author: BARROW, Justice.

text:
    W. R. GRIMSHAW COMPANY et al., Appellants, v. Pauline C. ZOLLER et al., Appellees.
    No. 14414.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1965.
    Rehearing Denied Dec. 1, 1965.

      Carl Wright Johnson, Alfred W. Offer, Joe Meador, Nat L. Hardy, San Antonio, for appellants.
    Rudy Rice, James H. Brannon, San Antonio, for appellees.
   BARROW, Justice.

Mrs. Pauline C. Zoller brought this suit on behalf of the legal beneficiaries of El-more C. Zoller, deceased, against W. R. Grimshaw Company, an Oklahoma Corporation, and Elliot G. Keeling, a resident of Harris County, Texas, seeking to recover damages for fatal injuries sustained by her husband, Elmore C. Zoller, on a construction site known as the Wonderland Shopping Center in San Antonio. Grimshaw Company was the general contractor on this job, Keeling was the iron worker foreman and Zoller was an employee of a subcontractor, Martin Wright Electric Company. Texas Employers’ Insurance Association, the compensation carrier for Martin Wright Co., intervened asserting its right to subrogation to the extent of compensation, medical and funeral benefits paid by it.

Keeling filed a plea of privilege seeking to remove the cause of action against him to Harris County. This plea was overruled and he perfected his appeal to this Court where the order was reversed and the cause remanded for retrial. See Keeling v. Zoller, 388 S.W.2d 274. Before the plea of privilege appeal was determined, the suit was tried on the merits and judgment was rendered on the jury verdict, whereby Mrs. Zoller, her two sons and Texas Employers’ recovered joint and several judgment against Grimshaw Co. and Keeling for the damages sustained by reason of the death of Zoller.

On a retrial of Keeling’s plea of privilege a jury failed to find any acts of negligence against him and judgment was entered transferring the cause as to him to Harris County, Texas. Appellees concede on this appeal that the judgment must therefore be reversed and the cause remanded as to Keeling.

Grimshaw Co. urges by this appeal that plaintiffs (appellees here) failed to establish that it breached any duty owed to Zol-ler; that the evidence shows as a matter of law that the condition of the premises where Zoller was injured was open and obvious; the injuries sustained by Zoller were, as a matter of law, solely caused by his own negligence; plaintiffs failed to establish that Zoller was a business invitee at the time and place of his injury; the verdict of the jury will not support a judgment for damages; there was no duty upon Grimshaw Co. to furnish temporary lighting in the area where Zoller was injured; and the trial court abused its discretion in overruling Grimshaw Co.’s motion for continuance pending determination of the appeal of Keeling’s plea of privilege.

Grimshaw Co. was the general contractor for the construction of the Wonderland Shopping Center which was to be one unit of about seven acres, consisting of two levels, in which would be located many different stores. The construction site was located on a seventy-acre tract. Martin Wright Co. had an electrical subcontract on part of the project and its employees, including Zoller, had worked on the job for several months. Zoller was injured about 9:00 p. m. on July 24, 1961, in the lower level, when he fell, striking his head on an upright steel reinforcement rod which pierced his right eye and produced injuries resulting in his death.

For about two weeks prior thereto, Wright Co.’s employees were working overtime on the project because the electrical work was running behind the other work. On this night about thirty to forty electrical employees worked on the Woolworth store job, which was located on the second level. Their tools were stored in a tool shed on the first, or basement, level which was reached from the Woolworth job by a stairwell located, according to the various witnesses, from seventy to two hundred feet north of the tool shed entrance. The basement area was still in rough construction stage. Immediately in front of the tool shed doors was a U-shaped truck well opening to the south and facing the tool shed doors. This truck well was surrounded by a concrete beam, described as being from U/2' to 3' high. On the west and north sides of the truck well a concrete floor had been poured, but the area was still unfinished and numerous boards and other construction materials were lying on the floor. On the east side of this truck well was an area extending about two hundred feet to the outside of the building, which was called a fill area. Concrete had not been poured on this area and it consisted of a dirt and caliche base.

For sometime prior to the accident in question, Wright Co.’s employees, with the permission of Grimshaw Co., had used the tool shed in the basement for storing their tools and materials. In going to and from the tool shed to the second level, three routes were indiscriminately used by these employees to the stairwell. They walked directly north across the truck well and up a ramp made of boards; went to the west across the cement floor, or went to the east across the fill area. Wright Co.’s employees testified that the truck well was many times littered with trash and could not be used. It was called a truck well because there was a ramp leading to the outside whereby trucks could drive down, presumably to bring in materials, haul off trash, etc. There was no testimony that any route was prohibited. Grimshaw Co. urged that the proper route was through the truck well, however, in response to a defensive issue, the jury found that there was no designated pathway. There is considerable testimony concerning the lighting in this area. In addition to such natural light as would come in through the open end of the basement to the east of the truck well, there was a light located over the stairwell and fluorescent lights were located in the tool shed. The latter furnished light through the shed doors. When these doors were closed, however, the lighting in the basement was poor. This would be particularly so on a rainy night, as it was on July 24, 1961.

On this night the Wright Co. employees were working overtime until 9:00 p. m. Shortly before this time, they left the second floor work site and proceeded down the stairwell to lock up their tools and materials in the tool shed. Two routes were available for leaving the basement area to go to their cars. They could walk out the truck ramp to the east or they could return up the stairwell and go out the building. It had rained a great deal during this evening and the truck ramp was muddy and difficult to negotiate. As a result, under the undisputed evidence, all of Wright Co.’s employees on this night were leaving by the stairwell. There was evidence that the truck well was littered with trash and debris at this time. In any event, most of Wright Co.’s employees used the route west of the truck well, although several went to the east across the fill area.

There is no direct evidence concerning the route of Zoller. One co-employee testified that Zoller and another employee, Dockins, turned to the east towards the truck ramp. Dockins did not testify. While some of the other employees were proceeding to the stairwell, they heard the noise of Zoller’s fall and went to his aid. He was found in the fill area with his feet entangled in part of a roll of wire mesh of a type which had been used by the iron workers employed by Grimshaw Co. a few days earlier in reinforcing the concrete floor. In falling, Zoller’s head struck a reinforcing rod which was sticking upright a foot or so out of the concrete beam supporting the east wall of the truck well.

Under the settled Texas law, Zoller, who was on the job site as an employee of a subcontractor of Grimshaw Co. was an invitee of Grimshaw Co. In McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), it was said: “A general contractor in control of premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees. Smith v. Henger, 148 Tex. 456, 228 S.W.2d 425, 20 A.L.R.2d 853.”

Grimshaw Co. owed the duty to Zoller as an invitee to keep the premises in a reasonably safe condition. This included the duty to inspect and discover dangerous conditions. Its duty was to protect its invitees from dangers of which it, the occupier knew, or (because of its duty to inspect) should have known, in the exercise of ordinary care. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S. W.2d 543 (1962); McKee v. Patterson, supra; Smith v. Henger, supra. This duty extended to the entrance and exits on the premises. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950); Parking, Inc. v. Dalrymple, Tex.Civ.App., 375 S.W.2d 758, no writ hist.

Grimshaw Co. asserts that there is no finding that Zoller was an invitee at the particular time or place where he was injured. It is a correct rule of law that a person may be an invitee as to certain parts of the premises but not as to others. See Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954); Pogue v. Allright, Inc., 375 S.W.2d 533, Tex.Civ.App., wr.ref. n.r.e. Here, however, there is no evidence to raise a fact issue as to Zoller’s status. Grimshaw Co.’s superintendent knew that the electricians used the lower level in going to and from the tool shed. Zoller was injured shortly after locking up his tools and this occurred at a place that was directly on a route used by the workmen in going from the tool shed to the stairwell. Zoller was an invitee at this place under the undisputed evidence.

The jury found that Grimshaw Co. failed to provide adequate temporary lighting in the area where Zoller fell; that Grimshaw Co.’s employees failed to bend over the steel rod on which Zoller fell, and that Grimshaw Co. permitted the wire mesh to be in this area. Each of these acts was found to be negligence and a proximate cause of Zoller’s injury and death. These findings, which are separate and apart from those against Keeling, properly support the judgment against Grimshaw Co. in this suit brought for injuries to the invitee.

Grimshaw Co. urges that it owed no duty to Zoller as a matter of law, in that any dangerous conditions in the area were open and obvious to Zoller. Under the “no duty” doctrine, an invitee cannot recover if he knows of the condition, realizes and appreciates the danger, or is charged with such knowledge, realization and appreciation. Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Halepeska v. Callihan Interests, Inc., supra; Justice Greenhill, Assumption of Risk, Voh XVI, Baylor Law Review 111.

