of limitations and denying escheat of these unclaimed wages.

At appellant’s request the court made and filed findings of fact and conclusions of law as follows: All checks for the unclaimed wages were issued more than seven (7) years prior to the suit and such claims against appellee were barred by the four year statute of limitation; that since the claims of persons listed would be barred in the hands of the original holders thereof, the State cannot succeed to a more favorable position and thus limitation applies to it also.

The list containing the names, addresses and the amount of unclaimed wages held by the appellee is true and correct.

The parties listed (with one exception) did not at any time make demand or request for payment of such claims and none of such claims for unpaid wages has been paid.

Each of the payroll checks issued to the persons listed had a provision stamped thereon that it would not be honored if presented for payment at appellee’s bank thirty days after its issuance. Appellee’s bank was instructed to the same effect.

The appellee did not at any time agree or promise in writing or otherwise that it would pay such claims after the limitation period had run, nor did it in any way or manner, either by word of mouth or by its conduct, waive its right to invoke the plea of limitation as a bar to the recovery of the debts due the wage earners. Appellee did not issue any oral or written directive to pay such claims and in particular did not promise to pay same after the period of limitation had run. Thus it did not acknowledge such debts were due and owing nor make any new promises, oral or written, to pay the debts due. It did not waive its right to plead the statute of limitation.

The State can acquire only such rights as the owners of the claims possessed. A debtor-creditor relationship existed between the appellee and persons listed opposite unclaimed wages.

Based upon our examination and study of the entire record, we are of the opinion that there is ample evidence in support of the findings of the court and its judgment.

This Court must indulge every presumption in favor of the trial court’s findings and its judgment. Harden v. Federal Farm Mortgage Corporation, 223 S.W.2d 39 (Galveston Civ.App., 1949, no writ hist.); Taylor v. Austin, 221 S.W.2d 933 (Galveston Civ.App., 1949, no writ hist.); City State Bank in Wellington v. Wellington I. S. Dist., 173 S.W.2d 738 (Amarillo Civ. App., 1943, approved by 142 Tex. 344, 178 S.W.2d 114, 1944); see also Rule 296, Texas Rules of Civil Procedure, and cases cited.

The case at bar is identical with the facts of the case of Southern Pacific Transport Company v. State, 380 S.W.2d 123 (Houston Civ.App., 1964, ref.). In that case, as in the present case, the action was brought by the state to escheat unclaimed wages which had accrued to former employees. The defendant in that case pleaded that the two year and four year statutes of limitation had barred the action. The court, speaking through Justice Werlein, said: “We are of the opinion that when the claims in question became barred, the right to plead the statutes of limitation in the suit brought thereon became vested in appellant and that the State could not divest appellant of such right by escheating the claims in question, nor by its escheat laws lift the bar of limitation which had accrued in favor of appellant. Article 1, § 16, of the Texas Constitution provides: ‘No bill of attainder, ex post facto law, retroactive law, or .any law impairing the obligation of contracts, shall be made.’ It is our view that the proper interpretation of such provision as it affects appellant’s vested right to plead the statutes of limitation was announced by our Supreme Court in Mellinger v. City of Houston, 1887, 68 Tex. 37, 3 S.W. 249, as follows: * * * or if an attempt were made by law, either by implication or expressly, to revive causes of action already barred, such legislation would be retrospective, within the intent of the prohibition, and would therefore be wholly inoperative.” ’

“In Wilson v. Work, 1933, 122 Tex. 545, 62 S.W.2d 490, the Court, in a per curiam opinion, stated: ‘In this connection it is the settled law that, after a cause has become barred by the statute of limitation, the defendant has a vested right to rely on such statute as a defense. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; Grigsby v. Peak, 57 Tex. 142; 9 Tex.Jur. p. 534, § 100. We here refer to 9 Tex.Jur. pp. 527 to 535, and notes, for general discussion of vested rights and retroactive laws.’ ”

Application for writ of error in Southern Pacific Transport Company v. State, supra, was refused by the Supreme Court. The appellant attempts to distinguish the case at bar because the Southern Pacific case was determined on a motion for summary judgment and no evidence was offered or otherwise before the court raising any issue in avoidance of the plea of limitation.

In Southern Pacific Transport Company v. State, it was further stated: “There is no express provision in the laws of Texas which abrogates appellant’s right to plead limitation as against enforcement of claims which are barred before escheated, nor is there any implied exception of which we are aware. In the early case of Gautier v. Franklin, 1847, 1 Tex. 732, Judge Hemphill, in speaking for the Court, said: ‘Prescription by which an end is put at some time to litigation is founded upon the highest considerations of public policy * * *

“ ‘Such laws should be regarded with favor by courts of justice, and receive such interpretation * * * as would defeat the mischief intended to be suppressed,

“In Continental Supply Co. v. Hutchings, Tex.Civ.App., 267 S.W.2d 914, error ref., the court said: ‘Statutes of limitation are now generally regarded with favor by the courts, are to be construed as other statutes, and their application is not to be evaded by implied exceptions. Davis v. Howe, Tex.Com.App.1919, 213 S.W. 609.’ See also Robin v. Ely & Walker Dry Goods Co., Tex.Civ.App., 137 S.W.2d 164, error ref.; Mott v. Riddell, Tex.Com.Ct.1880, 2 Posey 107; Sherman v. Sipper, 1941, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263.”

The appellant relies primarily on the opinion in Small v. Lang, 239 S.W.2d 441, 444 (Fort Worth Civ.App., 1951 Ref., n. r. e.), in which it was held that, “The books of the company introduced in evidence show that no credits were entered to appellant’s account subsequent to 1944 and while appellant admits that subsequent to 1944 his salary was paid by Wolf & Klar Wholesale Company, nevertheless he insists in his deposition that he bought goods for Wolf & Klar and worked for all of the Wolf & Klar Companies. We are of the opinion that the admission by appellee Lang of the debt and the introduction of the books in evidence showing a balance due to the appellant would remove the bar of limitations.”

In our opinion the ease of Small v. Lang, supra, has no application to the facts of this case. In that case there was a credit balance shown on the books of the company which represented an undivided interest in a profit-sharing agreement which had been vested and was supported by letter in writing to that effect. Here each check issued to an employee showed on its face that it was void after thirty days from date of issuance. Additionally, the bank on which said checks were drawn was instructed by the appellee not to cash a payroll check presented thirty days after its issuance.

