author: DIXON, Chief Justice.

text:
    Barney FISHER, Appellant, v. Gilbert P. HOWARD, Appellee.
    No. 16475.
    Court of Civil Appeals of Texas. Dallas.
    April 2, 1965.

      Donald G. Gay, Dallas, for appellant.
    Gilbert P. Howard and E. L. Markham, Ji., Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Gilbert Howard filed suit and obtained a summary judgment against appellant Barney Fisher for debt and for foreclosure of an attachment lien, the debt being evidenced by a promissory note.

In addition to his answer appellant had filed a cross-action in which he asked judgment against appellee for $15,000 actual damages and $35,000 exemplary damages for alleged wrongful attachment. Neither pleading is verified.

The court upon motion of appellee severed appellee’s suit and appellant’s cross-action, then sustained a motion for summary judgment filed by appellee in his suit and rendered judgment in favor of appellee for $7,019.99, being principal, accrued interest and attorney’s fee, and for foreclosure of the attachment lien. Only the judgment in favor of appellee on appellant’s note and the foreclosure of the attachment lien are involved in this appeal.

The promissory note which is the basis of appellee’s suit and judgment is dated February 25, 1964, payable on demand in the principal sum of $6,300.

In his first two points on appeal appellant contends that the record presents genuine issues of fact (1) as to whether the note was due, and (2) as to whether the note was procured by false representations upon which appellant relied with reference to the due date of such note.

In his counter-affidavit appellant makes these allegations:

“Contemporaneously with the signing of such note and as a part of the same transaction I signed a check in the amount of $3,000.00 payable to Gilbert P. Howard and we agreed that such check when cashed would be credited upon said note as the first payment thereon. We further agreed that such check would not be cashed or presented to the bank for payment until I completed a loan or financing upon certain interests in oil and gas leases owned by me. We further agreed that I was to call Gilbert P. Howard when such financing was completed and that he was to then present the check to the bank for payment. Such financing has not yet been completed and the first payment upon such note is not yet due.
“As a part of the same transaction the said Gilbert P. Howard represented to this affiant that such note was not due at any particular time and this af-fiant in reliance upon such representation and in reliance upon the agreement of the said Gilbert P. Howard that such check would not be presented for payment until after this affiant’s bank financing was completed this af-fiant signed and delivered said note and check.”

We have concluded that appellant does not by his counter-affidavit raise material defensive fact issues to appellee’s suit.

The promissory note which is the basis of appellee’s suit is regular on its face, is unambiguous in its terms and is an unconditional promise to pay on demand.

Appellant contends that the parol evidence rule is not applicable in this case for two reasons: (1) the agreement of the parties is evidenced by two writings, the note and the check for $3,000 and parol testimony is admissible to show the connection between the two writings; and (2) execution of the note was induced by false representations of appellee. We see no merit in either contention.

In his affidavit in reply to appellee’s motion and affidavit appellant does not deny that he signed the note, or that he owes the amount of money named in the note. In fact, he admits that he signed and delivered the note and that he owes appellee the amount of money named in it. He even alleges that he is trying to borrow the money to pay appellee. But he claims that the note is not yet due.

In effect appellant seeks to vary the terms of the note by showing that the unambiguous terms of the instrument do not express the true agreement of the parties as to payment. Such an attempt to vary the terms of the note will not defeat a summary judgment. In Helmke v. Prasifka, Tex.Civ.App., 17 S.W.2d 463 it is held that there is a distinction between a parol condition affecting the delivery of a written obligation and one affecting its payment. A parol agreement affecting delivery of a negotiable instrument is enforceable by virtue of the Negotiable Instruments Act, Sec. 16, Art. 5932, Vernon’s Ann.Civ.St.; whereas a parol condition affecting payment of a delivered instrument is not enforceable if it operates to add to, take from, or vary the terms of the written agreement. In approving this holding our Supreme Court in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, has said that when facts entitling the moving party to prevail have been established, a motion for summary judgment will not be denied because a party has merely alleged matters which if proved would require that a different judgment be rendered, citing Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492.

It is true that sometimes the terms of a contract are spread over several different writings, and parol evidence is admitted to explain their relationship to each other. But that rule is not applicable here. Under the parol evidence rule extrinsic evidence is excluded whether such extrinsic evidence be oral or written, as is the check for $3,000 which appellant claims opens the door to evidence contradicting the terms of the promissory note. This phase of the pa-rol evidence rule is discussed by our Supreme Court in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30.

In the case now before us the note constitutes the agreement and obligation of the maker to pay. The check, which so far as the record shows is an unconditional order for payment at once, is simply one of the means or mechanics in accomplishing payment. It is not to be used in this case to contradict the payment provisions of the note.

Appellant points out that there was no presentment of the instrument for payment. Whether there was a presentment is immaterial here for two reasons: (1) presentment of a demand note is not necessary, Art. 5937, Sec. 70, V.A.C.S., 9 Tex.Jur.2d 188, 197, 251; and (2) by the express terms of the note appellant waived presentment.

In his affidavit appellant further asserts that he and appellee entered into an agreement contemporaneous with the signing of the note to the effect that the check he gave to appellee would not be presented for payment and the first payment on the note would not become due until appellant completed a loan on certain oil and gas leases. Such a defense is not tenable. If extrinsic or parol evidence were admissible to prove such an agreement the note might never become due, for appellant could decide not to complete the loan, or might find it impossible to do so, hence appellant might never become liable for payment. Thus an unambiguous and absolute written obligation to pay would be changed into no obligation at all on the part of the maker. The law is that a negotiable instrument, clear and express in its terms, cannot be varied by parol agreements or representations of the payee that the maker will not be liable. Roseborough v. Phillips, Tex.Civ.App., 389 S.W.2d 593; Bohannon v. Franklin Nat'l Bank of Long Island, Tex.Civ.App., 387 S.W.2d 699; Kane v. Union State Bank, Tex.Civ.App., 384 S.W.2d 358, 361; Johnson v. Packaging Corp. of America, Tex.Civ.App., 375 S.W.2d 780, 782; Dewey v. C. I. T. Corp., Tex.Civ.App., 374 S.W.2d 298; Dean v. Allied Oil Co., Tex.Civ.App., 261 S,W.2d 900.

In the face of the undisputed facts presented by the record we cannot agree that appellant’s affidavit that appellee represented “that such note was not due at any particular date” raised a fact issue of fraud which defeats appellee’s summary judgment.

Strictly speaking, the note in fact does not designate any calendar date on which it was to become due, but as a matter of law a demand note is due, though not past due, the moment it is signed and delivered. 9 Tex.Jur.2d 70, 188, 197, 251.

Appellant relies on the rule that where one party has a fiduciary relationship to another, or is in possession of superior knowledge, his statement of a legal conclusion or opinion may constitute actionable fraud. That rule is not applicable here. Such defense must be affirmatively pled and supported by evidence to make out a fact issue. Though appellee is shown to be an attorney-at-law there is no showing whatever that he occupied a fiduciary relationship to appellant, or that appellant had any less knowledge of the matter than ap-pellee.

Among the cases cited by appellant is Altgelt v. Gerbic, Tex.Civ.App., 149 S.W. 233. The case is not in point for in it a relation of trust and confidence between the parties was shown by the record. Gerbic executed a lease as tenant; the landlord was an attorney; Gerbic told the attorney-landlord that he could not very well understand or read the English language and was not familiar with the city ordinances in regard to the operation of meat markets; he sought the professional advice of the attorney-landlord and said he would trust the attorney-landlord in regard to his right to operate a meat market on the premises. He was advised that there would be no legal interference with his operation of a meat market. The truth was that an ordinance of the City of San Antonio forbade the operation of a meat market at that location. The court held that the representations of the attorney constituted fraud. We agree. But no such situation is presented in the instant case.

In this case, as we have pointed out, appellant does not attempt to repudiate the debt, or deny the validity of the note because of the alleged misrepresentation. He admits he owes the money. His liability does not depend on the happening of any future event. He simply wants to choose his own time and manner of payment: he says he will start paying when he completes his financing and so informs appellee.

He says himself that the alleged misrepresentation was part of a contemporaneous oral transaction. But that transaction had no separate consideration to support it, and was a transaction on which as a matter of law he had no right to rely.

Furthermore, appellant’s claim that he relied on appellee’s representation is destroyed by the very defense he urges. In substance his only defense is that by agreement the note would become due on the particular date (not a designated calendar date) when he completed his financing and so informed appellee.

Appellant’s first two points are overruled.

In his third point appellant contends that the court erred in denying his plea to quash the attachment sued out by appellee because the property descriptions in the officer’s return and the judgment are not sufficient as a matter of law.

The challenged descriptions are quite lengthy and we shall not copy them here. They name certain oil and gas leases in which appellant owns interests, giving the dates, names, surveys and locations of said leases and in some instances referring to recorded instruments for further descriptions.

Appellee says that, appellant did not file a motion to quash the attachment. In paragraph No. IV of his amended answer appellant alleges that the attachment should be quashed and he prays that it be quashed. But he does not allege that the property descriptions are insufficient. The only grounds he alleges are that appellee’s affidavit is false because appellant does not intend to convert his property into money to defraud his creditors.

Appellant’s motion is really a plea to the merits and does not bring into question any intrinsic defect in the attachment proceedings. Minnehoma Financial Co. v. Johnson, 152 Tex. 386, 258 S.W.2d 78; Ramsey v. Gardner, 154 Tex. 457, 279 S.W.2d 584.

Furthermore, the descriptions in question are sufficient to furnish the means of identification. That is the function in a deed and the same rule applies to oil and gas leases. 42 Tex.Jur.2d 289; 19 Tex.Jur.2d 423, 424. Appellant’s third point is overruled.

