author: CADENA, Justice.

text:
    Aubrey Lee GILDER, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 14563.
    Court of Civil Appeals of Texas. San Antonio.
    June 28, 1967.
    Rehearing Denied July 26, 1967.

      Putman & Putman, San Antonio, for appellant.
    ■ Clemens, Knight, Weiss & Spencer, Edward R. Finck, Jr., San Antonio, for ap-pellee.
   CADENA, Justice.

Plaintiff, Aubrey Lee Gilder, appeals from a summary judgment rendered in favor of defendant, Allstate Insurance Company, herein called “Allstate,” in a case in which plaintiff sought to recover damages resulting from the refusal of Allstate to repair or replace plaintiff’s damaged automobile in accordance with the terms of an insurance policy issued by Allstate to plaintiff.

On January 22, 1965, after the policy in question had been issued by Allstate, plaintiff’s vehicle was involved in a collision with an automobile driven by Thomas J. Moore. On February 15, 1965, Allstate informed plaintiff that, because plaintiff had falsely represented in his application for insurance that he had not been refused similar insurance by any other company, the policy issued by Allstate to plaintiff was declared void. At the same time, Allstate refunded to plaintiff the full amount of the premium paid.

On March 10, 1965, plaintiff filed this suit against Allstate. On a date not revealed by the record, plaintiff filed suit against Moore, seeking recovery for personal injuries sustained by plaintiff as a result of the collision on January 22, 1965, and also seeking recovery for damage to plaintiff’s automobile. On January 13, 1966, plaintiff’s suit against Moore was settled. The settlement agreement recited that, in consideration of the sum of $5,800.00 paid to plaintiff on behalf of Moore, plaintiff fully released Moore “and also any and all other persons, firms or corporations who are, or who might be claimed to be, liable” to plaintiff, from any and all claims “in any way arising or resulting or to arise or result in the future by reason of” the January 22, 1965, collision, “whether for personal injuries, property damage or otherwise.” The concluding paragraph of the release instrument recited that plaintiff and his attorney agreed “to indemnify and hold harmless the said Thomas J. Moore and Hartford Insurance Company * * * from any claims which might be made against them by any person, firm or corporation for injuries and damages allegedly resulting from the accident in question, or any of the matters relating thereto, including the settlement agreement reflected in this release.”

On January 18, 1966, the District Court of Bexar County entered an agreed judgment in the suit filed by plaintiff against Moore. This judgment, after reciting the settlement of the dispute, was to the effect that plaintiff take nothing.

On June 24, 1966, Allstate filed its second amended original answer in this case alleging, among other things, that, in consideration of payment to plaintiff by Moore, including payment for damages to plaintiff’s automobile, plaintiff had executed and delivered a full release which discharged Allstate from any liability to plaintiff.

On this same date Allstate filed its mo- • tion for summary judgment, which was supported by the affidavit of Seagal Wheat-ley, Esq., a licensed attorney associated with the law firm of Beckmann, Stanard, Wood & Vance. Mr. Wheatley’s affidavit stated that he represented Moore in the suit filed by plaintiff against Moore, and that plaintiff had, in consideration of the payment to him of $5,800.00, executed the aforementioned release. Attached to this affidavit were copies of the release and of the take-nothing judgment entered in the Gilder-Moore litigation on January 18, 1966.

The record reflects that the Beckmann law firm, which represented Moore, had originally represented Allstate and had filed Allstate’s original answer in this case on April 26, 1965. On May 11, 1965, the court granted permission for the Beckmann firm to withdraw as counsel for Allstate.

The release executed by plaintiff shows on its face that it was intended to discharge the releasees from all liability resulting from the January 22, 1965, collision, including liability for property damages. The release ran not only in favor of Moore, but also in favor of “all other persons, firms or corporations who are, or who might be claimed to be liable” to plaintiff by reason of the accident. This language, unexplained, is broad enough to include Allstate, although Allstate is not specifically named. “Broader or more comprehensive language is unlikely to be found in a general release.” Thomas v. Erie Insurance Ex., 229 Md. 332, 182 A.2d 823, 825 (1962).

Plaintiff does not, by affidavit or otherwise contend that it was his intention, in executing the release, to release only Moore. Plaintiff did not plead, nor did he offer “evidence” tending to show that he was in any manner imposed upon or that there was any fraud in connection with his execution of the release. We cannot say that the terms of the release itself reflect any intention on the part of the parties to limit in any way the broad language contained in the instrument. Under these circumstances, we are constrained to hold that the broad language used in the instrument means what it says and that plaintiff, by executing the release in question, released not only Moore, but also “all other persons, firms, or corporations who are or might be claimed to be liable” as a result of the collision, including Allstate.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY et al., Appellants, v. BANKS TRANSPORTATION COMPANY, Appellee.
    No. 15103.
    Court of Civil Appeals of Texas. Houston.
    June 22, 1967.
    Rehearing Denied Aug. 24, 1967.

      Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Assistant, R. L. (Bob) Lattimore, Monroe Clayton, Assistants, Austin, for appellants.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellee.
   WERLEIN, Justice.

Appellee, Banks Transportation Company, hereinafter called Banks, appealed to the County Civil Court at Law from an order of appellant, Texas Department of Public Safety, cancelling Banks’ Self-Insurance Certificate No. 70 which had been issued to it under the Texas Motor Vehicle Safety-Responsibility Act on October 15, 1959. The trial court decreed that the orders of the Department to the effect that said certificate expired automatically on October 1, 1965, as well as all orders, notices and other actions of the Department dated September 10, 1965, October 1, 1965, October 19, 1965, and October 28, 1965, whereby such .certificate was cancelled or otherwise stated to have expired or to have been cancelled, be set aside and held for nought. The court also decreed that such certificate be held to be in full force and effect in accordance with the terms and provisions thereof.

The case is before us on an agreed statement of facts with the stipulation that copies of instruments attached thereto as exhibits are true and correct. It is also stipulated that the facts set out in the agreement are true and correct if competent and admissible under the rules of evidence, with the right in both parties, however, to urge their objections and exceptions to any ruling by the court with respect to the admissibility thereof.

The parties stipulated that appellee is presently the holder of said Self-Insurance Certificate No. 70; that by letter of September 10, 1965 the Department advised ap-pellee that its present certificate was extended until October 1, 1965 in order to have a hearing on appellee’s application for a new self-insurance certificate. On October 1, 1965 appellant advised appellee by letter that its application was not acceptable and that the application was rejected under the provisions of Article 6701h, Sec. 34(b), and that no certificate could be issued at such time. No appeal was taken from the refusal of the Department to grant appellee a new self-insurance certificate.