The testimony of Mr. Bush, treasurer of appellee, shows that every act on the part of appellee was to negative any acknowledgment of the debts or a promise to pay same once they were barred by the statutes of limitation. The names and addresses of former employees and the number of the check originally issued to each were placed in a ledger marked “unclaimed wages”, which contained the names of employees for a period as far back as 1943. In order to read into the record of this case the acknowledgment of the debt as a just obligation or a promise to pay, one must indulge in a presumption that the unclaimed wages ledger book was a current book of account used daily to record unpaid wages and treated as an asset of the company in the preparation of its annual financial statements. There is no testimony in this record to support such a contention. On the contrary the ledger which is currently maintained for unpaid wages is used for the purposes of making returns to the Comptroller of Public Accounts, pursuant to Article 3272a, V.A. T.S. and for the information of the appellee in event stale checks or claims for unpaid wages are presented to it for payment.

There was testimony that in event such claims or stale checks were presented for payment before two years and the claimant or check could be identified from the ledger that payment would be made, but that no claim presented two years from date would be honored.

An acknowledgment to relieve claims from the operation of a statute of limitation must contain an unqualified admission of a just, subsisting indebtedness and express a willingness to pay it. Luck v. Riggs Optical Co., 149 S.W.2d 204 (Fort Worth Civ.App., 1941, no writ hist.). The appellant did not prove an unqualified admission of the justness of the debt in writing or a willingness to pay same. The appellant failed to allege a state of facts which would avoid the statutes of limitation. The proof offered by it would not suffice even had the necessary elements been alleged.

All points of error are overruled and the judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    John HAMLIN et al., Appellants, v. Murry H. BRYANT, Appellee.
    No. 185.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 10, 1966.
    Rehearing Denied March 3, 1966.
    See also Tex.Civ.App., 373 S.W.2d 837.

      Earl Luna, Joseph M. Stuhl, Wise & Stuhl, Dallas, for appellants.
    J. C. Muse, Jr., Ralph W. Currie, Muse, Currie & Kohen, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This suit is a contest over the will of Zeb Bailey Hamlin, a single man (never having been married) who died on October 26, 1960, at the age of 65 years leaving a duly executed written will dated August 3, 1959, on which the subscribing witnesses were E. O. Perry and J. D. Carney. This will is in evidence and on its face appears to be a valid will. His will left his estate, consisting of about 80 acres of land near Garland in Dallas County, to his nephew, Murry Bryant, the proponent in the trial court and appellee on appeal. The contestants, who are the appellants on appeal, are certain relatives of the deceased, Zeb Hamlin, being one brother, four sisters, three nephews and five nieces. One surviving sister (the mother of proponent-appellee Murry Bryant) did not join in the contest. Murray Bryant sought to probate the will in which he was named as the sole beneficiary. The other surviving heirs, with the exception of proponent’s mother, contested this application.

The contest was based on four grounds: (a) lack of testamentary capacity; (b) deceased did hot sign the will; (c) deceased did not execute the will with the requisite formalities; and, (d) in the alternative, if he did sign and execute the will, it was because of undue influence exerted upon him by proponent, Murry Bryant.

During the course of the trial, the contestants stipulated that the deceased had signed the will on both pages. Contestants also conceded that the will was executed with the formalities required by the statute.

The trial court submitted to the jury an issue on testamentary capacity which the jury answered in favor of proponent. Over the objection of proponent (that the evidence did not raise it) the trial court also submitted an issue on undue influence. The jury, being unable to agree, did not answer the issue on undue influence.

On motion for judgment, the trial court found that as a matter of law the evidence adduced in this cause did not and does not raise the issue of undue influence. That, therefore, Special Issue No. 2 inquiring about undue influence need not have been submitted and that the failure of the jury to answer said Special Issue No. 2 is immaterial to a proper determination of this cause and rendered judgment for the proponent. From this judgment the contestants-appellants duly perfected their appeal.

Under the Texas Rules of Civil Procedure, Rule 306a, judges must cause, and attorneys and clerks must use their efforts to cause, all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge. The judgment appealed from, dated February 12, 1965, shows that it was signed by Freman E. Roberts, Judge, 52nd District Court sitting for Judge, 101st District Court, Dallas County, Texas.

The Honorable “Truman E. Roberts” and not “Freman E. Roberts” is the Judge of the 52nd Judicial District Court of this state. Judge Truman E. Roberts was serving in such capacity at the time of the trial of this case, including the date and entry of the judgment appealed from. These facts are judicially known to this court. Vol. 23, Tex.Jur.2d, page 42, Sec. 23; Mullins v. Mullins, 300 S.W.2d 133, (Tex.Civ.App.) 1957, n.w.h.; Strahan v. State, 85 Tex.Cr.R. 609, 221 S.W. 976; Porter v. State, 72 Tex.Cr.R. 71, 160 S.W. 1194. It is apparent that this is a typographical error made in transcribing the judgment.

Appellants’ appeal is founded on 4 Points of Error. Their contentions are that the trial court erred: (1) in overruling contestants’ motion for mistrial, based on the failure of the jury to answer Special Issue No. 2 pertaining to undue influence; (2) in ruling that there was no evidence of undue influence to justify the submission of Special Issue No. 2 thereon; (3) in overruling contestants’ motion for instructed verdict which was based on the ground that there was no evidence to justify the submission of Special Issue No. 1 on testamentary capacity ; and, (4) in overruling contestants’ amended motion for new trial which was based on the ground that the answer to Special Issue No. 1 on testamentary capacity was against the great weight and preponderance of the evidence.

The facts adduced on the trial of this case show that in 1925 Zeb and his older brother, Steve, bought out the interest of their brothers and sisters in the old family home near Garland, Texas, and operated it together. Zeb never married. Steve did marry but became estranged from his wife and lived with Zeb for about 15 years, up until the time of Steve’s death in 1958.

In July of 1958, Steve and Zeb executed a joint will in which each left his estate to the survivor. Steve died later that year, and this will was admitted to probate in 1958.

The will in question in the instant case was prepared by M. M. Priest, who is an attorney licensed to practice in Texas since 1926, and was engaged in the practice of law in Dallas, Texas, with her husband, Andrew Priest, during his lifetime. Andrew Priest died in 1962.