In his fourth point appellant attacks the allowance of an attorney’s fee on the ground that the pleadings show that ap-pellee acted as attorney for himself.

At the end of his petition and his motion for summary judgment appellee’s name is typewritten along with that of E. L. Markham, Jr. as attorneys for plaintiff. Appel-lee did not sign the pleadings or the motion. They were signed by E. L. Markham, Jr. Appellee in his affidavit says that he was named as one of plaintiff’s attorneys in order that there be no question as to his being informed of any and all notices and developments in said suit.

Appellee further states in his affidavit that upon appellant’s failure and refusal to pay the note he placed the instrument in the hands of E. L. Markham, Jr., an attorney, for collection and agreed to pay him the 10 per cent attorney’s fees provided in the note.

We are of the opinion that the court properly allowed 10 per cent attorney’s fees. The appearance of Markham as attorney for appellee is sufficient evidence that the note was placed in his hands for collection. Temple Nat’l Bank v. Blackburn, Tex.Civ.App., 235 S.W.2d 462; Bonnell v. Prince, 11 Tex.Civ.App. 399, 32 S.W. 855.

Neither in his answer nor his affidavit does appellant attack the reasonableness of the amount of the attorney’s fees. In his brief he cites us to 6 Tex.Jur. 1025 (9 Tex.Jur.2d 365) as authority that the reasonableness of the amount of attorney’s fees is a fact question. The statement is no doubt correct when the reasonableness is put in issue by way of affirmative defense. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; 6 Tex.Jur. 1024—1025. See also 9 Tex.Jur.2d 365. No such defense was interposed by appellant in this case.

Appellant also asserts that cases dealing with the fixing of attorneys’ fees by the trial judge when acting as the trier of facts have no application to a summary judgment proceeding. Himes v. American Home Fence Co., Tex., 379 S.W.2d 290. However, we are not concerned here with a case where the trial judge was called on to fix the amount of the attorney’s fee. Here the parties themselves fixed the amount by contract as shown on the face of the note. The applicable rule here is that stated in Kuper v. Schmidt, supra. Appellant’s fourth point is overruled.

The substance of appellant’s fifth point is that the court abused its discretion in ordering a severance of his cross-action. We cannot agree. Appellant apparently bases his contention on two grounds: (1) his cross-action was in the nature of a compulsory counterclaim, therefore could not be severed; and (2) no written motion to sever was filed.

We see no merit in either ground. A separate action may be maintained for wrongful sequestration and we believe the same rule applies to wrongful attachment. Capetillo v. Burress & Rogers et al., Tex.Civ.App., 203 S.W.2d 953; 6 Tex.Jur.2d 648; 6 Tex.Jur.2d 661. Therefore it was not error for the court in the exercise of its discretion to order severance of appellee’s suit on the note and foreclosure from appellant’s suit for damages for wrongful attachment. Permian Mud Service, Inc. et al. v. Sipes, Tex.Civ.App., 339 S.W.2d 81; Moore v. Mathis, Tex.Civ.App., 369 S.W.2d 450, 453; Rules 41, 174(b), Texas Rules of Civil Procedure.

The transcript contains no copy of a motion for severance, but the court’s judgment contains this recital, “And it further appearing to the Court on hearing of Plaintiff’s Motion for Severance * * *." Anyway the court had authority to sever the causes of action on its own initiative. Appellant’s fifth point is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant, v. Linda Kay HAYNIE, Individually and by and through her next friend, Erma Haynie, Appellees.
    No. 4363.
    Court of Civil Appeals of Texas. Waco.
    April 8, 1965.

      Conway, Brigham, Bice & Cowden, Waco, for appellant.
    Dunnam & Dunnam, W. T. Phillips, Waco, for appellee.
   TIREY, Justice.

This is a compensation case. It was brought by Linda Kay Haynie, individually and by and through her next friend, Erma Haynie, against St. Paul Fire & Marine Insurance Company. The cause was submitted on special issues in which the jury answered favorably to the claimant and found total and permanent disability, and the Court rendered judgment for plaintiff in the sum of $12,116.00 and for costs, and fixed attorney’s fees at 30% of the judgment.

The judgment is assailed on one point. It is:

“The Court should not have admitted Plaintiff’s Exhibit No. one (1) containing the statements of Dr. J. R. Shipp and Dr. Eldon B. Fine because the statements of the doctors were not records kept in the usual course of business of Providence Hospital and were therefore hearsay.”

Appellee’s counterpoint is:

“This point is not raised by assignment in Appellant’s Motion for New Trial and the objection in the Trial Court omitted any grounds therefor, so said point is not subject to consideration by this Court.”

We sustain appellees’ counterpoint.

It is appellant’s contention that its Point 1 is grounded upon paragraph 3 of its motion for new trial. Paragraph 3 is:

“That plaintiff and her attorneys offered evidence of what doctors had told plaintiff regarding her condition or injuries after the Court had sustained Defendant’s Motion in Limine in this regard.”

Pertinent to this discussion we quote paragraph 3 of Appellant’s Motion in Limine:

“That plaintiff and her attorneys be instructed not to read pleadings nor present evidence as to what any doctor or doctors may have told plaintiff or her attorneys regarding her condition or injuries.”

This motion was presented to the Court before the jury was examined on voir dire and the Court sustained the exception contained in paragraph 3 quoted.

Mrs. McDaniel testified to the effect that she was a Medical Records Librarian at Providence Hospital, and that she had control and custody of the medical records. She testified specifically:

“Q. I hand you this instrument marked P-1 and will you state whether or not that is a complete hospital record of Linda Kay Haynie for her hospitalization, with admittance date of January 26, 1964?
“A. Yes, it is.
“Q. Is this record used in the regular course of business of that hospital to keep accurate records and reduce occurrences out there to writing at the time of the occurrence ?
“A. Yes, sir.
“Q. And were these records so kept?
“A. Yes, sir.
“Q. In the usual course of the business at Providence Hospital?
“A. Yes, sir.”

After the foregoing testimony plaintiffs offered exhibit P-1 in evidence. Before it was admitted, we quote the cross-examination of the witness by appellant:

“Q. Mrs. McDaniel, the statements that I see here, a doctor’s statement, these are not records of Providence Hospital, are they? These are statements that doctors prepare and mail to you, is that correct?
“A. No, sir.
“Q. Well, at least they—
“A. That particular one was dictated in the hospital as a hospital record and transcribed in the hospital.
“Q. All right. And this is a statement by a doctor, is that correct?
“A. That’s right.
“Q. It has nothing to do with the actual keeping of the records by the nurses or anyone like that, does it?
“A. There are so many parts to the medical record: there’s a doctor’s part of the record and a nurse’s part of the record, and a laboratory; but are you talking about that white page?
“Q. Yes, ma’am.
“Q. That’s part of the hospital medical records, but it’s a doctor’s history of the patient.
“Q. * * * But insofar as this doctor, he is not employed by Providence Hospital, is he?
“A. No, sir.
“Q. None of these doctors are. * * *
“A. Yes — no. There are statements in the record made by doctors employed by the hospital in the x-ray and laboratory.
“Q. * * * But with regard to Dr. Fine and Dr. Shipp, they’re not employed by Providence Hospital in any manner, are they?
“A. No, they’re not.”

Before conclusion of the cross-examination, appellants’ attorney made the following objection:

“ * * * we object to the statements of the doctors that are not employed by Providence Hospital. We have no objection to the rest of the record, other than that part.”

On re-direct examination the witness testified:

“Q. Every record in there is a part of the hospital records of that hospital, aren’t they?
“A. Yes.
“Q. And it’s kept by the hospital in the regular course of their business to have the attending physician put down his findings also, isn’t it? Isn’t that right?
“A. Yes.
“Q. And it’s a part of your record, regardless of who has to be paying his salary, isn’t it?
“A. That’s right.
“Q. And your nurses on a seriously injured person up there who has a special nurse at night, she’s paid by the individual and not the hospital, isn’t she?
“A.' That’s right.
“Q. But still her findings are made and her notes are made in the regular course of the business of that hospital, aren’t they?
“A. Yes, sir, they are.
“Q. And regardless of who is paying her salary, whose employee, it’s still made in the regular course of their business and it’s their hospital and medical records, isn’t it?
“A. Yes.”

At the conclusion of the foregoing testimony the court admitted Exhibit one (1) in evidence, and plaintiffs’ attorney read it to the jury.

As we understand appellant’s position, it is to the effect that since the Court sustained its Motion in Limine wherein it instructed plaintiffs and their attorneys not to read pleadings nor present evidence as to what any doctor or doctors may have told her or her attorneys regarding her condition or injuries, that the introduction of Exhibit one (1), over the objection made, violated the Court’s instruction and it was prejudicial, and that it will require a reversal and remand of this cause. Its contention is grounded on the pronouncements made in Traders & General Insurance Company v. Wheeler, Tex.Civ.App., 271 S.W.2d 679; White v. Lilley, Tex.Civ.App., 286 S.W.2d 296; Pappas v. Guarantee Ins. Co., 5 Cir., 217 F.2d 681, and National Surety Corporation v. Moore, Tex.Civ.App., 386 S.W.2d 327. We are not in accord with this view.

Appellant contends that the statement by Dr. Fine shown in the exhibit is prejudicial, and the part complained of is:

“This fifteen year old white female was involved in a car wreck and suffered multiple injuries, including compression fractures of the sixth and seventh dorsal vertebrae.”

The balance of the statement made by Dr. Fine, and not complained of, is:

“These will be treated by bracing. Once she is fitted with the brace she will be ambulatory and will be allowed to return to school and to limited activities. Healing will require approximately 4 months and she will then start coming out of her support. She should have regained mobility and back strength at about six months. There is now no neurological deficit and 1 anticipate none. It is much too early to evaluate how much disability, if any, will result from this injury.”