On October 19, 1965 the Department by letter notified appellee that its old self-insurance certificate expired automatically on October 1, 1965, and that a hearing would he had on October 28, 1965, to cancel any authority whatsoever under which appellee may contend it was operating under the old certificate. The parties stipulated that on October 28, 1965 a hearing was held pursuant to the notice of October 19, at which both parties were present, and on the same day the Department issued notice to appellee that any authority it had to operate under Certificate No. 70 had been cancelled as a result of evidence submitted at such hearing. The notice did not specify any ground upon which the cancellation was based.

The parties further stipulated that on October 29, 1965 the parties hereto informed the court of the hearing which had occurred on October 28, 1965, and it was agreed that appellee might amend its pleading so as to place before the court the action of the Department with respect to both the notice of expiration given on October 1, 1965 and the notice of cancellation given October 28, 1965; and it was further orally agreed that the stay order previously issued on October 11, 1965 would apply also to the notice of cancellation dated October 28, 1965.

Exhibit F is a final judgment against ap-pellee for damages in a suit which was brought against appellee by Julian Guiter-rez and Rudy Guiterrez, a minor, and Exhibit G is a final judgment against appellee for damages in a consolidated suit which was brought against appellee by Roma R. Casper and Donna Faye Cannon. Appellee objected to the introduction of the judgment decribed in Exhibit F and also the judgment described in Exhibit G with respect to Roma R. Casper on the ground that they were not introduced at the hearing by the Department on October 28, 1965, and that neither of them was a basis for the cancellation order of October 28, 1965 or for the expiration notice of October 1, 1965. Appellant objected in the trial court to the introduction of appellee’s evidence to such effect on the ground of immateriality.

Appellee objected to the introduction of the evidence contained in Paragraph 12 of the stipulation to the effect that Banks did not on March 14, 1965, or any time subsequent thereto, have as many as 25 motor vehicles registered in its name for the reason that such evidence was not introduced at the hearing held by the Department on October 28, 1965, and hence such fact was not the basis for the cancellation order of October 28, 1965 or for the expiration notice of October 1, 1965. Appellant objected to the introduction of such evidence by appellee for the reason that the hearing in court was a trial de novo and the fact that such evidence was not introduced at the hearing held in the office of the Department on October 28 was immaterial and irrelevant.

Article 6701h, Sec. 34(a) and (c), reads as follows:

“(a) Any person in whose name more than 25 motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the Department as provided in Subsection (b) of this Section.
“(c) Upon not less than five (5) days notice and a hearing pursuant to such notice, the Department may upon reasonable grounds cancel a certificate of self-insurance. Failure to pay any judgment within thirty (30) days after such judgment shall have become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance.”

The trial court found that the Department cancelled appellee’s certificate on October 1, 1965, and that no hearing was held by the Department to determine whether such certificate should be cancelled as of October 1, 1965. The trial court properly held in effect that the cancellation order of October 1, 1965 was invalid because of lack of the required five days’ notice to appellee and because there was no hearing with respect to cancellation. The court also concluded that there was no legal basis for the position of the Department that such certificate expired automatically on October 1, 1965. We are in accord with such conclusion, since the certificate that was issued to Banks contains no automatic expiration date.

The trial court found that the cancellation of the certificate by the Department was' not based upon appellee’s failure to pay the Roma R. Casper judgment or the Julian Guiterrez judgment within thirty days after they became final, or failure to have on March 14, 1965 and thereafter as many as 25 motor vehicles in its name, and further that there was no evidence introduced before the Department on March 14, 1965 or subsequent thereto to the effect that appellee did not have as many as 25 .motor vehicles registered in its name, and no evidence before the Department that the Guiterrez and Casper judgments had not- been paid within thirty days after becoming final. The court concluded that the Department did not comply with Article 6701h, Sec. 34(c) in attempting to cancel appellee’s certificate.

It will be noted that the findings of fact and conclusions of law of the trial court have to do mainly with what the Department did or did not do, considered or did not consider, at the hearings before it. In our opinion, the facts and evidence before the Department and the basis for its order of October 28, 1965 cancelling appellee’s self-insurance certificate are immaterial and irrelevant. The appeal was taken from the order of cancellation by the Department. The trial in court was de novo under the provisions of Article 6701h, Sec. 2(b) and (c). Section 2(c) provides:

“Trial in the court shall be de novo, with the burden of proof upon the Department, and the substantial evidence rule shall not be invoked or apply, but the same shall be tried without regard to any prior holding of fact or law by the Department, and judgment entered only upon the evidence offered at the trial by the Court. A trial by jury may be had upon proper application.”

It has been held that, “Power to try a case de novo vests the court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.” Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692. The appeal wiped out the orders of cancellation and the burden was on the Department in the trial court to establish grounds which would warrant cancellation of appellee’s self-insurance certificate. Southern Canal Co. v. State Board of Water Engineers, 1958, 159 Tex. 227, 318 S.W.2d 619; State Board of Medical Examiners v. Mann, Tex.Sup.1967, 413 S.W.2d 382. See also Lawson v. Texas Department of Public Safety, 336 S.W.2d 275, Tex.Civ.App., writ ref., n. r. e. The fact that the aforesaid judgments and evidence with respect to whether appellee had more than 25 motor vehicles registered in its name were not before the Department at the hearing, is of no consequence since such evidence was introduced at the trial of the case and was before the trial court. Lawson v. Texas Department of Public Safety, supra.

Appellant in its first two Points asserts as error the finding and conclusion of the trial court that the failure to pay the judgments within thirty days after they became final did not constitute a reasonable ground for cancellation of appellee’s self-insurance certificate since they were paid prior to the action taken by the Department. Appellant also contends that the court erred in finding and concluding that the failure of appellee to have more than 25 motor vehicles registered in its name after March 14, 1965 did not authorize or permit cancellation of appellee’s certificate. These points of error are directed, to the action of the court itself based upon the evidence before it. The court had before it the judgments and evidence with respect to ap-pellee not having more than 25 motor vehicles registered in its name. We are concerned here, not with what the trial court found happened before the Department, but only with what the Court found and concluded based upon the evidence before it at the trial of the case.

The question is whether or not ap-pellee’s failure either to pay such judgments within thirty days after they became final or*to have more than 25 motor vehicles registered in its name, required the court to hold as a matter of law that appellee’s self-insurance certificate should be cancelled. The statute provides that, “Failure to pay any judgment within thirty (30) days after such judgment shall have become final shall constitute a reasonable ground for the cancellation of a certificate of self-insurance.” The statute does not make cancellation mandatory in the event of failure to pay a final judgment within thirty days. It leaves the determination of the matter to the Department, or, upon appeal, to the court. In the instant case, the trial court found that the failure of appellee to pay the judgments in question within thirty days after they became final did not constitute a reasonable ground for cancellation of appellee’s certificate since they were paid by appellee upon being advised thereof and prior to any action being taken thereon by the Department. We cannot say that such finding and conclusion by the trial court was error as a matter of law.