Mrs. M. M. Priest was called as a witness by the proponent and identified proponent’s Exhibit No. 1 (which is the will that is being contested in this suit) as being the same instrument which she prepared for Zeb Hamlin at his request. She testified that she met Zeb Hamlin in July of 1959. The occasion for meeting him was that he had been sued. He was the defendant in a lawsuit and he had a citation in which an answer needed to be filed. The lawsuit in which he sought her representation was instituted by Steve Hamlin’s widow, Belle Hamlin, against Zeb Hamlin, who was the executor under the joint will of Zeb and Steve.

She had conferences with Zeb Hamlin about this suit of Belle Hamlin’s and talked to him about his property because it was involved in this lawsuit and he explained to her about where he got the property and the nature and extent of it. He said it had belonged to his mother and father and that they had died and left ten children and he had bought out the interest of the other eight children and had paid them around eight thousand and something dollars for their interest, and he and his brother, Steve, owned the property together. She checked the records to verify what he had told her about the property. He told her how she could locate the property and she drew a little diagram at the time from his description of it. He told her that he had been sued previously about this property and gave her the volume and page in the Southwestern Reporter where it could be found. She looked up the reference as to where he said the case was reported and found the information to be correct.

The suit brought by Steve’s widow against Zeb Hamlin was ultimately settled by her firm. She said the settlement was made just a little while prior to Zeb’s death. The notations in her file reflected that it was about the first of September, 1960.

She further testified that during the time she was handling the lawsuit wherein Steve’s widow had sued him, he told her he wanted to make a will. He brought the matter up first. He said he and his brother had wills made to each other and after the brother died he wanted to make another will. He initiated the idea. That at the time he brought up the matter of executing a will and discussed it with her, no one else was in the office with him other than she.

She said she asked him to tell her how he wanted to divide the property. He said he didn’t want to divide it. He wanted to keep it together; that he wanted to leave it all to Murry Bryant and the will should be so drawn. He said Murry Bryant was his nephew and she asked him if he had other brothers and sisters and nieces and nephews and he had a number of them. He said they didn’t need it, didn’t want it and they never did have any time for him and he wanted to leave it to Murry Bryant. He had a sister who sometimes came down and fixed his meals, but he said he had talked to her and she didn’t want anything he had; she had plenty. That she and her husband didn’t want anything so he wanted to leave it to Murry so it would be intact. The name of this sister was Mrs. Fannie Boyd.

She said Mr. Hamlin came into her office alone and Murry Bryant was not there. That at the time she didn’t know Murry Bryant. Prior to the time she wrote this will, she did not have any conversation with anyone other than perhaps her husband or law partner and Mr. Hamlin himself, about the contents of this will.

After she finished getting instructions from him as to details, she drew up a simple will instructing him how to get it signed before witnesses who had known him for quite some time. She gave him these instructions orally. After the will was prepared, she mailed it to him.

She also testified that during the period of time she was representing Zeb Hamlin and dealing with him and up until the time that she wrote this will for him, she had conversations with him, sometimes by telephone, sometimes in person, but she would say a half a dozen or more occasions. She talked business with him on those occasions. These conferences lasted 30 minutes or longer. That during these conferences she had with him, she did observe his appearance and demeanor. As a result of those conferences and conversations and her observations of Mr. Hamlin, she did form an opinion as to Mr. Hamlin’s mental condition at the time she wrote the will for him. She wrote this will about August 1, somewhere around the last of July or August 1 of 1959. She said she did have an opinion as to the mental condition of Zeb Hamlin on August 3, 1959, that being the date the will was executed. She talked to him on August 3,1959. In her opinion Zeb Hamlin was of sound mind at all times. He was very emphatic; he was very definite in his opinions as to what he wanted. He knew exactly what he wanted and so expressed himself at all times. He did, in her opinion, have sufficient mental ability to understand the nature of the business of making a will. He did have sufficient mental ability to know the effect of making a will. He did have sufficient mental capacity to know who his relatives were. He did have sufficient mental ability to know who the natural objects of his bounty were. He had sufficient mental ability to understand the nature of any claim that any natural object of his bounty might have on him. He surely did know the general nature and extent of his property. He did know what he wanted to do with this property in his will. He had sufficient mental ability to hold all these things together at one time. She did not observe anything that would cause her to suspect that he was anything other than a man of sound mind. He was of sound mind.

On cross examination she testified that she first knew Murry Bryant sometime during the pendency of the Belle Hamlin lawsuit, sometime during the time they were making a settlement with her. As to Murry Bryant’s purpose in being in her office in connection with the Belle Hamlin lawsuit, she said when they got down to the end of the settlement, she didn’t know it to be a fact but she thought he (Zeb Hamlin) borrowed money to settle the suit from Murry Bryant.

She said Zeb Hamlin told her that Murry Bryant came to see him and helped him. He told her about trips that he had taken with Murry Bryant. As to whether some other person influenced Zeb and caused him to take the action he took on this will, she testified no one influenced him; that it was his own decision. He did not talk to anyone before he came to her office. He hadn’t made the will at that time and he hadn’t talked to anyone about it. She was asked how did she know this and she said because he (Zeb Hamlin) told her so. She said she asked him if he had discussed it with anyone — making the will — and he told her he had not discussed it with anyone.

Sometime before they settled this lawsuit in September of 1960, he (Zeb Hamlin) said he told Murry he had made a will and as a matter of fact he had given the will to Murry to put in his safety deposit box. Zeb Hamlin is the one who paid her for representing him in the lawsuit and who paid her to write the will.

She said that she did not know how he got to her office. If someone brought him, she didn’t know. He came to her office by himself.

She did not represent Murry Bryant in any matter at all. She never represented him, other than the filing of this application to probate the will. After a contest developed and she thought she might be a witness in the case, she withdrew as counsel and advised Mr. Bryant to get other counsel.

To her knowledge he never did write a will later than the one she prepared. He never expressed any dissatisfaction with the will which she prepared. He said that is just exactly the way he wanted it, that’s his words. She said she had no reason to believe that he ever revoked this will by another will.