The jury found that Zoller did not have full knowledge of the condition of the premises where he fell, immediately prior thereto, and therefore did not answer other issues which would have inquired as to his appreciation of the danger and voluntary assumption of the risk. We cannot say that the record establishes these essential requirements as a matter of law. Nor can we say that Zoller was guilty of contributory negligence as a matter of law.

Five photographs were introduced into evidence, which were taken the morning after Zoller’s fall. They show that the fill area is relatively clean in this immediate area except for the one partial roll of wire mesh. There was testimony that this route was frequently used in going to and from the stairwell, and from the photographs there is no unusual risk portrayed on this route. Under the evidence the light was sufficient to where one could see large objects, however, it cannot be said that the wire mesh was open and obvious as a matter of law. There is no evidence that Zoller knew of the wire mesh prior to this incident. Although Zoller knew of the inadequate lighting, it cannot be said as a matter of law that he knew of the dangerous condition created by the wire mesh and the poor lighting. The trial court properly submitted these issues to the jury.

Grimshaw Co. further asserts that it had no duty concerning the inadequate lights, in that Wright Co. had the electrical subcontract and if the lighting was inadequate, Wright Co. should have erected temporary lights. The subcontract was introduced in evidence and under same Wright Co. bound itself to the Grimshaw Co. by the terms of the original contract, and to assume all obligations that contractor had assumed toward the owner. There was evidence, however, that Grimshaw Co.’s consent was required before temporary lighting could be installed, and that this consent was given on several other occasions. There was also evidence that complaints had been made to Grimshaw Co. of the inadequate lighting in this area prior to this accident, but additional lighting had not been authorized. There is nothing in the subcontract which would change the general contractor’s duty to keep the premises in a reasonably safe condition for its invitees.

On June 5, 1964, Keeling’s plea of privilege was overruled and appeal of this order was perfected in this Court of Civil Appeals on June 16, 1964. Rule 385(c), Texas Rules of Civil Procedure, provides that where an appeal is perfected from an order sustaining a plea of privilege, transfer of the venue and trial upon the merits is suspended pending the appeal. There is no such provision staying proceedings pending an appeal from an order overruling a plea of privilege, and it has been held that the case may be tried on the merits irrespective of the appeal. Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233; Pugh v. Childress & Marshall, Tex.Civ.App., 207 S.W. 2d 182, no wr.hist.

The trial on merits had been set for the week of June 8, 1964, but on June 9 motion for continuance was filed, wherein Grimshaw Co. and Keeling sought to have the case continued until Keeling’s appeal from the order overruling his plea of privilege could be determined by the appellate court. Among other prejudicial effects set forth, Grimshaw Co. complained that had said plea been sustained, Grimshaw Co., being a non-resident of Texas, could have removed the cause to the United States District Court. This motion is endorsed: “6/9/64. Granted. Set June 15, 1964” and signed by “Robert R. Murray.” Apparently the motion was overruled other than a week’s postponement as the case proceeded to trial on June 16, 1964. By their motion for new trial appellants complained of the trial court’s overruling this motion for continuance and forcing them to trial before determination of their appeal.

Grimshaw Co. concedes that the granting of its motion for continuance was a matter within the discretion of the trial court, but asserts that the overruling of same was an abuse of discretion. No harm is pointed out by Grimshaw Co., and we can see none in the fact that Keeling was a party defendant before the jury along with Grimshaw Co. The testimony of Keeling clearly demonstrates his full support of the defendants’ position. Grimshaw Co. urges, however, that it was deprived of its valuable right to remove the case to the United States District Court. The trial court had jurisdiction over Grimshaw Co. at all times. No allegation was made that Keeling was fraudulently joined as a defendant. Cf. Covington v. Indemnity Ins. Co., 5 Cir., 251 F.2d 930, Cert. Denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365. Grimshaw Co. made no attempt to remove this case at any time. We cannot say from this record that the trial court abused its discretion in refusing to continue the trial on the merits until the determination of the plea of privilege (which event did not occur until over seven months later). Even if the appeal turned out favorably, at that time Grimshaw Co. might elect not to remove the suit.

The judgment of the trial court is reversed and the cause remanded as to the appellant Elliot Keeling. It is in all things affirmed as to the appellant W. R. Grim-shaw Company. The costs are taxed one-half to appellant Grimshaw Company and one-half to appellees.

      .The material findings of the jury are:
      1. The temporary lighting in the area where Zoller fell was inadequate.
      2. Grimshaw Co. knew or by the exercise of ordinary care should have known it was inadequate.
      3. Grimshaw Co. failed to provide adequate temporary lighting at the time and on the occasion in the area where Zoller fell.
      4. Such failure was a proximate cause of his injury and deatn.
      6.The steel dowel on which deceased fell was not bent over prior to the time of his fall.
      6. Grimshaw Co. knew or should have known the dowel was not bent over.
      7. Grimshaw Co. failed to bend over the dowel prior to Zoller’s fall.
      8. and 9. Such failure was negligence and a proximate cause.
      10. There was wire mesh in the area where Zoller fell immediately prior to the time of his fall.
      11. Grimshaw Go. knew or should have known of same.
      12. Grimshaw Co. permitted the wire mesh to be in the area.
      13. and 14. This permitting was a proximate cause.
      15-22. Similar findings against Keeling as against Grimshaw Oo. as to the steel dowel and wire mesh being in the area.
      23. Zoller did not fail to keep a proper lookout (proximate cause unanswered).
      25. Zoller did not have full knowledge of the condition of the premises where he fell immediately prior thereto. (Appreciation and voluntary exposure issues were conditionally submitted and unanswered.)
      32. This was not an unavoidable accident.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Mrs. Rose TERBAY et al., Appellants, v. PAT CANION EXCAVATING COMPANY et al., Appellees.
    No. 11340.
    Court of Civil Appeals of Texas. Austin.
    Nov. 17, 1965.
    Rehearing Denied Dec. 8, 1965.

      William B. Hilgers, Niemann & Babb, Larry Niemann, Austin, for appellants.
    Meyers & Shannon, James R. Meyers, Austin, for appellees.
   HUGHES, Justice.

This is a suit for damages arising out of a collision between a Ford dump truck being operated by Jimmy Lee Dooley, an employe of Pat Canion Excavating Company, a corporation, and a four door Chevrolet Sedan being operated by Joseph T. Terbay, Jr. The truck was owned by the Excavating Company and Dooley was engaged within the scope of his employment when the collision occurred. The sedan was owned by Mrs. Rose Terbay and her son, Joseph, was driving it with her permission.

The collision occurred about 12:30 p. m. November 8, 1963, in the 700 block on East Oltorf Street in the City of Austin, Texas. Joseph Terbay, Jr., received injuries in the collision from which he died on November 9, 1963. His mother, Mrs. Rose Mary Ter-bay, a widow, brings this suit against the Excavating Company and Mr. Dooley in her own behalf and as next friend of her minor daughter, Patricia Terbay. She is joined in the suit by her two sons, Samuel and Tommy Terbay.

It was undisputed that the dump truck was across the double yellow stripe and in the center lane where the Terbay car had the right to be when the cars collided.

Trial was to a jury which found (1) that the dump truck was not being operated at an excessive rate of speed, (2) that it was not negligence for the dump truck to be operating across the double yellow stripe (3) that the Terbay car was being operated at an excessive rate of speed and that this was negligence proximately causing the collision (4) that the failure of the operator of the Terbay car to turn his vehicle to the right was negligence proximately causing the collision (5) that the failure of the operator of the Terbay car to timely apply the brakes was negligence proximately causing the collision (6) the operator of the Terbay car did not fail to keep a proper lookout (7) the collision was not the result of an unavoidable accident.

We insert, for better understanding, a picture taken shortly after the collision which shows the position of the dump truck and car after they came to rest following

the collision. The Terbay car is headed in the direction it was traveling, east. The dump truck was going west. The pavement was wet and slick, and there was some mud on the street. The weather was misty and there was some rain at the time.

The dump truck was empty. It had just passed Travis Heights School. It was coming downgrade, a grade estimated to be between 10 and IS degrees. The dump truck went out of control. We will quote some of the testimony regarding this movement of the dump truck.

