Crow v. Childress

• Decision Date: 20 June 1914
• Docket Number: (No. 7171.)
• Citation: 169 S.W. 927
• Parties: CROW v. CHILDRESS et al.
• Court: Texas Court of Appeals

169 S.W. 927

CROW v. CHILDRESS et al.

(No. 7171.)

Court of Civil Appeals of Texas. Dallas.

June 20, 1914.

Rehearing Denied October 17, 1914.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by A. W. Childress and others against George W. Crow. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Collins & Cummings and Morrow & Morrow, all of Hillsboro, for appellant. Dean, Humphrey & Powell, of Huntsville, and Wear & Frazier, of Hillsboro, for appellees.

TALBOT, J.

A. W. Childress and others, as relatives and heirs at law of John S. Childress, deceased, brought this suit against the appellant, Geo. W. Crow, to set aside a deed executed by the said John S. Childress on the 25th day of July, 1912, conveying to the appellant all of the undivided interest which the said John S. Childress owned in certain real estate situated in Hill county, Tex., as an heir of Elizabeth Batson, deceased. The grounds upon which the appellees seek to set aside the deed to appellant are want of mental capacity in the said John S. Childress and the exercise of undue influence to secure the execution of said deed. A jury trial resulted in a verdict and judgment in favor of the appellees, and the appellant appealed.

The issue tendered by the pleadings of the appellees, to the effect that undue influence had been exerted over John S. Childress to procure the execution of the deed sought to be annulled, was not raised by the evidence, and was not submitted to the jury.

The first assignment of error complains of the court's refusal to charge the jury, at appellant's request, as follows:

"Gentlemen of the Jury: J. S. Childress had the right to convey his property or deed part of it as he wished to George Crow, and the only question for you to decide is whether, at the time J. S. Childress made the deed to George Crow, he was of sound mind; that is to say, whether at the very time he signed the deed he had sufficient understanding to know the effect of the deed, and in this connection you are instructed that neither old age, sickness, nor extreme distress of mind or body will render a person incapable of disposing of his property, provided he is possessed of his mental capacity and understands the nature of the business in which he is engaged, at the time of the transaction in controversy."

The action of the court in refusing this charge cannot be reviewed by this court. Article 1974 of the Revised Statute of 1911, as amended by the Acts of the 33d Legislature, page 113, provides that when instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he has refused, and shall subscribe his name thereto, and such instructions shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error; and article 2061 of said statute, as amended by said act of the Thirty-Third Legislature, is as follows:

"The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles."

Now, there is no bill of exception in the record showing that the refusal of the trial court to give the special charge in question was excepted to by appellant, and in the absence of such bill the action of the court must be regarded as having been approved, or the error, if any, in refusing the charge waived. Mutual Life Ins. Ass'n v. Rhoderick, 164 S. W. 1067; Roberts v. Laney, 165 S. W. 114; Railway Company v. Galloway, 165 S. W. 546; Railway Co. v. Crutchfield, 165 S. W. 551; Railway Company v. Wadsack, 166 S. W. 42; Railway Co. v. Love, 170 S. W. ___,¹ decided by this court, not yet officially reported.

Appellant's next assignment of error, which is submitted as a proposition, is that:

"The verdict of the jury should be set aside, because the evidence failed to show that, at the very time the deed to George Crow was made by J. S. Childress, he was not possessed of sufficient understanding to comprehend the nature and effect of said transaction, but, on the contrary, it affirmatively appeared from the evidence of the witnesses who were present at the time the deed was made that said J. S. Childress fully understood its effect and nature, and that at the time he was of sound mind."