J. D. Carney, one of the witnesses to the will, had been a resident of Garland, Texas, since 1930, a real estate broker in appraisal service since 1946, a director of the new Colonial National Bank in Garland, and a man 60 years of age at the time of the trial, testified: that Zeb Hamlin asked him to witness a will for him and he did so and identified proponent’s Exhibit 1 (the will involved in this suit) as the will which he witnessed for him. That Mr. Hamlin called him four or five days before the day he witnessed the will and that Murry Bryant called him the day before in regard to him witnessing the will. He testified that the persons present when the will was signed were E. O. Perry, Zeb Hamlin, Murry Bryant and himself. He said Mr. Hamlin handed him the will and he took it and read it to himself and then read it out loud and asked Mr. Hamlin, “Is this the way you want this ?” He replied that it was. Thereafter, Mr. Hamlin signed the will in his presence and in the presence of E. O. Perry. Then he and Mr. Perry both signed the will in front of each other and that he (Carney) handed the will to Mr. Hamlin. That Mr. Hamlin was present when he and Mr. Perry signed the will as witnesses. He further testified that he and Mr. Hamlin were friends and that he saw him occasionally at ball games and at different things, social activities in the Garland community. That Mr. Hamlin was very active. That during the year or year and a half prior to the signing of this will, he had seen Mr. Hamlin once a week or maybe more. That he did not talk to him on each of these occasions, but did have casual talk with him on some occasions. During the years he had known Mr. Hamlin and particularly during the later years, he did have an opportunity to observe him. During those years he had an occasion to form an opinion as to his mental condition and that condition existed on the day he signed this will. He stated that in his opinion that Mr. Hamlin’s mind was sound when he signed the will August 3, 195S, that he had sufficient mental ability to know the general nature of the property that he might own. That he had sufficient mental ability to know who his relatives were and had sufficient mental ability to know of any claim that any of his relatives might have against him if they had any. He did not notice anything that occurred on August 3, 1959, that would cause him to suspect that there was anything wrong with Mr. Hamlin’s mind. That so far as he knew, Mr. Hamlin never did write a will later than this instrument of August 3, 1959. He also testified that he had known Murry Bryant for a good many years and may have played Dominoes with him at the domino hall.

Mr. E. O. Perry of Garland, Texas, the other witness to the will who was in the retail lumber business operating as Perry Lumber Company, which is the place where the execution of the will took place, testified that he was 51 years of age and knew Zeb Bailey Hamlin during his lifetime. That Hamlin asked him to witness the will for him and that he did witness such will for Hamlin. He identified the will being proponent’s Exhibit No. 1 as the will which he witnessed for Mr. Hamlin. Those present when the execution of the will took place were Mr. Carney, Mr. Hamlin, Mr. Bryant and himself. That Mr. Carney took the will and read it to himself and out loud. He heard him read it. After he read it, he asked Mr. Hamlin if that was the way he wanted it and Mr. Hamlin answered and said that it was. That Zeb Hamlin then signed the will and he saw him sign it on both pages. Mr. Carney was present when Hamlin signed the will; that he saw Mr. Carney sign it and that he signed it. Mr. Hamlin was present when he signed it and Mr. Carney was present when he signed it.

Mr. Perry said at the time he witnessed the will, he had known Zeb Hamlin some twenty or twenty-five years. During that time he had occasion to converse with him quite often. Most of the time he would see him two or three times a week, maybe, more or less, and this had continued to some extent over the period of twenty or twenty-five years he had known him. As a result of his conversations with him and his observations of him extending over this period of time, he did form an opinion as to his mental condition as it existed on the day he signed the will. It was his opinion that he was of sound mind and he had sufficient mental ability to know the general nature of the property he owned, sufficient mental ability to know who his relatives were, and sufficient mental ability to know what he wanted done with his property when he died. That he never did observe anything about him that would indicate to him (Perry) that he (Zeb Hamlin) was anything other than a man of sound mind.

In addition to witnesses Priest, Carney and Perry, the following witnesses testified that Zeb Hamlin was of sound mind:

Delbert S. Todd, Vice-President, First National Bank in Garland, said he was of sound mind. That he had known Mr. Hamlin since 1945.

Cecil Sarver, who said he had known Mr. Hamlin for about 45 years, lived right across the road from him about 200 yards distance and in his opinion Mr. Hamlin was of sound mind on August 3, 1959, and at all other times. Mr. Sarver said during all the periods of time since 1951 up to the date of Mr. Hamlin’s death, he had noted no difference in his mental condition.

Aubrey Skelton, who lived in Garland, testified that he had known Zeb Hamlin for about 18 years prior to his death. That he knew him real well. During the last several years he would have conversations with him quite often. And that this continued up until the time of his (Hamlin’s) death. He stated in his opinion Mr. Hamlin was of sound mind and had sufficient mental ability to know his property, his relatives, what he wanted to do with his property, who might have claims on him and to understand the effect of making a will. He said he had never observed anything that caused him to suspect that Hamlin was anything other than a person of sound mind.

Sharp Hartsfield, a resident of Garland, first met Zeb Hamlin in January, 1950, and said he knew him well. That he lived across the road from him and that they were very close neighbors. They played Dominoes together once a week. That it was in early 1951 when they began playing Dominoes. That they played every Monday night. The evidence shows, that the will was executed on Monday; therefore, the witness Hartsfield played Dominoes with him on the very night of the day the will was executed. Witness Hartsfield testified that Mr. Hamlin’s mind was sound. He had sufficient mental ability to know what property he owned, to make up his mind about what he wanted to do with it, to know his relatives, to realize the effect of making a will. He knew what he was doing. He never saw anything about Zeb Hamlin that would bring any question as to his mental soundness.

Mrs. Fannie Boyd, one of the contestants and the only contestant who saw the deceased every day, testified that in August, 1959, or shortly before then, or shortly after that, she noted nothing unusual about her brother Zeb. She was asked during the two or three months before the will was made whether she had noticed any difference in Zeb in regard to his health and memory, any different from that time and back before Steve’s death. She answered: “No, sir, I didn’t really notice any difference. Only, he didn’t seem like hisself, but I thought that was because he was sick.” When asked to explain what she meant by he didn’t seem like himself: “Well, he just used to be always laughing and talking. He seemed like there was just something the matter with him. He would just sit around and didn’t have much to say.” In response to another question, she said: “Well, he just never did confide in me none like he always had. He never did talk things over with me like he used to. He just quit. He just quit talking about anything to me, any of the business affairs or anything he always talked to me about everything.”