The driver of the dump truck, Mr. Dooley, testified:

“Q Well, I am talking about the afternoon, right before the collision, as you were going westerly down East Oltorf, did you see any school signs at all?
A No, sir.
Q All right, sir. Can you tell us — ■ help the jury any by telling them anything you saw right before this collision?
A I didn’t see anything.
Q What was the weather out there? Was it raining that day?
A Yes, sir.
Q Was there sufficient mist or anything to keep you from seeing the signs, had they been there ?
A Well, I know it was raining pretty reasonable — raining pretty hard.
Q Was your windshield wiper going?
A Yes, sir.
Q Do you wear glasses ?
A No, sir.
Q Have you ever had any trouble with your eyes ?
A No, sir.
Q Were you looking straight ahead?
A Yes, sir.
Q And as I understand you now, you didn’t see anything?
A No, sir.
Q What is the first thing that you remember you can tell us about — after you entered East Oltorf, what is the next thing you saw or experience you had that you can tell this jury about between the time you got on East Oltorf and the time of the collision?
A The only thing that I remember is starting down the hill and I started sliding, and I was trying to get it, you know, back on my side of the road, and all at once I went — everything went black, and that is all I remember.
Q Do you have any idea how fast you were going?
A About twenty or twenty-five.
Q About twenty or twenty-five miles an hour?
A Yes, sir.”

Mr. Dooley was familiar with this street and its condition as he had traveled it several times on the morning of November 8, 1963.

Mr. William L. Seals, who was riding in the right front seat of the Terbay car, testified:

“Q You say the truck was at the top of the hill when you first saw it ?
A Well, I wouldn’t say exactly at the top, but it was very close to the top. It was just coming down over it.
Q All right. Tell these ladies and gentlemen of the jury what you observed the truck do as it came towards you.
A Well, when I first noticed it, it sort of came into our lane, and then it went back into its own lane. And then J. T. says to me, he says, ‘Hey, boy, look at that truck.’ And then it seemed as if it was starting to come back in our lane again; then I turned to face the back.
Q You just turned around?
A Yeah, I turned around and bent over the front seat.
Q Well, why did you do that?
A Fear, I guess.
* * * % * *
Q With the street being wet, would you tell the jury what you observed about the water coming from the truck as it came down the hill?
A Well, it had a spray that was shooting over the top of the bed of his truck.
Q When you say the ‘top of the bed’ you mean clear up over the top of the dump truck?
A Yes, sir, from the back — the back part of it.
Q Did you see the truck just before it hit you ?
A I can’t say about just before, but I saw it as it slid over in our lane. I mean, I would say it was just before, because when I turned my back.
Q Just before the impact did you see J. T. do anything, — the last thing you saw him do.
A He was turning the wheel to the right towards the curb.
Q Was he turning it visibly or just beginning to turn it? Just tell the jury what he was — ■
A He was turning it as you would normally turn a car — I mean nothing violently or anything; he was just turning it to get away from I guess you would call it the collision course.
Q All right. I take it, then — how long was it after you observed J. T. turning the wheel to the right that the impact — ■ that the collision occurred?
A Two, maybe three, seconds. It seemed almost instantly.
Q All right. And it was at that time, while it was about three or four blocks away, the truck was at the crest of the hill, just coming over the top of a hill ?
A Just starting down.
Q Now, that is when you first saw it apparently out of control; is that correct?
A Yes, sir.
Q And then it swerved back and then back again, or do you know that?
A Well, it went in our lane and then over into its own lane and then back into our lane, and as it started back in our lane I turned around.
Q I see. But what I was saying, when you first noticed it it appeared to be out of control right up there where you first saw it?
A Yes, sir.
Q Did you at any time prior to the collision, and not too long before, have any occasion to look at the speedometer of the Terbay automobile?
A Yes, sir, I did.
Q Can you give the Court any idea how fast J. T. was going just immediately prior to this collision?
A Between twenty and twenty-five.
Q I beg your pardon?
A Between twenty and twenty-five.
Q Miles an hour?
A Yes, sir.”

This is all of the eyewitness testimony to the collision. Two expert witnesses testified, Police Officer Donny Neal Hicks and a Registered Professional Engineer, Mr. John A. Focht, Sr.

Mr. Hicks was with the Austin Police Department for four and one-half years. His rating was Patrolman No. 1 when he left the force. He was trained to investigate traffic accidents and had investigated 1058 major collisions. He investigated the collision involved here, arriving on the scene about fifteen minutes after it happened. Mr. Hicks testified in great detail about the condition of the street and the two cars as he found them. The 700 block of Oltorf Street was a 40 foot street, divided by four 10 foot lanes, and had a double center stripe. He testified about the skidmarks left by the dump truck and we quote such testimony:

“Q Would you please show on this diagram where those skidmarks are— describe the nature of the skidmarks at the various places along here — by that, I mean were they heavy in some places,. and light in others — give us a description of what you found when you ran out the skidmarks that morning.
A Yes, sir. It commenced on the hill ten foot west of the school crossing sign sets of dual heavy skid, applied skid ran to a point of approximately, would be just about eighty foot, at which time the right wheels completely vanished. There was no picking any up; only picked up the left rear dual which—
Q The left rear what, again?
A The left rear wheels of the truck, dual wheels.
Q All right, sir.
A Which appeared that it was just more or less sliding more so than grabbing by brake action. At this point it appeared that he had fought it and touched his brakes again, and once again you get the dual sets of prints where it got back over on the westbound traffic lane, which that continued only for approximately twenty to twenty-five foot, and he swung back again on his left rear dual wheels, again which appeared to be more a rolling type of measurement completely down to this point and here — by the way, this is extremely light in this area and in this area.
Q Could you see it?
A Yes, sir. It was very difficult, but it was just a rolling — a rolling type of movement of the dual wheels.
Q All right, sir.
A And this part through here once again it was a broad sliding type of action, a side movement, the tires going in a side movement.
Q All right, sir.
A This was definitely broad skid where he had fought it and the back end of the truck had swung around, and it had more the characteristics of a broad skid, sliding skid to this point here, where it appeared that the truck, the back end swung around. And then there was traceable skid to here where it was definite brake skid again at this point up to the impact itself, approximately 35 foot of definite, hard, braking skid.
Q All right. Officer, were you able to trace some of this wheel all the way back of these skidmarks?
A The left wheels only; right wheels, no, sir.
Q Is there any doubt in your mind that these were the wheels of the truck?
A No, sir, that was it.
Q All right, sir. Tell the jury and the Judge what was the total length of the skidmarks, beginning from the first heavy skidmark that you were able to trace, to the point of impact.
A The total combined skid, rolling and broad skid — broad skid, was 476 feet.”

Mr. Hicks placed the left fender of Ter-bay car one to two feet from the double center stripe when the car was struck by the dump truck crossing the center stripe into the lane occupied by the Terbay car. The cars collided, according to Mr. Hicks, first by their respective right front fenders touching each other. After this initial contact, Mr. Hicks described the movement of the cars as pivoting and being circular in character.

The principal damage to the dump truck was sustained on its right side and about the center of the right front door.

When the cars came to rest after the collision they were about 38 feet east of the point of impact. In other words, the dump truck went backward, in direction, 38 feet after the impact even though it outweighed the Terbay ear 7360 pounds to 3300 pounds. This fact made relevant the testimony of Mr. Focht, the engineer.

The substance of Mr. Focht’s testimony was that, applying the laws of physics, considering the relative weights of the vehicles and other factors present, particularly the reverse movement of the dump truck following the collision, that if the dump truck was immobile at the time of impact, then the Terbay car must have been .moving at the rate of 29.5 miles per hour, and that a speed of 4.2 miles per hour by the Terbay car was necessary, under the conditions assumed, to neutralize one mile per hour speed by the dump truck. The result of these calculations is that if the dump truck was moving at rate of 20 miles per hour at the time of impact, the Terbay car must have been traveling at the rate of 84 miles per hour in order to produce the backward movement of the dump truck.

Following the jury verdict, appellants filed a motion for new trial in which they produced two eyewitnesses to the collision who gave versions of the incident strongly calculated to overcome the devastating opinion testimony of Mr. Focht. Appellants sought vainly below and now seek here a new trial on the ground of newly discovered evidence.

The first of the two eyewitnesses was Donald C. Welch who is a school teacher at Travis High School. Mr. Welch recalled that, as he was turning out of the school parking lot (which is adjacent to Oltorf and about a quarter of a mile from the scene of the accident), he saw the dump truck pass directly in front of him going west at about 30 to 35 miles an hour. When he pulled on to Oltorf, there were two or three vehicles in between him and the dump truck. At the top of the hill near the blinking yellow light, he stated that the truck appeared to pick up speed and was traveling approximately 40 miles per hour. As the dump truck started to slide and swerve back and forth, he noticed the Chevrolet car coming from the west about 30 to 35 miles an hour. He watched the two vehicles as they traveled toward each other until the moment immediately prior to actual impact, at which time Welch diverted his attention to take care of his own braking and sliding.

Welch did observe the vehicles long enough to state that the speeds of both vehicles immediately prior to impact were approximately 15 to 25 miles an hour and the dump truck seemed to be going faster than the automobile immediately prior to the impact. Also, Welch said that it looked to him like the car was trying to get out of the way by turning to the right.

