text:
    James Edward COLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 36447.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.
    Rehearing Denied March 25, 1964.

      Rex Emerson, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by two previous convictions for felony theft, life.

The indictment alleged the theft of an automobile of the value of over $50 belonging to William Womack.

William Womack testified that he was the owner of a 1963 Ford automobile, 1962 Texas License VE 9598; a white Tudor Galaxie 500 Ford. The automobile disappeared from its carport at the apartment house where he lived during the evening and before 9:30 P.M. on January 29, 1963. He gave neither the appellant nor anyone else permission to take it. The automobile was recovered and returned to him by the police. The points and coil were replaced. The license plates were not changed.

Edward A. Garecki, another resident of the apartment house, testified that he saw three men open the hood of a 1963 Ford at the apartment house carports. This was a little after 7 P.M. on January 29, 1963. One of the men drove the 1963 Ford away. The other two left in a 1954 Ford Convertible. He pursued the latter for some distance without losing sight of it. During this chase the Ford Convertible ran a stop light and started to enter the La Porte Freeway headed in the wrong direction. It was brought to a stop after he blocked its way and he stayed there until officers arrived.

Patrolman Keith W. Bannon described the Convertible as a 1954 red with white top Ford Convertible, license number SP 6364. It had been abandoned when he arrived. He found three Oklahoma 1962 license plates in the trunk and automobile registration certificates, certificates of title and excise slips from the State of Oklahoma in the glove compartment.

Police Officer E. A. Schultea testified that on January 21, 1963, he saw the appellant driving a 1953 or 1954 Red Ford Convertible with a white top, License No. SP 6364. (That was some 8 days before Womack’s car was taken.) Appellant’s brother, Bobby Collins, was a passenger in the car.

Officer J. B. Bradley, who investigated the abandoned 1954 convertible, testified that after determining its ownership he talked to Bobby Collins and as a result of such conversation he found the stolen 1963 Ford, License VE 9598.

Police officers took latent fingerprints from the door of the stolen car. Officer H. H. Foster, fingerprint classifier for the Houston Police Department, compared and found one to be identical with the left thumb print and another with the left little finger print of Harry Arnold Langham.

The appellant’s confession made to Detective W. G. Sanders was introduced in evidence which reads in part:

“On Tuesday, January 29, 1963, I went to the Longshoremans Hall at 7800 Harrisburg, looking for work. I guess this was about 5:30 a. m. My brother Bobby Collins was with me. Bobby and I went inside the hall and was standing there and Harry Arnold Langham walked up to me and asked me if I remembered him. I told him yes. We couldn’t get any work so I took Langham to my folks’ house to get him something to eat. While we were at my folks’ house Langham told me that he had some stuff he needed to pick up in Galveston. Bobby and I took Langham to Galveston and picked up his clothes and then brought Langham back to Houston.

“We got back to Houston and went to the Pick Up Ice House on Lyons where we played pool until about 6:00 p. m. that night. While we were there Langham got to talking to a heavy set guy about some cars. After Langham finished talking to this man he walked over to me and told me that this man had told him that he would give him some money for a 1963 Ford and one of the blank titles. We got to talking about this deal and decided to let Bobby drive the car away because he had never been in trouble before. We left the Ice House and drove over to some apartments off of the La Porte Freeway to see a friend of Bobby’s about work, and that’s when we spotted a 1963 Ford parked in the driveway. We were parked about a hundred feet from the 1963 Ford in my 1954 Ford convertible. We got out and Bobby walked over to the 1963 Ford and got into the driver’s seat and I went around to the front of the Ford and opened the hood and started the motor with an short piece of wire, during this time Langham was standing beside me looking on. After the motor started I closed the hood and Bobby drove off in the 1963 Ford, to take it to a school house on Sheldon Road where we were going to meet him and the man who was going to pay us for the car.

“Langham and — (I)—then walked back to my car and got in it and started to drive off when we noticed another man get into his car. I drove around a few blocks and decided that this other man was following us so we got scared and tried to lose him, but when I got on the freeway my car went dead and we had to jump out of the car and had to leave on foot.”

The appellant did not testify and no witnesses were called in his behalf.

The prior convictions alleged in the indictment were established in the manner approved by this Court in Mackie v. State, Tex.Cr.App., 367 S.W.2d 697; Reyes v. State, Tex.Cr.App., 363 S.W.2d 450; and Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154.

While Deputy District Clerk Lawrence was testifying regarding the records of such convictions, he was asked on cross-examination whether a writ of habeas corpus issued from any court subsequent to the judgment would be indicated in the records of the Criminal District Court. Appellant’s first claim of error is directed to the court’s remark after the state’s objection had been sustained and appellant’s counsel was about to rephrase the question—“Any habeas corpus—-if there’s no appeal taken from this judgment, that suffices the allegation.”

Appellant excepted to the court’s statement and the trial judge instructed the jury not to consider it for any purpose.

We find nothing in the court’s remark which was a benefit to the state or injurious to the appellant. To constitute reversible error the comment of the court in violation of Art. 707, C.C.P must be such that it is reasonably calculated to prejudice the defendant’s rights. Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121; Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245.

Appellant’s second complaint relates to the state’s proof to sustain the allegation of the indictment that the 1963 Ford was of the value of over $50.

The owner testified that its value was “about $3,000.00” * * * “around $3,000.00,” and upon inquiry by the court he testified: “The Court: Do you know the value, the approximate value of it? “A. (By Witness) Yes, sir. $3,000.00.”

The appellant complains that he was damaged materially by the court taking a hand to prove the value, as well as by the admission of the evidence.

The witness testified that he had owned the 1963 Ford Galaxie about two and a half months; that he paid $3,000.00 for it— “plus or minus $50.”; that he had approximately 4000 miles on it; that it was in good condition and it had not varied materially from the time he purchased it.

The state’s burden being only to prove that the automobile was of the value of $50 or more, we overrule the contention that the appellant was damaged materially by the court’s action and ruling on the evidence mentioned.

Appellant’s third complaint is addressed to the interrogation of Police Officer J. C. Bankston when he was asked whether he had occasion to participate in the investigation of a “stolen 1963 Ford Galaxie coach, license number VE 9598.”

The objection, which was overruled, was to the use of the word “stolen”.

At the time Officer Bankston was being interrogated it had been shown by the evidence that the automobile referred to in the question had been taken and had been recovered with the coil burned up. Officer Bankston was the criminal investigator called by other officers to look over the car for fingerprints.

If there was error in the use of the word “stolen” the record shows that it was not harmful to the appellant.

The remaining ground for reversal relates to the admission of the testimony of Patrolman Bannon that he recovered three license plates in the trunk of the 1954 Ford and blank registration certificates, certificates of title and excise slips from the State of Oklahoma, in the glove compartment of said 1954 Ford.

We see no error in the admission of this evidence obtained in a search of the abandoned car which the appellant had been seen driving.

It is well established that when the state proves that a crime has been committed, the identity of the defendant may rest alone upon his confession. Smith v. State, 172 Tex.Cr.R. 554, 361 S.W.2d 390, and cases cited.

The court, in his charge, instructed the jury on the law of principals.

There are no formal bills of exception or bills relating to the court’s charge.

The evidence is sufficient to sustain the conviction of the appellant as a principal in the theft of the automobile and to sustain the life sentence adjudged and pronounced upon the jury’s verdict finding the defendant guilty and that he was the same person twice previously convicted of felonies less than capital.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

license: Public Domain

text:
    Alexander G. KASPAR, Appellant, v. The STATE of Texas, Appellee.
    No. 36422.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1964.
    Rehearing Denied March 11, 1964.
    Charles W. Tessmer, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Wright, Sam Paternostro and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court without a jury, the appellant was convicted of driving while intoxicated and his punishment was assessed at three days in jail and a fine of $125.00.

The testimony of the state and that of the appellant shows that appellant was driving an automobile upon a public highway at the time and place alleged, and after failing to observe a stop sign, the appellant upon a signal from the officers stopped his automobile.

Two officers testified that appellant’s automobile was weaving as he drove it along the highway, and that after he stopped they observed that his face was flushed, he was weaving and unsteady on his feet, and had the odor of intoxicants on his breath, and each expressed the opinion that he was intoxicated.

Testifying in his own behalf, the appellant stated that he had four or five drinks between 10:30 p. m. and 2:30 a. m. before his arrest about 3 a. m., and that he was tired and sleepy but he denied that he was staggering or intoxicated. Two witnesses who had been with the appellant before his arrest testified that he had been drinking but was not intoxicated.

Appellant contends that the trial court erred in overruling his motion to quash the complaint and information on the ground that the complaint was not filed anterior to the filing of the information as they both bear the same filing date.

The complaint and information contained in the transcript show that they were filed on the same day, December 26, 1962. No evidence appears in the record in support of the motion to quash. In the absence of evidence to the contrary it will be presumed that the complaint was filed before the information. Byers v. State, 158 Tex.Cr.R. 638, 259 S.W.2d 193; Snyder v. State, 168 Tex.Cr.R. 482, 329 S.W.2d 292.

The overruling of appellant’s motion to quash the complaint and information was not error.

It is insisted that the trial court erred in denying appellant’s motion that the court make and file findings of fact and conclusions of law.

This procedure in criminal cases is not authorized by the law of this state. Therefore the denial of the motion was not error.

Appellant contends that the trial court certified error in the formal bill of exception. To support his contention he relies on the recitation in the bill “that in fact there was no credible evidence to establish the fact that the defendant was under the influence of intoxicating liquor to such an extent he lost the normal use of his mental and bodily faculties.”

