author: HUGHES, Justice.

text:
    Carlton KERR et ux., Appellants, v. James Roy DILDINE, Appellee.
    No. 11441.
    Court of Civil Appeals of Texas. Austin.
    Jan. 18, 1967.

      Will Cowan, Austin, for appellants.
    Brown, Sparks, Erwin, Maroney & Barber, Will G. Barber, Austin, for appel-lee.
   HUGHES, Justice.

This is a suit for damages for personal injuries arising from the collision of a 1960 Renault Caravel coupe automobile operated by appellee, James Roy Dildine, and a 1957 Ford automobile being operated by appellant, Mrs. Winnie Kerr, wife of Carlton Kerr. The collision occurred about 2:30 p. m. Saturday, March 28, 1964, in the 1100 block of South Lamar Boulevard in the City of Austin, Texas. The collision of the cars was a rear end collision, the front of appellee’s Renault coupe striking the rear end of appellants’ 1957 Ford.

The trial was to a jury which made these findings: (1) Appellee failed to keep a proper lookout, and this was a proximate cause of the collision. (2) Appellee was negligent in failing to properly apply his brakes immediately before the collision, and this was a proximate cause of the collision. (3) Mrs. Kerr failed to keep “such lookout immediately before the collision made the basis of this suit that would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances,” and that this failure was a proximate cause of the collision.

The jury exonerated the drivers of all other grounds of actionable negligence or contributory negligence submitted to it, and found that the collision was not the result of an unavoidable accident.

Damage issues were answered in sums totaling $2,000.00.

Appellants filed a motion asking the trial court to disregard the jury findings that Mrs. Kerr failed to keep a proper lookout and that this failure was a proximate cause of the collision. This motion was denied, and the court rendered judgment that appellants take nothing by their suit.

Appellants assign error in the action of the court in refusing to disregard the issues mentioned contending that there was no evidence to support the jury’s answers to such issues.

The evidence in its vital features is remarkably clear from conflict.

Lamar Boulevard, where the collision occurred, is a straight, level and paved street. It has two northbound and two southbound traffic lanes, the pairs of lanes being divided by a double yellow stripe. The two inside lanes are 12 feet wide and the two outside lanes are 18 feet wide.

To the west of Lamar Boulevard, in the 1100 block is Lamar Plaza Shopping Center. It has several entrance and exit driveways to and from Lamar Boulevard on the west side of the street.

South Lamar is a “busy” street. The speed limit on it is 35 m. p. h. in the 1100 block. The day of the collision, the weather was clear, and the streets were dry.

At the time of the collision, Mrs. Kerr was driving alone enroute to shop at a department store in Lamar Plaza Shopping Center. She was driving north on the inside traffic lane intending to turn left across the southbound lanes and into a shopping center entrance. She had entered the shopping center in this manner on many occasions.

Mrs. Kerr was driving about thirty miles an hour as she approached the shopping center. She reduced her speed in traveling “for quite some distance” to five miles an hour and turned on her left turn blinker signal. While thus proceeding and while looking for a break in the double center stripe, she was hit by appellee’s car approaching from the rear.

The point of impact of the cars was in the inside traffic lane of the northbound traffic lanes, the lane in which Mrs. Kerr had been traveling, and a short distance beyond, or north, of the last break in the double stripe before the next street intersection.

Mrs. Kerr’s Ford was equipped with three rear view mirrors, but she did not look in any of these before commencing to slow down or immediately prior to the collision. Neither did Mrs. Kerr give any hand signal of her intention to slow down. Mrs. Kerr could not remember whether she applied the brakes in slowing her car.

Mrs. Kerr had not commenced her turn before the collision occurred. At this time there were no cars approaching from the north and no northbound cars in front of or to her right side.

We quote appellee’s version of the manner in which the collision occurred:

“Q You were proceeding in what direction on — South Lamar?
A In a northerly direction.
Q Now, before the accident occurred, did you see the car being driven by Mrs. Kerr?
A Yes, sir, I did.
Q Was it in the same lane of traffic that you were traveling?
A Yes, it was.
Q Now, as it approached the intersection there of South Lamar and West Gibson, where there is a break in the two double yellow lines, what, if anything, did the Kerr car do?
A She slowed down, to me (sic.), as if she was going' to make a left turn, but instead of coming to a complete stop, she kept going. I then looked to the right, and saw that a car was on my right. I had intended to pass to the right, but by the time I looked back around it was too late.
Q When you looked to the right there was a car immediately to your right ?
A Just to the right and a little behind.
Q Close enough to prevent you from turning out in the outside lane ?
A Yes.
Q And when you looked around and saw her again, what happened?
A Then there was the collision. I applied my brakes then.
⅜ ⅜ * * ⅝ *
Q Mr. Dildine, about how far were you from the Kerr vehicle when you first noticed that the other vehicle was decreasing its speed?
A I would say — it would be hard to guess, but I would say approximately about two to three car lengths.
Q Well, Mr. Dildine, let’s go back. Do you recall on October 4, 1965, and shortly thereafter, some interrogatories were submitted to you for answers ?
A I remember the questions and so forth, but not the date.
Q Well, do you remember — this is No. 112. Questions No. 113 and 112: ‘Did you notice Plaintiff’s vehicle reducing speed prior to the accident?’ And your answer was ‘Yes ?’
A Yes, definitely so.
Q Is that true?
A Yes, sir.
Q And the answer to No. 113, the question was: ‘If so, state how far you were from the other vehicle when you first noticed the reason for the other vehicle’s decrease in speed.’
A I said about two to three car lengths, to the best of my recollection.
Q Well, now, the answer you gave at that time in your interrogatories was 150 feet, Mr. Dildine.
A Well, it is pretty hard to estimate that distance when you are travelling along like that, because I was not paying any attention whatsoever to the distance.'
Q Well, at that time the answer was made under oath, and the answer was 150 feet. Now, 'is that correct?
A I would hate to say, I mean, because, like I say, it is hard to estimate the distance, because, I mean, I don’t know, really. You can cover a whole lot more ground than you actually realize, unless it is for certain that you do know.
Q Well, Mr. Dildine, let me put it to you this way. These answers were filed, the original was filed in this Court, dated October 19, 1965, and at that time the answer under oath made by you—
A Yes, sir.
Q —through your attorney was 150 feet;—
A Approximately.
Q —is that true?
A That is an approximation, yes, if I gave it, but, like I say, I don’t remember now at the time giving it. If I gave it at that date, then, that is correct.
Q If that is what the answer was on that date, then, that was true?
A Yes, sir, approximately so.
Q Now, from the time you first observed this automobile 150 feet in front of you, did you have the Plaintiff’s vehicle in your observation all of the time from the time that you first observed it up until the moment of impact ?
A No, sir.
Q If you did not, state why not.
A Because, as I have said previously, I did turn and look to the right- to see if there were any cars coming so that I could pass around to the right side.
Q All right. At that time were you travelling about 25 miles an hour?
A Yes, sir, approximately so.
Q And you did notice the Plaintiff’s vehicle reducing speed prior to the accident ?
A Yes, sir.
Q And No. 113 again: ‘If she did, state how far you were from the other vehicle when you first noticed the other vehicle decreasing speed.’ Your answer was ‘150 feet;’ is that correct?
A Yes, sir.
Q You skidded some 15 to 18 feet?
A Yes, sir.
Q At the same time in these interrogatories, in answer to 124, in answer to the question: ‘For what distance did you have a clear view as you approached the scene of the accident?’ Your answer was: ‘A long ways;’ is that right?
A Yes, sir, I believe so. Now, I mean, I wouldn’t state it as a fact.
Q If that’s what your answer was under oath on October 19, 1965—
A Yes, sir.
Q —then, that is still true?
A Yes, sir.”

There is evidence to the effect that ap-pellee’s car would have stopped in a few more feet from application of its brakes and that if Mrs. Kerr had accelerated her car and moved these few feet the collision would not have occurred.

It is our opinion that the trial court erred in not granting appellants’ motion to disregard the jury findings of negligence and proximate cause relating to Mrs. Kerr’s failure to keep a proper lookout.

Mrs. Kerr’s operation of her Ford was proper and legal in every respect. She did nothing and attemped to do nothing which she did not have a legal right to do or attempt to do. She was going to the Lamar Plaza Shopping Center where she had gone many times before. She was on the inside lane, the proper lane from which to make a left turn. She was traveling at a moderate rate of speed, thirty miles an hour, but even so it was necessary that she reduce this speed in order to safely turn left at a break in the double stripe or at the next street intersection. She turned on her left blinker light, slowed her Ford to five miles an hour and before she could turn she was hit by appellee’s car from the back. Appellee also was traveling at a moderate speed, 25 miles an hour, and had observed Mrs. Kerr slowing her car while 150 feet back of it. All that appellee had to do to avoid the collision was to reduce the speed of his car, but instead he looked off to see if he could switch lanes. When he looked back, it was too late to avoid the collision.

True, Mrs. Kerr did not look in her rear view mirrors. Suppose she had. She would have seen a car 150 feet behind her traveling at 25 miles per hour when she began to slow her car and give her left turn signal. This view would have assured her that she could make the left turn with safety as there was nothing in this view that would cause her alarm or call for any action on her part different from what her actions showed she intended. She certainly would not be held to anticipate that the driver of such car was going to look off and not slow his car until it was too late to avoid hitting her.

If it is to be held that drivers of automobiles cannot exercise their right of turning left under the circumstances of this case without committing an act of negligence based solely on the fact that a car is approaching from behind at a safe distance and at a reasonable speed, then left turns can rarely be made by a prudent driver who would not knowingly commit a negligent act because in cities such as Austin there is almost always a car behind, usually much nearer than 150 feet.

Appellee concedes the general rule to be that a driver has no duty to keep a lookout to the rear, but he contends that there is an exception to this rule which is applicable here, the exception being that if the driver intends to slow down, stop or change directions, it is his duty to look to the rear and observe approaching traffic from that direction. He cites as directly applicable to this case Berry v. Sunshine Laundries and Dry Cleaning Corp., 387 S.W.2d 948, San Antonio, writ ref., n.r.e.

