author: DIXON, Chief Justice.

text:
    William J. ERCK, Appellant, v. George ZELIOS, Appellee.
    No. 16667.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1966.
    Malone, Seay & Gwinn, Robert A. Gwinn, Dallas, for appellant.
    Gibbs, Hooks & Wyrick, Dallas, for ap-pellee.
   DIXON, Chief Justice.

This is a suit for damages for injuries to person and property arising out of a rear end automobile collision. An automobile owned and being operated by appellant William J. Erck crashed into the rear of an automobile owned by appellee George Zelios and being operated by Mrs. Zelios. The Zelios car at the time of the collision was at a standstill in a line of vehicles waiting at an intersection for a traffic control light to change from red to green.

The case was tried to a jury. No issues were requested or submitted as to contributory negligence of appellee’s wife. The jury found that the collision was not the result of an unavoidable accident and that the wet street was not the sole proximate cause of the collision. However, the jury found in favor of appellant Erck in answering issues inquiring as to his alleged failure to keep a proper lookout, his excessive speed, and his driving his car too closely behind the Zelios car. The jury did find that appellant Erck failed to make timely application of his brakes, but that such failure was not negligence. In this connection the issue of proximate cause, being conditionally submitted, was not answered.

Appellant filed a motion for judgment on the verdict, which motion was overruled. Appellee filed a motion asking that the court disregard the jury’s negative answers to issues inquiring as to appellant’s alleged negligent acts and the jury’s failure to answer issues as to proximate cause in connection therewith. Of course appellee did not attack the finding that appellant failed to make a timely application of his brakes. In the alternative appellee asked that the negative findings on any one act of negligence and proximate cause conditionally submitted be disregarded. Appellee’s motion was sustained.

The jury’s answers to the damage issues are not attacked by either appellant or ap-pellee.

Judgment was accordingly entered for ap-pellee for $350 property damage to his automobile and $2,449 for his wife’s physical pain, mental suffering, and doctor, medical and drug bills as found by the jury. Thus we are presented with the question whether the court was correct in holding that appellant Erck as a matter of law was guilty of negligence which proximately caused the collision.

FACTS

The material facts are undisputed. The collision occurred at about 7:45 o’clock on the morning of May 7, 1964 on Buckner Boulevard close to its intersection with Mercer Street.

It is the testimony of appellant himself which makes the evidence conclusive on the question of negligence and proximate cause as a matter of law. He testified that the weather was “miserable” — it was misty, a light rain was falling and the street was slick. His tires were not the best. They had about 20,000 miles of travel on them. Appellant, a sales manager, was on his way to East Texas on a business trip. He turned left from Northwest Highway onto Buckner Boulevard. The latter is a four-lane highway having two lanes for northbound traffic and two lanes for southbound traffic with a dividing line in the center. The Zelios car was the next vehicle ahead of appellant. The two vehicles were traveling in the same direction in the same lane. Traffic was very heavy, both forward lanes being crowded. Appellant’s car followed the Zelios car for about five miles. Due to the heavy traffic it had been necessary for the two vehicles to stop twenty or thirty times.

Not far from the intersection of Buckner Boulevard and Mercer Street there is an underpass through which traffic flows beneath a railroad trestle. Mrs. Zelios had proceeded into the underpass, had passed the lowest point and had come to a stop on the uphill side. It was necessary for her to stop because the vehicles ahead of her in both lanes had stopped to await the change of the intersection traffic light from red to green. Appellant failed to stop his car in time to avoid crashing into the rear of the Zelios car. When appellant did finally apply his brakes his car skidded into the Zelios car, though the highway at that point is slanted uphill.

We quote from appellant’s testimony:

“Q. Did you have trouble stopping at the time that you hit her car?
“A. Yes, sir. I was experiencing difficulty. I had not observed soon enough that her car had again stopped and there was just enough delay there on my part in observing this that by the time I realized that I would also have to stop again my reaction was to brake, and when I did it locked the wheels and then a skid set in.” (Emphasis ours.)
⅜ ⅜ ⅝ ⅝ ⅝ ⅜
“Q. You didn’t actually see her at the moment that she first applied her brakes?
“A. No, sir” (Emphasis ours.)
⅝ * * * * *
“Q. How fast were you going when you applied your brakes?
“A. I would estimate that I was in the neighborhood of twenty miles an hour.” (Emphasis ours.)
* * * * * *
“Q. So, you. were going ten miles an hour when you hit her car?
“A. I would estimate ten to twelve miles an hour.” (Emphasis ours.)
⅜ # # * ⅝ *
“Q. Were you la,te getting off on your trip that morning?
“A. By the time I got out of town, yes, sir, I was late.
“Q. I mean, before the accident happened.
“A. Yes, sir. I was probably running behind a little bit.”
sfi jjs ⅝ sje sjs ⅜
“Q. Was her car at a full stop when you hit her?
“A. Yes, sir,
“Q. Had it been actually stopped there in the traffic lane for a few seconds before you did hit her?
“A. Yes, sir .” (Emphasis ours.)
⅜ ⅜ # ⅜ * ⅝
“Q. At the time that you first noticed that Mrs. Zelios had stopped, or was stopping, how fast were you going?
“A. I am estimating around twenty miles an hour.
“Q. And about how far do you estimate you were behind Mrs. Zelios’ car when you first noticed that she was stopping, or had stopped?
“A. Three or four car lengths.”
⅝ ⅜ ⅛ ⅝ ⅜ ⅝
“Q. I am asking you, did you see her car when she first applied her brakes and when she first started making her stop?
“A. I am not sure. I don’t think that I did.”
⅜ ⅜ ⅝ ⅜ ⅝
“A. You want a definite yes or no. Is this correct ? This is what I can’t give you.
“Q. Well, if you don’t know, you just don’t know.
“A. I don’t know. I don’t think that I did observe this when she first braked. No, sir.”
⅜ ⅜ «Í» ⅛⅞ ⅜
“Q. Mr. Erck, why did you not observe her stop or start from the start to the finish? Where were you looking?
“A. I don’t know the answer to that question.
“Q. You weren’t looking at her car, were you?
“A. I could well have been. Maybe looking just beyond it, or looking down the two lanes. I don’t know.”
⅜ ⅝ ⅜ ⅜ ⅝ ⅜
“Q. Well, were you that close behind her that you couldn’t stop? Were you following her that closely?
“A. Well, I think it is pretty obvious that there should have been more distance. I should have observed something sooner. The fact is, that she was hit by me. I was not able to stop completely, so I guess the answer to your question is that there are probably several things that could have been done to have prevented this accident. Yes, sir.
“Q. Mr. Erck, you have travelled this roadway before, have you not?
“A. It is not a frequent part of my route. I have been across the highway many times over the years, but it had been maybe six months to a year since I had been down this road.” (Emphasis ours.)

W. D. Vickers, eighteen years with the Texas Department of Public Safety, with a background of special training and experience in traffic matters, was a witness. He testified in effect that if appellant’s car was following the Zelios car within a distance of three or four car lengths at a speed of twenty miles per hour on a slick street he could not possibly have stopped his vehicle in time to avoid the collision. His statement includes figures in regard to feet per second a car travels at twenty miles per hour, the reaction time necessary to move a driver’s foot from the acceleration pedal to the brake pedal to apply pressure to stop an automobile such as appellant was driving, and other factors which furnish the basis for his opinion. While his testimony is certainly not conclusive it at least has the effect of corroborating appellant’s admissions, though such corroboration was not necessary.

OPINION

In three points on appeal appellant asserts in substance that the court erred in ruling that appellant was guilty of negligence and proximate cause as a matter of law, since there was sufficient evidence to support the jury’s findings of no negligence and proximate cause. We are of the opinion that the court correctly ruled that appellant was guilty of negligence which was a proximate cause as a matter of law.

The rule in this State is as follows:

“In rare cases, to which we think this one belongs, where the evidence is without material dispute and where only one reasonable inference may be drawn therefrom, the question of negligence becomes one of law.” Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528.

In analyzing the situation presented by this record it should be borne in mind that appellant did not request that issues be submitted and there are no jury findings in regard to contributory negligence. That is easily understood, for there is not a shred of evidence that Mrs. Zelios was guilty of any act of contributory negligence and no one says that she was. Contributory negligence is not a factor in this case.

It should also be borne in mind that appellant does not attack the jury’s finding that the collision was not the result of an unavoidable accident and that the wet highway was not the sole proximate cause of the collision.

Further, appellant does not attack the jury’s finding that appellant “failed to make timely application of his brakes.”

• In view of the undisputed evidence and the only reasonable inferences to be drawn therefrom we hold that appellant’s failure to make timely application of his brakes was negligence and proximate cause as a matter of law.

The above holding alone supports the trial court’s judgment. But we further hold that appellant was guilty of negligence and proximate cause in regard to failure to keep a proper lookout and in regard to his driving his car too closely behind the Zelios car.

Sec. 61(a) of Art. 6701d, Vernon’s Ann. Civ. Statutes is as follows:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the conditions of the highway.”