The qualification of the bill states: “The court does not certify that the matters complained of * * * constituted error but only that same is the contention of the defendant.” No direct attack was made on the credibility of the witnesses for the state. Appellant testified that he had four or five drinks of Scotch Whiskey before his arrest while driving an automobile. The judgment states that the court heard evidence and adjudges that “while under the influence of intoxicating liquor” the appellant drove a motor vehicle upon a public road in Dallas County.

From a consideration of the record before us, it is concluded that the trial court has not certified error in the bill which is binding upon this court. Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The appellant complains of our disposition of his bill of exception in which he contends that the trial judge certified error.

In addition to what was stated in our original opinion, we point out that the bill of exception recites “This Bill of Exception complains of the action of the trial court in overruling Defendant’s Motion for Findings and Conclusions of Law.” The claimed certification of error related to such complaint and the claimed harm resulting from said ruling.

Appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Morris O. HUSE, Appellant, v. The STATE of Texas, Appellee.
    No. 36504.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice; the punishment, five years.

Our prior opinion is withdrawn and the following substituted in lieu thereof.

The record on appeal contains no statement of facts or bills of exception. Our attention has been called to a discrepancy in the judgment. The verdict found appellant guilty of murder without malice, as did the concluding portion of the judgment. The sentence is for murder without malice. That portion of the judgment which recited the jury’s verdict is reformed to read, “We, the jury, find defendant Morris O. Huse guilty of murder without malice.”

As reformed, the judgment is affirmed.


author: SELLERS, Justice.

text:
    Walter A. FERGUSON, Relator, v. Fred MARLOWE et al., Respondents.
    No. 72.
    Court of Civil Appeals of Texas. Tyler.
    March 5, 1964.
    Bob M. Lloyd, Henderson, for relator.
    No counsel for respondents.
   SELLERS, Justice.

This application for permission to file an application for a writ of mandamus was granted and argument heard in this court. The application is by relator to have his name placed upon the official ballot for the office of Representative in the district composed of Panola and Rusk Counties. The application to the Executive Committee of Panola County was in due form. The County Executive Committee refused to certify the relator’s name as a candidate for the office. Respondents made no answer to the application for mandamus in this court.

This application for a mandamus is in all respects the same as that in the case of Ramsey v. Marlowe, et al., Tex.Civ.App., 376 S.W.2d 438, and the opinion of Justice Moore is adopted in this case.

The writ of mandamus will be granted.


author: BARROW, Justice.

text:
    C. E. BOUQUET, Appellant, v. Pearl BELK, Appellee.
    No. 14206.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1964.
    Gerald S. Gordon, Houston, for appellant.
    Day, Dio & Fields, Port Lavaca, for ap-pellee.
   BARROW, Justice.

This is a partition suit. It is stipulated that appellant, C. E. Bouquet, owns a 5/6th interest, and appellee, Pearl Belk, a l/6th interest in an undivided ten-acre tract of land located at the intersection of State Highway 238 and Alcoa Drive, about one mile south of Port Lavaca, Texas. After a non-jury trial, the court found that the property was susceptible of partition in kind and that appellee had an equitable interest in the corner created by the intersection. The trial court further found that it was not necessary to appoint commissioners, and awarded appellee 0.657 acres of land out of the ten-acre tract, subject to an owelty of $2,500. The remainder of the tract was awarded to appellant.

Appellant perfected this appeal and asserts (1) the court erred in determining that the property is susceptible of partir tion in kind; (2) the court erred in parr titioning the property without appointing commissioners as required by the Rules of Civil Procedure; (3) the court erred in awarding the specific tract to appellee subject to owelty; (4) the court erred in determining that appellee had an equitable interest in a specific part of the tract; and (5) the court erred in denying appellant an accounting of rentals due by ap-pellee.

Appellant brought this suit and alleged that the tract was not susceptible of partition in kind and prayed for appointment of a receiver to sell the tract. Appellee urged that the property could be fairly and equitably partitioned and prayed for a partition in kind as provided by law. Appellee asserts that she had operated a tavern on the corner of the tract for several years, and that although the lease under which she operated permitted her to remove the improvements at the expiration of her lease, this could not be done without their destruction.

The primary controversy between the parties is over this corner, which unquestionably is the most valuable part of the tract. Appellant urged that because of its great value, the property could not be partitioned in kind. The trial court’s finding that the property is susceptible of partition in kind is fully supported by testimony of expert witnesses, Bill Sames, Mrs. Lois De Shazor and B. I. Lempert.

It ? is our opinion, however, that the judgment must be reversed because of the failure of the trial court to appoint commissioners to make a partition as required by Rule 761, T.R.C.P., which superseded Art. 6087, Vernon’s Ann.Civ. Stats. This rule provides in part that if the trial court determines that the property, or any part thereof, is susceptible of partition, “then the court for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate, * * * and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law, a majority of which commissioners may act.” (Emphasis-ours.)

We have been unable to find any authority to permit the trial court to disregard the mandatory requirement of this rule to appoint commissioners to partition the land. Appellee urges that the trial court has the power to do so under equitable principles. Both parties plead for general relief at law and in equity.

It is settled that a partition suit does not proceed independently of the rules of equity. In Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290, the Court said: “A partition suit, therefore, under the statute is not strictly a proceeding at law, for it is governed by the rules of equity in all things not expressly provided for in the statute. Furthermore, procedure under the statute is not obligatory. The court may administer relief upon the principles of equity without the aid of the statute.” See also, Rule 776, T.R.C.P; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; O’Connor v. Delk, Tex.Civ.App., 249 S.W.2d 248; Burton v. Williams, Tex.Civ.App., 195 S.W.2d 245.

In none of these cases is there authority for the trial court to partition the tract without appointing commissioners. Rather, it is recognized that the trial court is authorized to instruct or direct the commissioners to make partition in such manner as will adjust the equities as found by the trial court. These directions, if necessary and appropriate, are properly given at the time of the entry of the first order or judgment in the partition suit. Mansfield v. Davenport, Tex.Civ.App., 362 S.W.2d 912; Marmion v. Wells, Tex.Civ.App., 246 S.W.2d 704, writ refused.

The court may take into consideration the improvements made by one of the co-owners and, if it can be fairly done, divide the property so as to give the improvements to the party who made them. Moore v. Blagge, 91 Tex. 151, 38 S.W. 979; White v. Mitchell, 60 Tex. 164; Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 474; Sparks v. Robertson, Tex.Civ.App., 203 S.W.2d 622, writ ref.; Burton v. Williams, supra.

It is also well recognized that in partition proceedings, the court may, if necessary, divide the property into shares of unequal value and adjust the difference by owelty. Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164.

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


author: ARCHER, Chief Justice.

text:
    V. W. CARLTON, Jr., Appellant, v. HOUSTON AGRICULTURAL CREDIT CORPORATION, Appellee.
    No. 11157.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1964.
    Rehearing Denied March 18, 1964.

      Hutson & Cauthan, P. H. Cauthan, Jr., A. J. Hutson, Jr., Groveton, for appellant.
    Price, Guinn, Veltmann & Skelton, Houston, for appellee.
   ARCHER, Chief Justice.

This is an appeal from an order of the Eleventh District Court of Harris County, Texas, overruling the plea of privilege of the appellant, V. W. Carlton, Jr. Suit was brought by appellee, Houston Agricultural Credit Corporation, on an indebtedness of $59,824.32, by virtue of eighteen (18) promissory notes executed by V. W. Carlton and wife, Aileen Ruth Carlton, all payable to appellee in Houston, Harris County, Texas, the county of suit, against Aileen Ruth Carlton, individually and as community survivor of the estate of herself and V. W. Carlton, deceased, and against her in such capacities, and also V. W. Carlton, Jr., for the foreclosure of seven (7) recorded chattel mortgages on various cows, cattle and other livestock described therein securing said notes, and for foreclosure of a deed of trust given by V. W. Carlton and wife, Aileen Ruth Carlton on 910 acres of land in Trinity County, Texas, securing said indebtedness, and as an incident to its foreclosure action, to set aside certain alleged conveyances as having been made in fraud of creditors, of which Houston Agricultural Credit Corporation was one.

The trial was had before the court on April 29, 1963 and judgment overruling said plea of privilege of appellant was entered on May 13, 1963. No findings of fact or conclusions of law were filed in the cause.

The appeal is predicated on four points assigned as error by the court in overruling appellant’s motion to dismiss the controverting affidavit of appellee and in overruling the plea of privilege; because the controverting affidavit lacked the essential fact of verification; because the pleadings and the evidence show that appellee’s cause of action to foreclose its deed of trust is a suit to remove an incumbrance upon the title to land in Trinity County, Texas, and such cause falls within the provisions of Section 14, Article 1995; and because ap-pellee’s cause of action seeking to establish and foreclose a “creditor’s lien” upon all land conveyed to appellant, appellant is not a necessary party under the provisions of Section 29a, Article 1995.

Appellee takes a position that appellant waived his plea of privilege by filing, subsequent to the filing of the plea, his motion of V. W. Carlton, Jr. to quash commission to take deposition, invoking the general jurisdiction of the trial court to give him affirmative relief, not related to the plea of privilege; that the provisions of Rule 87, Texas Rules of Civil Procedure, is directory, and failure to have a prompt determination did not as a matter of law constitute a waiver of plaintiff’s right to contest the plea of privilege; that the court did not abuse his discretion in overruling defendant’s motion to dismiss the controverting affidavit and in hearing and in overruling the same; that appellee’s original controverting affidavit was amendable, and such amendment related back to the original filing and superseded the prior filed controverting affidavit; such amended affidavit was properly verified and in proper form; venue is in the county of suit under Section 5, Article 1995, as to the signers of the notes, and V. W. Carlton, Jr. is a necessary party to the foreclosure under Section 29a in that he is an heir of V. W. Carlton, deceased and V. W. Carlton, Jr. claims title under a deed from his father and mother covering the lands previously mortgaged to appellee and that since no findings of fact or conclusions of law were filed and made, the judgment should be affirmed on any grounds that support it, upon any theory in the case and every issue is to be resolved in support of the judgment.