In Berry plaintiff’s car was stopped behind a lead car which turned left into a private driveway in the middle of a block. Plaintiff intended to make the same left turn and was giving signal to this effect when he was struck from the rear by defendant’s truck. The jury found plaintiff guilty of contributory negligence in not keeping a proper lookout, and this finding was sustained by the Appellate Courts. The driver of defendant’s truck testified that when he first saw plaintiff’s car he was going 20-25 miles per hour and was only eighteen feet behind it. The jury found he, defendant, was guilty of failing to keep a proper lookout.

The opinion does not reflect whether a left turn in the middle of the block was authorized or not. Here the record is that a left turn was authorized. In Berry the car hit was stopped. Here the car was moving. In Berry the car hit was not observed until too late to stop. The -contrary appears here.

Our conclusion is that Berry is not controlling, there being material factual differences between it and this case.

We sustain appellants’ points that the jury’s answers to the issues relating to the failure of Mrs. Kerr to keep a proper lookout are without evidence to support them, and that the trial court erred in not granting appellants’ motion to disregard them.

Appellants also have points to the effect that the jury findings which we have held to be without evidentiary support are so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. We would sustain these points if required to pass on them.

The judgment of the trial court is reversed and judgment is here rendered for appellants against appellee for the sum of $2,000.00 with 6% interest thereon per an-num until paid from March 24, 1966, date of trial court’s take nothing judgment, together with all costs of suit in this behalf expended or incurred.

Reversed and rendered.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Clark G. THOMPSON, Appellant, v. The CITY OF HOUSTON et al., Appellees.
    No. 15014.
    Court of Civil Appeals of Texas. Houston.
    Jan. 12, 1967.
    Rehearing Denied Feb. 3, 1967.

      Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellant.
    William A. Olson, City Atty., Jay D. Howell, Jr., Senior Asst. City Atty., for appellees City of Houston and Burford C. Rodgers, Tax Assessor and Collector for the City of Houston and the Houston Independent School District.
    Reynolds, White, Allen & Cook, William A. Paddock, Houston, for appellee Houston Independent School District.
   COLEMAN, Justice.

This is an appeal from the action of the trial court in denying a temporary injunction against the levy and collection of taxes on the appellant’s real estate.

Appellant sued the City of Houston, the Houston Independent School District, and their Assessor-Collector of taxes for a mandamus, or an injunction, to require them to place all personal property located in the City and School District on the property tax rolls. This suit was filed on June 17, 1966. On September 8, 1966, appellant’s application for a temporary injunction to restrain appellees from taking further steps to assess or collect taxes against appellant’s property, until such time as all omitted property subject to taxation is added to the tax roll of each corporate appellee and appellant’s property is re-assessed on a fair, equal and uniform basis, was denied.

Appellant offered proof that no attempt was made by appellees to place the cash in the Houston banks and various other kinds of personal property, on their tax rolls. He offered evidence that there were 341,000 different real estate accounts on the rolls, but only about 29,000 personal property accounts. Practically all of the personal property accounts consisted of personal property of various business concerns. A few automobiles and trucks were listed, but the tax was not collected on them. Appellant produced testimony that there are 56 banks and 16 savings and loan associations in Harris County. From the records of five of these institutions he produced evidence that at the close of business on December 31, 1965, there was deposited in the accounts of individuals, partnerships and corporations, exclusive of the accounts of the United States Government, State and political subdivisions, or other commercial banks, the sum of $1,914,705,586.00. He showed that the total value of the taxable assets on the 1965 tax roll of the City of Houston was $2,778,436,340.00, and of the School District, excluding the value of automobiles and trucks listed, $2,575,928,090.-00. There is evidence that these values were arrived at on the basis of 40% of market value. Appellant testified that if the additional tax revenue which would be gained from the value of these bank deposits was added to the anticipated revenue as shown by the 1966 budgets of the City and School Districts, the tax rate of the City could be reduced by fifty cents per $100.00 and that of the School District reduced by seventy cents per $100.00, and the revenue would exceed the anticipated revenue as set out in the budgets. There was no evidence as to the actual ownership of the bank deposits and thus no evidence as to the percentage of these deposits that would be tax exempt.

Appellant testified as to the amount of cash he had on deposit and offered to pay such tax on his personal property as might be due if taxes were levied and assessed on an equal and uniform basis. He had rendered his real property for taxation, but not his personal property. Prior to bringing suit he had protested to the “Board of Equalization, or the Board of Appraisement of the City of Houston”, and, in particular, councilman Lee McLemore, the exclusion of large amounts of property subject to tax from the tax rolls of the City of Houston and the Houston Independent School District.

He further testified:

“I would tender tax upon any brand of property or any class of property at such point the City put them in. In other words, I don’t know where they’re coming or going. At the point you taxed bank deposits, I would certainly pay tax on my bank deposits or include my bank deposits and I would certainly include bonds and certainly stocks, wherever we go down that line. I do not seek to get out of the taxes. All I am asking is that you all apply them in accordance with the law.”

In the City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 1954, the court considered this problem and said:

“The deliberate adoption of a plan for the omission from the tax rolls of a large volume of property, personal or real, is in direct contravention of constitutional and statutory provisions for equality and uniformity of taxation. Article VIII, Section 1, Constitution of Texas, Vernon’s Ann. St.; Article 7174, Vernon’s Annotated Civil Statutes, 1925. Such a plan of taxation results in the rankest kind of discrimination between taxpayers. It does not lie with local taxing authorities to say that certain classes shall bear the entire burden of ad valorem taxation.
“In the recent case of State v. Whitten-burg [153 Tex. 205] 265 S.W.2d 569, 573, we recognized the right to relief from such an arbitrary plan of taxation. However, if the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent a taxing authority from putting such a plan into effect, as those remedies were used in such cases as City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820, writ refused, and City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W.2d 777, writ refused, his right to relief is limited. * *
it ⅝ ⅜ ⅝

“The Board of Equalization did not follow the statutory mandates for arriving at the value of property. It ignored market value as the basis for valuation. Its procedures in this respect were wholly unlawful and fundamentally wrong. It is now settled, however, that to obtain relief from taxes arrived at through the use of an arbitrary, illegal and fundamentally erroneous plan of valuation, the taxpayer must show substantial injury. Druesedow v. Baker, Tex.Com.App., 229 S.W. 493, affirmed Baker v. Druesedow, 263 U.S. 137, 44 S.Ct. 40, 68 L.Ed. 212; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776, no writ history. * * *

“ * * * In so far as relief is sought upon the basis that the unlawful methods used by the board in arriving at values of real property have resulted in unequal values being placed thereon, only those owners of real property who can make a reasonable showing of actual and substantial discrimination against them would be entitled to relief.”

In order to show actual and substantial discrimination as to him by reason of the deliberate omission from the tax rolls of personal property, it was necessary for appellant to show that he owned, subject to taxation, substantially more real property than personal property. City of Houston v. Baker, 178 S.W. 820, Tex.Civ.App., Galveston 1915, writ ref.

An inference may be drawn from appellant’s testimony that he owns stocks and bonds. There is no testimony as to the value of this property. If the personal property owned by appellant is greater in value than the real property he owns, he would not benefit from the inclusion on the tax rolls of all personal property unless it should happen that the inclusion of all property on the tax rolls would reduce the tax rate to such a level that appellant’s tax on both real and personal property would be reduced substantially below the tax to be assessed against him on real property alone. In the absence of evidence of the value of the personal property which he owns this is not demonstrated even if his testimony that the tax rate could be reduced by one-third or more is accepted.

The trial court did not abuse its discretion by denying the temporary injunction.

Affirmed.


author: McDONALD, Chief Justice.

text:
    B. W. PETTY, Appellant, v. G. A. CAMPBELL and R. L. Campbell, Appellees.
    No. 4584.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1967.

      David D. Adams, Nacogdoches, J. Albert Dickie, Gatesville, for appellant.
    Dunnam, Dunnam & Dunnam Robert M. Campbell, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a venue case involving subdivision 7, Article 1995 Vernon’s Ann.Tex.Civ.St. Plaintiffs Campbell sued defendant Petty, alleging sale by defendant and purchase by plaintiffs of 5400 chickens in Coryell County; that defendant represented and warranted to plaintiffs in Coryell County the chickens were clean and disease free; that plaintiffs relied on such warranty; that defendant knew, or should have known, the chickens were diseased at the time; that the chickens were diseased with leucosis and commenced dying the day after the sale; that defendant’s breach of warranty constituted fraud committed on plaintiffs in Coryell County. Plaintiffs prayed for actual and punitive damages.

Defendant filed plea of privilege to be sued in Nacogdoches County, the place .of his residence. Plaintiffs filed controverting plea, alleging venue in Coryell County by virtue of Subdivision 7, Article 1995 V.A.T.S., in that defendant committed a fraud in Coryell County, which resulted in injuries and damages to plaintiffs.

The trial court, after hearing, overruled defendant’s plea of privilege.

Defendant appeals, contending the trial court erred in overruling his plea of privilege, asserting the contract to sell the chickens was made in Nacogdoches County; that fraud, if any, was committed in Nacogdoches County; and there is no evidence of any fraud committed in Coryell County.

Plaintiff G. A. Campbell went to Nacog-doches to look at chickens owned by defendant. Defendant represented that his chickens were clean and disease free. Plaintiff paid $1,000 as earnest money for a future purchase and delivery of chickens, but the “deal would be after — on delivery” of the chickens, in Coryell County. Thereafter, defendant brought the chickens to Coryell County and again represented them as disease free. Plaintiffs accepted the chickens and paid defendant $5,905 additional money. The next day the chickens commenced to sicken and die and were diagnosed by the veterinary as affected with leucosis. On the trial defendant admitted he knew there were chickens on his farm with leucosis, and that before delivering the chickens to plaintiffs he had culled some out which had symptoms of leucosis.