The other eyewitness, Jay Hart, was a student at Travis High School who testified that he was walking west toward Congress and was at the southeast comer of the intersection just west of the collision when he heard a rumbling sound and brakes screaming in back of him. He saw that the dump truck was sliding down the hill, fishtailing back and forth from side to side, and crossing the center line. At about the same time he noticed the Terbay automobile passing in front of him and heard a real hard thump and observed that the back tires sort of jumped up and down and the back end of the Terbay car swayed back and forth. It looked to him like the automobile was heading toward the right-hand curb.

It was also his testimony that the dump truck was going approximately 40 miles an hour plus when first seen by him, and that the automobile was going about 30 m. p. h. Also, it appeared to him that at the time of the impact the car was going about 20 m. p. h. and the dump truck was going about 20 to 25, a little faster than the car.

The relevancy and importance of the testimony of the witnesses is apparent. It would certainly soften the effect of the opinion testimony of Mr. Focht as to the speed of the cars at the time of impact.

The trial court made these findings pertaining to appellants’ motion for a new trial:

“1) That prior to trial and judgment in this case, neither plaintiffs nor their counsel had knowledge of two eye-witnesses to the accident, Donald C. Welch and Jay Hart, who testified at the hearing on plaintiffs’ amended motion for new trial.
2) That Plaintiffs’ counsel made a reasonable investigation of said case prior to trial and exercised ordinary diligence in their discovery efforts prior to trial, but the Court finds that the same efforts which discovered the witnesses after trial would have discovered them before trial.”

We are of the opinion that these findings are supported by the evidence and that they entitled appellants to a new trial and that the trial court abused his discretion in not granting it.

Before the trial it appears that appellants, in attempting to find eyewitnesses to the collision, examined police records, interviewed investigating officers, examined records of the District Attorney who was considering criminal charges in the matter, interviewed the passenger in the Terbay car and the ambulance driver who drove Mr. Terbay to the hospital. Members of the Terbay family were sent to interview persons living in the vicinity of the collision. Photographs taken by the police at the scene were examined. One person identified in these photographs was identified and interviewed. None of these efforts resulted in finding eyewitnesses to the collision.

After the trial appellants made these prodigious efforts which resulted in the discovery of the witnesses Welch and Hart. An investigator, David Kuperman, spent four and one-half days going from shop to shop and house to house, talking to everyone he encountered. He talked with between 60 and 65 people and conducted about 100 interviews before finding a person who could tentatively identify a face in an Austin-Statesman photograph. Finally, after interviewing some persons twice and three times, Kuperman found a barber who tentatively identified the witness Donald C. Welch by the use of a magnifying glass. Kuperman then tracked down Welch, interviewed him, and ascertained him to be an eyewitness to the collision.

The second eyewitness, Jay Hart, was discovered quite by accident. On the day before the hearing on the motion for a new trial, Welch mentioned to his class that he was going to testify in court on an accident which had occurred sometime earlier on Oltorf. Jay Hart spoke up and indicated that he had seen the accident too.

The opinion of Chief Justice Wheeler in Mitchell v. Bass, 26 Tex. 372, contains an eloquent and classic statement of the principles underlying the grant or refusal of new trials on the ground of newly discovered evidence. We quote from that opinion:

“In deciding upon motions for new trials on the ground of newly discovered evidence, courts have found it necessary to lay down stringent rules, and to scrutinize such applications with much strictness, to prevent the mis-chiefs which would otherwise be produced. The losing party too often finds it an easy matter to obtain new evidence to supply former deficiencies. It is easy to claim the discovery of new evidence, when the claim is really unfounded, or the result of negligence in the first preparation; and it would be of dangerous consequence to the rights of parties and the safe administration of justice, for the courts to grant new trials to parties merely to correct their own error, when they discovered where they were deficient, and when the requisite industry and vigilance would have supplied the deficiency in time. Such motions are received with careful scrutiny, and are held to address themselves very much to the discretion of the court; and where the court has refused an application made upon this ground, the appellate court will not reverse, unless it shall appear that the court below has not exercised its discretion according to the established rules of law. Yet, much as should be left to the discretion of the court, and reluctant as the appellate eourt may be to interfere with the exercise of that discretion, there are cases where the established rules of law and the principles of adjudged cases would be disregarded if a party was denied a new trial upon newly discovered evidence. The party who brings himself within the principles of such cases is entitled to a new trial as a matter of right, unless it be in those cases where it is apparent to the court that the justice of the case has been attained. Where there can be any doubt of the justice of the verdict, to refuse a new trial, when the party has really discovered new evidence of a conclusive tendency, would be against justice and precedent; and by new evidence is meant proof of some new and material fact in the case, which has come to light since the trial.”

The Court, after discussing the nature of the new evidence there involved continued:

“We think it cannot be said that his failure to discover it before the trial was in consequence of any want of diligence on his part; for very great diligence appears to have been used in the search. If want of diligence can be imputed to the party in this case, it is difficult to conceive of a case where the requisite diligence could be shown.
* * * * * *
and we cannot perceive what more effort the party was required to make, unless we were to hold that he was required, at all events, to have made the discovery, which he endeavored to make, but failed. That would be, in effect, to hold that this particular evidence could not come within the meaning of newly discovered evidence. (Italics ours.)
******
The new evidence relates to the proof of a fact by means so dissimilar from that used upon the trial, as to afford no ground for treating it as cumulative merely of the evidence upon the trial. It is of so decisive a nature, so material to the just decision of the matter in controversy, that the defendant ought not to be denied the right to have it submitted to the consideration of the jury, unless his failure heretofore has been in consequence of his own fault, and we cannot perceive that it is. It is desirable that there should be an end of litigation with as little delay and expense as possible consistently with the great end of litigation, a correct decision of causes according to their real merits; but it should always be sought in subordination to the great end to be attained. Though there had been two trials, this was the only application for a new trial on the part of the defendant; he had been successful upon the first trial. We think a new trial ought to have been granted. And although we have felt some hesitancy in pronouncing the refusal of it to be error, yet when we consider the nature of the controversy, and of the new evidence, and the very material bearing it may have upon the just decision of the case, we are constrained to conclude that the refusal of the application was the denial of a right to which the defendant was entitled according to established rules of law governing such applications, and consequently that it must be regarded as error, for which the judgment will be reversed.”

The degree of diligence requisite to a discovery of new evidence in the first instance is “due diligence.” Texas Employers Ins. Association v. Moser, Tex. Civ.App., 152 S.W.2d 390, n. w. h., San Antonio, by Justice Norvell. Jacobi v. Texas State Board of Medical Examiners, Tex.Civ.App., 308 S.W.2d 261, Waco, writ ref., n. r. e. “Due diligence” is synonymous with “reasonable diligence.” Small-Lynch Co. v. Midwest and Gulf Co. of Texas Trust Estate, Tex.Civ.App., 269 S.W. 163, Fort Worth, n. w. h. It is also held that “due care,” “due diligence” and “ordinary care” are convertible terms and mean the same thing. Western Union Telegraph Co. v. Smith, Tex.Civ.App., 133 S.W. 1062, Austin, n. w. h. In 66 C.J.S. New Trial § 104, p. 298, it is stated, “No matter how material the testimony may be, an applicant for a new trial on the ground of newly discovered evidence must have used ordinary diligence to discover and produce the evidence at the trial. Accordingly, in order to constitute such newly discovered evidence as will authorize a new trial, the evidence must be such as could not have been discovered before the trial by the exercise of reasonable diligence; and, where evidence was as available before trial as it was after the trial, a new trial is not justified. On the other hand, where movant, or his agent or attorney, used due diligence to discover newly discovered evidence before the trial ended, or where such diligence would have been unavailing, a new trial is warranted.”

Appellee cites Employees Lloyds v. Schott, Tex.Civ.App., 183 S.W.2d 262, Dallas, writ ref., and Vance v. Obadal, Tex.Civ.App., 256 S.W.2d 139, El Paso, writ ref., as holding that diligence has not been exercised if the same diligence used to procure testimony subsequent to trial would have had the same result if exercised prior thereto. These cases do make these statements but it is obvious from a careful reading of the cases that the Courts are speaking with reference to the failure of movant to use the standard of diligence required to establish lack of fault in not earlier discovering the evidence.

In Obadal the Court stated:

“Nor does it seem possible to justify the point on the ground of newly discovered evidence. The evidence itself and its sources force us to the conclusion that it must have been available to all parties before the trial. As we understand the rule, movant must show that diligence was exercised to obtain the evidence and successfully negative lack of diligence. Reed v. Beheler, Tex.Civ.App., 198 S.W.2d 625; 31 Tex.Jur., Sec. 81 et seq.; 31 Tex.Jur., Sec. 84 et seq. It does not seem to us that appellant has met this burden placed upon him by the laws of our state.”