This statement was signed by “Eldon B. Fine.”

The statement in the exhibit made by Dr. Shipp complained of is:

“This patient was brought into the ER by ambulance. I was told that she was in a car accident at 18th and Maple. She was struck in the side She stated that the car spun around severl times and ended up with her head hanging out of the door and the feet out the other side. She struck the steering wheel and dashboard in the process.
* * * * * *
“PE: shows a female lying in the ER, hysterical and complaining of very severe pain and pleading with people not to move her. There is a contusion over the rt eye with ecchymosis into the eye.
* * * * * *
“This patient was admitted. She was treated for concussion and abrasions and contusions. X-rays were made which showed a fracture of the 6th and 7th dorsal vertebrae. She was referred to Dr. Fine for definitive treatment.”

This statement is signed: “J.R.S., M.D.”.

Neither Doctor Shipp nor Doctor Fine was called as witnesses.

Since we are of the opinion that appellant’s point one (1) was not raised in its motion for new trial we are precluded from considering it on its merits. Our action in this regard is supported by our Supreme Court in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. This opinion is comprehensive and clear and comment upon it would be of no avail. As to the office, purpose and effect of a Motion in Limine, see opinion of our Supreme Court in Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, and opinion of Supreme Court in Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, “Motion in Limine,” p. 335.

The appellant contends that since it did not have an opportunity to cross-examine Drs. Shipp and Fine with regard to the statements regarding the condition of the eye and back of the appellee, it follows that the jury took these statements into consideration and caused them to return a verdict of total and permanent disability, and that the Court’s action in admitting the Exhibit 1 showing the hearsay statement of Drs. Fine and Shipp, constitutes reversible error, and that the cause should be reversed and remanded.

If we could reach this point on the merits, the majority is of the view that appellant’s contention should be overruled because of the provisions of Art. 3737e of Vernon’s Ann.Tex.Civ.St., and the authorities construing it. The majority thinks this record shows that the statements made by Drs. Shipp and Fine were made in the regular course of business. It is true that neither Drs. Shipp nor Fine was an employee of Providence Hospital at the time they were made. As we understand the record, we think we may assume that Drs. Shipp and Fine were both on the staff, otherwise they would not have been permitted to practice in the hospital, and were required to follow the rules and regulations of the hospital with reference to making such records as required by the hospital to show the treatment and condition of their patients. See Missouri Pac. Railroad Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, points (5, 6) page 286. We think that in so doing they were representatives of the hospital under the provisions of the statute, notwithstanding the fact they were not actually employed by the hospital. We think the record shows that the statements made by Drs. Shipp and Fine were made near the time of the purported injuries sustained by the plaintiff, or reasonably soon thereafter. As we understand the record Dr. Shipp’s statement was dictated while he was in the hospital and was transcribed thereafter by someone in the hospital, and he signed it, and it became a part of the permanent records of the hospital. We are of the further view that the record shows that Dr. Fine made his statement while at the hospital, and he signed it, and the record shows that his diagnosis was part of the permanent records of the hospital. Section 2 of the foregoing article provides that the memorandum or record may be proved by the testimony of the custodian or other qualified witness, even tho he may not have personal knowledge as to various items of the contents of the memorandum or record, and further provides that such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility. The foregoing article has been construed many times, but the controlling decision was written by the Austin Court in Travis Life Ins. Co., v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256; approved by Supreme Court in 160 Tex. 182, 328 S.W.2d 434.

We have carefully reviewed the factual situation in the Rodriguez case, and we think it is very similar, in many respects, to the factual situation here before us, and which we have set out in question and answer form. In the foregoing opinion we find this statement:

“The ‘hearsay’ rule has many exceptions, most of which are court made. We know of no limitation upon the Legislature preventing it from creating an exception to the hearsay rule in civil cases. We believe that this is exactly what the Legislature did when it enacted Art. 3737e. We believe it is a valid statute and one which the courts should enforce.”

Again, in this opinion we find this statement:

“We cannot believe the N.R.E. in that case (Pan American [Pan American Ins. Co. v. Couch, Tex.Civ.App.], 305 S.W.2d 819) was intended to approve the holding that the fact that the doctor’s report was hearsay made it inadmissible under Art. 3737e. If this is correct then such article and similar articles have little, if any, value.” (parenthesis ours)

(Doctor’s testimony is opinion testimony and opinion testimony does not establish any material fact as a matter of law). See Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345.

Since our Supreme Court approved the construction placed on the foregoing statute by the Austin Court (328 S.W.2d 434) we think the above quotes from the opinion are entitled to great significance. The Supreme Court again gave its approval to the holding of the Austin Court in Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W.2d 298, pt. 10, page 306, and cases there cited. This Court followed the Austin Court in State Automobile and Casualty Underwriters v. Reagan, Tex.Civ.App., 337 S.W.2d 522, n. w. h., in a very similar factual situation as we have here. In 38 Tex.Law Rev., 645-48, is a very fine discussion of the foregoing statute, and in such discussion we find this statement:

“To admit into evidence all diagnoses contained in properly qualified hospital records seems the clear mandate of the Texas Business Records Act.”

For the reasons above stated the majority is of the view that if it could reach appellant’s point 1 on the merits it would overrule the same and hold that exhibit one (1) in its entirety was admissible. See also Western Fire & Indemnity Co. v. Bradshaw, Tex.Civ.App., 356 S.W.2d 832, (n. r. e.); Missouri Pacific Railroad Co. v. Watson, Tex.Civ.App., 346 S.W.2d 640, (n. r. e.); White v. McElroy, Tex.Civ.App., 350 S.W.2d 249, (n. r. e.).

Accordingly, the judgment of the Trial Court is affirmed.


author: BELL, Chief Justice.

text:
    D. H. McDONALD, Appellant, v. Robert DAVIS et al., Appellees.
    No. 14411.
    Court of Civil Appeals of Texas. Houston.
    March 18, 1965.
    Rehearing Denied April 15, 1965.

      Herbert Finkelstein, Houston, for appellant.
    Ross, Banks, May & Cron and Douglas E. Baer, Houston, for appellee on motion for rehearing.
   BELL, Chief Justice.

Appellant sued appellees, Robert Davis and his partner, Douglas Robinson, for damages for wrongful breach of a contract which gave appellant the exclusive right, for a period of six months, to sell a Drive-In Grocery store. After trial to the court without intervention of a jury, judgment was rendered that plaintiff take nothing.

The contract which was dated November 17, 1962, reads as follows:

“To McDonald Realty
For and in consideration of your agreement to list and for your efforts to find a purchaser, I/we Douglas Robinson and Robert D. Davis, the undersigned, hereby authorize and give you, above named, the exclusive right, privilege, and agency for a period of 6 Mos. from this date, and thereafter until written notice of termination of this agreement is given, to sell at a price of $11,500, or any sum that I/we may accept, the property described as follows, to-wit: A Drive-in Grocery Located 5605 Spencer Hiway, Houston, Texas. Better known as D & D Grocery.
If said property is sold or exchanged during the term of this agreement, or if sold within three (3) months after the expiration of this agreement to any purchaser to whom it may have been submitted by you before the expiration of this agreement, I/we agree to pay you a commission of 10% of the sale price, at Houston, Texas.
I/we agree to furnish title policy and make proper conveyance of this property.
You are hereby authorized to place suitable signs on this property and remove other signs.
Accepted:

Mr. McDonald testified that he put an advertisement in the paper showing he had “drive-in grocery stores” for sale and that he showed this grocery store several times. He testified specifically to having shown it twice to a Mr. Falco. On Mr. Falco’s second visit to the store in December, 1962, a lady at the store told him the property had been leased. This was on a Saturday. On the following Monday he talked by telephone to Mr. Davis. Davis said it was leased but the lease would not interfere with the sale as it was transferable. He then testified Mr. Davis told him they would not sell, that they could do what they wanted to with the property.

Mr. Falco testified that he saw the ad Mr. McDonald put in the paper and went to see him. McDonald showed him the place belonging' to appellees. He was considering buying it but never did because the lady at the store told them it was not for sale.

On January 17, 1963, within the six months’ period of the exclusive right to sell, Davis wrote the following letter addressed to McDonald Realty:

“We recently signed an exclusive listing agreement with you. The listing concerned the sale of D & D Grocery at 5605 Spencer Highway, Pasadena, Texas.
“We have decided not to sell this property at this time and, to save you further expense and trouble, we request that you remove this piece of property from your listings and from the market.”

It is noted that nowhere does the record show that any sale was made of the property. A question asked by appellees’ counsel suggests that in December, 1963, after the six months’ period, it was sold for the debts against it. This is not evidence.

Appellant’s theory is that appellees breached their contract by leasing the property and withdrawing it from the market, thus making performance by appellant impossible. The mere leasing, where the lease is transferable, is not of itself sufficient to show a breach by appellees. Appellant must, therefore, rest on a breach by reason of the withdrawal of the property from the market. We notice appellant pled impossibility of performance because of the lease and because of some alleged sale of the property. A sale is not shown, but undis-putedly appellees withdrew the property from the market. This was proven without objection and we will treat this breach, if it was, as being tried by consent because the court found as a fact that the property had been withdrawn from the market. Appellant’s theory is also that his damages are prima facie the amount agreed upon as a commission.

We have no brief from appellees and they pled only a general denial. We divine from the record it is their theory that appellant would be entitled to damages only if a sale was made and that they could withdraw the property from the market at any time before sale without any liability for damages. Too, of course, they contend, no sale was ever made and further appellant proved no damages.