Appellee had to have more that 25 motor vehicles registered in its name in order initially to qualify as a self-insurer. The statute does not provide that if the self-insurer fails to maintain more than 25 motor vehicles registered in its name its self-insurance certificate shall automatically be cancelled; nor does it provide that such failure shall make it mandatory for the Department, or upon appeal the court, to cancel such certificate. Article 6701h, Sec. 34 (c), as hereinabove noted, provides that the Department may upon reasonable grounds cancel a certificate of self-insurance. The burden was on the Department to prove that appellee’s failure to have more than 25 motor vehicles registered in its name during the period in question was under the circumstances a reasonable ground for cancellation. The court by refusing to cancel such certificate, in effect found and concluded that it would be unreasonable to cancel appellee’s certificate of self-insurance under the existing facts and circumstances. We cannot say that the court’s action was error as a matter of law.

Judgment affirmed.


author: BARROW, Chief Justice.

text:
    H. E. BUTT GROCERY COMPANY, Appellant, v. John Nelson NEELY, by Next Friend, Leonard C. Neely, Appellee.
    No. 14615.
    Court of Civil Appeals of Texas. San Antonio.
    July 31, 1967.

      Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.
    G. J. Valdez, Tinsman & Cunningham, San Antonio, for appellee.
   BARROW, Chief Justice.

A venue action. Appellee, John Nelson Neely, a minor, suing by his father as next friend, brought this suit against appellant, H. E. Butt Grocery Company, hereinafter referred to as HEB, and Texas Industrial Surveys, hereinafter referred to as TIS, to recover damages for false imprisonment and slander. After a non-jury hearing, the trial court overruled the plea of privilege of HEB, a resident of Nueces County.

On October 14, 1966, appellee, then fifteen years of age, went to a grocery store operated by HEB, at 1601 Nogalitos Street, San Antonio, Texas, to purchase some lunch meat, tomatoes and bread. Appel-lee was working in his father’s service station which was next door to the grocery store and desired to purchase these items for lunch. Appellee discovered, while in the check-out line of the store, that he did not have enough money to pay for the groceries. He returned the bread and lunch meat to the counters where they were obtained but hid the bag of tomatoes behind some cracker boxes in the store. He did this so he could buy these same tomatoes after he obtained the necessary money from the service station. After he left the store to get the money, he was stopped by a detective named David Cantu. Mr. Cantu required appellee to return inside the store and locate the tomatoes. He accused appellee of stealing, although ap-pellee had removed nothing from the store. After showing a police badge to appellee and threatening to take him to Juvenile Court, Cantu finally released him after appellee signed a form designated “Release Papers.” Later that afternoon, Cantu informed Mr. Neely that he had caught his son John stealing. This was done in the presence of Mr. Amyx, manager of the HEB store.

Appellee urges that venue is maintainable against HEB in Bexar County on three theories: (1) a cause of action for slander was established against HEB so as to maintain venue under Subd. 29, in that Amyx, manager of this store, slandered appellee by identifying him as Neely’s son when Cantu made the accusation of theft; (2) a cause of action was established against TIS, in that its agent, Cantu, falsely imprisoned and slandered appellee, and there is evidence to support a finding that TIS was acting as agent of HEB so as to maintain venue under Subds. 23 and 29; (3) a cause of action was established against TIS, a resident of Bexar County, and since HEB is a proper party to this cause of action, venue is maintainable against it under Subd. 4.

It is seen that there is no allegation in appellee’s petition that Amyx slandered appellee. Venue therefore cannot be maintained on this basis against HEB. It is incumbent upon a plaintiff who seeks to maintain venue under a specified exception of the venue statute to plead the essential venue facts which bring the case within that exception. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).

The cause of action against TIS is based upon the actions of Cantu, allegedly acting in the scope of his employment for TIS. Neither Cantu nor anyone connected with TIS testified. The only testimony to connect Cantu with TIS is the following testimony of Leonard C. Neely, regarding a conversation with Amyx as to the identity of Cantu, which was admitted over the objection of HEB that it was hearsay:

“Q Did you talk to Mr. Amyx and ask him who — did you ask Mr. Amyx who Mr. Cantu worked for, what he had to do with the store ?
A Well, yes — I didn’t need to, because I already—
Q Well, even though you didn’t need to, did you?
A Oh, yes. Mr. Amyx told me that Mr Cantu—
(Objection made and overruled.)
Q Go head. Tell us what Mr. Amyx told you.
A Mr. Amyx told me, he said, ‘Neely, he’s not with H.E.B.’ He said, ‘^Ve’ve hired — Mr. Cantu is hired by the H.E.B. Grocery Company, and he works for the Texas Industrial Surveys.’ I said, ‘Well, I know that because,’ I said, I had already talked to my daughter and told her about it. I was discussing it with her, and when I told her Mr. Cantu’s name, she said, well, that was one of the detectives that worked for the company that she previously was working for; but she has since been released.”

It is our opinion that the testimony that Cantu was the agent of TIS was hearsay and of no probative force. There is no evidence as to the authority of Amyx, or that his statement was made in connection with an act authorized by HEB. Certainly, he would not be authorized to speak for TIS. This conversation with Amyx occurred on an occasion subsequent to the event in controversy, when Neely contacted Amyx to advise that he was going to do something about the wrongful act of Cantu. The statement attributed to Amyx amounted at most to a mere narration of past facts and was not admissible against HEB. Southland Corp. v. Doss, 408 S.W.2d 557 (Tex.Civ.App.— San Antonio 1966, no writ); 2 McCormick & Ray, Texas Evidence § 1164 (2d ed. 1956). Clearly, the statement of Neely’s daughter to her father was also hearsay and, of no probative force.

Since there is no evidence to show that Cantu was acting in the scope of his employment with TIS on the occasion in question, appellee failed to establish a cause of action against it which is essential to maintain venue against HEB under Subds. 23, 29 or 4, Art. 1995, Vernon’s Ann.Civ.St.

The order overruling HEB’s plea of privilege must be reversed. It is obvious that the evidence was not fully developed and that the relationship among these parties can be easily ascertained by discovery procedures. Therefore, in the interest of justice, the cause is remanded to the trial court. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Keeling v. Zoller, 388 S.W.2d 274 (Tex.Civ.App.— San Antonio 1965, no writ); Texas International Products v. Mustex, Inc., 368 S.W.2d 27 (Tex.Civ.App.— Fort Worth 1963, no writ).

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

      . Art. 1995, Vernon’s Ann.Civ.St.


author: TIREY, Justice.

text:
    COMMUNITY PUBLIC SERVICE COMPANY, Appellant, v. Della Lee MEISSNER et al., Appellees.
    No. 4600.
    Court of Civil Appeals of Texas. Waco.
    July 27, 1967.
    Dawson, Dawson & Brown, Corsicana, for appellant.
    Andrew Campbell, Hamilton, for appel-lees.
   OPINION

TIREY, Justice.