In Schott the newly discovered evidence came from the neighbor of the injured employee, the insurance company on motion for new trial contending that testimony of the neighbor that the employee conducted himself as a robust, healthy person was newly discovered evidence. In sustaining the action of the trial court in denying a motion for new trial, the Court stated:

“As reasons for not earlier interviewing the new witnesses living on same side of street, within some 200 feet, defense witness explained: ‘I have always found in trying to check up on anyone you suspicion, if you get too close to them and get a friendly neighbor, they are going to tip them off and consequently they are going to lay low * ^
Our review of error in the ruling complained of merely extends to a determination of whether the trial court has abused its discretion in such regard. 31 Tex.Jur., page 90. A motion for new trial, on ground of newly discovered evidence, must be supported by a showing of proper diligence; in which connection the new evidence just outlined is seen to have been as accessible to appellants before judgment as afterward. A new trial must be denied if the same diligence which discovered the evidence subsequent to the trial would have discovered it prior thereto. 31 Tex.Jur., page 98. The trial court has impliedly found that, had appellants exercised reasonable diligence in making neighborhood inquiry, the evidence of Mr. and Mrs. Newcomb would have been forthcoming before the case was tried; and so viewing the testimony, adduced on appellants’ motion for new trial, the court’s denial thereof was well within its discretion; * *

In neither of these cases did the trial court find that prior to the trial the party seeking a new trial had exercised diligence, or ordinary diligence, in attempting to discover the evidence sought to be considered newly discovered evidence. Our situation here is just the reverse. The trial court found, and we approve its finding, that appellants did exercise ordinary diligence before trial to discover the evidence which they offered as newly discovered evidence on the motion for new trial.

We believe that the Court in Mitchell v. Bass, supra, stated principles which deny the construction which appellee seeks to place upon the two authorities above discussed in holding that a party seeking a new trial on the ground of newly discovered evidence was not “required, at all events, to have made the discovery, which he endeavored to make, but failed,” for to hold otherwise “would be, in effect, to hold that this particular evidence could not come within the meaning of newly discovered evidence.”

We are of the opinion that the finding of the trial court that appellants exercised “ordinary diligence” in their pretrial investigation of this case without discovering the witnesses Welch and Hart is the equivalent of a finding that they exercised due diligence. We affirm this finding, and having done so it is our opinion that appellants were entitled to a new trial as a matter of right unless it is apparent that justice in this case has been attained.

We are not of that opinion. We are of the opinion that upon re-trial, with the admission of the testimony of the witnesses Welch and Hart, that in all probability the result of the trial will be favorable to appellants.

If one will but look at the position of the two cars when they collided, and other factors, it will be apparent that justice has not been attained in this case.

The Terbay car was proceeding west, one or two feet inside the double yellow stripes. The dump truck was completely, or at least 99.9% in the lane rightfully occupied by the Terbay car. The dump truck was slanted toward the southwest. If the Terbay car had pulled to the right, it would have been in the direct path of the dump truck. It should also be borne in mind that the outside lane was only ten feet wide and that this is a very small area in which to maneuver and successfully dodge a wildly careening 31/2 ton dump truck.

Perhaps Mr. Terbay should have stopped or slowed his car. Even so, this would have been no guarantee of safety. He did not know where or when the dump truck was going to zig or zag. If he had stopped or slowed and had been hit, it could no doubt be established that had he proceeded at full speed he would not have been hit.

There is no worthwhile evidence to sustain the jury finding that the Terbay car was, at the time of the collision, being operated at an excessive rate of speed.

There is no evidence that the dump truck was defective in any particular.

The failure of the driver of the dump truck to recall events up to the time of the collision, and that he “blacked out” before impact, is nigh incredible. In the event, the finding of the jury that it was not negligent for the dump truck to be in the wrong lane defies reasonable analysis or explanation.

In view of our holding that appellants were entitled to a new trial on the ground of newly discovered evidence and that justice has not been attained, we refrain from passing on their point that the verdict of the jury is against the great weight and preponderance of the evidence.

There is one remaining matter to be briefly discussed. Mr. Hicks, the police officer, offered to testify, from his experience and from his investigation of the physical facts found by him at the scene of the collision and immediately after its occurrence, that the dump truck was, at the time its brakes were first applied, traveling at the rate of at least, 45 miles per hour. This evidence was excluded on the ground that Mr. Hicks was not sufficiently qualified to express an opinion. We believe the court was correct in this ruling. While Mr. Hicks had considerable training in the proper manner of investigating car collisions and had had a great deal of experience in this field, he had no knowledge or experience qualifying him to estimate the speed of the cars from the amount of damage sustained by them, nor did he have any knowledge or experience which would qualify him to express an opinion as to the speed of the dump truck based on its skidmarks left on a steep down grade, wet, muddy and slick pavement.

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

Reversed and remanded.

ARCHER, C. J., not participating.


author: PHILLIPS, Justice.

text:
    R. K. ALLEN, Garnishee, Appellant, v. Louis Scott WILKERSON, Receiver of Cedar Park Quarries, Inc., Appellee.
    No. 11339.
    Court of Civil Appeals of Texas. Austin.
    Nov. 17, 1965.
    Rehearing Denied Dec. 8, 1965.

      Moursund & Ferguson, Thos. C. Ferguson, Johnson City, for appellant.
    Louis Scott Wilkerson, Austin, for ap-pellee.
   PHILLIPS, Justice.

This is a garnishment action wherein the garnishee, appellant here, has been found to be indebted to the garnishor’s judgment debtor. The garnishor here is the appellee. Garnishor’s judgment debtor had been granted a judgment for $109,-000.00 in a prior suit against the Leander Limestone Corporation, said judgment having been transferred to appellee pursuant to a contract approved by the court in said prior suit. Appellee instituted this garnishment proceeding against the appellant as a debtor of the Leander Limestone Corporation. At the conclusion of the trial to the court, the court entered judgment against appellant for $110,670.36. There were no findings of fact or conclusions of law by the trial court in connection with his judgment.

We affirm the judgment of the trial court.

A brief résumé of the facts are as follows: A Texas Corporation named Leander Limestone Corporation was formed in 1946 with five persons equally interested and equally owning the stock. R. K. Allen, appellant here, and Chester Lankford were two of the original incorporators. In 1954, R. K. Allen acquired the stock of the other three incorporators bringing his percentage of the ownership of the capital stock to 80% thereof. Chester Lankford continued to own his capital stock and to remain active in the corporation until his death in 1963. The principal business of Leander Limestone Corporation was the processing of limestone for building purposes.

Another Texas Corporation by the name of Whitestone Lime Company was organized by appellant, R. K. Allen, and Guy E. Green and began doing business in 1956. The majority stockholders of the White-stone Lime Company (and its successor White Stone & Lime Company) were appellant Allen, his wife, son and daughter, and Guy E. Green, his wife, son and daughter.

In 1961 a receivership proceeding was instituted as to the White Stone & Lime Company in the District Court of Williamson County, Texas.

Garnishor appellee is receiver of Cedar Park Quarries, Inc., having been so appointed by the District Court in Austin in a prior proceeding.

In another suit in the District Court in Austin docketed as No. 92,981-B, one Joe Amberson, Jr., Independent Executor of his father’s estate, recovered judgment against Leander Limestone Corporation for the abovementioned sum of $109,000.00. Thereafter, Joe Amberson, Jr. contracted with garnishor appellee to assign this judgment to the garnishor appellee. The receivership judge found that the contract was to the best interest of the receivership (Cedar Park Quarries, Inc.) estate and approved the contract.

In the case at bar, the writ of garnishment was issued in May of 1964 upon a recited judgment for $109,000.00 in the above-mentioned Cause No. 92,981-B. Appellant Allen answered and the case was tried in Williamson County with the result as announced above.

I.

Appellant Allen’s first point of error in this Court is that of the District Court in granting appellee judgment against appellant for $110,670.36 because appellee as garnishor failed to meet the burden of proof resting upon him to establish by a preponderance of the evidence a prima facie case against Leander Limestone Corporation as alleged, and specifically failed to establish a judgment which he was entitled to assert herein or that there was an indebtedness owing by appellant to Leander Limestone Corporation subject to the writ of garnishment, or the amount thereof.

We overrule this point.