In Sutherland v. Cotter, 226 S.W.2d 476, the San Antonio Court of Civil Appeals speaking through Justice Norvell, now a member of our Supreme Court, held that under the undisputed evidence the driver of a following truck was guilty of negligence which was a proximate cause as a matter of law in driving too closely to the car in front of him. In the opinion it was pointed out that though the statute had not yet gone into effect at the time of the collision, it merely enacted into statutory form a rule of tort law that had been recognized in Texas for many years. See also Meinen ref. n. r. e.; McCormick v. Stowe Lbr. Co., v. Mercer, 390 S.W.2d 36 (Tex.Civ.App.), 356 S.W.2d 450 (Tex.Civ.App.), no. writ hist.; Denham v. Smith, 258 S.W.2d 419 (Tex.Civ.App.), no writ hist.; Hoey v. Solt, Tex.Civ.App., 236 S.W.2d 244, no writ hist.

In Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522 our Supreme Court held that a pedestrian was guilty of negligence as a matter of law and his widow was denied recovery because of his contributory negligence. Other cases so holding are: Texas & P. Ry. Co. v. Meek, 72 S.W.2d 616 (Tex.Civ.App.), writ ref.; Gulf, C. & S. F. Ry. Co. v. Gaddis, 208 S.W. 895 (Tex.Comm. of App., opinion adopted); Beaty v. Missouri, K. & T. Ry. Co. of Texas, 175 S.W. 450 (Tex.Civ.App.) (aff. 108 Tex. 82, 185 S.W. 298); Sanchez v. San Antonio & A. P. Ry. Co., 27 S.W. 922 (Tex.Civ.App.), aff. 88 Tex. 117, 30 S.W. 431.

In Lovell v. Stanford, 378 S.W.2d 399 (Tex.Civ.App.), it was held that both defendants in a three-way rear end automobile collision were guilty of negligence and proximate cause as a matter of law. Our Supreme Court reversed the judgment of the Court of Civil Appeals, Lovell v. Stanford, 386 S.W.2d 755. But the facts in that case are easily distinguished from the facts in this case. There was evidence in the Lovell case that car No. 2 first collided very lightly if at all with car No. 1. There was also evidence that car No. 3 struck the rear of car No. 2 causing car No. 2 to collide with car No. 1 a second time — this time violently, although there was evidence to the contrary. The Supreme Court pointed out that material fact issues were presented as to whether the driver of car No. 2 or car No. 3 was guilty of negligence proximately causing plaintiff’s damage. No such fact issues, or any others as we view the situation, are present in this case.

In the following rear end collision cases arising in other jurisdictions the driver of the rear vehicle was held to have been guilty of negligence and proximate cause as a matter of law: Miller v. Cody, 41 Wash.2d 775, 252 P.2d 303; McIntosh v. City of Miami, 161 So.2d 891 (Fla.App.); Lehr v. Gresham Berry Growers, 231 Or. 202, 372 P.2d 488; Smith v. Bunting, 30 Misc.2d 739, 221 N.Y.S.2d 898 (N.Y.); Ceeder v. Kowach, 17 Ill.App.2d 202, 149 N.E.2d 766; Wilson v. Sorge, 256 Minn. 125, 97 N.W.2d 477; Edlund et al. v. Los Angeles Ry. et al., 14 Cal.App.2d 673, 58 P.2d 928; Forster v. Outagamie Equity Co-Op. Exchange, 197 Wis. 63, 221 N.W. 376; Fraser v. Hunter, 42 Ga.App. 329, 156 S.E. 268; Notarianni v. Ross, 384 Pa. 63, 119 A.2d 792; Reid v. Southern Ry. Co., 52 Ga.App. 508, 183 S.E, 849. Negligence as a matter of law was also found in these cases not involving rear end collisions: Wineman v. Carter, 212 Minn. 298, 4 N.W.2d 83; Western Union Tel. Co. v. Catlett, 4 Cir., 177 F. 71 (N.C.) ; Nocar v. Greenberg, 210 Md. 506, 124 A.2d 757; Dowler v. Kurn et al., 119 S.W.2d 852 (Mo.App.).

Appellant’s three points on appeal are overruled. The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: DAVIS, Justice.

license: Public Domain

text:
    Isaac Van JOHNSON et al., Appellants, v. HOME INDEMNITY COMPANY, Appellee.
    No. 7706.
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1966.
    Rehearing Denied April 5, 1966.

      Jay S. Fichtner, Gayle E. Oler, Webber W. Beall, Jr., John M. Hamilton, Dallas, for appellants.
    Gordon Macdowell, Royal H. Brin, Jr., Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.
   DAVIS, Justice.

A summary judgment case. In 1962, James Leon Bledsoe and wife, Eva Pearl Bledsoe, sued Isaac Van Johnson and Wm. T. Hamilton, Jr., for damages because of the death of their daughter, Mary K. Bled-soe, as the result of an accident when a motor vehicle being driven by Johnson struck and killed Mary K. Bledsoe. She was two years of age. Judgment was entered in favor of the Bledsoes for $12,000.-00, plus interest and cost. After the judgment became final, Home Indemnity Company filed this suit against Johnson, Hamilton and the Bledsoes, under the Declaratory Judgment Act, in which it denied liability on the insurance policy it had issued to Johnson for five specific reasons. This court is not concerned with but two of those reasons, viz: That the vehicle being driven by Johnson at the time of the accident was not a private passenger automobile within the specific exclusion of the policy; and, the motor vehicle was not a “non-owned” vehicle since it was “furnished for the regular use” of Johnson. Johnson and Hamilton filed specific denials. The Bledsoes filed specific denials and a cross-action against Home Indemnity Company for payment of the judgment up to its liability limits, together with 12% penalty, interest and a reasonable attorney’s fee. The trial court granted the summary judgment. The Bledsoes have perfected their appeal, and bring forward two points of error.

By their first point, appellants say the trial court erred in granting a summary judgment because a genuine issue of material fact existed as to whether or not the motor vehicle was “furnished for the regular use” of Johnson. The court can not find any Texas appellate decisions on the question. Appellant takes the position that Johnson’s insurance on his personal car extends to the motor vehicle that he was driving on the date of the accident because he did not “regularly use the motor vehicle” at all times. In speaking of this phrase as contained in an insurance policy, the Supreme Court of Oregon, in George B. Wallace Co. v. State Farm Automobile Insurance Co. (1960), 220 Or. 520, 349 P.2d 789, had this to say:

“We are of the opinion, therefore, that the phrase ‘furnished for regular use’ as used in context does not imply the manner of use, that is, putting the automobile to the same uses to which an insured would use his own automobile, but implies a right to the regular use of the automobile in the sense that there is an expressed or implied understanding with the owner of an automobile that the insured could have the use of the particular automobile or perhaps any automobile of the other at such times as he desired, if available.
“The term ‘furnished for regular use’ does not embody the term ‘for temporary use,’ but describes the antithesis thereof. It, therefore, expresses no thought of excluding protection in those situations where the use is but for a single occasion or single purpose.”

The pickup truck that was being driven by Johnson on the occasion of the accident was owned by Hamilton. According to the pleadings and the affidavit, he only used the pickup occasionally. There are other cases by other states that, in effect, hold that whether or not an automobile is “furnished for the regular use” of another creates an issue of fact. State Farm Mutual Automobile Insurance Company v. Bates (1963), 107 Ga.App. 449, 130 S.E.2d 514; State Farm Mutual Automobile Insurance Co. v. Smith (1965), 206 Va. 280, 142 S.E.2d 562; National-Ben Franklin Insurance Company of Pittsburgh, Penn. v. Prather (1964), 109 Ga.App. 459, 136 S.E.2d 499; Lincombe v. State Farm Mutual Automobile Insurance Co. (1964), La.App., 166 So.2d 920; State Farm Mutual Automobile Insurance Company v. Smith (1965), 206 Va. 280, 142 S.E.2d 562; Schilling v. Stockel (1965), 26 Wis.2d 525, 133 N.W.2d 335. The point is sustained.

By their point 2, appellants say the trial court erred in granting a summary judgment because a genuine issue of material fact was raised as to whether or not the automobile in question was a “private passenger automobile” within the meaning of Exclusion (h) of the policy. The vehicle involved was a pickup truck. Appellants take the position that the pickup truck was a “private passenger automobile”. A passenger car is defined in Art. 6675a-l(j) as follows:

“ ‘Passenger Car’ means any motor vehicle other than a motor cycle or a bus, as defined in this Act, designed or used primarily for the transportation of persons.” (Emphasis added.)

Under Part I — “Liability”, and “Exclusions” the policy sued upon reads as follows:

“Exclusions: This policy does not apply under Part I:
⅝ ⅜ ⅜ ⅝ ⅜ ‡
(h) to a non-owned automobile which used (1) in the automobile business by the insured or (2) in any other business or occupation of the insured except a private passenger automobile operated or occupied by the named insured or by his private chauffeur or domestic servant or a trailer used therewith or with an owned automobile.”

The definitions under Part I read, in part, as follows:

“ * * * ‘private passenger automobile’ means a four-wheel private passenger, station wagon or jeep type automobile.”

The Court of Civil Appeals in Austin (1964), Mutual Benefit Health & Accident Association v. Hudman, Tex.Civ.App., 385 S.W.2d 509, held that a one-half ton pickup truck used for transporting passengers and goods was a ‘passenger automobile’ within the meaning of the accident policy involved in the lawsuit. The provisions in that policy were about the same as the ones involved in this suit. The Supreme Court granted a writ of error and reversed the judgment of the Court of Civil Appeals on certain other provisions of the health and accident policy, but they did not reverse the holdings of the Court of Civil Appeals that the pickup truck was a private passenger automobile. Mutual Benefit Health & Accident Association v. Hudman (1965), Tex.Civ.App., 398 S.W.2d 110.