The Community Public Service Company, a Texas corporation, has appealed from an order of the District Court of Hamilton County, overruling its plea of privilege to be sued in Tarrant County, the county of its residence. There was no jury, and neither side called for findings of fact and conclusions of law, and none filed.

The judgment is assailed on three points. They are substantially to the effect that the Court erred:

(1) In overruling the plea of privilege, because the undisputed evidence showed that Meissner voluntarily .encountered a dangerous situation in the exercise of intelligent choice, and hence the defendant owed him no duty which would form the basis of a charge of negligence and proximate cause.
(2) In overruling appellant’s plea of privilege because there was no evidence to support its implied finding of negligence and proximate cause.
(3) Because the implied findings of negligence and proximate cause are against the overwhelming weight of the evidence.

We sustain Point 2. If we could reach Point 3, it is our view that it should be sustained.

The facts are without dispute. Gene Meissner was an employee of the Gulf States Telephone Company and met his death while in pursuit of his business as an employee, on June 30, 1965. The death certificate showed that he was electrocuted. His widow brought the action on behalf of herself and as guardian of the estate of their minor son, Roy Lynn. She went to trial on her original petition and her controverting plea. The original petition was attached to the controverting plea and made a part of it. In her original petition she alleged various acts of negligence on the part of the power company, and alleged that such negligence was the proximate cause of the death of her husband. Evidence was tendered to the effect that the appellant owned power lines on an easement along U. S. Highway No. 281, and that the wires carried 22,000 and 2,400 volts respectively. These lines extended through Hamilton County to Hico, and were constructed sometime prior to 1955. The telephone company maintained lines in Hamilton County along the same highway, and were constructed near the lines of the power company.

Meissner was a lineman employed by the telephone company and at the time of his death he was engaged with a crew of four, constructing additional lines for his company. At the time he met his death he was on or near the top of a telephone pole, the top of which was 3 or 3½ feet below the lowest line of the power company. It is the contention of the appellees that a part of Meissner’s body, or some tool, or something he may have been working with, came in contact in some way with one of the power company’s wires, and by reason thereof he sustained the shock that resulted in his death. Appellees further contend that the maintenance of the power company line at the time and place in question, constituted negligence and a proximate cause of the death.

The foreman of the crew with which Meissner was working, came to a place about a mile outside of Hamilton, in the afternoon, and before proceeding with their work they looked over the situation and understood what they were going to do. The foreman discussed with Meissner and the other members of the crew the procedure that was to be used in doing their job.

The telephone company had their lines strung on cross bars attached to about the top of the poles, and their purpose there that afternoon was to string an additional cable in which telephone lines were to be carried.

The power company also had its wires on poles, and they were adjacent and parallel to the telephone company’s lines, and there was a distance of some 3 or 3½ feet between the top of the poles and the wires of the power line. It is not clear whether the power lines were perpendicular 3½ feet over the telephone lines or whether they were that distance on a horizontal basis.

Mr. Meissner, at the.time of the accident, was at the top or near the top of the telephone pole, and another workman was on the pole some distance below him, the exact distance not given. The lines that Meissner was helping to string were electrically charged, and carried “about 96 volts DC.”

The first notice that the foreman had of an accident was when the man working with Meissner hollered that “Meissner had been hit or shocked.” The foreman was some 300 feet away, but he went immediately to Meissner, and when he got there Meissner was slumped against the pole. The foreman and the other workman removed Meissner as quickly as possible and tried to revive him, but failed.

The wires of the power company were uninsulated, and the foreman said that he and his crew were familiar with that situation ; that you could see that the wires were uninsulated. The day was clear and visibility was good. The foreman did not measure the distance between the power lines and the place where Meissner was working, but he estimated that it was from 3 to 3½ feet away. There is an absence of testimony showing whether Meissner came in contact with appellant’s lines. Nor is there any evidence showing that the cable which Meissner was helping to place on the telephone poles came in contact with the power line. Nor is there any evidence to show that anything that Meissner had in his hand — tool or anything — came in contact with the power lines. There is an absence of testimony showing that the power company was negligent in the construction or maintenance of its power lines.

We have made a careful study of the record before us, and we see no facts or circumstances that tender an issue of negligence on the part of the power company in the maintenance of its line; nor do we find any fact or circumstance tendered that presents an issue of proximate cause.

Appellees rely on the provisions of Subsection 9a of Article 1995, Vernon’s Ann. Texas Revised Civil Statutes to maintain venue in Hamilton County, and the pertinent part of the statute on which they rely reads:

“9a. Negligence — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred * *

It is our view, after a most careful consideration of the entire record, that the ap-pellees have wholly failed to carry their burden of showing that the power company was guilty of negligence in the operation and maintenance of its power lines at the place in question that proximately caused the death of Meissner.

In view of the fact that this cause has to be tried on its merits, we refrain from further comment on the evidence; nor do we think it would be helpful to state or discuss any cases relating to this particular situation. Accordingly, this cause is reversed and rendered, and the District Clerk of Hamilton County is directed to follow Rule 89, Texas Rules of Civil Procedure, and send the papers to the District Clerk of Tarrant County,'Texas.

Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    MONTGOMERY WARD & COMPANY, Inc., Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 4624.
    Court of Civil Appeals of Texas. Waco.
    Aug. 3, 1967.
    Rehearing Denied Aug. 24, 1967.

      Baker, Botts, Shepherd & Coates, Wm. C. Bullard, Houston, for appellant.
    Talbert, Giessel, Barnett & Stone, Alice Giessel, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff, Montgomery Ward, from a take-nothing judgment against Allstate Insurance Company in a liability insurance coverage case.

Defendant Allstate had issued its liability policy to Mela Zwecker and husband; Mrs. Zwecker ran into the rear of Mrs. Carolyn Graham’s automobile, causing damage. Mrs. Graham sued Mrs. Zwecker. When Mrs. Graham’s attorney took Mrs. Zwecker’s deposition, Mrs. Zwecker testified she was aware that her brakes were not functioning to her satisfaction the day before the collision, and went to Montgomery Ward to have them fixed; that the service manager examined her brakes and told her they did not have time to fix them that day; that she could safely drive, however, until repairs could be made the next day; that the collision occurred when her brakes failed the next day as she was on her way to Montgomery Ward’s to have her brakes fixed. Mrs. Graham amended, alleging the occurrence made the basis of suit, was proximately caused by the concurrent negligence of Montgomery Ward in negligently advising Mrs. Zwecker she could drive her car safely until the following day when repairs would be made by Montgomery Ward.

Montgomery Ward learned that Allstate had issued its policy to the Zweckers; asserted under the facts it was also an assured, and called on Allstate to defend it. Allstate refused. Thereafter, Mrs. Graham’s suit against Mrs. Zwecker and Montgomery Ward was settled for $11,-250., Allstate paying $6250, and Montgomery Ward paying $5,000. Montgomery Ward then filed this case against Allstate, seeking declaratory judgment that it was an assured under Allstate’s policy issued to the Zweckers, and seeking damages of $3750. (the difference in the $6250. paid by Allstate and the $10,000 limit of its policy), plus $1500. attorneys’ fees and $1060. reasonable expenses of defending suit.