We do not believe that appellant waived his plea of privilege by filing, subsequent to the filing of said plea, his motion to quash commission to take deposition which was filed May 27, 1961, in which the statement “having heretofore filed his plea of privilege” on March 11, 1963, appellant filed his motion “subject to his plea of privilege heretofore filed herein” to dismiss and strike the controverting affidavit by plaintiff for want of prosecution.

We believe that the controverting affidavit could be and was properly amended and the court was justified in considering such amended affidavit and also properly overruled the plea of privilege. 43-B Tex. Jur., Sec. 140, Pages 348-350; Continental Fire & Casualty Insurance Corporation v. Whitlock, Tex.Civ.App., 215 S.W.2d 657; Texan Meat Company v. Bob Inness Co., Tex.Civ.App., 308 S.W.2d 956, no writ history.

The original controverting affidavit was filed on June 7, 1961. After appellee had taken the depositions of V. W. Carlton, Jr. and Mrs. Aileen Ruth Carlton, it filed its First Amended Original Petition on April 12, 1963, and on the same day filed its amended controverting affidavit incorporating by reference its amended original petition and attached a comprehensive affidavit made by its president and no complaint is directed to such as to its contents.

Venue in this case is in Harris ■County, the suit having been filed therein -under Section 5 of Article 1995, as to Aileen Ruth Carlton, individually and as •community survivor of the estate of herself and V. W. Carlton, deceased, in connection with a series of notes payable to appellee in Harris County. V. W. Carlton, Jr. is a necessary party to the foreclosure suit under Section 29a, in that he is the owner as heir of his father, deceased, of the livestock described in the chattel mortgages, all executed by V. W. Carlton, and V. W. Carlton, Jr. is a necessary party because he claims title under a deed from V. W. Carlton and wife, covering lands previously mortgaged to appellee.

The suit was to foreclose certain chattel mortgages on certain livestock as described therein and to foreclose a deed of trust.

V. W. Carlton died on June 14, 1962, after the original petition had been filed intestate, and left as his sole surviving heirs his wife and his son, V. W. Carlton, who therefore owns an interest in the livestock, some of which were in the possession of V. W. Carlton, Jr., who testified that he knew the cattle were mortgaged to the corporation.

As we have previously stated V. W. Carlton, Jr. was claiming title to certain lands under a deed executed by V. W. Carlton and wife, Aileen Ruth Carlton, dated December 8, 1960, and is a necessary party to this suit. Section 5, Article 1995, V.A. C.S. Section 29a, Article 1995, V.A.C.S.

Pioneer Building & Loan Ass’n v. Gray et al, 132 Tex. 509, 125 S.W.2d 284, (Tex.Com.App., Sec. A, opinion adopted by the Supreme Court) is a landmark case on venue questions of necessary parties. We do not deem it essential to copy from this opinion its holding. Skinner v. Alice Pipe & Supply Co., Tex.Civ.App., 251 S.W.2d 752; Brewster v. Union State Bank, Tex. Civ.App., 347 S.W.2d 634; Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107, Supreme Court.

Appellant cites and relies on the case of Carlton v. Newton, Tex.Civ.App., 44 S.W.2d 475.

In Bennett v. Langdeau, 362 S.W.2d 952, the Supreme Court held that the holding in Carlton v. Newton was unsound in principle.

In this instant case appellant asserts that he did not know of appellee’s unrecorded deed of trust hut the trial court overruled the plea of privilege and no findings of fact or conclusions of law were filed and there is an implied finding in support of the judgment that appellant did have actual notice of appellee’s unrecorded deed of trust.

Appellant’s father, V. W. Carlton, had been a borrower from appellee since 1948 and until 1959 had been prompt in his payments but after that he sold off all of his cattle which had been mortgaged to appellee except a few herd without appellee’s consent and appellant helped to haul some of the cattle to an auction ring.

V. W. Carlton and wife deeded 910 acres to V. W. Carlton, Jr. and in so doing, together with the sale of the cattle, attempted to divest himself of all security for the debt to appellee.

Carol Frost, vice-president of appellee corporation, testified that at a conference between V. W. Carlton, Sr. in 1961 that V. W. Carlton, Sr. said:

“A ‘I have disposed of the cattle and deeded the land to my son, and I am not scared of going to the penitentiary; I have discussed all of this with my family. They know all about it; I have made by peace with them. I AM READY TO TAKE ANYTHING YOU CAN GIVE ME.’
“Q Did you say whether he had any property of any kind left?
“A He said he didn’t have anything left. . . We asked him why he did not bring his son (V. W. Carlton, Jr.) with him. He said T don’t have to. I can act for him. He acts for me. WE KNOW EACH OTHER’S BUSINESS.’
“Q Did he tell you his son knew all about his business?
“A Yes.”

Mrs. Carlton testified that she thought that the deed of trust had been paid off and that her son thought so too.

This being an appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319, Supreme Court.

The basic suit of appellee was one for judgment on the 18 promissory notes payable to appellee in Harris County and for foreclosure of certain chattel mortgages on certain cattle and a foreclosure of a deed of trust on 910 acres of land and as an incident to the foreclosure action to set aside the deed of conveyance as being in fraud of creditors, and to establish and foreclose a creditor’s lien on such property.

V. W. Carlton, Jr. is a necessary party to this suit in order that the chattel mortgages could be foreclosed on against him as well as against his mother in the capacities mentioned and in order that a foreclosure could be had on the lands claimed by appellant in order to give appellee full relief.

Appellee does not claim any right, title or interest in the property other than a lien, and this type of action is not governed by exception 14, of Art. 1995.

The Supreme Court of Texas in Douglas v. First National Bank of El Dorado, 120 Tex. 631, 40 S.W.2d 801 (1931), opinion by Justice Greenwood, held that:

“There can be no doubt of the right of a creditor of an estate to enforce a specific lien on land which a deceased debtor has conveyed by a deed void for fraud as to such creditor, as against the fraudulent vendee and the administrator and heirs to the debtor’s estate. While title passes to the vendee in the fraudulent conveyance, as against the debtor and his estate, and such vendee would receive any excess in the value of the property conveyed over the debts chargeable against same, nevertheless, as to the defrauded creditor, the conveyance is void, and is denied any effect as prejudicing the lien of the creditor. * * * »

The judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Justice. HUGHES, Justice

text:
    Arthur S. DORAN, individually and as Next Friend for Phillip Doran, Appellant, v. Marsha Lynn EATON et al., Appellees.
    No. 11155.
    Court of Civil Appeals of Texas. Austin.
    Feb. 26, 1964.
    Rehearing Denied March 18, 1964.
    Bates & Brock, David J. Nagle, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.
   PHILLIPS, Justice.

This cause of action arose out of an automobile-pedestrian accident in which Phillip Doran, a minor 8i/¿ years old at the time of the accident, was struck by an automobile driven by Marsha Lynn Eaton, also a minor 15 years 8 months old at the time of the accident. The automobile that Marsha Lynn Eaton was driving at the time was owned by Mrs. Pat Billingsley. Suit against the driver of the car and the owner thereof was brought by Arthur Doran, individually and as next friend for his son, Phillip. R. T. Eaton, Jr., father of the driver, was appointed by the court as guardian ad litem for his minor daughter, Marsha Lynn Eaton. Mrs. Billingsley’s husband, Mr. William H. Billingsley, was joined as a defendant.

After the plaintiff had presented his case, the trial court granted an interlocutory order and judgment, severing plaintiff’s cause against Mrs. Billingsley, the owner of the •car, and her husband and ordered that plaintiff take nothing as to these defendants.

The jury returned findings that both the pedestrian plaintiff and driver defendant of the car were negligent and that the negligence of each was the proximate cause of the accident. On this verdict the court entered judgment that plaintiff take nothing. From this judgment plaintiff has duly perfected his appeal to this Court.

The judgment of the trial court is affirmed.

Because of the number of parties involved, the parties will be referred to in this opinion by their position in the court below or by their proper names.

We will consider plaintiff’s points of error two through six first as they are grouped together and because together they raise the issues of contributory negligence, which issues determine this case. These points are that the trial court erred in overruling plaintiff’s motion for judgment non obstante veredicto, that there was either no evidence or insufficient evidence to support the issues that the minor plaintiff failed to keep a proper lookout and the issues as to proximate cause relating to each issue as to proper lookout.

The accident in question occurred on a bridge on Buffalo Speedway in Houston, Harris County, Texas, between 3:30 and 4 P.M. on a bright, clear afternoon. Buffalo Speedway extends north and south, consists of two traffic lanes running north and two running south divided by an esplanade. The speedway is straight and level and there are no obstructions near the part of the speedway in question to obstruct one’s vision in any direction. Just before the accident, the minor plaintiff was located on the east edge of a bridge on the speedway. There was another minor boy with him. A third minor boy was located on the west side along the edge of the bridge. The defendant driver, Marsha Eaton, was proceeding south in Mrs. Billingsley’s car at what the evidence shows to be approximately twenty miles an hour. The minor boy who had been with the plaintiff on the east side of the speedway and on the edge of the bridge, ran across the speedway over to the minor who was located on the west side of the speedway and the plaintiff followed at a run some six feet behind him. Before plaintiff had run across the southbound lanes, he was struck by the car driven by defendant Marsha Eaton.

At the time of the accident there was an auto driven by a Mrs. Neyland headed north on the speedway. Mrs. Neyland saw the accident. Mrs. Neyland stopped immediately and rendered aid to the fallen plaintiff until help arrived. Mrs. Neyland testified that she had seen the auto driven by the defendant Eaton from the time that it had turned onto the speedway some two blocks north of the bridge where the accident occurred. There were no other autos close to the scene of the accident.