This suit is not one for a commission but is one for damages for breach of contract by appellees. The breach occurred when ap-pellees withdrew the property from the market. This deprived appellant of the opportunity to perform. This is appellant’s theory of recovery.

Whether appellant is correct depends on whether there was a unilateral or bilateral contract. This is not a mere offer by appellees that they would for six months make appellant their exclusive agent to look for a purchaser and if he produced a purchaser within that time he would pay appellant a commission. If such were the case, appellees could revoke the authority at any time before a purchaser was produced and would not be liable for damages. The reason is that the owner’s undertaking is merely that if a purchaser is produced he will pay a commission. This is a mere offer that can be revoked at any time before acceptance. Acceptance is, within the terms of such an offer, to be made by producing a purchaser. No consideration exists until the purchaser is produced. Here the contract is bilateral. The appellant by the terms of the contract agreed as a part of the consideration for appellees’ giving him the exclusive right to sell for a period of six months that he would list the property. Too, it was expressed that a part of the consideration was the effort of appellant to find a purchaser. Though there was no express promise to exert efforts to find a purchaser, the evidence shows without dispute that appellant advertised that he had drive-in groceries for sale, that Mr. Falco answered the ad and that appellant took Mr. Falco to see the property on two occasions. Nothing further was done after the second visit because appellees withdrew the property from the market, thus revoking appellant’s authority and making performance by appellant impossible. There resulted an enforceable contract giving appellant the exclusive right for six months to sell the property. Mechem, Law of Agency, Second Edition, Secs. 2451, 2453 and 2454; Park v. Swartz, 110 Tex. 564, 222 S.W. 156; Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884; Holmes v. Holik, Tex.Civ.App., 238 S.W.2d 260, error dism.; Simpson v. Mooney J. Sherman & Son Co., Tex.Civ.App., 223 S.W.2d 42, no writ hist.; Lewis v. Smith, Tex.Civ.App., 198 S.W.2d 598, dism. w. o. j.; Patton v. Wilson, Tex.Civ.App., 220 S.W.2d 184, ref., n. r. e.; McFarland v. Lynch, Tex.Civ.App., 159 S.W. 303, no writ hist.; Bell v. Dimmerling, 149 Ohio St. 165, 78 N.E.2d 49.

The principal may of course revoke an agent’s authority where not coupled with an interest, hut there is a distinction between his power to revoke and his right to revoke. He at any time before full performance can revoke the authority of an agent so the agent will lose his authority to bring the principal into legal relations with a third party. However, if he has no right to revoke it, he will he liable for damages suffered by the agent by reason of the wrongful revocation. Where, as here, there is a bilateral contract, the principal has no right to revoke to the prejudice of the agent. See authorities above cited; Pickett et ux. v. Bishop, 148 Tex. 207, 223 S.W.2d 222; and Brigham v. Cason, Tex.Civ.App., 233 S.W. 530, no writ hist.

Where a principal breaches the contract, he becomes liable in damages. Where, as here, suit is for breach of a contract granting the agent the exclusive right for a definite period of time to sell property, the damages are for breach of contract and not for the commission promised if the agent sold. He is entitled to recover the reasonable profit he would have made. Prima facie that profit is the amount represented by the stipulated commission. Park v. Swartz, supra.

From the findings of fact and conclusions of law, and other matters in the record, it appears to us that the case was tried on the theory that appellees had the right to revoke at any time before a purchaser was procured and there would be no liability. Too, it appears there was never a sale within the period of the employment. In questioning of a witness it was suggested that the property was sold about a year after the contract was made for an agreement by the purchaser to assume the debts. The contract of employment provides an asking price of $11,500.00, or such an amount as appellees might agree upon. Because of the action of the trial court in holding no breach of contract, we must reverse the case. It is obvious to us that the matter of damages has not been fully developed. We, therefore reverse and remand.

Reversed and remanded.

On Motion for Rehearing

Appellees urge that in the case cited by us in which the broker was allowed recovery the property had been sold within the contract period by others than the broker but that this fact supplied the necessary certainty in damages whereas in this case there had been no sale. This is, of course, correct. However, the Supreme Court in Park v. Swartz et al., 110 Tex. 564, 222 S.W. 156, clearly states the rule applicable in Texas where a broker seeks to recover damages for a breach of his contract. The rule is not made dependent on whether the property has in fact been sold. The Court uses this language:

“The loss suffered by the plaintiff is the measure of his damages. That loss is the amount as fixed by the contract which he would have earned but for the wrongful conduct of the defendants in preventing him from earning it. Upon establishing the contract, his readiness and willingness to perform it, and that he was denied opportunity to perform it through its wrongful breach by the defendants, rendering its performance by him impossible, the plaintiff made out his case; and prima facie was entitled as damages to the amount which under the contract he would, presumably, have earned if his rights had been respected. If the plaintiff could not or would not have performed the contract, regardless of its breach by the defendants, it was incumbent upon them to make the proof. This, they failed to do. Their action alone, according to the record here, was responsible for the plaintiff’s being unable to perform it fully and completely. They denied him the right to perform it and are in no position to complain of the judgment.”

Later, in the case of Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, the Supreme Court held the trial court had erred in sustaining an exception to the following allegations by the broker, and held on the authority of Park v. Swartz a prima facie case was alleged:

“By the terms of the memorandum copied in the petition the defendant appointed the plaintiffs his exclusive agents for a period of sixty days to sell his property, agreeing to pay them a cash commission of five per cent. The petition alleges that the plaintiffs began a course of advertising the property, showed it to a member of prospective purchasers, and in other ways exerted themselves to make a sale, and that they would have continued their efforts to sell and the expenditure of money to advertise the property until it was actually sold, but for the defendant’s breach of the contract; and that the defendant, before the expiration of the sixty day period and without the knowledge of the plaintiffs, sold the property through another real estate agent. The suit is for damages on account of the defendant’s alleged breach of the contract.
“In our opinion the second special exception should have been overruled. Proof of the allegations contained in the petition would prima facie make a case for the plaintiffs.”

The motion for rehearing is overruled.


author: PHILLIPS, Justice.

text:
    James L. SMITH and Langston Smith, Appellants, v. Gordon SMITH et al. in re the Estate of Kate Montgomery Smith, Deceased, Appellees.
    No. 11281.
    Court of Civil Appeals of Texas. Austin.
    March 31, 1965.
    Rehearing Denied April 28, 1965.

      Will G. Knox, James R. Sloan, Austin, for appellants.
    Emmett Shelton, Austin, for appellees.
   PHILLIPS, Justice.

This case involves the contest of two wills executed by Kate Montgomery Smith, now deceased: the one, dated November 14, 1953, with a codicil dated June 15, 1955; the other, dated September 19, 1961. There is no doubt but that Mrs. Smith executed both wills and both were filed and sought to be admitted to probate in the County Court by rival heirs. Trial to the County Court of Travis County without a jury resulted in a judgment denying probate to either will. Upon appeal to the District Court in a trial before a jury, judgment was entered upon a jury verdict denying probate of the will of September 19, 1961 and admitting to probate the will of November 14, 1953 and the codicil thereto dated June 15, 1955.

We affirm the judgment of the trial court.

There is no question about the 1953 will other than the validity of the subsequent will. The codicil to the 1953 will removed Langston Smith, one of the appellants here, as a co-executor.

The controversy before us is the validity of the will of September 19, 1961 which, after voluminous testimony was presented, the jury found that Mrs. Smith did not have the testamentary capacity to execute the will and that in signing the will she acted under undue influence of the above-mentioned Langston Smith.

The appellants and proponents of the 1961 will are Langston Smith and James Smith both children of the deceased Kate Montgomery Smith. The appellees and proponents of the 1953 will are the remaining nine children of Mrs. Smith and one grandchild, the heir of a deceased daughter of Mrs. Smith.

Both wills divide the property among all of the heirs with the exception of the family home which, in the will of 1961, is left to appellant Langston Smith. This bequest of the homestead to Langston Smith is the bone of contention here.

Appellants are before us on seven points of error. The first three points, briefed together, are that the trial court erred in entering judgment denying probate of the will dated September 19, 1961 on the finding of the jury that Mrs. Smith did not have testamentary capacity because such finding is unsupported by any evidence of probative value and is contrary to all the evidence; that such finding is so contrary to the overwhelming weight and preponderance of the evidence as to be unreasonable, unjust and manifestly wrong; that the jury made the finding that Mrs. Smith did not have testamentary capacity as the result of extreme bias and prejudice in the minds of the jury created by evidence of acts of Langston Smith committed at times too remote from the date of said will as to have any relation to or bearing upon the testamentary capacity of Kate Montgomery Smith.

We overrule these points.

This case was fully developed and an extensive record was made. The statement of facts consists of some 635 pages of testimony and exhibits. There is ample evidence that Mrs. Smith did not have testamentary capacity at the time she signed the will; there is evidence to the contrary. The law, generally, in this regard, is that a finding that a testator was incompetent is sustainable on satisfactory evidence of the presence of disabling delusions notwithstanding testimony of witnesses that the testator appeared of sound mind at the time he executed the will. 61 Tex.Jur.2d, Sec. 339, p. 498.

At the time Mrs. Smith signed the will of September 19, 1961 she was 86 years old, beset by diabetes, high blood pressure, a broken pelvis and had been kept regularly under sedation. For some time she had required a full time practical nurse. Shortly after having signed the will, she was taken to the hospital and placed under a guardianship. Shortly after this, she was taken to San Antonio where she died.