The contestant, Lou Hamlin Minor, stated with respect to her brother’s mental condition: “No, I think his mind was all right.” In response to the question: “You think his mind was all right?” she answered: “Yes, I think he was sick.” She was also asked: “Was Mr. Zeb a man that was easily influenced?” She answered: “No, I don’t reckon.” Question: “You don’t reckon he was?” Answer: “No.” She was asked to describe any change in Zeb’s conduct after Steve’s death and her answer was: “Yes. Oh, yes. Well, he just seemed like he was forgetful.” She said: “He wasn’t well. He didn’t seem happy. He didn’t seem happy at all.”

John Hamlin, another contestant, testified in response to the question whether in the month of August, 1959, he noticed anything unusual about his brother Zeb, he answered: “Well, nothing only that — the only thing that I noticed, I went down there and helped him on his tractor on different occasions, and he couldn’t stoop over without just getting short of breath.” He was asked: “Did you notice anything about his mind that was any different?” Answer: “No, I don’t. No, sir, I didn’t.” He said he guessed Murry Bryant was pretty good to Zeb. Murry went out there and shaved Steve about once a week. He further stated that he couldn’t say that he noticed anything unusual about the way his brother acted; that he carried on his business like he always had. He also testified that he was over Zeb’s farm from time to time to help him with his equipment and to help him with his cotton. That after Steve’s death, Zeb “was more irritable.”

Laura Benningfield, another contestant, testified, with respect to her brother Zeb, that he did make sense when he talked; was able to conduct his business affairs— “Didn’t nobody do it for him that I know of.” She was asked: “Now, directing your attention to the summer of 1959 in the month of August, did you notice your brother doing anything unusual at that time, your brother, Zeb?” Answer: “Well, he had been sick a long time. He had been sick when my other brother was sick. He was sick, too. He wasn’t hisself. He hadn’t been hisself in several years, just like he really used to be.” Question: “Well, what did you notice that led you to — ” Answer: “Well, he was short talking and short tempered. He never was like that. You know, you couldn’t talk to him. You couldn’t get close to him by talking to him. He just changed altogether.” Question: “Did he make sense when he talked?” Answer: “Oh, yes, he made sense. He wasn’t — wasn’t like that. And he couldn’t remember good, you know.”

The contestant, Fannie Boyd, testified that for 13 years she did all the cooking and most of the housework for her two brothers, she was there at least once a day but usually twice a day. She would get to their house about “6:00 in the morning,” would “fix their breakfast before they went to work” and then: “Well, I’d stay until I got the dishes washed and the house cleaned up, maybe cook a little something that was hard to cook and then come back and -cook dinner and supper.” She testified that Steve Hamlin had diabetes and required lots of care. After Steve became bedfast the last few months of his life, she “stayed there most of the time.” She was not paid to do this work. That she did this because she lived closer to her two brothers than her other sisters. In her own words, she said she did it “because I was the only woman to.” She also testified that in her opinion, Zeb Hamlin had diabetes. This was based on her experience in taking care of brother Steve who had diabetes.

The evidence is that the relationship between Zeb Hamlin and Murry Bryant was close and long standing. In this connection, proponent testified:

When I was about 4 or 5 years of age he (Zeb Hamlin) used to come and get me and I would spend two or three days and nights at a time with him. My feelings for my uncle Zeb were more like a daddy than an uncle. Uncle Zeb took an interest in my athletic career while I was in high school. He attended most of the games. I was on the baseball, football and basketball teams. I got out of high school in 1935, age 18. My uncle Zeb had an interest in dogs. I got my first greyhound from uncle Zeb. I trained dogs that he had on the race track. Zeb Hamlin was a man interested in dog races. We went together to dog races and he came to Massachusetts to visit me a couple of times when I was training his dogs up there. That was in 1936 or 1937, when I was 20 or 21 years of age.

When I was going to high school, anytime I needed money I would go to him. I got money from him every week or so. Later on, when I got grown, I would lend him money where he wouldn’t have to go to the bank and pay interest on it. I did this on many occasions.

Contestant, Fannie Boyd, testified that during her visits to Zeb’s home that she would see Murry Bryant around the place about every day. He and her brother appeared to be on friendly terms and in response to a question: “Would you say that Murry was good to your brother Zeb?” she answered: “Yes, sir, I guess so.”

The testimony is undisputed that after the death of Steve Hamlin, none of the contestants (except Fannie Boyd) had much association with Zeb Hamlin, if any. Laura Benningfield stated that during the last year and a half of his life she never visited Zeb in his home. She saw him only at her sister’s. John Hamlin admitted that after the spring of 1959, he did not visit Zeb “too often.” He was there “a time or two during June, July and August.”

Contestant Lou Minor last saw Zeb at Mrs. Boyd’s home. She went over to Zeb’s house early one morning with Mrs. Boyd about two weeks before Zeb died and helped Mrs. Boyd “clean up around some.”

There is no testimony that any of the remaining ten contestants ever had any association with the testator (Zeb Hamlin) at all.

It is undisputed that Fannie Boyd was good to the testator, Zeb Hamlin. She did the housework for both Steve and Zeb and then, after Steve’s death, continued to do the same thing for Zeb.

Moreover, the record reveals without dispute that the testator, Zeb Hamlin, was fully appreciative of the service rendered to him and Steve by Mrs. Boyd. After Steve’s death (according to Mrs. Boyd’s testimony) he told her that he had wanted Steve to will to her one-half of the property. Mrs. Boyd said she told Zeb she didn’t want it.

So, when Zeb Hamlin informed his attorney, M. M. Priest, that Mrs. Boyd did not want anything, apparently he was merely repeating what Mrs. Boyd herself had told him.

The following questions were propounded to and answers given by Murry Bryant:

"Q Mr. Bryant, you took that will from the lumber yard ?
“A I don’t remember whether I took it that day, next week or the next, but my uncle gave it to me later.
“Q You had had it ever since?
“A He told me to lock it in the safety deposit box.
“Q And you didn’t tell a soul about it until after he died?
“A He asked me not to.
“Q You didn’t tell anybody about it, did you?
“A He asked me not to.
“Q You honored that request?
“A I sure did.”

There was no medical testimony offered in this case insofar as the record before us reflects.