Plaintiff contends that any findings of his failure to keep a proper lookout must be set aside as there was no direct evidence that he so failed to keep a proper lookout. We cannot agree with this contention and the cases cited by the plaintiff do not so hold.

Kelly v. Hamm, Tex.Civ.App., 337 S.W.2d 608, writ ref. n. r. e., cited by plaintiff does not support plaintiff’s contention but holds that even where the jury had found that minor plaintiff had failed to keep a proper lookout, the preponderance of the evidence was that he had kept a proper lookout. The court noted that there was no direct evidence that he had not kept a proper lookout and reversed and remanded the case for a new trial.

In Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, writ refused, a minor was struck while crossing a street. The minor did not testify but her mother was allowed to testify that the child had stated that she had not seen the truck coming. There were two other witnesses to the accident but they could not say whether or not the child had stopped before crossing or had failed to look in both directions before attempting to cross. Even so, the jury found that (issue 9) the child failed to stop before attempting to cross, failed (issue 10) to keep a lookout for defendant’s truck; and (issue 11) failed to look in both directions before attempting to cross. The court in concerning itself only with the failure of the child to keep a proper lookout stated:

“The law very clearly imposes upon each and every person proceeding along or across a public highway or street the duty of maintaining a ‘proper lookout’ for his own safety, the term importing such lookout as a person of ordinary prudence would have kept under the same or similar circumstances; in the case at bar and court charge the jury being further instructed that ordinary care when referring to plaintiff ‘means that degree of care which would be used by a person of ordinary prudence, of Donnie Faye Blunt’s age, experience, capacity, intelligence and discretion * * ”

In affirming the jury’s finding that the minor had failed to keep a proper lookout the court stated the law as follows:

“Otherwise stated, defensive issue No. 10, on lookout, presenting, as it does, the question of whether a reasonably prudent child of plaintiff’s age, experience, capacity, intelligence and education would have acted differently under the same or similar circumstances, was for determination by the jury; and the court’s judgment in consequence of findings adverse to a recovery must be affirmed.”

In Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, the Texas Supreme Court held that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. That the jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it.

The issue on lookout presented to the jury in the case at bar was framed substantially as that in the Blunt case, above, and the jury had evidence of probative value from the facts and circumstances proven and the reasonable inferences and deductions drawn therefrom to find that the plaintiff had failed to keep a proper lookout.

Plaintiff assigns error to the trial court in entering an interlocutory take nothing judgment in favor of defendants Mrs. Pat Billingsley, the owner of the car, and her husband. Plaintiff contends that the defendant driver of the car, Miss Eaton, had a nearsighted eye condition for which she had to wear prescription glasses, that she had special sun glasses to correct this nearsightedness, that it was necessary to wear glasses while driving, that defendant Bill-ingsley knew that defendant driver Miss. Eaton had to wear glasses to see well at a distance, that defendant Billingsley never cautioned defendant driver Eaton to wear her glasses while driving their car, that this was negligence and the proximate cause of the accident. There is evidence that defendant Eaton was trying to put on her glasses at the time of the accident and had not seen the minor plaintiff.

Due to the fact that the jury found the minor plaintiff to have been contribu-torily negligent, it is not necessary for the purpose of this opinion to decide whether or not the plaintiff’s pleadings and the evidence adduced at the trial were sufficient to raise the issue of negligent entrustment. Contributory negligence is a defense to negligent entrustment. Webb v. Karsten, Tex.Civ.App., 308 S.W.2d 114, Hardage v. Rouly, Tex.Civ.App., 349 S.W.2d 616, writ ref. n. r. e.

Plaintiff assigns error to the jury’s finding that plaintiff had incurred $1,000.00 in damages for mental pain and anguish plus $1,635.25 for medical and hospital bills and that such finding was manifestly inadequate and unjust. Again we point out that the finding of contributory negligence on the part of the minor plaintiff is a bar to damages, thus we need not consider whether the awards were inadequate. Southern Pine Lumber Company v. Andrade, Tex.Com.App., 132 Tex. 372, 124 S.W.2d 334, opinion adopted by Supreme Court.

Plaintiff maintains that the trial court erred in failing to grant a new trial because of jury misconduct when Juror Stephens and other members of the jury openly agreed that Juror Stephens would vote for $1,000.00 damages in answer to special issue No. 11 in return for other jurors answering “we do” to special issues 8 and 9 or the issues on contributory negligence.

The trial court held a hearing on plaintiff’s motion for new trial and testimony was taken. Plaintiff contends that the evidence given by Jurors Kebodeaux, Gilbert and Carmichael was such that the case should be remanded for new trial. We cannot agree.

Juror Kebodeaux when asked about his discussion with Juror Stephens concerning his vote answered:

“Yes, sir. We voted eleven to one on the amount in the settlement, and Mr. Stephens was the one individual that voted differently. He said that he would not change his mind unless we agreed to change ours on this other issue; that the child was partly in fault. The rest of us compromised then, and speaking for myself I personally compromised in that one issue, not knowing the end results, what it would be.”

Juror Gilbert stated:

“Well, he indicated by his talk to me that he thought no child, any child, should be out on the street, and if they should be injured, while they were on the street, they should not be entitled to collect damages.”

Juror Carmichael testified as follows:

“Immediately after we got in the deliberation room, we were confronted with the opinion of this Mr. Stephens that he felt that the child had no right as a child to be confronted, actually, in court, that he had no right as a child to be in court on behalf of this accident.”

Jurors Kebodeaux, Gilbert and Carmichael further testified to changing their vote on the questions of proper lookout on the part of the plaintiff and the related issue of proximate cause in turn for Juror Stephens changing his vote on the damage issues and agreeing to vote for the amount of damages found.

Juror Stephens categorically denied the above mentioned charges and Juror Anderson, the foreman, also denied that any misconduct occurred.

At the conclusion of the testimony on this motion, the trial court denied the motion. There are no findings of fact or conclusions of law before us so all reasonable intendments must be resolved in favor of the judgment. We hold that there was sufficient evidence for the trial court to have ruled as he did.

From the statements quoted above it was just as reasonable for the trial judge to have concluded that Juror Stephens had very strong convictions concerning the contributory negligence on the part of the plaintiff because of his conduct on the particular day and in the particular place that the accident occurred, as it would have been for him to have concluded, as urged by plaintiff, that Juror Stephens was opposed to any child collecting damages from any accident such as this. The former view would have been a reasonable conclusion to be drawn from the facts presented at the trial, the latter would have been an unreasonable bias. As to any trading that may have occurred, there was conflicting testimony and the trial court found that there had been no misconduct in this regard. The trial court has the same latitude in passing upon the evidence offered on the hearing on a motion for new trial as to the credibility of the witnesses and of the weight to be given their testimony, as a jury has with regard to witnesses heard upon the original trial. Bradley v. Texas & P. Ry. Co., Tex.Com.App., 1 S.W.2d 861, opinion adopted by Supreme Court.

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

A Trial Judge in granting or refusing a motion for a new trial exercises judicial discretion. 41 Tex.Jur.2d, New Trial, Sec. 106, p. 255. It is my opinion that the Trial Judge improperly exercised his discretion in denying appellant a new trial based on the misconduct of juror, Thomas N. Stephens.

Rule 327, Texas Rules of Civil Procedure, provides, in part, that one ground for a motion for a new trial is that “a juror gave an erroneous or incorrect answer on voir dire examination.”

Sec. 4 of Art. 2134, Vernon’s Ann.Civ.St., provides that, “Any person who has a bias or prejudice in favor of or against either of the parties” is disqualified to sit as a juror. In construing this statute the Supreme Court in Compton v. Henrie, 364 S.W.2d 179, stated:

“Had it been established that Fugate was biased or prejudiced against this type of suit, Fugate would be disqualified from serving on this jury. It is well settled in this state that the statutory disqualification of bias or prejudice extends not only to the litigant personally, but to the subject matter of the litigation as well. * * * In cases involving juror disqualification the Complainant need not establish that probable injury resulted therefrom before a new trial may be granted.”

It is my opinion that juror Stephens violated Rule 327 in the particular above noted and that he was disqualified under Sec. 4 of Art. 2134, such violation and disqualification being shown by the overwhelming weight and preponderance of the testimony and that a presumed contrary finding by the Trial Judge is clearly wrong, manifestly unjust and an abuse of judicial discretion.

Juror, Mr. Donald Keith Kebodeaux, testified on the new trial hearing:

“Q * * * Well, first of all, let me ask you about the time when I questioned you before you got into the jury room and were selected on the Jury.
“Did you hear me ask whether any of the jurors had a bias or prejudice against the type of case where a child had been injured by a car while the child was on the street ?
“A There didn’t seem to be any prejudice at the time.
“Q Well, my question was, though, sir: Did you hear me ask that question of all the jurors?
“A Yes, sir; I did hear you ask those questions.
“Q At the time, although there was no reporter to take it down, did any juror answer that he did have a preconceived idea about the way the parties’ rights ought to be straightened out?
"A No.
“Q There wasn’t anybody who answered ?
"A Right.
“Q Now, when you got into the jury room, Mr. Kebodeaux, did any of tlie jurors make a statement that no child on any street who was injured had a right to recover damages?
“A Yes, sir.
“Q Can you tell me, if you know, the name of that juror?
“A That was Mr. Stephens.
* * * * * *
“Q Did you hear Juror Stephens make a statement as to whether or not any child should recover any damages if they were injured while on a street ?
“A Yes, sir; I did.
“Q Can you tell me what statement you heard him make?
“A Mr. Stephens stated that any child on the street was responsible for being on the street and that they shouldn’t collect any damages at all. He stated — he meant any child on any street.
“Q Is this the way you took his statement to mean?
“A Yes, sir.
* * * * * *
“THE COURT: Yes, sir. What he [Stephens] did or what he said.
“THE WITNESS: Well, he stated soon after he got in the jury room that he felt the child shouldn’t collect any damages because of the previous statement that I made, that any child on the street was responsible; that children shouldn’t be on the street at all.
******
“Q Can you tell me generally what the vote was on all of the issues and how you were divided in the jury room in terms of numbers?
“A It was about eleven to one, with the exception of one vote, which was ten to two, I believe.
“Q And who was the one vote that was—
“A Mr. Stephens.
“Q In all of the deliberations except on one issue, it was eleven to one ?
“A Except on one issue, where it was ten to two. Mr. Stephens was the different party.”