Subdivision 7, Article 1995 V.A.T.S. provides :

“In all cases of fraud * * *, suit may be brought in the county where the fraud was committed * *

Plaintiffs alleged and proved fraud committed in Coryell County. Plaintiffs’ suit is maintainable in Coryell County under Subdivision 7. Austin Bros. v. First Baptist Church, CCA, 77 S.W.2d 891; Cockburn v. Less, CCA (Er. Dis. w. o. j.), 257 S.W.2d 470; Texas Seed & Floral Co. v. Hairrill, CCA (nwh), 211 S.W. 539; Howe Grain & Merc. Co. v. Galt, (nwh), 32 Tex.Civ.App. 193, 73 S.W. 828. Defendant’s points and contentions are overruled.

Affirmed.


author: MOORE, Associate Justice.

text:
    Leon FINLEY, Appellant, v. Charlie FINLEY et al., Appellees.
    No. 254.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Rehearing Denied Jan. 12, 1967.
    Second Rehearing Denied Feb. 2, 1967.

      Patterson, McDaniel, Moore & Erowder, Bennett B. Patterson, Ross D. Margraves, Jr., Houston, for appellant.
    A. R. Mason, Angleton, for appellees.
   MOORE, Associate Justice.

This is an appeal by writ of error from a judgment of dismissal. Appellant, Leon Finley, filed suit in the court below for a bill of review, seeking to review a judgment of partition which had theretofore been entered by the trial court on January 19, 1965. When the matter came on for trial, appellant failed to appear and as a result the trial court entered judgment against him dismissing his suit for the want of prosecution, reciting as follows:

“ON THIS THE 16th day of August, 1965, came on to be heard the petition on Bill of Review filed herein by Defendant, Leon Finley, and came the Plaintiffs in person, and by their attorney of record, and the Defendant, though duly, legally and regularly notified of the date and time of such hearing, as required by the rules of this court, failed to appear and wholly made default; and a jury being waived and matters of facts and things in controversy being submitted to the court in their regular order and it appearing to the court that Plaintiffs are entitled to the following judgment; it is ORDERED, ADJUDGED and DECREED by the court that the petition on Bill of Review filed herein by the Defendant, Leon Finley, be and the same is hereby dismissed for want of prosecution. * * * ”

Appellant did not file a motion for new trial, nor did he make any effort to have the trial court reinstate the case on the docket. In fact, no action was taken in the matter until February 4, 1966, at which time appellant filed this petition for writ of error.

The record is before us by transcript only, without a statement of facts.

While appellant’s points of error are rather general in nature, we gather that he seeks a reversal on the ground that the trial court abused his discretion in dismissing his petition for Bill of Review.

The well settled rule governing dismissals for want of prosecution is that, even without statutory authority, a court has the right to dismiss a suit for failure to prosecute with due diligence. The matter rests in the sound discretion of the trial court. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85.

Unless it be shown that the exercise of that power has been abused, such action is not subject to revision on appeal. The burden of proof rests upon a litigant asserting abuse of discretion to develop the transaction and affirmatively shows such abuse of discretion. In other words, the presumption is that the action of the trial court in this case was just and proper, and unless there is some testimony showing to the contrary, the appellant is not entitled to relief in this court. Hall v. City of Austin, 31 Tex.Civ.App. 626, 73 S.W. 32.

Since appellant failed to offer any testimony in this connection and since there is nothing in the face of the record showing an abuse of discretion, it is our conclusion that the appellant has failed to sustain his burden of proof.

Moreover, we think the record affirmatively shows a lack of diligence on the part of appellant. Approximately three weeks prior to the date the cause was set for trial, appellant’s attorney withdrew from the case. At the time of trial, he had no attorney of record. Thus, the record shows that appellant not only failed to appear at the hearing, but failed to employ an attorney to represent him. For this reason, we think the record affirmatively shows a lack of diligence on the part of appellant.

Dismissal is the proper order when one fails to prosecute his claim with reasonable diligence. First Nat. Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085.

Appellant’s brief contains numerous other points of error complaining of the judgment of partition dated January 19, 1965. We are at a loss to understand how, on this appeal, this court would have any jurisdiction over that judgment. The petition for writ of error describes only the judgment dated August 16, 1965, dismissing appellant’s bill of review.' As we understand the law, the scope of our review on this appeal is limited to a review of the judgment complained of in the petition. Rule 360, Texas Rules of Civil Procedure; Fouga v. Fouga, 221 S.W. 1117 (Tex.Civ.App.) In any event, however, we would be without jurisdiction over the partition judgment in view of the fact that the petition for bill of review was not filed within six months after the date of the rendition of the judgment of partition. Article 2255, Vernon’s Ann.Tex.Civ.St. Consequently, this court is without jurisdiction to pass upon the assignments of error leveled at that judgment.

For the reasons stated, we have concluded that no reversible error is shown and the judgment must be affirmed.

Affirmed.

ON MOTION FOR REHEARING

In his motion for rehearing, the appellant urges that we erred in holding that the appeal related only to that portion of the judgment dated August 16, 1965, dismissing the bill of review, because the judgment not only dismissed the bill of review for lack of prosecution but also permanently enjoined appellant from interfering with, or going on, the lands awarded appellees in the partition decree. Appellant seems to take the position that we intentionally ignored the fact that the judgment also granted an injunction against appellant. Contrary to appellant’s contention, we did not overlook or ignore this facet of the case. Our reason for failing to discuss the in-junctive feature of the case was because we were unable to find any point of error in appellant’s brief specifically attacking that portion of the judgment. Although appellant’s original brief contained nine lengthy, argumentative and multifarious points of error, all in violation of Rule 418, T.R.C.P., none of the points related to the injunctive feature of the case. In fact, the word “injunction” is not even mentioned in the points of error. Most of appellant’s brief appears to have been devoted to an attack upon the decree of partition dated January 19, 1965, the validity of which is not before us on this appeal. Be that as it may, however, the default judgment of August 16, 1965, in addition to dismissing the bill of review, also enjoined appellant as follows:

“ * * * It further appearing to the court that Plaintiffs are entitled to the possession and use of 18.08 acres of land according to the judgment heretofore entered by this court in this cause on the 19th day of January, 1965, said 18.08 acres of land being shown on the plat made a part of such judgment and designated as Plat No. 2, and that the Plaintiffs are entitled to a permanent injunction, enjoining the Defendant, Leon Finley from molesting, harassing or inflicting any physical violence upon the Plaintiffs and Plaintiffs’ agents and employees when they enter upon or occupy or use said 18.08 acre tract of land, and from interfering in any manner with the Plaintiffs’ use of such land and the fencing of same; it is therefore ORDERED, ADJUDGED and DECREED by the court that the temporary injunction heretofore issued by this court on the 19th day of April, 1965, be and the same is hereby made permanent, and Defendant is hereby perpetually enjoined from and he shall desist from such acts.”

In view of the fact that the above judgment disposes of both the suit for bill of review and the suit for injunction, perhaps it should be pointed out that both suits were filed under the same docket number as that given the original suit for partition. As a result, both the bill of review and the injunction were disposed of in one judgment.

As we understand appellant’s contention on motion for rehearing, he asserts that the judgment enjoining him from going on the land is void because there is fundamental error apparent on the face of the record. In this connection he argues that the decree of partition dated January 19, 1965, is not a final judgment because at the time the judgment was rendered, he had on file a pleading in the case setting up a cause of action in trespass to try title and that the effect of this pleading prevented the rendition of a judgment of partition, or at least prevented the judgment from ever becoming final. Consequently, he reasons that at the time of the injunction, the title to the land was in dispute and therefore the action of the court in enjoining him from going on the land amounted to an adjudication of title and since these matters are apparent on the face of the record, fundamental error is presented. This contention appears to us to be without merit.

In the first place, the record does not reveal whether the petition in trespass to try title was filed in the case before the rendition of the judgment of partition. In the second place, we do not believe it would make any difference whether such partition was filed either before or after the rendition of the judgment. The fact remains that the trial court rendered a decree of partition on January 19, 1965, and insofar as this record shows appellant never filed a motion for new trial or perfected an appeal from that judgment. The judgment therefore became final at the expiration of thirty days from the date thereof. Rule 329-b, T.R.C.P.

As pointed out in our original opinion, this case is before us without a statement of facts and without findings of fact and conclusions of law. It is well settled that where there is no statement of facts, it will be presumed that there was evidence to support the trial court’s judgment, Burnett v. Meletio (Tex.Civ.App.), 351 S.W.2d 912; Gelfond v. Levit (Tex.Civ.App.), 398 S.W.2d 659, and every presumption must be indulged in favor of the trial court’s findings and judgment. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363.

We find nothing in the record indicating fundamental error, and there being no statement of facts, we must presume that there was evidence before the court to support the judgment for injunctive relief as prayed for by appellees.

Appellant’s motion for rehearing is overruled.


text:
    Angus T. BENTON et al., Appellants, v. B. F. WALKER TRUCK LINE, INC., et al., Appellees.
    No. 4575.
    Court of Civil Appeals of Texas. Waco.
    Jan. 12, 1967.
    Rehearing Denied Feb. 2, 1967.
    Powell, Tucker, Kain & Reedy, Paul A. Tucker, Tom F. Coleman, III, Houston, Fulbright, Crooker, Freeman, Bates & Ja-worski, Gibson Gayle, Jr., Houston, for appellants.
    Baker, Botts, Shepherd & Coates, Alvin M. Owsley, Jr., Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a judgment for defendant in an automobile-truck collision case.