The Tennessee Supreme Court held that a one-half ton pickup was a ‘private passenger automobile’. Aetna Life Ins. Co. of Hartford, Conn. v. Bidwell (1951), 192 Tenn. 627, 241 S.W.2d 595. See, also, Poncino v. Sierra Nevada Life & Casualty Co. (1930), 104 Cal.App. 671, 286 P. 729; Fidelity & Casualty Co. of N. Y. v. Martin (1933), 9 Cir., 66 F.2d 438. This court holds that the issue of whether or not the pickup truck was a private passenger automobile creates an issue of material fact that must be decided upon before a final decision can be entered. The point is sustained.

The judgment of the trial court is reversed and the case is remanded.


author: DENTON, Chief Justice.

text:
    Claude Pat DART, Appellant, v. YELLOW CAB, INC., Appellee.
    No. 7612.
    Court of Civil Appeals of Texas. Amarillo.
    May 9, 1966.
    Rehearing Denied June 6, 1966.

      William J. Gillespie, Lubbock, Jack Mc-Clendon, Lubbock, of counsel, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, J. Orville Smith, Lubbock, of counsel, for appellee.
   DENTON, Chief Justice.

This suit was instituted by Claude Pat Dart against Yellow Cab, Inc., seeking to recover damages for personal injuries alleged to have been received by him as a result of an assault and battery committed upon him by Frank M. Lester, a cab driver for the defendant company. Lester was not made a party defendant. Plaintiff’s contention of liability against the cab company is based upon Respondeat Superior.

The trial was to a jury. The jury found: (1) that Lester, in committing an assault and battery upon Dart, was acting within the scope of his employment with the cab company; (2) that Lester was not authorized to use force to any extent in the performance of his duties as a cab driver for the company; (3) that when Lester struck Dart with a flashlight, he did so to gratify personal animosity and not in the performance of any act in furtherance of the business of his employer; (4) that Dart was damaged in the amount of $10,000.00; (S and 6) that Dart was entitled to exemplary damages, but no exemplary damages were awarded. The trial court entered judgment for the Yellow Cab Company on the ground there was no evidence to support the jury finding Lester was acting within the scope of his employment when he committed the assault; and that under the findings in response to Special Issues 2 and 3 judgment should be rendered for the defendant cab company.

In the early morning hours of April 5, 1964 Dart was a passenger in one of defendant’s cabs being driven by Lester. Testimony differs as to what occurred before Dart got into the cab. Lester testified Dart told him he had no money but would get the fare when they reached his home. Dart contends he informed Lester he had only $1.50 and that Lester said he thought that would be sufficient. In any event, Dart got into the cab and they proceeded to his home. Difficulties between them arose. Dart admitted he tried to tell Lester the route to take, apparently in an effort to take the shortest route and minimize the fare clocked on the cab’s meter. Lester testified his passenger attempted to tell him “what street to go on and how to drive that taxicab”. Lester described Dart as being “drunk”, “disagreeable”; that he “rode bad” that he “wanted to fight” and that he asked Lester “if he was tough”. There is no evidence they had known each other prior to this occasion. Lester testified Dart’s conduct and condition caused him to be “a little bit disturbed” and “I don’t like a drunk, period”. When they reached Dart’s home, Lester’s testimony was that Dart told him to stay in the cab and he (Dart) would go into the house and get the money. Lester testified he replied: “No, you’re going to pay me, fellow, you said you would. You owe me two dollars and a nickel”. Lester then followed Dart into his home. After the two were in the house, Dart apparently had no further conversation with Lester. Dart’s wife awoke when the car drove up and told them she had only a check and no cash and that, she would come down and pay the fare the following morning. Lester replied, “Lady, you don’t actually owe me any money, this fellow here owes me the money”. He then described Dart as “looking kinda mean at me”. He then assaulted Dart about the head with a flashlight and left the scene. Lester testified “I had a feeling of hostility toward him” and “I lost my temper”. The fare was paid to the company the next day.

The principal question is whether or not there is any evidence Lester was acting within the scope of his employment with Yellow Cab Company when he assaulted Dart. The latest expression by the Supreme Court on this question is Smith v. M System Food Stores, 156 Tex. 484, 297 S.W.2d 112 (1957). In a suit against a store operator for assault and battery and unlawful arrest by the store employee, the court held:

“To be within the scope of employment ‘the conduct must be of the same general nature as that authorized or incidental to the conduct authorized.’ Restatement of the Law of Agency, Sec. 229. In Home Telephone & Electric Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627-629, in an opinion by our present Chief Justice, then on the Court of Civil Appeals, the rule was said to be that: ‘ * * * where the act of the servant is not in the furtherance of the master’s business, or for the accomplishment of the object for which he was employed, but is performed as a resentment of insults, or in the furtherance of personal animosities of the servant, the master is not liable.’ See also A.B.C. Stores v. Brown, Tex.Civ. App., 105 S.W.2d 725 (no writ history); J. J. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359; Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.”

Another Supreme Court case, Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236 (1952) is also controlling. In Hagenloh, the railroad’s special agent assaulted a fellow employee whom he suspected of theft. In holding the railroad company was not liable for the assault by its special agent, the court said:

“In this case the evidence is that Houghland was a special agent of petitioner, whose duties were to protect petitioner’s property, investigate trespasses, claims for damages, and for missing baggage or other property and undertake to find missing property. In his acts in relation to respondent Houghland was not engaged in protecting the railway company’s property from trespass or otherwise. He was investigating for the purpose of finding property missing from baggage. His duties in that respect were not of such nature as to involve the use of force, and there is no evidence in the record tending to prove that he was au-thorised to use force in the performance of those duties. And so it seems that in this respect respondent failed to prove a fact essential to recovery by him against petitioner.” (Emphasis added.)

The court, in addition to laying down the so-called “rule of force”, held that where an employee, in making the assault, is actuated by personal animosity, it cannot be said such employee was acting within the scope of his employment. In support of this holding, the court cited, among others, Home Telephone & Electric Co. v. Branton (Tex. Civ.App.) 7 S.W.2d 627. Affirmed 23 S.W.2d 294. (Tex.Comm.App.). This latter case was also quoted with approval in Smith v. M System Food Stores (supra).

Appellant relies rather heavily upon Houston Transit Company v. Felder, 146 Tex. 428, 208 S.W.2d 880 and H. T. Cab Company v. Ginns (Tex.Civ.App.) 280 S.W.2d 360 (Writ Ref. N.R.E.). These same two cases were relied upon by the plaintiff in McCord v. Southern Distributing Company (Tex.Civ.App.) 356 S.W.2d 350. We disagree with appellant’s contention that these two cases are controlling for the reasons stated in the McCord case. We note the H. T. Cab Company case did not cite a single authority for its holding the cab driver was acting in the course and scope of his employment when he used force in undertaking to collect a fare from a passenger. The majority opinion in the Hagenloh case distinguished that case from the Houston Transit Company case and the opinion in Smith v. M System did not cite the Houston Transit case in support of its decision. In addition, in the Houston Transit case, the jury was not called upon to determine whether or not the assault was committed out of resentment or bad feeling. This issue was squarely put to the jury in the instant case. The Houston Transit case is authority for holding whether the assault was committed out of resentment or bad feeling was a question of fact for the jury and the trial court here followed that holding in the instant case.

It is undisputed that neither Lester nor any cab driver of the defendant company was authorized to use force to collect fares. One of defendant’s owners testified his drivers had been specifically instructed never to use force, but if a passenger refused to pay his fare the drivers were to take the passenger to the police station for assistance. There can be no doubt animosity between Lester and Dart arose during the cab ride. The testimony cited clearly shows this. The fact that prior animosity provoked the assault is clear. Lester’s duties pertaining to operating the taxicab and collecting fares are not of a nature that involve the use of force. Obviously, the use of force is directly contrary to the successful operation of such a business. As Lester testified, “Well, you don’t collect a fare by beating men up”. He further stated, “That wasn’t what I hit the man for, on account of the money. I hit him because I was high-tempered and he had me a little bit shook up”. On another occasion he testified, “I lost my temper, is how come me to hit that man”. The assault committed by Lester was a clear departure, for the time, from the service of the defendant to engage in an act of violence in his own behalf motivated by his own resentment and animosity toward Dart. Humbert v. Adams (Tex.Civ.App.) 390 S.W.2d 857 (Ref. N.R.E.). Jax Beer Co. v. Tucker (Tex.Civ.App.) 146 S.W.2d 436 (Dis. Judgment correct). Even though one of his duties was to collect fares, the assault was not a part of this authorized duty. In committing the assault, Lester was not carrying out his employer’s business. The assault was the act of the employee and cannot be said to be the act of his employer. Under such circumstances, the employer cannot be charged with the responsibility of the assault. There was no evidence to support the jury finding that Lester was acting within the scope of his employment when he committed the assault upon the appellant.

