195 S.W.2d 701 | Tex. App. | 1946
Appellees, Albert and Henry Becker, filed suit in the District Court of Marion County, Texas, against Elizabeth Self and husband, to cancel a deed embracing 63 acres of land made to Elizabeth Self on August 11, 1943, by Mrs. Emma Wehrhan, on the ground that at the time of the execution of the deed Mrs. Wehrhan was of unsound mind. From a judgment in favor of the plaintiffs, based upon a jury verdict holding that Mrs. Wehrhan did not have mental capacity to execute the deed, the defendants duly perfected an appeal.
Appellants' principal contention herein is that the evidence pertaining to the mental condition of Mrs. Wehrhan adduced on the trial of the case was insufficient to establish that she was incompetent to execute the deed in question, and that their motion for an instructed verdict, as well as their motion non obstante veredicto, should have been granted by the court. In passing upon the motions of the type presented, the trial court is governed by the test of whether or not there has been introduced on the trial of a case any testimony of such probative force as to raise an issue of fact. If so, the motion must be denied. Any inference which reasonably may be drawn from the testimony must be indulged against granting a motion for an instructed verdict. White v. White,
Error is assigned in that the attorney for appellees in his closing address to the jury made the following argument:
"I will now get Joe Hughes and let him testify;" "Howard Carney may represent the Phillips Petroleum Company for all I know and that is the reason he is probably interested in the lease, but that has no bearing on the merits of this particular controversy;" "Now gentlemen of the jury the case is passed on to you to pass on a fact question in controversy between these people and if the fact question hadn't been for your determination, Judge Williams would have taken it away from you and instructed a verdict."
The trial judge qualified the bill embracing the argument quoted, as follows:
"The foregoing bill of exception No. 1 having been reduced to writing by the attorney for said defendants and having been presented to the undersigned judge of said court for allowance and signature at the time the argument was made and within the time required by law and having been submitted to adverse counsel and further by him to be corrected and having been by me further to be corrected is hereby allowed and approved with the following qualification and explanation, to-wit:
"Mr. Carney, Counsel for the defendants, in his summation to jury went out of the record to say, viz.: `I know Joe Hughes and I know if there had been any doubt about it he wouldn't have taken her acknowledgment to the oil and gas lease — Joe Hughes and Mr. Benefield were there together, good citizens of the county — I know Joe Hughes wouldn't have taken Mrs. Wehrhan's acknowledgment if there was doubt about it.'
"Then Mr. McCasland, Counsel for plaintiffs, in reply to Mr. Carney's argument said `Mr. Carney went out of the record to tell you about Joe Hughes taking Mrs. Wehrhan's acknowledgment to an oil and gas lease — Mr. Carney knows that he is misquoting Joe Hughes and I'm willing to get Joe Hughes and let him testify on what he told Mr. Carney about Mrs. Wehrhan. I know Joe Hughes and talked to him myself and Howard is not quoting Joe Hughes correctly.'
"Mr. Carney, counsel for defendants, in summation to jury said `You can see gentlemen of the jury that the next thing they will do is to attack the oil and gas lease.' Mr. McCasland, counsel for plaintiff replied in summation to the jury, viz: `Howard Carney may represent the Phillips Petroleum Company for all I know and that is the reason he is probably interested in the lease, but that has no bearing on the merits of this particular controversy.'
"Mr. McCasland, counsel for plaintiffs, said in summation to jury, viz.: `Your honor has done his duty, as he sees it — Counsel have done their duty — Now gentlemen of the jury the case is passed on to you to pass on a fact question in controversy between these people and if the fact question hadn't been for your determination, Judge Williams would have taken it away from you and instructed a verdict. The court offered to withdraw the remarks from the jury, but the defendants' counsel replied `No, let it go, as I'd rather have a bill on it.'
"This said bill of exception number one as herein allowed and approved and as qualified and herein explained is ordered filed by the clerk of this court as a part of the records in such cause this the 11th day of December, A.D. 1945.
"Sam Williams,
"Presiding Judge and Judge of
the 76th Judicial Dist."
This court is bound by the qualifications of the bills made by the trial court which indicate that the arguments complained of were invited by counsel for appellants in his address to the jury. Keller v. Downey, Tex. Civ. App.
Two other points presented by appellants complain of the action of the court in sustaining an objection to the introduction in evidence of a timber deed and a mineral lease executed by Mrs. Wehrhan. It appears that the statement of facts does not reflect that the timber deed was offered in evidence, and no bill of exception is contained in the record relating to the court's action in regard to such an offer. Under these circumstances, this point cannot be considered. In regard to the mineral lease, it would seem that when an objection to its offer was made, appellants' counsel withdrew it. The court permitted counsel, however, to question a witness about the lease, and to develop the fact that Mrs. Wehrhan signed it after she had read it and the lease was explained to her. No error is presented by this point.
No error being apparent from the record herein, the judgment of the trial court is affirmed.