It seems that under the applicable law in a will contest case involving a claim of undue influence, the pertinent inquiry is what the facts and circumstances are relative to: (1) the making of the will; (2) the execution of the will; (3) the mental condition of the testator at the time the will was prepared and executed; (4) the physical condition of the testator at the time the will was prepared and executed; (5) the relationship between the testator and the proponent; and (6) the relationship between the testator and the contestants.

In presenting their plea that there is some evidence of undue influence in this case, the appellants rely strongly upon the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1939.

The Supreme Court in Long v. Long, supra, stated:

“ * * * Every case is different from every other case, and must depend largely on its own facts and circumstances. Generally speaking, undue influence is such influence or dominion as exercised at the time, under the facts and circumstances of the case, which destroys the free agency of the testator, and substitutes in the place thereof the will of another. Undue influence has also been defined as that dominion acquired by one person over the mind of another which prevents the latter from exercising his discretion, and which destroys his free agency. Also, undue influence has been defined as ‘that which compels the testator to do that which is against his will from fear, the desire of peace, or some feeling which he is unable to resist.’
* * *
“It cannot be said that every influence exerted by one person over the mind of another is undue. The influence is not undue unless the free agency of the testator has been destroyed, and a will produced that such testator did not desire to make. * * *
“In will cases, after mental capacity has been shown, the burden of proving undue influence is on the party contesting the probate of the will. Hart v. Hart, Tex.Civ.App., 110 S.W. 91.
“It is rarely possible to prove undue influence by what is generally known as direct testimony. * * * It is therefore the settled rule that undue influence can be established by what is known as circumstantial, as well as direct, evidence. Besteiro v. Besteiro, Tex.Com.App., 65 S.W.2d 759; Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547.
* * *
“A person of sufficient mental capacity to make a will has a right to devise his property as he may see fit, so long as he transgresses no law. Also, a person in making a will rests under no legal obligation to devise his property according to the laws of descent and distribution, or according to any moral law, and the mere fact that a testator has ignored such laws is no ground for setting aside his will. In spite of this however, the fact that a testator has left a will that is unnatural in its terms, and makes a difference between those who, according to natural law, ought to stand equal as to his bounty, may be considered as a circumstance along with other circumstances in determining whether or not the will was a product of undue influence.
“ * * *
“ * * * Without going into details, we will say that there is evidence in this record which would justify the jury in finding that this will is un-
natural in its terms, and makes a difference between those who, according to natural law, would stand equal as to Mrs. Long’s bounty. Of course, this alone is no ground for rejecting a will. It is a mere circumstance to be considered along with other circumstances.”

The Amarillo Court of Civil Appeals in the case of Burgess v. Sylvester, 177 S.W.2d 271, said:

“Undue influence must be exercised at the time of making the will, and the will must result therefrom. Rounds v. Coleman, Tex.Civ.App., 189 S.W. 1086; Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643, 653.
“A will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise undue influence which may have existed or raise a bare suspicion that such influence may have been used. Rounds v. Coleman, supra, and authorities cited, page 1090 of 189 S.W. See, also, Cameron v. Houston Land & Trust Co., Tex.Civ.App., 175 S.W.2d 468, 470, and authorities there cited.
“At this point we observe that the existence of an unnatural will alone does not establish undue influence. It is a circumstance to be considered but, standing alone, it is not sufficient to establish the ultimate fact. * * * ”

The Supreme Court granted a writ of error, in Burgess v. Sylvester, supra, and in its opinion affirming the judgment of the Court of Civil Appeals, reported in Volume 143 Tex. 25, 182 S.W.2d 358, said:

“ * * * These facts simply, in our opinion, do not in any manner connect the Sylvesters with the making of this will or warrant the inference that same was made under the spell of their influence. A solemn will executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing on the part of the beneficiary. We sustain the holding of the Court of Civil Appeals upon this point.”

Where circumstantial evidence is relied upon to show undue influence, as in the case now before us, the circumstances must be of a reasonable, satisfactory and convincing character. In re Estate of Olsson, 344 S.W.2d 171 (Tex.Civ.App.) 1961, writ of error refused, n. r. e.

The “undue” influence which will vitiate a will must be exercised at the time of its making. Mason v. Mason, 369 S.W.2d 829 (Tex.Civ.App.) 1963, writ refused, n. r. e. and Besteiro v. Besteiro, 65 S.W.2d 759 (Tex.Com.App.).

It has been held that although a testator was under the general and even the controlling influence of another person in the conduct of his affairs, such will not suffice to invalidate a will on the ground of undue influence unless that influence was specially exerted upon the testamentary act. Likewise, it has been held that persuasion, argument and solicitation are permissible and cannot be considered undue influence unless these acts subvert and overthrow the will of the testator and cause him to do a thing he did not desire to do. Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.) 1948, writ refused, n. r. e.

It has also been held that one may request or even importune and entreat another to execute a favorable dispositive instrument, but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker they will not taint the validity of the instrument with undue influence. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, 1954; Rothermel v. Duncan, 369 S.W.2d 917, Tex.1963.

The Supreme Court in the case of Curry v. Curry, supra, said:

“We attach no weight to the fact that the defendant secured the services of the notary and the attesting witnesses. * * * The mere act of arranging for a notary and witnesses does not give rise to a reasonable inference of undue influence.”

The Supreme Court of this state in the case of Rothermel v. Duncan, supra, made this statement:

“ * * * Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. * * *.
“The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. * * *
“It cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Long v. Long, supra. * * * ”

In Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564, 1955, it was said:

“ * * * Proof that the daughters were favored and that the contestants got nothing under the will is not proof that the daughters did in fact substitute their mind and will for the mind and will of the testator. * * * ”

While the cases all agree that undue influence can (and often must) be established by circumstantial evidence, however, the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character and they must not be equally consistent with the absence of the exercise of such influence. Winn v. Daniel, 386 S.W.2d 293 (Tex.Civ.App.) 1965, writ refused, n. r. e.

The evidence in this case shows Mr. Hamlin to be a man of strong character and one accustomed to conducting his own business. There is no evidence in the record before us, either direct or circumstantial, showing that Murry Bryant exercised or exerted any influence over Zeb Hamlin in any way that influenced his testamentary acts. There is no evidence of any specific act or thing that Murry Bryant did which induced Mr. Hamlin to make the will. At most, it is only shown that Bryant had the opportunity to exert influence upon Hamlin had he chosen to do so. This is not sufficient to show undue influence.