Appellant also contends it was error to submit Special Issues 2 and 3, relating to authorization to use force and personal animosity of Lester. He urges these issues are not ultimate issues and are but a shade or phase of the scope of employment issue submitted in special issue No. 1. The use of force and actions growing out of personal animosity are, when pleaded and proved, fact issues in determining whether an employee acted within the scope or course of his employment. Texas & P. Ry. Co. v. Hagenloh (Supra). Houston Transit Company v. Felder (Supra). These two issues submitted defensive matters pleaded by the defendant. Appellant makes no contention these issues are not supported by the evidence. The ultimate question in a case of assault by an employee is whether the employer should be held responsible for the consequences of the assault. As we have held, the employer is not responsible where force is not authorized or the assault is motivated by personal animosity. The two special issues complained of properly submitted these defensive issues. Where there is no evidence to support the finding of special issue No. 1 in regard to scope of employment, as was so held, there is no conflict in the jury findings. Under this record the trial court properly disregarded the finding to Special Issue No. 1 and entered judgment on the findings to special issues 2 and 3. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    W. C. SIMPSON, Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Appellee.
    No. 7716.
    Court of Civil Appeals of Texas. Texarkana.
    April 5, 1966.
    Richard C. Jenkins, Dallas, for appellant.
    William D. White, Jr., White, McElroy & White, Adair Dyer, Jr., White, McElroy & White, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a suit for debt evidenced by a negotiable promissory note. Summary judgment was rendered favorable to note-holder. The judgment of the trial court is affirmed.

William D. White and the Republic National Bank of Dallas, as plaintiffs instituted the suit against W. C. Simpson in a District Court of Dallas County. White was eliminated as a party before judgment. According to plaintiff’s trial petition the note instrument is dated March 24,1964, the principal is $5,000.00, payable September 24, 1964, to the Republic National Bank of Dallas, or its order, with interest from date to maturity at the rate of 6% per annum, and provided for interest at 10% per an-num after maturity, for attorney’s fees, etc., and was signed by W. C. Simpson as maker. No payment, it is alleged, had been made on principal or interest at the time suit was filed. The total due, principal, interest and attorney fees, is alleged to be $5,903.93 as of February 25,1965. Prayer was for judgment for $5,903.93, and such other and further relief the plaintiffs might show themselves entitled.

Besides a preliminary motion and several special exceptions to plaintiff’s pleadings defendant Simpson’s trial answer interposed a general denial and plead two affirmative defenses, that is, (1) want of consideration, and (2) estoppel.

The bank moved for summary judgment. The note in suit was attached to the bank’s trial petition. Neither the note instrument nor pleadings disclose credits to be applied or allowable against the note debt. On motion for summary judgment possession of the note and its presence before the court as a part of the pleadings entitled the bank to judgment on the prima facie case thus made. Twin Cities Bowling Lanes, Inc., v. C. I. T. Corporation (Tex. Civ.App.1964) 376 S.W.2d 94, no writ; “Bills and Notes”, 9 T.J.2d, Sec. 270, 271 and 273; Rules 93 and 94, Vernon’s Ann. Texas Rules.

Simpson opposed the bank’s motion, urged his affirmative defenses, and filed an affidavit containing his version of the relevant facts. The following is his complete statement, to-wit:

“I. The note sued on in this cause is one of several renewal notes made successively by me to renew a certain note of mine executed in blank form and later filled in as to principal in the amount of $8400.00 payable to Republic National Bank of Dallas.
II.The Note for $8400.00 was based on a gambling debt by me to one Staarnor Bowman.
III. This gambling debt was at the time of my execution of the $8400.00 note represented by a check for like amount drawn by me and held by Staarnor Bowman.
IV. Staarnor Bowman and Ben A. Walker, an officer of Plaintiff Bank were present at the execution of this $8400.00 note.
V.Plaintiff Bank has admitted to Defendant through one of its officers that the proper loan committee never approved any $8400.00 loan to Defendant on said note.
VI.Defendant made certain payments on said note and these were accepted by said Bank.
VII.Defendant has applied for loans many times previously at various banks.
VIII.Defendant applied for the loan resulting in the $8400.00 note with the knowledge the loan could not be granted in view of Defendant’s credit and certain banking practices at the time application for the loan was made.
IX.Said Mr. Walker personally took Defendant’s written application for said loan in the presence of Mr. Bowman.
X.Said Mr. Bowman was at the time of the application a potential large customer of Defendant.
XI.This fact was well known to Mr. Walker at the time of the application.
XII.By Mr. Walker’s conduct of and at the meeting at which the application was completed induced Defendant to believe that said loan would never be granted under these circumstances existing.”

The trial court judgment by implication determined that the affidavit did not establish as a matter of law, or supply facts tending to prove the elements of, the affirmative defenses plead, that is, the affidavit did not raise material fact issues in that respect.

In disagreeing with the trial court in the conclusions mentioned, the appellant’s brief states this view, to-wit:

“Appellant submits that at least one of two fact issues exists in this case, as drawn by Appellant’s affidavit * * *. These issues are: Whether or not Ap-pellee was estopped to collect the note because of participation of Appellee’s officer in the overreaching which characterized the inception of the note, of which the note sued on was a successor. The additional alternative issue also exists, to-wit: Whether or not the debt sued on retained the character of an un-collectible gambling debt because of participation by Appellee’s officer in the creation of the debt, and in the knowing and willful substitution by trickery of one form of instrument representing the debt for another instrument, by conspiring to effect the substitution of a ‘legal’ for an ‘illegal’ evidence of indebtedness.”

Upon examination of the facts set out in Simpson’s affidavit, no competent proof is found tending to show that the indebtedness to the bank represented by the note in suit or its predecessors, including the original $8400.00 note, was held by the bank as a result of a gambling transaction participated in by the bank. The affidavit shows Simpson made an application to borrow $8400.00 from the bank at a time when he owed Bowman a gambling debt of the same amount. Neither the check representing the gambling debt nor an interest in it is traced to the bank. The only apparent relationship between the application and the gambling debt is that the application was made while Bowman was present and held the gambling debt check. The loan was subsequently made and the disposition of its proceeds by Simpson, as well as the disposition of the gambling debt by Bowman, cannot be determined from this record. The evidence does not raise fact issues tending to show Simpson received no consideration or an illegal consideration for his note. Further examination reveals the absence of facts showing alleged “implied representations” intentionally and falsely made by the bank to induce Simpson to execute the note in suit or its predecessor notes. There is no fact stated in the affidavit that reveals or suggests a conspiracy between the Bank and Bowman to substitute the check for the original note or its successors. The trial court’s disposition of these matters by its judgment is sustained by the record.

No valid defense or unresolved material fact issues with reference to the bank’s suit for judgment on the note is presented by the record. All of appellant’s points of error have been carefully considered. No error requiring reversal of the judgment is found. The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Helen R. NELSON et vir, Appellants, v. The STATE of Texas, Appellee.
    No. 11376.
    Court of Civil Appeals of Texas. Austin.
    March 16, 1966.
    Rehearing Denied April 13, 1966.
    Second Motion for Rehearing Denied May 4, 1966.

      Frank D. Masters, San Antonio, for appellants.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Carroll R. Graham, Watson C. Arnold, Robert C. Patterson, Jerry H. Roberts, Asst. Attys. Gen., Austin, for appellee.
   HUGHES, Justice.

This is a condemnation proceeding by the State of Texas against Helen R. Nelson and husband, Harold S. Nelson, owners, and Joseph Y. Stateson and First Federal Savings and Loan Association of New Braun-fels, lienholders, to condemn the fee title, excluding oil, gas and sulphur, to 3.29 acres of land and to establish a drainage easement on an additional 1.644 acres out of a tract of land containing 65.29 acres. This land is located on the north side of Interstate Highway 35, approximately 5.1 miles west of the center of the City of New Braunfels.

The Commissioners awarded total damages in the sum of $4,850.00, which amount was deposited by the State and partially withdrawn by the parties entitled thereto.

In the trial below the jury found the total damages to be $2,103.00, the result being that judgment was rendered in favor of the State for $2,747.00, the difference between the amount deposited by it and the amount of the jury verdict.

It is our opinion that this cause should be reversed and remanded for the reason that the trial court adopted an erroneous theory for the admission of testimony regarding recent sales of comparable property. The theory adopted by the trial court, and reflected in his rulings, was that recent sales in order to be comparable must be comparable in size to the parent tract of 65 acres and that sales, otherwise comparable, were inadmissible if they were comparable in size only to the smaller tracts which were actually taken.

Mr. Jack Ohlrich, the State’s expert valuation witness, testified that there was no damage to the property not taken and that the damages to the land taken, in partial fee or by easement, was $2,103.00, the exact amount found by the jury.

Mr. Ohlrich testified that he valued the 3.29 acre tract “ * * * at the same value that I gave the entire farm of $300.00 per acre. * * * ”

On direct examination Mr. Ohlrich testified to sales which he considered comparable. The acreage involved in these sales was 58.3, 204, 219 and 87.8, respectively.

On cross examination Mr. Ohlrich was asked about a sale, of which he had personal knowledge, of a tract which compared in size with the tracts actually taken in fee or subjected to the drainage easement. This testimony was excluded.

