On Motion for Rehearing. We have carefully considered plaintiffs in error's motion for rehearing. It is true that in our original opinion, after calling attention to the fact that the trial court excluded the hypothetical question and giving the reasons why this action was correct, *Page 791 we did not expressly state that the assignment of error based thereon was overruled.
We now expressly overrule such assignment, and, adhering to our other former conclusions, overrule the motion for rehearing.
Overruled.
PLEASANTS, C. J., absent.
Appendix. The question was as follows
"Now, Doctor, I want to ask you a question which is rather lengthy, and I will ask that you pay close attention to it, please sir, and after I have concluded reading it, reserve your answer until these gentlemen have had an opportunity to object, if they want to. Please assume the following facts: On the 11th of July, 1931, a bachelor man, then 77 or 78 years of age (whom I shall call A) went into the bank where he had been doing some of his banking business for several years, and requested two of its employees to witness a will or his will, having with him a document in writing, which he signed in the presence of such employees of the bank. He had known each of such employees for several years, and after such instrument in writing had been signed by A and the two employees of the bank, A requested them to advise him how much he owed them, and receiving a reply that he owed them nothing, left the bank with the signed instrument and returned within a short time and gave the two employees a carton of cigarettes. In the Summer of 1929 or 1930 he went to the hospital in Freeport for treatment, and in the Autumn of the same year he went to the hospital in Houston. In the year 1929 or 1930 he went to Marlin for treatment, and at that time, his feet and legs had become very much swollen. From the year 1932, he had spells with his stomach, during which he would lie down on the floor and roll, and on at least one occasion rolled under his bed and stayed there until the person in attendance and a neighbor retrieved him. Usually, the doctor called and gave him morphine or some other medicine to quiet him. After one of these attacks he usually was confined to his bed three or four days. During these spells he would cry out and exclaim that he wanted to die, and that he wished he was dead. He used to come to Freeport almost every day and would get his mail at the Post Office, call by the grocery store for his groceries and usually made his own purchases. He knew the price of the groceries and argued with the grocer that the prices were excessive. He complained to his attendant that the merchants in Freeport were trying to rob him, yet he continued to trade in Freeport. He was a member of the Masonic Lodge for a good many years, and in the year 1932 he took the Scottish Rite degree. Up until the latter part of 1931 he drove his own car and bought gasoline and lubricating oil, took it to the garage for repairs, and paid his accounts there regularly, sometimes waiting two months, but not any longer. He kept an account in the bank at Freeport; wrote checks against it, keeping up with his account. He owned Government bonds and other securities, and executed oil leases covering his interest in his parents' estate. During all the time, he did not sleep well at times. He expressed fears that someone was going to rob him or steal from him. He had his attendant to lock up his old home during the time that he lived at the neighbor's home, and complained that it had not been locked and that he could see that it had not been locked, although it was impossible for him to see the house or to discern whether it was locked from his position. Up to 1900 he kept a considerable amount of money in the ceiling of his house where he lived. There was no bank in Quintana at the time, nor at Freeport, but there was one at Velasco, about four miles distant. He was a profane man and used such language in talking about people in Freeport. He expressed on numerous occasions animosity toward the people of Freeport, but there was no explanation of it. He was of a very fixed determination and could not be persuaded to desist, nor to retract from his position. He bore a peculiar ill will toward two citizens of the town who were connected with the port project, and continued to express his opposition and personal dislike of the men after the port project had been completed in 1928, and frequently during the following years of his life he related a difficulty with one of his acquaintances (whom I shall call `B'), which occurred in the latter's store in 1924 or 1925, in which he stated that B struck him, and that the other people present locked him up in a meat vault — A. (interrupting): Was that so or not? *Page 792