According to the testimony of Dr. Davidson, her family physician and personal friend of long standing, she had had an attack of pneumonia in 1959 complicated by high blood pressure and hardening of the arteries which made her very ill. He stated that she had become irrational but later recovered, “I would think.” He stated that she “was clear most of the time” in 1961, although in September 1961 her “mental condition would waver * * * sometimes she would talk out of her head and * * * she would get people confused;” that her periods of mental confusion were generally in the evening, while in the morning her mind was usually clear. The will of September 19, 1961 was signed in the evening.

Appellees introduced Dr. Davidson’s affidavit into evidence incident to the placing of Mrs. Smith under guardianship. This affidavit stated that she was incapacitated on December 4, 1961.

There is also testimony from Dr. Davidson describing Mrs. Smith as being very intelligent, self-reliant and positive; that he considered her to be one of the finest women he had ever known, thoroughly religious and forgiving.

The only witnesses who testified as to Mrs. Smith’s mental condition on the evening of September 19, 1961 when the will was signed were a Mrs. Tom Kirkham, a neighbor of Mrs. Smith who visited her about once a week and Mrs. Myzell K. Chapman, a longtime friend who had visited her on the average of three or four times a week.

Mrs. Kirkham testified that at the time the will was signed Mrs. Chapman was with Mrs. Smith when she arrived, that she never noticed anything in Mrs. Smith’s conduct different from the other times she had been there; that Mrs. Smith carried on an intelligent conversation with them; that Mrs. Smith was an intelligent woman and could carry on an intelligent conversation about anything; that Mrs. Smith was coherent in her conversation.

As to the signing of the will, Mrs. Kirk-ham testified that while she and Mrs. Chapman were visiting with Mrs. Smith her son Langston Smith came into the room, brought in the will and handed it to Mrs. Smith; that she did not recall Mrs. Smith making any statement; that Mrs. Smith signed the will and then, to the best of her recollection, she and Mrs. Chapman went over to the bed and both signed as witnesses; that they resumed their visiting for a few minutes and both she and Mrs. Chapman left.

In answer to questions as to Mrs. Smith’s appearance and demeanor at the time Mrs. Kirkham testified that there was nothing in her demeanor to indicate that she did not know what she was doing and that there was nothing to indicate that she was under any pressure to sign the instrument. That she did not appear to be reluctant to sign the instrument and seemed to be glad that she was through with it.

The other witness to the will, Mrs. Chapman, testified that Mrs. Smith did not sign the will reluctantly; that she was anxious to sign it; that she signed it gladly and that she was alert. She also testified that on an occasion when she was visiting Mrs. Smith some two or three weeks before, Mrs. Smith told Langston Smith in her presence, “Son, I want that will fixed.”

A Mrs. Elmo (Lillian) Smith, the practical nurse who took care of Mrs. Smith from September, 1960 to February, 1961, testified that on several occasions Mrs. Smith had told her that she was going to leave her home to Langston Smith because he had been so good about taking care of her.

James Smith, Mrs. Smith’s oldest son who is joined with Langston as an appellant here, testified that while visiting his mother in August of 1961 she told him that she wanted to change her will so that the home place would go to Langston.

There is also testimony that Mrs. Smith had offered to leave the home place to a daughter if she would come and live with her and take care of her. Langston Smith and his wife had moved into Mrs. Smith’s home in February of 1961 and had assisted in her care.

A Mrs. Gwendolyn Johnson who acted as a housekeeper and maid for Mrs. Smith from June to September 19, 1961 and who was in daily contact with Mrs. Smith, testified that she was not “exact” and from her talk one could tell that she was “kind of off.” She testified that Mrs. Smith would speak of having conversations with her husband who had been dead for several years; the last few days before she left the Smith home on September 18, 1961 (the day before the will was signed) Mrs. Smith thought she had been with her husband and told the witness “last night I talked with my husband.” This witness stated that much of what Mrs. Smith said about this time she was unable “to get anything out of.”

Gordon Smith, a son, stated that he came to visit his mother immediately after he heard of the execution of the will of September 19, 1961 and that his mother did not recognize him and that she did not even know that he was in the house. When asked why he had not talked to his mother about the controverted will after he learned of its execution, this witness stated that he never thought his mother knew what she was talking about at any time he was with her after September 19, 1961. It was his opinion that Mrs. Smith did not know what she was doing on September 19, 1961.

Mrs. McCarty, one of the Smith childern who lived in San Antonio and had occasion to visit with her mother rather frequently, stated that along about September 1961 “there was never a day when you could talk to her and she would know what she was doing.” This was true after the will was executed and “for a good while before.” Mrs. McCarty recited the conversations she had had with her mother during Labor Day week-end of September 4, 1961 and stated that her mother did not have her mental faculties during that time; that her mother talked about being poisoned by someone and then about her squirrels being poisoned. Mrs. Smith said that someone was putting poison in her flour.

Mrs. Ruth Jobe and Mrs. Miriam Scheers, both daughters of Mrs. Smith, likewise testified that during the time in question her mother did not know what she was doing.

On the other hand, a Mrs. Dearing, a nurse who had attended Mrs. Smith in the hospital, testified that Mrs. Smith was of sound mind while she was in the hospital.

The abovementioned testimony of Dr. Davidson was from a former trial. At the time of this trial, Dr. Davidson had died, however there is testimony from a Dr. James E. Hill who, among other qualifications, had taught pharmacology and toxicology at the University of Texas Medical School. When shown a list of drug prescriptions containing narcotics that had been purchased for Mrs. Smith and the dosages prescribed, Dr. Hill was of the opinion that she could have been maintained in a toxic state comparable to intoxication from the excessive use of alcohol. That the use of these drugs could have caused her to be in a state, or condition wherein she was not clear at all times as to where she was, who the people around her were or actually aware of what she was doing.

There is no testimony of any witness, other than Langston Smith, that Mrs. Smith actually knew of the terms of the will at the time it was being drawn or that she knew the contents of the instrument at the time of its execution before the two witnesses. Langston Smith did testify that he had had an attorney draw the will from notes his mother had given him and that he had read the will to her several days before she signed it.

From this summary of the evidence we hold that there was ample testimony from which the jury could have come to the conclusion that Mrs. Smith did not have testamentary capacity to make a valid will on September 19, 1961.

Ordinarily, if the conclusion is reached on appeal that a decedent was incompetent, the court need not determine whether the evidence supports a finding by the jury on the issue of undue influence, 61 Tex.Jur.2d Sec. 339, p. 498. However in this case we have certain testimony regarding undue influence that has been objected to by the appellants in the trial court, and incorporated in their points of error before this Court, to the effect that the admittance of the testimony on undue influence was prejudicial to appellants, not only on the issue of undue influence, but also on the issue of testamentary capacity. For this reason we feel that we must discuss the evidence pertaining to undue influence which includes certain defalcations on the part of appellant Langston Smith.

Since the death of his father, Lon Smith, in 1947, Langston Smith, an attorney by profession, handled his father’s estate along with that of his mother. From 1947 until 1956, Langston had access to the testatrix’s records including her bank records, checks and statements. In 1955 Mrs. Smith learned from discrepancies in her bank balances that Langston had been embezzling money from the estate. At this time she added the codicil to her will mentioned above, wherein she removed Langston as a co-executor of her estate. He had been so designated by the will of 1953.

During 1955 and 1956, Mrs. Smith and certain other of her children attempted to find out exactly the amount Langston had taken. There is some variance in the testimony in this regard, however Langston admitted embezzling $18,135.23. He sold his home in an attempt to make restitution which allowed him a credit of $4,932.82. As we understand the record at least a part of this amount was embezzled from the Lon A. Smith estate, or the estate of Langston’s father.

When Langston Smith testified at. the trial of the case at bar, at first he admitted taking some two thousand dollars from his mother’s estate; however, as the evidence was developed it appeared that some $25,-375.65 had been embezzled. It is not entirely clear from the record before us, however it is our understanding that this amount includes the abovementioned $18,-135.23 less the abovementioned credit for the house.

There is a possibility from the record presented that the defalcations set out above are not necessarily all that Langs-ton Smith is accountable for as a thorough audit has yet to be made. It is also clear, however, that Mrs. Smith was not aware of the magnitude of Langston Smith’s defalcations at the time of her death.

From the detailed evidence brought out at the trial of this case wherein appellees introduced forged checks, altered bank statements, checks for smaller amounts crudely enhanced to greater amounts, all admittedly manipulated by Langston Smith, it is not difficult to perceive a scheme or plan of conduct conducted by Langston Smith against the estates of both his mother and his father. This conduct apparently terminated in 1955 or 1956 when his mother became suspicious and entrusted her estate to the management of another son, Lon Smith, Jr.

In Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, the Supreme Court stated that “It is impossible to lay down any hard and fast rule, or rules, which will accurately govern the question as to whether a given record contains affirmative probative evidence of undue influence.” In this same case the Court recognized that proof of undue influence by direct testimony is rarely possible; that such proof usually must be, and is, rested in circumstantial evidence.

The provision in the will of 1961 bequeathing the homestead to Langston Smith made an unnatural disposition of the property in that it preferred one child, one who had wronged her, over others. This provision leaves the bulk of the estate to one whose equal right thereto is highly doubtful. The will also contained a recital that all of Langston Smith’s debts to the estate have been discharged and paid in full; stating further, that the remaining children are to be held accountable for any debts they might owe the estate.

In Long v. Long, supra, the Court said:

“ * * * 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.”

This brings us again to the question of testamentary capacity, which is generally defined as the ability to know and understand the business in which the testatrix is engaged, the effect of the act of making the will, the capacity to know the objects of her bounty and their claims upon her and the general nature and extent of her property. Nass v. Nass, Tex.Civ.App., 224 S.W.2d 280; affirmed, 149 Tex. 41, 228 S.W.2d 130. In addition to the evidence of the physical and mental condition of the testatrix as regards her testamentary capacity set out above, the deceit practiced upon her by her son would have made it impossible for her to have had the knowledge of her estate necessary to fulfill the above quoted requirements.