The general rule is that, in order to contest a plaintiff’s capacity to sue, objection must be made by a plea in abatement in the trial court and cannot be urged for the first time on appeal. 44 Tex.Jur. 2d, Parties, 223-225. Such rule may in some cases not be applicable to a governmental agency which has only the particular capacities specified in the judicially noticed statute creating such agency. Such appears to have been the view taken in Ortiz Oil Co. v. Railroad Commission, Tex.Civ.App., 62 S.W.2d 376, no writ history, decided in 1933, relied upon by garnishee. But the rule has been squarely held applicable by this Court to suit by a receiver, and it now appears required to be applied by virtue of subdivision (c) of Rule 93, Texas Rules of Civil Procedure, adopted in 1940. Roberson v. Board of Insurance Com’rs of Texas, Tex.Civ.App., 171 S.W. 2d 542, 543, pt. 1, er. dism., decided in 1943.

Actually, this receiver did not need a specific grant of authority from the 53rd District Court to try to collect the judgment upon which this suit is based. Once the property interest in such judgment was placed in the receiver’s hands, the receiver was authorized by Article 2310, Vernon’s Ann.Civ.St., to sue for collection thereof “without leave of the court appointing him.”

Garnishee’s assertion that Amber-son “could not” assign the judgment to the receiver and that the 53rd District Court lacked “jurisdiction” to authorize the receiver to sue thereon is without merit. The contract and court order approving it do not expressly recite that Amber-son was already a party in the receivership case; but such is clearly inferable from the provisions of the fifth paragraph of such contract. But, even if Amberson theretofore had not been a party in the receivership case, he became such when he voluntarily contracted with the receiver subject to the “approval” of the receivership judge. Security Trust Co. of Austin v. Lipscomb County, 142 Tex. 572, 180 S.W.2d 151, 158, col. 2. And thereafter any and all questions relative to the propriety of the receiver’s acquisition of such judgment and of all orders as to what he should do with it could be raised only directly in such receivership case, not by collateral attack such as is now made by the garnishee in this Court. Ibid., 180 S.W.2d at 155-157.

Just as an appointment of a receiver by a court having jurisdiction to appoint and proceedings taken in such receivership are not subject to collateral attack (Robins v. Sandford, Tex.Com.App., 29 S.W.2d 969), so also an order authorizing a receiver to institute suit in the same State is not subject to collateral attack. A case very closely in point is Grant v. H. B. Leach & Co., 280 U.S. 351, 50 S.Ct. 107, 74 L.Ed. 470. In that case a defendant, sued in a federal court by an Ohio state court appointed receiver, challenged the receiver’s authority to sue. The United States Supreme Court held that an Ohio statute practically identical with our Article 2297, V.A.C.S., gave the Ohio state court “jurisdiction” to determine actions its receiver might bring; and it then held:

“ * * * But even if this were not the case, the order specifically authorizing and directing the receiver to bring the action in the [federal] district court was one which the common pleas court had jurisdiction to make in the exercise of its discretion and under the construction which it placed upon the statute; and, as such, was not one which, even if erroneous, was subject to the collateral attack which Leach & Company sought to interpose in the [federal] district court. * * * ”

Likewise we overrule the second part of garnishee’s first point to the effect that garnishor “failed to establish * * * an indebtedness owing by appellant to Leander Limestone Corporation subject to the writ of garnishment, or the amount thereof.” Substantial evidence supports the trial court’s ultimate finding that garnishee was indebted to Leander in the sum of $110,670.36 when writ of garnishment was served.

On appeal after nonjury trial, with no request having been made for specific fact findings, it will be presumed that the trial court resolved every disputed fact issue in favor of the appellee and that the evidence will be viewed in the light most favorable to the trial court’s presumed findings, disregarding all that is contrary thereto. McWilliams v. Muse, 157 Tex. 159, 300 S.W.2d 643.

Garnishee states in his brief that gar-nishor contended himself with proving that there was a ledger account on the books of Leander Limestone Corporation denominated “Notes and Accounts Receivable R. K. Allen,” which began with an entry of “9/30/59 [which was about eight months after R. K.’s and Tom Allen’s trip to Argentina]. Balance per work sheet” and a debit entry of $43,333.95 * * * and that it showed a present debit balance of $110,670.36 — which is the same sum the trial court found garnishee to be indebted to Leander when garnishment writ was served on him in this case.

Garnishor proved such ledger account to the satisfaction of the court. On Tom Allen’s deposition taken on May 15, 1964, he testified that he was vice-president and office manager of Leander, that the ledgers and journals of Leander were kept under his supervision, that a certified public accountant checked his work. He produced Leander’s accounts receivable ledger. With such ledger then before him he testified that R. K. Allen “has taken money out of the corporation from time to time to reinvest in this Argentinian Project.” Referring to an account entitled “Notes and Accounts Receivable R. K. Allen” in the ledger book, Tom Allen testified that such account “is the accountant’s way of showing his obligation to the corporation.” Tom Allen further testified that such account would be debited when R. K. Allen took money out of the corporation and would be credited with whatever he paid back.

He further testified that R. K. began to take money out of Leander for the Argentina operation “Approximately 1959,” that he (Tom) had check writing authority “since early ’59,” that by and large he (Tom) signed most of the checks by which R. K. withdrew funds from Leander and that the standard operating procedure was:

“A He would come to me and tell me to write a check. He was the owner, he was the owner of the corporation, and he had full control of the money and he could tell me what he wanted done and I, as the bookkeeper,—
Q You followed the orders.
A Followed the orders.”

At the trial, Tom Allen recalled the taking of his deposition, recalled that he had then testified that “as of February 1-2, 1964, the balance due from Mr. R. K. Allen to Leander Limestone Corporation, is $110,-670.36” and that since that date he knew of no more withdrawals from Leander by R. K. nor of R. K. having paid anything to Leander.

R. K. Allen identified a financial statement purporting to reflect Leander’s condition at the end of 1963 and testified that the item thereon reading “Accounts Receivable, R. K. Allen, $109,327.96” was a correct statement as of that time.

Garnishee contends here that some of the items charged to his account on Leander’s books should not have been so charged. He particularly claims that some items in connection with “L. E. Motor Company,” a business which he personally bought from a Johnny Hardcastle, should not have been charged to him because, so he claims, such business was later “consolidated” with another corporation by the name of White Stone and Lime Company. It is believed sufficient in reply to such argument merely to note that the parties themselves did treat such charges as proper charges against Allen while Leander was under his dominion and control. And it is also noted that all questions as to the credibility and weight of R. K. Allen’s testimony in such regard were for the trial fact finder.

In his pleading upon which he went to trial, garnishee had pleaded that he had borrowed money from Guy Green and that such borrowed money was “channeled” to him through Whitestone and Leander, but that such corporations “were conduits or intermediaries for the transmission of the funds and for no other purpose.” A mass of evidence, both testimonial and documentary, was adduced by both sides relative to this question. The trial court resolved it against the garnishee.

Granted that, if one person makes a so called “special deposit” with another, the law will recognize that the relationship between the depositor and the recipient will be a trust and not a creditor-debtor relationship. But, to establish such a relationship it must be affirmatively proved by the party claiming the special deposit that there was a mutual agreement between the depositor and the recipient that the particular funds will be devoted by the recipient to the specially designated purpose. Brand v. R. W. Briggs & Co., Tex.Civ.App., 78 S.W.2d 1048, er. ref. As this Court pointed out in Janner v. Langdeau, Tex. Civ.App., 317 S.W.2d 787, 788, col. 1, er. ref., n.r.e., a promise by the recipient to pay interest is practically conclusive of a general, not special, deposit. And as also pointed out by this Court in Narrell v. First Nat. Bank of Temple, Tex.Civ.App., 241 S.W.2d 361, 362, no writ history, the fact that the recipient did commingle the funds with its other funds is strong evidence against a contention of special deposit.

It is believed sufficient here merely to note that the burden of proof on this question was on the garnishee and let the matter rest there under the rule that, the trial court not having resolved this disputed fact question in favor of the appellant-garnishee, this appellate court will not do so. However, it is noted that a mass of both testimonial and documentary evidence affirmatively established the opposite of garnishee’s contention.

II.

Appellant garnishee’s second point of error is that of the trial court in granting ap-pellee judgment against appellant for $110,-670.36 because the indebtedness, if any, owing by appellant to Leander Limestone Corporation was barred by limitation in whole or in part, and Leander Limestone Corporation being barred from recovery the garnishor would likewise be barred.

We overrule this point.