"Q. (continuing): Locked him, B, up in a meat vault; that thereupon he, A, the person I am talking about all the time, left and tried to purchase a gun at a hardware store, but the merchant wouldn't sell it to him; that he then went home, and returned the following day with a shotgun, and waited on the corner for the person who had struck him, but such person did not pursue his customary route to his place of business, and that he, A, then went to the store of a Mr. Von Dohlen, whom he called Van Dohlen, and upon Mr. Von Dohlen's suggestion, he agreed to let the person apologize, provided such person, B, would come out of his store with a white handkerchief tied over his hands. That Mr. Von Dohlen and A then went to the store of the person with whom A had had such difficulty, that is, B, and that such person, B, came out of the store with a white handkerchief tied over his hands; whereupon A drew his shotgun, cocked both barrels, and called upon such person to get down on his knees and apologize and upon his complying, the matter was dropped and that A continued to trade with such person, but such transaction actually happened as follows: A came to the store of Mr. Von Dohlen and reported that such person mentioned, B, had knocked him down, and that he, A, was going to kill him, or to have him killed; that he knew a man whom he could hire to kill him; that Mr. Von Dohlen called B by telephone and after a conversation A and B shook hands and took a drink together. When A would come to town, he was usually hurrahed by some of the people of the town in the barber shop or on the street; and they would get him started and he would argue and get mad with them. He was an eccentric man, and entertained ideas and opinions of people from which he could not be dissuaded. When he was a young man, during the lifetime of his mother, he would cut wood and drag it in the kitchen and his mother, who scrubbed her own floor, would take the wood out on the porch and would scrub the floor again, and when he came back and the wood was still outside, he would become angry, and she would tell him that she would take it and put it back in the kitchen. From the month of January, 1932, his attendant would bathe him and clean him. After his spell his body was yellow when he was bathed. He used to vomit during his spells. He complained of headaches occasionally and sometimes he would refuse to eat and refuse to take his medicine. At night, when some one would knock at the door, he would run and get his gun and tell the attendant that he would stand with his gun while the attendant opened the door. No one ever tried to do him any harm or injury, but the visitors were usually neighbors, or a friend of the attendant. He was observed by his attendant to cry on at least two occasions during the year 1932. He was a heavy drinker at times. He could read and write, he wrote a good hand, and in August 1931, he wrote a letter to the First National Bank of Houston, which I am going to hand you for your examination and information in a moment, giving them instructions concerning changes in the instrument prepared by the bank's attorney for him, which was a will. He told one of his friends that he wanted a steel vault, and a metalic casket when he died and that his will would take care of it, but there was no reference to the metalic casket or steel vault in the instrument which he signed in the bank as his will. Within the last three years of his life, he had some dirt and shell put on a road running past the place where he was living in the townsite of Quintana, and objected to other persons using such road. He expressed fears that some one was going to steal water from the cistern at his parental home, which was about a hundred and fifty or a hundred and seventy-five yards from the place where he was staying, and had his attendant to take the faucet out and plug it. He complained that the cistern was only half full of water, but as a matter of fact it was full. He died in 1934, in the month of September. During the last three years of his life he was in feeble health, though not always confined to his bed. On Sundays he used to go to Freeport to get his paper. He would read his newspaper and make violent comments on the condition of affairs. In his discussion of his business at the bank, his discussions were intelligent, except his conclusions as to the people of Freeport and the two citizens thereof who had been at the head of the harbor project, and from these opinions he could not be moved. His discussions of these gentlemen and his expressions of opinion concerning them continued up until his death. He used profane language on frequent occasions in discussing the President of the United States, and he also frequently spoke disparagingly of the Masons. In writing a check for fifty dollars in 1933 to one of his attendants he wrote it for five hundred dollars, and upon examining it, stated it was correct, but upon *Page 793 having the error pointed out to him, realized the error. He made arrangements with his attendants for their compensation and discussed those matters with intelligence. In 1933 he wrote a check for $70.40, when it should have been $7.40, and wrote a check for $60.75, when it should have been $6.75. When these errors were pointed out to him, he realized them. When he would go to Freeport, the people would get around him and get him to talking, get to hurrahing with him and get him worked up. On his return home from his visits to Freeport, he would sometimes be tired and complain of pains in his head and stomach. Now, Doctor Stafford, based upon the facts that I have detailed, and from your examination of the letter which I described and which I handed to you, what, in your opinion, was the mental condition of the man described as `A,' on the 11th day of August, 1931; was he, in your opinion, of sound mind or unsound mind?"