Plaintiff Benton sued defendant Walker for damages sustained by plaintiff when an automobile driven by plaintiff collided with defendant’s truck which had stopped on the highway. Trial was to a jury, which found defendant negligent, and found plaintiff contributorily negligent. The jury further found plaintiff, immediately before the collision, was acting under an emergency. The conflict in the answers of plaintiff’s negligence, and acting under an emergency, was discovered by the trial judge and he returned the jury to the jury room, after which the jury returned its final verdict, finding that plaintiff had not acted under an emergency. The jury answered the general damage issue as to plaintiff’s pain, suffering, and loss of earnings “None”; although they found plaintiff’s medical expenses to be $800; and future medical expenses to be $12,000; and damage to plaintiff’s automobile to be $1800. The trial court entered judgment for defendant on the verdict.

Plaintiff filed motion and amended motion for new trial, alleging jury misconduct. After hearing, the trial court overruled such motions.

Plaintiff appeals on 8 points, contending:

1) The trial court erred in refusing to grant plaintiff a new trial because of jury misconduct consisting of discussions by jurors of insurance benefits paid plaintiff; and of state laws.
2) The trial court erred in not granting a mistrial when the jury answered the general damage issue “None”, and the evidence was undisputed plaintiff suffered pain and lost wages.
3) The trial court erred in not granting a mistrial when the jury first announced a verdict revealing a conflict between issues, finding plaintiff contributorily negligent, and acting under an emergency.

Plaintiffs’ first contention complains of alleged jury misconduct. The record reflects that one of the jurors made mention of insurance; that one or two of the jurors discussed putting out of flares when a truck stops on the road; whether a lawyer would get any money; and state laws governing truck driving. The record further reflects that the jury foreman, each time topics not in evidence were mentioned, cautioned the jurors to “stick to the facts,” and to “stop talking about matters not pertaining to the facts.”

Rule 327 Texas Rules of Civil Procedure requires the trial court to grant a new trial where the jury misconduct is material, and “if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

Under the record none of the matters complained of relate in any way to plaintiff’s failing to drive on the provisional roadway; his failure to keep a proper lookout, or driving his car at a negligent rate of speed, all of which the jury found proximately caused the collision. Nor do any of the matters complained of relate in any way to whether or not plaintiff was acting under an emergency immediately before the collision.

It cannot be said the complained of misconduct was either reasonably calculated to or probably did cause the rendition of an improper judgment. See State of Texas v. O’Dowd, 158 Tex. 348, 312 S.W.2d 217.

Plaintiffs’ second contention is the trial court should have granted a mistrial because the jury answered “None” to the general damage issue, when the record is undisputed there were some damages.

Since the jury found that plaintiff was negligent, the finding on the damage issue was immaterial. Southern Pine Lbr. Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Myles v. A. J. Jackson Garbage Disposal Service, CCA (nwh) 401 S.W.2d 723.

Plaintiffs’ third contention is the trial court should have discharged the jury and granted a mistrial when the jury first announced a verdict in which there was a conflict between issues finding plaintiff negligent, and in acting under an emergency.

Rule 295, T. R. C. P. provides that if a jury verdict be defective “or contains conflicting findings, the court shall call the jury’s attention thereto in writing and send them back for further deliberations.” In the case at bar the trial court simply followed the rule, and the jury resolved the conflict.

All plaintiffs’ points and contentions are overruled.

Affirmed.


author: MURRAY, Chief Justice.

text:
    HILLTOP VILLAGE, INCORPORATED, Appellant, v. KERRVILLE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14540.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1966.
    Biery, Biery, Wood & Davis, Leonard E. Davis, San Antonio, for appellant.
    Lavern D. Harris, Kerrville, for appellee.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Kerr County by Hilltop Village, Incorporated, against the Kerrville Independent School District, for a judgment under the provisions of Article 2524-1, Vernon’s Ann.Civ.St, declaring its certain 7.2 acres of land, together with all improvements located thereon, situated within the taxing jurisdiction of the Kerrville Independent School District, exempt from certain ad valorem taxes assessed by defendant for the years 1963, 1964, and 1965. The case was submitted to the trial court on an agreed statement of facts, together with a number of exhibits. The trial court, without the intervention of a jury, rendered judgment declaring that plaintiff, Hilltop Village, Incorporated, does not qualify for and is not entitled to exemption from the ad valorem taxes assessed by the school district on Hilltop’s property on the ground that it is an institution of purely public charity, from which judgment Hilltop Village, Incorporated, has prosecuted this appeal.

Our State Constitution authorizes the Legislature, by general laws, to exempt from taxation all buildings used exclusively and owned by institutions of purely public charity. River Oaks Garden Club v. City of Houston, 370 S.W.2d 851 (Tex.1963); Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 701, 5 S.W. 519; Santa Rosa Infirmary v. City of San Antonio, (Com.App.) 259 S.W. 926; Texas Constitution, Article VIII, § 2, Vernon’s Ann.St.; Article 7150, Vernon’s Ann.Civ. St.

The burden of proof is on one claiming exemption from taxation to show by facts that he comes clearly within the requirements of the Constitution and statutory exemptions. Morris v. Lone Star Chapter No. 6, Royal Arch Masons, supra; Daughters of St. Paul, Inc. v. City of San Antonio, Tex.Civ.App., 387 S.W.2d 709; Malone-Hogan Hospital Clinic Foundation, Inc. v. City of Big Spring, Tex.Civ.App., 288 S.W.2d 550; Raymondville Memorial Hospital v. State, Tex.Civ.App., 253 S.W.2d 1012; Trinity Methodist Episcopal Church v. City of San Antonio, Tex.Civ.App., 201 S.W. 669; Benevolent & Protective Order of Elks v. City of Houston, Tex.Civ.App., 44 S.W.2d 488. The Courts of Texas are committed to a strict construction of constitutional and statutory tax exemption provisions. River Oaks Garden Club v. City of Houston, supra.

The Hilltop Village, Incorporated, is a non-profit corporation organized principally for the purpose of establishing, maintaining, operating and managing homes for older adults in the Kerrville District, as a project of the Methodist Church, and authorized by action of the Southwest Texas Conference of the Methodist Church.

The property involved herein was purchased by Hilltop Village, Incorporated, on March 7, 1961, and is owned by Hilltop subject to the following:

1. Regulatory agreement with the Federal Housing Administration, dated October 13, 1961.
2. Deed of Trust executed by Hilltop Village, Inc., securing the payment of a note in the principal sum of $1,023,300.00, dated October 13, 1961, executed by Hilltop Village and payable to T. J. Bettes Company, or order, at Houston, Texas.
3. Modification Agreement by and between Hilltop Village, Incorporated, Mortgagor, T. J. Bettes Company, Mortgagee, and John F. Austin, Jr., Trustee, dated February 10, 1964.
4. A Deed of Trust made and entered into by and between Hilltop Village, Incorporated, Grantor, Jerome Sneed, Jr., Trustee, and T. B. Porter, d/b/a Porter Plumbing & Heating Co., beneficiary, dated April 1, 1964.
5. Deed of Trust executed by Hilltop Village, Incorporated, to secure a certain note renewed and extended and payable to T. B. Porter, d/b/a Porter Plumbing and Heating Co., dated February 1, 1965.

Hilltop Village has now completed its home for older adults on the 7.2 acres of land above referred to, and at the present time there are 86 residents, of whom 67 are able to pay the full cost of their care and 19, part of such cost. Thus 22 per cent of the residents are paying less than the full price for their dwellings. The largest amount of so-called charity received by a resident each month is $165.00, but the average amount received by the 19 so-called charity residents is $54.42 per month.

Hilltop Village is a single one-story building development complex composed of room accommodations for 133 persons, together with a cafeteria, chapel, library, game lounge, or social area, a laundry room, a canteen, mechanical rooms and administrative offices. The basic cost to a resident depends upon the type of room accommodation furnished and ranges from $150.00 per person per month to $215.00 per person per month based upon a written instrument, and is charged all tenants who are able to pay. The services provided by the corporation other than the rooming units and meals in the cafeteria, generally, are bed linen, towels, wash cloths and laundry of same, maid service for regular cleaning of rooms, constant nursing supervision, and the free use of the library, game, social and recreation area, where various games are played, programs and meetings held, and television is viewed, laundry room facilities where washers and dryers are located, and a chapel.

There are a number of other stipulations as to how Hilltop Village operates its home for the older adults but no useful purpose would be served by setting them out.

It is apparent from the agreed stipulations of the parties that Hilltop Vil-age is not a purely public charity and is not operated as such. The furnishing of homes to older adults is not in itself a charitable purpose. It is not the duty of the government to furnish homes to older adults. It is true that Hilltop Village is a non-profit corporation and has a worthy and worthwhile purpose, but under the facts in this case it cannot be classified as an institution of purely public charity. River Oaks Garden Club v. City of Houston, supra; Methodist River Oaks Apartments, Inc. v. City of Waco, 409 S.W.2d 485, an opinion recently delivered by the Waco Court of Civil Appeals. The latter case is on all-fours with the case at bar.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    E. J. BURKE, Appellant, v. John Linn SCOTT, Appellee.
    No. 11443.
    Court of Civil Appeals of Texas. Austin.
    Feb. 1, 1967.
    Rehearing Denied Feb. 8, 1967.

      John Peace, J. B. Langham, San Antonio, for appellant.
    Cofer, Cofer & Hearne, Hume Cofer, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee sued appellant for an architectural fee as compensation for alleged services in connection with the construction of a nursing home. Appellant filed a cross-action for damages allegedly incurred by reason of certain actions on the part of appellee.

This case has been before us on a plea of privilege is reported in Burke v. Scott, 400 S.W.2d 385 (1966 writ refused w. o. j.).

Before trial, appellant filed and presented his sworn motion for continuance because of the critical illness of both the appellant and appellant’s only witness, T. A. Bollinger. This motion was supported with affidavits of two doctors. The motion was overruled. Thereafter, prior to the trial of the case on its merits, appellant filed and presented a sworn supplemental motion for continuance. This motion likewise was overruled and the case was ordered to trial.