On cross examination this juror testified

“Q Now, Mr. Kebodeaux, wasn’t it the argument of Mr. Stephens that it was because of Phillip crossing the Buffalo Speedway, a busy street, at the place where he was crossing, that caused him to believe that Phillip was at fault on this accident?
“Wasn’t that what he was arguing to you and to the others ?
“A No, sir; it wasn’t.
******
“Q Mr. Stephens wasn’t the only person talking in the jury room. Was there a full and complete discussion by most of the jurors ?
“A Yes, sir. He dominated the conversation, though I would say.”

On re-direct examination he testified:

“Q Did Mr. Stephens ever bang on the tabic or do anything unusual in the jury room that you could tell us about?
“A He banged on the table.”

Excluded by the Trial Court, but shown by bill of exceptions is the following testimony by Mr. Kebodeaux :

“Q By the conduct of Juror Stephens in the jury room in this trial, were you able to form an opinion as to whether or not Juror Stephens was reflecting a bias or attitude he carried into this trial and into this jury box, or whether his answers to the issues were based on his view of the evidence? In all fairness to him, now.
“A In all fairness, I felt that he was prejudiced prior to this case, with the statement that he made about any child being on the street, that is, hit on the street, that they are at fault and a person saying something like that, you can’t reason with him. I couldn’t reason with him, and no one else could. I felt that a man would definitely be prejudiced to make a statement like that, that any child that was hit on a street, they are at fault; they shoudn’t be in the street.
“Q All right, sir.”
Mr. Dickie Gilbert, a juror, testified:
“Q * * * May I ask, sir, whether or not you heard Juror Stephens make a statement concerning the rights of a child upon any street?
"A Yes, I did.
“Q Will you tell the Court and us what you heard Mr. Stephens say about that?
■“A Well, he indicated by his talk to me that he thought no child, any child should be out on the street, and if they should be injured, while they were on the street, they should not be entitled to collect damages.
j{C ijc ijc J-C ifs ‡
“Q Well, in order to be sure I understand you and the Court does, too, Mr. Gilbert, would you tell us as closely as you can the actual words Mr. Stephens used?
“A Well, he said that he didn’t think that any child playing on the street should be entitled to collect damages if they were injured while doing such, as well as I can recollect.
* * * * * *
“Q Did he discuss with you any of the facts in the case, the fact that this was Buffalo Speedway, a busy street? Did Mr. Stephens make any comment about that?
“A He made comment, not directly to me, now, but he did make a comment that — I don’t remember any street being designated. He just said that any child on any street, as well as I remember.
“Q Did you hear him say anything about this being Buffalo Speedway, a busy street?
“A No, sir. I don’t recall him mentioning a street at all.
“Q Did he mention anything about this being on a bridge, where the little boys were crossing? Did he mention that?
“A No, sir. He may have mentioned it sometime during the trial, but the point I am bringing out is that he did make a statement that any child on any street shouldn’t be allowed to collect damages.”

By bill of exceptions it is shown that Juror Stephens stated while the jury was deliberating:

“A Yes, the statement he made that he didn’t think that anj' child should be allowed to play on any street and if they were injured while doing so, they should not be allowed to collect any damages.”

Juror Kenneth D. Carmichael testified:

“Q Tell us what statements you heard, as best you remember.
“A Immediately after we got in the deliberation room, we were confronted with the opinion of this Mr. Stephens that he felt that the child had no right to be up there; that he had no right as a child to be confronted, actually, in Court, that he had no right as a child to be in Court on behalf of this accident.
“Q * * * First of all, let me ask you: Do you remember the issues that were concerned?
“A Yes, it was the negligence on the part of Marsha Lynn Eaton. I believe we started out with the first issue, and we saw we was having difficulty there. I believe the vote was eleven to one, if I recall, that she was negligent; and immediately he voiced his opinion that he wasn’t going to hang a rap, I believe is his words — that he wasn’t going to declare her guilty or negligent. Of course, that was all based on his opinion that the child had no right in Court and so forth and so on, the way I understood it.
******
“When we g*ot to the 8th Issue about the negligence on the part of the boy, I believe the vote was ten to two.
“Then, between us, all the way through, prevailing through all of this, he said that he would not give a penny or any money at all to the boy; that he had no right to it. He said the child had no right tO' be in the road, that he shouldn’t,, so forth and so on, and in this manner.”

Juror Mr. Thomas N. Stephens testified, for appellee as follows:

“Q Did you enter into the jury room with your mind made up that you., were going to answer all of the-issues contrary to Phillip Doran, and in favor of Miss Eaton?
“A Absolutely not.
“Q Did you hear my question in the-voir dire, or the discussion to the-Jury Panel before you were chosen, asking whether you had any feeling about a boy who was injured on the street and I explained the facts of this accident to you?
“A I have no feelings about that..
“Q Did you hear my question, sir P
“A Yes. I said I had no feelings.
“Q You did not raise your hand in-response to that question, saying-you did have any feeling against that at all ?
“A I did not.”
Jury Foreman W. T. Anderson testified :-
“Q Did you ever hear Mr. Stephens, one of the jurors, saying anything about no child having a right to be in Court?
“Did you ever hear any such statement as that, Mr. Anderson?'
“A Well, I couldn’t truthfully say. I mean, it is kind of foggy. From:, all the testimony that went on, it. is hard to say; and it has been-, some time ago.
“Q You can’t tell us just what statements were made or were not made.
“Is that what you are telling us ?
“A Right.”

On cross examination Mr. Anderson testified:

“Q If I remember you correctly, Mr. Anderson, you say you cannot truthfully say whether Mr. Stephens made a statement that any child in the position of Phillip Doran ought to recover any damages if they were injured?
"“A It was something to that nature; yes, sir.
'“Q You did hear him saying something about that ?
'“A In a way that he left the impression that he wasn’t to award any child or award him any money of any kind.”

Juror Stephens originally voted “no” to ■the damage issue when it was undisputed -that there were damages; he originally voted “no” to issue No. I inquiring if Marsha Lynn Eaton kept a proper lookout .and was the only juror so voting when the ■ evidence of Miss Eaton was that she did not •see the Doran boy before the impact between him and her car. The boy had •crossed two traffic lanes before he was struck by the Eaton car. It is obvious that •she kept no proper lookout.

The actions of Mr. Stephens convince me •that he was prejudiced against this boy. His words, as attributed to him by three of 'his fellow jurors, and denied by no one but 'himself, confirm his prejudice.

Eight and one half year old Phillip Doran may not have any right to recover for •damages from injuries sustained by him when he was struck by a Thunderbird car • driven by fifteen year old Miss Marsha JEaton, but he should have his right to recover determined by a fair and impartial jury. This right, in my opinion, has been denied him. I would remand this case. I therefore, respectfully dissent from the majority opinion.


author: HUGHES, Justice.

text:
    HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 11137.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1964.
    Rehearing Denied March 11, 1904.

      Bracewell, Reynolds & Patterson, William Key Wilde, Houston, for appellant.
    Ford W. Hall, Sears & Burns, Houston, for appellee.
   HUGHES, Justice.

This suit is on a sworn account brought by Southwestern Bell Telephone Company against the Houston Independent School District to recover the sum of $82,899.67 allegedly due for local exchange telephone service furnished schools of the District within the corporate limits of Houston by the Company from September 1, 1959, to March 1, 1961.

The Company alleged in its petition:

“Local exchange telephone service furnished by Plaintiff to Defendant during the time and at the locations specified hereinabove, was reasonably worth the sum of $136,125.68, the same being in accordance with the one-party business flat rate charged generally during such time in said Houston District Exchange. The one-party business flat rate is the general classification of local exchange service set out in Plaintiff’s published tariffs applicable to all telephones installed by Plaintiff in all public schools within the State of Texas. * * *
“Defendant has paid Plaintiff the sum of $53,226.01 as a payment on said account but has failed and refused to pay the Plaintiff the balance of $82,-899.67 though often requested, to Plaintiff’s damage in said last named amount.”

The District defended by specially pleading as follows:

“The Defendant, Houston Independent School District, further specially pleads that Plaintiff operates its telephone system in and around the City of Houston, Texas, pursuant to a franchise heretofore granted to the Plaintiff by the City of Houston, acting by and through its duly elected Mayor and Council. That the said City of Houston, under the Constitution and statutes of the State of Texas, and under the charter of the City of Houston, is vested with authority to regulate the rates and the services of the Plaintiff. Pursuant thereto the said City of Houston has, by ordinance, established rates to be charged by Plaintiff for telephone service. The said City of Houston has classified subscribers as ‘business’ subscribers or ‘residence’ subscribers and has provided, by ordinance, a rate schedule for business subscribers and residence subscribers and the said City of Houston, by ordinance, has directed that all telephone service furnished to public school buildings shall be at the rates provided for residence telephones.”

The parties tried this case before the Court, without a jury, upon stipulated facts, it being provided in the stipulation, however, that either party could offer evidence of additional facts if desired. No such additional evidence was offered.