Trial was before the court without a jury which rendered judgment that plaintiff take nothing. The trial court filed Conclusions of Law that the provisions of Allstate’s liability policy issued to the Zweckers did not extend liability coverage to plaintiff, Montgomery Ward, under the facts.

Plaintiff appeals, contending the trial court erred in concluding that Allstate’s liability policy did not extend coverage to Montgomery Ward.

The applicable provisions of the policy are:

“Persons Insured
“The following are insured under Part 1
a) With respect to the owned automobile
1) The name insured and any resident of the same household.
2) Any other person using such automobile provided the actual use thereof is with the permission of the named insured.
c) Any other person or organization legally responsible for the use of
1) An owned automobile.”

Plaintiff earnestly contends that provision (c), "Any other person or organization legally responsible for the use of an owned automobile”, extends liability coverage to Montgomery Ward. We reject the contention. Montgomery Ward was not legally responsible for the use of the automobile by Mrs. Zwecker.

It is true Mrs. Graham brought suit against both Mrs. Zwecker and Montgomery Ward; and that Mrs. Graham alleged the accident was caused by the concurrent negligence of both Mrs. Zwecker and Montgomery Ward. It is also true Mrs. Zwecker sought to excuse her participation by alleging that she had taken the car to Montgomery Ward for brake repairs, and that its service manager had assured her the car could be safely driven until repairs could be made the following day. Nevertheless, Montgomery Ward was not legally responsible for the use of the vehicle by Mrs. Zwecker; and any responsibility for its own negligence does not make Montgomery Ward “legally responsible for the use of the vehicle”, within the meaning of the policy.

The point is of first impression in Tex-, as. In a similar case in California, Yandle v. Hardware Mut. Ins. Co., 9 Cir., 314 F.2d 435, the contention was made that a repairman who negligently repaired an automobile, was “responsible for the use” of the vehicle within the meaning of a similar insurance provision, and was consequently covered as an assured by the owner’s liability policy. The court rejected such contention, and held that the repairman was not responsible for the use of the vehicle (although but for his repairs it could not have been used), but that he was responsible for his defective work.

Plaintiff’s contention is overruled.

Affirmed.


text:
    Ronald L. SLOTER et ux., Appellants, v. SMITH MOTOR SALES, INC., Appellee.
    No. 14590.
    Court of Civil Appeals of Texas. San Antonio.
    July 19, 1967.

      Daniel R. Rutherford, San Antonio, for appellants.
    Arch B. Haston, Tom H. King, San Antonio, for appellee.
   BARROW, Chief Justice.

This is a suit to recover for damages to appellants’ automobile sustained as a result of appellee’s alleged negligence in repairing said automobile. The trial court instructed the jury to return a verdict for appellee at the close of appellants’ testimony and entered a take-nothing judgment.

On September 13, 1965, appellants delivered their 1962 Chevy II Nova station wagon to appellee to replace the upper ball joints. Appellee took the car to Mr. Slo-ter’s office late that afternoon and he drove it home — a distance of about 8½ miles. The next morning Mrs. Sloter started to work in this car. After driving it several blocks and making at least two brake applications without incident, the brakes failed and she went o\er an embankment, causing damage stipulated to be in the amount of $510.29.

Appellants urge twelve assignments of error which are briefed under two propositions. They assert under the first proposition that the evidence raises a fact issue as to negligence on the part of appellee in three respects: (1) appellee negligently replaced the upper ball joints and damaged the brake line in so doing, or failed to tighten the brake hose upon replacing it; (2) appellee negligently installed the upper ball joints in a manner to cause the brake system to leak; and (3) the appellee failed to inspect the repairs after they were made. Under their second proposition appellants urge that a cause of action was established under the res ipsa loquitur doctrine.

Three witnesses testified. Mrs. Sloter testified that she made two stops without any indication of brake trouble, but when she next tried to apply the brakes to slow the automobile before she reached a stop sign, they failed and although she pumped the brake pedal she had no brakes whatsoever.

Mr. Sloter testified that on Saturday, September 11, 1965, he noticed something wrong with the front end of the car when he was driving it home from work. He stopped at a Texaco service station operated by Mr. Edward Beard to check the difficulty. Mr. Beard advised that the upper ball joints were just hanging by a thread and should be replaced. The following Monday morning Mr. Sloter took the car to Smith Motor Sales and requested them to replace the upper ball joints. He drove the car home that afternoon and had no difficulty with the brakes, although he made numerous brake applications.

Mr. Beard testified that on examination of the car on Saturday, he found the bad ball joints. Furthermore, he checked the front and rear brake lines for leaks. The brakes were all right and there was no evidence that the line was leaking. He happened to be following Mrs. Sloter at the time of the accident. After checking her physical condition, he looked at the car and saw that the right front wheel was covered with brake fluid and one spot on the tire looked like it had absorbed some of the fluid. The brake fluid looked fresh, although he did not believe the impact caused the leak.

There is no contention that the upper ball joints were not properly replaced or caused the accident. Appellee was not requested to make any repair of the brake system and there is no evidence that it performed any work on any part of the brake system. Mr. Beard testified that, although it is not necessary to disconnect the brake fluid hose going into the wheel in order to replace the upper ball joints, he did so in order to have more freedom to work. He testified further that there is a chance that the mechanic may pinch the brake hose or otherwise damage it in replacing the line. There is no evidence in this case that the brake hose was pinched or damaged in any way. In fact, there is no evidence as to what caused the brake failure.

Appellants urge that the evidence in this case is similar to that in Sam White Oldsmobile Co. v. Jones Apothecary, Inc., 337 S.W.2d 834 (Tex.Civ.App. — -Houston 1960, writ ref’d n. r. e.), wherein a judgment entered on jury findings of negligence in making repairs was affirmed. The Court said: “As stated by appellant, in order to prevail appellee (plaintiff) had to show that some defect existed, making a repair necessary, and that appellant (defendant) failed to make the repair, and that such failure was a proximate cause of the damage.” The Court, after review of the evidence, found that the ignition and cigarette lighter were defective when the car was returned to defendant for repairs and both failed to function shortly after these repairs were supposedly made. This was strong circumstantial evidence that repairs necessary to put the ignition switch and lighter in good operating condition were in all probability not made. It was held that such failure in all reasonable probability caused the fire which destroyed plaintiff’s car.

Our case differs significantly, in that appellee was not requested to make any repair to the brake system, and there is no evidence whatsoever to show that ap-pellee ever touched the brake hose or any part of the brake system. The fact that Mr. Beard preferred to remove the brake hose when he replaced the upper ball joints does not create an inference, other than by conjecture or speculation, that appellee’s mechanic followed this procedure and improperly replaced the brake hose. We conclude that there is no evidence in the record which would raise a fact issue that the brake failure was caused by negligence in replacing the ball joints on the day preceding the accident.