Appellant did not participate in the trial and a verdict was returned in favor of appellee in the approximate sum of $66,000 upon which verdict judgment was entered. It is from this verdict and judgment that appellant has perfected his appeal to this Court.

We reverse the judgment of the trial court and remand this case for trial.

Appellant is before this Court on one point of error, namely, that of the trial court in overruling appellant’s motion for continuance that was filed, presented and overruled on March 10, 1966, and re-urged and overruled on March 14, 1966 along with appellant’s supplemental motion for continuance that was filed, presented and overruled on March 14, 1966, all of said motions being presented and overruled prior to the trial of the case on its merits.

We sustain this point.

On January 25, 1966, at the request of appellee, the case was set for trial on its merits for March 14, 1966.

On March 10, 1966, appellant filed and presented his sworn motion for continuance because of the critical illness of both the appellant and appellant’s only witness, T. A. Bollinger. This motion was supported by the affidavits of two doctors.

Appellant’s doctor stated in his affidavit that appellant was presently in Mercy Hospital in Laredo seriously ill and under an oxygen tent. That it was therefore impossible from a medical point of view for him to appear in court on Monday, March 14. That it was not possible at that time for the doctor to state exactly when he might appear in court because that depended on his progress. That it did not appear at that time that he would be able to appear in court for at least two or three months.

Witness Bollinger’s doctor stated by affidavit that Bollinger had suffered a heart attack on January 24, 1966 and was confined in the Santa Rosa Medical Center in San Antonio, Texas, from that date until February 6, 1966. That from February 6, 1966 until the present time (March 9, 1966) he had been confined to his home under the doctor's care. That Bollinger was physically unable to testify or participate in a court trial at that time without greatly endangering his health. That if Bollinger continued to progress as he had he would be able to either testify or to give a deposition in the lawsuit within eight weeks or by the second day of May, 1966.

Thereafter on March 14, 1966, prior to the trial of the case on its merits, appellant filed and presented a sworn supplemental motion for continuance. This motion incorporated appellant’s prior motion for continuance of March 10,1966.

All of appellant’s motions were again overruled.

No answer was filed by appellee in opposition to appellant’s motions for continuance, nor did appellee controvert the facts set forth in the motion.

Appellant took exception to the Court’s ruling with a proper bill and again in a motion for a new trial.

Motions for Continuances come under Tex.Rules of Civil Procedure 251 and 252.

Appellant’s motions were in compliance with the above rules and being not controverted conclusively establishes the following:

Appellant had been in ill health for some time. Because of his ill health and the uncertainty as to whether the appellant’s health would be such so as to permit him to be physically present to testify on the trial of this case an agreement was made between counsel for both parties to take appellant’s deposition. Pursuant to this agreement on September 28, 1965 an effort was made to take appellant’s deposition, while he was confined to his bed because of his illness. Before appellee’s attorney could complete the taking of the deposition and before appellant’s attorney could develop any portion of his defense. to appellee’s suit and also his evidence in support of his cross-action, the appellant became acutely ill and was unable to continue the deposition. Due to this illness it was agreed by counsel for both parties that the deposition would be recessed to a future date to be agreed upon by the attorneys for both appellant and ap-pellee.

Before the deposition could be resumed and completed appellant developed a condition of his circulatory system necessitating a surgical operation to remove an aneurysm from his leg. After consulting with Dr. Denton A. Cooley, M.D., of Houston, Texas, appellant was admitted to the St. Luke’s Hospital in Houston, Texas on January 25, 1966. On January 31, 1966, appellant underwent surgery and the aneurysm was removed by Dr. Cooley. Appellant remained in the hospital in Houston, Texas, from the date of his admission until the 18th day of February, 1966, at which time he was permitted to return to Laredo, Texas, by plane.

The day after returning to Laredo, February 19, 1966, appellant suffered a heart attack and was taken to Mercy Hospital in Laredo, Texas, where he had been continuously confined in an oxygen tent under the care of Dr. Cigarroa, M.D.

Because of these developments it was impossible for appellant’s counsel to complete appellant’s deposition and since the onset of the events involving surgery it has been impossible for appellant’s counsel to even confer with appellant with reference to preparing the case for trial on the merits.

The only other person who could assist in the trial of this case on the merits was one T. A. Bollinger, who handled various phases of the negotiations between appellant and appellee. Mr. Bollinger suffered a heart attack on January 24, 1966, the day before (January 25,1966) the appellee had this case set for trial on its merits for March 14, 1966. Mr. Bollinger was confined to the Santa Rosa Hospital in San Antonio, Texas, from January 24,1966 until February 6, 1966 and from February 6, he has been continuously confined to his home under the care of Dr. James R. O’Neill of San Antonio, Texas. Due to Mr. Bollinger’s illness he was unable to assist appellant’s counsel in the preparation of this case for trial or to attend the trial without endangering his health.

Appellant’s motion stated that the presence of the appellant and his testimony and the presence of T. A. Bollinger or his testimony were indispensable to an adequate defense of appellee’s case and the prosecution of appellant’s cross-action. Without the presence of one or both of the parties and the testimony of one or both of the parties it was impossible to proceed to trial. The testimony of both the appellant and Mr. Bol-linger was material to appellant’s defenses in the lawsuit and also material to his cross-action and such testimony could not be procured from any other source. The continuance was not sought for delay but in order that justice be done. Appellant would have been able to appear in court in approximately three (3) months and Mr. Bollinger would be able to appear in court or give his deposition within eight (8) weeks or by May 2, 1966.

In addition to the above facts established by appellant’s motions for continuance, the motions also set out the facts that the appellant and Mr. Bollinger would testify to on the trial of the case. The fact that the witness will testify to these facts, being uncontroverted, must be accepted as true. United Employers Cas. Co. v. McCloud, 146 S.W.2d 247, 249 (Tex.Civ.App.Galveston, 1940, no writ).

These facts supported appellant’s defenses and if believed by the jury, constituted a complete defense to appellee’s suit.

We hold that a continuance should have been granted either under Rule 251 in that appellant was physically and mentally nnable to undertake his defense and also under Rule 252 for want of testimony. We hold that appellant fulfilled the requirements of this latter rule under the circumstances with which he was faced.

From the facts presented here, the trial judge abused his discretion in not granting the continuance requested. In addition to the right to be physically and mentally able to aid in the preparation of his trial, a litigant also has the valuable right to be present at his trial for reasons that are obvious. The fact that the deposition in this case had not been completed cannot be attributed to negligence under the circumstances. Nor is the fact that there were other continuances in the past, which were presumably granted for good cause, a basis for a denial in this cause. See 12 Tex.Jur. 2d Continuance Sec. 23, p. 570 and the cases there cited.

The judgment of the trial court is reversed and the cause is remanded for trial.

Reversed and remanded.

O’QUINN, J., not sitting.

      . “Rule 251. Continuance
      No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.
      Rule 252. Application for Continuance
      If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.”


author: TIREY, Justice.

text:
    A. H. CARTER, Appellant, v. ASSOCIATED TRANSFER AND STORAGE COMPANY, Incorporated, et al., Appellees.
    No. 4564.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1966.
    Albert H. Carter, pro se.
    Charles G. Lowry, Joe Resweber, County Atty., Edward J. Landry, Asst. County Atty., Houston, for appellees.
   OPINION

TIREY, Justice.

This is an appeal from a summary judgment. In the judgment we find this recital: “ * * * and the Court * * * being of the opinion that the plea of the two-year statute of limitations of the several defendants is good, and having found from such pleadings and instruments that the plaintiff was not a person imprisoned at the time the cause of action alleged herein accrued, within the meaning of Article 5535, V. A. C. S.; * * * that the motion for summary judgment of the plaintiff A. H. Carter should be in all things overruled and that the motion for summary judgment of the defendant Associated Transfer & Storage Company, Inc., a corporation, and the motion for summary judgment of the defendants Charlie Baulch and Monard Briggs are good and should be in all things sustained, * * and decreed accordingly and taxed all costs against plaintiff Carter.

Appellant’s point one is that the court erred in its failure to hold: “Appellant’s probationary status constituted legal imprisonment, hence neither the two-year nor the three-year statute of limitations had run when his suit was filed.”

We affirm the judgment of the trial court.

Carter instituted this suit against Associated Transfer and Storage Company, Inc., and Harris County Deputy Constables, Charlie Baulch and Monard Briggs, for the recovery of damages in the aggregate sum of $6,777.50, which he alleged he suffered as a result of damage to his furniture, household goods and other personal property as a result of certain wrongful conduct on the part of the appellees. He specifically alleged that on July 2, 1962, said constables, pursuant to a writ of restitution issuing out of Cause No. 29,935, and styled Johnny C. Warren v. Albert H. Carter, Justice of the Peace Court, Precinct 2 of Harris County, evicted him and removed his personalty from the premises at 3715 West-hampton Street, Houston, Texas; that with the removal of his personal property the constables summoned defendant storage company and removed his property to the warehouse of such storage company; that on July 12, 1962, appellant’s property was restored to him by the storage company after he paid for the costs for moving and storage of the property. Thereafter on July 7, 1965, more than two years after the happening of the above described facts, Carter instituted this suit in Fort Bend County, Texas, seeking recovery for damages and losses to his household goods. On plea of privilege the suit was transferred to Harris County, and judgment was rendered on the 26th day of February, 1966 as heretofore stated.

Appellees’ Baulch and Briggs Counterpoint I is: “The trial court properly rendered summary judgment against the appellant since this suit insofar as it was brought against the appellees Charlie Baulch and Monard Briggs, is an action in tort governed by Article 5526 V.A.C.S., and as such appellant is barred from a recovery thereon by reason of his delay of more than two years in instituting suit.” We sustain this contention. Article 5526, Vernon’s Ann.Civ. St., in part, provides: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

“1. Actions of trespass for injury done to the estate or the property of another.
“2. Actions for detaining the personal property of another, and for converting such property to one’s own use.
“3. Actions for taking or carrying away the goods and chattels of another.”