The record shows the following to be the proffered testimony regarding this sale:

“Q Now Mr. Ohlrich, I believe you testified yesterday that on the sale of the property from Paul Fisher to the Santa Clara Land Company of a 4.011-acre tract, which was in January of 1963, that you handled that sale ?
A Yes, sir.
Q And I believe you testified that Mr. Fisher had a dairy farm there ?
A Not on the 4.0, but across the highway.
Q But the 4.011 acres was a part of the farm?
A Yes, sir.
Q At the time of the sale of this 4.011 acres to the Santa Clara Land Company, I believe you testified they were cutting hay off the four acres?
A That’s what I said.
Q Did you handle that sale?
A Yes, sir.
Q What was the consideration for that sale ?
A I believe it was $1,750.00 per acre.
Q $1,750.00 per acre?
A This is from memory. I think I am close.
Q Actually, now, I believe you further testified that the Fisher farm is on the same highway, Interstate 35, and is located adjacent to Interstate 35 as the Nelson farm? They are both on the same road?
A Yes.
Q Are they not?
A It is on the opposite side.
Q On the opposite side of the road?
A Yes, sir.
Q And they are both on the west side of New Braunfels?
A That’s right.
Q And both on what we call the San Antonio highway between — on IH 35 between new Braunfels and San Antonio ?
A Yes, sir.
Q And I believe you testified yesterday, did you not, sir, that the distance between the Nelson farm and the Fisher farm at that time on Interstate 35 was about a half to three-quarters of a mile?
A Yes, sir.
Q Both on the same side of town?
A Yes, sir.
Q Both out in the country out there?
A Yes, sir.
Q Both within the area that you testified to yesterday between the City of San Antonio and the City of New Braunfels that has been developing at a progressively rapid pace since the post-war days after World War II?
A Yes, sir. I qualified the statement with the fact that there was lots of open land in between there.”

The Nelson property was pasture land on which was located a house, two barns, dairy barns, fences and other incidental improvements. None of the improvements, except fences, was on the land taken by the State.

In a condemnation suit where only a portion of the owner’s land is taken there are involved two distinct valuations, the value of the land taken and the value of the land remaining. As to the value of the land remaining, this is of importance only if its value Has been diminished as a result of the taking. Frequently, and perhaps usually, there is no difference in value between the value of the portion taken and the remainder. In such cases evidence as to the value of the entire tract is relevant and adequate for evaluating both the area taken and the remainder. Where, however, there are circumstances which give rise to an increased value for the portion taken over the value of the remainder evidence is admissible which is legally relevant to establish such value. In such cases, the average value of the entire tract is not adequate compensation for the land taken.

A simple example is the taking of a comparatively small area containing valuable improvements leaving a large remainder with no improvements. Clearly, the average value of the entire tract would not fairly compensate the owner for his loss.

If a 10,000 acre ranch fronts 1000 feet on a beautiful stream and this frontage and an adjacent 100 acres is condemned it would, in our opinion, be absurd to hold that the owner would not be permitted to show that this 100 acres had a value in excess of the average value of the 10,000 acres. It is just as absurd, in our opinion, to hold that the only comparable sales which could be shown would be sales of ranches of 10,000 acres with similar water frontage. It is our opinion that the sales of tracts similar to the 100 acre tract on the river would be comparable sales. We believe this view is sustained by the authorities. We quote the following from 4 Nichols on Eminent Domain, Sec. 14.231, p. 545:

“In assessing the value of the land taken as part of the entire tract it is not proper merely to compute the percentage value on the basis of an artificial average unit value for the entire tract unless the actualities of the case accord with such coverage value. It may be that the part taken is the most valuable part of the tract considered from a qualitative point of view. To attribute an average unit value thereto which is based in part on the lower value of the balance of the tract is inequitable to the owner in a double aspect of the situation. It attributes a value to the part taken which is lower than its actual value and it attributes a higher ultimate value to the remainder area than its actual value, thereby reducing his recovery as to both factors below his actual damages.”

In Territory of Hawaii, by Sharpless v. Adelmeyer, 45 Haw. 144, 363 P.2d 979 the Court said:

“Most of the partial taking cases applying the method of valuing the part taken in relation to the entire tract are those involving strips of land which had no real economic or market value standing alone. But where the part taken has an independent economic use with a market value and commanded a higher value as a separate entity, such value has been allowed. Lazenby v. Arkansas State Highway Commission [231 Ark. 601], 331 S.W.2d 705; Wishek Investment Co. v. McIntosh County [77 N. D. 685, 45 N.W.2d 417].”

In Union Ry. Co. v. Raine, 114 Tenn. 569, 86 S.W. 857, Tenn.Sup.Ct., it was stated:

“ ‘[W]hen a small strip or portion of the land is involved, it ought to be valued at such a price, for the quantity taken, as the jury deemed it would be worth at that place and in that form, whether that be more or less than the price proven per acre for the whole tract.’ ”

In Morgan v. State, Tex.Civ.App., 343 S.W.2d 738, El Paso, writ ref., n. r. e., the tract condemned contained 6 plus acres, the whole tract contained 21 plus acres.

The trial court set as a standard comparable sales of one acre or more. The owner wanted to show sales of less than one acre. The Court of Civil Appeals held that no abuse of discretion was shown. Of importance here is the fact that the element of size in determining whether the sales were comparable was not restricted to the parent tract.

In Minyard v. Texas Power and Light Company, Tex.Civ.App., 271 S.W.2d 957, Fort Worth, writ ref., n. r. e., the Court stated:

“Where the property condemned as a part of a single tract of land, all of which is owned by a person or persons, its value and the value of that part condemned is determinable as an entirety, or in any event by substantial parcels, in instances where there is a variation in value of such parcels, — such as might be apparent because some parcels are wooded or rocky, etc., while other parcels are cultivated or level and fertile, etc. Or value might be determinable by parcels where one parcel be suitable and adaptable to building or other use while another is not suitable or adaptable to the same purpose.”

Since there are instances in which the part taken has a value greater or lesser than the remainder and each value should be separately determined, it logically follows that the rules for ascertaining such values should be the same. We hold that they are the same.

The Trial Judge, in this case, should admit evidence of sales comparable, in size, to the whole tract, the remainder, as well as to the tract taken and should use the same latitude or allow the same variance in the one case as he does in the other.

There were other comparable sales offered by appellant but we do not believe it necessary to discuss the details of them for the reason that what we have said constitutes sufficient guidance for the trial court in determining their admissibility.

We do not gainsay the discretion of a Trial Judge in the matter under discussion. We do say that when the Trial Judge, as here, employs a rule of thumb which is erroneous and prejudicial, that he has abused his discretion.

The rules which we have given above should also apply in defining the scope of cross examination of value witnesses. Whether testimony of other comparable sales elicited from value witnesses is competent substantive evidence of such sales depends on compliance with ordinary rules of evidence. See Hays v. State, Tex.Civ.App., 342 S.W.2d 167, Dallas, writ ref., n. r. e.

In addition to the matters above discussed, appellants complain that the trial court erred excluding evidence tending to show that the subject property was suitable for and adaptable to commercial development. Witness William O. Garrett would have testified to the proposed construction of water lines across the Nelson property. The lines had not been actually laid when the condemnation suit was filed but the plan for their construction was firm. We believe this evidence should have been admitted as a circumstance tending to show the best use to which the property could be reasonably adapted.

We overrule appellants’ contention that testimony as to the price at which comparable property had been listed for sale is comparable. Evidence of this sort is too chimerical to be admissible.

Appellee has a counterpoint which is not in answer to appellants’ points and is that there is insufficient basis in appellants’ motion for a new trial for their points presenting the questions which we have discussed.

Appellants’ motion for new trial contained this assignment of error:

“Because the Court erred in excluding from the Jury the evidence offered by the defendant of comparable sales in the area of the subject property condemned by the plaintiff; said evidence being testimony offered by the witnesses, Harold S. Nelson, William Garrett, Jack Ohlrich and W. F. Castella.”

We hold this assignment to be a sufficient predicate for points relating to the refusal of the trial court to admit evidence of comparable sales offered by appellants affirmatively and by way of cross examination of value witnesses as shown herein. These Points, upon being sustained required reversal of the judgment. In discussing other Points presented, it is immaterial whether they are properly supported by new trial assignments. They are likely to recur upon retrial and our discussion of them will furnish a guide for the trial court.

This case is reversed and remanded.

Reversed and remanded.

ON MOTION FOR REHEARING

It does appear, as appellee states, that testimony regarding the proposed construction of water lines across the Nelson property was admitted without objection. Appellants, in their brief, thought otherwise because of prior instructions of the Court. Appellee’s concession in this matter makes our decision on this point moot. In so holding, we assume that this same testimony will be admitted, if offered, on retrial.

We disclaim any intention of holding that the result of condemnation proceedings could constitute a comparable sale. There may be other valid objections to the admissibility of evidence pertaining to comparable sales offered by appellants. We cannot pass on any such objections now because we do not know what they are. It is obvious that the principal purpose we sought to achieve in our opinion was to correct what we believe to have been an arbitrary and erroneous rule in excluding testimony of comparable sales offered by appellants.

The motion is overruled.

      . “MR. MASTERS : Then is it the ruling of the Court that I must compare any comparable sales to the entire sixty-five acre tract of the Nelson farm? Is that the ruling of the Court?
      THE COURT: If you have a similar sale like that.
      MR. MASTERS: In other words, the sixty-five acre sale or something close to sixty-five acres in size, is that correct?
      THE COURT: In comparison.
      MR. MASTERS: Tes, sir. So, to get up a comparable sale I would have to have a tract of land approximately sixty-five acres in size, is that correct, Tour Hon- or?
      THE COURT: Right.”


author: FANNING, Justice.

text:
    TEXAS & NORTHERN RAILWAY COMPANY, Appellant, v. L. B. LOGWOOD, d/b/a Logwood Sand and Gravel Company, Inc., Appellee.
    No. 7703.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1966.
    Robert F. Salmon, Linden, Spencer C. Relyea, III, Burford, Ryburn & Ford, Dal- . las, for appellant.
    Carney & Mays, Atlanta, for appellee.
   FANNING, Justice.