It is further contended that the court erred in failing to grant a new trial, because the verdict of the jury is against the great weight and preponderance of the evidence. After a careful consideration of the evidence as a whole, we have reached the conclusion that, if it can be said that it was of sufficient force to take the case to the jury, yet the verdict rendered is, as contended by appellant, against the great weight and preponderance of the evidence, and the court should have granted a new trial. The substance of the pertinent testimony relied on by the appellees is that John S. Childress, the grantor in the deed sought to be set aside, was, at the time of the execution of said deed, an old man 87 or 88 years of age, badly diseased, and had been for 3 or 4 weeks immediately preceding his death confined to his bed; that during this time he had to be helped around something like a person who had no use of himself at all; that his sister, Mrs. Batson, from whom he inherited the property conveyed to the appellant by the deed in question, died a few months prior to his death, and that at the time of her death he seemed to be worse than he had ever been, and that he got weaker thereafter all the time; that the said John S. Childress, and his sister, Mrs. Batson, had been living in the same house for a number of years, were closely associated, and thought a great deal of each other; that the news of his sister's death did not seem to have any effect upon him.

The witness H. W. Grissom, a nephew of the deceased John S. Childress, said that the latter did not comment on Mrs. Batson's death, and that if he ever shed a tear on account of her death the witness did not see it; that sometimes, when he would go into the presence of the said Childress after his sister's death, he would not be recognized; that sometimes the said Childress would in conversation "start out all right on a subject, and would stop maybe and start out on a different subject; that a niece of the said Childress died a few years prior to his death, and that he took her death very hard, but that his sister's death "did not seem to bother him at all"; that witness' mother, Mrs. Susan Grissom, one of the appellees, was a sister of the said Childress and a woman of very moderate means; that the relation between the witness' mother and Mr. Childress during his lifetime had been very friendly; that the appellant was an unmarried man, and had lived with Mr. Childress before the latter's death. The conclusion of this witness was that the said Childress was of unsound mind. When on cross-examination he was reminded that he had sworn that in his opinion his uncle was of unsound mind, he stated:

"I didn't say he was crazy; the old man was absent-minded."

A. W. Childress, a brother of the said John S. Childress, and who had been living in Arizona since about the year 1887, testified that in the month of August, just preceding the death of John S. Childress, he was at his house in Hill county, and that John S. Childress at that time "was pretty low down and sick"; that he could not tell what was the matter with him; that he just seemed drowsy all the time; that he did not recognize the witness the first day he arrived at his house; that he did recognize him on the second day after his arrival, but did not, he thought, recognize him the third day; that his brother was weak and could not sit up long; that he stayed at his brother's house in August three or four days, and that he did not think his mind was as good as it had been. He further said:

"I don't think, in his condition at the time that I saw him, that his mind was sound to what it had been heretofore to a certainty."

Mrs. Susan Grissom testified that her sister, Mrs. Batson, died July 16, 1912; that at the time of her sister's death she was living about 200 yards from John S. Childress' home; that the relations between her brother, John S. Childress, and herself, were friendly, and that he had cared for her ever since her husband's death; that John S. Childress' health was "mighty bad" for a long time before he died, and "grew worse all the time"; that at the time of Mrs. Batson's death he was in a helpless condition; that she saw him often after Mrs. Batson's death, and that she did not think he had a sound mind before her death, and that his mind grew weaker all the time; that she was "there at the place at the time that Capt. McKinnon came out there to write this deed"; that she was in the room at the time he wrote it; that she did not stay in there, because they did not tell her anything about what they were doing, and that her brother did not look to her like he knew there was anything going on; that while Capt. McKinnon was writing the appellant, Crow, was standing by him; that at this time her brother, John Childress, wanted to get up, and called for Levi, and that she walked out in the hall, and Capt. McKinnon came out and told her that George Crow (the appellant) came after him the day before to do some writing for John, and that that was all she knew about it; that when she first went into the room where her brother was she spoke to him, and he said he was "mighty poorly"; that this was all the conversation she heard him engage in while she was there. This witness further testified on redirect examination that her brother, John Childress, had an affliction on the back of his ear a long time ago; that the place was always tender, and he called it "king's evil"; that in his last illness he told witness that he had never had this affliction, and that in her opinion he was of unsound mind.

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