It is without dispute that the conduct on the part of appellees constables of which appellant complains, occurred on the 2nd day of July, 1962. The last date on which appellant makes no complaint of any wrongful conduct on the part of appellees or the storage company occurred on July 12, 1962, the date on which appellant had his property restored to him by the storage company. The record shows that this suit was instituted on July 7, 1965, over two years after the occurrence of the complained of action and conduct on the part of constables and the storage company. Our view is that appellant’s right to recover against said constables and the storage company is barred by Article 5526 aforesaid. The probationary judgment which appellant claims as a bar to the statute of limitation was entered in the U. S. District Court for the Middle District of Georgia, on the 20th day of October, 1961, in which Carter was convicted upon a plea of not guilty of the offense of unlawfully, knowingly, and wil-fully and without authority wearing the uniform of an officer of the U. S. Air Force as well as distinctive parts thereof. The judgment recited :

"* * * the imposition of sentence is hereby suspended and the defendant is placed on probation for a period of five (5) years from this date on the condition that he pay a $250 fine at the rate of $50 per month, to begin 30 days from the date of this sentence.
“It is further ordered that during the period of probation the defendant shall conduct himself as a law-abiding, industrious citizen and observe such conditions of probation as the court may prescribe. Otherwise the defendant may be brought before the court for a violation of the court’s orders.”

There is nothing in the record to indicate that Carter ever violated the provisions of the foregoing judgment of the Federal Court, and he was in Texas and free to go about looking after his business at the time the suit was entered against him, and at the time he was evicted from his place of residence. It is without dispute that Carter at the time his alleged cause of action accrued against him was free on probation as opposed to being restrained or in confinement in a prison. Article 5535, V.A.C.S., provides in part: “If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues * * * a person imprisoned * * * the time of such disability shall not be deemed a portion of the time limited for the commencement of the action * * *y> Therefore, the sole question here is: Was Carter, at the time this alleged cause of action accrued, a person imprisoned within the contemplation of the disability provided for in Article 5535, since he was free under probation orders of the Federal Court? Our view is that the answer is “No.” In Lasater v. Waites, 67 S.W. 518, (Tex.Civ.App., 1902) we find this statement:

“The statute of limitation was interposed as a defense, but was avoided upon the ground that appellee was ‘a person in prison,’ as provided in our statute on that subject. Rev.St. art. 3373, subd. 4. From March 17, 1894, to July 12, 1898, appellee was confined in the penitentiary under conviction and sentence of the district court of Hunt county for horse theft, and before conviction had been continuously confined in the jail of Hunt county on that charge from August 4, 1893, till he was taken to the penitentiary, except during the time of his absence from jail as an attached witness, when he was still in the custody of the sheriff of Hunt county, through Deputy Keith. It seems to us, therefore, that appellee was to all intents and purposes ‘a person in prison,’ when the cause of action arose, September 15, 1893, and that he so remained till within less than a year before the filing of this suit.” (Reversed on other grounds at 95 Tex. 553, 68 S.W. 500).

It is obvious that the court in the foregoing opinion based its holding upon the undisputed fact that appellant was actually under confinement in prison (and in restraint) when his cause of action accrued as opposed to appellant’s situation in this case, the appellant here being free of confinement and restraint, but under the inhibitions of a pro-' bationary status. In 24 A.L.R.2d 622, Sec. 5, we find this statement.of the rule:

"Generally, the question as to whether or not a plaintiff, from the nature of bis confinement, is ‘imprisoned’ within the meaning- of those saving provisions postponing the running of the statutory period in favor of persons imprisoned, without supplying any statutory definition of the term, appears to be determined by the practical circumstance of the nature and degree of the restraint imposed upon the plaintiff, as bearing upon his ability or inability in fact to care for his affairs, and generally, in determining the question, the application of technical rules is avoided except insofar as they tend to support the conclusion based upon practical considerations.” (emphasis added).

We think the foregoing rule is sound, and we think it should be the law in Texas and this court so holds. See also Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339 (1921).

In the case of Mitchell v. Greenough, 100 F.2d 184, (C.C.A. 9th, 1938, cert. den. 306 U.S. 659, 59 S.Ct. 788, 83 L.Ed. 1056), we find this statement:

“The purpose of the statute tolling the period of limitation is evidently to protect those who are incapable of protecting themselves by reason of minority, insanity or actual imprisonment. The plaintiff, during the time he was on parole, was under no such disability. He does not bring himself either within the purpose or letter of the statutory exceptions and it must be held that the action was barred by the two-year period of limitation.” (emphasis added).

See also Rose v. Washington Times Co., 57 App.D.C. 385, 23 F.2d 993 (1928, cert. den. 277 U.S. 597, 48 S.Ct. 559, 72 L.Ed. 1006).

Our Supreme Court in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758 (Jan. 15, 1958, point 6,) made this statement:

“ * * * that where the statute creates a right and also incorporates a limitation upon the time within which the suit is to be brought, the limitation qualifies the right so that it becomes a part of the substantive law rather than procedural, and that unless suit is brought within the time allowed by statute no right of action can be maintained even though the law of the forum provides for a longer period of limitation.”

It is our view that under the undisputed factual situation here before us, and in view of the provisions of the statutes and the cases that we have cited that appellant’s alleged cause of action was barred by the statute of 2-year limitation, and that the judgment entered by the trial court is correct. Once the statute of limitation begins to run it is not interrupted by subsequent events. See Article 5544, R.C.S.; also Blum v. Elkins, Tex.Civ.App., 369 S.W.2d 810, Waco Court, 1963, n. w. h.

We have considered appellant’s other points and we find that they are without merit and each is overruled.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    T. F. KENT et al., Appellants, v. J. W. SMITH, Appellee.
    No. 253.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 12, 1967.

      E. Leon Phillips, Pasadena, for appellants.
    Dixie & Schulman, Chris Dixie, Houston, for appellee.
   DUNAGAN, Chief Justice.

This suit was filed by T. F. Kent and V. E. Edman, individually and collectively, and as representatives of a class of property owners of Tammarack Woods, a subdivision in Houston, Harris County, Texas, against J. W. Smith.

Plaintiffs’ petition sought an injunction against the defendant, requiring him to remove a building from a lot within the said subdivision that was placed thereon allegedly in violation of the recorded subdivision restrictions.

Upon the hearing of the case on its merits, the case was submitted to the trial court upon the facts stipulated by the parties pursuant to Rule 378, Texas Rules of Civil Procedure, and exhibits were introduced into evidence. No witnesses were called. After considering the stipulation of facts, the exhibits, and argument of counsel, the trial court denied the injunctive relief sought by the plaintiffs. Plaintiffs duly perfected their appeal and the case is now before this court for review.

Plaintiffs (appellants) and defendant (appellee) are owners of lots situated within the Tammarack Woods Subdivision.

Paragraph V of plaintiffs’ original petition reads: “Plaintiffs allege that Defendant have moved a twenty foot wide by fifty foot long building onto the rear portion of lot one (1) Block three (3) of the said subdivision, said property being owned by Defendant herein. That the action on the part of the Defendant, is in violation of the said subdivision restrictions, specifically, the sections quoted above. That the said building, has created an annoyance and nuisance to the neighborhood.” The sections of the restrictions quoted in plaintiffs’ original petition are (a) and (m).

The restrictions here involved are set forth in a single document dated July —, 1964, executed by Twenty-Eight-O-Two Corporation, the developer of the subdivision of which the lot of the defendant is a part. It contains IS paragraphs which are designated by alphabetical lettering from (a) to (o). The paragraphs of the said restrictions, which the parties in the trial court stipulated they relied on, are as follows :

“(a) No lot shall be used except for residential purposes. The term ‘residential purposes’ as used herein shall be held and construed to exclude hospitals, clinics, duplex houses, apartment houses, boarding houses, hotels, and to exclude commercial and professional uses whether from homes, residences or otherwise, and all such uses of said property are hereby expressly prohibited. No building shall be erected, altered placed or permitted to remain on any lot other than on (sic) detached single family dwelling not to exceed two stories in height and a private garage for not more than three (3) cars. This restriction shall not prevent the inclusion of one story servants quarters in connection with a garage, for the use of bona-fide servants domiciled with a tenant or owner.
“(b) No building shall be erected, placed or altered on any building plot in this subdivision until 2 sets of the building plans, specifications, and plot plat showing the location of such buildings have been approved in writing as to conformity and harmony of external design with existing structure in the subdivision', and as to location with respect to topography, and finished ground elevation, by a committee composed of J. W. Clark, H. J. Pack and John Wheeler, or by a representative named by a majority of the members of said committee. In the event of death or resignation of any member of said committee, the remaining member or members shall have full authority to approve or disapprove such design and location or to desígnate a representative with like authority. In the event said committee, or its designated representatives, fail to approve or disapprove such design and location within thirty days after said plans and specifications have been submitted to it such approval will not be required and this covenant will be deemed to have been complied with. Neither the members of such committee nor its designated representatives, shall be entitled to any compensation for services performed, pursuant to this covenant. The duties and powers of such committee, and of its designated representatives shall cease on and after ten years from date.
“(e) No trailer, basement, tent, -shack, garage, barn or other outbuilding erected on the tract shall be at any time used as a residence, temporary or permanently, nor shall any structure of a temporary character be used as a residence, nor shall any used residence be moved onto a residential lot.
“(m) No building whether a residence or otherwise, shall be moved onto a lot affected hereby without the written consent of the planning committee referred to in Paragraph (b) hereof.”

The stipulated facts in the case show that defendant bought this property after he requested and received from the planning committee approval of the complained-of building, pursuant to which approval defendant moved it onto the back of his residential lot. It was also stipulated that the building' in question was an outbuilding. The precise outbuilding was inspected by 'Mr. John Wheeler, a member of the committee who granted written permission on behalf of the committee as authorized by the restrictions.

Plaintiffs further stipulated that they did not claim that the building had been put to any improper use in any way.