Plaintiff-appellee Logwood sued Travis Bechtold and appellant railway company, seeking a personal judgment against both defendants for $2623.16 for ready mixed concrete sold to Bechtold, for interest, attorneys’ fees and costs of suit, and plaintiff-appellee also sought to foreclose a mechanic’s and materialman’s lien on property belonging to appellant railway company. On trial, plaintiff-appellee dismissed his suit against Bechtold. Trial was to the court without the aid of a jury. The trial court entered judgment for plaintiff foreclosing his alleged lien against appellant’s property, with interest and costs; however the trial court did not render a personal judgment against appellant and did not render any judgment against appellant for attorney’s fees. Appellant railway company has appealed.

■ In late August or early September, 1963, appellant railway company entered into an oral contract with Bechtold to tear out old floors of two buildings owned by appellant and to install new concrete floors. Bech-told was a cement contractor who had his own equipment and employees, and he agreed to furnish all labor and material to do the job on a “turn-key” basis for the sum of $8600.00, except that appellant would furnish the necessary reinforcing bars. Bechtold started the job soon after the contract was made and finally completed the job on September 17, 1963. He performed the work satisfactorily and appellant paid Bechtold for the job in three checks, the first dated September 4, 1963, the second dated September 12, 1963, for $900.00, and the third and final check dated September 18, 1963, for the balance of $6,-161.18. The discrepancy between the total amount paid and the turn-key price of $8,-600.00 was caused by the appellant’s furnishing crushed slag of $38.82, which amount was deducted from the original contract price.

After the contract between Bechtold and appellant was made, Bechtold contacted Logwood and made a sub-contract with him for ready-mixed concrete to be delivered to the job site at a fixed price per yard. From time to time during the construction period plaintiff made deliveries of ready mixed concrete to the job site, and on these occasions he or his agents would have someone sign a copy of the delivery tickets. Plaintiff did not identify what persons signed the tickets, nor whether they worked for plaintiff Bechtold or someone else, however Bechtold testified to the effect that all of the tickets were signed by him personally or by his employees.

When the job was finally completed on Sept. 17, 1963, plaintiff-appellee submitted his bill for the ready-mixed concrete to Bechtold, but the same was never paid.

On October 19, 1963, which was more than 30 days after the job was completed on Sept. 17, 1963, the plaintiff-appellee sent to appellant a statement, which was addressed to Bechtold at Dallas, Texas, which set forth Sept. Balance Due: $2,623.16, and which contained a notation to the effect that a statement had been mailed to Bech-told at Longview, Texas, on Sept. 17, 1963 (Bechtold was located at Longview at the time of the original contract).

Sometime in October, 1963, plaintiff-appellee telephoned the president of appellant railway company and a conversation was had about payment of plaintiff’s bill. The parties are at variance as to the conversation, but, whatever the conversation was, appellant made no payment. On Nov. 27, 1963, plaintiff-appellee filed a mate-rialman’s lien affidavit in the county where appellant’s property was located, in which he swore to the effect that he furnished concrete of a value of $2,723.16 to “Travis Bechtold or Travis Bechtold Cement Company”, a contractor or builder, and in said lien affidavit described certain property of appellant railway company which included the property upon which the ready-mixed cement was placed.

In 1961, chapter two of Title 90, (being articles 5452 through 5472c) Revised Civil Statutes of Texas was amended. The new Title is Chapter 382, and amends Articles 5452, 5453, 5454, 5455, 5456, 5463, 5467, 5468, 5469 and 5472d. In this connection, see an article by Ralph D. Baker, “The New Mechanics’ Materialmen’s Lien Law”, 26 Texas Bar Journal, December, 1963, p. 1009.

Art. 5453, V.A.C.S., provides the method of fixing the mechanic’s and materialmen’s lien granted in Article 5452, V.A.C.S. In order to perfect a lien, original contractors, within one hundred and twenty days after the accrual of indebtedness, and subcontractors within 90 days, are required to file with the county clerk of the county in which the work was performed setting forth the nature of their claims and the property against which the lien is sought. Art. 5453 imposes an additional requirement applicable to anyone not an original contractor — that of notice. Pertinent portions of said article are quoted below. Article 5463 is also quoted below. Article 5469 is also quoted below.

In 38 Tex.Jur.2d, Mechanics’ Liens, Section 45, p. 600-2, it is stated:

“§ 45. Liability of owner;
“It has been held that, though in a proper case the lien statutes subject the property of the owner to the lien of claimants for improvements on the property, the statutes do not create a personal liability on the owner’s part — that is, the proceeding to fix the lien does not create a debt against the owner unless he has incurred personal liability by paying money to the contractor after receiving notice of the claim. In this connection, where a statement or billing is sent to the owner, as notice of a lien claim arising from a debt incurred by a contractor, if the statement or billing is to be effective to authorize the owner to retain funds for the payment of the claim as provided by statute, it must contain or be accompanied by some form of statement to the owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of the statement or unless the bill is otherwise paid or settled. It is further provided that the owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the statutory provisions, that he may have paid to the contractor before he was authorized to retain the money. If the notices of lien claimants have been received by the owner and claimant’s lien has been secured in accordance with the applicable statute and the claim or any part thereof is reduced to final judgment, the owner is required to pay, and his property is to be liable for, any money that he may have paid to the contractor after he was authorized to retain the amount of money necessary to pay claims from payments to the original contractor.
“It has been held that except insofar as he is restrained by the statutes that require him to retain a specified percentage of the contract price, and to withhold sufficient money to pay claims of which he has notice, the owner may pay the contractor the amount due him under the contract, trusting the contractor to pay his own employees.”

Under the contract between appellant railway company and Bechtold there were no provisions for retainage and the railway company paid Bechtold in full when the contract was completed. Appellee’s notice of Oct. 19, 1963, to appellant was not couched in the statutory language requiring appellant to withhold retainage and was also given after the job in question was completed and after Bechtold had been fully paid for the job by appellant railway. Also, the delivery tickets in question were not couched in terms to constitute statutory notice and are wholly deficient to constitute statutory notice. Appellee’s lien affidavit was also filed more than thirty days after the job was completed and Bechtold was fully paid. While appellant under the terms of Art. 5469, V.A.C.S., should have retained 10% of the contract price, etc., for a period of thirty days after the completion of the job under the formula described in said statute, nevertheless the failure of appellant to retain said 10% for a period of thirty days after the completion of the job would not result in the appellant becoming liable for the amount of the 10% retainage, because appellee’s lien was not filed until Nov. 27, 1963, which was more than thirty days after the completion of the job.

Under the facts in this case, appellant was not liable to appellee in any amount and appellee did not have a valid lien in any amount against the property of appellant. In this connection see the following authorities: Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112 (1900); Eldridge v. Poirer, Tex.Civ.App., 50 S.W.2d 888, writ refused (1932); Henderson v. Couch, Tex. Civ.App., 274 S.W.2d 844, no writ (1955); Texas State Bank of Alice v. Baker, Tex. Civ.App., 275 S.W.2d 168, no writ (1955); Marek v. Goyen, Tex.Civ.App., 346 S.W.2d 926, no writ (1961).

In Berry v. McAdams supra (55 S.W. 1112) it was stated in part as follows:

“* * * The validity of McAdams’ lien against the property of Housewright, Swayze & Co. depends upon his compliance with the requirements of the statutes enacted in pursuant of the constitution of this state. From the statement, it appears that McAdams did not give written notice of his claim for material furnished to Housewright, Swayze & Co. before they had paid to Berry the amount due him under the contract for building the house, and, by the terms of article 3308, Rev.St., Housewright, Swayze & Co. were not liable to McAdams for the material furnished to the subcontractor.
⅜ sfs ⅜
“Appellee insists that the notice required by the statute is for the benefit of the owner of the property improved, and that actual knowledge by Housewright, Swayze & Co. was a sufficient compliance with the law. The language, ‘but no owner or proprietor shall in any case be required to pay, nor his property be liable for, any money that he may have paid to the contractor before the fixing of the lien or before he has received written notice of the existence of the debt,’ is so explicit that the court cannot construe it to mean something less. The policy of the law is to relieve the owner from demands upon the ground of actual knowledge and constructive notice, because he could rarely defend himself from such claims. Written notice is certain and definite information upon which the owner must act. McAdams did not fix his lien nor give the written notice before payment was made by House-j wright, Swayze & Co. to Berry, the contractor, and is not entitled to enforce a lien upon their property for material furnished to a subcontractor.”

Appellee has filed a cross-point on appeal contending that the trial court erred in not awarding to plaintiff a personal judgment against appellee and also a judgment for attorney’s fees as prayed for. This cross-point is overruled.

The judgment of the trial court insofar as it denies a personal judgment to appellee and denies attorney’s fees to appellee is affirmed; the judgment of the trial court in all other respects is reversed and judgment is rendered that appellee take nothing from appellant.

Affirmed in part and reversed and rendered in part.