The Trial Court rendered judgment for the Company for the amount in suit. At the request of the District the Trial Court filed conclusions of law which follow:

“It is stipulated by the parties that the $82,899.67 for which Plaintiff sues in its Original Petition correctly represents the difference between Defendant’s account with Plaintiff for exchange telephone service calculated at the business rate and the same account calculated at the residence rate. (Stipulation of Fact No. 20). I conclude that Plaintiff is entitled in law to maintain this action against Defendant upon such Defendant’s account with Plaintiff and recover such amount of $82,899.67.
“2.
“I conclude that, prior to September 1, 1959 (the beginning of the period covered by Plaintiff’s suit, Stipulations of Fact Nos. 19 and 20), the City Council of the City of Houston repealed the ordinance known as Section 346 of the Revised Code of Ordinances of the City of Houston of 1922, (Stipulation of Fact No. 11), originally enacted on January 3, 1911 (Stipulation of Fact No. 8).
“3.
“Independent of the conclusion that the ordinance of 1911 was repealed, I conclude that such ordinance of 1911 was rendered void and invalid by the final judgment in Cause No. 426,913 in the District Court of Harris County, Texas for the 133rd Judicial District of Texas styled ‘Southwestern Bell Telephone Company, Plaintiff vs. City of Houston, et al, Defendants’, which judgment enjoined the City of Houston from enforcing or attempting to enforce by suit or otherwise the charging, collecting or observance by Plaintiff of the rates and charges for telephone service in any ordinance enacted prior to April 26, 1955 effective in the City of Houston (Stipulation of Fact No. 15a).
“4.
“Independent of the conclusions that the ordinance of 1911 was repealed and was invalidated by permanent injunction, I conclude that the ordinance of 1911 unlawfully commanded Plaintiff to discriminate and charge the Houston public schools a lesser rate than the rates charged other schools for similar service, and unlawfully commanded Plaintiff to receive by special rate, a lesser compensation for its service than it received from other corporations, persons, firms or association of persons for a like service under substantially similar circumstances and conditions, all in violation of Article 4005 and Article 4013 of the Revised Civil Statutes of 1925 and, therefore, such ordinance was and is wholly void and invalid.”

We are of the opinion that the Court erred in concluding that the ordinance relied upon by the District has been repealed or that its enforcement has been enjoined or that any discrimination exists of which the Company can complain. It follows that the District, not the Company, was entitled to judgment.

We will set out the full history and pertinent content of the ordinance upon which the District relies as well as the ordinances and statutes upon which the Company relies to show its repeal.

On January 3, 1911, the City Council of the City of Houston adopted an ordinance which, except for the emergency clause, reads:

“AN ORDINANCE FIXING THE RATES TO BE CHARGED BY ANY PERSON, FIRM, CORPORATION, OR RECEIVER, OPERATING OR OWNING TELEPHONE LINES IN THE CITY OF HOUSTON FOR FURNISHING TELEPHONE SERVICE TO FIRE STATIONS AND TO THE PUBLIC SCHOOLS OF THE CITY OF HOUSTON.
sjí 5¡% ?{í
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON:
“Section I. That from and after the passage of this ordinance any person, firm, corporation or receiver, operating or owning telephone lines within the City of Houston shall furnish telephone service to fire stations and to public schools at the following rate, viz: Telephone service shall be furnished to fire stations at the rates provided for business or office phones. And telephone service shall be furnished to public school buildings at the rates provided for residence phones Italics ours.

On May 6, 1914, the City of Houston adopted a Code of Ordinances which carried forward and included Section I of the 1911 ordinance copied above. The same is-true of the 1922 Revised Code of Ordinances of the City of Houston.

On June 5, 1941, the City of Houston' adopted an ordinance “Regulating the Rates-of the Southwestern Bell Telephone Company.” This ordinance called for and fixed a reduction of rates to be charged for business and residence service. It did not mention rate classification of public school's within the City of Houston.

On December 31, 1942, the City of Houston adopted a Code of Ordinances called',. “The Revised Code of Civil and Criminal Ordinances of the City of Houston, 1942.” This codification contained the following provisions:

“Section 4. (a) All civil ordinances of a general and permanent nature and all criminal ordinances in force when this revised code takes effect which are inconsistent herewith or in conflict with this code are hereby repealed except as herein provided.
“(b) That all ordinances in effect upon the effective date of this code not inconsistent with any of the provisions of this revised code which are omitted' from such revision or codification shall not be deemed to have been repealed', but shall be continued in full force and effect unimpaired by this revised code. ^ ^
“(f) That no ordinance relating to a contract to which the city is a party or any contract made for its benefit shall be affected by the repealing clause of this ordinance. * * *
“(j) That nothing herein shall be construed as a repeal of any franchise, license or right granted by the City of Houston to any person, firm or corporation which license, grant, power or franchise was legally in force and effect at the date of the effective date of this revised code. Every such license, grant, power or franchise shall expire as originally provided by ordinance.”

This codification (1942) omitted and made no reference to Section I of the 1911 Ordinance, copies above, or its counterpart in the 1914 and 1922 Codes or to their subject matter. Such codification did reenact the rate provisions of the June 5, 1941, ordinance.

On December 1, 1949, the City Council ■of the City of Houston passed a telephone rate ordinance the caption of which reads:

“AN ORDINANCE MAKING FINDINGS OF FACT WITH RESPECT TO THE PETITION OF THE SOUTHWESTERN BELL TELEPHONE COMPANY FOR AN INCREASE IN ITS RATES FOR EXCHANGE SERVICE IN THE CITY OF HOUSTON; ■GRANTING THE PETITION OF SATD ■COMPANY; DETERMINING AND FIXING THE SCHEDULE OF RATES TO BE CHARGED BY SAID COMPANY FOR EXCHANGE TELEPHONE .SERVICE IN THE CITY OF HOUSTON; AND DECLARING AN EMERGENCY.”

This ordinance made findings upon which a fair return on the business of appellee was ■calculated and it established a schedule of rates designed to bring about this result. This ordinance did not refer to the classification ordinances of 1911, 1914 and 1922, •and contains no mention of rate classification for public schools.

On March 12, 1958, the City Council •of the City of Houston adopted a Code of Ordinances styled “Code of Ordinances, City of Houston, 1958.” This Code of ■Ordinances contained the identical provisions contained in the 1942 Code of Civil •and Criminal Ordinances of the City of Houston which we have copied above.

The rate classification made by the 1911, 1914 and 1922 Ordinances is not included in this 1958 Code revision, nor is such ■classification in any manner referred to or mentioned.

There is no article, chapter, section or provision in the 1958 Code of Ordinances for the City of Houston fixing and determining telephone rates in the City of Houston.

It is apparent that if the 1911, 1914 and 1922 rate classification ordinances have been repealed that such repeal has been effected through the doctrine of implied repeal since there has been no express repeal of such ordinances. The rules to be applied in determining this question have been often stated. We will quote from some of the authorities in this respect.

In Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197, 157 S.W. 937, Chief Justice Brown, writing for the Court, stated:

“There is no express repeal of the former law; hence, if repealed, it must be by implication, which is not favored. The two laws relate to the same subject, and should be considered as if incorporated into one act. It being so considered the two can be harmonized and effect given to each, there can be no repeal. Neill v. Keese, 5 Tex. 23. ‘There statutes, being in pari materia, and relating to the same subject, are to be taken together and so construed, in reference to each other, as that if practicable, effect may be given to the entire provisions of each. * * * Thus considered, there is no repugnancy between the provisions of these statutes. They may stand together, and effect may be given to the entire provisions of each. And thus to construe and give effect to them, is in accordance with the established rule of construction.’ Brown v. Chancellor, 61 Tex. [437] 438.”

In Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, the Court, Associate Justice Walker writing, stated the rule in these words:

“A statute may be repealed expressly or by implication. Where a later enactment is intended to embrace all the law upon the subject with which it deals, it repeals all former laws relating to the same subject. See Motor Inv. Co. v. City of Hamlin, 142 Tex. 486, 179 S.W.2d 278. Repeals by implication are not favored, however, and laws relating to the same subject should be considered as though incorporated in the same act. If they can be harmonized and effect given to each when so considered, there is no repeal by implication.”

In 50 Am.Jur., p. 546, Statutes Sec. 539, the rule against presuming a repeal by implication is stated in this language:

“Presumptions Applicable. — The courts will not presume that the legislature intended a repeal by implication. Indeed, the presumption is always against the intention to repeal where express terms are not used, and where effect can reasonably be given to both statutes. The presumption rests on the improbability of a change of intention, or, if such change occurred, on the probability that the legislature would have expressed it with an express repeal of the first. In this connection, it may be presumed that laws are passed with deliberation, and with full knowledge of existing ones on the subject.”

See 62 C.J.S. Municipal Corporations § 437, p. 836.

Applying these rules here and indulging the presumption against repeal by implication we do not find the requisites of repeal by implication present in the history and wording of these ordinances. Specifically, we do not find any irreconcilable conflict between ordinances establishing telephone rates and ordinances classifying users subject to such rates, nor do we find the Codes of Ordinances to be complete within themselves as embodying all of the Civil and Criminal laws of the City of Houston. Neither can we conclude that the purely rate ordinances were intended to embrace all the law on the subject of charges for telephone service in the City of Houston.

The 1911, 1914 and 1922 ordinances were not, standing alone, rate ordinances at all. They contained no rates. They established no rates. They provided, in effect, as to public schools, that the rates to be charged should be the same as those charged for telephone service to residences, whatever such rates might be. There was no re-pugnancy between these ordinances and rate schedules for telephone service furnished to business and residences then in effect in the City of Houston. If there was no repugnancy then, there is none now because nothing has transpired since to create a repugnancy. For forty-eight (48) years the Company, appellee, saw no repugnancy. We do not believe they slept on their rights. Such classification ordinances merely complement and are auxiliary to the ordinances prescribing rates for telephone service.