The pertinent portions of the stipulations entered into in open court are as follows:

“ * * * This is a suit to enforce restrictive covenants in a certain subdivision situated in Harris County, Texas known as Tammarack Woods. * * *
“ * * ⅜ Mr. and Mrs. J. W. Smith, are residents in and owners of a lot within the subdivision known as Tammarack Woods.'
“It is further stipulated that Mr. and Mrs. Smith purchased their property and moved thereon as their residence in the month of April in the year of 1965.
“Prior to the purchase of this property, the defendant requested from the Committee mentioned in the restrictions permission to put upon the property the outbuilding which is the subject matter of this litigation. Mr. John Wheeler, of the First State Bank of Greens Bayou, a member of said committee, inspected the building in question, which was then located on the previous residence of the defendant, J. W. Smith. After such inspection, he delivered or caused to be delivered to Mr. Smith a written notation, which is marked as defendant’s exhibit number 1 in this record.
“ * * * After receiving such written notation, Mr. Smith purchased the property and moved thereon as his residence.
“About one month later he moved thereon the out-building which is the subject matter of this litigation.
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“In submitting this cause the plaintiff does not claim that the said John Wheeler was not authorized to act for the committee specified in paragraph (b) of the restrictions. Rather, plaintiffs’ contentions as a whole are that the committee had no authority to give permission for the placement of the building in question on the premises in question, and that the placement thereof on the property in question violates the restrictions above referred to.
(< ⅜ iji ⅜
“MR. DIXIE (who represents the defendant) : Would the Court permit us to call attention to the various paragraphs in these restrictions that each side is relying on?
“THE COURT: I take it you are relying on paragraph (b).
“MR. DIXIE: Well, I am also relying on (e), your Honor, and (m). (b), (e), and (m) are relevant.
“THE COURT: * * * I take it you are relying on paragraph (a) ?
“MR. PHILLIPS (who represents the plaintiffs) : (a), yes, sir, and (m) also. Well, primarily (a).
“THE COURT: Well, now, is there any stipulation as to the use to which this building is being put?
"MR. DIXIE: They do not claim that we are using it for residence purposes, nor for any commercial purpose.
“MR. PHILLIPS: No, sir, we do not. We have no knowledge of what it’s actually being used for.”

The plaintiffs contend by their sole assignment of error that “the Court erred in refusing to grant the injunction prayed for in Plaintiff’s Original Petition, and its failure was an abuse of its discretion.”

The plaintiffs’ position is thus stated in their brief: “If the Appellee (defendant) has the legal right to move a 20 by SO foot buiding onto the rear of his lot, it must be derived from the permission granted to him by the Architectural Control Committee. If this committee did not have the authority to grant such right then Appellee has violated the subdivision restrictions and the trial Court has abused its discretion in refusing to grant the injunction sought requiring Appellee to move the building.”

In substance, it is the defendant’s contention that the permission granted by the said committee gave him the right to move the building onto the lot in question.

When the various paragraphs of the restriction instrument are read together, it is apparent that the grantors contemplated that there would be outbuildings on the lots of the subdivision because paragraph (e) provides that no outbuilding shall be used as a residence, temporarily or permanently. If the restrictions intended to say that there would be no outbuildings at all, then certainly it would be meaningless to provide that an outbuilding shall never be used as a residence. Furthermore, paragraph (m) provides that: “No building whether a residence or otherwise” shall be moved onto a lot without the consent of the planning committee referred to in paragraph (b) of the restrictions. If the restrictions intended to say that no outbuildings would ever be allowed, it would likewise be meaningless to provide, as paragraph (m) does, that a building other than a residence could not be moved onto a lot without the written consent of the planning committee.

Paragraph (a) provides that no lot shall be used except for residential purposes. In the second sentence, it defines “residential purposes” to exclude certain specified uses. The third sentence, upon which appellants relied, reads as follows:

“ * * * No building shall be erected, altered placed or permitted to remain on any lot other than on (sic) detached single family dwelling not to exceed two stories in height and a private garage for not more than three (3) cars. * * * ”

The final sentence provides that “This restriction shall not prevent the inclusion of one story servants quarters in connection with a garage, for the use of bona-fide servants domiciled with a tenant or owner.”

It is our considered opinion that the purpose of the restrictions in paragraph (a) is to provide for a single family dwelling, to prevent duplexes, apartments, and the other excluded uses therein stated which will accommodate more than one family and to prevent more than one family from residing on one lot.

The sentence in question cannot be lifted from the context of its own paragraph (a) and the balance of the restriction instrument and read in total isolation so that “one detached single family dwelling” is expanded to mean that the dwelling house is the only building of any kind which will be allowed on the lot. This is so because paragraphs (e) and (m) specifically mention other buildings and provide that they can be moved onto a lot only by the written consent of the planning committee (which consent was obtained) and when so moved cannot be used as “a residence temporarily or permanently.”

In Thornton v. Wings of Faith Tabernacle, Inc., 290 S.W.2d 572, (Tex.Civ.App., Amarillo) 1956, writ ref., n. r. e., the restrictions confined the use of all lots “to residence purposes.” The restrictions also created a neighborhood committee empowered to approve or disapprove the design of buildings and their location and “to perform such other duties for the benefit of the several owners of lots in the subdivision as may be authorized from time to time by a majority vote of said lot owners.” The owners of a majority of the lots in the subdivision then executed and recorded a stipulation which authorized and directed the neighborhood committee to permit the construction of a church on certain lots in the subdivision. Pursuant to such instructions, the committee did file an “Annulment of Restrictions” for the benefit of the church as to certain lots in the subdivision, thereby contradicting and abrogating the restriction which limited the entire subdivision “to residence purposes only.”

Suing to prevent erection of the church, plaintiff in that case contended, as do plaintiffs here, that the committee had no authority to so act in face of the express restriction which provided for “residence purposes only” but the court held otherwise, stating:

“ * * * If the restrictions controlled the entire matter, there would have been no use in * * * filing the instrument giving a committee the right to do certain things * * *.
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“ * * * To construe these instruments that the owner of one lot could enjoin the building of the church in question regardless of the action taken by the committee upon the request or direction of the majority of the lot owners would be to disregard altogether the Declaration of Neighborhood Committee. * * * These instruments which were filed and recorded together created the restrictions and likewise creates the right and method to amend the restrictions, and we think that appellants and appellee purchased the lots under the provisions of the same instruments, and if there is any uncertainty, the uncertainty must be construed in favor of the grantee. Couch v. Southern Methodist University, Tex.Com.App., 10 S.W.2d 973; Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465. * * * ” See also Stanford v. Brooks, 298 S.W.2d 268, (Tex.Civ.App., Fort Worth) 1957, n. w. h.

An unambiguous restriction will be enforced as written, and may not be stretched, extended, enlarged, or changed by construction. A just and fair interpretation will be given thereto, bearing in mind the object of the grant, and ascribing to the words their ordinary and commonly accepted meaning. 16 Tex.Jur.2d, page 15, Sec. 118.

'[4] Ascribing to the words used in these restriction paragraphs in the instant case their ordinary, and commonly accepted meaning, we believe that it was contemplated that outbuildings incidental to normal residential use could be allowed in the subdivision with approval of the planning committee, but must not be used for improper purposes. There being no pleading or proof in this record as to the use being made of this 'outbuilding in question, the trial court nor this court can determine whether it is being put to improper purposes and uses.

We believe that the provisions of the various paragraphs of the restrictions can be harmonized if we ascribe to all the words their ordinary and commonly accepted meaning.

However, if it can be said there is conflict or doubt between the literal language of one sentence in paragraph (a) and the language of paragraphs (b), (e) and (m), then the established rule of construction will apply that the doubt must be resolved in favor of the defendant, the grantee. The law in this state is that the restriction is construed strictly in favor of the grantee, and the ambiguity resolved in favor of the free use of the land. 16 Tex.Jur. 2d, pages 15 and 17, Sec. 118 and Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465.

The plaintiffs also contend in their brief that the official committee could not permit the building in question to be placed on the lot because it did not conform to the harmony of external design with existing structures within the subdivision and because the building was of wood construction with composition shingles and the wood was not redwood or cedar as required by Sections (g) and (h) of the restrictions. There is no pleading or proof of the composition of the outbuilding in question. Moreover, the plaintiffs stipulated in the trial court that they relied upon Sections (a) and (m) of the restrictions. This contention, therefore, was not raised in the court below. The issue cannot be raised for the first time on appeal. State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576, 581, 1962; Brunson v. Brunson, 372 S.W.2d 761, 764 (Tex.Civ.App., Amarillo) 1963, n. w. h. and Clark v. Texaco, Inc., 382 S.W.2d 953, 958, 959, (Tex.Civ.App., Dallas) 1964, writ ref., n. r. e.

After a careful review of the record in this case, we think the trial court’s action in denying to plaintiffs the injunc-tive relief sought was proper and should be affirmed. Accordingly, it is so ordered.


author: DIXON, Chief Justice'.

text:
    Raymond SALAZAR, Appellant, v. BOND FINANCE COMPANY et al., Appellees.
    No. 16833.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1966.
    Rehearing Denied Jan. 20, 1967.

      Edward R. Vinson, of Fritz, Vinson & Turley, Dallas, for appellant.
    Burt Berry, James A. Williams, of Bailey, Williams, Weber & Allums, Dallas, for appellees.
   DIXON, Chief Justice'.

Appellant Raymond Salazar sued appel-lees Bond Finance Company, hereinafter called Bond, and Pacific Finance Loans, hereinafter called Pacific, for double damages for usurious interest paid on loans made during a period beginning in 1962. Appellant also sued for actual and exemplary damages to himself and his wife resulting from alleged unreasonable collection efforts.

On the first day of trial, before a jury was impanelled, Bond stipulated that appellant had actually received the sum of $240.30 as a loan and had paid back the sum of $330.07, or $89.77 more than he had received. Bond then confessed judgment on the usurious interest count for twice the last named amount, or $179.54.