The exertion of influence that is “undue” cannot be inferred alone from opportunity, but there must be some evidence, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the execution of the testament itself. Rother-mel v. Duncan, supra. There is no such evidence here. In our opinion the evidence in this case fails wholly to meet the test required of our courts and for these reasons, we overrule appellants’ contentions raised in their Points of Error Nos. 1 and 2.

There remains to be considered and disposed of appellants’ Points 3 and 4.

There can exist no doubt in this case about the sufficiency of the evidence to justify the submission of Special Issue No. 1 on testamentary capacity. The evidence was ample for the submission of said issue and to support the jury’s answer thereto, and from the record as a whole not contrary to the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The testimony of the eleven witnesses concerning the mental condition of Zeb Hamlin, the testator, including all the contestants who testified was to the effect that he was of sound mind. Accordingly, appellants’ Points 3 and 4 are overruled.

Judgment of the trial court affirmed.


author: MURRAY, Chief Justice. BARROW, Justice.

text:
    SCM CORPORATION, Appellant, v. The TRIPLETT COMPANY et al., Appellees.
    No. 14465.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1966.
    Rehearing Denied Feb. 23, 1966.

      James D. Baskin, Jr., Richard E. Goldsmith, San Antonio, for appellant.
    Maverick, Tynan & Gochman, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by SCM Corporation, seeking a temporary and permanent injunction against Max J. Triplett, Richard Ritch, and The Triplett Company, a corporation organized by Triplett for the purpose of engaging in a competitive business with SCM Corporation. SCM is engaged in the business of selling SCM photocopy machines and paper and other supplies used in such machines. SCM also sought an accounting and damages.

The trial court, after hearing evidence; overruled the motion for temporary injunction and SCM has prosecuted this appeal.

Appellant’s brief is divided into two parts. The first part relates to the common-law rule of unfair competition by former employees with their former employer, in which it is contended that all three appel-lees were so engaged in violation of the common-law rule against unfair competition. Part two relates to the breach of an employment contract signed by Triplett in which he covenanted not to engage in business against his employer for a period of six months after termination of his employment; “and if there shall be any violation thereof during said six-month period, then said period shall be extended for six (6) months after cessation of such violation.” Triplett went to work as a salesman for SCM in San Antonio, Texas, on January 1, 1963, at which time he had signed a contract containing the following negative covenant:

“You agree, during the period of your employment by the Company, not to engage in any business activity which is or may be directly or indirectly competitive with that of the Company. You further agree not to engage or be employed in any capacity or relation, for a period of six (6) months after the termination of your employment with the Company, however effected, in the business of selling photocopy equipment and supplies within the boundary of any territory in which you shall have worked for the Company during the period of one (1) year next preceding the termination of your employment hereunder, and if there shall be any violation thereof during said six-month period, then said period shall be extended for six (6) months after cessation of such violation. Such undertaking not to sell photocopy equipment and supplies shall be enforceable by injunction or other legal process.”

Thereafter, four consecutive contracts were signed by these parties each containing the above negative covenant. The last contract agreed to by the parties was signed on March 12, 1964.

Sometime prior to February 1, 1965, SCM decided upon a new form of compensation for its sales managers, which would apply to Triplett as he had theretofore been made a sales manager. The new plans of compensation were Plans A, B, and C. Written notice of such new plans, printed in bulletin form, was mailed by SCM to all sales managers, including Triplett, on January 28, 1965. In March, 1965, a new contract, embodying the provisions of Plan B and the usual terms of employment, was mailed to Triplett, but he refused to execute the new contract. Triplett testified that this new plan of pay would mean a financial disaster for him. On April 20, 1965, Triplett resigned as sales manager for SCM and entered business in competition with SCM on or about April 26, 1965.

In approaching the questions raised herein, we must view the record in the light most favorable to the action taken by the trial court, which was a refusal of a temporary injunction. In 31 Tex.Jur.2d, § 37, p. 92, it is stated: “In determining the correctness of the trial court’s action in granting or denying a temporary injunction, the evidence will be considered in the light most favorable to the successful party.” Lee v. Lee, Tex.Civ.App., 359 S.W.2d 654; Red Devil Club v. State, Tex.Civ.App., 307 S.W.2d 627; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819.

The granting or refusing of a temporary injunction is addressed to the sound discretion of the trial judge, and his determination will not be disturbed on appeal unless a clear abuse of discretion is shown. 31 Tex.Jur.2d, § 37, p. 89. Southwest Weather Research, Inc., v. Duncan, 160 Tex. 104, 327 S.W.2d 417; Dallas General Drivers, Warehousemen and Helpers v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873.

The contract, signed by the parties on March 12, 1964, the only contract in ef-feet at the time the difficulties herein arose, provided that it could be terminated at any time by either party “on written notice to the other.” SCM did not exercise its right to terminate this contract at any time. The trial court might well have found from the evidence that the change of the plan of payment by SCM was a breach of this contract under which the parties were operating. It is well settled law that a former employer cannot enforce a negative covenant in a contract of employment by temporary injunction where it has breached the contract. Langdon v. Progress Laundry & Cleaning Co., Tex.Civ.App., 105 S.W.2d 346 (wr. ref.) ; 155 A.L.R. 164.

If the contract had provided for a change of the wage rate, the result would be opposite to that in the Langdon case. National Linen Service Corp. v. Summers, Tex.Civ.App., 251 S.W.2d 795. We therefore conclude that the trial court did not err in refusing the temporary injunction based on this negative covenant.