Nor can it be said that appellants made out a case under the res ipsa loquitur doctrine. Sam White Oldsmobile Co. v. Jones Apothecary, Inc., supra. In Estrada v. Central Power & Light Co., 336 S.W.2d 768, writ refused, this Court said: “In order to invoke the doctrine of res ipsa lo-quitur there are four elements which must be pleaded and proved: (1) The thing or instrumentality which causes the injury must be under the management of the defendant or his servants; (2) the accident must be such as in ordinary course of events does not happen, if those who have its management and control use proper care; (3) there must be an absence or unavailability of direct evidence of negligence; (4) there must exist a sufficient duty on the part of defendant to use due care.” See also, Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex.Sup.1965).

The automobile was not under the control of appellee at the time of the accident. It was under the control of appellants and had been for at least fifteen hours, during which time the brakes had worked satisfactorily. The control rule set forth in cases where bottles exploded while in the custody of plaintiff is inapplicable to our situation, in that the facts are clearly distinguishable. See Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445 (1944).

The trial court did not err in instructing the jury to return a verdict for appellee. The judgment is affirmed.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Ex parte George R. BENFIELD.
    No. 40158.
    Court of Criminal Appeals of Texas.
    March 1, 1967.
    On Rehearing Sept. 14, 1967.
    George R. Benfield, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The petition for writ of habeas corpus presented to this Court by an inmate of the Texas Department of Corrections seeks relief from confinement under sentence in Cause No. 10,869 in the District Court of Bowie County.

The judgment, copy of which is attached to the petition, shows that upon his plea of guilty before the court to the indictment alleging the breaking and entry of an automobile for the purpose of committing theft, the court assessed petitioner’s punishment at five years in the penitentiary. The sentence ordered appellant confined for not less than one day nor more than five years.

The punishment provided by statute for the offense to which petitioner pleaded guilty is confinement in the state penitentiary “for a term of not more than three (3) years.” (Art. 1404b, Sec. 1, Vernon’s Ann.P.C.) The trial judge was without authority to assess a punishment of more than three years confinement in the penitentiary. •

Had the conviction been appealed, this Court would have reversed and remanded for a new trial. Reid v. State, 171 Tex.Cr.R. 678, 353 S.W.2d 225; Collins v. State, 127 S.W.2d 451, and cases cited; Washington v. State, 136 Tex.Cr.R. 600, 193 S.W.2d 531, and cases cited; Garcia v. State, 138 Tex.Cr.R. 180, 135 S.W.2d 107; Ruffin v. State, 138 Tex.Cr.R. 83, 134 S.W.2d 293; Erisman’s Manual of Reversible Errors, Section 553.

Had the petitioner made his attack upon the five year sentence after being entitled to credit for the maximum term of three years, this Court would grant the petition for writ of habeas corpus and order his discharge.

Another rule requires that the minimum term that could have been assessed be served before the conviction may be attacked by habeas corpus as excessive and void only as to the excess over the minimum. Ex parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex parte Webb, Tex.Cr.App., 374 S.W.2d 675; see also Ex parte Melvin Carl Davis, Tex.Cr.App., 412 S.W.2d 363 Opinion on Rehearing dated February 15, 1967. Such rule is not applicable in the case before us because the legislature has provided no minimum punishment for breaking and entering a motor vehicle for the purpose of committing theft, and no part of the conviction is valid.

It is true that under similar statutes providing no minimum punishment, this Court has attempted to apply the indeterminate sentence law. (Art. 42.09 Vernon’s Ann. C.C.P.1965, formerly* Art. 775 V.A.C.C.P.)

In Rowe v. State, 120 Tex.Cr.R. 246, 46 S.W.2d 1117, a sentence for one year was reformed so as to direct imprisonment not exceeding one year. In Slone v. State, 121 Tex.Cr.R. 632, 50 S.W.2d 301, a sentence for eighteen months was reformed to read “for an indeterminate period of not more than eighteen months.”

In Davis v. State, 125 Tex.Cr.R. 330, 68 S.W.2d 217, sentence for one year was reformed so as to direct confinement in the penitentiary for not less than one hour nor more than one year.

This form of sentence was explained by Judge Hawkins in the Davis case:

“We are at some loss under the circumstances to know how the Indeterminate Sentence Law (Article 775, C.C.P., as amended by Acts 1931, c. 207, § 1 * . * *) should be given effect. It is certain that the jury might fix the punishment at one day or even one hour in the penitentiary. It will perhaps answer for all practical purposes to reform the sentence to read that appellant should be confined in the penitentiary for not less than one hour nor more than one year.”

The form suggested by Judge Hawkins has been since used and was employed in the sentence here under attack.

The use of such form may not be construed as a holding by this Court that the legislature has provided a minimum punishment where it has not, or that this Court has attempted to provide a minimum punishment where the legislature has not.

Petitioner is entitled to release from further confinement under the conviction with punishment assessed at five years, but the conviction being void rather than merely excessive, the state is not precluded from trying him again.

If the petitioner fears that he will be ra-tried and, in event of conviction, will not be allowed credit for the time he has been confined under the charge of breaking and entering a motor vehicle, he may prefer to move for a rehearing and postpone his attack upon the five year sentence until he has served the maximum term of three years.

The petition for writ of habeas corpus is granted. Petitioner is ordered released from further confinement under the conviction with punishment assessed at five years and remanded to the custody of the Sheriff of Bowie County to answer the indictment in said Cause No. 10,869.

ON REHEARING

ONION, Judge.

In the Court’s original opinion, Judge Woodley said in part:

“If the petitioner fears that he will be re-tried and, in event of conviction, will not be allowed credit for the time he has been confined under the charge of breaking and entering a motor vehicle, he may prefer to move for a rehearing and postpone his attack upon the five year sentence until he has served the maximum term of three years.”

Following such suggestion, the petitioner has postponed his attack upon his five year conviction until this date. The record has now been made to reflect that the petitioner, who was convicted under the name of George Benefield in the District Court of Bowie County, has credit for the maximum term of three years, and he is entitled to be released from the Texas Department of Corrections.

It is so ordered.


text:
    VICTORIA BANK & TRUST COMPANY, Appellant, v. Ennis M. COOLEY, Jr., et al., Appellees.
    No. 15010.
    Court of Civil Appeals of Texas. Houston.
    June 29, 1967.
    Rehearing Denied Aug. 24, 1967.

      Fly, Cory, Moeller & Stevenson, W. S. Fly, Victoria, for appellant.
    Musslewhite & Musslewhite, Benton Musslewhite, Lufkin, for appellees.
   WERLEIN, Justice.