Neither the 1942 nor 1958 Code of Ordinances for the City of Houston purported to exclusively contain all the ordinances of that City. They purport just the contrary because they both contain provisions carrying forward omitted ordinances not in conflict with the Codes.

The 1942 recodification of City of Houston Ordinances contained the June 5, 1941, schedule of telephone rates. This ordinance, for the reasons stated, is not in conflict with the rate classification ordinances of 1911, 1914 and 1922.

The 1958 recodification of the ordinances of the City of Houston contained no schedule of telephone rates and the question of conflict of such Code with the 1911, 1914 and 1922 rate classification ordinances is absent.

The Company contends, however, that the provisions of the 1942 and 1958 Codes of the City of Houston wherein ordinances not in conflict therewith are carried forward and not repealed by omission are in conflict with Art. 1176a, Vernon’s Ann. Civ. St., and therefore unconstitutional. This statute provides, in part:

“Section 1. Any city of this State having a population of more than five thousand (5,000) according to the last preceding Federal Census, whether incorporated under General or Special Law, shall have the power to codify its civil and criminal ordinances and adopt a civil and criminal code of ordinances, together with appropriate penalties for the violation thereof, which said code when adopted shall have the force and effect of an ordinance regularly enacted with the usual prerequisite of law.
“Ordinances changed without separate amendment or repeal
“Sec. 2. That should it become necessary in the codification of such ordinances, both civil and criminal, to change, alter or repeal any portion thereof or to change the terminology of any ordinances heretofore adopted, such change being occasioned by a change in the form of government and the redesignation of offices and officers, then such city is hereby expressly authorized to amend, omit or repeal the same and to change the terminology to conform to its present form of government without the necessity of reenacting, repealing or amending any such ordinance separately incorporated in said code.
“Adoption of code
“Sec. 3. That upon the codification of said code of civil and criminal ordinances, such city is authorized to adopt such code by the enactment of an ordinance and upon the adoption thereof, the City Secretary shall record said code as adopted in the ordinance records of such city, and thereafter such record shall serve as a record of the ordinances so codified and it shall not be necessary in establishing the content of any particular ordinance so codified to go beyond said record.”

We find no language in this statute which prohibits a City from codifying some of its ordinances and providing, as did the City of Houston, that other ordinances not so codified and not inconsistent with the codification should remain in effect. Cities are required to act by ordinance in many and varied ways, some of a general nature, others specific and limited to single transactions. For example: Cities must act by ordinance in levying taxes, calling bond elections, closing streets and in ordering street improvements and assessments relating to them. If the Company is correct, then all of such ordinances must be included in a recodification of ordinances or they would be repealed. Inclusion of ordinances of this type in a recodification would be an imposition upon cities and would cast a burden upon them which would greatly reduce the value of the authority to re-codify. This result should only be thrust upon cities by plain and specific language not found in this statute.

The 1911 and 1914 ordinance relating to rate classification of telephone users is of a special type of ordinance. It is not of interest to the public generally. It is only of interest to a small group of users — fire stations and public schools.

We hold that the City of Houston had the authority, and that it properly exercised such authority, to recodify such of its ordinances as it deemed appropriate and to continue in effect without recodification, the 1911 and 1914 rate classification ordinances.

On April 26, 1955, in the District Court of Harris County, 133rd Judicial District, a final judgment was entered in Cause No. 426,913, styled Southwestern Bell Telephone Company, Plaintiff v. City of Houston, et al, Defendants, from which we quote:

“It is, therefore, ORDERED, ADJUDGED AND DECREED that the temporary injunction heretofore issued herein be and the same is hereby made permanent and that the Clerk of this Court forthwith issue a permanent injunction restraining and enjoining the defendants, the City of Houston, Texas, Roy Hofheinz, as Mayor, George Kesseler, Joe G. Resweber, Matt Wilson, Clyde J. Fitzgerald, J. M. Heflin, Ira Kohler, Harry Holmes, Jr., and George G. Marquette, Jr., as Members of the City Council of the City ■of Houston, Texas, their agents, servants, employees, representatives and successors in office:
“(a) From enforcing or attempting to enforce by suit or otherwise the charging, collecting, or observ-anee by this plaintiff of the rates and charges for telephone service prescribed and set forth in Ordinance 4508 enacted by the City Council of the City of Houston on the 1st day of December, 1949, or in any other ordinance heretofore enacted and effective in the City of Houston;
“(b) From assessing or seeking to enforce against the plaintiff, its officers, agents or employees, any fine or penalty or criminal charges on account of the failure of the plaintiff to charge and collect only the rates and charges for telephone service prescribed by Ordinance 4508.”

The Company takes the position that the effect of this injunction is to enjoin enforcement of the 1911, 1914 and 1922 classification ordinances.

It was stipulated that: “From the date of the enactment of the ordinance of 1911 until the public schools were taken over by Defendant in 1923, all public schools within the City of Houston were charged the residence rate by Plaintiff. After such schools were taken over, all public schools of the Houston Independent School District located within the corporate limits of the City of Houston were charged the residence rate by Plaintiff until the first day of September, 1959. Beginning on the 1st day of September, 1959, Plaintiff has billed and is still billing Defendant the business rate for all public schools located within the corporate limits of the City of Houston.” “All telephone service to the Houston Independent School District billed through the main switchboard of the administrative or business offices (CA 4-9871) has been billed and paid at the business rate at all times material to this suit.”

This judgment clearly has reference only to the rates charged the various classifications of users. It does not enjoin classifications per se. An appeal from an interlocutory injunction in this case is reported in 263 S.W.2d 169, Galv.Civ.App., writ ref., where the Court stated:

“Solely involved is the question of whether the ordinance of the City of Houston, dated December 1, 1949, provides a schedule of rates which deprives appellee of a fair or reasonable return on the fair value of its property being used to render public service and is thus violative of the United States Constitution as interpreted by the Supreme Court of the United States and of this State.”

The most that can be said about this judgment in behalf of appellee is that it is ambiguous. If there is ambiguity in the 1955 judgment, then the parties’ construction of it is, when likened to the construction of ambiguous contracts, binding upon the parties and upon the Courts. 13 Tex. Jur.2d, Contracts Sec. 128, p. 300. For more than four years the Company practically construed such judgment as not enjoining enforcement of the 1911, 1914 and 1922 ordinances. This, in our opinion, is conclusive against its present contention to the contrary.

The last reason assigned by the Trial Court to sustain its judgment for the Company is that to uphold the 1911, 1914 and 1922 rate classification ordinances would be to authorize the Company to discriminate in its charges for telephone service in violation of Arts. 4005 and 4013, V.A. C.S., the record disclosing that the Company charges other schools in the same exchange area at business rates. The Company is in no position to complain of discrimination. Only the victim has this privilege. In Oil Well Drilling v. Associated Indemnity Corporation, 153 Tex. 153, 264 S.W.2d 697, opinion by Mr. Justice Griffin, it is stated: “The law is well established that only those against whom a discrimination is made by statute can invoke the benefit of the Constitution and laws preventing such discrimination.”

Moreover, it has been held that it is not unlawful to discriminate in favor of the public. New York Telephone Co. v. Siegel-Cooper Co., 202 N.Y. 502, 96 N.E. 109, 36 L.R.A.,N.S., 560. See Railroad Commission of Texas v. United States, 290 S.W.2d 699, Austin Civ.App., affirmed 159 Tex. 197, 317 S.W.2d 927, State of Florida v. Peninsula Telephone Company, 73 Fla. 913, 75 S.W. 201, 10 A.L.R. 501, holding statutes-similar to Arts. 4005 and 4013, supra, are not applicable to and do not include cities and counties. See Pond, Public Utilities, Sec. 289, 4th ed.

Being unable to sustain any ground upon which the Trial Court predicated its judgment and no additional grounds being assigned by the Company, we reverse the judgment of the Trial Court and render judgment that the Company, appellee, take nothing by its suit.

Reversed and rendered.

      . Section 2 is obviously inapplicable bere because it is limited to changes in ordinances brought about by a change in the form of government. No such changes, so occasioned, have been called to our attention. This section by authorizing repeal by omission of certain matters would, by implication, deny repeal of other matters by mere omission.

      . See 39 Tex.,Tur.2d, Municipal Corporations, Sec. 255, p. 583.

      .See American Indemnity Co. v. City of Austin, 112 Tex. 239, 246 S.W. 1019, where the Court in discussing the effect of recodifieation of State laws under Art. 3, Sec. 43, Texas Constitution, said:
      “Section 4 of the final title to the Civil Code of 1879 and a similar provision in the revisions of 1895 and 1911 declared that all civil statutes of a general nature in force when the Revised Statutes should take effect, and which were not included therein, or which were not expressly continued in force, were thereby repealed. Provisions of this character are always given effect in revised codes, * * *
      “The Revised Statutes of this state, when once adopted, become the entire law on the subjects they purport to •cover, unless specially excepted, * * *"
      See also Phipps v. State, 36 Tex.Cr.R. 216, 36 S.W. 753, holding that the final title in the Revised Statutes of 1895, providing that laws in force organizing judicial districts and prescribing their terms should continue in force carried forward the specific legislative acts pertaining thereto.

      . “Judgments are construed like other written instruments.” Permian Oil Co. v. Smith, 129 Tex. 413, loc. cit. 449, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152.