In order for limitations to run against a corporation’s right of action against one of its own directors, two things must concur: (1) notice (2) to a disinterested majority of its board members. Although it is not necessary that such notice come to such members in a board meeting (International Bankers Life Ins. Co. v. Holloway, Tex.Sup., 368 S.W.2d 567, 580, pt. 14), such case makes it clear that both notice and the existence of a disinterested majority are fact questions. As the Supreme Court said, 368 S.W.2d at 580:

“ * * * there was presented a fact question as to whether the disinterested officers and directors of plaintiff had knowledge of facts sufficient to require them to exercise diligence by using the means available for discovering the personal stock sales activities of the defendants. * * * ”

Continuing:

“It is also our view that the present record presents a fact question as to the adversity of interest of [named directors] * * * . ”

In this case, there was a four man board (until Chester Lankford’s death, whereafter it was only a three man board). Hence, for limitations to run in favor of R. K. Allen, it would be necessary for notice of his withdrawals from Leander to come to three disinterested members. Excluding R. K. because of his obvious personal interest, that leaves only his two brothers (George and Tom) and Chester Lankford to consider. It thus appears that if the trial fact finder found any one of the following facts, such would be decisive against garnishee’s limitation plea:

(1) George Allen never had notice of R. K. Allen’s withdrawals and swore he did not

The fact that record of R. K.’s withdrawals was kept in the office would not impute notice thereof to George, who testified he was an “outside man.” Whatever conflict of authority on this point there might previously have been, the point was settled in Texas in the aforecited Holloway case wherein the Court held (368 S.W.2d at 580):

“ * * * We do not regard the fact that the sales by defendants of their personal stock during the period of April 1, 1955, to September 6, 1955, were reflected in the stock transfer records charges the corporation with notice at such time as a matter of law. * * *>f

Such would be merely one of the evidentiary facts to be considered in finding one way or the other on the ultimate fact question (Id.).

(2) Apparently Chester Lankford never had notice of R. K.’s withdrawals. True, R. K. testified that Lankford was “aware” of R. K.’s private contract with Green and that it was “agreeable with” Lankford for R. K. to enter into such private contract with Green. Lankford did not testify and is now dead. Even assuming R. K.’s testimony to be true, it is still not a necessary inference therefrom that Lankford “had full knowledge of all the circumstances.” And, in light of R. K.’s personal interest, the trial court may well have discredited such testimony, 62 Tex.Jur.2d, Witnesses, 432. The trial court may have given more weight to testimony that no board meetings were ever held and that Lankford’s actual participation in any of the affairs of Leander appears to have been limited to “production” work at the plant.

The trial court may well have found that either George or Tom, or both, were not disinterested.

While there are some legal relationships which prevent disinterestedness as a matter of law, (see, e.g., Felty v. National Oil Co., Tex.Civ.App., 155 S.W.2d 656, no writ history (transaction between corporations having common directors); Davis v. Nueces Valley Irrigation Co., 103 Tex. 243, 126 S.W. 4, pt. 5 (sale of corporate property to director’s wife)), interestedness may exist in fact even in the absence of any of such relationships. In short, interestedness or disinterestedness does not turn on any technical form of legal status; it is a substantial fact question. This was made abundantly clear in the Holloway case (368 S.W.2d 580, col. 2, pt. 18).

Appellant-garnishee argues that limitations ran against Leander because Chester Lankford “could have maintained an action at any time to have recovered on this account, minority stockholder though he was.” Whatever right Chester Lankford might have somehow perfected to bring a shareholder’s derivative suit for recovery on a corporate cause of action, he himself could neither have either expressly released such cause of action, nor have sued directly on the cause of action, which belonged to the corporation and was under the control of its board of directors. As said in Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, at 221, col. 2:

“ * * * Such action must be brought by the corporation, not alone to avoid a multiplicity of suits by the various stockholders and to bar a subsequent suit by the corporation, but in order that the damages so recovered may be available for the payment of the corporations’ creditors, and for proportional distribution to the stockholders as dividends, or for such other purposes as the directors may lawfully determine. [Citing many authorities.] ”

And where, as here, the management of a corporation’s affairs are de facto under the domination and control of the adversary of such cause of action, or the corporation is de facto powerless to sue on such cause of action because of the lack of a disinterested majority of its board, mere notice to shareholders does not start running of limitations against the corporate cause of action. Whitten v. Dabney, 171 Cal. 621, 154 P. 312; Goldberg v. Berry, 231 App.Div. 165, 247 N.Y.S. 69.

III.

Appellee garnishee’s third, fourth and fifth points of error, briefed together, are as follows:

THIRD POINT: The District Court erred in granting appellee judgment against appellant for $110,670.36 because the undisputed evidence in this case establishes appellant made a contract with Guy E. Green whereby he assumed as his own obligation, payable from a specific source, the payment of $294,483.35 owing by Leander Limestone Corporation, including therein the amount of appellant’s withdrawal account with Leander Limestone Corporation, and such corporation having received the benefits of such contract could not have repudiated the same and recovered from appellant, and ap-pellee is in no better position to do so than such corporation.

FOURTH POINT: The District Court erred in granting appellee a judgment against appellant for $110,670.36 because the contract between appellant and Guy E. Green made any debit balance in appellant’s withdrawing account on the Books of Leander Limestone Corporation a trust fund to pro tanto reimburse Guy E. Green for money advanced to him to and for the benefit of Leander Limestone Corporation, which contract was approved by 100% of the stockholders of the Leander Limestone Corporation, and acquiesced in by its Board of Directors, and the benefits of such contract having accrued to said Corporation it was bound thereby, and appellee’s rights, if any, are subject thereto.

FIFTH POINT: The District Court erred in granting appellee judgment against appellant for $110,670.36 because Leander Limestone Corporation was obligated to the appellant in an amount far in excess of such sum for the reason that appellant had guaranteed the payment of more than $300,-000.00 of indebtedness owed by said Leander Limestone Corporation, and had secured the same by liens upon the pledges of his own property, and after default by Leander Limestone Corporation he had substituted himself and his property as the obligor and fund for the payment thereof in a manner acceptable to the principal creditors, and for such reason Leander Limestone Corporation possessed no action against appellant, and appellee was in no better position in respect thereto.

We overrule these points.

We do not feel it necessary to set out the details of the contract between Allen and Green as it did not even purport to be a corporate act by Leander Limestone Corporation. The law is well settled here that where an act, even by a sole shareholder or a private agreement between all shareholders, does not appear to be a corporate act, then it is a complete nullity insofar as having any effect, legal or equitable, upon the corporations’ property and contract rights. Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S.W. 209, 31 L.R.A. 706; Sellers v. Greer, 172 Ill. 549, 50 N.E. 246, 40 L.R.A. 589; 1 Hildebrand on Texas Corporations, 25-26.

The contract did not even purport to release Allen from his general, in personam liability to Leander Limestone Corporation. 13 Tex.Jur.2d, Contracts, 633 Sec. 357.

[25] Even if the other shareholders and directors of Leander had known or had been agreeable with such contract, that would not operate as a release by Leander of Allen’s debt to Leander. Anno. 87 A.L.R. 281.

There is a situation where, under some circumstances wherein a corporate act, which is ordinarily within the realm of Board of Directors’ powers, may be effected by (or by authority of) unanimous shareholder action. If, however, the other party to a corporate act is a director then the sine qua non of the ultimate effectiveness of such act vis-a-vis the corporation is affirmative pleading, proof, and finding of fairness of the transaction to the corporation. This is so even if the director owns all of the corporation’s shares then outstanding. Popperman v. Rest Haven Cemetery, Inc., 162 Tex. 25S, 345 S.W.2d 715. However, if there are any creditors of the corporation at the time, then the purported shareholder action will be considered a complete nullity. Aransas Pass Harbor Company v. Manning, 94 Tex. 558, 63 S.W. 627.

The answer to appellant garnishee’s third and fourth points, in summary, is that the Allen-Green contract does not even purport to relieve Allen of his debt to Leander or effect any assignment of it to Green.

IV.

Appellant’s sixth point is the error of the court in granting the abovementioned judgment because if the judgment is enforced, it will result in appellant having to pay the amount of the debit balance of his withdrawal account twice, once to Guy E. Green and once to appellee, contrary to the policy of the law in such cases.

We overrule this point.

As stated above, the Allen-Green contract did not even purport to effect any assignment by Leander to Green of Allen’s debt obligation to Leander. Here he is being sued on his debt, now due and mature. If he pays it he will be discharged. 27 Tex.Jur.2d 97, Garnishment, Sec. 140.

V.

Appellant garnishee’s seventh and eighth points, briefed together, are as follows:

SEVENTH POINT: The District Court erred in granting appellee judgment against appellant for $110,670.36 because appellee as a subsequent creditor could not set aside valid action by all the directors and all of the stockholders of Leander Limestone Corporation permitting appellant to withdraw funds advanced for his use by Guy E. Green through the medium of Whitestone Lime Company and Leander Limestone Corporation, or if such action was not authorized by said directors and stockholders in advance, same was acquiesced in by them with full knowledge of all the facts.