This brings us to a consideration of whether the trial court erred in refusing to grant a temporary injunction to appellant, against both Triplett and Ritch, based upon the common law prohibiting unfair competition by former employees with their former employer. SCM was engaged in the business of selling SCM photocopy machines, and paper and other supplies used in those machines. The area assigned to Triplett was Bexar County and sixty other South Texas counties, but SCM has stated that if the Court decides that the sixty-one county area is an unreasonably large territory, then and in that event it asks that the temporary injunction be confined only to Bexar County. Appellant contends that the list of customers to whom SCM photocopy machines have been sold is a secret and confidential list, and constitutes a trade secret which it is entitled to protect by a temporary injunction. There was no question but that Triplett knew this list because he had sold all but six of these machines, and Ritch undoubtedly knew this list because he had worked for SCM as a repair and maintenance man on these machines. Triplett contends that this list of customers was not a trade secret because it was easily ascertained by telephone calls to business houses and professional offices in Bexar County. Triplett testified that he had employed the “Kelly Girls,” who by the aid of a Chamber of Commerce list and telephone directory were able to secure a list of not only the location of SCM photocopy machines, but of machines sold by many other firms. The trial court had a right to believe this testimony and to impliedly find that the list of SCM customers was readily ascertainable by anyone, and was therefore not a trade or business secret. There are some nine competitors engaged in the same business as SCM in Bexar County, and two of them, Allen Goldsmith and Vernon Alien-caster, testified that they knew the location of all of the SCM machines sold in Bexar County, but that it took some trouble and considerable expense to secure this list. Appellant has cited cases, among them Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763, and K. & G. Oil Tool & Service Co. v. G. & G. Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782, holding in effect that a company was entitled to protection against former employees using its trade secrets which they had learned about in confidence, but in each of these cases something quite different from a list of customers that could readily be obtained from a Chamber of Commerce list and telephone directory was involved. Appellant also cites the cases of SCM Corporation v. Apex Copy System, Inc., decided on May 21, 1965, in the State of New York and not yet published, and Town & Country House & Home Service, Inc. v. Newbery, 3 N.Y.2d 554, 170 N.Y.S.2d 328, 147 N.E.2d 724. These cases are from a foreign jurisdiction and we feel they may be distinguished from the fact situation we have here.

A very good statement that might well be applied here is found in Haut v. Rossbach, Court of Chancery of New Jersey, 128 N.J.Eq. 77, 15 A.2d 227, also found in Regulation of Trade, Kronstein and Miller, p. 608, and reads as follows:

“The general rule is well established that, unless prohibited by a valid contract, a former employee may properly sell to customers of his late employer, in competition with him. Salomon v. Hertz, 40 N.J.Eq. 400, 2 A. 379; Newark Cleaning & Dye Works v. Gross, 97 N.J.Eq. 406, 128 A. 789; Maas & Waldstein Co. v. Walker, 100 N.J.Eq. 224, 234, 135 A. 275; Id., 102 N.J.Eq. 328, 140 A. 921; Lewitter v. Adler, 101 N.J.Eq. 74, 137 A. 541; Bond Electric Corp. v. Keller, 113 N.J.Eq. 195, 166 A. 341; Automobile Club v. Zubrin, 127 N.J.Eq. 202, 12 A.2d 369. By exception to the rule Vice Chancellor Backes, in the Gross case, observed that there are cases where courts have interfered to protect the owner of a business ‘against invasion upon list and route customers by former drivers and solicitors, where the customer is latent or the field potential.’
“The general rule, and not the exception, applies, where the former employer is a manufacturer or wholesaler dealing with jobbers or retail merchants. The names of the customers are not a trade secret for everyone knows they buy from someone. The Salomon, Maas, & Waldstein and Bond Electric cases are examples. Likewise, where the complainant sells to members of a readily ascertained class, even though some of the class do not buy like services or articles from anybody. Thus the Newark Cleaning & Dyeing Company was a wholesaler. Defendant’s knowledge of the names of the company’s customers, gained through his employment by it, was not considered a trade secret, since any interested person could readily compile a list of retail cleaners and dyers, although he would be ignorant, until he made inquiry, whether any particular retailer did his own cleaning and dyeing or had it done by a wholesaler. Lewitter was in the window cleaning business. Everyone having show windows must clean them and will probably engage a professional window cleaner if the latter will do the work well enough and cheap enough. In the Zubrin case, the complainant was engaged in selling automobile liability insurance. Defendant, a former employee, became an automobile insurance broker, at liberty to solicit complainant’s customers. Every automobile owner was a prospect for both complainant and defendant, although many automobile owners do' not carry insurance.
“The exception suggested by Vice Chancellor Backes has been applied in. one case, Abalene Exterminating Co. v. Oser, 125 N.J.Eq. 329, 5 A.2d 738, 739. Complainant was in the business of exterminating insect and rodent pests. The court held that information of the names and addresses of complainant’s, patrons, which was acquired by an employee, was complainant’s property which would be protected by injunction. ‘It was not information that was available to or could readily be obtained by the public or any other individual.’ While Vice Chancellor Buchanan in this opinion disapproves Lewitter v. Adler, supra, I think the cases do not conflict. All property owners, especially those whose buildings have large windows, must have their windows cleaned, just as all automobile owners are potential buyers of liability insurance; while, on the other hand, most property owners do not suffer from insects and rodents to such an extent as to require the service of an exterminator and the ones who do need such service, do not advertise the fact. A list of such prospects can be compiled only at considerable expense. Here is the distinction.”

There is another reason why the trial court did not abuse its discretion in refusing to issue a temporary injunction, because it would have in all probability given appellant all the relief to which it would be entitled on the final hearing, insofar as in-junctive relief is concerned. 31 Tex.Jur.2d, § 30, p. 79; Ledel v. Bill Hames Shows, Inc., Tex.Civ.App., 367 S.W.2d 182. The contract provided that Triplett would not compete with appellant for a period of six months after his employment was terminated. This occurred on April 20, 1965, when Triplett tendered his resignation and began competing with appellant almost immediately. No application for a temporary injunction was filed until July 9, 1965, more than two months after Triplett had begun competing with appellant and soliciting appellant’s customers for their business. There is no showing here that appellant could not have obtained a hearing on the merits of the case for a permanent injunction, together with a hearing for damages, at once or within a very short while. The temporary injunction was refused on October 18, 1965, and there is no showing that since that date appellant has made any effort to secure a hearing on the merits of the case in the trial court. Ledel v. Bill Hames Shows, Inc., supra. Yet appellant asks this Court to reverse the judgment of the trial court and now grant a temporary injunction, some eight months after Triplett began competing with appellant. There is a burden upon appellant to show diligence in trying to dispose of the case upon its merits in the trial court before it will have a right to expect this Court to issue a temporary injunction at this late date. 31 Tex. Jur.2d, § 30, p. 81; Texas Foundries, Inc. v. International Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460; Ledel v. Bill Hames Shows, Inc., supra.

The trial court did not abuse its discretion in refusing to grant a temporary injunction. The judgment is affirmed.

BARROW, Justice.

I concur that the trial court did not abuse its discretion in refusing to grant this temporary injunction pending trial on the merits.