      . “Art. 5453 (5622-3) Securing hen
      “The lien provided for in Article 5452 may be fixed and secured in the following manner: * * *
      “2. If the claimant for such lien is other than an original contractor, such claim shall not be valid or enforceable unless the claimant shall also have complied with the applicable notice requirements hereafter set forth which shall be conditions precedent to the validity of such claims:
      * * * *h *
      “b. Excepting instances of retainages for which notices have been given in accordance with the preceding subpara-graph, the claimant shall give the applicable notice or notices described, as follows:
      * * * * *
      “(2) Where the claim consists of a lien claim arising from a debt incurred by the original contractor, no such notice need be given to the contractor but notice to the owner, as prescribed in paragraph 2b (1) of this Article will be sufficient.
      “Such notices shall be sent by certified or registered mail, addressed to the owner, and where required by this Article to the original contractor, at their last known business or residence address. A copy of the statement or billing in the usual and customary form shall suffice as a notice under this subparagraph; provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act, it shall contain or be accompanied by some form of statement to an owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of such statement or unless the bill is otherwise paid or settled.
      ⅜ ⅜ ⅜ ⅞ ⅜
      “3. A claimant desiring to demand payment of his claim by the owner may accompany his notice of such claim with the demand for payment as prescribed by Article 5454. As amended Acts 1961, 57th Leg., p. 863, ch. 382, § 2.”

      . “Art. 5463. (5635) (3308) Owner authorized to retain funds, contractor to defend suits
      “1. When notices of claims sent under the provisions of paragraph 2 of Article 5453 of this Act are received by the owner, he shall be authorized to retain in his hands the amount or amounts of money necessary to pay said claims from payments or part-payments to the original contractor for labor, or material or both, or for specially fabricated materials which has been performed or furnished by a claimant and to which such notices are applicable, at times and under circumstances, as follows:
      “a. Under notices of claims sent under subparagraph 2-a of Article 5453, immediately upon receipt of a copy of the claimant’s affidavit claiming a lien prepared by claimant pursuant to said notices are required by paragraph 1, of Article 5453.
      “b. Under notices of claims sent under subparagraph 2-b of Article 5453, immediately upon receipt of such notices.
      “c. Under notices of claims sent under subparagraph 2-c of Article 5453, immediately upon receipt of the additional notices under subparagraph 2-b of said Article which are required to be sent upon delivery, or if and when the normal delivery time on the job has passed. Such funds shall be retained, unless payment is made under Article 5454, or the claim otherwise settled or determined, until the time for securing a lien under this Act has passed; or if a lien affidavit has been filed, until the lien claim has been satisfied and released.
      “2. When an affidavit claiming a lien is filed by any one other than the original contractor under the provisions of this Act, the original contractor shall defend the action brought thereupon at his own expense. In case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from the amount due the contractor the amount of said judgment and costs; and, if he shall have settled with the contractor in full, he shall be entitled to recover from -the contractor any amount so paid for which the contractor was originally liable. The owner shall in no case he required to pay, nor his property he liable for, any money, other than that required to he retained hy him under the provisions of Article 5JfG9 hereof, that he may have paid to the eontraetor before he is authorized under this Article to retain the money. If the notices prescribed in Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453 and the claim or any part thereof is reduced to final judgment, the owner shall be required to pay, and his property shall he liable for, any money that he may have paid to the contractor after he is authorized to retain such money by virtue of this Article, as well as any money he is required to retain by the provisions of Article 5469 hereof. As amended Acts 1961, 57th Leg., p. 863, ch. 382, § 6.” (Emphasis added.)

      .See note 3 on page 889.

      . “Art. 5469 (5638) Lien claimants fund with reference to mechanics
      “Whenever work is done whereby a lien or liens may be claimed under Article 5452 hereof, it shall be the duty of the owner, his agent, trustee, or receiver to retain in his hands during the progress of such work and for thirty (SO) days after the work is completed, s to secure the payment of artisans and mechanics who perform labor or service, and to secure the payment of any other claimants furnishing material, or material and labor, or specially fabricated material for any contractor, subcontractor, agent, or receiver in the performance of such work ten per cent (10%) of the contract price to the owner, his agent, trustee, or receiver of such work, or ten per cent (10%) of the value of same, measured by the proportion that the work done bears to the work to be done, using the contract price or, if none, the reasonable value of the completed work as a basis of computing value. All persons who shall send notices in the time and manner required hy this Act and shall file affidavits claiming a lien not later than thirty (SO) days after the work is completed shall have a lien upon the fund so retained hy the owner, his agent, trustee, or receiver; with preference to artisans and mechanics, who shall share ratably therein to the extent of their claims; with any remaining balance to be shared ratably among all other participating claimants. If the owner, his agent, trustee, or receiver refuses or fails to comply with the provisions of this Article, then all claimants complying with the provisions of this Act shall share ratably among themselves, with preference to artisans and mechanics as above specified, liens at least to the extent of the aforesaid fund of ten per cent (10%) which should have been retained, as against the house, building, structure, fixture, or improvement and all of its properties, and on the lot or lots of land necessarily connected therewith, to secure payment of such liens. As amended Acts 1961, 57th Leg., p. 863, ch. 382, § 9.” (Emphasis added.)


author: DUNAGAN, Chief Justice.

text:
    William REDMAN, Appellant, v. M. E. BENNETT, Appellee.
    No. 211.
    Court of Civil Appeals of Texas. Tyler.
    April 7, 1966.
    Rehearing Denied April 28, 1966.

      W. E. West, Canton, for appellant.
    Enoch Fletcher, Grand Saline, for appel-lee.
   DUNAGAN, Chief Justice.

This is a damage suit originating in the County Court of Van Zandt County, Texas. The case was tried before the court without a jury, and from an adverse judgment appellant has perfected his appeal. This appeal comes to us without a complete record, but does include the findings of fact and conclusions of law of the trial court.

A judgment was entered in this case October 1, 1965, and the material portions thereof are as follows:

“Both parties came in person and by Attorney, and announced ready for trial. The Court having heard the evidence and argument of Counsel finds that the accident was not an unavoidable accident, but was due to negligence on the part of the defendant as alleged by plaintiff. The Court finds that the automobile in question had a cash market value at Grand Saline of $600.00 immediately before the accident, and that its cash market value at Grand Saline was $275.00 immediately after the accident.
“It is therefore, the Judgment of the Court that the plaintiff, M. E. Bennett, do have and recover of the defendant, William Redman, the sum of $325.00 together with all cost of suit for which execution may issue. This Judgment will bear interest at the rate of 6% per an-num from September 17, 1965.
“To which Judgment the defendant in open Court excepted and gave notice of appeal to the Twelfth Court of Civil Appeals of Texas, at Tyler, Texas. Entered this 1st day of October, 1965.”

Plaintiff alleged in Paragraph III of his petition that:

“The defendant ran a red light just before he struck plaintiff’s car, and skidded his car into plaintiffs car. He was guilty of the following acts of negligence each of which together with the running of the red light was the proximate cause of the injury to plaintiff’s car:
“1. The defendant did not have his car under proper control.
“2. The defendant was driving too fast at the time, and under the conditions then existing.
“3. The defendant did not properly apply his brakes.
“4. The defendant did not observe a proper lookout.
“5. The defendant did not propel his car to the left far enough to miss plaintiffs car.”

Pursuant to request of appellant, the trial court made and filed on October 13, 1965, its findings of fact and conclusions of law, to-wit:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
“THE COURT FINDS AND CONCLUDES :
“That suit was brought by Plaintiff against Defendant alleging damage to Plaintiff’s automobile as a result of negligent acts of Defendant;
“that the Plaintiff, M. E. Bennett, on May 8, 1965, was the owner of a 1958 Impala Chevrolet automobile which was legally parked approximately 15 feet East of and slightly South of the Southeast corner of the intersection of Highway 80 and Main Street in Grand Saline, Texas;
“that Defendant Redman had travelled the same highway route seven to eight times and was familiar with the physical conditions of the highway and the existence of the blinking caution light approximately one block West of the intersection, and the traffic light at the intersection ;
“that the intersection and highway was wet at the time of the accident and the Defendant Redman proceeded Eastward in a pickup truck down a 15% slope on Highway 80 at a speed of 25 to 30 mph to a point approximately 15 feet West of the intersection when he first applied his brakes, upon the traffic light changing from amber to red;
“that Defendant Redman’s pickup truck slid through the intersection at an angle with the traffic lanes and collided with Plaintiff’s vehicle, travelling a total distance of 120 feet from the point of application of brakes to the point of impact with the rear of Plaintiff’s automobile;
“that the front end of Plaintiff’s automobile was damaged as well as the rear by the force against a guard rail and the cash value of Plaintiff’s 1958 Chevrolet Impala automobile at Grand Saline, Texas, immediately before the accident was $600.00 and immediately after the accident, $275.00;
“that Defendant Redman failed to keep his vehicle under proper control, was driving at an excessive speed under conditions then existing and did not properly apply his brakes; that such acts and omissions were negligence which were the proximate cause of the accident, and consequently, the Plaintiff’s damages in the amount of $325.00.
“That the accident was not the result of an unavoidable accident;
“That running the red light was not negligence per se.”

Appellant brings forward a number of Points of Error, each of which challenge the sufficiency of the evidence. These Points challenging the sufficiency of the evidence can be determined only by referring to the statement of facts. There was none filed in this case.