In defining undue influence for the jury, the court submitted the following:

"“The term ‘undue influence’ means such influence as, under the facts and circumstances of the case, destroys the free agency of the testatrix, and substitutes in place thereof the will of another. Such undue influence may be exercised through fraud, artifice, deceit, stealth or cunning * *

In Texas fraud in the inducement of a dispositive instrument and undue influence are treated as one and are not dealt with separate and apart as in some other jurisdictions, Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208. Consequently, in view of the testimony in this record of Langston Smith’s complete disregard of any principle in dealing with his mother’s estate would certainly raise an inference of fraud as to his conduct in procuring the will of 1961 that he had his mother sign and the contents thereof.

On the issue of mental capacity, appellants offered several witnesses as to the strong will, alert mind and sound business judgment of the testatrix. When it was shown that Langston Smith was able over a number of years to steal large sums of money from his mother, using the crudest and most obvious means in some instances, only two conclusions can be reached as to why Mrs. Smith did not discover the losses. First, she was not as smart, strong willed or alert as appellants contend; or secondly, Langston Smith was able to exercise a tremendous amount of influence by the use of “fraud, artifice, deceit, stealth or cunning,” as defined by the court to be undue.

There are numerous cases holding that where intent, scienter, or state of mind is a material issue in a case, it is proper to admit evidence of similar acts or transactions to show the existence of a plan, scheme or design. Goree v. Uvalde Nat. Bank, Tex.Civ.App., 218 S.W. 620, writ dism. Especially on the issue of fraud, evidence of other fraudulent acts by the alleged perpetrator of the fraud is generally held admissible on the issue of intent, scienter or state of mind. 23 Tex.Jur.2d, Sec. 189, p. 287.

Under the facts of this case we do not feel that because no defalcations on the part of Langston Smith were shown after 1955 when he was removed from the control of the family estates, they cannot be considered here. Langston Smith and his wife moved into the same house with Mrs. Smith in February of 1961 with the events following which were described above. His actions in the past had laid a predicate for a finding of a state of mind from which inferences, when coupled with other circumstances, weave a warp and weft into a general pattern that the jury had a right to consider. Here the question of remoteness was a matter for the trial court to determine in the light of all the other evidence. Broesche v. State, Tex.Civ.App., 348 S.W.2d 770.

Again quoting from Long v. Long, above:

“It is rarely possible to prove undue influence by what is generally known as direct testimony. Undue influence is usually a subtle thing, and by its very nature it usually involves an extended course of dealings and circumstances. Usually a person charging undue influence must substantiate such charges by circumstances extending over a considerable length of time. It is therefore the settled rule that undue influence can he established by what is known as circumstantial, as well as direct, evidence.”

We offer the foregoing in answer to appellants’ fourth, fifth and sixth points which are: The trial court erred in entering judgment denying probate of the will dated September 19, 1961 on the finding of the jury that Kate Montgomery Smith in executing said will was acting under undue influence of Langston Smith, because such finding is unsupported by any evidence of probative value and is contrary to all evidence; that such finding is so contrary to the overwhelming weight and preponderance of the evidence as to be unreasonable, unjust and manifestly wrong; that such finding was the result of extreme bias and prejudice in the minds of the jury created by evidence of acts of Langston Smith committed at times too remote from the date of said will as to have any bearing upon or relation to a showing of any undue influence by Langston Smith upon Kate Montgomery Smith in executing said will.

We overrule these points.

We also overrule appellants’ seventh and last points of error complaining of the trial court’s action in overruling appellants’ motion made at the close of appellees’ evidence. This was a motion to strike all evidence relating to defalcations, misuse of money, or other similar acts relating to accounts of Kate Montgomery Smith by Langston Smith prior to 1955, which were not connected by evidence with any matter or fact that could or did have any bearing upon the testamentary capacity of Kate Montgomery Smith or to show in any manner that said acts so remote in time could or did form any basis for a finding of undue influence by Langston Smith upon Kate Montgomery Smith at the time she executed the will of September 19, 1961.

We affirm the judgment of the trial court.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Charles B. JONES, Appellant, v. Al TETTERTON, Jr., et al., Appellees.
    No. 16630.
    Court of Civil Appeals of Texas. Fort Worth.
    April 2, 1965.
    Rehearing Denied April 30, 1965.

      Garrett & Garrett, and Rufus S. Garrett, Jr., Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Cravens & Scarborough, and Robert A. Watson, Fort Worth, for appellees.
   MASSEY, Chief Justice.

This is an appeal from an order overruling a defendant’s plea of privilege. The question decisive of the matter of venue is whether the plaintiff’s suit is grounded in tort or in contract; i. e., is ex delicto or ex contractu. In the belief that the suit was one which plaintiffs, under their pleadings, were entitled to prosecute as a tort action the trial court entered an order retaining venue.

Judgment reversed. Cause ordered transferred.

Plaintiffs, Al Tetterton, Jr., et al., were owners of realty. Defendant Charles B. Jones was in the “earth moving” business. The defendant had a contract with a third person, pursuant to the accomplishment of which he needed a location upon which he could dump earth excavated from the premises of said third person. With objective thereof the defendant approached plaintiffs. The parties agreed, orally, that defendant could place the earth upon plaintiffs’ premises. Defendant’s promise in consideration thereof, according to plaintiffs, was that he would “finish out” plaintiffs’ land by terracing it so that it would not wash out or otherwise erode, would cover it with topsoil and plant grass and trees.

According to plaintiffs the defendant obtained all the advantages for which he contracted, in that he used their land to dispose of all the earth he needed to dump but then abandoned the premises without performing the “finish out” work promised. At least it is our conclusion that the evils or wrongs on the part of the defendant, of which plaintiffs complain, wholly rest in non-tortious “sins of omission”. It necessarily follows that plaintiffs’ cause of action is grounded in breach of contract. Though having relation to land, that breach was not such as could have caused damage to plaintiffs’ land, but rather could only have been such as failed to enhance its value. Defendant’s actions prior to the breach, which we presently assume did damage the plaintiffs’ land, were done and performed according to agreement and with full knowledge and consent of plaintiffs. For that reason they must be treated as non-tortious.

Under the- controverting affidavit to the defendant’s plea of privilege, the plaintiffs sought to retain venue in the county where suit was filed under Vernon’s Ann.Tex.Civ.St., Art. 1995, “Venue, general rule”, Subdivision 14, “Lands”. Thereunder it is made mandatory that: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

In the tests to be applied in the determination of venue under the subdivision a court does not consider whether the plaintiffs can sustain the cause of action alleged. That question is not pertinent as a venue fact. There being no question but that the land is located in the county of suit, the only remaining venue fact to be determined is whether the suit is for damage done to that land.

Our duty is to determine what cause of action is alleged. In the usual case that question is settled by reference to the plaintiff’s petition alone. But what of the situation where there is undisputed parol evidence placed of record from the lips of a plaintiff, himself, in a case where resort thereto must be made in order to determine whether the nature of the suit is for damages because of breach of contract, or is a suit for tortious damages to the land itself? Under “due order of pleading” a defendant’s plea of privilege is to be filed before the time for any attack upon the sufficiency of the plaintiff’s petition (to state a cause of action). In any event a defendant may “waive” such an attack. Under Texas Rules of Civil Procedure, rule 90, “Waiver of Defects in Pleading”, it is provided that every defect, omission or fault in a pleading, either m form or substance, is waived in the absence of pertinent motion or special exceptions. If plaintiff’s petition does not establish the nature of his cause of action, it would be proper for him to show such by testimony on the hearing of a defendant’s plea of privilege, though he relies upon Subdivision 14. If a plaintiff is entitled to do so in an instance where the nature of his cause of action is not established by his pleadings, a defendant would have the correlative right to refute the plaintiff’s contentions by cross-examination, though in the course thereof it be established that the nature of the cause of action was other than what is claimed.

Where there would be basic ambiguity or uncertainty precluding proper construction of the nature of a plaintiff’s cause of action unless resort be had to evidence, we believe it is proper to consider such in the determination of the question. At least this would be true if its form lies in the plaintiff’s admission or his stipulation.

In such a situation the condition is like unto that existent in a contractual cause of action where a construction of contract is necessary. There are cases where parol evidence has been introduced in venue cases under Subdivision 14. See McDonald, Texas Civil Practice, p. 373, et seq., “Venue”, § 4.22, “Art. 1995(14). Suits for Land, etc.”; Sessions v. Gibson, 199 S.W.2d 303 (Galveston Tex.Civ.App., 1947, no writ hist.); Talco Asphalt & Refining Co. v. McCann, 149 S.W.2d 150 (Texarkana Tex.Civ.App., 1941, no writ hist.); Kimbell v. Roberts, 264 S.W.2d 763 (El Paso Tex.Civ.App., 1953, writ dism.); Broyles v. City of Leonard, 337 S.W.2d 151 (San Antonio Tex.Civ.App., 1960, no writ hist.). Furthermore, in Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945), it was stated that one of the “venue facts” to be proved under the provisions of Subdivision 14 would be that the cause of action asserted was within the Subdivision. As previously indicated the plaintiff’s petition is usually sufficient proof in itself.