EIGHTH POINT: The District Court erred in granting appellee judgment against appellant for $110,670.36 because it amounts to giving a subsequent creditor preference as to division of corporation assets, all of which were previously pledged and mortgaged to other creditors, and which were insufficient as of the date of the judgment sued upon to pay all other creditors and such judgment in full, and the corporation has been rendered inactive thereby.

We overrule these points.

With respect to point of error number seven, our answer, set out in more detail above, to the contention that the funds Allen withdrew from Leander Limestone Corporation were not Leander’s funds but were funds which were advanced to garnishee by Green, will suffice here.

Appellant’s eighth point is apparently an attempt by a debtor to a corporation to avoid payment of his debt by attempting to invoke—in this case, for the first time on appeal — the theory that corporate assets are a so called “trust fund for the benefit of creditors.”

Appellant asserts here the factual conclusion that Leander is “insolvent,” that it is not now an “active” corporation, and then he claims that “all of the creditors are entitled to be parties to an action for distribution of its assets” and cites the Orr & Lindsley Shoe Company v. Thompson, 89 Tex. 501, 35 S.W. 473, hereinafter discussed, as authority for such claim.

Appellant’s eighth point is a defensive theory not pleaded in the trial court. 3 Tex.Jur.2d 634, Sec. 374.

Just as a defendant in a trespass to try title case cannot justify his withholding possession from the legal title holder by setting up equities of third persons, Pure Oil Co. v. Tunnell, 126 Tex. 57, 86 S.W.2d 207; 56 Tex.Jur.2d 152, Sec. 47, so also a debtor cannot justify his withholding payment of his debt by setting up equities between his creditor and third persons. See American Broadcasting-Paramount Theaters v. Frye, in the New York Court of Appeals, 8 N.Y.2d 232, 203 N.Y.S.2d 850, 168 N.E.2d 669. In an action by a creditor of a corporation against a debtor to such corporation (similar in substance to our garnishment procedure), the debtor contended as garnishee has here. In rejecting such contention, the court said, 168 N.E.2d at p. 671, col. 2, pt. 3:

“ * * * The possible rights of unknown creditors who failed to intervene do not affect the capacity of this creditor to sue or its right to seek reimbursement. * * * A possible recovery by a plaintiff of the full benefit of the statute to the exclusion of each of the other creditors similarly situated should not operate to defeat his right of action. * * * ”

Appellant-garnishee’s citation of Orr & Lindsley Shoe Co. v. Thompson, 89 Tex. 501, 35 S.W. 473 is not in point. The Orr case is one of many in Texas that have enunciated the so called “trust fund” doctrine, a doctrine that is designed for the benefit of creditors of, not debtors to, corporations.

We affirm the judgment of the trial court.

ARCHER, C. J., not participating.

      . “Art. 2310. [2146] [1483] Suit by or against
      When property within the limits of this State has been placed in the hands of a receiver who has taken charge of such property, such receiver may, in his official capacity, sue or be sued in any court of this State having jurisdiction of the cause of action, without leave of the court appointing him. If judgment is recovered against said receiver, the court shall order said judgment paid out of any funds in the hands of said receiver as such receiver. Id.”

      . R. K. Allen purchased certain lands in the Republic of Argentina as an investment, however further details on this venture are not pertinent here.


author: LANGDON, Justice.

text:
    Jerry BROWNLEE, City Manager, et al., Appellants, v. Pat KIRKWOOD, Appellee.
    No. 16674.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 29, 1965.

      S.G. Johndroe, Jr., City Atty., Jerome H. Parker, Jr., Asst. City Atty., Fort Worth, for appellants.
    Charles F. Baldwin, Fort Worth, for ap-pellee.
   LANGDON, Justice.

The appellee filed his original petition for injunction against defendants, Jerry Brown-lee, City Manager; Cato Hightower, Chief of Police; and Bayard Friedman, Mayor, all of the City of Fort Worth, complaining that these officials had “perpetrated”, “initiated” and “executed” a chain of events and “circumstances” expressly designed to harass plaintiff’s customers and “precipitate the ruination of plaintiff’s business.” Trial was to the court. After the plaintiff rested, the three named defendants moved the court to enter judgment on their behalf on the ground there was no evidence to support an injunction against them. The court on its own motion then directed the attorney for plaintiff to amend his pleadings so as to “make this a class action as to the police department.”

At the conclusion of the trial, the court made the following statement from the bench: “Now there is no evidence in this record that either the Mayor of the City of Fort Worth or the City Manager, or the Police Chief knew, ordered or condoned the actions of some of the individual police officers, so I am going to deny any injunction as to any of these three named city officials. * * * ” The court then entered judgment specifically denying the injunction against the City Manager, the Chief of Police and the Mayor of the City of Fort Worth individually and in their official capacities and granted the injunction against the police officers of the City of Fort Worth as a class, enjoining them from performing certain specified acts.

The court refused appellants’ request for findings of fact and conclusions of law and aside from the general recital in the judgment that the court had considered the pleadings and heard the evidence the record contains no reasons assigned by the court for issuance of the temporary injunction.

Rule 683, Texas Rules of Civil Procedure, specifically provides in part as follows: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance * *

The above quoted provision was taken verbatim from Rule 65(d) of the Federal Rules, and both the State and Federal Courts are unanimous in holding that these provisions are mandatory. Hodges v. State, 198 S.W.2d 150, (Austin Civ.App., 1946, no writ); Gonzalez v. Rodriguez, 250 S.W.2d 253 (San Antonio Civ.App., 1952, no writ); Rothermel v. Goodrich, 292 S.W.2d 882 (Beaumont Civ.App., 1956, no writ); Miller v. State, 305 S.W.2d 663 (Dallas Civ.App., 1957, no writ); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (Tex.Sup., 1953); City of Houston v. Rose, 361 S.W.2d 477 (Houston Civ.App., 1962, no writ), citing with approval Rothermel v. Goodrich, supra; McLean v. Employers Casualty Company, 381 S.W.2d 582 (Dallas Civ.App., 1964, no writ); Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957); Millers Mutual Fire Ins. Co. of Texas v. Eggleston, 357 S.W.2d 766 (Fort Worth Civ.App., 1962, no writ).

Section 1, Chapter XI of the Charter of the City of Fort Worth, provides that the Chief of Police shall have immediate direction and control of the Police Department, subject to the supervision of and to such rules, regulations and orders as the City Manager may prescribe, not inconsistent with the ordinances of the City, and shall promulgate all orders, rules and regulations for the government of the police force.

If individual officers did, in fact, violate the instructions and regulations issued by the Chief of the Police Department, such action was outside the scope of their employment. Having departed from the. scope of their employment, it cannot be said that they are members of a class with the remaining members of the Department. There can be no question of fact or law which is common with those acting outside the scope of their employment and the remaining members as expressly required by Rule 42(a), T. R. C. P. In the discharge of their duty of enforcing the law, the remaining members of the Police Department would be antagonistic to and have interests directly contrary to the interest of any police officer who performed an illegal or unauthorized act. Allred v. Heaton, 336 S.W. 2d 251 (Waco Civ.App., 1960, writ ref., n. r. e.).

Rule 42(a) states the general requirement that the persons suing or sued as representatives shall be such “as will fairly insure the adequate representation of all.” McDonald, Texas Civil Practice, Vol. 1, § 3.34, Class Actions, p. 276, and p. 277 of the same text, states: “The parties appearing as representatives must be members of the class, and a sufficient number to assure adequate representation must remain members throughout the litigation. They must have such interests as would support their joinder if all members of the class were named, but cannot have interests as to the subject matter of the suit which are antagonistic to the interests of the absent parties whom they purport to represent. There is no adequate representation when each member of the purported class is ‘free alternatively either to assert rights or to challenge them.’ * *

The record affirmatively shows that appellee failed to file with the clerk of the court a bond in the sum fixed by the judge, as required by Rule 684, T.R.C.P.

In Ex parte Coward, 110 Tex. 587, 222 S.W. 531 (1920), the Supreme Court reversed an order granting a temporary injunction which was issued without bond having been filed. The Court said: “Under the statute the giving of a bond is made a condition precedent to the issuance of an injunction. * * * The Judge was therefore without power to grant the injunction without requiring a bond from the plaintiff, and the injunction was accordingly void.” To the same effect see Johnson v. McMahan, 40 S.W.2d 920 (Amarillo Civ.App., 1931, writ ref.).

In Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956), which was decided under Rule 684, the Supreme Court reaffirmed the rule that an injunction issued without a bond having first been filed was void.

The judgment of the trial court is reversed and judgment here rendered that said injunction be dissolved.