      . These statutes provide, in part:
      “Article 4005.
      “No ® * * telephone company * * * shall knowingly * * * give or grant to any person, firm or associations of persons a * * * privilege ® * * which is used or which is given to be used instead of the regular * * * rate * * * or shall give any * * * right or privilege to transmit any message * * * in this State * * * for greater or loss * * * rate than is charged other persons in this State for similar serv-iee, except as hereinafter provided in this title.
      “Article 4013.
      “No corporation, company or person mentioned in the first article of this title shall directly or indirectly, by any special rate, * * * or other device, demand, exchange, collect or receive from any person, firm, association or corporation a greater or less- or different compensation for any service rendered or to be rendered, in. the transportation of * * * messages, than it or he charges, demands, collects or receives from any other corporation, person, firm or association of persons doing business in this State-for a like service under substantially similar circumstances and conditions, except as is provided in this title-


author: WERLEIN, Justice.

text:
    IMPLEMENT DEALERS MUTUAL INSURANCE COMPANY, Appellant, v. T. L. COX et ux., Appellees.
    No. 14302.
    Court of Civil Appeals of Texas. Houston.
    Feb. 27, 1964.
    Rehearing Denied March 19, 1964.
    Thompson, Coe, Cousins & Irons, R. B. Cousins, Dallas, for appellant.

      C. Mann Gregg, Texas City, for appel-lees.
   WERLEIN, Justice.

This suit was brought by appellees upon an insurance policy issued by Implement Dealers Mutual Insurance Company in the sum of $8,000.00, to recover for damage to their home in Texas City resulting from Hurricane “Carla” on or about September 11, 1961. From a judgment in the sum of $2,161.25 entered in favor of appellees based upon the jury verdict, appellant has perfected its appeal.

To Special Issue No. 1 the jury found that the damage done to the residence of appellee Cox was directly due to the winds of Hurricane Carla. Appellant contends that such finding by the jury is not supported by any evidence and is against the great weight and preponderance of the evidence. We have read the entire statement of facts and find that there is ample evidence supporting the jury’s finding, even though we should wholly disregard the testimony of appellee Cox with respect to damages. The finding of the jury is not against the great weight and preponderance of the evidence. In Re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Appellant asserts that such finding is based largely upon perjured testimony given by appellee Cox. We fail to find in the record evidence which would warrant a finding of perjured testimony on the part of Mr. Cox although there are some apparent conflicts in his testimony. Appellant elicited from appellee Cox that its insurance adjuster took a picture of ap-pellees’ home on October 6, 1961, more than three weeks after Carla, and at such time the T. V. antenna on appellees’ house was standing erect, whereas the picture introduced by appellees in evidence, taken at a yet later date, showed the antenna was down and lying on the roof of the house. Appellee Cox testified the antenna was damaged and he had to get a new one installed.

Appellant inquired why and how the October 6, 1961 picture, which was taken after Carla, showed the antenna standing erect and the subsequent picture introduced by appellees showed the antenna down. Appellee could not explain the discrepancy. He did testify unequivocally that neither he nor his family pulled the antenna down, and that he didn’t know how it got down. His statement seems logical since if appellee Cox were undertaking to show that Carla had blown down the antenna, it does not seem likely that he would have let it remain erect for everyone to see for nearly a month after Carla.

Moreover, we do not find in the record that Cox ever testified definitely that Carla blew over the antenna. He did testify that Carla damaged it. The evidence shows that considerable damage was done to the roof of appellees’ home and that repairs were made some time after appellees’ pictures were taken. Cox also testified that his new antenna had been installed by Bay Radio. It probably would have been an easy matter for appellant to disprove Cox’s testimony, if it was false, by calling Bay Radio. This was not done. Cox could not remember dates, and much of his testimony was indefinite as to time. This is not too difficult to understand, however, since the trial was about one and a half years after the damage by Carla. On cross-examination Cox was asked:

“Q Am I correct then in assuming that you have no explanation as to why the earlier picture shows the antenna erect and the later picture shows the antenna down?
“A No more than I know that it was blown down or torn down in some way that I had nothing to do with, and I had to have another antenna put up.”

The evidence shows that the policy excluded recovery for damage to “radio or television towers and antennas.” The purpose of the appellant’s examination was to try to establish that Cox was lying. The jury heard all the testimony and was in a better position to pass upon the truth or falsity of Cox’s testimony and his credibility than is this Court. The law is well settled that jurors may accept some parts of a witness’s testimony and reject other parts, when the testimony is inconsistent, contradictory, contrary to physical facts, or such as to create a doubt as to its truthfulness, or because of the interest of the witness. Aetna Ins. Co. v. English, Tex.Civ.App. 1947, 204 S.W.2d 850, and authorities cited; 45 Tex.Jur., p. 281, Witnesses, Sec. 345; 14 Baylor Law Review, pp. 371-372.

The jury found in answer to Special Issues Nos. 2 and 3, respectively, that the actual cash value of the Cox residence immediately before Carla was $8,000.00, and immediately after, was $5,000.00. Appellant complains of Issue No. 3 on the ground that it fails to limit the jury to insured perils and fails to prohibit the jury from considering damage occurring as a result of a combination of causes or perils some of which might not be insured against under the policy. The jury had already found, in answer to Special Issue No. 1, that the damage, if any, done to appellees’ residence was directly due to the winds of Hurricane Carla.

It is our view that the court did not err in submitting Special Issues Nos. 2 and 3 as was done. The law is well settled in Texas that the measure of damages under an insurance contract insuring a dwelling, when the loss is not total, is the difference between the value of the property immediately before and immediately after the occurrence of the loss and damage, within the amount of the policy. German Ins. Co. v. Everett, 1898, 18 Tex.Civ.App. 514, 46 S.W. 95, writ den.; St. Paul Fire & Marine Ins. Co. v. McRae, Tex.Civ.App., 98 S.W.2d 363; Millers Mutual Fire Ins. Co. of Texas v. Eggleston, Tex.Civ.App.1962, 357 S.W.2d 766.

It will be noted that while the difference in the value of the property immediately before and immediately after Carla was found to be $3,000.00, the court entered judgment in favor of appellees in the sum of only $2,161.25. This was because in answer to Special Issue No. 4, which inquired as to the reasonable cost of repairing the damage sustained as a direct result of Carla, taking into consideration only such damage sustained as a direct result of wind, and damage to the interior of the dwelling from rain, whether wind driven or not, coming through an opening or openings made by the wind in its walls or roof and caused immediately by rain entering the building through such opening or openings, the jury found $2,261.25. From this amount the court deducted $100.-00 because of the $100.00 Deductible Clause in the policy. The policy contains the further limitation that the company’s liability shall not exceed “the amount it would cost to repair or replace the building with material of like kind and quality within a reasonable time after the loss * * * ”

Appellant complains of Special Issue No. 4 inquiring about the cost of repair of the Cox residence for the reason that it did not limit the jury to a consideration of the proper contract limitation of liability and did not instruct the jury to make a reasonable allowance for depreciation in place of repair with new materials. The policy provides:

“ * * * liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss * * * ”

We are in accord with the decision of. the Waco Court of Civil Appeals in Gulf Insurance Company v. Carroll, 1959, 330 S.W.2d 227, in holding that the foregoing provision provides two ways in which the insured may plead and prove damages. The court held that the first clause would certainly be available and apply to an insured whose house or building had been destroyed and where it was a total loss. The second clause, however, applies when the insured has sustained a partial damage to his building. We find no merit, therefore, in appellant’s contention that there should have been an instruction with respect to a proper deduction for depreciation. See also Manhattan Fire & Marine Insurance Co. v. Melton, Tex.Civ.App., 1959, 329 S.W.2d 338, writ ref., n. r. e.

We are of the opinion that had there been a proper objection, the court in submitting Issue No. 4 should have inserted in it the provision in the second clause aforesaid by adding after the phrase “reasonable cost for repairing the damage, if any,” the words “with material of like kind and quality within a reasonable time after such loss, if any, * * * ” This would have complied with the limitation in the policy. It is our view, however, that the objection made to Special Issue No. 4 did not point out distinctly the matter or omission in the Issue now complained of, and hence any error therein will be deemed waived. Rule 274, Texas Rules of Civil Procedure. The court should not be required to read the entire policy to determine what has been omitted in a special issue. The burden is on the one objecting to point out specifically the defect or omission in the issue and thus distinctly apprise the court thereof.

We overrule appellant’s Points 7 and 8 complaining that there was no evidence and insufficient evidence to sustain the jury’s answer to Special Issue No. 4. The only disinterested, qualified witness was Mr. Leo Ervin, who testified as to the estimate he made of the damage done appellees’ home. He estimated the damage from the winds of Carla and water coming through roof leaks, vents and windows to be $2,-261.25. The evidence shows that many shingles were blown off of appellees’ residence. The estimate did not include a new roof but only replacing wood shingles that were blown off the roof and damage to the ridge and leaks in the roof caused by wind. It will not be necessary to set out Mr. Ervin’s estimate. It will suffice to say that the evidence shows that the items of damage listed were attributable to the winds of Carla and rain entering, in the main part, through openings created thereby. It is true that Mr. Ervin testified that it was possible that some wind driven rain came through the doors, vents and louvers in the house and that he had an opinion that it did. He also testified, however, that virtually the same damage would have been done if it had not come through vents, louvers and doors. This evidence is uncon-tradicted.

Mr. Ervin further testified that the estimate was for repairs which would have left the Cox residence in about the same condition it was before. He also testified that the dwelling in question was in a good state of repair before Carla and that in fact Mr. Cox had just, or not too long before, redone the complete house. In Crisp v. Security National Insurance Co., Tex.Sup.1963, 369 S.W.2d 326, 328, the court said:

“Indemnity is the basis and foundation of insurance coverage not to exceed the amount of the policy, the objective being that the insured should neither reap economic gain nor incur a loss if adequately insured.”

We have concluded that the finding of the jury to Special Issue No. 4 is supported by the evidence and that it is not against the great weight and preponderance of the evidence.

Judgment affirmed.