The sole point of error presented on the instant appeal is that the suit in the trial court was for the breach of an alleged oral contract rather than for damages to land, and as such did not come within the purview of Subdivision 14 of Art. 1995. The first portion of plaintiffs’ petition clearly alleges a cause of action for breach of contract. Plaintiffs apparently concede the fact. However, our attention is directed to the plaintiffs’ allegations made in the alternative, substantially as follows: “ * * * the defendant, Charles B. Jones, d/b/a Charles B. Jones Construction Company, did enter upon the property of the Plaintiffs, remove trees and vegetation, deposited rock and subsurface soil upon such property, and then wilfully and negligently abandoned the property without depositing topsoil nor planting trees or other vegetation nor undertaking other necessary acts to protect this property from erosion by wind and water and that as a proximate consequence, Plaintiffs’ property has been severely damaged.” (Emphasis supplied.)

Analysis of the above leads us to the conclusion that the plaintiffs have successfully alleged that the defendant “wilfully and negligently” breached some character of duty owed plaintiffs in the “abandonment” of plaintiffs’ premises in that he failed to do something thereto or thereon in connection with improving it, protecting it from the force of the elements of nature, etc. If the complaint is because of some affirmative acts amounting to tort in connection with the removal of trees and vegetation, the deposit of rock and subsurface soil thereon, etc., such venue fact could not be determined from the petition itself. It is not specifically alleged that such affirmative acts were wrongful. Furthermore, it cannot be determined from the petition’s allegations of “sins of omission” whether such were in derogation of some duty the defendant owed the plaintiffs independent of contract.

In order for us to determine the nature of plaintiffs’ cause of action, therefore, it was essential that we have something more than the petition itself. We find that what is needed was supplied by plaintiffs in the form of evidentiary admissions. The plaintiffs tendered and presented the testimony of one of their number, the actor and agent in the premises for all of them. It was on cross-examination by counsel for the defendant that facts clarifying the nature of the cause of action were presented.

The witness testified that all the affirmative acts done and performed by the defendant were pursuant to agreement and consent of the plaintiffs, with expectation by plaintiffs that defendant would do and perform other affirmative actions upon the property. Indeed, it was asserted that plaintiffs’ contentions were based upon the claim that the defendant had failed to perform according to incumbent obligations grounded in contract. This evidence established that the affirmative acts under scrutiny were not claimed to be tortious, either wilful or negligent, and such affirmative acts were eliminated as the gravamen of plaintiffs’ complaint.

The witness further testified that all of the defendant’s omissions mentioned in the plaintiffs’ petition as “wilful and negligent” were omissions to perform acts which plaintiffs contend were defendant’s contractual obligations. The duty of per-lormance, if existent, would merely constitute breach of contract in every respect alleged. In other words plaintiffs’ right, if any, to have performance by the defendant in no wise existed independent of contract. The defendant’s wrong, if any, was not one which disturbed any legal right of the plaintiffs or violated any duty imposed by the law upon the defendant.

As applied to the' question of a proper measure of damages, very interesting hypotheses are suggested. This is not a simple case such as one where a defendant has damaged appurtenances or removed a portion of the land itself, etc., where the simple measure of damages common to tort actions would be appropriate. To consider as appropriate a measure of damages different from that usually and customarily applied in instances of breach of contract would be difficult. In this connection, and also generally, an interesting text is to be found in 1 C.J.S., p. 1100, et seq., “Actions”, § 46, “(Contract and Tort) — Mode of Determination”, § 47, “ — Principles governing Choice of Remedy”, and § 49, “— Particular Actions (including c. Negligent breach of contract, and d. Injuries to realty).”

The plaintiffs have placed strong reliance on the holding of the case of Ross v. Martin, 225 S.W.2d 220 (Eastland Tex.Civ.App., 1949, application for mandamus overruled). Therein the court held that the suit was for damages to land. The allegations of plaintiff’s petition in that case advanced the contention that the defendant had been guilty of negligence in connection with the performance of active contractual duties. In the case before us the allegations material to our consideration relate to an omission to perform an active contractual duty. We do not believe the authority is in point.

Judgment of the trial court is reversed. The cause of action is ordered transferred to the District Court of Wise County, Texas.


text:
    Martin ASHMAN, Appellant, v. William G. SMITH et al., Appellees.
    No. 14493.
    Court of Civil Appeals of Texas. Houston.
    March 25, 1965.
    Rehearing Denied April 29, 1965.

      McClure & Lucas, Houston, and Harold Lloyd, Houston, of counsel, for appellant.
    Talbert, Giessel, Cutherell, Barnett & Stone, Thomas W. Foster, Houston, for ap-pellees.
   BELL, Chief Justice.

Appellant sued William G. Smith and Zero Refrigerated Lines, for whom Smith was driving a truck, to recover damages resulting from injuries received in an automobile collision. A jury acquitted Smith of any negligence, acquitted appellant of contributory negligence, and found the collision was the result of an unavoidable accident. Judgment on the verdict was that appellant take nothing.

The court submitted the following issues inquiring of negligence on the part of Smith:

L Whether he was driving at an excessive rate of speed.

2.Whether he failed to make timely application of brakes.

3. Whether his having driven into the intersection when the traffic control signal facing him showed a- red light was negligence.

4. Whether he failed to make an effort to avoid the collision by turning his vehicle.

5. Whether he failed to keep a proper lookout.

Too, the court submitted discovered peril and the jury found that Smith did not discover appellant’s perilous position in such time as to be able to avoid the collision. The jury also found Smith was acting in an emergency and in such emergency acted prudently.

Appellant for reversal asserts that the jury’s answers to each of the above issues are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. In passing on whether this is true of the jury’s answers, we must review all of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The evidentiary facts are largely undisputed. The problem arises over the inferences to be drawn from them.

The collision occurred on September 15, 1962, at the intersection of McCarty Drive and a service road on the west side of what is known as North Loop, an interstate highway skirting the City of Houston. At this time the North Loop was being constructed. It was not, at the intersection with McCarty, in use. The service road was in use for traffic going north and south. The service road was 27 feet in width. There was a service road on the east side of the North Loop, but it was not in use and was closed to traffic. McCarty Drive at the intersection runs east and west. It is a four-lane highway. North Loop crosses over McCarty on an overpass (we sometimes refer to it as an underpass). The width of the overpass from east to west is not shown, but testimony is that the North Loop was designed to carry three lanes of traffic each way. McCarty intersects the service road at a right angle. Suspended above and at the center of the intersection was a traffic control signal. Its height above the street is not shown. The streets at the intersection and for a long distance on either side are straight and level.

Appellant, just before the collision, was driving his automobile south on the service road at about 11 p. m. When he reached the intersection with McCarty the traffic control signal facing him was red. He stopped to await a change in the signal to green. As the signal changed to green, appellant slowly moved forward and the truck driven by Smith ran into the left side of appellant’s automobile, causing substantial damage to the car and causing personal injury to appellant. It is undisputed that Smith ran a red light. Smith was driving a refrigerated truck. The truck consisted of a tractor and trailer. The over-all length was 50 feet. He had a load of about 35,000 pounds of frozen sweet potatoes. The vehicle with its load weighed about 70,000 pounds. There were 18 wheels on the tractor and trailer. The air brakes, when applied, would take effect on 16 wheels — all except the two front wheels. He was driving west on McCarty. The established speed limit was 45 miles per hour. There is some evidence, but of an indefinite nature, that there was some construction going on along the shoulders to McCarty. There is no evidence of probative force, however, that the speed limit of 45 miles per hour had been reduced because of the construction.

Mr. Smith testified that as he was proceeding west along McCarty and was at a point about 300 or 350 feet from the overpass, he noticed a sign reading “Signals Ahead”. About that time he looked up ahead and saw the traffic signal west of the overpass change from red to green. It is here to be noted that at one point he testified he didn’t recall whether he saw the change take place at the 300 to 350 foot point but it was about at that point. Whether he observed the light again before reaching the western edge of the overpass does not appear in the record. At what distance from the east side of the underpass the light would become obscured is not shown, but it would because of the overpass be hidden for a time from the traveler. When he learned from the sign that signals were ahead, he reduced his speed to 30 miles per hour, which speed he maintained until he tried to stop the truck as his truck came out of the underpass on the west side. He, having seen the change of the signal light to green as it faced him, felt he had plenty of time to proceed through the signal before it turned red. He based this conclusion on his familiarity with the timing of signal lights generally. There is no evidence of what such timing generally is. There is evidence that this light was set so the green color would remain 20 seconds and the amber 5 seconds. There is no evidence that Smith knew of this timing. Smith had been over this route only once and it was about a year before the collision. He was in the lane next to the center line of McCarty. Just as he was coming out of the underpass he noticed the signal light had changed to red. He also saw appellant’s car proceeding into the intersection. He threw on his brakes but could not stop in time to avoid the collision. He stated he was probably going 15 or 20 miles per hour at the point of impact. Forty feet of skid marks were left by the truck. He testified he could stop the truck in something just over 100 feet. It does not appear whether this distance included perception and reaction time. We rather doubt that it does.

The investigating officer testified that 20 feet of the skid marks were east of the east curb line of the service road and 20 feet were west. The point of impact was stated to have been from three to seven feet in the west half of the service road. While at one place the officer testified 20 feet of the skid marks were west of the east curb line and at another from three to seven feet in the west lane of the service road, this would be inaccurate because the two front wheels of the tractor would not skid. How far it was from these wheels to the first wheels that would skid, because of the application of the brakes, we do not know. He also testified he stopped a truck of the same kind as Smith’s and made a test to see at what point under the underpass he could see the signal light. He stood on the running hoard on the driver’s side; put his head at the height of the driver’s head; had the driver ease forward until the witness could first see the light; and, then had him stop. He then measured and it was 147 feet east of the east curb line. It was 70 feet from the west edge of the underpass to the light, according to estimate. Whether he stood at a point back of the front of the cab at a distance the driver would sit does not appear. Of course, a driver will have some roof of the cab above and in front of him that can make some difference in the point at which he can see the overhead light.