This suit was brought by appellees, En-nis M. Cooley, Jr., and the administrator of the Estate of Ennis M. Cooley, Sr., Deceased, against Atlantic Refining Company and Western Natural Gas Company and Victoria Bank & Trust Company, as executor of the Estate of M. E. Cooley, Deceased, and the Victoria Bank & Trust Company as administrator with will annexed of the Estate of F. C. Cooley, Deceased, for the recovery of certain royalties produced from certain lands situated in Victoria County, Texas. Atlantic Refining Company and Western Natural Gas Company paid into the registry of the court the amount of the royalties that were in dispute and were dismissed from the case with prejudice. The dispute between the Victoria Bank & Trust Company, appellant, and Ennis M. Cooley, Jr., et al, involves the construction of a quitclaim deed which was executed on March 19, 1955, by M. E. Cooley, a feme sole, and her sister, Frances C. Cooley, sometimes called F. C. Cooley, also a feme sole, in favor of Ennis M. Cooley, Sr. and Ennis M. Cooley, Jr., covering the grantors’ ranch consisting of some 1311 acres of land in Victoria County, Texas. The case was tried before the court without a jury, and the judgment of the court was that appellees were entitled to recover the royalties in dispute.

Appellant’s sole point of error is that the trial court erred in holding that the language of the deed in question vested the royalties in question in appellees during the period of time beginning November 27, 1959 and ending February 28, 1962, when F. C. Cooley died. The deed contains the following pertinent paragraphs:

“The Grantors herein specifically reserve that they, or the survivor of said Grantors, shall retain the full possession, use and benefit of all of the lands above described together with the rents, issues, profits, royalties from gas or oil thereon, or otherwise, for and during the natural life of the Grantors or the survivor of them.
“It is further specifically agreed that by this conveyance of title, that in the event the Grantors or either of them shall become incapacitated or physically unable to transact business in the normal and usual manner, then the title in fee simple hereby conveyed shall immediately vest in the Grantees and they shall have the immediate right to take over said lands hereinabove described to make improvements and to clear and to cultivate said lands and, if necessary, to use the rents, issues and profits from the cultivation of said lands or any other income therefrom for the use and benefit of the Grantors herein.
“This instrument is intended to and does hereby convey all of the right, title and interest of the Grantors in and to all cattle, livestock, farm equipment, feed, tools and other machinery and implements in, on or about the lands hereby conveyed, and also shall include all right, title and interest of the Grantors- in and to all minerals, royalties, oil and gas, and all leases and conveyances presently outstanding in favor of the Grantors.”

The evidence shows that on November 27, 1959 separate applications were filed for the appointment of a guardian for F. C. Cooley and for M. E. Cooley. M. E. Cooley died on January 31, 1960 without the court having taken any action in regard to her application. On March 14, 1960, however, the Victoria Bank & Trust Company was duly appointed guardian of the person and estate of F. C. Cooley, whom the County Court found to be an incompetent person, mentally incompetent to care for herself and to manage her property and financial affairs. At the time of her death M. E. Cooley was approximately 98 or 99 years of age, and F. C. Cooley at the time of her death was approximately 98 or 99 years of age. After Victoria Bank & Trust Company qualified as guardian, it operated the ranch from which the royalties were produced until the death of F. C. Cooley. During this period and, indeed, beginning with November, 1959, when the application for guardianship was filed, and until the death of F. C. Cooley, the royalties were withheld and impounded and later paid into the registry of the court, as hereinabove stated.

It is the contention of appellees that the deed in question gave them the right to all the royalties produced from the land in question as soon as the grantors, or either of them, became incapacitated or physically unable to transact business, which they assert occurred when the applications for the appointment of a guardian were filed in November, 1959. On the other hand, appellant contends that a proper interpretation of the paragraph of the deed with respect to either of the grantors becoming incapacitated or unable to transact business, in fact made the grantees trustees of the royalties for the two elderly ladies.

The evidence shows that Ennis M. Cooley, Sr. and Ennis M. Cooley, Jr., were the son and grandson, respectively, of H. M. Cooley, a cousin of M. E. Cooley and F. C. Cooley and their nearest relative, and that H. M. Cooley was a lawyer in Arkansas and the advisor of his elderly cousins. There is nothing in the record before us to show that H. M. Cooley drew up the deed or that the deed in question was drawn by the grantees. Hence the general rule of construction of deeds would apply, that is, if there is any doubt as to the meaning of the language of the deed, it should be resolved against the grantor and if the deed is susceptible of two constructions the one will be adopted that is most favorable to the grantee. 19 Tex.Jur.2d, page 398 et seq., Deeds, Sec. 110; Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930; Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551; Bumpass v. Bond, 1938, 131 Tex. 266, 114 S.W.2d 1172; McGuire v. Bruce, 332 S.W.2d 110, Tex.Civ.App.1959, writ ref. The law is well settled that if a deed is unambiguous, the court should determine the construction from the four corners of the instrument itself, and in doing so should ascertain and give effect to the intention of the grantor as gathered from the entire instrument, in light of the surrounding circumstances, unless the intention is in conflict with some settled rule of law or is repugnant to the terms of the grant. Worley v. Empire Gas & Fuel Co., 129 Tex. 532, 103 S.W.2d 368; Smith v. Smith, 305 S.W.2d 198, Tex.Civ.App., writ ref., n. r. e.

The deed in question is in the form of a quitclaim deed which, of course, conveyed whatever title the grantors had. Since at the time the deed was executed, and at the time the grantors became incapacitated, they owned the property in fee, the grantees acquired under the quitclaim deed a fee simple title. Richardson v. Levi, 67 Tex. 359, 3 S.W. 444; Garrett v. Christopher, 74 Tex. 453, 12 S.W. 67; Harrison Oil Co. v. Sherman, 66 S.W.2d 701, Tex.Civ.App.1933, writ ref.

In construing an instrument of conveyance, the first and paramount fact to be determined is the intention of the grantor gathered from the instrument as a whole. In the case of an unambiguous deed, all the provisions of the deed must be considered in the light of all other relevant provisions in order to ascertain the intention of the parties, and every part of the deed must be given , effect where this can be done without violating any legal principle. Ulbricht v. Friedsam, 1959, 159 Tex. 607, 325 S.W.2d 669; Sisk v. Randon, 1934, 123 Tex. 326, 70 S.W.2d 689; Texas Pacific Coal & Oil Co. v. Masterson, 1960, 160 Tex. 548, 334 S.W.2d 436; 19 Tex.Jur.2d, page 402, et seq., Deeds, Sec. 112.

In the instant case the grantors in the deed, after reserving to themselves, or the survivor of them, the use and benefit of the lands together with the rents, profits, royalties from gas and oil, for and during the natural life of the grantors, or the survivor of them, specifically stipulated that in the event they or either, of them “shall become incapacitated or physically unable to transact business in the normal and usual manner, then the title in fee simple hereby conveyed shall immediately vest in the grantees and they shall have the immediate right to take over said lands hereinabove described to make improvements and to clear and cultivate said lands, and, if necessary, to use the rents, issues and profits from the cultivation of said lands or any other income therefrom for the use and benefit of the grantors herein.”