Since this case has come to this court without a record of the evidence, we are hound by the findings of fact of the trial court and must presume that the evidence was sufficient and that every fact necessary to support the findings and judgment within the scope of the pleadings was proved at the trial. Fitchett v. Bustamente, 329 S.W.2d 920 (Tex.Civ.App.) 1959, writ refused, n. r. e.; Cunningham v. Fort Worth Pipe & Supply Company of Abilene, 384 S.W.2d 229 (Tex.Civ.App.) 1964, n. w. h.; Howell v. First Federal Savings And Loan Association of New Braunfels, 383 S.W.2d 484 (Tex.Civ.App.) 1964, writ of error refused, n. r. e.; Southern Pine Lumber Co. v. Smith, 183 S.W.2d 471 (Tex. Civ.App.) 1944, writ refused, without merit; Cruz v. First Credit Corporation, 380 S.W.2d 749 (Tex.Civ.App.) 1964, n. w. h.; Phillips v. American General Insurance Company, 376 S.W.2d 808 (Tex.Civ.App.) 1964, n. w. h.; Harris v. Lebow, 363 S.W.2d 184 (Tex.Civ.App.) 1962, writ of error refused, n. r. e.; Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App.) 1964, error refused, n. r. e.; Ehrhardt v. Ehrhardt, 368 S.W.2d 37 (Tex.Civ.App.) 1963, writ refused; Gelfond v. Levit, 398 S.W.2d 659 (Tex.Civ.App.) 1966, n. w. h.; Chadwick v. Glens Falls Insurance Company, 340 S.W.2d 501 (Tex.Civ.App.) 1960, n. w. h.; Turner v. Day, 322 S.W.2d 300, 305 (Tex. Civ.App.) 1959, n. w. h.; Guerra v. Guerra, 362 S.W.2d 421 (Tex.Civ.App.) 1962, n. w. h.

Points attacking the judgment require a determination of whether there was proof to support it. The record shows evidence was heard. At the request of appellant, the court filed its findings of fact, which support the judgment for appellee. The record consists of a transcript without a statement of facts; these points thus present nothing for review. Sekaly v. Hilton Center, Inc., 340 S.W.2d 827 (Tex.Civ. App.) 1960, n. w. h.

On November 1, 1965, appellant filed what is labeled “Defendant’s Requested Findings of Fact” which was given by the court.

Appellee contends that the purported supplemental findings of fact cannot be considered as the request therefor was not made within the five-day period prescribed in Rule 298, Texas Rules of Civil Procedure. The request was, however, acceded to by the trial judge and the supplemental findings prepared and filed promptly so that the transcript could have been filed in this court within the period of time prescribed by Rule 386, Texas Rules of Civil Procedure. Anderson v. Geraghty, 212 S.W.2d 972 (Tex.Civ.App.) 1948, n. w. h. We overrule appellee’s objection.

The appellant contends that: “The original Findings of Fact and Conclusions of Law as the Court found without support of any testimony, is completely erased by the Court’s approving Appellant’s Requested Findings of Fact and his original Findings should either be ignored or they should be read in the light of his Findings of Fact as approved when requested by Appellant.” We recognize the rule of law that any conflict between the original findings of fact and the supplemental findings must be resolved in favor of the later findings. Anderson v. Geraghty, supra; Waters v. Yockey, 193 S.W.2d 575 (Tex.Civ.App.) 1946, n. w. h.; Hood v. Adams, 334 S.W.2d 206 (Tex.Civ.App.) 1960, n. w. h.

However, we do not believe that any conflict exists because the purported requested findings of fact consist only of testimony given by the defendant-appellant and the Chief of Police of Grand Saline, and which at least in part, was only a mere conclusion. Nowhere in the purported requested findings of fact does the court find such testimony to constitute the facts in the case. Neither does the trial judge certify that this statement of the evidence contains all of the evidence introduced with the exception of Fact No. 1 which reads: “The Court finds that there was only the testimony of the Defendant that he was driving along Highway 80 at a speed of 25 to 30 miles per hour, there being no other vehicles on the block approaching the intersection with Main Street of the town of Grand Saline.” A similar fact situation was involved in the case of Gelfond v. Levit, supra. This is only one of the findings made by the trial court in support of its judgment. If this finding should be deficient in any respect, it does not disturb the other findings made that justify the judgment. Foran v. Smith, 228 S.W.2d 251, 256 (Tex.Civ.App.) 1950, n. w. h.

Moreover, in a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony, and findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. Niagara Fire Insurance Company v. Numismatic Company of Fort Worth, 380 S.W.2d 830, 836 (Tex.Civ.App.) 1964, writ refused, n. r. e.; Comet Motor Freight Lines v. Holmes, 175 S.W.2d 464, 467 (Tex. Civ.App.) 1943, writ refused, want of merit; Richardson v. Raby, 376 S.W.2d 422 (Tex. Civ.App.) 1964, n. w. h. The trier of facts, as the sole judge of the credibility of the witnesses, could believe or disbelieve the testimony of the defendant-appellant. Gardner v. Bailey, 376 S.W.2d 85, 88 (Tex. Civ.App.) 1964, writ refused, n. r. e. Apparently, the trial court believed the witness Redman, the defendant, in respect to his testimony as to the speed he was traveling on the occasion in question.

It has been held that the general burden of appeal rests upon the party prosecuting it, and he must present a record which is sufficiently full to show clearly the action of the court and the area of which he complains. The burden is upon him to bring up the whole record. If he brings up a record which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the ruling below, and reversal will not be or-»' dered unless it appears that upon no possible state of the case could the ruling be upheld. Boyd v. Robinson, 304 S.W.2d 430 (Tex. Civ.App.) 1957, n. w. h.

The record shows that appellant filed objections and exceptions to the court’s findings of fact and conclusions of law, which the court overruled. The file mark thereon shows these objections and exceptions were filed on the same day and hour of the appellant’s requested findings of fact. A reading of this instrument leaves no doubt that the objections and exceptions stated therein were lodged to the findings of fact and conclusions of law made by the court and filed on October 13, 1965. Apparently, appellant at that time did not consider that the supplemental findings eliminated the original findings (which we think were the only findings of fact filed in this case) or that such findings should be ignored.

The appellee in his brief complains that no notice was served upon him nor his attorney of the filing of the request for the court to make additional findings of fact as provided for under Rule 298, Texas Rules of Civil Procedure and in accordance with the provisions of Rules 21a and 21b of Texas Rules of Civil Procedure, and that neither he nor his attorney learned of such request for additional findings until the transcript had been filed in this court.

The appellee contends that the failure on the part of appellant to serve the appellee with notice of the filing of the request for additional findings violates Rule 298. Rule 298 provides:

“After the judge so files original findings of fact and conclusions of law, either party may, within five days, request of him specified further, additional, or amended findings; and the judge shall, within five days after such request, and not later, prepare and file such further, other or amended findings and conclusions as may be proper, whereupon they shall be considered as filed in due time. Notice of the filing of the request provided for herein shall be served on the opposite party as provided in Rule 21a or 21b.” (Emphasis ours)

Rule 21a, Texas Rules of Civil Procedure, provides:

“Every notice required by these rules, * * * and except as otherwise expressly provided in these rules, may be served by delivering a copy of the notice or of the document to be served, as the ease may be, to the party to be served, or his duly authorized agent, or his attorney of record, either in person or by registered mail to his last known address, or it may be given in such other manner as the court in its discretion may direct. It may be served by a party to the suit or his attorney of record, or by the proper sheriff, or constable, or by any other person competent to testify. A written statement by an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service. * * * ” (Emphasis ours)

Rule 21b provides:

“Wherever these Rules provide for notice of service by registered mail, such notice or service may also be had by certified mail.”

No certificate is attached to appellant’s request for additional findings certifying that notice of such request for additional findings as required by Rule 298 had been served upon the opposite party nor does the record otherwise show that such notice was given.

It has been held by a United States District Court of the state of New Jersey in the case of Curtis v. Utah Fuel Co., 2 F.R.D. 570, that under Rule 5 of the Federal Rules of Civil Procedure, which rule contains somewhat similar provisions as contended in Rule 21a of our Texas Rules of Civil Procedure, that where the plaintiff moved to submit affidavits and exhibits in opposition to the motion to dismiss, that the court was unable to consider same because the plaintiff did not give notice of said motion as required by the Rule. This case was affirmed by the Circuit Court of Appeals, Third Circuit, 132 F.2d 321. See also Cunningham v. Associates Investment Co., 295 S.W.2d 687, 688 (Tex.Civ.App.) 1956, writ dismissed, and Miller v. Permenter, 234 S.W.2d 459, 461 (Tex.Civ.App.) 1950, writ refused, n. r. e.

The purpose of the provision of Rule 298 in requiring notice of the filing of request for additional or amended findings be served on the opposite party is to afford to said party an opportunity to present objections thereto, if any, and make known his views to the trial judge concerning the merit of the requested findings. The party requesting such additional or amended findings pursuant to Rule 298 should give notice thereof to the opposite party and as prima facie evidence of the fact of service of such notice cause the record in the case to reflect the service of such notice and the method and manner of the service thereof in accordance with the provisions of Rules 21a and 21b.

We do not hold that in the event of a contest as to whether such notice of service was given, that the provision of Rule 21a which says “A written statement by an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service” shall be the exclusive method of establishing proof of service of such notice.

However, appellee says in his brief that neither he nor his attorney were served with notice as required by the above quoted Rules, and, as this statement is not controverted by appellant, we accept it as true. Marshburn v. Stewart, 295 S.W. 679, 692 (Tex.Civ.App.) 1927, writ dismissed.

We think the judgment of the trial court should be affirmed.

Judgment affirmed.