One witness who was sitting in an automobile back of appellant awaiting the change of lights estimated the truck was going 40 to SO miles per hour. He could, because of the embankment under the overpass, have gotten only a fleeting glimpse of the truck. We give little weight to this estimate. The officer, basing his testimony on the skid marks, testified Smith was not speeding (apparently meaning not exceeding the posted speed limit of 45 miles per hour).

It appears that on August 2, 1962, some step-down plastic strips were replaced at the light. The maintenance record shows the maintenance man noted “okay on departure.” On November 5, 1962, a complaint was received that the light was stacking up traffic. The maintenance record reflects an inspection was made and the notation on the record states the “face was holding maximum.”

We have reached the conclusion that we cannot say in the light of the whole record that the answers of the jury are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We, had we been jurors, might have reached a different result, but as a reviewing court we may not merely substitute our views for those of a jury. Before we can disturb the jury’s answers, we must be able to say they are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The mere fact that a statute was violated by Smith in running the red light does not mean he was guilty of negligence. There are instances where a violation of a statute is excused. Whether this is true depends on the fact of each case. If a party is unable to avoid a violation and has not wrongfully placed himself in a position that brings such inability about, he is excused insofar as civil liability is concerned. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, n. r. e.; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, no writ hist.; Cunningham v. Suggs, Tex.Civ.App., 340 S.D.2d 369, ref., n. r. e.; Spurlock v. Burnette, Tex.Civ.App., 365 S.W.2d 812, no writ hist. If of course Smith’s negligence placed him in the position where he could not avoid running the red light, then he is not excused.

It is also true that if Smith’s negligence was the proximate cause of placing him in an emergency situation, he cannot in law be said to be acting in a sudden emergency.

There is little doubt in our minds that the record shows that Smith, after discovering the light was red, did all he could to avoid the collision.

Smith was traveling on a highway that was level and straight where the speed limit was 45 miles per hour. While there was some construction work being done, it does not appear it was on the roadway itself. It does not appear that anyone was actually working on the road that night and we certainly know that normal construction work is not carried on at night. The night was clear. There is no evidence of any wet surface. The topping was asphalt. Upon being about 350 feet from the light, Smith saw the signs saying “Signals Ahead”. He immediately reduced his speed to 30 miles per hour. About the same time he noticed the signal light turned to green. If his distance estimate had been correct, he would have cleared the light before it changed. In retrospect we know his distance estimate was incorrect, but it was not far off because one can infer from the record that the signal changed while he was under the underpass. A jury could well reason that if he looked at the light before going under the underpass, it would still have been green. We cannot say that under the circumstances above stated in a recitation of the evidence, that the answer that he was not driving at an excessive speed was clearly wrong, nor was the answer that he did not fail to keep a proper lookout.

Appellant complains that Smith did not timely apply his brakes because the evidence shows that an officer made some tests and the light could be seen 147 feet east of the east curb line. He then reasons that the collision took place 167 feet west from the point the light could first be seen. It is to be remembered that this experiment was made under ideal conditions of a vehicle moving very slowly and the officer being interested at the moment solely in discovering the light. Too, we have observed he was on the outside of the cab. Ap-pellee testified he saw the light as he was coming out of the underpass. There is evidence that the west edge of the underpass was 70 feet from the light. There were 40 feet of skid marks. However, in determining when the brakes should have been applied, we must take into consideration perception and reaction time. Traveling at 30 miles per hour the truck would have been traveling at 44 feet per second. The average perception time would be %Xh. of a second, as would reaction time. After discovering the red light, Smith would have traveled about 66 feet before the brakes would take effect. While appellant says he traveled 120 feet before applying the brakes, this is based only on the conclusion that Smith discovered the light 147 feet east of the east curb line and does not take into consideration perception and reaction time. Even if Smith discovered the light at such point, a jury could reach the conclusion, taking into consideration those two time elements, that Smith could not stop because the only testimony shows it takes something over 100 feet to stop the truck. However, a jury could well conclude a reasonably prudent person situated as was Smith would not discover the light at the 147 foot point.

We think clearly the evidence establishes Smith could not, with any degree of effectiveness, turn the vehicle and avoid the collision.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Rebecca Russell KAMLEH, Appellant, v. Jo Ann BROWN, Appellee.
    No. 4344.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      Bernard & Bernard, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, Bertram H. Mann, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal by Rebecca Kamleh, mother of Amal Kamleh, from the judgment of the Court of Domestic Relations, decreeing Amal Kamleh to be a dependent and neglected child, and terminating the parental rights of the mother and father.

The Harris County Probation Department, acting through Jo Ann Brown, filed this case, to declare Amal Kamleh a dependent and neglected child. Rebecca Kamleh answered, requesting the court to deny the application and to return the child to her.

The Trial Court, after hearing, declared the child neglected and dependent. The Trial Court filed Findings of Fact and Conclusions of Law, pertinent of which follow:

FINDINGS OF FACT

1) Amal Kamleh was born to Rebecca Kamleh and Sadi Kamleh February 27, 1958 in Houston, Texas.

2) Sadi Kamleh left the family early in 1959 to return to Libya, his native country. Rebecca divorced Sadi in May 1959.

3) Mrs. Rebecca Kamleh, though trained as an occupational therapist, has been unable to hold a job. She has not received assistance prior to the filing of the petition in this case, from any relative, including Mr. and Mrs. Robert Chastain.

4) Mrs. Rebecca Kamleh has received psychiatric treatment for 2 years for a “chronic undifferentiated schizophrenia”. She is in remission and being maintained on medications.

5) On June 6, 1962 Mrs. Kamleh delivered Amal to DePelchin Faith Home and Children’s Bureau; the child was returned to the mother on October 13, 1962; and again delivered to Faith Home on March 26, 1963.

6) On July 3, 1964 Mrs. Kamleh voluntarily executed a Parental Release and Consent to adoption and affidavit.

7) On October 9, 1963 Mrs. Kamleh took Amal from the home without permission.

8) On February 10, 1964 Mrs. Kamleh again delivered Amal to the home for care and executed a second Parental Release and Consent to adoption and affidavit.

9) Amal is normal and healthy and now living in a foster home supervised by Faith Home. She is a proper subject for adoption.

10) 11) Mr. Robert Chastain, brother-in-law of Mrs. Rebecca Kamleh, has expressed a desire to care for the child Amal.

12) Mrs. Rebecca Kamleh was of sound mind when she executed the 2 releases and consents to adoption on July 3, 1963 and February 10, 1964.

CONCLUSIONS OF LAW

1) Mrs. Rebecca Kamleh, mother of Amal Kamleh, and Sadi Kamleh, the father, are unable to provide a suitable home for the child.

2) There is no suitable person willing and able to care for the child, and said child is dependent on the public for support.

3) Amal Kamleh is a dependent and neglected child within the meaning of Art. 2330, Vernon’s Ann.Tex.Civ.St.

4) The releases and consents to adoption executed by Mrs. Rebecca Kamleh and delivered to Faith Home, a licensed child placing agency of the State of Texas, are good and valid and cannot be revoked by Mrs. Kamleh.

5) The best interest of the child will be served by terminating the parental rights of Sadi and Rebecca Kamleh, and awarding custody of the child to DePelchin Faith Home and Children’s Bureau for placement in a suitable adoption home.

Appellant appeals on 17 points, contending:

1) There is no evidence or insufficient evidence to sustain Finding of Fact No. 12; and in any event appellant revoked such consents.

2) The Trial Court erred in Conclusions of Law Nos. 1, 3, 4 and 5.

3) The Trial Court erred in entering judgment for appellee.

4) The Trial Court erred in not having the child brought before him at the time of hearing, pursuant to Article 2333, V.A. T.S.

Appellant’s 1st contention is that there is no evidence or insufficient evidence to sustain the finding that she was of sound mind when she executed the 2 consents for adoption of her child Amal to the Faith Home; and that in any event she revoked such consents. The record reflects that appellant was suffering from “chronic undifferentiated Schizophrenia”; that she was “upset and needed work” when she first delivered the child to Faith Home; that she was “conversant with what she was doing”; and at the signing of the 2nd release “acted normally and rationally”. There was no testimony that appellant was of unsound mind, or that her condition would affect her mental capacity to execute the releases and consents. Under the record the Trial Court was justified in finding appellant of sound mind at the time of the execution of the Releases and Consents.

A parental release and consent in writing to a licensed child-placing agency is irrevocable. Catholic Charities of Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111.

Appellant’s 2nd and 3rd contentions complain of the Trial Court’s conclusions of law and of his rendering judgment that Amal is a neglected and dependent child.

The record reflects that the child had been supported by charity for a considerable period of time and that appellant was unable to care for the child; appellant had twice placed the child in Faith Home; and twice consented in writing to her adoption through Faith Home; that appellant was unable to keep a job and care for the child; and that appellant suffered from a mental illness which appellant now contends rendered her incompetent to sign the consent and release. Under these facts, we think the Trial Court justified in declaring the child a neglected and dependent child.

Finally, appellant contends the Trial Court erred in not having the child brought into Court as specified in Article 2333 V.A.T.S. We think Article 2333 directory and not jurisdictional and that same should be construed to mean that upon hearing, the child shall be brought before the Court at the instance of the trial judge or a party in interest. Since appellant made no objection at the trial of the nonappearance of the child, the requirement as to the appearance of the child was waived. Jones v. Davis, Tex.Civ.App., 203 S.W.2d 943, n. r. e.; Smith v. Curtis, Tex.Civ.App., 223 S.W.2d 712, n. w. h.

All of appellant’s points and contentions are overruled.

Affirmed.