Also on the first day of trial, before a jury had been impanelled, Pacific stipulated that appellant had actually received the sum of $348.03 as a loan and had paid back the sum of $464.00, or $115.97 more than he had received. Pacific then confessed judgment on the usurious interest count for twice the last named amount, or $231.94.

On the basis of the above stipulations the trial court rendered interlocutory judgments of $179.54 against Bond and $231.94 against Pacific, being double the amount of usury charged. Art. 5073, Vernon’s Ann.Civ.St.

The court made an entry on his docket sheet as follows: "Defendants confess out of Jury Presence Judgment as to usury items —Issues pertain to Collection efforts.” In the written interlocutory judgment against appellees for usurious interest the court decreed that in the trial of the causes of action for actual and exemplary damages for unreasonable collection efforts none of the parties would be “permitted to submit any evidence upon the question of usury, or discuss usury in their jury argument.” Appellant excepted to the above restrictive order of the court.

During the ensuing jury trial on the issues of unreasonable collection efforts appellant sought to introduce the evidence necessary to inform the jury that appellant had paid in full the amount of money he legally owed on the loans in question, and that ap-pellees had used unreasonable efforts to collect and had collected usurious interest. The court sustained appellees’ objections to such evidence.

The jury answered special issues to the effect that neither Bond nor Pacific had made any unreasonable collection efforts against appellant or his wife and that appellant had failed to exercise ordinary care in making his payments to appellees. Based on the jury verdict judgment was rendered in favor of appellees on appellant’s cause of action for alleged unreasonable collection efforts.

In his first point on appeal appellant says that the court erred in excluding from the jury the evidence of usury and in directing appellant not even to discuss usury in jury argument.

We agree with appellant. In our opinion the evidence of usury is relevant and material and is a factor to be considered in determining the question of the unreasonableness of appellees’ collection efforts in this case. Appellees brought pressure to bear on appellant to pay money which they confess he did not legally owe. As said in Moore v. Savage, Tex.Civ.App., 359 S.W.2d 95, 96 (ref. n. r. e. 362 S.W.2d 298), “* * it is more unreasonable to harass someone who does not owe a debt than it is to harass someone who does owe a debt.” We know of no case which is altogether in point, but the opinions in other cases lend support to our holding. Signature Indorsement Co. v. Wilson, 392 S.W.2d 484, 489 (ref. n. r. e.); Houston-American v. Tate, Tex.Civ.App., 358 S.W.2d 645, 652 (no writ hist.); Ware v. Paxton, Tex.Civ.App., 352 S.W.2d 520, 525 (aff. in part, rev. in part, 359 S.W.2d 897).

Moreover, in the light of the record before us we are convinced that the exclusion of evidence and oral argument in regard to usury was reasonably calculated to cause and probably did cause the rendition of an improper verdict and judgment in this case. Rule 434, Vernon’s Texas Rules of Civil Procedure. Appellant’s first point is sustained.

Appellant in his petition charges that ap-pellees used unreasonable collection efforts and, in the alternative, were negligent in their efforts to collect usurious interest. In their answers appellees pleaded contributory negligence on the part of appellant in making payments. Appellant excepted to appellees’ pleading of contributory negligence, but his exceptions were overruled.

In his second and third points on appeal appellant says that the court erred in overruling his objections to submission of Special Issues Nos. 27 and 30, which inquired of the jury whether appellant failed to use ordinary care in making payments to appellees. Appellant objected on the ground that appellees’ pleadings of contributory negligence failed to state a defense to appellant’s cause of action and said pleadings were not sufficient to justify the submission of said issues.* The court overruled these objections. The jury answered both issues in the affirmative.

The point has been passed on favorably to appellant’s contentions. Employee Finance Co. et al. v. Lathram, Tex.Civ.App., 363 S.W.2d 899.

Our Supreme Court in 369 S.W.2d 927, 929-930 reversed the judgment of the Court of Civil Appeals in the Lathram case because other defendants, who had not appealed, had paid the judgment in full, therefore the questions presented by petitioners had become moot. In so doing the Supreme Court said, “For purposes of this opinion we may assume, without deciding, that the points of error are good and should be sustained.” (Emphasis ours.) Then the court made it very plain in additional statements that it was not deciding the issues presented by petitioners. See also Signature Indorsement Co. v. Wilson, 392 S.W.2d 484, 487. Appellant’s second and third points are sustained.

In sustaining appellant’s second and third points we do not hold that a debtor’s con-tributary negligence could never under any circumstances constitute a defense to a creditor’s negligent collection efforts. What we are holding here is that appellees’ pleadings of contributory negligence do not state a defense in this case.

If we be mistaken in sustaining appellant’s second and third points we nevertheless sustain appellant’s fourth point. In it appellant asserts that there is no evidence to support the submission of Special Issues Nos. 27 and 30. Again we agree with appellant. In connection with this point it is necessary for us to review the evidence.

In the first place the record before us is almost barren of evidence concerning the circumstances in regard to the payments made by appellant. By direction of the court the evidence before the jury was limited to appellees’ collection efforts. Appellees in confessing judgment as to usury stipulated the total amounts of cash received by appellant and the total amounts paid back by him. But the court refused to permit the stipulations to go to the jury. There is no evidence as to the dates of any of the loans, or of the amounts of the loans, or the amounts of the notes. Appellees’ managers testified from cards showing the numbers and dates of letters, of phone calls to appellant at his home and at his place of employment, and of personal visits of appellees’ collectors. The reverse side of those cards showed the amounts and dates of payments, but this information was not permitted to go to the jury. Appellant and his wife testified that they did get behind in their payments to appellees, but because of appellees’ objections practically no evidence went to the jury concerning the circumstances attending the individual payments made by appellant. Appellees’ managers did testify as to a few of the payments and dates of said payments made by appellant. But said testimony fails to shed any light on the question of contributory negligence. The mere facts that appellant got behind in his payments and that he failed to meet some of his commitments do not of themselves constitute contributory negligence. The evidence does show that appellant finally succeeded in paying appellees all that he legally owed them— in fact more than he owed them, including usurious interest. Since it was at the behest of appellees that the court firmly excluded nearly all the evidence in regard to the circumstances connected with appellant’s payments, appellees are hardly in position to say that the evidence supported the jury’s verdict that appellant failed to use ordinary care in making his payments.

In the second place the evidence which did find its way into the record gives no support whatever to appellees’ claim that appellant failed to use ordinary care in making his payments.

Appellant Raymond Salazar and his wife Joan Salazar are of Latin American descent. He never attended school. His native tongue is Spanish. He does not speak or understand the English language well. She has only a third grade education. They have nine children, six of whom lived with them during the time here involved. For four years he has been employed ás a yard maintenance man at the Wynnewood Apartments. His salary during the times material here was $42.00 per week. His employer testified that he is reliable. He sometimes supplemented his salary by playing in a band on weekends, for which he received $10.00 each time he played. Mrs. Salazar is a housewife. She has no outside employment. During 1962-1964 she went to the hospital five times for operations.

The oldest child who now lives with them is their daughter Dolores who at the time of the trial in 1966 was seventeen years of age. Some time ago Dolores dropped out of day school and now works at a “plastic company” from 8:00 o’clock A.M. to 4:30 o’clock P.M. at a salary of $50.00 a week. She is attending night school.

The Salazars bought a used automobile, but lost it through foreclosure. At one time they could not pay their household gas bill because they had used their available money to pay other bills. As a consequence their household gas supply was cut off.

The undisputed evidence shows that appellant and his family were in necessitous circumstances during all times material to this controversy. Most of the testimony in that regard came from appellant and members of his family. They were interested witnesses and ordinarily the testimony of interested witnesses, though uncontradicted, raises a fact issue. But the rule is otherwise when the testimony is direct and positive and there are no circumstances that tend to impeach it, and the opposing party fails to dispute the testimony or fails to use available means to test the truth of the uncon-tradicted testimony of an interested witness. See 56 Tex.Jur.2d 550 and cases there cited. In this case the record does not show that any attempt was made to examine hospital records to test the truth of Mrs. Salazar’s testimony of her operations; or to obtain information from the gas company in regard to the cutting off of the Salazar’s household gas supply; or to prove by Salazar’s employer, who was a witness, that Salazar was not telling the truth when he testified that he was paid a salary of only $42.00 per week. Under the circumstances the uncontradicted testimony of appellant’s family in regard to their financial straits must be accepted as true. And neither in their testimony nor in the testimony of any other witnesses do we find any evidence that appellant failed to use ordinary care in making payments to appellees. In discussing claims of contributory negligence similar to those made here Judge Renfro of the Forth Worth Court of Civil Appeals in Employee Finance Co. v. Lathram, 363 S.W.2d 899, 901 said, “We fail to see how plaintiff’s improvident condition was a defense to appellants’ unreasonable collection efforts.” We agree with Judge Renfro’s statement. Appellant’s fourth point is sustained.

In his fifth point appellant asserts that there was insufficient evidence to support the submission of Special Issues Nos. 27 and 30. In view of our sustaining appellant’s fourth point his fifth point becomes immaterial and we shall not pass on it.

The judgment of the trial court in regard to usurious interest will be affirmed. The judgment with reference to appellant’s cause of action for unreasonable collection efforts will be reversed and remanded for a new trial.

Affirmed in part and reversed in part.

       Appellees’ pleadings of contributory negligence may be summarized as follows:
      (1) Appellant was borrowing money from other lending establishments at the same time when he knew or should have known that he could not make the various scheduled payments.
      (2) Appellant failed to inform appellees that he felt he was being mistreated although he had already employed a law firm to file suit.
      (3) Appellant continually promised payments in the immediate future though he knew he would be unable to make such payments.
      (4) Appellant failed to avoid and minimize the consequences he and his wife may have sustained by their conduct in borrowing money from various companies and failing to notify appellees thereof.
      (5) Appellant failed to keep appellees informed of his financial circumstances.