It is our view that the evident intention of the grantors as expressed in the deed was that in the event either of them should become incapacitated the title and possession of the land in question would immediately vest in the grantees in fee simple. The grantors went further and stipulated not only that the title in fee would immediately vest in the grantees, but that the grantees would have the immediate right to take over said lands and make improvements thereon and clear and cultivate the land and, if necessary, to use the rents, issues and profits from the cultivation of the lands and any other income therefrom for the use and benefit of the grantors.

It seems clear to us that the grantors as a precautionary measure and for their own protection added the provision that if it became necessary for their use and benefit, the grantees would have the right to use the rents, profits and other income from said land for the grantors’ use and benefit. This additional provision cannot be construed as a condition subsequent which if not performed would entitle the grantors to forfeit the land and recover the same. At the most it might be construed upon acceptance by the grantees of the deed as an implied covenant or an equitable charge or obligation imposed upon the grantees to use the income, profits and royalties from the land, if it became necessary to do so, for the support and maintenance and use and benefit of the grantors. It is appel-lees’ contention that such additional provision is repugnant to the language vesting the fee simple title immediately in grantees upon either grantor becoming incapacitated, and hence such provision should be ignored and given no operative or legal effect whatever. They further assert, however, that if such provision is given any legal effect it must be construed favorably to the grantees since it constitutes a limitation upon their fee simple title which vested in them. Rittimann v. Rittimann, 323 S.W.2d 86, Tex.Civ.App., writ ref., n.r.e.; 19 Tex.Jur.2d, p. 399, Deeds, Sec. 110.

In giving consideration to all of the language of the deed, it is our view that such provision or limitation may be construed as an implied covenant or obligation placed upon the grantees to use the rents and issues from the land in question, and other income therefrom, for the use and benefit of the grantors if necessary. Allen v. Sharp, 233 S.W.2d 485, Tex.Civ.App. 1950, writ ref. The deed does not provide for a forfeiture of any kind, and such provision cannot be construed as a condition subsequent as hereinabove stated. In this State even an agreement by the grantees to care for the grantors during their lives is held to be a covenant and not a condition, although the habendum clause in the deed is followed by the phrase “subject to the terms and conditions hereinafter provided.” Sisk v. Randon, 1934, 123 Tex. 326, 70 S.W.2d 689; Cox v. Combs, 1908, 51 Tex.Civ.App. 346, 111 S.W. 1069; Hearne v. Bradshaw, 1958, 158 Tex. 453, 312 S.W.2d 948.

Even though such provision may not be held technically to be a covenant, it, in our opinion, imposed an obligation upon the grantees to use the income from the land in question for the use and benefit of the grantors if it became necessary to do so. Everett Factories & Terminal Corp. v. Oldetyme D. Corp., 300 Mass. 499, 15 N.E.2d 829, 118 A.L.R. 965. We are of the view that the grantors in the instant case intended to impose upon the grantees an obligation to use the income from the land in question for their use and benefit, but only in the event it became necessary to do so for their use and benefit.

At the time the grantors executed the deed in 1955, they undoubtedly knew that they had income from sources other than the lands in question, and they were probably aware of a large amount of cash which they had or were accumulating. The record shows that grantors had lands and property other than the land granted to ap-pellees. At the time the Bank became guardian of the person and estate of F. C. Cooley in 1960, the estate had on deposit $40,157.07 to which were added receipts of $3,789.23 for the period from March 14, 1960 through May 15, 1961, making a total of $43,946.30. The estate also possessed bonds totalling more than $28,000.00. Mr. F. C. Urban, Jr., Vice President and Senior Trust Officer of appellant, testified by deposition that on March 15, 1961, the estate had a cash balance of $15,121.29 besides all of the bonds and personal property, after making all disbursements, including a considerable amount of attorney’s fees for the initial work done in connection with the estate. When F. C. Cooley died and the guardianship was closed, the estate had cash left in the sum of $10,898.23, which included the proceeds from some of the bonds which had matured.

There was ample evidence in support of the implied finding of the trial court that both M. E. Cooley and F. C. Cooley became and were on and prior to November 27, 1959, incapacitated and physically unable to transact business in the normal and usual manner. There was also ample evidence in support of the court’s implied finding that it was never necessary to use the rents, oil runs, profits or other income from the land in question for the use and benefit of the grantors. There is nothing in the language used in the deed to indicate that it was not the intention of the grantors that during the period of incapacity of either of them their own assets and income would be used for their use, maintenance and benefit rather than the income from the land conveyed by them in fee to appellees, and that the income from appellees’ land was to be used only if it became necessary to use such income for the grantors’ use and benefit. Furthermore, even if it can be said that there are any conflicting provisions in the deed or that the language of the deed leaves any doubt as to the grantors’ intention, the deed must be construed so as to convey the greatest estate that the terms of the instrument permit, and a construction that vests the estate in the grantees as speedily as the language of the deed will permit, is favored. Texas Pacific Coal & Oil Co. v. Masterson, 1960, 160 Tex. 548, 334 S.W.2d 436; Caples v. Ward, 1915, 107 Tex. 341, 179 S.W. 856; Rittimann v. Rittimann, supra.

We find nothing in the record showing any acts or conduct on the part of the grantees inconsistent with the immediate vesting of the fee simple title in them upon the grantors’ becoming incapacitated. En-nis M. Cooley, Sr., lived on the land in question prior to the filing of the application for guardianship. Ennis M. Cooley, Jr., testified that his father moved on the ranch two or three years prior to the application for the appointment of the guardian, and took charge of the ranch, and looked after the ranch property. Furthermore, the evidence shows that Mr. Cooley was one of those who initiated the filing of the applications for the appointment of guardian. There is nothing in the record to indicate that Ennis Cooley, Sr., and Ennis Cooley, Jr., abandoned the right to possession of the property or the income therefrom.

There is ample evidence from which the court could find that the appellees took possession of the ranch, and its operation, and as owners in fee simple thereof exercised their right to possess and operate the ranch through a guardian who might be better qualified than they to run the ranch and look after the grantors. It is true that during the guardianship and the management of the ranch and the estate, the guardian sold some cattle and collected the proceeds from certain bonds which matured. There is nothing to show that the grantees objected to such action or that they were unwilling* for the cattle to be sold although the deed gave them title thereto. The testimony of the Vice President of appellant is that there were plenty of liquid assets to take care of the needs of the elderly ladies, and that the income from the oil properties that were impounded and which are'iir dispute, were never needed for their support and maintenance. Manifestly, such evidence supports the implied finding of the court that it was not necessary to use the royalties from the land in question for the use. ani benefitrcrf" the grantors.

Judgment affirmed.